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373 U.S. 374 (1963)
GOBER ET AL.
v.
CITY OF BIRMINGHAM.
No. 66.
Supreme Court of United States.
Argued November 6-7, 1962.
Decided May 20, 1963.
CERTIORARI TO THE COURT OF APPEALS OF ALABAMA.
Constance Baker Motley argued the cause for petitioners. With her on the brief were Jack Greenberg, Arthur D. Shores, Peter A. Hall, Orzell Billingsley, Jr., Oscar W. Adams, Jr., Leroy Clark, William T. Coleman, Jr., William R. Ming, Jr., James M. Nabrit III and Louis H. Pollak.
Watts E. Davis and J. M. Breckenridge argued the cause for respondent. With Mr. Davis on the brief was Earl McBee.
Solicitor General Cox, by special leave of Court, argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Assistant Attorney General Marshall, Ralph S. Spritzer, Louis F. Claiborne, Harold H. Greene, Howard A. Glickstein and Richard K. Berg.
PER CURIAM.
The judgments are reversed. Peterson v. City of Greenville, ante, p. 244.
[For opinion of MR. JUSTICE HARLAN, see ante, p. 248.]
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974 F.2d 1348
67 Fair Empl.Prac.Cas. (BNA) 96
Waltonv.Cowin Equipment Co., Inc.**
NO. 91-7854
United States Court of Appeals,Eleventh Circuit.
Sept 15, 1992
Appeal From: N.D.Ala., 774 F.Supp. 1343
1
AFFIRMED.
**
Local Rule 36 case
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979 F.2d 208
U.S.v.McDonald*
NO. 92-5532
United States Court of Appeals,Fifth Circuit.
Nov 05, 1992
Appeal From: W.D.Tex.
VACATED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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809 F.2d 183
James B. FRANCIS, Jr., Plaintiff-Appellant,v.INA LIFE INSURANCE COMPANY OF NEW YORK, A Cigna Company,a/k/a LICONY, Defendant-Appellee.
No. 347, Docket 86-7635.
United States Court of Appeals,Second Circuit.
Argued Nov. 17, 1986.Decided Jan. 9, 1987.
Joseph P. Altman, Jr., New York City (McCormick, Dunne & Foley, New York City, of counsel), for plaintiff-appellant.
Thomas M. Laquercia, New York City (Kenneth J. Klein, Smith & Laquercia, P.C., New York City, of counsel), for defendant-appellee.
Before VAN GRAAFEILAND and PIERCE, Circuit Judges and LASKER, Senior District Judge.*
PIERCE, Circuit Judge:
1
* The facts in this case are not in dispute and can be simply stated. On November 24, 1983, plaintiff-appellant, James B. Francis, Jr., fell from a ladder and severely injured his left hand. Specifically, Francis suffered lacerations of tendons, nerves, and arteries in his left wrist resulting in a 71% anatomic impairment of his left hand. However, the district court observed that "[t]he bone structure and certain other nerves, arteries and tendons remained intact." Francis v. INA Life Insurance Co. of New York, 638 F.Supp. 1117, 1118 (S.D.N.Y.1986).
2
Appellant was insured under an accident insurance policy issued by defendant-appellee, INA Life Insurance Company of New York ("LICONY"). A section of the policy dealt with loss of life or limb and provided benefits for "loss of one member." "Member" was defined to include "hand." "Loss" was defined to mean "with regard to hand or foot, actual severance through or above the wrist or ankle joints" (emphasis added). Francis asserted a claim for $125,000 under this provision of the policy, but it was rejected by LICONY, whereupon appellant brought suit in the New York State courts. Based upon diversity jurisdiction, the action was removed by appellee to the United States District Court for the Southern District of New York where appellee sought summary judgment, which was granted.
3
The sole issue on this appeal is the construction of the phrase "actual severance through or above the wrist" as used in the subject insurance policy. Appellant maintains in substance that the phrase relates both to the extent and manner of the insured's injury and requires only so much of a physical severance as accomplishes a functional severance. In other words, Francis argues, to recover an insured need only suffer the loss of use of his hand and that loss of use must occur by a significant cutting of the flesh of the limb. On the other hand, LICONY maintains that the language relates specifically to the extent of the injury and requires a literal separation of the member from the body. The district court, while not attempting to define comprehensively the degree of dismemberment necessary to trigger coverage under the policy, held that actual severance requires "substantial physical dismemberment," id. at 1120, and that appellant's injury was not sufficient to meet that requirment. We are in agreement with the district court's construction of the policy and hold that where, as here, the insured's bone structure and other essential parts of his wrist remained intact, the requirment of substantial physical dismemberment is not met.
II
4
It is not disputed that New York law governs. However, New York courts have not yet had occasion to construe the term "actual severance" at issue herein. Appellant points to a number of New York cases wherein the term "severance" was found to be ambiguous, and consequently, liability was found against the insurer because the ambiguity was resolved against the drafter of the policy. See Mifsud v. Allstate Insurance Co., 116 Misc.2d 720, 456 N.Y.S.2d 316 (N.Y.City Civ.Ct.1982) (meaning of "severance" ambiguous and does not mean amputation); Sneck v. Travelers' Insurance Co., 88 Hun. 94, 34 N.Y.S. 545 (N.Y.Sup.Ct.1895) (meaning of "loss by severance" uncertain and does not mean severance in an "anatomical or technical sense"), aff'd on opinion below, 156 N.Y. 669, 50 N.E. 1122 (1898). We note that the policies in those cases construed solely the word "severance," not qualified by the adjective "actual." As discussed below, while New York courts have found the meaning of "severance" to be ambiguous, this does not imply that they similarly would find the meaning of "actual severance" to be ambiguous. Hence, we conclude that the New York cases construing the term "severance" are not dispositive herein where the issue requires the construction of the words "actual severance."
5
In the absence of direct New York authority, we must make our best estimate as to how New York's highest court would rule in this case. Brastex Corp. v. Allen International, Inc., 702 F.2d 326, 330 (2d Cir.1983); Cunninghame v. Equitable Life Assurance Society of the United States, 652 F.2d 306, 308 (2d Cir.1981). In making that determination, we are free to consider all the resources the highest court of the state could use, Merritt-Chapman & Scott Corp. v. Public Utility Dist. No. 2 of Grant County, Wash., 319 F.2d 94, 103 (2d Cir.1963), cert. denied, 375 U.S. 968, 84 S.Ct. 488, 11 L.Ed.2d 417 (1964), including decisions reached in other jurisdictions, Metz v. United Technologies Corp., 754 F.2d 63, 66 (2d Cir.1985).
6
Our starting point in interpreting the phrase "actual severance through or above the wrist" is to determine whether the phrase is ambiguous. Breed v. Insurance Co. of North America, 46 N.Y.2d 351, 355, 413 N.Y.S.2d 352, 355, 385 N.E.2d 1280, 1282 (1978). An ambiguity in the terms of an insurance contract will generally be construed liberally in favor of the insured. Vargas v. Insurance Co. of North America, 651 F.2d 838, 839-40 (2d Cir.1981); Ruder & Finn Inc. v. Seabord Surety Co., 52 N.Y.2d 663, 671, 439 N.Y.S.2d 858, 862, 422 N.E.2d 518, 522 (1981). However, if the words are clear and unambiguous, they must be accorded their plain and ordinary meaning and the policy enforced as written; a court is not free to modify such terms by judicial construction. Government Employees Insurance Co. v. Kligler, 42 N.Y.2d 863, 864, 397 N.Y.S.2d 777, 778, 366 N.E.2d 865, 866 (1977). As this court has previously stated "it is not the function of a court to rewrite insurance policies so as to provide coverage which the court might have considered more equitable." Cornellier v. American Casualty Co., 389 F.2d 641, 644 (2d Cir.1968). See also Breed, 46 N.Y.2d at 355, 413 N.Y.S.2d at 355, 385 N.E.2d at 1283.
7
In our view, an insurance policy which provides benefits for loss of a member and defines such loss as requiring "actual severance through ... the wrist" is not ambiguous. The plain and ordinary sense of the language indicates that it relates to the extent of an insured's injury. We are mindful that in this area of the law we do not write on an entirely clean slate. As noted, New York courts have expressed the view that policies requiring "severance" are ambiguous and should not be read literally to require amputation in the strict anatomic sense. They have held that the term "severance" relates not to the extent of an insured's injury but rather to the manner by which that injury occurred. In other words, an insured is entitled to recover for loss of use of his hand if the manner in which he lost its use was through severance. See Mifsud, 116 Misc.2d at 721, 456 N.Y.S.2d at 317; Sneck, 88 Hun. at 99, 34 N.Y.S. at 548. However, the policies construed in those cases contained language significantly different from that at issue herein. In Mifsud, the policy provided benefits where there was "severance at or above the wrist." Mifsud, 116 Misc.2d at 721, 456 N.Y.S.2d at 317 (emphasis added). The term "at or above the wrist" refers pretty clearly to the location at which the severance must occur rather than to the extent of the injury. In Sneck, the policy was found to provide indemnity for "loss by severance of one entire hand or foot." Sneck, 88 Hun. at 95, 34 N.Y.S. at 546 (emphasis added). The court emphasized that the term "one entire hand" should be accorded its ordinary meaning and considered in connection with the use to which an entire hand was adapted. Therefore, the court reasoned, the policy was intended to cover loss of such use. Given the context in which the word "severance" appeared in each of the policies in Mifsud and Sneck, it is understandable that New York courts found the term to relate to the manner of injury.
8
The language at issue herein differs from the language in Mifsud and Sneck in several ways. First, it is qualified by the adjective "actual." "Actual severance" implies something more than simply "severance." While loss by "severance" might be deemed to include a functional loss of use if the manner of loss was by severance, loss by "actual severance" requires something more than loss of use. Moreover, the subject provision requires severance "through" the wrist. As we construe it, the word "through" has an unambiguous meaning which relates to the extent of the injury. In our view, the plain and ordinary connotation of the words "actual severance through" imports a definition of the extent of the injury necessary for coverage under the policy.
9
Our conclusion that the meaning of the term "actual severance through" is unambiguous is supported by a majority of decisions of courts in other jurisdictions. Those courts have found this language to be unambiguous and to require literal separation of the member from the body. Reid v. Life Insurance Co. of North America, 718 F.2d 677, 682 (4th Cir.1983) (denying coverage where leg not severed from body and no permanent severance of muscles, nerves, blood vessels, lymph vessels, skin, or other connective tissue); Juhlin v. Life Insurance Co. of North America, 301 N.W.2d 59, 61 (Minn.1980) (denying coverage where loss of use resulted from spinal injury and subsequent paralysis); Traverse v. World Service Life Insurance Co., 436 F.Supp. 810, 812 (W.D.Okla.1977) (denying coverage for loss of use of hands); Boyes v. Continental Insurance Co., 139 Ga.App. 609, 229 S.E.2d 75 (1976) (denying coverage for loss of use of arm); Sitzman v. John Hancock Mutual Life Insurance Co., 268 Or. 625, 522 P.2d 872 (1974) (denying coverage where loss of use of feet resulted from severance of spinal cord); Murray v. Insurance Co. of North America, 490 S.W.2d 250 (Tex.Civ.App.1973) (denying coverage where loss of use of feet and legs resulted from severance of spinal cord). In fact, this circuit, although not presented directly with the issue of the meaning of "actual severance through," in construing a Vermont insurance policy, indicated that such a provision was unambiguous and required amputation of the limb from the body. Cornellier, 389 F.2d at 643.
10
Only a minority of courts that have been confronted with the construction of "actual severance" have held that the phrase does not require total physical dismemberment. For example, in Reliance Insurance Co. v. Kinman, 252 Ark. 1168, 483 S.W.2d 166, 171 (1972), the court found the term to be ambiguous, a conclusion with which we do not agree, and consequently construed the policy in favor of the insured against the drafter. Therein, the court found that "actual severance" could be interpreted as either physical severance or as functional severance. In our view, the term relates only to physical severance. In Neer v. Fireman's Fund, American Life Insurance Co., 103 Wash.2d 316, 692 P.2d 830, 833 (1985), the court construed a slightly different but analogous term, "complete severance through or above the ankle joint," to include loss of use of feet by severance of the spinal column. However, in reaching the decision that "complete severance" includes a loss of use or function, the Neer court drew upon cases which construed policies with only the word "severance." See id., 692 P.2d at 833-34. As noted, it is our view that these terms have different and distinct meanings, and therefore we find the Neer case unpersuasive.
11
Based on the foregoing analysis, we believe New York's highest court would find the term "actual severance through ... the wrist" to be unambiguous and to require more than a functional loss of use. Under New York law, its courts are bound to adhere to the plain language of insurance contracts if unambiguous. State Farm Mutual Automobile Insurance Co. v. Westlake, 35 N.Y.2d 587, 591, 364 N.Y.S.2d 482, 485, 324 N.E.2d 137, 139 (1974); HS Equities, Inc. v. Hartford Accident & Indemnity Co., 609 F.2d 669, 673-74 (2d Cir.1979). As discussed, the plain and ordinary sense of that language relates to the extent of the insured's injury. Moreover, the weight of authority in other jurisdictions comports with this outcome; only a minority of jurisdictions have reached different conclusions. Finally, the New York Court of Appeals, in interpreting "actual severance through," would not be bound by those New York cases which construe "severance" to include loss of use since those cases are distinguishable.
III
12
Having concluded that loss by "actual severance through" relates to the extent of the loss an insured must suffer and that such extent must be more than simply a loss of use or function, we are faced with the question of the extent of severance necessary to come within the scope of the policy. We do not now undertake to provide a precise definition of the degree to which the limb must be severed from the body. We are in agreement with the district court that substantial physical dismemberment is necessary. Whether total separation of the member from the body or some degree of physical dismemberment short of total separation is required will best be decided as cases reach the courts in the future. However, in this case, for the purpose of construing the challenged language herein, we hold that appellant did not suffer substantial physical dismemberment as a result of his serious accident. The record indicates that appellant suffered multiple glass lacerations of the left wrist involving laceration of multiple tendons, nerves and arteries. However, appellant's bone structure and certain other nerves, arteries, and tendons remained intact. Under these circumstances, the district court properly concluded that no substantial physical dismemberment had occurred.
13
The judgment of the district court dismissing appellant's complaint is affirmed.
*
Honorable Morris E. Lasker, Senior Judge, United States District Court for the Southern District of New York, sitting by designation
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275 S.W.3d 322 (2008)
STATE of Missouri, Plaintiff/Respondent,
v.
Ray R. STEGER, Defendant/Appellant.
No. ED 90682.
Missouri Court of Appeals, Eastern District, Division Four.
November 25, 2008.
Motion for Rehearing and/or Transfer to Supreme Court Denied January 13, 2009.
Application for Transfer Denied February 24, 2009.
Michael A. Gross, St. Louis, MO, for appellant.
Shaun J. Mackelprang, Karen L. Kramer, Assistant Attorney General, Jefferson City, MO, for respondent.
Before BOOKER T. SHAW, P.J., KATHIANNE KNAUP CRANE, J., and MARY K. HOFF, J.
Prior report: 209 S.W.3d 11.
*323 ORDER
PER CURIAM.
Defendant appeals from the judgment entered on a jury verdict finding him guilty of unlawful use of a weapon, in violation of section 571.030.1(4) RSMo (2000). The trial court sentenced defendant to four years imprisonment, suspended the execution of the sentence, and placed him on five years probation.
No error of law appears and no jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.
The judgment is affirmed in accordance with Rule 30.25(b).
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57 F.2d 707 (1932)
UNITED STATES ex rel. YOKINEN
v.
COMMISSIONER OF IMMIGRATION.
No. 327.
Circuit Court of Appeals, Second Circuit.
April 11, 1932.
Irving Schwab, of New York City (Frank Scheiner, on the brief), for relator-appellant.
George Z. Medalie, U. S. Atty., of New York City (Ira Koenig, Asst. U. S. Atty., of New York City, of counsel), for respondent.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
CHASE, Circuit Judge.
The authority for the order of deportation is found in 8 USCA § 137 (c) and (g). The Communist Party is well known to be a group which advocates the overthrow of organized government by force. No claim is made that aliens who are members of it are not subject to deportation. The appellant contends, however, that, as he was not a member at the time of his arrest, he could not be deported because of his previous membership; that he was not shown to be affiliated with the proscribed organization; and that the proceedings which led to the order of deportation were unfair.
It is true that he was not a member of the Communist Party when arrested. He had recently been expelled because of his attitude toward negroes, but that did not remove him from the reach of the statute. We have nothing to do with shaping the policy of the law toward aliens who come here and join a proscribed society. Congress has provided that "any alien who, at any time after entering the United States, is found to have been at the time of entry, or to have become thereafter, a member of any one of the classes of aliens enumerated in this section" shall be deported. 8 USCA § 137 (g). This alien concededly did become after entry a member of "one of the classes * * * enumerated" and from that time became deportable. We are urged to ameliorate the supposed harshness of the statute by reading into it words that Congress saw fit to leave out and interpret it to apply not to aliens who become members, but only to those who become and continue to the time of their arrest to be members, of one of the enumerated classes. If the words used in the statute were equivocal or the intention of Congress for any reason uncertain, there might be room for such a construction as that for which the appellant now contends. Perhaps the sufficient answer is that had Congress intended membership at the time of arrest to be the criterion it would have said so. It has the power to determine *708 what acts of an alien shall terminate his right to remain here. Skeffington v. Katzeff et al. (C. C. A.) 277 F. 129. What it did do was to make the act of becoming a member a deportable offense without regard to continuance of membership and it did that in language so plain that any attempt to read in any other meaning is no less than an attempt to circumvent the law itself.
Since the appellant admittedly had, after entry, become a member of a proscribed organization, the undisputed evidence required the order from which this appeal was taken. All proof upon which he was held to be affiliated with the Communist Party was unnecessary, and while we do not mean to intimate that any evidence on that phase of the case was unfairly received and considered, in any event it did him no harm.
Order affirmed.
AUGUSTUS N. HAND, Circuit Judge (concurring).
It is unnecessary in this case to determine whether former membership in a proscribed organization is sufficient to justify the deportation of an alien who has been expelled for failing to conform to its principles. It is enough that the alien Yokinen, by pledging himself to perform certain tasks prescribed by the Communist Party in order to secure reinstatement, must be regarded as affiliated with it. On this last ground the relator is deportable and the order below must be affirmed. I concur in affirmance on this ground only.
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300 Multiple Choices
Multiple Choices
The document name you requested (/attorneys/assets/opinions/appellate/unpublished/a3278-14.pdf) could not be found on this server.
However, we found documents with names similar to the one you requested.Available documents:
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IBM_HTTP_Server at www.judiciary.state.nj.us Port 443
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476 F.2d 546
82 L.R.R.M. (BNA) 2955, 155 U.S.App.D.C. 101,70 Lab.Cas. P 13,508
FOOD STORE EMPLOYEES UNION, LOCAL NO. 347 AMALGAMATED MEATCUTTERS and Butcher Workmen of North America,AFL-CIO, Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 71-1550.
United States Court of Appeals,District of Columbia Circuit.
Argued April 17, 1972.Decided March 21, 1973.As Amended April 3, 1973.Rehearing Denied May 18, 1973.
Mozart G. Ratner, Washington, D. C., and Judith A. Lonnquist, Chicago, Ill., with whom Albert Gore, Chicago, Ill., was on the brief, for petitioner.
Robert E. Williams, Atty., N. L. R. B., of the bar of the Supreme Court of Illinois, pro hac vice, by special leave of court, with whom Marcel Mallet-Prevost, Asst. Gen. Counsel, and Steven R. Semler, Atty., N. L. R. B., were on the brief, for respondent.
Before BAZELON, Chief Judge, and McGOWAN and LEVENTHAL, Circuit Judges.
McGOWAN, Circuit Judge:
1
In this direct review proceeding under the National Labor Relations Act, we are concerned only with remedies. The wrongs-consisting of Section 8(a)(1) and (5) violations-were before us in Food Stores Employees Union, Local 347 v. NLRB, 139 U.S.App.D.C. 383, 433 F. 2d 541 (1970). We there granted enforcement of the Board's order, but, in response to the Union's contention that the Board should have gone further in providing adequate relief, we remanded the case to the Board for reconsideration of the Union's requests in this regard. Although the Board has increased somewhat the range of the relief granted by it initially, the Union has renewed its complaint to this court that the Board has fallen short of proper effectuation of the policies of the Act. To the limited extent hereinafter indicated, we find this to be true; and we enlarge the remedies accordingly.
2
* The employing company, Heck's Incorporated, is not a stranger to the processes of the Board. Operating a chain of discount stores in the Southeast, this is the eleventh time that its resistance of union organization has embroiled it in Board proceedings.1 In none has it prevailed at the Board level, and its fortunes in the Courts of Appeals have been only marginally better.2 In its first opinion in this case, the Board characterized Heck's as having "a labor policy in all of its stores that is opposed to the policies of the Act." In its Supplemental Decision following upon our remand, the Board asserts that "it is by now clear that [Heck's] conduct here is but part of a pattern of unlawful antiunion conduct engaged in by [Heck's] top officials throughout [its] entire operations for the purpose of denying to all of its employees the exercise of those rights guaranteed the employees by Section 7 of the Act;" and, viewing Heck's conduct not "in isolation" but "in the total context," the Board characterized Heck's unfair labor practices as "clearly aggravated and pervasive."
3
The unfair labor practices involved in this case grew out of the Union's effort to organize the employees of Heck's store in Clarksburg, West Virginia. The 8(a)(1) violation was found by the Board to reside in unlawful questioning and threatening of employees, and management polling by nonsecret ballot to ascertain the degree of employee support for the Union. The 8(a)(5) dereliction consisted of a refusal to bargain despite the existence of cards showing a majority in favor of the Union. The remedies initially afforded by the Board included a bargaining order, and the conventional command that the employer cease and desist from interfering with Section 7 rights. Appropriate notices of the relief given were directed to be posted at all of Heck's stores.
4
The Union's requests for additional relief at issue on the remand were as follows:
5
1. A copy of the notices ordered to be posted should also be sent to the home of each Heck's employee, and the president and vice-president of Heck's should be required to read the notices to employees at all Heck's locations.
6
2. To facilitate Union access to employees, Heck's should (a) provide the union with a list of names and addresses of all its employees; (b) afford the Union access to company bulletin boards and other posting places; (c) permit Union use of employer facilities in non-working parts of the stores during non-working hours; and (d) permit the Union to call a meeting in each store on company time in facilities customarily used for employee meetings.
7
3. Heck's should be ordered to bargain with the Union on a companywide basis, i. e., the Board should recognize a bargaining unit encompassing all the stores in the Heck's chain.
8
4. The General Counsel should be ordered to seek injunctions under Sec. 10(j) of the Act whenever a complaint issues against Heck's.3
9
5. Heck's should be ordered to reimburse employees for the loss of wages and fringe benefits that would have obtained if it had not flagrantly violated Sec. 8(a)(5) by refusing to bargain about a contract.6. Heck's should be ordered (a) to pay the Union the amount of dues and fees which would have been paid by the employees of the Clarksburg store during the period of Heck's refusal to bargain; and (b) to compensate the Union for its litigation expenses, including reasonable attorney's fees, and for excess organization expenses caused by the unfair labor practices to which it was subjected.
10
The proceedings upon remand consisted of the receipt by the Board of statements of position from the General Counsel, the Union, and Heck's. After consideration of these statements, the Board issued a Supplemental Decision and Amended Order, which enlarged the remedies in the following respects:
11
1. The notices required to be posted at all of Heck's stores are also required to be mailed to each employee at his home.
12
2. The Union is to be afforded access for a one-year period to Heck's bulletin boards, and other places where notices to employees are customarily posted, for the posting of Union notices, bulletins, and other organizational literature.
13
3. The Union is to be furnished by Heck's with a list of all of its employees' names and addresses, such list to be kept current for a one-year period.
14
Dissatisfied with the degree to which the Board thus moved in the direction of meeting its requests, the Union petitioned for review in this court. The Board has responded in defense of its actions, but Heck's, although its position on remand was that no additional relief was in order, has not intervened and is not now before us.
II
15
We turn first to the controversies that remain with respect to nonmonetary relief. All of the additional relief given on remand was of that character, and it is now unchallenged. The Union does not appear to press its contention that the notices-now required to be mailed as well as posted-also be read by the company officers; and we do not, in any event, disturb this exercise of the Board's discretion. The union does complain of the failure to give it access to the employees on company property. The Board was of the view that this privilege was not demonstrably necessary to the effectiveness of the Union's organizing efforts, especially in the train of the Board's action in requiring that the Union be furnished with the list of employees' names and addresses. Until this latter expedient had been tried and found wanting, the Board thought that the problems inevitably attendant upon Union activity on company property need not be anticipated. This is an exercise of judgment which we are not disposed to overturn.
16
The Union also persists in its assertion that the bargaining order, which presently embraces only the unit at the Clarksburg location, should be made company-wide. The Board, emphasizing that the Union's organizing campaign has been, as in the case of Clarksburg, conducted on a store-by-store basis, and that there is no claim that the Union represents a majority of all the employees or a majority in any location other than those presently covered by bargaining orders,4 alludes to the novelty of this kind of relief, especially in the light of Section 7's explicit guarantee of the right of employees to refrain from representational bargaining.
17
Despite the unrelieved history of the omission of this device from the Board's remedial arsenal, the Board has purported to consider the proposal on its merits. Its conclusion was that the Union's very success in gaining majorities in a number of single locations indicates that its potential for successful organization elsewhere is substantial-a potential which, indeed, has been presumably increased by the enlarged relief currently being given. Under these circumstances, the Board thought it both unnecessary and unwise to risk trenching upon the policies of Section 7 in the absence of proof that the Union would be helpless without this extraordinary relief. These considerations seem to us rational in nature and well within the range of respect traditionally to be accorded by us to the Board's determinations.5
III
18
The remaining components of the Union's prayer for additional relief involve monetary compensation. They are four in number.
19
1. Legal Fees and Litigation Expenses.
20
It is the Union's submission that, where it is necessary to exhaust legal procedures in order to attain rights accorded it by the Act, it should be reimbursed for its counsel fees and other litigation expenses, at least in respect of an employer who, like Heck's, has been found by the Board to have engaged in a deliberate "pattern of unlawful antiunion conduct." The Board, however, stressed the fact that the Act assigns the laboring oar to the General Counsel in the prosecution of an unfair labor practice charge, and that the participation of the charging party is not central to the public purposes of the statute but, rather, incidental to that party's efforts to assure protection of its own private interests. With this statutory framework, said the Board, "the public interest in allowing the Charging Party to recover the costs of its participation in this litigation does not override the general and well-established principle that litigation expenses are ordinarily not recoverable."
21
There are, it seems to us, obvious difficulties with this approach, certainly in the case of an employer who appears to look upon litigation as a convenient means of delaying-and thereby perhaps avoiding-the fatal day of union recognition and collective bargaining. We need not pursue those difficulties in detail, however, for the reason that the Board itself has subsequently departed from the rationale upon which its refusal of litigation expenses in this case is based. In its Supplemental Decision and Order, 194 NLRB No. 198, issued after remand by this court in International Union of Electrical, Radio & Machine Workers, AFL-CIO v. NLRB (Tiidee Products, Inc.), 138 U.S.App.D.C. 249, 426 F.2d 1243 (1970), cert. denied, 400 U.S. 950, 91 S.Ct. 239, 27 L.Ed.2d 256 (1970), the Board ordered the additional relief of payment to both the labor organization and the Board of their litigation expenses in both the Board and court proceedings.
22
In doing so the Board reasoned that the Congressional objective of achieving industrial peace through collective bargaining "can only be effectuated when speedy access to uncrowded Board and court dockets is available." It went on to conclude that, "in order to discourage future frivolous litigation, to effectuate the policies of the Act, and to serve the public interest we find that it would be just and proper" to order reimbursement of both the Board and the Union for their expenses incurred in the investigation, preparation, presentation, and conduct of the cases before it and in this court.6
23
We think the considerations which motivated the Board to give this enlarged relief in Tiidee are also operative here. Although the Board in its Supplemental Decision in this case has nowhere characterized the litigation as frivolous, it has used the language of "clearly aggravated and pervasive" misconduct; and in its original opinion it questioned Heck's good faith because of its "flagrant repetition of conduct previously found unlawful" at other Heck's stores. It would appear that the Board has now recognized that employers who follow a pattern of resisting union organization, and who to that end unduly burden the processes of the Board and the courts, should be obliged, at the very least, to respond in terms of making good the legal expenses to which they have put the charging parties and the Board. We hold that the case before us is an appropriate one for according such relief.
24
2. Organizing Costs.
25
In its Supplemental Decision after remand, the Board lumped litigation expenses and excess organizational costs together in its discussion. It prefaced that discussion by saying that ". . . we are not unmindful of the probability that the Charging Party has spent more money on organizational costs and attorneys' fees than it would have spent had [Heck's] not refused to bargain."7 It concluded, however, not to make any allowances in this regard for the reasons articulated by it in denying litigation expenses. This rationale, as we have seen, generally turned upon what the Board considered to be the subordinate role of a charging party in the scheme of the Act.
26
As in the case of litigation expenses, the Board, upon remand in Tiidee, has shifted its ground with respect to organizational costs. In its Supplemental Decision in Tiidee, the Board did not allow the claim for excess organizational expenses, but it justified that action solely on the ground that ". . . the Union was selected by the employees after a 2-month campaign at the first election held;" and, because of this circumstance, the Board found ". . . no nexus between Respondent's unlawful conduct here under examination and the Union's preelection organizational expenses . . ." Thus, in Tiidee the Board appears to have denied organizational costs because it believed that, on the facts of that case, no unusual organizational costs had been incurred.
27
This obviously is quite a different thing from saying that the policies of the Act forbid the allowance of such costs in cases like the one before us, where the Board has in terms indicated its awareness of "the probability" that such costs were experienced by reason of Heck's intransigence. Under these circumstances we find nothing in the Board's Supplemental Decision which constitutes an adequate justification for the denial of extraordinary organizational costs to which the Union was exposed by reason of Heck's policy of resisting organizational efforts and refusing to bargain; and we think that provision for such costs should have been included in the remedies fashioned by the Board on remand.8
28
3. Union Dues and Fees.
29
In its Supplemental Decision dealing with the Union's claim that it should be reimbursed for union dues and fees lost by it during the period when Heck's was refusing to bargain, the Board asserts that the only predicate for such relief would be a finding by it that, had there been bargaining, it would have resulted in the inclusion of a union security clause which would have required payment of dues and fees as a condition of continued employment. The Board concludes that "[W]hile the execution of such an agreement is of course a possibility, we cannot conclude that it is so strong a probability that any loss of dues or fees must be deemed to have resulted from [Heck's] unlawful refusal to bargain."9
30
The Union, in challenging this conclusion, argues alternatively that (1) the likelihood of the successful negotiation of a union security clause is substantial in the light of the prevalence of such clauses in collective bargaining agreements, or (2) even if it be assumed that no such contract would have ensued, the willingness of Heck's to bargain at all would have resulted in the voluntary payment of union fees and dues by at least some of the 26 employees who signed the authorization cards.
31
We have difficulty with each of these hypotheses. It is undoubtedly true that union security clauses have attained a wide degree of use, but it also remains true that an employer may bargain to impasse with respect to such a demand, and that the Board may not impose that obligation upon the employer. H. K. Porter Co. v. NLRB, 397 U.S. 99, 90 S. Ct. 821, 25 L.Ed.2d 146 (1970). We also think it speculative in the extreme to suppose that employees would voluntarily begin paying initiation fees and dues to a union which has been denied recognition and failed to produce a contract. There is nothing in the record to show -and the Union does not represent to us-that it made any effort to assess dues and fees during the period of its travail with Heck's. In the absence of such evidence, there is some reason to suppose that union policy, generally and in the case of the Union here involved, is not to make any effort to collect dues and fees, at least in the case of newly organized employees, until the fruits of union membership are brought home in the form of a signed agreement.10
32
It would, in any event, present formidable problems of proof to try to determine at this late date which employees would, if they had been asked, have paid fees and dues during the period in question. Short of assuming that all would have done so-an assumption for which there seems little foundation in the realities of human nature-the inquiry would be an exercise in futility. In any event, the loss, if any, of such dues and fees will, we think, be offset to some extent by the relief we have directed in respect of extraordinary organizational costs.10a
33
4. Compensation for Lost Benefits.
34
The additional remedy of making its members whole for the wage and other fringe benefits which might have accrued from the bargaining process is the matter principally pressed by the Union. In its Supplemental Decision, the Board initially reiterated its position, stated in Ex-Cell-O Corporation, 185 NLRB No. 20, that it was wholly lacking in statutory authority to give relief of this nature. However, it went on to conclude that, even if it had the power to act, this would not be an appropriate case in which to do so. It pointed to the opinions of this court subsequent to Tiidee, in which we have held the make-whole remedy inapplicable where the refusals to bargain rested on "debatable" issues, as contrasted with those which we, as in Tiidee, have characterized as "patently frivolous."11 Referring to the precise circumstances of this case, the Board concluded that the latter category did not embrace a defense which failed solely by reason of the credibility determinations of the Trial Examiner.
35
The union, although harassed from the beginning of its organizing campaign at the Clarksburg store, within a few days represented to Heck's that it had in hand the signed authorization cards of a majority of the employees; and it requested recognition and bargaining. The response of Heck's was to file a petition for an election. When the election was held some six weeks later, the Union lost by a vote of 16 to 19, although this result was subsequently nullified by reason of the employer's unfair labor practices. The Trial Examiner found that the General Counsel had failed to prove that Heck's lacked a good faith doubt of the Union's majority status and that, accordingly, there was no 8(a)(5) violation.
36
In making this determination, the Trial Examiner focused first on the substance of Heck's refusal to recognize the Union on the basis of the cards. The administrative hearing record shows that Heck's introduced testimony by certain employees as to intimidation and other circumstances which, if it had been believed, would have eliminated enough cards to vitiate the majority status claimed by the Union. Although the Trial Examiner ultimately found each of the cards to have been validly obtained, he noted that the determination turned upon some close questions concerning the credibility of witnesses. The Trial Examiner also emphasized the fact that Heck's had promptly filed an election petition after the demand was made, and that Heck's had had some prior experience with card-based bargaining demands from the Union which later proved unwarranted.12
37
The Board took its stand principally upon what it termed to be the long history of disregard by Heck's generally of its obligations under the Act. Thus the Board's finding of bad faith was based not on a determination that Heck's objections to this particular demand for recognition were insubstantial, but rather on Heck's repetition in the period preceding the election of conduct found in prior proceedings to have been illegal. We agree with the Board's conclusion that an employer's good faith must be judged in the entire context of its behavior, and indeed our determination that some additional remedies are required in this case is based on Heck's consistent and repeated demonstration of antiunion animus. However, the factors which influenced the Trial Examiner on the issue of good faith remain undisturbed by the Board's decision and are relevant to the appropriateness of the make-whole remedy.
38
In the light of these circumstances, we are not inclined to say that the Board's treatment of this issue on remand is beyond the wide range of latitude traditionally accorded the Board in the matter of remedies. The Supreme Court, although ultimately accepting the signed card approach in Gissel as a basis for creating the recognition and bargaining obligation, did at the same time refer to cards as "admittedly inferior to the election process." The employer here appears to have had some basis for questioning the result of the card approach, and it exhibited its readiness to invoke the election process. We do not, accordingly, revise the Board's failure to provide an additional remedy in the form of a make-whole provision.13
39
We grant enforcement of the Board's Amended Order, as the same shall be further enlarged upon remand by the inclusion of the additional remedies of litigation costs and organizational expenses discussed hereinabove.
40
It is so ordered.
1
The long history of this struggle is as follows: Heck's Discount Store, 150 NLRB 1565 (1965), enforced per curiam, 369 F.2d 370 (6th Cir. 1966); Heck's Inc., 156 NLRB 760 (1966), enforced as modified, 386 F.2d 317 (4th Cir. 1968); Heck's Inc., 158 NLRB 121, enforced per curiam, 387 F.2d 65 (4th Cir. 1967); Heck's Inc., 159 NLRB 1151 and 159 NLRB 1331 (1966), consent decree entered (4th Cir. No. 11,390 June 13, 1967); Heck's Inc., 166 NLRB 186 and 166 NLRB 674 (1967), enforced as modified, 390 F.2d 655 (4th Cir. 1968) and 398 F.2d 337 (4th Cir. 1968), modified and remanded sub nom. NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969); Heck's Inc., 170 NLRB 178 (1968), enforced in part, remanded in part in light of NLRB v. Gissel Packing Co., supra, 135 U.S.App. D.C. 341, 418 F.2d 1177 (1969); Heck's Inc., 171 NLRB 777 (1969); Heck's Inc., 172 NLRB No. 255 (1969), enforced in part, remanded in part, 139 U.S.App. D.C. 383, 433 F.2d 541 (1970); Heck's Inc., 174 NLRB 951 (1971)
2
The Fourth Circuit refused to enforce an 8(a) (5) order to bargain in NLRB v. Heck's Inc., 386 F.2d 317 (4th Cir. 1967), on the ground that the card majority had been obtained through improper participation of supervisory personnel. In N.L. R.B. v. Heck's Inc., 398 F.2d 337 (4th Cir. 1968), the court declined enforcement of an order to bargain, but that decision was reversed by the Supreme Court sub nom. N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). This court, while enforcing the Board's order in part in Food Store Emp. U., Loc. 347, Amal. Meat Cut. v. NLRB, 135 U.S.App.D.C. 341, 418 F.2d 1177 (1969), remanded, in light of Gissel, for further findings as to whether the employer's refusal to bargain was accompanied by independent unfair labor practices which precluded a fair election
3
In its Supplemental Decision, the Board at the outset noted that the Union requested this particular relief and the General Counsel opposed it, and thereafter made no further reference to the matter. Similarly, there was no discussion of this item by either the Union or the Board in their briefs and arguments before us. In these circumstances we do not pursue the matter, except to remark that the General Counsel's statement on remand emphasizes his continuing sensitivity to the obligations imposed upon him by Section 10(j). He also pointed out that the final order to be entered by the Board in this case runs against Heck's, and cannot operate to impose obligations on the General Counsel. It may be that the matter was not pressed upon the Board in the light of these representations
4
Neither do we disturb the Board's rejection of a related Union proposal, which was supported by the General Counsel, that the Board enter now a bargaining order with respect to any single-store unit as to which the Union hereafter secures a card majority or otherwise achieves bargaining rights. The Board, in addition to believing that this was not essential to the employees' ability in the future freely to choose their bargaining representatives, pointed out that disputes over representation issues would, under this approach, presumably have to be decided by the courts of appeals acting with the aid of special masters-a circumstance that promises neither greater expedition in handling nor more expert resolution in result. We have no warrant to fault the Board for taking these considerations into decisive account
5
N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 612 n. 32, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969); Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203, 216, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964); International Union of Electrical, etc., Workers v. N.L.R.B., 138 U.S.App.D.C. 249, 426 F.2d 1243, 1250 (1970), cert. denied, 400 U.S. 950, 91 S.Ct. 239, 27 L. Ed.2d 256
6
These reimbursable expenses were described by the Board as "reasonable counsel fees, salaries, witness fees, transcript and record costs, printing costs, travel expenses and per diem, and other reasonable costs and expenses."
7
In his statement of position on remand, the General Counsel supported the Union's entitlement to extraordinary organizational costs. His comment was that where the Union was required by Heck's unfair labor practices "to expend additional funds in organizational activity over and above those normally required . . . [Heck's] should be ordered to reimburse the Union for these additional expenditures."
8
Counsel for the Board in their brief in this court attempt to supply a number of reasons why excess organizational costs should not be taken into account, such as their assertedly speculative nature and their invitation of collateral litigation which burdens the Board's administration of the Act. These are counsel's reasons, not the Board's; and, under familiar principles of judicial review of administrative agencies, we appraise the Board's actions only in terms of the latter
9
The Board raised, although it pretermitted, a question as to its power to provide a remedy in respect of union dues and fees, because of the restrictions on payments by employers to employee representatives imposed by Section 302 of the Act. Because of the disposition we make of this claim we need not pursue this issue of authority, although it would appear that Section 302 is addressed to other circumstances than those involved here
10
In its rejection of a claim of this kind on remand in Tiidee, the Board noted that the labor organization involved in that case had asserted that ". . . because it is union policy not to collect initiation fees and dues until a contract is executed, it has received nothing from the unit employees throughout the course of this proceeding . . ." The Board purported first to view this claim as "partaking of a request for a make-whole remedy, which we have declined to order, since presumably the dues and fees sought would have come from lost wages . . ." Although it may be that the Board here is confusing the substantive merits of a make-whole remedy with the wholly manageable problem of preventing a double recovery, the Board went on to conclude that, since the union as a matter of policy did not seek initiation fees and dues prior to negotiation of a contract, it saw no reason to cause the employer to assume the risk of that passivity
10a In Bangor & Aroostock R. Co. v. BLFE, 143 U.S.App.D.C. 90, 442 F.2d 812 (1971), this court held that dues and fees could be recovered by a union as damages in respect of improper job abolitions. A union shop clause in the collective bargaining agreement there involved made it plain that, but for the employer's action, dues and fees would have been paid. The uncertainty claimed was whether men hired to fill the positions would have joined the plaintiff union rather than its competitor. The court there thought that the evidence supported a reasonable inference that they would, thereby justifying the placing of the burden of proof as to the uncertainty on the employer. In the case before us, union policy would have resulted in no receipt of dues and fees even during an unduly prolonged bargaining period.
11
International Union, UAW v. NLRB (Ex-Cell-O Corporation) 145 U.S.App. D.C. 384, 449 F.2d 1046; Id., 145 U.S. App.D.C. 396, 449 F.2d 1058 (1971); Steelworkers v. NLRB (Quality Rubber Mfg. Co.), 139 U.S.App.D.C. 146, 430 F.2d 519 (1970); Amalgamated Clothing Workers v. NLRB (Levi Strauss & Co.), 142 U.S.App.D.C. 337, 441 F.2d 1027 (1970)
In Ex-Cell-O, the union requested and won the election, but the employer refused recognition on the basis of union activity which allegedly precluded a fair election. In Quality Rubber, the employer refused recognition on the basis of cards, but did not seek an election. The result turned on issues of credibility which, although resolved against the employer, were found to be consistent with good faith. In Levi Strauss & Co., the union requested an election after the employer refused recognition on the basis of cards. The union lost, but the employer was ordered to bargain because it was found to have engaged in unfair labor practices during the period preceding the election. Again the resolution turned on conflicting testimony.
12
Heck's Inc., 159 NLRB 1151, 159 NLRB 1331, consent decree entered (No. 11,390, 4th Cir. June 13, 1967); N.L.R.B. v. Heck's Inc., 386 F.2d 317 (4th Cir. 1968)
13
The Board is equipped with a broad arsenal of remedies which it may employ in the case of a persistent violator. Rather than require application of such remedies on an all-or-nothing basis, it seems to us preferable to preserve sufficient flexibility to adjust the relief granted to the particular facts of each case. There are, as in everything else, degrees of flagrancy-and variations in its pattern
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
JUDGMENT RENDERED SEPTEMBER 19, 2014
NO. 03-13-00189-CV
Hunt County Community Supervision and Corrections Department, Appellant
v.
Christina Gaston, Appellee
APPEAL FROM 250TH DISTRICT COURT OF TRAVIS COUNTY
BEFORE CHIEF JUSTICE JONES, JUSTICES PEMBERTON AND ROSE
REVERSED AND DISMISSED ON MOTION FOR REHEARING --
OPINION BY JUSTICE PEMBERTON;
DISSENTING OPINION BY CHIEF JUSTICE JONES
This is an appeal from the order signed by the district court on February 5, 2013. Having
reviewed the record and the parties’ arguments, the Court holds that there was reversible error in
the district court’s order. We therefore order that the motion for rehearing filed by appellee,
Christina Gaston is overruled; that the opinion, dissenting opinion, and judgment dated August 6,
2014, are withdrawn; and that the Court reverses the district court’s order denying HCCSCD’s
plea to the jurisdiction, grants the plea, and dismisses Gaston’s suit for want of subject-matter
jurisdiction. The appellee shall pay all costs relating to this appeal, both in this Court and the
court below.
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988 So.2d 534 (2008)
KENWORTH OF MOBILE, INC., d/b/a Volvo Trucks of Mobile
v.
DOLPHIN LINE, INC.
Volvo Group North America, Inc., and Volvo Trucks North America, Inc.
v.
Dolphin Line, Inc.
1051643 and 1051724.
Supreme Court of Alabama.
January 25, 2008.
*535 John Martin Galese, Jeffrey L. Ingram, and Franklin L. Bell of Galese & Ingram, P.C., Birmingham, for appellant Kenworth of Mobile, Inc.
James W. Lampkin II of Alford, Clausen & McDonald, LLC, Mobile; and Daniel F. Goldstein and Mehgan Sidhu Capek of Brown, Goldstein & Levy, LLP, Baltimore, Maryland, for appellant Volvo Group North America, Inc., d/b/a Volvo Trucks North America, Inc.
Richard M. Gaal and William G. Chason of McDowell Knight Roedder & Sledge, L.L.C., Mobile, for appellee.
MURDOCK, Justice.
Kenworth of Mobile, Inc., d/b/a Volvo Trucks of Mobile ("Kenworth"), appeals from an order of the Mobile Circuit Court denying its motion to compel arbitration. Volvo Group North America, Inc. ("Volvo Group"), and Volvo Trucks North America, Inc. ("Volvo Trucks"), appeal separately from an order of the trial court in the same action denying their motion to compel arbitration. We have consolidated the *536 appeals for the purpose of writing one opinion, and we reverse as to both appeals.
I. Facts and Procedural History
Kenworth is a Volvo truck dealership located in Mobile. In 2001 and 2002, Dolphin Line, Inc. ("Dolphin"), purchased a number of Volvo trucks from Kenworth. In conjunction with those purchases, Dolphin allegedly entered into an agreement with Kenworth, Volvo Trucks, and Volvo Group whereby those parties agreed that Dolphin could trade back the trucks it purchased from Kenworth when making future purchases of Volvo trucks ("the trade-back agreement"). On April 10, 2006, Dolphin filed a complaint against Kenworth, Volvo Group, and Volvo Trucks, alleging the following details surrounding its purchase of the trucks from Kenworth:
"7. In or around July of 2001, Dolphin entered negotiations with ... [Kenworth], [Volvo Group], and/or [Volvo Trucks] to purchase five new Volvo trucks.
"8. The negotiations involved the purchase of five model year 2001 Volvos.
"9. At the time of negotiations, the five 2001 model year trucks were one model year old, as 2002 model year trucks were being produced and sold.
"10. [Volvo Group] and/or [Volvo Trucks] and [Kenworth] had been unable to find a buyer for the five 2001 model year trucks.
"11. Although the 2001 model year trucks were new, the release of the 2002 model year trucks significantly reduced the marketability of the 2001 model year trucks.
"12. [Volvo Group], then acting under the name of [Volvo Trucks], by and through its Pricing Administration Manger [sic], Brian Layman, and [Kenworth], acting by and through its President, Bob Mitchell, and its salesman, Tom Mitchell, induced Dolphin to purchase the five 2001 model year trucks by offering a one for one tradeback on future Volvo truck purchases.
"13. Dolphin entered negotiations with the local Volvo distributor, [Kenworth] and [Volvo Group] to purchase five new Volvo trucks.
"14. [Volvo Group] and [Kenworth] contractually agreed to protect Dolphin at the end of Dolphin's trade cycle, by guaranteeing the values of the five trucks.
"15. Dolphin entered other negotiations with [Kenworth] and [Volvo Group] for the purchase of additional trucks.
"16. In 2002, only two months before the release of the 2003 model year trucks, [Kenworth] and [Volvo Group] persuaded Dolphin to purchase seventeen 2002 model year trucks, by again offering guaranteed values of trade.
"17. Beyond needing to sell the aging model year trucks, [Volvo Group] and [Kenworth] were also interested in selling the proprietary Volvo engine, the VED 12, to Dolphin.
"18. The VED 12 motor consistently brings much lower resale values to the Volvo trucks and is not a preferred motor in the trucking industry.
"19. Nevertheless, [Volvo Group] and [Kenworth] guaranteed the repurchase of the trucks at specified values, inducing Dolphin to purchase the trucks with the VED 12 motor.
"20. Each of the tradeback agreements allowed Dolphin to return the trucks to [Volvo Group] and [Kenworth] 36 or 48 months after the trucks were purchased.
"21. In total, [Volvo Group] and [Kenworth] persuaded Dolphin to purchase 51 trucks, under a guaranteed *537 trade-back agreement, at the end of Dolphin's trade cycle.
"22. In August 2003, Dolphin communicated verbally and in writing its desire to trade back, one for one, the first set of five (5) trucks to [Volvo Group] and [Kenworth].
"23. This communication went unanswered.
"24. In June 2004, Dolphin again communicated verbally and in writing its desire to trade back, one for one, the trucks under the trade back agreements.
"25. Despite their written contract, [Volvo Group] and [Kenworth] ignored and refused Dolphin[']s request to trade the trucks."
Dolphin's complaint included four counts: (1) breach of contract; (2) fraudulent misrepresentation; (3) unjust enrichment; and (4) promissory estoppel.
As part of the purchases of the 51 trucks, Kenworth and Dolphin signed documents known as "Buyer's Orders," which listed the terms of the purchases. Among the terms included in the Buyer's Orders was an arbitration provision that stated:
"ARBITRATION. Any controversy or claim arising out of or relating to this Buyer's Order or otherwise relating in any fashion to the purchase or sale of the equipment, and/or any other controversy or claim whatsoever arising between the parties hereto, shall be submitted to arbitration in Birmingham, Alabama, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Judgment upon any award rendered in such proceedings may be entered in any court having jurisdiction thereof, and the parties hereto submit to the jurisdiction of all State and Federal courts located in Birmingham, Alabama, for the purpose of entering said judgment. Furthermore, Buyer and Dealer acknowledge that this transaction involved interstate commerce, and Buyer warrants that the Equipment is to be used primarily for business, rather than family or household, purposes. Nothing in this agreement, and no exercise of any right of arbitration, will limit the right of any person, whether before, during or after the pendency of any arbitration proceeding, (a) to foreclose against any collateral by the exercise of any power of sale under any security agreement or other instrument or under applicable law, (b) to exercise self-help remedies such as setoff or repossession, or (c) to obtain provisional or ancillary remedies such as pre-judgment seizure of property."
Volvo Group and Volvo Trucks were not signatories to the Buyer's Orders.
On June 12, 2006, Kenworth filed a motion to stay the action and to compel Dolphin to arbitrate its claims against Kenworth. Kenworth argued that the arbitration provision in the Buyer's Orders covered Dolphin's claims and that the transactions at issue in the case involved interstate commerce. As a result, Kenworth argued, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., required Dolphin to arbitrate its claims.
On June 20, 2006, Volvo Group and Volvo Trucks filed a motion to stay the action and to compel Dolphin to arbitrate its claims against them. They argued that they were entitled to seek enforcement of the arbitration provision contained in the Buyer's Orders because the language of the arbitration provision was not so restrictive as to preclude its enforcement by nonsignatories, because Dolphin's claims fell within the description in the arbitration provision of those claims subject to arbitration, and because Dolphin's claims against Volvo Group and Volvo Trucks were "intimately founded in and intertwined with" its claims against Kenworth.
*538 On July 20, 2006, Dolphin responded to Kenworth's motion. It argued that the Buyer's Orders were not applicable to the present case because, it argued, the complaint "unambiguously dictate[d] that the nature of this action [did] not lie with the purchase of the trucks, but with the Defendants['] failure to repurchase the trucks at the end of their trade cycle." According to Dolphin, "there [was] no dispute in connection with the purchase of the trucks." Dolphin also asserted that the trade-back agreement, which was the basis of the case, did not require the parties to arbitrate their claims.
Dolphin attached to its response a series of documents that it stated constituted the trade-back agreement. One of the documents was entitled "Used Truck Trade Agreement" and was signed by a representative of Volvo Trucks. Another document contained within the trade-back agreement contained a provision that stated: "The attached `Used Truck Trade Agreement' and the `Trade Vehicle Specification Outline' are the only documents that will govern the details of any trade transaction and must be signed by all parties to the agreement in order to be considered an agreement." Kenworth moved to strike this attachment because, it said, it was not properly authenticated and was therefore inadmissible.
On July 28, 2006, the trial court denied Kenworth's motion to compel arbitration. Kenworth appealed the trial court's order to this Court.
On August 8, 2006, Dolphin responded to Volvo Group and Volvo Trucks' motion to compel arbitration. It repeated the argument it had made in opposition to Kenworth's motion to compel arbitration, and, in addition, pointed out the language contained in the series of documents it had submitted in opposition to Kenworth's motion indicating that the "`Used Truck Trade Agreement' and the `Trade Vehicle Specification Outline' are the only documents that will govern the details of any trade transaction...." Dolphin attached this series of documents, as well as the affidavit of its president authenticating the documents, to its response.
On August 15, 2006, the trial court denied Volvo Group's and Volvo Trucks' motion to compel arbitration. Volvo Group and Volvo Trucks appealed to this Court. We consolidated Kenworth's appeal with Volvo Group and Volvo Trucks' appeal.
II. Standard of Review
In Fleetwood Enterprises, Inc. v. Bruno, 784 So.2d 277 (Ala.2000), we discussed the standard of review applicable to an appeal of the denial of a motion to compel arbitration:
"This Court reviews de novo the denial of a motion to compel arbitration. Parkway Dodge, Inc. v. Yarbrough, 779 So.2d 1205 (Ala.2000). A motion to compel arbitration is analogous to a motion for a summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce. Id. `[A]fter a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.' Jim Burke Automotive, Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (opinion on application for rehearing)."
784 So.2d at 280 (emphasis omitted). We note that the proper method by which to challenge the denial of a motion to compel arbitration is by appeal. Rule 4(d), Ala. *539 R.App. P.; AmSouth Bank v. Dees, 847 So.2d 923, 928 (Ala.2002).
III. Kenworth's Appeal (no. 1051643)
Kenworth contends that the trial court erred when it denied its motion to stay the action and to compel arbitration. It argues that the arbitration agreement contained in the Buyer's Orders covers the dispute in this case and requires the arbitration of Dolphin's claims against it.
In the trial court, Kenworth submitted the Buyer's Orders, signed by a representative of Dolphin, that set forth the terms of the agreements by which Kenworth sold Dolphin the trucks at issue in this case. As noted, the Buyer's Orders contained an arbitration agreement. Kenworth also submitted undisputed evidence to the trial court that the Buyer's Orders evidenced a transaction affecting interstate commerce. The issue before the trial court, then, was whether the arbitration agreement applied to the dispute. See Fleetwood Enters., Inc., 784 So.2d at 280.
The arbitration agreement contained in the Buyer's Orders provides, among other things, that "[a]ny controversy or claim arising out of or relating to this Buyer's Order or otherwise relating in any fashion to the purchase or sale" of the trucks "shall be submitted to arbitration." Kenworth argues that this language is sufficiently broad to encompass Dolphin's claims against it. Dolphin responds that its claims arise solely from the trade-back agreement, not from the Buyer's Orders, and that the trade-back agreement does not contain an arbitration provision. It points out that the trade-back agreement contains a clause providing that the "`Used Truck Trade Agreement' and the `Trade Vehicle Specification Outline' are the only documents that ... govern[ed] the details of any trade transaction," thereby excluding the provisions of the Buyer's Orders from the dispute at issue. Dolphin also asserts that the Buyer's Orders each contain a merger clause that separates those agreements from the trade-back agreement and renders the arbitration provisions contained therein inapplicable to the trade-back agreement.
Dolphin's claims are based upon agreements and representations made in connection with its purchase of the trucks. Its averments make clear that the trade-back agreement was inextricably intertwined with Dolphin's purchase of the trucks when it asserts that the defendants induced it to purchase the trucks by offering the trade-back agreement and that, when purchasing the trucks, it relied on the defendants' representations regarding the trade-back agreement. Indeed, in its complaint, Dolphin clearly indicated that the defendants persuaded it to purchase the trucks (and thus to enter into the Buyer's Orders) by offering it the trade-back agreement.
We conclude that the dispute between Dolphin and Kenworth "relate[s] to [the] Buyer's Orders" and, in particular, "relate[s] ... to the purchase or sale" of the trucks. See Serra Chevrolet, Inc. v. Hock, 891 So.2d 844, 847 (Ala.2004) ("This Court has repeatedly stated `"that the words `relating to' in the arbitration context are given a broad construction."'"). Therefore, the dispute between Dolphin and Kenworth falls within the scope of the arbitration agreement contained in the Buyer's Orders.
Dolphin asserts that language in the trade-back agreement provides that the "`Used Truck Trade Agreement' and the `Trade Vehicle Specification Outline' are the only documents that ... govern the details of any trade transaction." That does not exclude the application of other contracts not concerned with "the details of any trade transaction," nor does it prevent *540 other contracts between the parties, such as the Buyer's Orders, from determining in what forum a dispute as to "the details of any trade transaction" are to be resolved.
As noted, Dolphin argues that the merger clause in the Buyer's Orders prevents its application to the present case. That clause provides that, in signing the Buyer's Orders, Dolphin acknowledged that the terms contained therein "constitute[d] the entire agreement between [it] and [Kenworth], except for any other written agreement." The merger clause plainly recognizes that the parties to the Buyer's Orders may be entering into other written contracts that, as between the parties, would be binding. Nothing in the merger clause prevents the terms of the Buyer's Orders from applying to the present dispute, especially given that the trade-back agreement was allegedly of such a nature as to be integral to Dolphin's purchase of the trucks.[1] Indeed, it is Kenworth's position in this case that is bolstered by the fact that the Buyer's Orders contemplate "other written agreements" between the parties relating to the purchase or sale of the trucks and yet expressly provide that the requirement to arbitrate applies to "any controversy or claim ... relating to this Buyer's Order or otherwise relating in any fashion to the purchase or sale of the equipment."
Dolphin relies on this Court's decision in Capitol Chevrolet & Imports, Inc. v. Payne, 876 So.2d 1106 (Ala.2003). In that case, the plaintiff purchased a car from a dealership, signing a sales contract that included an arbitration agreement. After a month, she returned the car to the dealership "in reliance on [the dealership's salesperson]'s representation that [the dealership] had a willing buyer for the vehicle." 876 So.2d at 1107. The plaintiff alleged that the salesperson's representation to her that the dealership had a willing buyer for the car was a misrepresentation, and that, following her return of the car, the salesperson converted the car to his own use. The plaintiff sued the dealership and the salesperson, alleging that, "as a result of the misrepresentation, she lost the use of her vehicle, suffered severe mental anguish, and suffered an adverse credit rating once she stopped making payments on the [car]." 876 So.2d at 1108.
The dealership moved to compel arbitration on the basis of the arbitration agreement contained in the sales contract. The trial court denied the dealership's motion, and the dealership appealed. Examining the language of the arbitration agreement at issue, this Court stated that "a fair reading of the arbitration agreement ... leads to the conclusion that the agreement covers only disputes that more closely relate to the initial purchase and financing of the [car], and the negotiations and sale of other services incident to the initial sale of the [car]." 876 So.2d at 1109 (emphasis omitted). Concluding that the arbitration agreement did not cover the dispute at issue, we stated:
"We do not believe that the plain language of the arbitration agreement would lead one to assume or understand that the agreement covered the claims alleged in Payne's complaint a later *541 fraudulent misrepresentation, unrelated to the original sale of the vehicle, resulting in the conversion of the vehicle. The present dispute involves alleged subsequent tortious conduct on the part of Capitol and its agent that is not close enough in relation to the initial sale of the [car] to be covered by the language of the arbitration agreement."
876 So.2d at 1110. Thus, we affirmed the trial court's order denying the dealership's motion to compel arbitration.
Payne is distinguishable from the present case. Unlike the dispute in Payne, the dispute in the present case involves contractual undertakings that, if Dolphin's allegations are proven correct, are integral to the original purchase and sale of trucks at issue. Although the dispute in Payne "involve[d] alleged subsequent tortious conduct on the part of [the dealership] and its agent that [was] not close enough in relation to the initial sale of the [car] to be covered by the language of the arbitration agreement," 876 So.2d at 1110, the dispute in the present case relates directly to Dolphin's purchase of the trucks at issue, as well as the negotiations surrounding those purchases. Indeed, according to Dolphin's complaint, Dolphin would never have entered into the Buyer's Orders containing the arbitration provision but for the alleged fraud over which it is suing the defendants relating to the trade-back agreement. Although there was no nexus between the sales agreement and the alleged misrepresentation in Payne, Dolphin's allegations in its complaint clearly demonstrate the nexus between its agreement to buy the trucks from Kenworth and the trade-back agreement. Thus, Dolphin's reliance on Payne is misplaced.
Because the arbitration clause in the Buyer's Orders covers the dispute between Kenworth and Dolphin, we conclude that the trial court erred when it denied Kenworth's motion to stay the action and to compel arbitration.[2]
IV. Volvo Group and Volvo Trucks' Appeal (no. 1051724)
In their appeal, Volvo Group and Volvo Trucks contend that the trial court erred when it denied their motion to stay the action and to compel Dolphin to arbitrate its claims against them. They argue that, although they were not parties to the Buyer's Orders, which contain the arbitration agreement, the arbitration agreement applies to Dolphin's claims against them because, they argue, it is broad enough to encompass Dolphin's claims, the claims against them are "intimately founded in or intertwined with" Dolphin's claims against Kenworth, and the language of the arbitration agreement does not restrict its application to only disputes arising between Dolphin and Kenworth. Dolphin responds that Volvo Group and Volvo Trucks lack standing to enforce the arbitration agreement because the language of the arbitration agreement indicates that it applies to only those disputes arising between Dolphin and Kenworth.[3]
In Ex parte Stamey, 776 So.2d 85 (Ala. 2000), this Court discussed the issue whether and to what extent a defendant that is not a party to an arbitration provision can appropriately seek to compel the plaintiff to arbitrate its claims against the defendant:
"Normally, in order to have a valid arbitration provision, there must be an *542 agreement to arbitrate, and if no agreement exists, then a party cannot be forced to submit a dispute to arbitration. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). The question whether one has assented to an arbitration provision is governed by ordinary principles of a state's common law and statutory law governing the formation of contracts. See Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). Assent to arbitrate is usually to be manifested through a party's signature on the contract containing the arbitration provision. However, both Federal courts and Alabama courts have enforced exceptions to this rule, so as to allow a nonsignatory, and even one who is not a party, as to a particular contract, to enforce an arbitration provision within that same contract. Two such exceptions apply to the present case. The first is an exception under a theory of equitable estoppel for claims that are so `intimately founded in and intertwined with' the claims made against a party that is a signatory to the contract. See Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757 (11th Cir.1993) (quoting McBro Planning & Dev. Co. v. Triangle Elec. Constr. Co., 741 F.2d 342, 344 (11th Cir. 1984)); see also Ex parte Napier, 723 So.2d 49 (Ala.1998); Ex parte Gates, 675 So.2d 371 (Ala.1996)....
"....
"In order for a party to be equitably estopped from asserting that an arbitration agreement cannot be enforced by a nonparty, the arbitration provision itself must indicate that the party resisting arbitration has assented to the submission of claims against nonparties claims that would otherwise fall within the scope of the arbitration provision to arbitration. See Ex parte Napier, 723 So.2d at 53. All that is required is (1) that the scope of the arbitration agreement signed by the party resisting arbitration be broad enough to encompass those claims made by that party against nonsignatories, or that those claims be `intimately founded in and intertwined with' the claims made by the party resisting arbitration against an entity that is a party to the contract, and (2) that the description of the parties subject to the arbitration agreement not be so restrictive as to preclude arbitration by the party seeking it. See id. In other words, the language of the arbitration agreement must be so broad that the nonparty could assert that in reliance on that language he believed he had the right to have the claims against him submitted to arbitration, and, therefore, that he saw no need to enter into a second arbitration agreement."
776 So.2d at 88-89 (emphasis, other than emphasis on second "and," added). See also Edwards v. Costner, 979 So.2d 757, 764 (Ala.2007) ("Intertwining is `where nonarbitrable claims are considered so intimately founded in and closely related to claims that are subject to the arbitration agreement that the party opposing arbitration is equitably estopped to deny the arbitrability of the related claims.'" (quoting Ex parte Tony's Towing, Inc., 825 So.2d 96, 97 (Ala.2002))); SouthTrust Bank v. Ford, 835 So.2d 990, 994-95 (Ala.2002) ("The doctrine of intertwining is applicable where arbitrable and nonarbitrable claims are so closely related that the party to a controversy subject to arbitration is equitably estopped from denying the arbitrability of the related claim.").
Volvo Trucks and Volvo Group contend that they satisfy the first prong of the test in Stamey because, they say, Dolphin's claims against them are "intimately *543 founded in and intertwined with" its claims against Kenworth, which is a party to the arbitration agreement. This is so, they argue, because Dolphin's complaint "asserts the same causes of action against both Kenworth and [them] for the same alleged conduct, and arising out of the same transaction." We agree.
In Service Corp. International v. Fulmer, 883 So.2d 621 (Ala.2003), Blair Fulmer entered into a contract with SCI Alabama Funeral Services, Inc. ("SCI-Alabama"), for the provision of funeral and cremation services for his deceased mother. The contract included an arbitration provision. After Fulmer was given a vase that was supposed to have contained his mother's remains but allegedly did not, Fulmer sued SCI-Alabama and Service Corporation International ("SCI"), SCI-Alabama's parent corporation. The defendants filed a motion to compel arbitration, which the trial court denied. The defendants appealed.
SCI argued that, even though it was not a signatory to the contract containing the arbitration agreement, "Fulmer's claims against the signatory defendant, SCI-Alabama, are so `intertwined' with his claims against SCI that arbitration of all of Fulmer's claims, including those against SCI, is appropriate." 883 So.2d at 634. After noting Stamey's two-part test, this Court addressed the first part, which relates to whether the claims against the nonsignatory defendant are intertwined with the claims against the signatory defendant. Finding that prong satisfied, this Court wrote:
"Here, Fulmer's claims against SCI are clearly `intimately founded in and intertwined with' his claims against SCI-Alabama.... All of Fulmer's claims arise from the same set of facts. Virtually none of Fulmer's claims makes a distinction between the alleged bad acts of SCI (the parent corporation) and those of SCI-Alabama (its subsidiary); rather, the claims are asserted as if SCI and SCI-Alabama acted in concert."
883 So.2d at 634.[4]
In the present case, Dolphin's claims against Volvo Group and Volvo Trucks arise from the same set of facts as do its claims against Kenworth. None of Dolphin's claims makes a distinction between any of the defendants. Instead, as in Fulmer, the claims are asserted against all the defendants as if they had acted in concert. As a result, we conclude that Dolphin's claims against Volvo Group and Volvo Trucks are "intimately founded in and intertwined with" its claims against Kenworth.[5]
Having concluded that the first prong of the Stamey test is met, we proceed now to examine the second prong of that test, that is, whether "the description of the parties subject to the arbitration agreement [is] not ... so restrictive as to preclude arbitration by" Volvo Group and Volvo Trucks. As previously noted, the arbitration provision *544 in the Buyer's Orders stated, in pertinent part:
"Any controversy or claim arising out of or relating to this Buyer's Order or otherwise relating in any fashion to the purchase or sale of the equipment, and/or any other controversy or claim whatsoever arising between the parties hereto, shall be submitted to arbitration in Birmingham, Alabama, in accordance with the Commercial Arbitration Rules of the American Arbitration Association."
Dolphin argues that the phrase "arising between the parties hereto" modifies the phrase "controversy or claim" both times the latter phrase appears, thus limiting the application of the arbitration clause to only those disputes arising between it and Kenworth. Volvo Group and Volvo Trucks contend that the phrase "arising between the parties hereto" modifies the phrase "controversy or claim" only the second time it appears, so that the scope of the arbitration clause is not explicitly limited to disputes between Kenworth and Dolphin when the dispute is one "arising out of or relating to [the] Buyer's Order or otherwise relating in any fashion to the purchase or sale" of the trucks. We agree with Volvo Group and Volvo Trucks.
We first note that the clause "[a]ny controversy or claim arising out of or relating to this Buyer's Order or otherwise relating in any fashion to the purchase or sale of the equipment" stands alone syntactically. The following clause, in which is found the phrase "between the parties hereto," is set off from the former clause and the remainder of the sentence by commas and the introductory term "and/or." Accordingly, that phrase is not properly viewed as modifying the subject of the preceding clause.
We also note that if, as Dolphin asserts, the phrase "arising between the parties" modifies "controversy or claim" in both places it appears in the arbitration provision, the result would be that all claims between the parties to the contract (Dolphin and Kenworth), and no others, would be subject to arbitration. Were this the parties' intention, there would have been no reason to separately enumerate "claims or controversies arising out of or relating to this Buyer's Order or otherwise relating in any fashion to the purchase or sale of the equipment" from "any other controversy or claim whatsoever." Instead, were Dolphin's interpretation correct, the arbitration clause would more simply have stated that any claim or controversy arising between the parties to the Buyer's Order is subject to arbitration.[6]
Accordingly, we conclude that the proper interpretation of the arbitration clause is the one advanced by Volvo Group and Volvo Trucks, i.e., that the phrase "arising between the parties hereto" modifies only the latter category of claims or controversies contained within the clause, or "any other controversy or claim whatsoever." The phrase does not modify the former category of claims or controversies contained within the clause, i.e., those arising out of or relating to the Buyer's Orders or otherwise relating to the purchase and sale of the trucks.
Our conclusion is bolstered by the "strong presumption in favor of arbitration" *545 created by the Federal Arbitration Act. See, generally, Blue Cross Blue Shield of Alabama v. Rigas, 923 So.2d 1077, 1083 (Ala.2005). "In interpreting an arbitration provision, `any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.'" The Dunes of GP, L.L.C. v. Bradford, 966 So.2d 924, 927 (Ala.2007) (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)) (emphasis omitted). Indeed, "`a motion to compel arbitration should not be denied "unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute."'" Id. (quoting Ex parte Colquitt, 808 So.2d 1018, 1024 (Ala. 2001), quoting in turn United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)) (emphasis omitted). "While, `as with any other contract, the parties' intentions control, ... those intentions are generously construed as to issues of arbitrability.'" Carroll v. W.L. Petrey Wholesale Co., 941 So.2d 234, 237 (Ala. 2006) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)).
Because we find that the application of the arbitration clause is not limited, with regard to disputes that relate "in any fashion to the purchase or sale" of the trucks, to only those disputes arising between Kenworth and Dolphin, we conclude that the second prong of the test set forth in Stamey is met. In other words, we conclude that the description of the parties subject to the applicable portion of the arbitration clause is not so restrictive as to preclude arbitration of the claims against Volvo Group and Volvo Trucks.
Both prongs of the test set forth in Stamey having been met in this case, we hold that Dolphin is equitably estopped from asserting that the arbitration clause cannot be enforced by Volvo Group and Volvo Trucks. Thus, we conclude that the trial court erred when it denied their motion to stay the action and to compel arbitration.
V. Conclusion
Based on the foregoing, we reverse the trial court's orders denying the motions to stay and to compel arbitration, and we remand the cause for the entry of an order staying the action and compelling Dolphin to arbitrate its claims against Kenworth, Volvo Group, and Volvo Trucks.
1051643 REVERSED AND REMANDED WITH INSTRUCTIONS.
1051724 REVERSED AND REMANDED WITH INSTRUCTIONS.
COBB, C.J., and LYONS, STUART, and BOLIN, JJ., concur.
NOTES
[1] Dolphin further contends that the Buyer's Orders and the trade-back agreement are "disconnected in time," which, according to Dolphin, indicates that the agreements do not have a common nexus. However, the allegations of Dolphin's complaint clearly demonstrate that the agreements have a common nexus. According to the complaint, Dolphin purchased the trucks at issue (thus entering into the Buyer's Orders) based on the defendants' representations related to the trade-back agreement. That the parties did not sign the agreements at the same time is of no consequence for present purposes.
[2] Because we resolve Kenworth's appeal in this manner, we do not address its additional arguments supporting reversal of the order denying its motion to compel arbitration.
[3] Dolphin also responds with the arguments it asserted against Kenworth. As discussed in our treatment of Kenworth's appeal, those arguments are without merit.
[4] This Court went on to conclude that SCI could not enforce the arbitration agreement against Fulmer because, in spite of the fact that it met the first prong of Stamey, it did not meet the second prong of Stamey. In other words, the language of the arbitration agreement explicitly limited its application to Fulmer and SCI-Alabama.
[5] Because we find that Dolphin's claims against Volvo Group and Volvo Trucks are "intimately founded in and intertwined with" its claims against Kenworth, we do not address Volvo Group and Volvo Trucks' argument that the first prong of the test in Stamey is met because "the scope of the arbitration agreement signed by the party resisting arbitration [is] broad enough to encompass those claims made by that party against nonsignatories."
[6] Dolphin also points to the merger clause on the face of the Buyer's Orders indicating that, by signing the Buyer's Orders, Dolphin was acknowledging that the terms of the Buyer's Orders (which included the arbitration clause) constituted the entire agreement between it and Kenworth, except for any other written agreements between them. The effect of this provision was to make inapplicable any other agreements between the parties that were not in writing. It did not have the effect, as argued by Dolphin, of excluding Volvo Group and Volvo Trucks from the arbitration clause.
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543 U.S. 1008
RICHARDSONv.EAGLETON, WARDEN, ET AL.
No. 04-6550.
Supreme Court of United States.
November 29, 2004.
1
C. A. 4th Cir. Certiorari denied. Reported below: 100 Fed. Appx. 951.
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garrett v. state
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-03-356-CR
BRUCE SCOTT GARRETT APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
------------
MEMORANDUM OPINION
(footnote: 1) ON APPELLANT’S PETITION
FOR DISCRETIONARY REVIEW
------------
Pursuant to rule of appellate procedure 50, we have reconsidered our opinion upon Appellant’s petition for discretionary review.
See
Tex. R. App. P.
50. We withdraw our March 18, 2004 opinion and judgment and substitute the following.
Appellant Bruce Scott Garrett was convicted of aggravated sexual assault with a deadly weapon in 1993 and sentenced to seventy-five years’ confinement. This conviction was affirmed on appeal.
(footnote: 2) Appellant filed a motion for post-conviction forensic DNA testing in November 2002,
(footnote: 3) which the
trial court denied on August 14, 2003.
The trial court entered findings of fact and conclusions of law, which stated in pertinent part:
Identity was not or is not an issue in this case because the defendant was found hiding above the location of this sexual assault right after it occurred.
Since the defendant’s identity was not or is not at issue in this case, he does not meet the requirements of Chapter 64 of the Texas Code of Criminal Procedure for forensic DNA testing of evidence.
See
Tex. Code Crim. Proc. Ann
. art. 64.03(a)(1)(B). In two issues, Appellant appeals the trial court’s denial of his motion.
In reviewing a trial court’s decision on a DNA request, we employ a bifurcated standard of review. We afford almost total deference to a trial court’s determination of issues of historical fact and application of law to fact issues that turn on credibility and demeanor, while reviewing de novo other application of law to fact issues.
See Whitaker v. State
, No. 74612, 2004 WL 63981, at *2-3 (Tex. Crim. App. Jan. 14, 2004);
Rivera v. State
, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002),
cert. denied
, 124 S. Ct. 27 (2003).
In Appellant’s first issue, he argues that the trial court erred in finding identity was not or is not an issue in this case. A defendant has the burden to show that identity was or is an issue without regard to the possible results of any future forensic DNA tests.
Bell v. State
, 90 S.W.3d 301, 308 (Tex. Crim. App. 2002). Appellant contends that there was conflicting testimony at trial from various witnesses regarding the description of the assailant and that identity was or is an issue. In its reply to the motion for forensic DNA testing, the State responded that identity was not or is not an issue because Appellant was “essentially caught in the act of the offense” of aggravated sexual assualt. After the sexual assault, Appellant forced the partially nude victim into a closet and told her not to make any noise. When the police arrived to investigate a disturbance call, Appellant climbed into the attic through a trap door in the closet, where the police found him hiding under a pile of insulation.
Applying the appropriate standard of almost total deference to the trial court’s findings of fact, we conclude the trial court did not err in denying Appellant’s motion for DNA testing because identity was not or is not an issue in the case. We overrule Appellant’s first issue.
In Appellant’s second issue, he contends that the trial court erroneously failed to enter a finding regarding chain of custody. The trial court was not required to find that the biological evidence in this case was subject to a sufficient chain of custody because it found that Appellant was not entitled to DNA testing.
See
Tex. Code Crim. Proc. Ann.
art. 64.03(a). We overrule Appellant’s second issue.
Having overruled both of Appellant’s issues, we affirm the trial court’s judgment.
PER CURIAM
PANEL F: HOLMAN, LIVINGSTON, and DAUPHINOT, JJ.
DO NOT PUBLISH
Tex. R. App. P.
47.2(b)
DELIVERED: August 31, 2004
FOOTNOTES
1:See
Tex. R. App. P.
47.4.
2:Garrett v. State
, No. 02-93-00432-CR (Tex. App.—Fort Worth Mar. 23, 1995, no pet.) (not designated for publication).
3:See
Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 3-4 (amended 2003) (current version at
Tex. Code Crim. Proc. Ann
. art. 64.03 (Vernon Supp. 2004-05)).
Although article 64 was amended in 2003, this appeal is governed by the 2001 law.
See
Act of Apr. 25, 2003, 78th Leg., R.S., ch. 13, §§ 8-9, 2003 Tex. Gen. Laws 16, 17 (providing that former law governs motions for DNA testing filed before September 1, 2003).
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995 So.2d 974 (2008)
FLORIDA HIGH SCHOOL ATHLETIC ASSOC.
v.
FERRARO.
No. 3D08-2756.
District Court of Appeal of Florida, Third District.
December 4, 2008.
Decision without published opinion. Dismissed.
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184 F.Supp.2d 1029 (2001)
Elaine L. CHAO, Secretary of Labor, United States Department of Labor, Plaintiff,
v.
LOCAL 1357, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Defendant.
No. CV01-00367 SOM/BMK.
United States District Court, D. Hawaii.
October 29, 2001.
*1030 *1031 Barbara A. Matthews (argued), U.S. Department of Labor, Office of the Regional Solicitor, San Francisco, CA, Theodore Meeker, Assistant U.S. Attorney (appeared, but did not argue), Office of the United States Attorney, Honolulu, HI, for Plaintiff.
Herbert R. Takahashi (argued), Takahashi Masui & Vasconcellos, Honolulu, HI, for Defendant.
AMENDED ORDER DENYING DEFENDANT'S MOTION TO DISMISS
MOLLWAY, District Judge.
I. INTRODUCTION.
The Secretary of Labor (the "Secretary") sued Defendant Local 1357, International *1032 Brotherhood of Electrical Workers, AFL-CIO ("Local 1357"), under Title IV of the Labor Management Reporting and Disclosure Act of 1959 (Act of September 14, 1959, 73 Stat. 519 et seq., 29 U.S.C. §§ 481 et seq., hereinafter the "LMRDA"). Local 1357 moves to dismiss the complaint on the grounds of failure to exhaust internal remedies, mootness, and res judicata. This court DENIES Defendant's motion to dismiss.
II. BACKGROUND.
On February 16, 2001, Local 1357 held an election for its officers (the "election"). A notice of nominations and the election was issued to the members of Local 1357 in November, 2000, and nominations were held at unit meetings in December, 2000. At the Unit 8 meeting held on December 12, 2000, Joseph Kim nominated George Waialeale for the office of Business Manager-Financial Secretary. Waialeale was opposed for the office by Harold Dias. On December 28, 2000, an election judge was appointed to conduct the election and to review the candidates' eligibility for each of the offices for which they had been nominated. That same day, the election judge was informed that the International Brotherhood of Electrical Workers (the "IBEW"), had deemed Waialeale ineligible to run for the office of business manager because Waialeale had, while serving as a prior business manager of the union, made allegedly improper expenditures of union funds in the amount of $80,499.92. Based on a December 20, 2000, letter from the IBEW, Waialeale's name was excluded from the election ballot. The election results were certified on February 16, 2001, and the newly elected officers of Local 1357 were installed on March 2, 2001.
On January 23, 2001, Waialeale sued Local 1357 and the IBEW in this court under Title I of the LMRDA ("Title I"), alleging that he had been improperly disciplined and disqualified by Local 1357 and the IBEW without specific written charges, in violation of 29 U.S.C. § 401(a)(5). This court denied his request for a temporary restraining order prohibiting the issuing and mailing of the ballots and the holding of the election unless his name was included on the ballot. This court held that, because he had not shown that he had exhausted his union remedies in challenging Local 1357's refusal to put his name on the ballot, he had failed to establish a likelihood of success on the merits. See Order Denying Plaintiff's Motion for Temporary Restraining Order in Waialeale v. International Brotherhood of Electrical Workers, CV01-00064 SOM/BMK (Jan. 30, 2001) at 11. On April 6, 2001, this court dismissed Waialeale's complaint with prejudice as to all claims and all parties after Waialeale, Local 1357, and the IBEW agreed to settle the case. See Stipulation for Dismissal with Prejudice as to All Claims and Parties and Order in Waialeale v. International Brotherhood of Electrical Workers, CV01-00064 SOM/BMK (Apr. 6, 2001). Under the terms of the settlement agreement, Waialeale agreed not to run for any union office in the IBEW or Local 1357 until after January 1, 2008. In exchange, the IBEW and Local 1357 waived their claim for reimbursement of the alleged improper expenditures of union funds.
On March 13, 2001, Joseph Kim wrote a letter (the "Kim letter") to Michael Mowrey, International Vice President of the IBEW, complaining that Waialeale's disqualification after the close of nominations had deprived union members of a "choice or opportunity to vote for anyone else beside [sic] Business Manager Dias" and asking that "a new election be held immediately for Business Manager-Financial Secretary with new nominations." Kim did not address or send the letter to Local 1357 or the election judge. On March 23, 2001, Mowrey informed Kim that he found "no basis for [Kim's] complaint" and "no *1033 reason for a new election." Kim did not appeal from Mowrey's decision, but, on April 5, 2001, Kim filed a complaint with the Department of Labor (the "Department") alleging that, because of the timing of Waialeale's disqualification, members of Local 1357 were not given a choice in the election for business manager. The election judge informed the Department that Kim's election protest had not been submitted to Local 1357 and that there had been no proper exhaustion of internal union remedies. Kim withdrew his complaint on April 25, 2001, but the Department continued its investigation, indicating that, under Department policy, "an election protest filed with the Secretary of Labor, or any specific allegation therein, may not be withdrawn from [Office of Labor Management Standards] consideration by the complainant for any reason."
On May 22, 2001, the Department notified Local 1357 and the IBEW of its findings that "[t]he union failed to provide a reasonable opportunity for candidates to be nominated when it improperly disqualified an otherwise eligible candidate in violation of Section 401(d) of the LMRDA." On June 4, 2001, the Secretary sued Local 1357 in this court under Title IV of the LMRDA ("Title IV"), alleging that Local 1357 had violated section 401(e) of the LMRDA, 29 U.S.C. § 481(e), by disqualifying a member in good standing as a candidate for office on the basis of union discipline imposed in violation of section 101(a)(5) of the LMRDA, 29 U.S.C. § 411(a)(5). The Secretary seeks to declare Local 1357's election for the office of Business Manager-Financial Secretary null and void and to require a new election under the Secretary's supervision.
III. STANDARD OF REVIEW.
A Rule 12(b)(1) attack on the court's subject matter jurisdiction may be either facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000) (citing 2 James Wm. Moore et al., Moore's Federal Practice ¶ 12.30[4], at 12-38 to 12 41 (3d ed.1999)). Local 1357 does not contest the sufficiency of the Secretary's allegations, but rather attacks the factual existence of subject matter jurisdiction. In evaluating this motion, the court may look beyond the complaint to matters of public record without having to convert the motion into one for summary judgment, and the court need not presume the truthfulness of the plaintiff's allegations. White v. Lee, 227 F.3d at 1242 (citations omitted). The Secretary has the burden of proving this court has actual subject matter jurisdiction. See Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir.1996) ("A party invoking the federal court's jurisdiction has the burden of proving the actual existence of subject matter jurisdiction").
IV. ANALYSIS.
The LMRDA was the first major attempt by Congress to regulate the internal affairs of labor unions. Title I provides union members with a statutory "Bill of Rights" that protects, among other things, their rights to vote and participate in union decisions, and their rights to be free from improper discipline and unreasonable restrictions on speech and assembly. Title I allows union members to seek appropriate remedies in district court for violations of these rights. Title IV, by contrast, creates a statutory scheme governing the election of union officers and provides a post-election procedure aimed at protecting union democracy through free and democratic elections. Primary enforcement responsibility under Title IV rests with the Secretary.
The Supreme Court has cautioned against a literal reading of the LMRDA and has indicated that its proper construction requires consideration of its wording against the background of its legislative history and the general objectives Congress *1034 sought to achieve. See Wirtz v. Local 153, Glass Bottle Blowers Ass'n, 389 U.S. 463, 468, 88 S.Ct. 643, 19 L.Ed.2d 705 (1968). The court considers this motion involving the interplay of Title I and Title IV with this admonition in mind. See Local No. 82, Furniture & Piano Moving, Furniture Store Drivers, Helpers, Warehousemen & Packers v. Crowley, 467 U.S. 526, 549, 104 S.Ct. 2557, 81 L.Ed.2d 457 (1984) ("this admonition applies with its greatest force to the interaction between Title I and Title IV").
A. Exhaustion of Internal Union Remedies.
Procedurally and substantively, Kim exhausted internal union remedies, as required by Title IV. Title IV provides:
A member of a labor organization (1) who has exhausted the remedies available under the constitution and bylaws of such organization and of any parent body, or (2) who has invoked such available remedies without obtaining a final decision within three calendar months after their invocation, may file a complaint with the Secretary within one calendar month thereafter alleging the violation of any provision of section 481 of this title....
29 U.S.C. § 482(a). The Secretary shall investigate such complaint and may, within 60 days after the filing of the complaint, sue the labor organization in federal district court to set aside an election and direct the conduct of a new election if the Secretary has found probable cause to believe that a violation of Title IV has occurred and not been remedied. See 29 U.S.C. § 482(b). A complaint filed with the Secretary is the exclusive means of resolving disputes governed by Title IV. 29 U.S.C. § 483; Casumpang v. Int'l Longshoremen's & Warehousemen's Union, 269 F.3d 1042, 1056 (9th Cir.2001)(citing 29 U.S.C. § 483).
Title IV provides the Secretary with the exclusive power to challenge in federal district court an election already conducted. 29 U.S.C. § 482(b); 29 U.S.C. § 483. Suit by the Secretary under Title IV is the exclusive post-election remedy for challenging an election. This exclusivity (1) protects unions from frivolous litigation and unnecessary judicial interference with their elections, and (2) centralizes in a single proceeding such litigation as might be warranted with respect to a single election. Crowley, 467 U.S. at 549, 104 S.Ct. 2557 (citing Trbovich v. Mine Workers, 404 U.S. 528, 532, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972)). Exclusive post-election enforcement by the Secretary thus serves to eliminate frivolous complaints and consolidate meritorious ones. Crowley, 467 U.S. at 549, 104 S.Ct. 2557 (citing Trbovich, 404 U.S. at 535, 92 S.Ct. 630).
Kim properly exhausted union remedies for his election protest as delineated in the section of the IBEW Basic Laws & Policies (the "Basic Laws") covering election protests.[1] The Basic Laws, in a section titled "Protest of Election," plainly state that post-election protests are to be filed directly with the International Vice President (the "IVP") within 30 days after the election judge certifies the results.[2]*1035 Local 1357 argues that the Basic Laws required Kim to file a protest with the election judge before going to the IVP. This reading of the Basic Laws is plainly wrong. According to the Basic Laws, a protest must first be filed with the election judge only if the protest is filed before an election. Kim properly filed a post-election protest with Mowrey, the IVP, alleging a deprivation of choice of candidate, within 30 days of the certification of the election results. Mowrey's March 23, 2001, denial of Kim's protest allowed Kim, under the Basic Laws, to file a complaint with the Secretary.
Local 1357 contends that the proper procedures for election protests are governed by some combination of the Basic Laws and Article XXV, section 12, of the IBEW Constitution ("section 12"). Local 1357 offers no justification for this combined reading, however, and it is unclear why Article XXV should apply at all. Article XXV is part of the "Misconduct, Offenses and Penalties" portion of the IBEW Constitution and appears to govern instances of individual misconduct by union members, officers, or representatives. It does not appear to govern election protests in any way, and its only connection with elections appears to be a provision making it an offense to commit voting fraud, and provisions allowing the distribution of sample ballots and official publications listing candidates' activities and experience.
Local 1357 contends, however, that section 12 required Kim to file a copy of his letter with the union. Given the general inapplicability of Article XXV to election protests, it does not appear that section 12, which covers "Appeals" under Article XXV, applies to Kim's actions. Nor was the Kim letter even an appeal, as Kim's letter to Mowrey constituted Kim's first protest of the election, in accordance with the Basic Laws.
Even if section 12 does apply to election protests, it contains provisions that differ from the Basic Laws, and Local 1357 offers the court no guidance on how they are to be reconciled. For example, the Basic Laws allow a union member 30 days to file an election protest, while section 12 allows 45 days to file an appeal. Local 1357 appears to contend that the 30-day deadline specified in the Basic Laws governs, instead of the 45-day deadline specified in section 12. See Def.'s Mem. Supp. Mot. Dismiss Compl. at 20. However, Local 1357 notes in a separate section of its brief that "[a] member ... has 45 days from the election judge's decision to file an `appeal' under [section 12] to a vice president of the IBEW and is required to provide a copy of the appeal to the local union." See id. at 19. If the Basic Laws' 30-day deadline governs, then it is unclear why the Basic Laws do not govern election protests entirely, and why this court must look to section 12 for selected procedural requirements, such as the copy requirement, but not for others, such as the time limitation.
Local 1357's hybrid reading of the Basic Laws and section 12 creates confusion. If protest procedures are confusing, Kim was not obligated to exhaust his internal remedies. As the Supreme Court noted in Hodgson v. Local Union 6799, United Steelworkers of Am., 403 U.S. 333, 91 S.Ct. 1841, 29 L.Ed.2d 510 (1971), "exhaustion is not required when internal union remedies *1036 are unnecessarily complex or otherwise operate to confuse or inhibit union protestors." Id. at 341 n. 6, 91 S.Ct. 1841.
Local 1357 argues that Kim complained to Mowrey about only the timing of Waialeale's disqualification, and not about the substance of the disqualification of which the Secretary complains. "While the LMRDA requires a union member to exhaust his internal remedies by filing an internal grievance before the Secretary may become involved, the enforcement powers of the Secretary do not depend on the specifies of [the] union member's protest." Reich v. District Lodge 720, Int'l Ass'n of Machinists & Aerospace Workers, 11 F.3d 1496, 1503 (9th Cir.1993) (citing Glass Bottle Blowers Ass'n, 389 U.S. at 474-75, 88 S.Ct. 643). "The Secretary may litigate a claim if it is related to the election defects about which members complained to the union." Machinists & Aerospace Workers, 11 F.3d at 1503 (citing United Steelworkers, 403 U.S. at 340-41, 91 S.Ct. 1841). The Supreme Court explained the rationale for this rule:
[U]nion members may use broad or imprecise language in framing their internal union protests and ... members will often lack the necessary information to be aware of the existence or scope of many election violations. Union democracy is far too important to permit these deficiencies to foreclose relief from election violations....
United Steelworkers, 403 U.S. at 340-41, 91 S.Ct. 1841.
In United Steelworkers, a union member protested to the union over an incumbent's use of union facilities to prepare campaign materials. See id. at 334, 91 S.Ct. 1841. After his internal complaints failed, the union member filed a complaint with the Secretary that repeated his earlier charge and also raised, for the first time, an objection to a meeting-attendance requirement imposed as a condition of candidacy. See id. The Supreme Court ruled that the Secretary could not challenge the attendance rule because the union member had not objected to the rule during his pursuit of internal remedies. See id. at 336, 91 S.Ct. 1841.
In this case, Kim's union complaint was sufficiently related to the Secretary's claims to put Local 1357 on notice of those claims. Unlike the complaints in United Steelworkers, Kim's complaint and the Secretary's complaint do not involve substantially unrelated charges such as an improper use of union facilities and a meeting attendance requirement. This court imposes a heavy burden on Local 1357 to show that it could not in any way discern that Kim was complaining of the violation the Secretary complains of now. See id. at 341, 91 S.Ct. 1841. The union fails to meet this burden. It could reasonably discern from Kim's letter that Kim was dissatisfied not only with the timing of Waialeale's disqualification, but also with the fact of the disqualification. For example, Kim wrote, "Many members were pleased that Brother Waialeale was going to be on the ballot," and "I was very dismayed when I received my ballot and Brother Waialeale's name was not on it."
In Machinists & Aerospace Workers, the Ninth Circuit held that the Secretary's claim that the union had failed to make reasonable efforts to keep its mailing lists current was not outside the scope of the union members' internal protests alleging that members had not been mailed election notices. See Machinists & Aerospace Workers, 11 F.3d 1496 at 1503-04. Here, the Secretary's complaint is sufficiently within the scope of Kim's internal protest such that Local 1357 "cannot legitimately claim to be surprised that it must now defend" the Secretary's claim. See id. at 1504.
*1037 B. Mootness.
Local 1357 argues that the Secretary's claims are moot, given Kim's withdrawal of his complaint with the Secretary before she filed suit. Local 1357 contends that, because there is no longer a genuine dispute between Kim and Local 1357, the Secretary may not proceed with her action.
In support of its proposition, Local 1357 relies heavily upon Kupau v. Yamamoto, 622 F.2d 449 (9th Cir.1980). This reliance is misplaced, as the facts of Kupau differ in important ways from the facts in this case. Kupau had defeated Ito in an election for Financial Secretary-Business Representative. See id. at 452. After the election, Ito filed a protest with the union, charging that Kupau had been ineligible to run in the election. See id. The union agreed, and refused to install Kupau. See id. Kupau sued in district court pursuant to Title I, and the district court issued a preliminary injunction ordering Kupau's installation. See id. at 452-53. After the injunction issued, Ito filed a complaint with the Secretary under Title IV challenging Kupau's eligibility. See id. at 453. The Secretary, upon finding probable cause, then filed an independent suit against the union in district court. See id. Adversaries only nominally, the Secretary and the union sought to enter a consent decree setting aside Kupau's election and providing for a new election between Ito and a third candidate. See id.
The district court denied Kupau's motion to intervene in that action, and Kupau appealed to the Ninth Circuit. See id. The Ninth Circuit concluded that the Secretary's suit under Title IV was improper because it was "in reality a challenge not to the stance of the union, with which the Secretary is in total agreement, but to the injunction entered by the district court." Id. at 458. The Ninth Circuit explained that the injunctive order did not create a dispute between Ito and the union as contemplated by Title IV, but created only a dispute between Ito and the district court. See id. As Ito had no basis for complaining to the Secretary about the union's position, the Secretary had no basis for suing under Title IV. See id. Title IV remedies are "premised on the existence of a genuine dispute between the aggrieved union member and the union." Id. The Ninth Circuit held that the district court lacked jurisdiction over the Secretary's complaint, rejecting the Secretary's proposition that "purely collusive and non-adversarial" suits by the Secretary against the union are allowed under Title IV. See id.
Local 1357 argues that the Secretary's suit should be dismissed because Kim has withdrawn his complaint. Unlike Kupau, however, the present case involved a genuine dispute between Kim and Local 1357 that was still in issue when the Secretary filed her complaint. See id. at 458 (focusing on Ito's relationship with the union at the time the Secretary filed suit). Kim had protested the union's disqualification of Waialeale and had asked for a new election. Moreover, the Secretary's dispute with the union is clearly not "purely collusive and non-adversarial." Nor is the Secretary "in total agreement" with the stance of the union. The Secretary seeks to void the election results and hold a new election under its supervision, while the union seeks to maintain the election results.
Moreover, Kim's withdrawal still left for the Secretary protection of the public interest in free and democratic union elections. This vital public interest transcends the narrower interest of the complaining union member. Glass Bottle Blowers Ass'n, 389 U.S. at 475, 88 S.Ct. 643. In enacting Title IV, Congress expressed concern that powerful union members may use their inherent advantage over potential *1038 rank and file challengers to perpetuate their control. See id. at 474-75, 88 S.Ct. 643. In Glass Bottle Blowers Ass'n, the Secretary claimed that a union election violated Title IV because all candidates were unreasonably required to have attended 75 percent of the union's monthly meetings in the two years preceding the election. See id. at 466-67, 88 S.Ct. 643. Between the time the Secretary filed his complaint and the time the Third Circuit considered the Secretary's appeal of the district court's decision, the union conducted its next election. See id. at 467, 88 S.Ct. 643. The Supreme Court held that the intervening election did not moot the Secretary's action because the incumbents may have influenced the intervening election, and the public interest in assuring free and democratic union elections still remained. See id. at 475, 88 S.Ct. 643. The present case raises similar considerations. Kim's withdrawal did not eliminate the possibility that union members would be unable to protect themselves without the Secretary's assistance. Nor did the withdrawal of Kim's complaint extinguish the public interest in assuring that Local 1357 elections are free and democratic.
In Hodgson v. Local Union 400, Bakery & Confectionery Workers' Int'l Union of Am., 491 F.2d 1348 (9th Cir.1974), the Ninth Circuit examined the unilateral holding by a union of a second election after a union member had filed a proper complaint with the Secretary concerning the first election, but before the Secretary filed suit. See id. at 1349-50. The Ninth Circuit held that the second election did not render the case moot or otherwise deprive the Secretary of the right to proceed in court. See id. at 1349. The court explained that allowing the Secretary to proceed would best advance the congressional objective of fostering union self-government while avoiding unnecessary government intervention and needless expenditure of the Secretary's resources. See id. at 1351.
Allowing the Secretary's suit here would foster union self-government by providing the union with a substantial incentive to respond quickly and effectively to legitimate protests by union members. A union would have no reason to delay remedial measures while seeing whether the Secretary might find probable cause to impose remedies. See id. at 1351-52. Permitting this kind of suit would not unnecessarily involve the government in internal union affairs because the Secretary is already involved once a union member exhausts internal remedies and files a timely complaint with the Secretary. See id. Moreover, the Secretary's policy not to permit the withdrawal of a complaint from consideration by the Department of Labor prevents either collusion between the complaining member and the union or coercion of the member by the union. See Glass Bottle Blowers Ass'n, 389 U.S. at 474, 88 S.Ct. 643. Unions have the greatest incentive to remedy defects during the internal complaint process, before the Secretary gets involved, if they know that a union member's subsequent withdrawal of his complaint will not allow them to avoid litigation.
C. Res judicata.
The Secretary's action is not precluded by res judicata because the Secretary's claim is not the same as Waialeale's, and the Secretary was not in privity with Waialeale. "Res judicata, or claim preclusion, provides that a final judgment on the merits of an action precludes the parties from relitigating all issues connected with the action that were or could have been raised in that action." Rein v. Providian Financial Corp., 252 F.3d 1095, 1098 (9th Cir.2001) (citation omitted). Res judicata bars a claim when: (1) the parties are *1039 identical or in privity; (2) the judgment in the prior action was rendered by a court of competent jurisdiction; (3) the prior action was concluded to a final judgment on the merits; and (4) the same claim or cause of action was involved in both suits. Id. (citations omitted). Local 1357 contends that Wailaleale's Title I claim is identical to the Secretary's Title IV claim, and that the dismissal of Wailaleale's claim with prejudice therefore precludes the Secretary from relitigating that claim here.
The Secretary's Title IV claim is not the "same claim" as Waialeale's Title I claim because the Secretary alleges different violations of the LMRDA and seeks different forms of relief from those pursued by Waialeale. Wailaleale sought damages for Local 1357's alleged violation of section 101(a)(5) of the LMRDA, 29 U.S.C. § 411(a)(5), which protects union members against improper disciplinary action. Waialeale also sought to enjoin the election from being held without a ballot listing him as a candidate. The Secretary, meanwhile, charges that Local 1357 violated section 401(e) of the LMRDA, 29 U.S.C. § 481(e), which provides, in pertinent part, that every union member in good standing shall be eligible to be a candidate for office.[3] The Secretary seeks to void the results of the election and conduct a new election under the Secretary's supervision. Waialeale's and the Secretary's claims therefore differ in important ways. The Secretary does not, for example, demand that any new election include Waialeale as a candidate, or demand that Waialeale receive money damages. Indeed, the Secretary has no power to grant relief for Title I violations. Casumpang, 269 F.3d 1042, 1057-58.
Moreover, the exclusivity provision of Title IV makes it impossible for Waialeale to have brought the same claim for relief under Title I as the Secretary now seeks under Title IV. "[S]uit by the Secretary under Title IV is the exclusive post-election remedy for challenges to an election." Crowley, 467 U.S. at 549, 104 S.Ct. 2557. The exclusivity provision of Title IV prevents an individual from directly challenging the validity of an election under Title I after the election has been completed.[4]Id. at 541, 104 S.Ct. 2557. Here, the Secretary directly challenges the validity of the election and seeks to void its results and conduct a new election. Because an individual plaintiff is not allowed to sue for such post-election relief in district court, the Secretary's claim must be different from any claim brought by an individual plaintiff, and therefore cannot be precluded by res judicata.
The Secretary is not in privity with Waialeale because the Secretary's interests in the current suit differ from Waialeale's interests in the previous suit. "Privity represents a legal conclusion that the relation between the party and nonparty is so close that the judgment may fairly bind the non-party." Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1277-78 (9th Cir.1992) (citations and internal quotation marks omitted). "Privity and *1040 fairness exist if a party represented the interests of the non-party." Id. (citation omitted). The Secretary may not be fairly bound by Waialeale's claim because the Secretary, as explained above, alleges different violations of the LMRDA and seeks different forms of relief. Waialeale did not represent the Secretary's interests; he was concerned with only his individual interest and not the public interest. The Secretary's obligation to protect the public interest in addition to the union member's individual interest often dictates a different approach to the conduct of the litigation. See Trbovich, 404 U.S. at 539, 92 S.Ct. 630. Accordingly, Waialeale's settlement does not bind the Secretary in this case.
The Secretary's lack of privity with Waialeale also means that her claims are not barred by collateral estoppel, or issue preclusion. "The doctrine of issue preclusion ... cannot be applied against a litigant who was not a party to or in privity with a party to the prior proceeding." Shaw v. Hahn, 56 F.3d 1128, 1131 (9th Cir.1995) (citations omitted). Because the Secretary and Waialeale, for the reasons stated above, were not "so closely aligned in interest that one [was] the virtual representative of the other," the Secretary's claims are not barred by issue preclusion. Id. (citations omitted).
V. CONCLUSION.
For the foregoing reasons, the court denies Defendant's motion to dismiss.
IT IS SO ORDERED.
NOTES
[1] It is unclear whether the IBEW intended for its Constitution or Basic Laws to take priority. However, in "A Message from the International President" prefacing the Basic Laws, the International President indicates that the Basic Laws reflect changes to the Constitution.
[2] The relevant provision states:
Protest of Election. Any member, including a defeated candidate, may challenge an election by filing a written protest with the appropriate International Vice President. Prior to the election, protests should be first filed with the election judge if one has been appointed and then with the International Vice President. Protests after the election shall be filed within 30 days of the certification of the election results by the election judge and shall specify the alleged violations of the election rules provided by law, the Constitution, and/or the local union bylaws. The International Vice President shall investigate all such protests and render a decision in an expeditious manner. The decision of the International Vice President shall be considered final; and, in the United States, the protesting member may proceed to the Department of Labor if not satisfied with the decision of the International Vice President.
[3] Although the disqualification was allegedly on the basis of union discipline that had been imposed in violation of section 101(a)(5) of the LMRDA (a Title I violation), the Secretary's action is based on Local 1357's alleged violation of section 401(e) of the LMRDA (a Title IV violation).
[4] However, Title I claims or other actions that do not directly challenge the validity of elections already conducted may not be foreclosed by Title IV's exclusivity provision. Crowley, 467 U.S. at 541 n. 16, 104 S.Ct. 2557; Casumpang, 269 F.3d 1042, 1056. But cf. Kupau, 622 F.2d at 454-456 (holding, pre-Crowley, that a plaintiff could pursue post-election Title I relief that could determine his eligibility).
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959 F.2d 237
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Alvis Lloyd KEENE, Beatrice Ann Keene, Peggy Schnell,Defendants-Appellants.
Nos. 91-5505, 91-5506, 91-5507.
United States Court of Appeals, Sixth Circuit.
April 6, 1992.
Before RYAN and SUHRHEINRICH, Circuit Judges, and CHURCHILL, Senior District Judge.*
PER CURIAM.
1
Defendants appeal from their jury verdict for mail fraud and conspiracy to commit mail fraud. For the reasons that follow, we reverse in part and affirm in part.
I.
2
On October 3, 1990 a fourteen count indictment was returned charging Alvis Keene, Beatrice Keene, and Peggy Schnell with thirteen counts in violation of federal mail fraud statutes under 18 U.S.C. §§ 1341 and 1342. Count Fourteen charged the defendants with conspiring to commit mail fraud in violation of 18 U.S.C. § 371. After the government's case-in-chief, the court denied a motion for acquittal as to Alvis Keene. It granted the motion of Beatrice Keene as to all counts except Counts Five and Fourteen. The court also granted the motion of Schnell as to all but Counts Seven, Eleven and Fourteen. Alvis Keene was found guilty on all counts. Beatrice Keene and Schnell were found guilty only on Count Fourteen.
3
Since 1966, Alvis Keene owned Lloyd's Used Car Company, Inc. Beatrice Keene and Schnell worked as secretaries for the business. As part of the operation of the car lot, customers were offered credit life, disability and unemployment insurance benefits for the term of the financing agreement. Prior to 1985, these insurance benefits had been offered through insurance companies which were authorized to do insurance business in Kentucky.
4
In 1985, Alvis Keene had insurance policies and forms printed up using the names Delta Life Insurance Company and Peoples Unemployment Benefit Insurance Company. Neither company was incorporated nor received a certification of authorization to transact insurance business in Kentucky.
5
The insurance that was sold to a customer was done so on the premises of Lloyd's Used Car Co., Inc. After a customer decided to purchase a vehicle, a worksheet was prepared by the salesman, listing the cost of the vehicle, and whether the customer desired to purchase insurance. The worksheet was given to one of the secretaries for preparation of the typed paperwork. The insurance premiums were factored into the total amount of money financed with respect to the purchase of the motor vehicle and were added into the retail installment contract and security agreement. Copies of the policies were generally given to the customers on the lot, but testimony revealed two exceptions in which they were mailed, and the indictment reflects these exceptions in Counts One and Three.
6
The installment contracts and security agreements were signed and hand delivered to the First National Bank of Pikeville, Kentucky. The bank would then set up an account for the contract, deposit monies received into the bank account of Lloyd's Used Car Co., and order coupon books which were mailed by Deluxe Check Printers directly to the customer.
II.
7
All defendants argue that there was insufficient evidence of a conspiracy and that it was error to deny an acquittal on that count.
8
"In reviewing an appeal from a criminal conviction on the ground that the evidence is insufficient to support the verdict, we determine 'whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." U.S. v. Gresser, 935 F.2d 96, 100 (6th Cir.1991), cert. denied, 112 S.Ct. 239 (1991) (citing U.S. v. Gallo, 763 F.2d 1504, 1518 (6th Cir.1985), cert. denied, 475 U.S. 1017 (1986)). The test is the same whether the evidence is direct or circumstantial. Id.
9
"The existence of a conspiracy to violate federal law may be established by a tacit or mutual understanding among the parties." United States v. Blakeney, 942 F.2d 1001, 1010 (6th Cir.1991), cert. denied, 116 L.Ed.2d 785 (1992). Mere association with conspirators, however, "is not enough to establish participation in a conspiracy." Id.
10
The evidence does not support a finding that Beatrice Keene or Peggy Schnell knew the plan was illegal. This forecloses the possibility that there was a mutual understanding of criminal proportions. Consequently, we find that the evidence is insufficient to support the jury verdicts as to the conspiracy count. The convictions on Count Fourteen as to all defendants are reversed.
III.
11
Defendant Alvis Keene argues that the mailings alleged in the indictments were not incident to an essential part of the scheme and that therefore the court lacked subject matter jurisdiction.
12
To satisfy the mail fraud statute, the mailings need not be an essential part of the scheme. Pereira v. United States, 347 U.S. 1, 8 (1954). However, the mailings must be incident to an essential part of the scheme. Schmuck v. United States, 489 U.S. 705, 711 (1989), reh'g denied, 490 U.S. 1076 (1989).
13
We find that the mailing of the coupon books, upon which the government principally relies, is not incident to an essential part of the scheme. However, the act of sending a copy of the policy through the mails is sufficient to satisfy the requirements of the statute. Therefore, Alvis Keene's convictions on all counts except Counts One and Three are reversed. Defendant Alvis Keene's other arguments, as they pertain to Counts One and Three, are without merit.
IV.
14
Based on the foregoing, we reverse the convictions of Beatrice Keene and Peggy Schnell. We reverse the conviction of Alvis Keene on all counts except for Counts One and Three. The conviction on those counts is affirmed.
15
This case is remanded to the district court for the resentencing of defendant Alvis Keene on Counts One and Three.
*
Honorable James P. Churchill, Senior District Judge for the Eastern District of Michigan, sitting by designation
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585 F.3d 823 (2009)
Barbara HUSS; Rodney Huss, Plaintiffs-Appellees,
v.
John Overton GAYDEN, M.D.; Memphis Obstetrics and Gynecological Association PC, Defendants-Appellants.
No. 04-60962.
United States Court of Appeals, Fifth Circuit.
October 14, 2009.
As Revised October 15, 2009.
Ralph E. Chapman, Chapman, Lewis & Swan, Clarksdale, MS, John H. Daniels, III, Dyer, Dyer, Jones & Daniels, Greenville, MS, Jane Horne Myers Virden, Chapman, Lewis & Swan, Madison, MS, for Barbara and Rodney Huss.
Mark Priestly Caraway, Meta S. Copeland, Wise, Carter, Child & Caraway, Jackson, MS, for Defendants-Appellants.
Before HIGGINBOTHAM, DeMOSS and OWEN, Circuit Judges.
ON PETITION FOR REHEARING AND REHEARING EN BANC
(Opinion June 10, 2009, 5th Cir., 571 F.3d 442)
PER CURIAM:
The Petition for Panel Rehearing is DENIED. Judge Higginbotham dissents from the panel's denial of rehearing.
The court was polled at the request of one of the members of the court. A majority of the judges who are in regular active service and not disqualified not having voted in favor of rehearing en banc *824 (FED. R.APP. P. 35 and 5TH CIR. R. 35), the Petition for Rehearing En Banc is likewise DENIED. Judge Higginbotham and Judge Elrod have authored dissenting opinions, which are attached. Upon the filing of this order, the clerk shall issue the mandate forthwith. See FED. R.APP. P. 41(b).
OWEN, Circuit Judge, concurring:
I write as a member of the panel to address the dissenting opinions. Each of the opinions proceeds on the incorrect premise that the panel majority has held that the magistrate judge erred in excluding expert testimony regarding specific, as distinguished from general, causation. The dissenting opinions do not take issue with the panel majority's conclusion that Dr. Reddix was qualified to offer testimony regarding general causation. The points on which the dissents and the panel majority differ boil down to this: (1) did the panel majority hold that the magistrate judge erred in excluding the testimony of Dr. Reddix as to general, rather than specific, causation, and (2) does the record support the dissents' assertion that Dr. Reddix's testimony was excluded because it was addressed to specific, rather than general, causation. An examination of the panel majority's opinion and the record resolves these questions. They reflect that "the crux" of Dr. Reddix's testimony pertained to general causation,[1] and his testimony was excluded because the magistrate judge concluded he was not qualified to testify regarding even general causation.[2]
I
I respectfully submit that the panel majority's opinion is clear that the exclusion of Dr. Reddix's testimony was error because it addressed general causation and that Dr. Reddix was qualified to offer general causation testimony. The following quotations are from the panel majority's opinion:
Defendants sought to elicit testimony from their expert, Dr. Reddix, that medical literature relied upon by Dr. Carlton [the plaintiffs' expert] in forming his opinion does not show a causative relationship between Terbutaline and cardiomyopathy. The magistrate judge did not permit Dr. Reddix to state this opinion, as this was "outside the area of his expertise."[3]
Dr. Reddix said: "Basically, there's no established evidence that has been tested and published in major journals or the [Physician's Desk Reference] that it causes cardiomyopathy." Counsel then asked "what in the medical records caused you to believe that Terbutaline is not the causative agent?" Dr. Reddix said one could not deduce a causative relationship because the articles relied on by the Husses' experts had very small sample sizes, and additionally, some articles may have confused pulmonary edema with cardiomyopathy. By contrast, Dr. Reddix was prepared to testify based upon a study of 9,000 patients who took Terbutaline and did not develop cardiomypathy. The thrust of the proffered testimony was that Terbutaline could not be said to be the cause of Barbara's cardiomyopathy, and that the cause of her condition could not be determined, i.e., the *825 condition is idiopathic.[4]
Dr. Reddix testified in part:
[M]any of the articles that they talk about were very, very small studies. And the possibility of chance occurrences were very high. When you had four people out [of] 16, where it only occurs in one in 5,000 to 10,000 patients. So a lot of times the journals that were listed [by the Husses' experts] also confused what was said about pulmonary edema as a part of the problem, which would lead to a cardiomyopathy in any of those studies.[5]
Defendants posit that this qualified Dr. Reddix to opine that the medical literature and Barbara's records do not allow one to infer that Terbutaline causes cardiomyopathy, or that it caused Barbara's case .... Defendants argue that the ruling was prejudicial because it prevented them from challenging the Husses' causation testimony and Dr. Carlton's characterization of the medical literature.[6]
Through Dr. Reddix's testimony, the defendants sought primarily to discredit the contention that Terbutaline is a known cause of cardiomyopathy, and consequently, that Terbutaline more likely than not caused Barbara's cardiomyopathy. Dr. Reddix did not need to be board-certified in cardiology or toxicology to explain that the studies relied on by the Husses do not prove a causative relationshipespecially given the very small number of patients in those studies. Dr. Reddix's training and experience as a medical professional qualify him to tell the jury why the literature does not establish a causal link. Moreover, Dr. Reddix identified a study of over 9,000 people which tended to undermine the Husses' claims. In short, Dr. Reddix's education and knowledge allowed him to form a reliable opinion as to whether, as a general matter, Terbutaline causes cardiomyopathy.[7]
We think that the more general nature of Dr. Reddix's conclusions helps to distinguish the present case from Tanner.[8] There, all experts agreed as a general matter that birth asphyxia can cause cerebral palsy. 174 F.3d at 548. The issue was more specific: whether the defendants' failure to properly treat a newborn baby's birth asphyxia caused the baby's cerebral palsy, or whether the cerebral palsy was caused by another event. See id. at 547-48. We held that it was erroneous to admit an expert's opinion that the defendants' actions led to the baby's cerebral palsy when the medical literature did not support this theory of causation, the expert had not examined the baby, and the expert also had no personal experience that would validate his theory. Id. at 548. In this case, the parties fought mainly over whether Terbutaline can cause cardiomyopathy. The Husses' expert, Dr. Carlton (who is a toxicologist, not a cardiologist), relied on this general premise when opining that Terbutaline caused Barbara's cardiomyopathy.... The main purpose of Dr. Reddix's opinion was to rebut an untenable conclusion. Dr. Reddix's knowledge qualified him to tell the jury that *826 Dr. Carlton's inferential leap was unsupported by medical literature, and that in his judgment, Barbara's peripartum cardiomyopathy was idiopathic. We do not think that Dr. Reddix needed to be specialized in cardiology or toxicology to act as a counterpoint to the Husses' experts.[9]
The crux of this case was whether Terbutaline causes cardiomyopathy. The magistrate judge's ruling prevented the defendants from demonstrating that the Husses relied on medical literature which was unreliable, anecdotal, and contradicted by other studies. The Husses insist the defendants were not prejudiced because the defendants' other witnesses disclaimed a causal link between the drug and Barbara's condition. However, none of the other witnesses gave the level of detail that Dr. Reddix would have presented, nor did the witnesses testify about studies showing no link between Terbutaline and cardiomyopathy. The exclusion was not harmless error. In a close case such as this, Dr. Reddix's testimony would "have added information that, if the jurors found it credible, might have been determinative" of the difficult causation questions. See Battle v. Mem'l Hosp. at Gulfport, 228 F.3d 544, 553 (5th Cir.2000).[10]
The panel majority's opinion should not, and I believe cannot, be read as holding that the magistrate judge erred because testimony regarding specific causation was excluded. While there are perhaps statements that might be lifted out of context to support an argument that the panel majority was addressing Dr. Reddix's qualifications to testify regarding specific causation, that is not the import of the opinion. The opinion, read in its entirety regarding the exclusion of expert testimony, makes clear that Reddix would have testified that the plaintiffs' experts' opinions regarding general causation were not scientifically reliable and that Terbutaline has not been shown to cause cardiomyopathy. The logical inference from this testimony was that Barbara Huss's cardiomyopathy could not be caused by Terbutaline if there is no reliable evidence that Terbutaline causes cardiomyopathy. But the obvious inference regarding specific causation that is drawn from general causation testimony does not render Dr. Reddix's general causation testimony either "specific" causation testimony or inadmissible because he might not be qualified to give "specific" causation testimony.
II
With regard to the record, much of the testimony and the magistrate's ruling are contained in the panel majority's opinion, and I will not repeat that here. I add only that Dr. Reddix was the only defense expert designated to discuss the medical literature on which the plaintiffs' expert based an opinion regarding general causation. It was apparent at trial that Dr. Reddix would testify about general causation. Counsel for the Husses conducted a voir dire examination of Dr. Reddix early in his testimony to attempt to lay a foundation for excluding him as a witness on the basis that he was not qualified to opine regarding causation. Counsel for the Husses asked Dr. Reddix, "Now, in this case, you are being offered as an expert in the field of internal medicine and principally as it relates to whether Terbutaline caused or can cause cardiomyopathy. Is that your understanding?" Reddix replied, "Yes." This unmistakably reflects that general causation was at issue.
*827 Judge Higginbotham's dissenting opinion asserts that "Reddix opined at length on general causation, before any objection...," implying both that Reddix had completed his testimony regarding general causation and that any error in excluding additional testimony regarding general causation would have been harmless. The record does not bear out this assertion. As the panel majority opinion makes clear, Dr. Reddix was prepared to testify that articles on which the plaintiffs' expert relied were not scientifically reliable.[11] This relates to general, not specific, causation, as discussed above. The magistrate judge excluded this testimony, concluding that Reddix was not qualified to testify about causation. No other witness offered testimony regarding the medical literature on which the plaintiffs' expert relied.
Judge Higginbotham's dissent lifts the questions asked of Dr. Reddix during the proffer out of context in an effort to demonstrate that only specific causation testimony was at issue and was excluded. But when the record is considered as a whole, including the proffered testimony that is quoted in the panel majority's opinion,[12] there can be little doubt that the parties and the magistrate judge understood that Dr. Reddix was prepared to testify regarding the scientific reliability of the articles on which the plaintiffs' expert relied. That was directly related to general, not specific, causation, and that testimony was excluded.
III
Judge Higginbotham's dissent once again excoriates the panel for referring the statute of limitations issue to the Mississippi Supreme Court. He now castigates other members of the court for denying rehearing on the limitations issue. I find it exceedingly difficult to understand why a federal court should be criticized for asking a state court, in a diversity case, to resolve what appeared to many to be an unsettled question of state law. In my view, it was precisely because the state law appeared to conflict that this case was not taken en banc and instead, the limitations issue was certified by the panel.
* * * * *
I concur in the denial of rehearing en banc.
PATRICK E. HIGGINBOTHAM, Circuit Judge, with whom KING, DAVIS, WIENER, BENAVIDES, STEWART, and DENNIS, Circuit Judges, join, dissenting:
I
Over nine years ago, Barbara Huss and her husband Rodney Huss filed this medical malpractice lawsuit, alleging that defendants negligently administered the drug Terbutaline to Barbara during her pregnancynegligence that caused Barbara's cardiomyopathy, a condition that severely crippled her for life and shortened her life span. The Husses won a jury trial in August 2004, and the defendants appealed to our court. A panel majority here reversed and rendered the judgment holding that the case was barred by limitation.[1]*828 The Husses requested rehearing en banc. In 2006, it was denied by an equally divided vote of seven judges "for" and seven "against." The panel majority granted panel rehearing sua sponte, withdrawing its opinion.[2] Eleven months later, it certified, over dissent, the question to the Mississippi Supreme Court.[3] The Mississippi court found that the defendants' limitations defense was meritless.[4]
The panel moved to a judgment reversing and remanding for trial error. The found error was in the trial judge's refusal to allow one of the defense experts, Dr. Reddix, to express the opinion that Terbutaline was not a cause of Barbara Huss's cardiomyopathy, although the witness was allowed without objection to testify fully about general causation and that cardiomyopathy was idiopathic; its cause was unknown to medicine and unknowable to the defendant doctors. The error it fastened on was a refusal to allow Reddix to continue on from his testimony about general causation and relate it to Huss; that it was a manifest disregard of the law to do so. The opinion's author, writing alone, also subjected plaintiffs' experts to a personal view of Daubert.[5] This gratuitous instruction is explained by its history. It came after an earlier failed effort of the panel to reverse the case for insufficient evidence this by disregarding plaintiffs' evidence as failing the demands of Daubert, despite the fact that there was no objection to the admission of the testimony of plaintiffs' experts, on any basis, making the evidence competent as a matter of law. That treatment of Daubert was recast as an instruction to the district court on remand.
The Husses again petitioned for rehearing en banc, a request our court now rejects by an equally divided vote. Eight judges concluded that the case was not "en banc worthy," ignoring the views of eight judges who think the decision was plainly wrong and contrary to settled precedent.
The sole question remains whether the trial court committed manifest error in sustaining the objection to part of the testimony of Reddix. I will not repeat my panel dissent, instead, I write to publish *829 the panel's refusal to apply circuit precedent, to respect our highly deferential standard of review, and to set the Daubert bar at the same level for plaintiffs and defendants. Our full court's refusal to even hear the case only solidifies the error of the panel and exposes anotherthe subscription of eight members of this court to a stunningly aggressive view of the judicial role coupled with a misguided view of the role of the en banc courta subscription with which I cannot join and to these eyes is profoundly mistaken. It is telling that each judge voting against reconsideration of the court's present decision also voted against en banc reconsideration of the reversal of the judgment as time barred. The only change in the voting pattern came with three new judges, two of whom voted against en banc and one voting for.
II
Our review of the trial court's exclusion of Reddix's testimony was for abuse of discretion, here the most deferential of that genre; whether the trial court manifestly disregarded the law. The panel majority turned this standard upside down. It inserted "what could have happened" for what did. "Manifest error is one that is plain and indisputable, and that amounts to a complete disregard of the controlling law."[6] We do not have the discretion to decide afresh preliminary facts of admissibility, that discretion belongs to the trial court. The ultimate question of whether an expert is qualified to testify is a question of law, but that inquiry is made in light of the lower court's preliminary factual findings on the matter,[7] including the scope of excluded evidence. The record here is pellucid. There is no uncertainty of what happened at trialnot with the objection, the ruling, or defendant's proffer. The panel majority struggled to find uncertainty in the record, an effort to find what does not exist. This whole effort disregards the controlling principlethat even if it succeeded in raising a question of fact underlying the trial court ruling on admissibility or the scope of the ruling and it did notthe question would have to be resolved in support of the trial court ruling. To take away the jury verdict on the ruling of the trial judge drains all discretion from the hands of the judges who are best equipped to decide and substitutes a de novo standard for plaintiffs' cases. That this is being done while waiving the Daubert flag is all the more confounding.
III
The question before the panel required application of the concepts of general and specific causation, and the line between the two. As the panel dissent explained, our decision in Tanner v. Westbrook binds this court on the issue and requires us to acknowledge the fundamental principle of the general-specific dichotomy: that a witness *830 may be competent to testify about general causation but not specific causation.[8] In Tanner, we reversed a Mississippi jury award of damages to parents against doctors in a cerebral palsy case, concluding that the district court committed reversible error in allowing a plaintiff's expert with general medical training to express an opinion on specific causation because he was only qualified to express an opinion on general causation.[9]
In this case, Reddix opined at length on general causation, before any objection, stating for example that:
An important thing about that to me is that in pregnancy we don't even know what causes it [cardiomyopathy]. They just put down it's pregnancy, peripartal. They don't know what causes it. Because there are 30 causes of itthere are 30 causes of it if you're not pregnant, and then there's about four or five even if you are pregnant, so
When defense counsel moved to matters of specific causation, however, plaintiffs objected. The question to which the magistrate judge sustained the objection indisputably sought an opinion on specific causation:
Doctor, do you have an opinion, based upon reasonable medical probabilities and upon your education, training, and experience as a physician, as well as your review of these materials I just read, as to whether or not Terbutaline caused or contributed to the cardiomyopathy suffered by Barbara Huss?
After the objection, and out of the presence of the jury, the magistrate judge made it clear he was excluding only specific causation testimony. He asked defense counsel "on what basis is this witness qualified to offer any opinion about whether administering Terbutaline did or did not cause the cardiomyopathy here?," before concluding "I'm not going to let him express an opinion as to whether the administration of this drug caused or did not cause the cardiomyopathy here."
Defense counsel then posited each and every proffer question in specific causation terms:
1. "We need you to state in narrative, you know, not too long, state your basis as to why Terbutaline in your opinion was not the cause of or contributing cause of cardiomyopathy."
2. "Did your review of the medical records have anything to do with your opinion as well?"
3. "Could you indicate, state what in the medical records caused you to believe that Terbutaline is not the causative agent?"
These are inquiries into specific causation. Reddix testified before the jury at length and without objection that science does not know what causes cardiomyopathy, or whether Terbutaline causes it. He was not allowed to also testify that Terbutaline was not the cause in this case. Defense asked the four questions (one in front of the jury, and the three in proffer) in an attempt to elicit testimony on specific causation, and it was that testimony the district court excluded. After this exclusion, defense counsel made no attempt to relate his questions to general causation. No ruling of the trial judge barred the defense lawyer from eliciting general causation testimonysuch as a critique of the plaintiffs' scientific studiesor from supplementing earlier opinions already in evidence.
The magistrate applied the principles this court established in Tannerthat *831 opinions on specific causation involve the specialized skill of recognizing cause and effect in a particular and unique case, as opposed to rote explanation of the relevant literature, and therefore pose a higher bar for reliabilityand ruled that Reddix lacked the experience and training to opine on "whether or not Terbutaline caused or contributed to the cardiomyopathy suffered by Barbara Huss," a distinct issue of specific causation and the exact question to which the objection was sustained.
Like the witness in Tanner, Reddix was not competent to connect general principles to the specific patient. For one, Reddix could not evince the requisite experience as a treating obstetrician and gynecologist who had experience in administering Terbutaline to pregnant patients. Under Tanner, then, it would have been reversible error to admit Reddix's opinion that Terbutaline was not a cause or the cause of Barbara Huss's injuries.
Even the defendants do not seriously defend the panel's refusal to apply Tanner. Rather they "concede" the undisputed fact that this entire case was about general causation, the relationship between Terbutaline and cardiomyopathy, not specific causation, the cause of Huss's injurythis to escape reliance on the indefensible contention that Reddix was competent to express an opinion on specific causation. This retreat only makes plain that refusing to allow the witness to go further and offer an opinion on specific causation could not be reversible error when the battle was pitched on general causation, and Reddix was allowed to testify on general causation without objection. The panel asserts that Reddix was competent to express his opinion that there was no scientific basis for linking Terbutaline to cardiomyopathy and was thus competent to rebut the testimony of Dr. Tucker who testified as to specific causation for the plaintiffs. Of course that is exactly what Reddix didwithout objection. The ruling was a refusal to allow Reddix to go further. Here, the opinion defies the settled law of this circuit, holding that a person competent to express an opinion on general causation is a fortiori competent to express an opinion on specific causation.
IV
This case should have been taken en banc to correct a large error in federal law. A diversity case it is but our issue of junk science is a federal issue, with far-ranging import. There is Tanner and our en banc case of Moore v. Ashland Chemical Inc.,[10] and before that, Eymard v. Pan American World Airways,[11] a pre-Daubert rejection of expert testimony, each urging trial judges to act as gatekeepers. The central thrust of these cases and Daubert has been to charge the trial judge to take hold: to turn back opinion testimony of party-engaged experts that rests on questionable competence, and to not kiss off issues of competence as going to the weight of the evidence, leaving a jury to offer answers that good science rejected. Our court's unwillingness to correct the panel error drops the gate, and belies the role of the en banc court; it will and should be read as a rank preference of defendants in malpractice casesa heavy thumb on the scale in the critical area of expert testimony. Make no mistake, the use of experts continues to work major changes in the dynamics of litigation: Consider the law of privilege (see the proposed changes to Rule 26) and challenges to the role of private attorneys-general.
*832 Here, the objection at issue was to specific causation, and no plain, indisputable, and complete disregard for the law can be shown. To the contrary, the record is crystal clear that the only evidence excluded was evidence proffered in support of specific causation. It was a well-tried case by competent lawyers and a competent judge. The panel majority's frustration with this reality, its earlier efforts to reverse with a limitations bar followed by an effort to render on Daubert grounds, having failed, cannot be vented by clinging to defendants' throwaway argument addressed to the only objection made to evidence in the trial.
I speak only of the objective message given by the court's handling of this case. Whatever the impulses of individual judges, about which I am silent, that message is clear. To leave this opinion on the books unsettles the law of the circuit and delivers a gross injustice. There is a large policy debate in this country over the wisdom of providing a patient a claim against his doctor for negligence. Whatever the relative merits of the contending forces, there is an abandonment of judicial roles when judges allow their private view on jury trials and the divisive issues of health care to guide their judicial hand. The appearance cast by objective recitation of the history of this case is more than judges seeing a case as an opportunity to reach preferred social ends, it is an unwitting loss of place that disserves the judicial duty of disinterest, essential to the integrity of any court. Ms. Huss had a legal right to pursue her claim and a legal right to a jury trial. Not only has this court taken that away, it has volunteered suggestions to the district court that he should exclude the testimony of the plaintiffs' experts, this after reversing him for excluding evidence offered by the defendants.
This court has drifted to a seriously flawed view of the role of an en banc court. That half of the active judges would first refuse to consider the panel ruling that the case was barred by limitation and then years later refuse to consider en banc the panel majority's present ruling exposes the court's new vision. This is a court of error. It is not the Supreme Court. It does not have "discretion" to just "decline to rule." Unlike the Supremes, it does not have the discretion to decide what it will decide, a powerful tool for implementing social policy.[12] This is no lonely view. It is shared by distinguished scholars.[13] There can be no offhand dismissal such asno great injustice here, the plaintiffs' science is weak, I think. This leaves litigants at the mercy of panel roulettethe "law" being the unchartered and legally indefensible view of two judges. There is sad irony in this court's handling of the limitations question. The same judges prepared to hold that the Husses lost all their rights to sue when they did not file within two years of her diagnosis now, after nine years in federal court, hold that the case should start over, with a large suggestion that the trial judge should not let this case get to a jury again. Trials of *833 civil cases are disappearing in federal courts. Litigation is fleeing the courts. Much is being written about this phenomenon and why it is occurring. To those students I say: read this case.
JENNIFER WALKER ELROD, Circuit Judge, with whom WIENER, BENAVIDES, and PRADO, Circuit Judges, join, dissenting:
I dissent for only the substantive legal reasons stated in Judge Higginbotham's dissent, and write separately to emphasize my understanding of the most compelling reasons for en banc rehearing.
Huss v. Gayden, 571 F.3d 442 (5th Cir. 2009), is no run-of-the-mill Daubert[1] case that might fade away as a precedent limited to its facts. It deserves our en banc consideration not because this kind of reversal is a true rarity in this circuit and every otherwhich it isand not because the result did an injustice to these litigantswhich it did, see id. at 462-67 (Higginbotham, J., dissenting)but because it creates an irreconcilable conflict in our Daubert jurisprudence. What is a trial judge to do when he or she is persuaded that an expert witness is not qualified to render a specific-causation opinion because of the witness's deficient explanation or lack of specific experience? Facing comparable experts, Moore v. Ashland Chemical Inc., 151 F.3d 269 (5th Cir.1998) (en banc), says that the trial judge may exclude, Tanner v. Westbrook, 174 F.3d 542 (5th Cir.1999), says that the judge must exclude, and now Huss says that the judge must not exclude.
Somewhat thankfully, the panel opinion cannot have changed our law, for "where two previous holdings or lines of precedent conflict the earlier opinion controls and is the binding precedent in this circuit." Rios v. City of Del Rio, Tex., 444 F.3d 417, 425 n. 8 (5th Cir.2006).[2] Nonetheless, Huss will undoubtedly confound both our litigants and our trial courts, who have neither the occasion nor the duty to resolve such contradictions in our jurisprudence. That task belongs to our court, and today we have failed.
Accordingly, I would rehear this case to resolve the apparent conflict between Huss and Tanner and Moore. Because the court does not, I respectfully dissent.
NOTES
[1] Huss v. Gayden, 571 F.3d 442, 456 (5th Cir.2009).
[2] Id. at 449.
[3] Id. at 449.
[4] Id. at 453-54.
[5] Id. at 454 n. 9.
[6] Id. at 454.
[7] Id. at 455.
[8] Id. (citing Tanner v. Westbrook, 174 F.3d 542 (5th Cir. 1999)).
[9] Id.
[10] Id. at 456.
[11] Id. at 449, 453-54, 455.
[12] Id. 453-54.
[1] Huss v. Gayden (Huss I), 465 F.3d 201, 208-09 (5th Cir.2006); id. at 209 (Higginbotham, J., dissenting). The panel majority's holding that the case was barred by limitations was itself inexplicable. The defense here was that cardiomyopathy was idiopathicthat science, let alone the defendant doctors, did not know its cause. They pled limitation but offered no evidence at trial in its support. This left the "defense" available only as a matter of law as any fact questions the defense presented were found as a matter of law in favor of the plaintiffs' judgment. This made practical sense as able defense counsel could not stand before the jury and argue that his client doctor could not have known that Terbutaline was the causebecause science did not knowbut Ms. Huss, a young Mississippi housewife, should have known when told that she suffered cardiomyopathy that it was caused by Terbutaline. Although Mississippi has a "discovery statute," the panel majority held that limitations ran from the time Huss learned she had cardiomyopathythat she should have known then that Terbutaline was the causeas a matter of law. The Mississippi Supreme Court politely responded that the case was not barred.
[2] Huss v. Gayden (Huss II), 2006 WL 5013195, at *1 (5th Cir. Dec.27, 2006) (per curiam).
[3] Huss v. Gayden (Huss III), 508 F.3d 240, 245-48 (5th Cir.2007); id. at 248 (Higginbotham, J., dissenting).
[4] Huss v. Gayden (Huss IV), 991 So.2d 162, 165 (Miss.2008).
[5] Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). This view should not be confused with the panel majority's contrasting view of Daubert deployed to sustain the admissibility of Reddix's expression of opinions on specific causationthat the established distinct thresholds for general and specific causation do not apply to Reddix because he was testifying in rebuttal to plaintiffs' experts who testified regarding specific causation. This discrimination favoring defendant doctors is legally indefensible, whatever its force as a matter of "policy."
[6] Guy v. Crown Equip. Corp, 394 F.3d 320, 325 (5th Cir.2004) (citing General Elec. Co. v. Joiner, 522 U.S. 136, 141-42, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)); Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir. 1997); Smogor v. Enke, 874 F.2d 295, 297 (5th Cir. 1989); see also James v. Harris County, 577 F.3d 612, 619 (5th Cir.2009) ("District courts enjoy wide latitude in determining the admissibility of expert testimony, and the discretion of the trial judge and his or her decision will not be disturbed on appeal unless manifestly erroneous." (quoting Watkins, 121 F.3d at 988) (internal quotation marks omitted)).
[7] 21A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 5053.1 (2009) ("The qualifications of a person to render an expert opinion is a Rule 104(a) preliminary fact to be decided by the judge. The cases and the writers all agree on this." (citations omitted)).
[8] 174 F.3d 542 (5th Cir. 1999).
[9] Id. at 547.
[10] 151 F.3d 269 (5th Cir.1998) (en banc).
[11] Eymard v. Pan Am. World Airways, (In re Air Crash Disaster), 795 F.2d 1230 (5th Cir. 1986).
[12] As Justice Brennan described the importance to the Supreme Court function of the power to decide what to decide, "[it] is an indispensable and inseparable part of this entire process, and it cannot be curtailed without grave risk of impairing the very core of the extraordinary function of the Supreme Court." William J. Brennan, Jr., The National Court of Appeals: Another Dissent, 40 U. CHI. L.REV. 473, 484 (1973).
[13] See generally Paul D. Carrington & Roger C. Cramton, Judicial Independence in Excess: Reviving the Judicial Duty of the Supreme Court, 94 CORNELL L.REV. 587 (2009); Daniel J. Meador, Reining in the Superlegislature: A Response to Professors Carrington and Cramton, 94 CORNELL L.REV. 657 (2009).
[1] Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
[2] Moreover, "`no panel is empowered to hold that a prior decision applies only on the limited set of facts set forth in that opinion,' United States v. Smith, 354 F.3d 390, 399 (5th Cir.2003), and a prior panel's explication of the rules of law governing its holdings may not generally be disregarded as dictum. Gochicoa v. Johnson, 238 F.3d 278, 286 n. 11 (5th Cir.2000)." Rios, 444 F.3d at 425 n. 8.
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529 F.2d 525
McCloudv.Hayes
75-2110
UNITED STATES COURT OF APPEALS Sixth Circuit
12/10/75
1
W.D.Ky.
AFFIRMED
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FILED
NOV 10 2015
1 NOT FOR PUBLICATION
SUSAN M. SPRAUL, CLERK
2 U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
3 UNITED STATES BANKRUPTCY APPELLATE PANEL
4 OF THE NINTH CIRCUIT
5
In re: ) BAP No. CC-14-1579-KuDTa
6 )
ALLANA BARONI, ) Bk. No. 12-10986
7 )
Debtor. ) Adv. No. 13-01071
8 ______________________________)
)
9 ALLANA BARONI, )
)
10 Appellant, )
)
11 v. ) MEMORANDUM*
)
12 WELLS FARGO BANK, N.A., as )
Trustee for Structured )
13 Adjustable Rate Mortgage Loan )
Trust Mortgage Pass-through )
14 Certificates, Series 2005-17, )
)
15 Appellee. )
______________________________)
16
Argued and Submitted on September 24, 2015
17 at Malibu, California
18 Filed – November 10, 2015
19 Appeal from the United States Bankruptcy Court
for the Central District of California
20
Honorable Alan M. Ahart, Bankruptcy Judge, Presiding
21
22 Appearances: Louis J. Esbin argued for appellant Allana Baroni;
Bernard Kornberg of Severson & Werson argued for
23 appellee Wells Fargo Bank, N.A., as Trustee.
24
Before: KURTZ, DUNN and TAYLOR, Bankruptcy Judges.
25
26 *
This disposition is not appropriate for publication.
27 Although it may be cited for whatever persuasive value it may
have (see Fed. R. App. P. 32.1), it has no precedential value.
28 See 9th Cir. BAP Rule 8024-1.
1 INTRODUCTION
2 The debtor Allana Baroni1 appeals from the bankruptcy
3 court’s summary judgment in favor of Wells Fargo Bank, N.A., as
4 trustee for a mortgage securitization trust. In granting summary
5 judgment, the bankruptcy court determined that there was no
6 genuine factual dispute that Wells Fargo possessed the original
7 promissory note indorsed in blank, so Wells Fargo qualified as a
8 person entitled to enforce the note and hence had standing to
9 file a proof of claim in Baroni’s bankruptcy case.
10 Allana asserts that Wells Fargo did not demonstrate that it
11 had a right to enforce the note. We disagree. The
12 uncontroverted evidence presented with Wells Fargo’s summary
13 judgment motion established that Wells Fargo was in possession of
14 the original note, indorsed in blank, and hence Wells Fargo
15 qualified as a person entitled to enforce the note. Thus, the
16 bankruptcy court correctly determined that Wells Fargo had
17 standing to file the proof of claim. Allana also asserts that
18 Wells Fargo’s claim is unsecured, that the assignment of deed of
19 trust accompanying Wells Fargo’s proof of claim was invalid.
20 Again, we disagree. Allana presented no evidence that would have
21 permitted a reasonable trier of fact to conclude that the
22 assignment of deed of trust was invalid.
23 Accordingly, we AFFIRM.
24 FACTS
25 In May 2005, Allana and her husband James purchased a
26
27
1
For the sake of clarity, we refer to Allana and her husband
28 James Baroni by their first names. No disrespect is intended.
2
1 condominium in Henderson, Nevada. To finance that purchase, the
2 Baronis executed a note in the approximate amount of $675,000 and
3 a deed of trust securing repayment of the note.
4 Allana does not deny that she is liable for repayment of the
5 Henderson note, but she claims she is not certain who she is
6 obliged to pay. She also claims that Wells Fargo is not the
7 beneficiary’s successor in interest under the Henderson deed of
8 trust.
9 In February 2012, Allana commenced her bankruptcy case by
10 filing a voluntary chapter 132 petition. Later that same month,
11 she voluntarily converted her case from chapter 13 to chapter 11.
12 In June 2012, Wells Fargo filed a proof of claim asserting a
13 secured claim in Allana’s bankruptcy case in the approximate
14 amount of $800,000. Wells Fargo attached to the proof of claim
15 the following documents: (1) itemized statements of interest,
16 fees, expenses and charges accrued on the loan; (2) a copy of the
17 Henderson note, which included an indorsement in blank on the
18 face of the note’s signature page; (3) a copy of the Henderson
19 deed of trust with a recording stamp reflecting that the deed of
20 trust was recorded in the Clark County Recorder’s Office; and
21 (4) a copy of an assignment of deed of trust executed by a
22 Khadija Gulley on behalf of Mortgage Electronic Registration
23 Systems, Inc. (MERS) in favor of Wells Fargo with a recording
24
25 2
Unless specified otherwise, all chapter and section
26 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
all "Rule" references are to the Federal Rules of Bankruptcy
27 Procedure. All “Civil Rule” references are to the Federal Rules
of Civil Procedure, and all “Evidence Rule” references are to the
28 Federal Rules of Evidence.
3
1 stamp reflecting that the assignment was recorded in the Clark
2 County Recorder’s Office.
3 In April 2013, Allana obtained an order confirming her
4 second amended reorganization plan. In relevant part, Allana set
5 forth in her disclosure statement and plan that she disputed and
6 objected to Wells Fargo’s proof of claim but that, to the extent
7 the bankruptcy court ultimately allowed any claim secured by the
8 Henderson property, she would pay the holder of that allowed
9 claim in accordance with the terms of her plan.
10 That same month, Allana filed her complaint against Wells
11 Fargo. In the complaint, Allana in essence alleged that Wells
12 Fargo’s proof of claim did not establish that Wells Fargo is the
13 holder of the Henderson note, the owner of the Henderson note, or
14 the successor to the beneficiary under the Henderson deed of
15 trust. Allana further complained that the alleged sale of the
16 Henderson note to Wells Fargo was inconsistent with information
17 she had received from third parties regarding who is the note’s
18 owner and who is the note’s investor and that the alleged sale
19 violated the terms of the trust agreement pursuant to which Wells
20 Fargo supposedly was acting as trustee. Allana also posited that
21 the assignment of deed of trust was invalid because: (1) there
22 was no proof the assignment’s signatory – Khadija Gulley – was
23 authorized to execute the assignment on behalf of MERS; and
24 (2) the timing and manner of the assignment violated the terms of
25 the trust agreement.
26 Based on these allegations, Allana’s complaint included a
27 claim for declaratory relief seeking a judicial determination as
28 to whether Wells Fargo’s proof of claim should be allowed or
4
1 disallowed and whether that claim was secured or unsecured. The
2 complaint also included a claim for relief alleging that Wells
3 Fargo would be unjustly enriched if its claim were allowed in the
4 absence of proof that Wells Fargo was entitled to enforce the
5 Henderson note and deed of trust. The complaint’s third claim
6 for relief under the Fair Debt Collection Practices Act,
7 15 U.S.C. § 1692, et seq., alleged that Wells Fargo had falsely
8 represented that it was entitled to enforce the Henderson note
9 and deed of trust by filing the proof of claim.3 Allana’s fourth
10 and final claim for relief, based on all of the same allegations,
11 set forth a claim under California’s unfair competition law,
12 Cal. Bus. & Profs. Code § 17200, et seq.
13 Wells Fargo sought dismissal of Allana’s complaint under
14 Civil Rule 12(b)(6), but the bankruptcy court denied Wells
15 Fargo’s dismissal motion. Wells Fargo then filed an answer to
16 Allana’s complaint in November 2013, and close to a year later,
17 in September 2014, Wells Fargo filed its summary judgment motion.
18 Wells Fargo supported its summary judgment motion, in part,
19 with the declaration of one of its attorneys, Adam Barasch.
20 Barasch stated that, on behalf of his client Wells Fargo, he was
21 in possession of the original note and original deed of trust.
22 Barasch also stated that the copy of the Henderson note attached
23 as Exhibit A to the declaration of A.J. Loll (also submitted with
24
3
The FDCPA claim also alleged that Wells Fargo has
25 misrepresented the amount due on the note and has falsely failed
26 to credit Allana for all of the payments she has made. Allana
has abandoned these issues by not addressing them in her opening
27 appeal brief. Christian Legal Soc'y v. Wu, 626 F.3d 483, 487–88
(9th Cir. 2010); Brownfield v. City of Yakima, 612 F.3d 1140,
28 1149 n.4 (9th Cir. 2010).
5
1 Wells Fargo’s summary judgment motion) is a true copy of the
2 original note in his possession. Barasch further stated that, in
3 October 2013, Allana and her counsel personally inspected the
4 original Henderson note and original Henderson deed of trust.
5 In October 2014, Allana filed her opposition to Wells
6 Fargo’s summary judgment motion, in which she largely reiterated
7 the same assertions she had made in her complaint. In support of
8 her claim that Wells Fargo had not submitted competent evidence
9 to establish that it was either the holder of the note or the
10 owner of the note, Allana formally made several different
11 evidentiary objections to both the Barasch declaration and the
12 Loll declaration, which objections the bankruptcy court never
13 addressed.
14 Allana further contended that she was not given adequate
15 opportunity to conduct discovery. In support of this contention,
16 Allana referenced certain examinations and document requests she
17 had sought under Rule 2004 from Wells Fargo and others before she
18 filed her adversary proceeding against Wells Fargo. According to
19 Allana, none of the responding parties fully complied with her
20 Rule 2004 examination and document requests. Allana did not
21 identify what efforts, if any, she had made to conduct or compel
22 discovery during the roughly 18 months that elapsed between the
23 filing of her complaint and the filing of her summary judgment
24 opposition.
25 After holding a hearing at which both parties submitted
26 without oral argument, the bankruptcy court entered an order
27 granting summary judgment to Wells Fargo. The order set forth
28 the court’s reasoning. According to the court, Wells Fargo had
6
1 established that it had possession of the original Henderson
2 note, indorsed in blank, so Wells Fargo was a “person entitled to
3 enforce” the Henderson note under Uniform Commercial Code § 3-301
4 and hence had standing to file a proof of claim based on the
5 Henderson note. Even if Wells Fargo had not qualified as the
6 holder of the note, the court reasoned, Wells Fargo had
7 established that it possessed the note as trustee of a
8 securitization trust and that Wells Fargo owned the Henderson
9 note as trustee of that trust. Thus the court held that Wells
10 Fargo had alternately established that it was “a nonholder in
11 possession of the instrument who has the rights of a holder”
12 under Uniform Commercial Code § 3-301.
13 Based on its analysis of Wells Fargo’s rights in relation to
14 the Henderson note, the bankruptcy court concluded that, as a
15 matter of law, Allana could not prevail on any of her claims for
16 relief. As an additional ground for denying relief on Allana’s
17 unjust enrichment claim, the bankruptcy court held that Allana’s
18 action was an action based on contract and that unjust enrichment
19 was not available in an action based on contract. As additional
20 grounds for denying relief on Allana’s Fair Debt Collection
21 Practices Act claim, the bankruptcy court held that Wells Fargo
22 was not a debt collector within the meaning of the Act, that the
23 Act only applied to consumer debts and that the debt secured by
24 the Henderson property was not a consumer debt.
25 On December 15, 2014, Allana timely filed her notice of
26 appeal from the bankruptcy court’s summary judgment.
27 JURISDICTION
28 The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
7
1 §§ 1334 and 157(b)(2)(B) and (C). We have jurisdiction under
2 28 U.S.C. § 158.
3 ISSUE
4 Did the bankruptcy court correctly grant summary judgment in
5 favor of Wells Fargo?
6 STANDARD OF REVIEW
7 We review de novo the bankruptcy court’s summary judgment
8 ruling. Wank v. Gordon (In re Wank), 505 B.R. 878, 886 (9th Cir.
9 BAP 2014).
10 SUMMARY JUDGMENT STANDARDS
11 Because we review summary judgment rulings de novo, we
12 utilize the same summary judgment standards as other federal
13 courts use. Kelly v. Okoye (In re Kelly), 182 B.R. 255, 258 (9th
14 Cir. BAP 1995), aff'd, 100 F.3d 110 (9th Cir. 1996). Pursuant to
15 Civil Rule 56(a), which is made applicable in adversary
16 proceedings by Rule 7056, summary judgment may be appropriate "if
17 the movant shows that there is no genuine issue as to any
18 material fact and the movant is entitled to judgment as a matter
19 of law." In re Wank, 505 B.R. at 886. In considering summary
20 judgment, the court is not permitted to weigh the evidence;
21 instead, it only may determine whether a genuine and material
22 factual issue remains for trial. Id. An issue is genuine if
23 there is enough evidence for a reasonable trier of fact to make a
24 finding in favor of the non-moving party, and an issue is
25 material if it might affect the outcome of the case. Far Out
26 Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001) (citing
27 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986)).
28 The initial summary judgment burden rests on the moving
8
1 party. In re Wank, 505 B.R. at 886. Once the moving party has
2 presented facts as undisputed and has presented admissible
3 evidence in support of those facts, the non-moving party may be
4 deemed to have admitted those facts for summary judgment purposes
5 unless he or she specifically challenges those facts and presents
6 controverting evidence in support of his or her position. See
7 Beard v. Banks, 548 U.S. 521, 527 (2006); see also 10A Charles A.
8 Wright, Arthur R. Miller, et al., FED. PRAC. & PROC. CIV. § 2727
9 (3d ed. 2015) (“If the movant presents credible evidence that, if
10 not controverted at trial, would entitle him to a Rule 50
11 judgment as a matter of law that evidence must be accepted as
12 true on a summary-judgment motion.”).
13 DISCUSSION
14 At the heart of Allana’s complaint is her allegation that
15 Wells Fargo lacked standing to file its proof of claim, an issue
16 on which resolution of this appeal largely turns. Allana
17 sometimes refers to this as a problem of standing and sometimes
18 as a problem of who qualifies as the real party in interest under
19 Civil Rule 17(a). In In re Veal, this Panel explained that who
20 has standing and who is the real party in interest are legally
21 distinct issues. See Veal v. Am. Home Mortg. Servicing, Inc.
22 (In re Veal), 450 B.R. 897, 907-08 (9th Cir. BAP 2011). At the
23 same time, in the context of a proof of claim based on a
24 promissory note, we effectively held in In re Veal that the
25 distinction between the two issues is irrelevant because a
26 claimant who is a person entitled to enforce the note satisfies
27 both the standing and real party in interest requirements, and a
28 claimant who is not a person entitled to enforce the note
9
1 satisfies neither requirement. Id at 920.
2 Similar standing and real party in interest issues have been
3 addressed in a number of published and unpublished Panel
4 decisions over the last several years. See, e.g., Allen v. U.S.
5 Bank, N.A. (In re Allen), 472 B.R. 559, 565 (9th Cir. BAP 2012);
6 In re Veal, 450 B.R. at 897; see also Rivera v. Deutsche Bank
7 Nat'l Trust Co. (In re Rivera), 2014 WL 6675693, at *6-7 (9th
8 Cir. BAP Nov. 24, 2014) (Mem. Dec.); Green v. Waterfall Victoria
9 Master Fund 2008–1 Grantor Trust Series A (In re Green), 2012 WL
10 4857552, at *6-7 (9th Cir. BAP Oct. 15, 2012) (Mem. Dec.); cf.
11 Edwards v. Wells Fargo Bank, N.A. (In re Edwards), 454 B.R. 100,
12 105 (9th Cir. BAP 2011) (focusing on creditor standing issue in
13 the context of a relief from stay motion). In In re Allen and in
14 In re Veal, we generally held that a party is entitled to file a
15 proof of claim based on a secured promissory note if that party
16 is a “person entitled to enforce” the note under § 3–301 of the
17 Uniform Commercial Code (“UCC”).4 In re Allen, 472 B.R. at 565;
18
19 4
Because the Henderson note and deed of trust apparently
20 were signed in California, payment of the note originally was
supposed to be made in California and Allana at all relevant
21 times has resided in California, California’s version of the UCC
would appear to apply for purposes of determining the parties’
22
rights and duties with respect to the note. See UCC § 1-301(b);
23 Barclays Discount Bank Ltd. v. Levy, 743 F.2d 722, 725 (9th Cir.
1984); see also In re Veal, 450 B.R. at 921 n.41 (applying
24 Arizona's counterpart to UCC § 1-301(b) under similar
circumstances). For purposes of resolving this appeal, there is
25 no material difference between the uniform version of the UCC and
26 California’s version of the UCC. Meanwhile, the deed of trust
identifies federal law and the law of the jurisdiction in which
27 the Henderson property is located as the governing law. Thus,
Nevada law would appear to govern interpretation and enforcement
28 of the deed of trust. Id.
10
1 In re Veal, 450 B.R. at 902. There are several ways a party may
2 become a person entitled to enforce the note under UCC § 3–301,
3 but one common way is for the person to become a "holder" of the
4 note, as defined in UCC § 1–201(b)(21)(A). In re Allen, 472 B.R.
5 at 565; In re Veal, 450 B.R. at 910–11. As set forth in UCC
6 § 1–201(b)(21)(A), a “holder” includes a “person in possession of
7 a negotiable instrument that is payable . . . to bearer . . . .”
8 And a negotiable instrument is payable to the bearer when it is
9 indorsed in blank. See UCC § 3–205(b) (“If an indorsement is
10 made by the holder of an instrument and it is not a special
11 indorsement, it is a ‘blank indorsement.’ When indorsed in
12 blank, an instrument becomes payable to bearer and may be
13 negotiated by transfer of possession alone until specially
14 indorsed.”); see also In re Allen, 472 B.R. at 567.5
15 Wells Fargo claims to have possession of the Henderson note
16 indorsed in blank and thereby claims to be a holder of the note
17 and hence a person entitled to enforce the note. Allana claims
18 that Wells Fargo’s possession of the Henderson note indorsed in
19 blank would be insufficient by itself to support the assertion
20 that Wells Fargo is entitled to enforce the note. According to
21 Allana, Wells Fargo also must establish who owns the note.
22 Allana is incorrect. As the plain language of UCC § 3-301
23 provides, “[a] person may be a person entitled to enforce the
24
5
The reasoning of the bankruptcy court and the arguments of
25 both parties have at all times assumed that the Henderson note
26 qualifies as a negotiable instrument within the meaning of UCC
§ 3-104(a). Consequently, any issue regarding whether UCC
27 Article 3 applies to the Henderson note has been forfeited. See
Golden v. Chicago Title Ins. Co. (In re Choo), 273 B.R. 608, 613
28 (9th Cir. BAP 2002).
11
1 instrument even though the person is not the owner of the
2 instrument or is in wrongful possession of the instrument.”6
3 As we explained at length in In re Veal, so long as Allana
4 knows that if she pays Wells Fargo she has satisfied the debt,
5 Allana should be indifferent as to who ultimately is determined
6 to be the owner of the note. In re Veal, 450 B.R. at 910, 912 &
7 n.27; see also id. at 913, 919. Put another way, if Wells Fargo
8 has established it is a person entitled to enforce the note, then
9 Wells Fargo has provided Allana with the requisite assurance that
10 her plan payments on account of Wells Fargo’s claim will satisfy
11 the debt, in accordance with UCC § 3-602. See In re Veal,
12 450 B.R. at 910.
13 The uncontroverted evidence in the summary judgment record
14 establishes that Wells Fargo’s attorney Adam Barasch is in
15 possession of the original Henderson note indorsed in blank.
16 Allana argues on appeal that a copy of the Henderson note she had
17 obtained under the Real Estate Settlement Procedures Act differed
18 from the copy of the note Wells Fargo attached to its proof of
19 claim. According to Allana, these differences included: (1) the
20 absence (or redaction) of the loan number from the proof of claim
21 note copy; (2) the absence of a prepayment penalty addendum from
22 the proof of claim note copy; and (3) the presence of an
23 indorsement on the signature page of the proof of claim note
24 copy. We are not persuaded that any of these differences casts
25
26 6
In support of her position, Allana relies on Leyva v. Nat'l
27 Default Servicing Corp., 255 P.3d 1275 (Nev. 2011). Leyva is
inapposite. In Leyva, the creditor had possession of the
28 original note, but the note was not indorsed. Id. at 1281.
12
1 any genuine doubt that the proof of claim note copy is a true
2 copy of the Henderson note.
3 More importantly, the differences between the copies Allana
4 references in no way controvert Barasch’s declaration testimony
5 that he holds the original note and that the original note looks
6 exactly like the copy attached to the Loll declaration. Allana
7 attacked Barasch’s declaration on a number of evidentiary grounds
8 including hearsay, lack of foundation and lack of personal
9 knowledge, but these grounds are meritless to the extent Allana
10 seeks to challenge Barasch’s assertion that he is in possession
11 of the original Henderson note. Barasch is competent to employ
12 his powers of personal observation to assess whether he is in
13 possession of an original document. See Evidence Rule 602 and
14 accompanying Advisory Committee Notes. Barasch also is competent
15 to compare the original note in his possession to the copy
16 attached to the Loll declaration and to declare whether the Loll
17 declaration note copy is identical to the original. Id.
18 Barasch, of course, cannot attest to the authenticity of Allana’s
19 signature and James’s signature on the Henderson note, but
20 Barasch does not need to. Signatures on negotiable instruments
21 are presumed to be authentic and authorized, and Allana has not
22 presented any evidence to overcome that presumption. See
23 In re Stanley, 514 B.R. 27, 39 (Bankr. D. Nev. 2012)(citing UCC
24 §§ 1–206 & 3–308).
25 Allana also attacks the indorsement on the face of the
26 note’s signature page, but indorsement signatures, like note
27 signatures, are presumed to be both authentic and authorized.
28 Id. Nor is there any requirement for the indorsement to be
13
1 dated. See id.
2 Tellingly, Allana has not challenged or disputed in any way
3 Barasch’s declaration testimony that Allana and her counsel
4 inspected the original note in Barasch’s possession. Allana
5 never sought to introduce any testimony from herself or her
6 counsel that there were any irregularities or doubts about the
7 original note they inspected – a note that Allana had executed.
8 In short, the uncontroverted evidence, not subject to any
9 meritorious evidentiary objection, establishes that Wells Fargo’s
10 attorney Adam Barasch is in possession of the original Henderson
11 note indorsed in blank. Under In re Allen and In re Veal, this
12 is sufficient to establish Wells Fargo’s standing to file its
13 proof of claim based on the Henderson note.
14 Having established its standing and having substantially
15 complied with all of the requirements for filing a proof of claim
16 under Rule 3001, Wells Fargo is entitled to the presumption that
17 its claim is valid as set forth in Rule 3001(f). The proof of
18 claim included: (i) a copy of the writing on which it was based,
19 as required by Rule 3001(c)(1); (ii) various statements required
20 by Rule 3001(c)(2)(A), (B) and (C); and (iii) a copy of the deed
21 of trust showing that it had been recorded in the Clark County
22 Recorder’s office, as required by Rule 3001(d).
23 In addition, on its face, the proof of claim was executed by
24 Wells Fargo’s legal counsel, an attorney from the law firm of
25 Routh, Crabtree & Olsen, P.S., who in the signature block
26 explicitly identified himself as “attorney for creditor.” This
27 is sufficient to satisfy the requirements of Rule 3001(b).
28 Furthermore, Allana alleged in the operative version of her
14
1 complaint (her first amended complaint) at paragraph 4 that Wells
2 Fargo filed the proof of claim, and Wells Fargo admitted this
3 fact in its answer, so the fact of Wells Fargo’s filing of the
4 claim is not in dispute in this litigation.
5 Wells Fargo’s filing of a proof of claim substantially in
6 compliance with Rule 3001 qualified as prima facie evidence of
7 the validity and amount of its claim. See Rule 3001(f).
8 Thereafter, the burden shifted to Allana to tender evidence
9 sufficient to refute at least one of the facts essential to the
10 claim's legal sufficiency. Lundell v. Anchor Constr.
11 Specialists, Inc. (In re Lundell), 223 F.3d 1035, 1039-40 (9th
12 Cir. 2000). The ultimate burden of persuasion at all times
13 remained on Wells Fargo to prove its claim by a preponderance of
14 the evidence. Id. at 1039; Wright v. Holm (In re Holm ),
15 931 F.2d 620, 623 (9th Cir. 1991).
16 In order to prove up its status as the successor to the
17 beneficiary under the deed of trust, Wells Fargo also attached to
18 its proof of claim a copy of the recorded assignment of deed of
19 trust showing that MERS duly assigned the deed of trust to Wells
20 Fargo. Allana argues that the assignment is invalid because it
21 was not authenticated, because the assignment violated the trust
22 agreement pursuant to which Wells Fargo was serving as trustee,
23 and because the assignment’s signatory – Khadija Gulley – lacked
24 authority to sign on behalf of MERS.
25 None of Allana’s contentions justify reversal. The
26 assignment of deed of trust was self-authenticating as a
27 notarized document. Evidence Rule 902(8); see also United States
28 v. M'Biye, 655 F.2d 1240, 1242 (D.C. Cir. 1981); J & J Sports
15
1 Prods., Inc. v. Phelan, 2009 WL 3748107, at *13 (E.D. Cal. 2009).
2 In fact, federal courts typically find the contents of recorded,
3 notarized documents affecting title to real property so reliable
4 that they routinely take judicial notice of their filing and
5 their contents. See, e.g., Wensley v. First Nat. Bank of Nev.,
6 874 F. Supp. 2d 957, 961 & n.1 (D. Nev. 2012); Beltran v.
7 Accubanc Mortg. Corp., 2012 WL 5880434, at *2 (E.D. Cal. 2012);
8 Razon v. Bank of Am., 2011 WL 1344272, at *2 (N.D. Cal. 2011);
9 Trapp v. Chase Home Fin., LLC, 2010 WL 4703864, at *1 & n.1 (C.D.
10 Cal. 2010).
11 As for the alleged violation of the securitization trust’s
12 governing documents, Allana lacks standing to complain of any
13 such violations. Wood v. Germann, 331 P.3d 859, 862 (Nev. 2014);
14 see also Jenkins v. JP Morgan Chase Bank, N.A., 216 Cal. App. 4th
15 497, 515 (2013); Turner v. Wells Fargo Bank, N.A. (In re Turner),
16 2015 WL 3485876, at *9 (9th Cir. BAP June 2, 2015) (Mem. Dec.);
17 In re Rivera, 2014 WL 6675693, at *8.
18 Finally, as for the alleged lack of authority of Khadija
19 Gulley to sign the assignment of deed of trust on behalf of MERS,
20 Allana needed to plead and submit some evidence of this alleged
21 lack of authority. See Newman v. Bank of New York Mellon,
22 2013 WL 1499490, at *4 (E.D. Cal. 2013); Schwartz v. U.S. Bank,
23 Nat. Ass'n, 2012 WL 10423214, at *7 (C.D. Cal. 2012). This view
24 is consistent with both Nevada and California law, which have
25 treated allegations of a lack of corporate authority as a factual
26 matter to be proven by the party asserting the alleged lack of
27 authority. See, e.g., B & C Enterprises v. Utter, 498 P.2d 1327,
28 1328 (Nev. 1972); Kessinger v. Organic Fertilizers, Inc.,
16
1 151 Cal. App. 2d 741, 749 (1957).
2 The only “evidence” that Allana presented related to this
3 issue was the uncorroborated allegation that Gulley was employed
4 by Bank of America (and not MERS) at the time she executed the
5 assignment in favor of Wells Fargo. Even if we assume the truth
6 of this allegation, it does not demonstrate what Allana hopes it
7 demonstrates. To the contrary, numerous decisions have
8 recognized that MERS’s standard procedure is to authorize
9 employees of various lending institutions to execute on behalf of
10 MERS assignments of deeds of trust as necessary to effectuate the
11 transfer of deeds of trust in financing transactions involving
12 MERS as the originally-named beneficiary under the deeds of
13 trust. See, e.g., Cervantes v. Countrywide Home Loans, Inc.,
14 656 F.3d 1034, 1040 (9th Cir. 2011); Halajian v. Deutsche Bank
15 Nat. Trust Co., 2015 WL 139703, at *3 (E.D. Cal. 2015) (“A dual
16 agency role of an individual employed by a mortgage company and
17 signing on behalf of MERS is a necessary consequence of [the
18 MERS] system rather than an indication of any impropriety.”);
19 Schwartz, 2012 WL 10423214, at *7 (“the fact that a MERS
20 representative may also be an employee of another entity is not
21 unusual. . . .”).
22 In sum, Allana’s summary judgment opposition did not include
23 any evidence tending to undermine any of the facts essential to
24 Wells Fargo’s proof of secured claim. As a result, Allana failed
25 to demonstrate the existence of any genuine and material factual
26 issues that would have rendered summary judgment inappropriate.
27 Allana also argues that the bankruptcy court erred by not
28 giving her more time to conduct discovery before ruling on Wells
17
1 Fargo’s summary judgment motion. In support of this argument,
2 Allana contends that Wells Fargo and others never fully complied
3 with the discovery requests she made pursuant to Rule 2004 before
4 she filed her adversary proceeding. However, Allana never
5 identified any efforts she made to enforce her Rule 2004
6 discovery requests or to conduct discovery in her adversary
7 proceeding against Wells Fargo. Simply put, Allana failed to
8 demonstrate any diligence on her part in conducting discovery.
9 See Mackey v. Pioneer Nat. Bank, 867 F.2d 520, 524 (9th Cir.
10 1989) (“A movant cannot complain if it fails diligently to pursue
11 discovery before summary judgment.”)
12 Moreover, the evidence and facts Allana was seeking through
13 discovery would not have changed the fact that Wells Fargo
14 possessed the original Henderson note indorsed in blank or the
15 fact that MERS assigned the deed of trust to Wells Fargo.
16 Consequently, Allana failed to demonstrate how the bankruptcy
17 court giving her additional time to conduct discovery would have
18 helped her present specific facts and evidence establishing a
19 genuine issue of material fact. See id. at 523-24. Nor did
20 Allana comply with the applicable procedures for requesting
21 additional time to conduct discovery. See Civil Rule 56(d); see
22 also Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443
23 (9th Cir. 1986).
24 Finally, Allana points to a form Bank of America executed
25 and filed in the bankruptcy court purporting to transfer Wells
26 Fargo’s “claim” to Nationstar Mortgage, LLC. According to
27 Allana, this purported transfer undermines Wells Fargo’s
28 assertion in its summary judgment motion that it is the creditor
18
1 for that proof of claim. We disagree. There is no evidence in
2 the summary judgment record that would have permitted a
3 reasonable trier of fact to determine that Bank of America had
4 any interest in the claim to transfer or that it was authorized
5 to effectuate a transfer of the claim on behalf of Wells Fargo.
6 At most, the record arguably suggests that Bank of America at one
7 time may have been the servicing agent for Wells Fargo and that
8 Nationstar was Bank of America’s successor as servicing agent.
9 It might be that Bank of America’s transfer of claim form only
10 was meant to notify the court and the parties of this fact. In
11 any event, the form by itself does nothing to undermine the
12 uncontroverted evidence in the record establishing that Wells
13 Fargo is the creditor for the proof of claim, is entitled to
14 enforce the Henderson note and is the successor beneficiary under
15 the Henderson deed of trust.
16 CONCLUSION
17 For the reasons set forth above, we AFFIRM.
18
19
20
21
22
23
24
25
26
27
28
19
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536 Pa. 161 (1994)
638 A.2d 944
CITY OF SCRANTON
v.
WORKMEN'S COMPENSATION APPEAL BOARD (Stanley RIDESKI, Deceased).
Appeal of Helen RIDESKI, Widow.
Supreme Court of Pennsylvania.
Argued May 3, 1993.
Decided March 9, 1994.
*162 Todd J. O'Malley, Scranton, for appellant.
Cal A. Leventhal and Jennifer D. Timmeney, Kingston, for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY and MONTEMURO, JJ.
OPINION OF THE COURT
PAPADAKOS, Justice.[*]
On February 8, 1979, Stanley Rideski (Decedent) was injured in the course of his employment as a firefighter with the City of Scranton, Appellee herein. While engaged in fighting a fire, Decedent fell against a fire hydrant but continued to work pulling hoses and other fire fighting equipment. As a result of his fall, Decedent suffered severe injuries to his left arm, left shoulder, neck and back including a massive tear to his rotator cuff on the left shoulder.
Decedent and Appellee employer executed a notice of compensation payable and filed same with the Bureau of Workmen's Compensation and subsequently entered into a supplemental *163 agreement which provided for the payment of total disability payments at the rate of $186.44 per week beginning February 23, 1980. For the period of February 9, 1979 to February 22, 1980, the parties agreed that Decedent was totally disabled and he received his full wages in lieu of any workmen's compensation benefits.
On February 1, 1984, Appellee filed a petition to modify this agreement on the basis that Decedent's total disability had resolved itself into a specific loss of the use of his left arm. On May 22, 1985, the referee found that the Decedent had suffered a specific loss of the use of his left arm as well as other work-related injuries to his lower back and neck which aggravated the pre-existing medical conditions and rendered him totally disabled. As a result of these injuries, the referee awarded total disability benefits and further provided that upon the termination of the total disability, specific loss benefits would be payable to Decedent at a rate of $186.44 per week for 410 weeks. No appeal was ever taken by Appellee from this decision.
Pursuant to the terms of the award, Decedent began receiving total disability benefits until his death on July 18, 1987, which was due to causes unrelated to his work injuries. Helen Rideski, Decedent's widow and Appellant herein, filed a petition for review before the Bureau of Workmen's Compensation claiming that she was entitled to receive the specific loss benefits now that her husband was dead and that Appellee was improperly withholding these payments from her. The parties stipulated to the facts as contained in Appellant's petition for review and submitted the matter to the referee. He issued his decision on October 12, 1988, and ordered Appellee to pay the 410 weeks of specific loss benefits, concluding that since Decedent's right to specific loss benefits vested when they were awarded in 1985, Appellant was entitled to receive these benefits upon the termination of Decedent's total disability which, in this case, occurred at death.
The board affirmed but the Commonwealth Court reversed, concluding that pursuant to Sections 306(c) and 306(d) of the Workmen's Compensation Act, 77 P.S. § 513, because Decedent *164 was not collecting his specific loss benefits at the time of his death they were not vested benefits and his widow is not entitled to receive them. The Commonwealth Court also disagreed with the Board and its referee that Decedent's death operated as a termination of his total disability, and that, therefore, his death could not trigger his right to receive the specific loss benefits at issue. City of Scranton v. W.C.A.B. (Rideski), 142 Pa.Commonwealth Ct. 463, 598 A.2d 102 (1991).
We accepted further review to determine whether Appellant is entitled to receive the specific loss payments awarded her Decedent prior to his death in 1985, but not payable until his total disability ceased, and whether his death could operate as a termination of his total disability. We now reverse.
We first note that Appellant's claim for specific loss benefits is based upon Section 306(g) of the Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736 as amended, 77 P.S. § 541. This section provides in pertinent part:
Should the employe die from some other cause than the injury, payments of compensation to which the deceased would have been entitled to under section 306(c)(1) to (25) [77 P.S. Section 513, schedule of compensation for the permanent loss of certain bodily members] shall be paid to the following persons who at the time of the death of the deceased were dependents ... in the following order and amounts:
(1) To the surviving widow or widower if there are no children under the age of eighteen. (Footnote omitted.)
Here, it is not disputed that the Decedent died from an injury other than injuries which formed the basis of the finding of his total disability (congestive heart failure) and the relative inquiry becomes whether his specific loss benefits, awarded in 1985 but not payable until his total disability ceased, constituted "payments of compensation to which the Decedent would have been entitled to."
*165 Appellee argues that this question is answered by the provisions of Section 306(d), 77 P.S. Section 513, which provide in pertinent part:
Where, at the time of the injury the employe receives other injuries, separate from these which result in permanent injuries enumerated in clause (c) of this section [Section 306(c)(1) to (25)], the number of weeks for which compensation is specified for the permanent injuries shall begin at the end of the period of temporary total disability which results from the other separate injuries. (Emphasis added).
Appellee suggests that this section, by requiring that payments for other injuries (like Decedent's specific loss payments) not begin until the end of a temporary total disability, makes entitlement to those payments contingent upon termination of the temporary total disability by a healing during the lifetime of an injured employee. According to Appellee's reading of this section, since Decedent did not experience a healing of his disability during his lifetime he was never entitled to the further payments of specific loss benefits. We disagree.
Contrary to Appellee's arguments, Section 306(d) merely sets the timetable for when payments of specific loss benefits are to begin. The section does not explain or define when an injured employee is entitled to payments or when a period of temporary total disability "ends" but only requires that any additional payments for other injuries begin at the end of the temporary total disability. Appellee argues, however, that we determined in Turner v. Jones and Laughlin Steel Corp., 479 Pa. 618, 389 A.2d 42 (1978), that the "end" of a temporary total disability can only occur by an eventual healing or natural termination and that, without such an "end" (during the injured employee's lifetime) the entitlement to specific loss benefits cannot ripen. This is a misreading of Turner.
In Turner, the claimant was rendered a paraplegic as the result of an industrial accident and was awarded payment for total disability. He later petitioned to modify the compensation agreement from total disability to compensation for the *166 loss of use of both legs, a specific loss claim. His reason for seeking to change the award was that under his union contract, he was entitled to a permanent incapacity pension, except that upon reaching age 65, his pension would be reduced by any amount received pursuant to workmen's compensation, but not by any payment for loss of bodily members, i.e., specific loss benefits. Because claimant was 65 and was receiving workmen's compensation benefits in excess of his union pension, this reduction would have entirely eliminated his pension.
The Workmen's Compensation Appeal Board awarded claimant compensation for loss of use of both legs retroactive to the date of the accident with all sums already paid to be deducted from the modified award. The Commonwealth Court reversed and we, in turn, reversed that court and reinstated the Board's award, holding that since claimant was entitled to either a temporary total disability or specific loss benefits, he should be able to choose between them even if the temporary total disability had not terminated.
The thrust of Turner's discussion of Section 306(d) was to explain that although some disabilities may not end through healing, the method of ending permanent disability is irrelevant because it is the termination of permanent disability, not the way it ends that is critical. Whether the total disability ends through healing or through an election to receive specific loss benefits in lieu of total disability benefits, we concluded that a termination had, in any event, occurred and the claimant in Turner was entitled to receive the specific loss benefits.
Similarly, Decedent's death in this case (unrelated to his work injuries) operated as a termination of his total disability and is consistent with Section 306(a), 77 P.S. Section 511 which provides that total or partial disability ends at the death of the worker. Turner's common sense approach to Section 306(d) makes clear that the provision is intended only to establish the payment procedures when total disability ceases, leaving a claimant still factually qualified for benefits for permanent specific loss. It is to be observed that in Turner the claimant was allowed to terminate his total disability upon a finding by *167 the referee that his condition was such that he could qualify for either a specific loss or total disability. This is different from the factual setting before us.
Decedent was found to be totally disabled and was also found to be suffering from a specific loss of the use of his arm in 1985. Specifically, the referee found that, at the time of the initial injury in 1979, Decedent not only suffered the loss of the use of his left arm but also suffered a frozen shoulder, chronic cervical sprain with continued pain and secondary muscle spasms and chronic lumbar sprain with continued pain and secondary muscle spasms. From the time of the initial injury, the referee specifically found that Decedent suffered degenerative arthritic changes in his cervical area as well as the lumbar spinal area which aggravated the former injuries, were precipitated by and causally related to the initial work injury. These findings compelled the referee to make separate awards for separate and distinct injuries as they existed in 1985. Because these awards were for separate injuries, Decedent was never in a position to make an election of benefits, as was the case in Turner. Additionally, these factual findings made by the referee concerning Decedent's medical and physical state in 1985 were never appealed and once they became final established Decedent's entitlement to future payments and are binding on us.
Based on this record, we conclude that upon the termination of Decedent's total disability, Section 306(d) required that his compensation begin for his specific loss. Since these payments could not be made directly to him, Section 306(c) provides that these compensation benefits are payable directly to his surviving spouse, Appellant.
Accordingly, the opinion and order of the Commonwealth Court are reversed and the order of the Workmen's Compensation Appeal Board, dated October 3, 1990, is hereby reinstated.
LARSEN, J., did not participate in the decision of this case.
FLAHERTY, J., files a dissenting opinion in which ZAPPALA, J., joins.
*168 MONTEMURO, J., who was an appointed Justice of the Court at the time of argument, participated in the decision of this case in his capacity as a Senior Justice.
FLAHERTY, Justice, dissenting.
I dissent. In my view, this case is governed by Turner v. Jones and Laughlin Steel Corp., 479 Pa. 618, 389 A.2d 42 (1978), which holds that a claimant who is eligible for compensation either on the basis of total disability or specific losses may elect compensation under the provision more beneficial to him, provided that what he has already received must be treated as a setoff against what he is entitled to receive under the alternate benefit.
In other words, Turner simply held that section 306(d) "requires that payment for specific losses not begin until the payment for temporary total disability has ended." 479 Pa. at 625, 389 A.2d at 45, based on the assumption that if a permanently disabled person were to be permitted to elect specific loss benefits in lieu of permanent disability, the award of specific loss benefits would be retroactive to the date of the accident and that all sums already paid would be deducted from the modified award. Turner allows an injured worker to maximize his benefits under the act by electing between types of awards which would be most beneficial to him, subject to a set off for all benefits already paid.
Using the same approach here, facilitating Rideski's maximum recovery under the act, it would be proper under sections 306(d) and 306(g) to allow Rideski's widow to elect specific loss benefits on her deceased husband's behalf. However, she should be able to make that claim only as he would have made it, retroactively to the date benefits were first payable and subject to a setoff for all sums already paid. Rideski was entitled to 430 weeks of specific loss benefits (410 weeks for the loss of an arm plus 20 weeks healing = 430 weeks = 8 years, 3 months). Rideski died on July 18, 1987, 8 years, 5 months after the accident. Because Rideski received disability payments for this entire period of time in the same amount as his specific loss benefits which must be set off *169 against any specific loss benefits to which he was entitled, and since any specific loss benefits expired two months before Rideski died, his widow was entitled to no specific loss benefits, and Commonwealth Court was correct in its result, albeit in error in its interpretation of Turner.
Thus, I would affirm Commonwealth Court.
ZAPPALA, J., joins this dissenting opinion.
NOTES
[*] Reassigned to this author.
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14-2122
Grundstein v. Eide
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 18th day of March, two thousand fifteen.
4
5 PRESENT:
6 DENNIS JACOBS,
7 RAYMOND J. LOHIER, JR.,
8 Circuit Judges,
9 GARY L. SHARPE,*
10 District Judge.
11 _____________________________________
12
13 Robert Grundstein,
14
15 Plaintiff-Appellant,
16
17 v. 14-2122
18
19 Linda Eide, et al.,
20
21 Defendants-Appellees.
22 _____________________________________
23
24 FOR PLAINTIFF-APPELLANT: Robert Grundstein, pro se,
25 Morrisville, Vermont.
26
* Chief Judge Gary L. Sharpe, of the United States District Court for the Northern District of New
York, sitting by designation.
1
1 FOR DEFENDANTS-APPELLEES: Matthew S. Borick, Esq., Downs
2 Rachlin Martin PLLC, Burlington,
3 Vermont.
4
5 Appeal from a judgment of the United States District Court for the District of Vermont
6 (Reiss, C.J.).
7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
8 DECREED that the judgment of the district court is AFFIRMED.
9 Appellant Robert Grundstein, pro se, appeals from the judgment dismissing his complaint
10 for lack of personal jurisdiction over defendants, all of them residents of Washington State. We
11 assume the parties’ familiarity with the underlying facts, the procedural history of the case, and
12 the issues on appeal.
13 We review de novo the district court’s dismissal of the complaint for lack of personal
14 jurisdiction under Federal Rule of Civil Procedure Rule 12(b)(2). Metro. Life Ins. Co. v.
15 Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir. 1996). In ruling on a motion under Rule
16 12(b)(2), a district court “must determine whether there is jurisdiction over the defendant under
17 the relevant forum state’s laws.” Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171
18 F.3d 779, 784 (2d Cir. 1999). The plaintiff bears the burden of demonstrating that jurisdiction
19 exists. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994).
20 However, in reviewing a dismissal for lack of personal jurisdiction, we construe all pleadings
21 and affidavits in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s
22 favor, DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001) (per curiam), though we
23 need not “accept as true a legal conclusion couched as a factual allegation,” In re Terrorist
2
1 Attacks on Sept. 11, 2001, 714 F.3d 659, 673 (2d Cir. 2013) (internal quotation marks and
2 citations omitted).
3 Plaintiff failed to demonstrate minimum contacts with Vermont sufficient to support
4 personal jurisdiction over the defendants. Plaintiff contended that personal jurisdiction was
5 proper under the “effects test” applied by the Supreme Court in Calder v. Jones. We agree with
6 the district court’s distinction of that authority: Grundstein failed to show that the defendants’
7 conduct in this case was “calculated to cause injury” to him in Vermont. See 465 U.S. 783, 791
8 (1984).
9 Unlike certain cases on which Grundstein relies, the defendants in this case have not
10 voluntarily subjected themselves to personal jurisdiction by filing an action to enforce a foreign
11 judgment. Accordingly, we affirm for the reasons stated in the district court’s thorough opinion
12 and order.
13 We have considered all of Grundstein’s arguments and find them to be without merit.
14 Accordingly, we AFFIRM the judgment of the district court.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
3
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578 A.2d 176 (1990)
Dolores S. MONTGOMERY and Charles P. Muldon, as Personal Representatives of the Estate of Anita O. Spain, and Dolores S. Montgomery, individually, Appellants,
v.
DOCTER, DOCTER & SALUS, P.C., Appellee.
No. 89-1049.
District of Columbia Court of Appeals.
Decided July 13, 1990.
Before FERREN and STEADMAN, Associate Judges, and PRYOR, Senior Judge.
PER CURIAM:
This case is before us on a motion to dismiss an appeal. We must decide whether a notice of appeal timely filed but without a filing fee and requisite number of copies, as required by Super.Ct.Civ.R. 202 and D.C.App.R. 3(a), should be dismissed for lack of jurisdiction.
Appellants sought appeal from the trial court's order of June 26, 1989, awarding appellee, Docter, Docter & Salus, P.C., legal fees. On July 22, 1989, appellants' counsel mailed a notice of appeal to the Clerk of the Superior Court and served a copy upon counsel for appellee. Upon receipt on July 24, 1989, the Clerk rejected the notice of appeal because it was not accompanied by a $5 filing fee[1] and eight copies.[2] On July 31, 1989, appellants' counsel received notice of this rejection and promptly sent the filing fee and eight copies *177 of the notice of appeal to the Clerk, by Federal Express.[3] On the next day, August 1, 1989, appellants' counsel telephoned the Clerk and was informed that the filing fee and copies of the notice of appeal had been received. Appellee then moved this court to dismiss appellants' appeal as untimely filed. On these facts, we deny appellee's motion.
In this jurisdiction, the filing of a notice of appeal is timely when "the notice is, in fact, received by [the Clerk of the Superior Court] within the prescribed time." D.C. App.R. 3(a). In this case, the filing period ended on July 31, 1989, as the order appealed from was entered on the docket and mailed to appellants on June 26, 1989. D.C.App.R. 4(a)(1), (3), 26(c).[4] The Clerk initially received appellants' notice of appeal on July 24, 1989, well within the mandatory 30-day period prescribed by our rules. See In re C.I.T., 369 A.2d 171, 172 (D.C.1977). The only defect in the appeal process was appellants' failure to include the filing fee and copies of the notice of appeal.
When presented with the same issue in part, the Supreme Court held in Parissi v. Telechron, Inc., 349 U.S. 46, 75 S.Ct. 577, 99 L.Ed. 867 (1955) (per curiam), that untimely payment of a filing fee does not vitiate the validity of a notice of appeal. Several federal circuit courts of appeal, relying on Parissi, have allowed an appeal when timely noted but unaccompanied by a filing fee. E.g., Gee v. Tenneco, Inc., 615 F.2d 857, 859 (9th Cir.1980); Gould v. Members of N.J. Div. of Water Policy & Supply, 555 F.2d 340, 341 (3d Cir.1977); Sanchez v. Dallas Morning News, 543 F.2d 556, 557 (5th Cir.1976); Rothman v. United States, 508 F.2d 648, 651-652 (3d Cir. 1975); Thorndal v. Smith, Wild, Beebe & Cades, 339 F.2d 676, 677-679 (8th Cir.1965); Brennan v. United States Gypsum Co., 330 F.2d 728, 729 (10th Cir.1964). Likewise, federal district courts and state courts have followed Parissi. E.g., Ball v. United States, 653 F.Supp. 44, 46-47 (E.D. Tenn.1985); United States v. Puckett, 573 F.Supp. 713, 715-716 (E.D.Tenn.1981); Avco Financial Services v. Caldwell, 219 Kan. 59, 547 P.2d 756 (1976); Kalauli v. Lum, 57 Haw. 168, 552 P.2d 355 (1976); Williams v. State, 324 So.2d 74 (Fla.1975).[5] We agree with these decisions.
Accordingly, we hereby adopt Parissi and hold that notwithstanding appellants' omission of a $5 filing fee, the instant appeal was timely filed when received by the Clerk of the Superior Court on July 24, 1989. The fact that appellants also failed to include eight copies of the notice of appeal does not persuade us otherwise. While we recognize that this added filing requirement is essential to the processing of an appeal, it is not a jurisdictional prerequisite.[6]*178 Motion denied.
NOTES
[1] Super.Ct.Civ.R. 202.
[2] D.C.App.R. 3(a).
[3] Appellants' counsel was in Boulder, Colorado, when he received notice that the appeal had been rejected.
[4] The relevant paragraphs of D.C.App.R. 4 provide:
(a) Civil cases.
(1) Notice of appeal. A notice of appeal in a civil case shall be filed with the Clerk of the Superior Court within thirty days after entry of the judgment or order from which the appeal is taken unless a different time is specified by the provisions of the District of Columbia Code....
* * * * * *
(3) ... When a judgment or final order is entered or decided out of the presence of the parties and counsel, such judgment or order shall not be considered as having been entered, for the purpose of calculating the time for filing a notice of appeal ... until the fifth day after the Clerk of the Superior Court has made an entry on the docket, ... reflecting the mailing of notice by that clerk.
D.C.App.R. 26(c) provides:
Whenever a party has the right or duty to act or proceed within a prescribed period after the service of a paper upon that party and the paper is served by mail, the party shall have five additional days within which to act.
Consequently, because the order appealed from was issued by mail, appellants had until July 31, 1989, or five days beyond July 26, 1989, the 30th day, to notice their appeal.
[5] Contra Prowswood, Inc. v. Mountain Fuel Supply Co., 676 P.2d 952 (Utah 1984) (mistake in failing to include docketing fee with notice of appeal not excusable neglect and appeal dismissed for lack of jurisdiction).
[6] D.C.App.R. 3(a) does not make the filing of copies of a notice of appeal a jurisdictional prerequisite; nor does Super.Ct.Civ.R. 202, the filing fee requirement. We add, as did the Court in Parissi, that our holding today "does not leave [these rules] without other sanctions." Parissi, supra, 349 U.S. at 47, 75 S.Ct. at 577.
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156 F.Supp.2d 279 (2001)
William P. SHANNON, Plaintiff,
v.
FIREMAN'S FUND INSURANCE COMPANY, Defendant.
No. 00 CIV. 1528(SAS).
United States District Court, S.D. New York.
June 7, 2001.
*280 *281 *282 *283 *284 *285 Michael P. Graff, Michael Siskin, Kurzman Karelsen & Frank, LLP., New York City, for Plaintiff.
Lawrence Piekes, Wiggin & Dana, Stanford, CT, for Defendant.
OPINION AND ORDER
SCHEINDLIN, District Judge.
Plaintiff, William P. Shannon, brought this action pursuant to the New York State Human Rights Law ("NYHRL"), N.Y. Exec. Law § 296, and the New York City Human Rights Law (the "City law"), N.Y.C. Admin. Code § 8-107, alleging that the defendant, Fireman's Fund Insurance Company ("Fireman's Fund"), unlawfully terminated him because of his age.[1] The case was tried before a jury and on December 22, 2000 the jury returned a verdict in favor of Shannon, awarding him $80,000.00 as compensation for emotional suffering caused by the unlawful termination.[2]
Fireman's Fund now moves for judgment as a matter of law pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure, or, in the alternative, remittitur of the jury's compensatory damage award.[3] Shannon, in turn, moves for an award of attorneys' fees and other reasonable costs. For the reasons set forth below (1) Fireman's Fund's motion for judgment as a matter of law is denied; (2) Fireman's Fund's motion for a new trial is denied; (3) Fireman's Fund's motion for remittitur of the jury award is granted; and (4) Shannon's motion for attorneys' fees and costs is granted in part and denied in part.
I. BACKGROUND
A. Factual Summary
Shannon was hired as a Senior Inland Marine Underwriter by William H. McGee & Co., Inc. ("McGee") in January 1980. In late 1996 or early 1997, the inland marine, commercial property, and special risk departments of McGee were consolidated to form the Inland Marine/Property Unit (the "Unit"). See Tr. at 626-27. Edward Helfers and Lisa Uzzo took charge of the Unit in January 1997 and promoted Shannon to Head Office Underwriter, assigning him primary responsibility over McGee's Midwest territory.[4]See id. at 482-83, 626-27. Other Head Office Underwriters in the Unit included Louis Elias, Erica Mills and Stephanie Reneri. See id. at 482-83, 522-23. Additional underwriters in the Unit included Joseph McKeefry, responsible for catastrophe management, and Frederick Fisher and Donna Campbell, responsible for a package book of property and casualty *286 business referred to as the CML product line. See id. at 104, 106, 603-07, 637-38; see also Plaintiff's Exhibit ("Pl.Ex.") 48.
On April 9, 1999, Fireman's Fund acquired McGee. At the time of the acquisition, a transition team was assembled to "find a way to quickly integrate both the McGee and the Fireman's Fund marine department[s] into one cohesive unit ...." Tr. at 589. The transition team sought to restructure the merged company so that it would have the flexibility to adapt to the changing insurance environment. See id. To do so, the company decided to adopt a regional approach to underwriting, increasing the authority of the underwriters in the regional and branch offices by allowing them to sign-off on risks without the approval of the home office. See id. at 591-92. As a result, the Head Office Underwriters were given less responsibility. In accordance with this new approach and after numerous discussions with Mike Miller, Executive Vice-President and Chief Operating Officer for the Marine Profit Center,[5] Helfers decided that two of the Head Office Underwriter positions in the Unit would be eliminated. See id. at 131-32. After deciding who would be let go, Helfers received an e-mail on August 26, 1999, from Paul Cocja, a human resources employee, asking him to prepare a staffing analysisa brief summary explaining the reasons for any staffing decisions/recommendations. See id. at 55-56; Pl.Ex. 47. Where several employees were eligible to be cut, the staffing analysis was to address each employee's skills, performance approval, interviews, profile, and future potential. See Tr. at 58-59; Pl.Ex. 47. The next day Helfers completed his staffing analysis, indicating that Shannon would be let go because
Bill has an extensive background in inland .... Inland is the skill set which is prevalent in the new organization, the area for head office assistance and training will be related property .... Louis, Stephanie and Erica have property backgrounds .... Stephanie has the greatest future potential with the organization to be redeployed into the field at some junction .... Erica has experience in training which will be required going forward.
Pl.Ex. 48.
In September 1999, Shannon, at age sixty-two, as well as Elias, age fifty-four, were fired as part of a reduction-in-force ("RIF") which resulted in the termination of eighty-seven company employees. Both Reneri and Mills, ages thirty-two and forty-four, respectively, were retained. At trial Shannon alleged that his age was a motivating and determining factor in Fireman's Fund's decision to terminate him. The jury apparently agreed.
B. Procedural History
Although Shannon originally filed this action in state court, Fireman's Fund removed the action to federal court on February 28, 2000. Prior to trial, the parties stipulated that Shannon had established a prima facie case of age discrimination under the NYHRL and the City law and thus the only issues to be tried were whether Fireman's Fund's articulated reasons for the termination were a pretext for unlawful discrimination, and if so, what damages has Shannon proven. See Joint Pretrial Order at 3. The parties further agreed that in the event Shannon prevailed at trial, the Court would determine the amount of back and/or front pay to which he is entitled. The trial began on December 18, 2000. At the close of Shannon's case Fireman's Fund moved for judgment as a matter of *287 law with respect to liability as well as Shannon's claim for punitive damages. See Tr. at 496-507. The Court denied the motion as to liability but granted it with respect to punitive damages. See id. On December 22, 2000, the jury found in favor of Shannon and awarded him $80,000.00 as compensation for emotional suffering caused by the unlawful termination. In a decision dated March 1, 2001, the Court found that Shannon was entitled to $240,285.90 in back and front pay. See Shannon v. Fireman's Fund Ins. Co., 136 F.Supp.2d 225 (S.D.N.Y.2001). Judgment was entered on March 20, 2001, and by stipulation dated March 21, 2001, the parties agreed to stay the execution of the judgment pending the disposition of Fireman's Fund's post-trial motions.
II. DISCUSSION[6]
A. Motion for Judgment as a Matter of Law[7]
1. Legal Standard
A court may render judgment as a matter of law when "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue ...." Fed.R.Civ.P. 50(a)(1); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The standard for granting judgment as a matter of law "mirrors" the standard for summary judgment such that the "inquiry under each is the same." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Reeves, 530 U.S. at 150, 120 S.Ct. 2097. In ruling on such a motion, the trial court is required to
consider the evidence in the light most favorable to the party against whom the motion was made and to give that party the benefit of all reasonable inferences that the jury might have drawn in his favor from the evidence. The court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury.
Tolbert v. Queens Coll., 242 F.3d 58, 70 (2d Cir.2001) (quoting Smith v. Lightning Bolt Prods., Inc., 861 F.2d 363, 367 (2d Cir. 1988) (internal quotations and citation omitted)). In making its determination, a court should
review all of the evidence in the record [but] it must disregard all evidence favorable to the moving party that the jury is not required to believe..... That is, the court should give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses.
Reeves, 530 U.S. at 150-151, 120 S.Ct. 2097 (internal quotations and citations omitted); see also Raniola v. Bratton, 243 F.3d 610, 616 (2d Cir.2001). Thus, judgment as a *288 matter of law should not be granted unless "(1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [persons] could not arrive at a verdict against [it]." DiSanto v. McGraw-Hill, Inc., 220 F.3d 61, 64 (2d Cir.2000) (internal quotations and citation omitted); see also Epstein v. Kalvin-Miller Int'l, Inc., 139 F.Supp.2d 469, 474-76 (S.D.N.Y. Apr.17, 2001); Hiller v. County of Suffolk, 199 F.R.D. 101, 103 (E.D.N.Y.2001).
2. Pretext
As noted above, the parties stipulated that Shannon had established a prima facie case of age discrimination under the NYHRL and the City law and thus the primary issue to be tried was whether Fireman's Fund's articulated reasons for the termination were a pretext for unlawful discrimination.[8] Once a plaintiff's prima facie case is proven and the employer's non-discriminatory explanation has been given, "the McDonnell Douglas presumptions disappear from the case, and the governing standard is simply whether the evidence, taken as a whole, is sufficient to support a reasonable inference that prohibited discrimination occurred." James v. New York Racing Assoc., 233 F.3d 149, 156 (2d Cir.2000). At trial, Fireman's Fund asserted that Shannon was terminated because (1) his underwriting background was primarily in inland, a skill set prevalent in the merged company; and (2) in comparison with Elias, Reneri and Mills, he had the least amount of experience in property underwriting, the primary focus of the Unit subsequent to the merger. Fireman's Fund argues that Shannon failed to prove that its proffered reasons for termination were a pretext for unlawful discrimination.
Similar to many plaintiffs who bring discrimination suits, Shannon could not produce direct evidence of an improper discriminatory bias. See Carlton v. Mystic Transp., Inc., 202 F.3d 129, 135 (2d Cir.), cert. denied, 530 U.S. 1261, 120 S.Ct. 2718, 147 L.Ed.2d 983 (2000) ("[A]n employer who discriminates against its employee is unlikely to leave a well-marked trail, such as making a notation to that effect in the employee's personnel file."). However, direct evidence of discrimination is not necessary to prevail in such an action. See Luciano v. Olsten Corp., 110 F.3d 210, 215 (2d Cir.1997) ("Direct evidence is not necessary, and a plaintiff charging discrimination against an employer is usually constrained to rely on the cumulative weight of circumstantial evidence."). In Reeves, the Supreme Court granted certiorari "to resolve a conflict among the Courts of Appeals as to whether a plaintiff's prima facie case of discrimination, combined with sufficient evidence for a reasonable fact-finder to reject the employer's non-discriminatory explanation for its decision, is adequate to sustain a finding of liability for intentional discrimination." 530 U.S. at 140, 120 S.Ct. 2097. Reeves concluded that
a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, *289 may permit the trier of fact to conclude that the employer unlawfully discriminated. This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact-finder could conclude that the action was discriminatory.
530 U.S. at 148, 120 S.Ct. 2097 (emphasis added). This language makes clear that a plaintiff's prima facie case combined with evidence demonstrating the employer's proffered reason is false will, in most circumstances, be sufficient to sustain a verdict of discrimination. However, the Second Circuit has stated that Reeves "mandates a case-by-case approach, with a court examining the entire record to determine whether the plaintiff could satisfy his `ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.'" Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir.2000) (quoting Reeves, 530 U.S. at 143, 120 S.Ct. 2097 (internal quotations and citation omitted)); see also Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 93-94 (2d Cir.2001) ("While the Supreme Court has indicated that only occasionally will a prima facie case plus pretext fall short of the burden a plaintiff carries to reach a jury on the ultimate question of discrimination, it has also made clear that such occasions do exist."). In making its decision a court should consider a number of factors, including "the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports [or undermines] the employer's case and that properly may be considered on a motion for judgment as a matter of law." Reeves, 530 U.S. at 149-50, 120 S.Ct. 2097. Viewing the record in a light most favorable to Shannon, I find the evidence sufficient to support the jury's finding that Fireman's Fund engaged in unlawful discrimination.
3. The Evidence
a. Shannon's Underwriting Experience
Although Fireman's Fund argues that Shannon's experience was primarily in inland, there was sufficient evidence for the jury to infer that Shannon had an extensive background in underwriting property as well. Shannon testified that prior to coming to McGee he had approximately seven years experience underwriting property policies at Marsh & McLennan and AIG. See Tr. at 143. In addition, Shannon underwrote several property related policies while at McGee, including: (1) the Schlumberger policy;[9] (2) coal mining risks arising from McGee's Columbus office; and (3) builder's risks on existing buildings. See id. at 147-48, 153. David Matana, Shannon's supervisor at McGee from September 1986 to January 1997, testified that Shannon underwrote numerous property related risks and was "competent to handle the risks that were presented." Id. at 297. From the time Shannon was appointed Head Office Underwriter until the time he was terminated, Shannon was authorized to consider, review, approve and sign insurance policies up to $10,000,000.00, including those related to propertythe highest underwriting authority in the Unit. During that *290 time, Shannon was underwriting and approving a mix of both inland and property related policies.[10] Further, from September 1999 through March 1999, while Reneri was absent due to maternity leave, Shannon assumed responsibility over her property-intensive territory. See id. at 177-78. Shannon handled the added responsibility without complaint or criticism. See id. at 68. On March 17, 1999, Shannon received a highly satisfactory performance appraisal from Uzzo, which outlined McGee's developmental plans for Shannon as follows:
To utilize Bill's seasoned and experienced skills in property/inland and to assist in the development of staff. Bill has and will continue to develop new products/procedures to update our manuals.
Pl.Ex. 40.
While Fireman's Fund argues that both Reneri and Uzzo were better suited than Shannon to provide the type of head office support required in the aftermath of the merger, Helfers admitted that there is nothing in any of Shannon's performance appraisals indicating that he needs improvement in the "property area." See Tr. at 73-74. All of Shannon's appraisals were highly favorable. Helfers stated that he had not reviewed the appraisals prior to selecting Shannon for termination and his decision was based on his knowledge of the employees' skills and abilities. See id. at 128-29.
While a court must respect an employer's decision to choose among qualified candidates, it is well recognized that an employer's disregard or misjudgment of a plaintiff's job qualifications may undermine the credibility of an employer's stated justification for an employment decision. See Byrnie v. Town of Cromwell, Bd. of Education, 243 F.3d 93, 103 (2d Cir.2001); Fischbach v. D.C. Dep't of Corr., 86 F.3d 1180, 1183 (D.C.Cir.1996); see also Alexander v. Fulton County, Ga., 207 F.3d 1303, 1340 (11th Cir.), reh'g and reh'g in banc denied, 218 F.3d 749 (11th Cir.2000) (noting that "evidence showing an employer hired a less qualified applicant over the plaintiff may be probative of whether the employer's proffered reason for not promoting plaintiff was pretextual"). Clearly, the jury could infer from both the evidence in the record and its assessment of the credibility of the witnesses that Shannon was equal or perhaps more qualified than either Reneri or Mills. While this inference standing alone may not be enough to prove pretext, in combination with the other evidence discussed below, it certainly has probative value. See Byrnie, 243 F.3d at 103.
b. Fireman's Fund's False Statements to the New York State Division of Human Rights ("NYSDHR")
After being terminated Shannon filed a charge with the NYSDHR. In response to the charge, Fireman's Fund submitted a position statement to the NYSDHR. See Pl.Ex. 61. To summarize, Fireman's Fund stated that Shannon was terminated because
he didn't have experience in any of the three critical areas. [Shannon] did not have experience conducting training or audits; nor did he have experience underwriting real property.
See id. at 5. Fireman's Fund now admits that these reasons were not entirely accurate.
*291 During the trial, both Helfers and Uzzo testified that Shannon had experience underwriting real property. See Tr. at 100, 489-90. Helfers further admitted that any lack of experience in training and audits was not a factor in selecting Shannon for termination.[11]See id. at 91, 97. It is undisputed that Helfers met with Elizabeth Franklin, in-house counsel for Fireman's Fund and the drafter of the response, to discuss Shannon's claim. See id. at 94-95. Franklin provided Helfers with a draft of the letter prior to its submission to the NYSDHR, yet no corrections or suggestions were made. See id.
Numerous courts have stated that "a plaintiff may establish pretext and thereby successfully oppose summary judgment [or judgment as a matter of law] ... by demonstrat[ing] weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate, non-discriminatory reason for its action." Cruse v. G&J USA Publ'g, 96 F.Supp.2d 320, 329 (S.D.N.Y.2000); see EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir.1994); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 38-39 (2d Cir.1994); Ramos v. Marriott Int'l, Inc., 134 F.Supp.2d 328, 343 (S.D.N.Y.2001). Although Fireman's Fund argues that at most, the discrepancies in its explanations for Shannon' termination create a weak issue of fact as to whether the Fireman's Fund's proffered reason for termination was untrue, this evidence may be used by the jury to infer pretext. See Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 97-98 (2d Cir.1999) (although the Circuit ultimately held that the district court did not err in granting judgment as a matter of law, it recognized that varying justifications are generally enough to suggest pretext and "the job of reconciling [such variations] belongs to the factfinder and is not appropriate for resolution as a matter of law").
c. Simple Statistics[12]
It is well settled that a plaintiff alleging disparate treatment may introduce statistics as circumstantial evidence of discrimination. See, e.g., Stratton v. Dep't for the Aging, 132 F.3d 869, 877 (2d Cir.1997); Hollander v. American Cyanamid Co., 172 F.3d 192, 202 (2d Cir.), cert. denied, 528 U.S. 965, 120 S.Ct. 399, 145 L.Ed.2d 311 (1999); Hudson v. Int'l Bus. Mach. Corp., 620 F.2d 351, 355 (2d Cir. 1980); see also Sweeney v. Bd. of Trustees of Keene State Coll., 604 F.2d 106, 113 & n. 11 (1st Cir.1979) (statistics add color and may be helpful to an individual claim of discrimination). Because a disparate treatment claim looks at how an employee is treated compared to his similarly situated co-workers, "statistical analyses that compare coworkers who competed directly against each other to receive a benefit, here selection for retention, are appropriate."[13]Smith v. Xerox Corp., 196 F.3d 358, 370 (2d Cir.1999).
*292 Shannon introduced evidence that the five oldest underwriters in the Unit were let go: Joseph McKeefry, age sixty-three; Frederick Fisher, age sixty-three; Donna Campbell, age forty-nine; and William Shannon and Louis Elias, ages sixty-two and fifty-four, respectively. See Tr. at 67, 385, 400; Pl.Ex. 48. On the other hand, Reneri and Mills, the underwriters who were retained, were ages thirty-two and forty-four, respectively. While Fireman's Fund asserts that this simple statistical data has no probative value, if the jury determined that Shannon was in fact equal to or more qualified than either Reneri or Mills, the jury could further infer from these statistics that Fireman's Fund's proffered reason for termination was a pretext for unlawful discrimination. See Norville, 196 F.3d at 95 (finding that a "plaintiff may support an inference of race discrimination by demonstrating that similarly situated employees of a different race were treated more favorably."); Campbell v. Alliance Nat'l Inc., 107 F.Supp.2d 234, 250-51 (S.D.N.Y.2000) ("Plaintiff may ... establish pretext by demonstrating that similarly situated employees were treated differently than she was."); see also Stratton, 132 F.3d at 877 (upholding the introduction of simple statistics in a disparate treatment case where they were part of the overall proof and the jury was instructed not to give them any undue reliance).
d. The Staffing Analysis and "Future Potential" Criteria
The August 26, 1999 e-mail from Cocja to Helfers directed him to prepare a staffing analysis, which "should include [an explanation of each] employee's skills, performance approval, interviews, profile, [and] future potential." See Tr. at 55-59; Pl.Ex. 47. One day later, after the decision to terminate Shannon had already been made, Helfers completed his staffing analysis. See Pl.Ex. 48. As noted earlier, Helfers did not review Shannon's performance appraisals prior to selecting him for termination or conduct an interview. See Tr. at 128-29. According to Helfers, his decision was based solely on his knowledge of the employees' skills and abilities. See id.
"While [a court should] not second-guess an employer's hiring [or termination] standards, the reasons for its employment decision, including its alleged reliance on such standards, are subject to scrutiny under [the law], and `[d]epartures from procedural regularity,' for example, `can raise a question as to the good faith of the process where the departure may reasonably affect the decision.'" Stern v. Trustees of Columbia Univ. in the City of New York, 131 F.3d 305, 313 (2d Cir.1997) (quoting Zahorik v. Cornell Univ., 729 F.2d 85, 93 (2d Cir.1984)). Although Helfers was directed to consider Shannon's performance appraisals and interviews, he did not. The jury could infer that had he considered these materials his decision may have been different.
With respect to the decision to retain Mills, Helfers stated that "Stephanie has the greatest future potential with the organization to be redeployed in the field at some juncture." Pl.Ex. 48. At trial, Helfers testified that he could not remember Reneri ever expressing an interest in being redeployed in the field. See Tr. at 65. Further, while future job potential is something that a company might legitimately consider in an RIF decision, see Doan v. Seagate Technology, Inc., 82 F.3d 974, 978 (10th Cir.1996), the use of "future potential" as a criteria to be considered in *293 deciding which employees to retain in an RIF, in some circumstances, may be relied upon by the jury to infer pretext for unlawful discrimination. See Schanzer v. United Technologies Corp., 120 F.Supp.2d 200, 210-212 (D.Conn.2000) (finding that the criteria of "future potential" could be suggestive of age discrimination in light of the other evidence presented, such as statistical disparities and evidence tending to undermine the defendant's explanation of its actions).
Fireman's Fund relies primarily on the Seventh Circuit's decision in Thorn v. Sundstrand, 207 F.3d 383 (7th Cir.2000), for its position that use of "future potential" as a criteria in deciding who to terminate is both factually and legally insignificant. In Thorn, Judge Richard A. Posner observed that "[s]ince younger employees tend to be more mobile than older ones, there is no basis for an inference that employers interested in the long-term potential of an employee prefer young to old." Id. at 389. However, in Thorn, Judge Posner specifically noted that "without such an inference [plaintiff had] no case ...." See id. That is not the case here. As in Schanzer, Shannon has presented other evidence of pretextwhich in combination with Fireman's Fund's use of "future potential" as a criteria for the selection of employees for the RIF may be enough for the jury to infer a discriminatory motive. See Schanzer, 120 F.Supp.2d at 211 n. 3 (disagreeing with the premise that an employer's consideration of "longest-term potential" is "always an age neutral factor").
b. Totality of the Evidence
As noted in Reeves, when a court decides a motion for judgment as a matter of law it must "review all of the evidence in the record." Reeves, 530 U.S. at 150, 120 S.Ct. 2097. "A combination of factors, any of which judged on their own would be much less compelling, [may] provide sufficient evidence to allow a reasonable jury to conclude that [a defendant's] explanation for [the adverse employment action] was a pretext for impermissible discrimination." Byrnie, 243 F.3d at 102; see also Tolbert, 242 F.3d at 70 ("`An invidious discriminatory purpose may often be inferred from the totality of the relevant facts ....'") (quoting Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)). Based upon a review of all of the evidence, I cannot conclude that the jury's findings were the result of sheer surmise and conjecture or that fair minded persons could not have arrived at the same verdict. To the contrary, although the issue is close, the evidence was legally sufficient to sustain the jury's conclusion that Fireman's Fund's proffered reason for Shannon's termination was a pretext for unlawful discrimination. Accordingly, Fireman's Fund's motion for judgment as a matter of law is denied. See Reeves, 530 U.S. at 148, 120 S.Ct. 2097 (a "plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated," and is sufficient evidence to "sustain a jury's finding of liability"); see also Epstein, 139 F.Supp.2d 469, 476-77.
B. Motion for a New Trial
1. Legal Standard
Although a less stringent standard applies to motions for a new trial, a court may only grant such a motion if it is "convinced `that the jury has reached a "seriously erroneous result" or that the verdict is ... against the weight of the evidence.'" U.S. East Telecomms., Inc., v. U.S. West Communications Servs., 38 F.3d 1289, 1301 (2d Cir.1994) (quoting Mallis v. Bankers Trust Co., 717 F.2d 683, *294 691 (2d Cir.1983)); see also Purnell v. Lord, 952 F.2d 679, 686 (2d Cir.1992); Smith, 861 F.2d at 370; Katara v. D.E. Jones Commodities, Inc., 835 F.2d 966, 970 (2d Cir.1987). The Second Circuit has articulated the standard as follows:
The trial judge, exercising a mature judicial discretion, should view the verdict in the overall setting of the trial; consider the character of the evidence and the complexity or simplicity of the legal principles which the jury was bound to apply to the facts; and abstain from interfering with the verdict unless it is quite clear that the jury has reached a seriously erroneous result. The judge's duty is essentially to see that there is no miscarriage of justice. If convinced that there has been then it is [her] duty to set the verdict aside; otherwise not.
Bevevino v. Saydjari, 574 F.2d 676, 684 (2d Cir.1978) (quoting 6A J. Moore, Moore's Federal Practice, ¶ 59.08[5], at XX-XXX-XX-XXX (1973)). However, "unlike a judgment [as a matter of law], a new trial may be granted even if there is substantial evidence to support the jury's verdict." Song v. Ives Labs., Inc., 957 F.2d 1041, 1047 (2d Cir.1992). Nevertheless, "[w]here the resolution of the issues depend[s] on [an] assessment of the credibility of the witnesses, it is proper for the court to refrain from setting aside the verdict and granting a new trial." Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir.1992). "A court considering a Rule 59 motion for a new trial must bear in mind ... that the court should only grant [such] a motion when the jury's verdict is `egregious.'" DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 134 (2d Cir. 1998) (citation omitted).
2. Analysis
Fireman's Fund asserts that a new trial is warranted because (1) the jury's verdict is against the weight of the evidence; and (2) the Court erred in admitting certain statistical evidence. Each of these arguments is addressed in turn.
a. The Verdict Is Against the Weight of the Evidence
While the standard for a Rule 59 motion is less stringent than the standard for judgment as a matter of law, a motion for a new trial is "not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a `second bite at the apple' ...." Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir.1998) (citation omitted). Based on the evidence presented at trial, the jury was entitled to infer that Fireman's Fund's articulated reasons for termination were a pretext for unlawful discrimination. For the same reasons cited above, I do not find the jury's verdict to be seriously erroneous, a miscarriage of justice, or egregious. "While the Court need not necessarily weigh the evidence in a light most favorable to the non-moving party, disagreement with the verdict alone is insufficient to justify the ordering of a new trial." Muller v. Costello, 997 F.Supp. 299, 302 (N.D.N.Y.1998), aff'd, 187 F.3d 298 (2d Cir. 1999); see also Epstein, 139 F.Supp.2d at 478-79. Accordingly, Fireman's Fund's motion for a new trial on the grounds that the verdict is against the weight of the evidence is denied.
b. Shannon's Statistical Proffer
During the testimony of Rita Da Luz, Vice-President of Human Resources for the Commercial Insurance Division, Shannon's counsel introduced a calculation, over Fireman's Fund's objection, indicating that employees over the age of sixty were three times as likely to be let go as part of the RIF than those under age *295 sixty.[14]See Tr. at 409-15. Fireman's Fund contends that the admission of this calculation was an error and fatally tainted the verdict. See id. I disagree.
As Fireman's Fund correctly points out, to be probative of discrimination, statistics must compare the impact of a particular employment decision or practice on those within the protected group and those outside it. See, e.g., Criley v. Delta Air Lines, Inc., 119 F.3d 102, 105 (2d Cir.1997) (in order to show disparate impact under the ADEA plaintiff must introduce statistics showing a disparate impact on the entire protected group, i.e., workers aged 40 and over). A plaintiff is not allowed to skew the statistics in a manner designed to achieve a favorable result. See Hollander, 172 F.3d at 203; Lowe v. Commack Union Free Sch. Dist., 886 F.2d 1364, 1373 (2d Cir.1989).
Here, Shannon compared the impact of the RIF on those employees over the age of sixty to those under sixty. While this statistical proffer would clearly not be admissible under the ADEAwhich protects employees over the age of fortythe NYHRL and the City law, under which Shannon brought his claims, do not have an age forty cut-off. After conferring with counsel outside the presence of the jury, the Court allowed Fireman's Fund to rebut Shannon's calculation by introducing the relative non-effect of the RIF on employees over age forty, and immediately charged the jury with the following:
Now, ladies and gentleman of the jury, I just want to continue, so to speak, with the instruction I gave you maybe a half hour ago when Mr. Graff [Shannon's attorney] first put in some statistics. I said to you that this is not a disparate impact case, that this plaintiff is not raising a claim that there was a disparate impact on older people, whether it was over 40 or over 50, over 60, or anything else. But I allowed the proof that he offered on the issue of motive, that such evidence might be relevant on that issue. It was going to be up to you decide what the relevance of such evidence would be. But it solely goes to that question.
So I need to tell you that in the federal law, the cut-off for an age discrimination [case] is age 40. So people are defined as being under 40 or over 40. And if they are over 40, they are in a protected class. But in the state and city law and this case is brought only under state and city law and not federal lawthere is no age cut-off. There is no definition, whether it is over 30, over 40, over 50, or over 60, or over 70. So I have allowed now both sides to offer this statistical proof, with respect to what the company [Fireman's Fund] defined as the relevant group. The company says the relevant group is the 415 people who made up the marine unit. Plaintiff may disagree with that. You will hear from plaintiff during summation. But since the company believed that was the relevant group, it prepared its charts and tables using that group, and now both sides have been able to show you certain statistics that show certain impacts on certain age groups. And you will decide when you deliberate what relevance if any those numbers have.
Tr. at 471-72.
A new trial should not be granted "unless [the court] find[s] that the introduction of inadmissible evidence was a clear abuse of discretion and was so clearly *296 prejudicial to the outcome of the trial that [the court is] `convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.'" Luciano, 110 F.3d at 217 (quoting Hygh v. Jacobs, 961 F.2d 359, 365 (2d Cir.1992) (internal quotations and citation omitted)). "We measure prejudice by assessing the error in light of the record as a whole." Luciano, 110 F.3d at 217 (citation omitted). While the Court does not agree that Shannon's calculation was inadmissible, even if it was, in light of the immediate jury instruction and the other evidence in the record, its admission was not so clearly prejudicial as to fatally taint the verdict. Thus, Fireman's Fund's motion for a new trial on the grounds that the admission of Shannon's statistical evidence was in error is denied.
C. Remittitur
"If a district court finds that a verdict is excessive, it may order a new trial, a new trial limited to damages, or, under the practice of remittitur, may condition a denial of a motion for a new trial on the plaintiff's accepting damages in a reduced amount." Tingley Sys., Inc. v. Norse Sys., Inc., 49 F.3d 93, 96 (2d Cir. 1995) (citing Phelan v. Local 305 of the United Ass'n of Journeymen and Apprentices of the Plumbing & Pipefitting Indus., 973 F.2d 1050, 1064 (2d Cir.1992)); see also Kirsch, 148 F.3d at 165. A district court must apply New York law to evaluate whether awards in cases decided under New York law are excessive. See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 437-438, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996). Pursuant to N.Y. C.P.L.R. § 5501(c), a court should reduce an award when it "deviates materially" from reasonable compensation as measured by awards in similar cases. See N.Y. C.P.L.R. § 5501(c);[15]Gasperini, 518 U.S. at 425, 116 S.Ct. 2211. The "deviates materially" standard is less deferential to jury verdicts than the "shock the conscience" standard applied by the federal courts because "it does not permit a reviewing court to sustain a damage award that is out of line with other awards for similar injuries, even if the amount the jury awarded was not shocking to a court's conscience." Fowler v. New York Transit Auth., No. 96 Civ. 6796, 2001 WL 83228, at *10 (S.D.N.Y. Jan.31, 2001).
Upon his termination Shannon was in a state of shock. See Tr. at 192. Shannon testified that since his termination he has experienced anxiety, stress and depression. See id. His anxiety and depression was exacerbated by his subsequent unsuccessful job search, which he found humiliating and caused him to lose self-esteem. See id. at 192-93. Shannon further testified that his firing has caused him to lose interest in sex and that he has been unable to have sex. See id. at 194. His interest in socializing has diminished, he is tired, irritable, and has had trouble sleeping. See id. at 195-98. Shannon's wife corroborated most of this testimony, stating that Shannon is quieter than he used to be, experiences sleeplessness, and is more withdrawn. See id. at 309-12. As a result of these symptoms, Shannon sought the *297 help of his treating physician, Dr. Eugene Gilbaro, in November 1999.[16]See id. at 192.
Dr. Gilbaro prescribed Ativan, an anti-anxiety medication. See id. at 272. Shannon told Dr. Gilbaro that his symptoms of anxiety and depression were related to his job loss. See id. at 273. Dr. Gilbaro never referred Shannon to either a psychiatrist or psychologist from the time of termination up until trial, although he saw him approximately six times. See id. at 278, 280-81.
In determining whether a jury award is excessive, the district court should review awards in similar cases. See Scala v. Moore McCormack Lines, Inc., 985 F.2d 680, 684 (2d Cir.1993); see also Fowler, 2001 WL 83228, at *12; Tanzini v. Marine Midland Bank, N.A., 978 F.Supp. 70, 77 (N.D.N.Y.1997). Fireman's Fund asserts that discrimination cases involving more substantial evidence of emotional suffering than Shannon has presented have resulted in damage awards well below the $80,000.00 awarded in this case. Therefore, Fireman's Fund requests that the award be remitted to $25,000.00.
Courts performing reviews of jury verdicts in discrimination cases have noted that with "so-called `garden variety' mental anguish claims, ... awards hover in the range of $5,000 to $30,000." Bick v. The City of New York, No. 95 Civ. 8781, 1998 WL 190283, at *25 (S.D.N.Y. Apr.21, 1998); see also Fowler, 2001 WL 83228, at *13.[17] In such cases, "the evidence of mental anguish suffered is generally limited to the testimony of the plaintiff, is described in vague or conclusory terms, without presenting evidence of the duration, severity or consequences of the condition, and there is minimal or no evidence of medical treatment." See Fowler, 2001 WL 83228, at *13; see also Epstein, 139 F.Supp.2d at 479-80 ("A `garden variety' emotional distress claim is one that did not require medical treatment.").
Examples of cases where courts have remitted excessive jury awards in "garden variety" emotional distress claims under the NYHRL include: Fowler, 2001 WL 83228, at *11-*15 (the court remitted the jury's award of $50,000.00 to $25,000.00, where plaintiff complained of headaches, tension, emotional stress, anxiety and vomiting to her treating physician, plaintiff's physician prescribed Ativan to help alleviate her symptoms and recommended her for a psychiatric consultation, and plaintiff's physician relied on her representations regarding her condition and the source of her distress); Kim v. Dial Serv. Int'l, Inc., No. 96 Civ. 3327, 1997 WL 458783, at *12-*14 (S.D.N.Y. Aug.11, 1997), aff'd, 159 F.3d 1347, 1998 WL 514297 (2d Cir.1998) (reducing $300,000.00 award to $25,000.00 after applying "shock the conscience" standard where the plaintiff testified and his wife corroborated that he felt "gloomy," had lost weight, drank more, lost interest in socializing, took sedatives, and had trouble sleeping); McIntosh v. Irving Trust Co., 887 F.Supp. 662, 664-65, 668-69 (S.D.N.Y.1995) (remitting $219,428.00 compensatory damage award to $20,000.00 where plaintiff testified that he felt humiliated, shocked, and angry, suffered weakness in his legs, and experienced pains in his stomach and chest, but *298 where plaintiff "did not testify in any detail with respect to the magnitude or the duration of any mental distress" and "there was no evidence that the plaintiff sought any medical or psychological help except for one visit to a doctor while he was still employed"); Borja-Fierro v. Girozentrale Vienna Bank, No. 91 Civ. 8743, 1994 WL 240360, at *3-*4 (S.D.N.Y. May 27, 1994) (reducing a damage award for mental anguish suffered in connection with a retaliatory discharge from $160,000.00 to $15,000.00 where plaintiff went to a psychologist in part because of the discrimination by the defendant and was the only witness to testify to his mental anguish the court characterized the plaintiff's testimony as "brief" and "not particularly strong").
Although this case is comparable to those just cited, evidence that a plaintiff sought medical or psychiatric treatment generally entitles him to greater damages for mental anguish and emotional distress. See Distefano v. Long Island Rail Road Co., No. 96 Civ. 5487, 1999 WL 1704784, at *7 (E.D.N.Y. Dec.21, 1999); Bick, 1998 WL 190283, at *25. Recently, in Greenville Bd. of Fire Comm'rs v. State Div. of Human Rights, 277 A.D.2d 314, 716 N.Y.2d 685, 686 (2d Dep't 2000), the court reduced a compensatory damage award related to a sex discrimination claim from $100,000.00 to $50,000.00 where the plaintiff testified that she suffered mental anguish resulting in physical manifestations, such as irritable bowel syndrome and amenorrhea, testimony that was corroborated by her treating physician. See id. There is no evidence that Shannon's distress resulted in any such physical manifestations. Because an award should not "deviate materially" from awards in similar cases, Fireman's Fund's motion for a remittitur of the compensatory damages award is granted and the award is hereby reduced to $40,000.00. If Shannon does not agree to this remittitur in writing by June 25, 2001, a new trial on compensatory damages will be granted.
D. Attorneys' Fees and Costs
Although the NYHRL does not contain a fee shifting provision, section 8-502(f) of the N.Y.C. Admin. Code provides:
In any civil action commenced pursuant to this section, the court, in its discretion, may award the prevailing party costs and reasonable attorney's fees.
Shannon, as the prevailing party, seeks attorneys' fees in the amount of $356,871.44 and reimbursement for costs totaling $16,380.72. Fireman's Fund argues that Shannon's request is unreasonable and should be reduced.
Both the evaluation of reasonable attorneys' fees and the "cutting of fees claimed [to be] proper" lie within the sound discretion of the court. See McIntyre v. Manhattan Ford, Lincoln-Mercury, Inc., 176 Misc.2d 325, 672 N.Y.S.2d 230, 231-32 (N.Y.Sup.1997) (citations omitted); see also Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (the district court is afforded broad discretion in assessing a reasonable fee award based on the circumstances of the case). The standard used in determining fee awards under section 8-502(f) of the N.Y.C. Admin. Code is the same as that used for fee claims brought under similar federal statutes. See McIntyre, 672 N.Y.S.2d at 231-35 (applying the same principles employed in federal civil rights cases to a fee claim under the City law). Accordingly, I begin with the calculation of the "lodestar" amount.[18]
*299 1. Determination of the Lodestar
Shannon is entitled to the lodestar amount, which is the product of multiplying a reasonable hourly rate times the number of hours reasonably expended by the prevailing attorneys. See Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir.1999); Kirsch, 148 F.3d at 172; Gierlinger v. Gleason, 160 F.3d 858, 876 (2d Cir.1998); Greenbaum v. Svenska Handelsbanken, N.Y., 998 F.Supp. 301, 303 (S.D.N.Y.1998). The party seeking attorneys' fees bears the burden of demonstrating that the claimed rate and number of hours are reasonable. See Blum v. Stenson, 465 U.S. 886, 897, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) ("When ... the applicant for a fee has carried his burden of showing that the claimed rate and number of hours are reasonable, the resulting product is presumed to be the reasonable fee ...."); Pascuiti v. New York Yankees, 108 F.Supp.2d 258, 266 (S.D.N.Y.2000); see also Hensley, 461 U.S. at 433, 103 S.Ct. 1933 ("The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed.").
a. Reasonable Hourly Rates
In order to be reasonable, "[t]he hourly rate[s] should be `in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.'" Greenbaum, 998 F.Supp. at 303 (quoting Blum, 465 U.S. at 896 n. 11, 104 S.Ct. 1541). Shannon has proposed lodestar rates of $315/hr for Michael Graff, lead counsel, and $215/hr for Michael Siskin, co-counsel.[19] Defendant asserts that rates of $225/hr and $175/hr are more appropriate. The rates for each attorney are discussed in turn.
(1) Michael Graff
Graff has been in private practice, concentrating mostly in civil litigation, for the past forty years. See Affidavit of Michael P. Graff in Support of Motion for an Award of Attorneys' Fees and Expenses ("Graff Aff.") ¶ 4. For four of those years he litigated labor law matters exclusively, and for the last two years his practice has focused almost exclusively on employment discrimination law. See id. ¶¶ 4, 5. His law firm, Kurzman Karelsen & Frank, LLP ("KKF"), is a small to medium size firm.[20] In addition to employment discrimination, KKF's litigation practice includes corporate, commercial and real estate disputes, probate matters, personal injury and medical malpractice. See id. ¶ 6. Graff's hourly billing rate for clients not retained on a contingent basis is currently $315.00. See id. ¶ 8.
This Court recently found that "the range of fees in this District for `seasoned civil rights litigators' particularly those in small firms, is between $200/hr and 300/hr." Pascuiti, 108 F.Supp.2d at 266; see also Gavin-Mouklas v. Info. Builders, Inc., No. 97 Civ. 3085, 1999 WL 728636, at *5-*6 (S.D.N.Y. Sep.17, 1999) (noting that "the acceptable range seems to be between *300 $200 and $300" for "partners at small law firms in New York City"); Greenbaum, 998 F.Supp. at 304 ("Review of recent attorneys' fee awards in the Southern District of New York reveals a preponderance of awards at $250/hr for seasoned civil rights litigators."); Anderson v. City of New York, 132 F.Supp.2d 239, 243 (S.D.N.Y.2001) (awarding lead counsel with six years civil rights' litigation experience $250/hr). As one court noted, "the rare case discussing an award of even $300/hr involves awards to unusually esteemed and experienced litigators." Greenbaum, 998 F.Supp. at 304. Although Graff's experience as a civil rights litigator is limited, he does have forty years of litigation experience. Taking into account the recent decisions in this District as well as my own experience, I find a rate of $280/hr to be reasonable.
(2) Michael Siskin[21]
Siskin, a litigation associate with KKF, graduated from the University of Minnesota Law School in 1992. See Graff Aff. ¶ 8. He was admitted to the California State Bar in 1992, and the New York and New Jersey State Bars in 1998. See id. Siskin has devoted most of his practice to commercial litigation. See id. For the past two years he has spent a majority of his time litigating age discrimination cases. See id.
Recently, in Knoeffler v. Town of Mamakating, 126 F.Supp.2d 305, 312-13 (S.D.N.Y.2000), the court found that $200/hr was a reasonable rate for an attorney with seven years experience in civil rights litigation. In another case, Sowemimo v. D.A.O.R. Sec., Inc., No. 97 Civ. 1083, 2000 WL 890229, *3-*4 (S.D.N.Y. June 30, 2000), the court determined that $200/hr was reasonable for an attorney with seven years experience practicing law in Nigeria, and over six years of experience in the United States devoted to civil rights litigation. Although Siskin was admitted to the California State Bar in 1992, he has only been practicing in New York since 1998. According to Graff's affidavit, for the past two years Siskin's practice has been devoted to age discrimination litigation, yet the affidavit makes no mention of any specific cases in which Siskin has been involved. While Siskin's representation in this matter was more than adequate, in light of his modest experience as a civil rights litigator, a rate of $180/hr is reasonable.
b. Reasonable Hours
Shannon's fee application seeks reimbursement for the 647.10 and 372.80 hours Graff and Siskin spent working on this case, respectively. As required by law, Shannon submitted contemporaneous time records for all hours billed. See Hensley, 461 U.S. at 433, 103 S.Ct. 1933. Fireman's Fund argues that these hours are excessive, redundant and vague and should be reduced.
A court should not reimburse for "excessive, redundant or otherwise unnecessary" hours. Id. at 434-35, 103 S.Ct. 1933. If a court determines that the hours claimed are excessive, redundant, or otherwise unnecessary, it "has [the] discretion simply to deduct a reasonable percentage of the number of hours claimed `as a practical means of trimming fat from a fee application.'" Kirsch, 148 F.3d at 173 (quoting New York Assoc. for Retarded Children v. Carey, 711 F.2d 1136, 1146 (2d Cir.1983)); see also Sowemimo, 2000 WL *301 890229, at *4 (reducing the number of hours by 20% to "[t]o insure that defendants are not penalized by plaintiff's counsel's inadequate recordkeeping or the time plaintiff's counsel wasted on extraneous tasks."); Skold v. American Int'l Group, Inc., No. 96 Civ. 7137, 1999 WL 405539, at *10 (S.D.N.Y. June 18, 1999), aff'd, 205 F.3d 1324, 2000 WL 232031 (2d Cir.2000) (reducing the number of hours by 10% to account for vague entries). Based on my review of the materials, my experience, and my supervision of this action, an across-the-board reduction is appropriate here.
First, the 1019.90 hours expended by Shannon's counsel in litigating this case is clearly excessive. Attorneys should not be reimbursed for inefficiencies, duplication or excessive submissions. See Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir.1994) ("The task of determining a fair fee requires a conscientious and detailed inquiry into the validity of the representations that a certain number of hours were usefully and reasonably expended."). Examples of inefficiencies and excessive litigation can be found throughout the time sheets, one example being over thirty hours of preparation for a pre-motion conference held on August 23, 2000.[22] Other examples of excessive entries include:
Spending close to twenty hours preparing for a half-day deposition of DaLuz
Spending numerous hours drafting and serving a second set of interrogatories and requests to admit that were, for the most part, duplicative and unnecessary
Excessive hours spent preparing and reviewing the jury charge
Second, many of the entries are vague and do not permit a thorough evaluation. For example, the time sheets are replete with references to counsel's "trial preparation", "witness preparation", "legal research", and "office conferences" most of which do not indicate the nature or subject matter of the work being performed. These types of entries do not enable a court to determine whether the hours are duplicative or excessive and should not be allowed. See Skold, 1999 WL 405539, at *10; see also Dailey v. Societe Generale, 915 F.Supp. 1315, 1328 (S.D.N.Y.1996), aff'd in part, vacated in part on other grounds, 108 F.3d 451 (2d Cir.1997).
Third, the billing records for Graff, a senior partner at KKF, show numerous entries for tasks more appropriately handled by younger associates. See Plummer v. Chemical Bank, 592 F.Supp. 1168, 1172 (S.D.N.Y.1984) (reducing fee request by one-half because of numerous inefficiencies, including "$175 per hour partners doing work easily and ordinarily performed by junior associates"); Beech Cinema, Inc. v. Twentieth Century Fox Film Corp., 480 F.Supp. 1195, 1197 (S.D.N.Y. 1979), aff'd, 622 F.2d 1106 (2d Cir.1980) ("Many of the functions performed by the partners could have been satisfactorily accomplished by associates, with a considerable saving in fees."). For example, Graff's entries include time spent drafting the Complaint, reviewing and drafting discovery requests, preparing statements of fact, legal research for an anticipated summary judgment motion, legal research on the use of statistics in RIF cases, preparation of the pre-trial order, and legal research relating *302 to the motions in limine as well as the fee application. While the Court recognizes that in some situations a senior attorney may not have the capacity to delegate tasks to younger associates, that was not a problem here.
To insure that Fireman's Fund is not penalized by Shannon's inefficiencies and excessive billing, a 35% across-the-board reduction is appropriate.
c. Adjustments to the Lodestar
Once the lodestar amount is determined, it may be modified based on equitable "considerations that may lead the district court to adjust the fee upward or downward, including the most important factor of the `results obtained.'" Hensley, 461 U.S. at 434, 103 S.Ct. 1933 (noting that most "factors usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate."). Shannon seeks an upward adjustment of 25% on the basis of the results obtained, the contingent nature of the representation, and the undesirability of the case. In turn, Fireman's Fund asserts that the lodestar should be adjusted downward by 15% to account for time spent by plaintiff's counsel on unrelated claims that were abandoned before trial and another 20% due to the limited success achieved by Shannon overall.
(1) Fee Enhancement
Shannon argues that the risk of recovering nothing warrants a fee enhancement. Fireman's Fund asserts that this argument was explicitly rejected by the Supreme Court in City of Burlington v. Dague, 505 U.S. 557, 566, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992). While Shannon does not dispute the holding in Burlington, he argues that Burlington does not apply to fee applications brought pursuant to the City law. However, whether an enhancement for contingency fee cases is available under the City law need not be decided here. "Fee enhancement is awarded only in exceptional cases, and is done so in light of the difficulty of the case or the excellence of the result achieved." Greenbaum, 998 F.Supp. at 306 (citing Hensley, 461 U.S. at 435, 103 S.Ct. 1933). While the jury returned a verdict in Shannon's favor on his disparate treatment claim, an overall fee enhancement is not warranted. In light of the early abandonment of Shannon's other claims and the relatively modest award of the jury, plaintiff's counsel has been fully compensated by the amount of fees awarded today.[23]
(2) Fee Reduction for Unsuccessful Claims
In addition to asserting a disparate treatment claim, Shannon's Complaint, originally filed in state court, alleged claims of disparate impact, disability discrimination, and wrongful discharge in violation of Section 510 of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001, et seq. Following the pre-motion conference held on August 23, 2000, at the Court's suggestion, Shannon dropped all of his claims except disparate treatment.
Besides excluding excessive, redundant or otherwise unnecessary hours, a court should also disregard "hours dedicated to severable unsuccessful claims." Quaratino, 166 F.3d at 425. On this issue, the Supreme Court has stated:
In some cases a plaintiff may present in one lawsuit distinctly different claims for *303 relief that are based on different facts and legal theories. In such a suit, even where the claims are brought against the same defendants ... counsel's work on one claim will be unrelated to his work on another claim. Accordingly, work on an unsuccessful claim cannot be deemed to have been expended in pursuit of the ultimate result achieved. The congressional intent to limit awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim.
Hensley, 461 U.S. at 434-35, 103 S.Ct. 1933 (internal quotations and citations omitted). Fees may be awarded for unsuccessful claims when they are "inextricably intertwined" and "involve a common core of facts or are based on related legal theories." Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1183 (2d Cir.1996). Fireman's Fund argues that the claims dropped by Shannon were not "inextricably intertwined" with his prevailing claim of disparate treatment. Accordingly, Fireman's Fund asserts that the time spent on this case prior to the abandonment of these claims should be reduced by 15%.
The commonality of the disparate impact and disparate treatment claims is plain. No decrease in the lodestar is required based on the overlap in these claims. However, a reduction of 10% is appropriate to reflect the abandonment of the disability discrimination and ERISA claims, both of which are separate and distinct from Shannon's disparate treatment claim.[24]
With respect to Fireman's Fund request for a 20% reduction for limited success overall, Fireman's Fund readily admits that the primary theory advanced by Shannon was disparate treatment age discrimination and all of the trial preparation and trial time was devoted to that claim. Further, although the amount of damages awarded to Shannon was far below what he sought, there is no requirement that a fee be proportionate to the amount of damages awarded. See Cowan v. Prudential Ins. Co. of America, 935 F.2d 522, 524-26 (2d Cir.1991); Knoeffler, 126 F.Supp.2d at 319. Accordingly, the lodestar amount will not be further reduced.
d. Lodestar Total
In accordance with these rulings, the lodestar is recalculated as follows:
I. Total # of Hours Claimed
Graff - 647.10
Siskin - 372.80
II. 35% Reduction for Redundant, Vague and
Excessive Billing
Graff - 647.10 × .35 = 226.485
Siskin - 372.80% 2A .35 = 130.48
III. 10% Reduction for Unrelated Claims
Graff[25] - 168.805[26] × .10 = 16.805
IV. Total Compensable Hours
Graff
647.10 (total hours claimed)
- 226.485 (35% reduction)
- 16.805 (10% reduction)
__________
403.81
Siskin
372.80 (total hours claimed)
- 130.48 (35% reduction)
__________
242.32
*304
V. Adjusted Lodestar Calculation
Graff
403.81 (compensable hours)
× $ 280.00 (reasonable hourly rate)
__________
$ 113,066.80
Siskin
242.32 (compensable hours)
× $ 180.00 (reasonable hourly rate)
__________
$ 43,617.60
IV. Total Lodestar Fee
$ 113,066.80 (Graff)
$ 43,617.60 (Siskin)
__________
$ 156,684.40
----------
2. Costs
Shannon seeks an award of costs totaling $16,380.72. The Second Circuit has held that an award of costs should include "those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients." LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir.1998). Thus, costs include not only those costs ordinarily taxable pursuant to 28 U.S.C. § 1920, as implemented by Rule 54(d)(1) of the Federal Rules of Civil Procedure and Local Rule 54.1, but also those "reasonable costs that are ordinarily charged to clients in the legal marketplace." Anderson, 132 F.Supp.2d at 245; see also Kuzma v. Internal Revenue Serv., 821 F.2d 930, 933 (2d Cir.1987). With this principle in mind, I now address some of the contested cost items.
a. Deposition Transcripts
Shannon seeks reimbursement for the $4,827.05 he spent on deposition transcripts. Fireman's Fund asserts that Local Rule 54.1(c)(2) permits recovery only for those depositions used at trial. However, Local Rule 54.1(c)(2) does not expressly limit recovery of costs for deposition transcripts to those used at trial. To the contrary, "i[t] provides that certain depositions those used at trial or on dispositive substantive motions are taxable, while certain others those taken `solely for discovery' are not." Anderson, 132 F.Supp.2d at 246 (citation omitted). Furthermore, "28 U.S.C. § 1920 provides that the cost of a `transcript necessarily obtained for use in the case' may be taxed." Id. at 246 (quoting United States Football League v. National Football League, 704 F.Supp. 474, 487 (S.D.N.Y.1989)). Thus, in order to be taxed as costs, "deposition transcripts need not be introduced into evidence at trial ...; it suffices that at the time the deposition was taken it was reasonably expected that the transcript would be used for trial preparation." Anderson, 132 F.Supp.2d at 246 (internal quotations and citation omitted). Accordingly, "the proper inquiry is whether, at the time the deposition was taken, it appeared to be reasonably necessary." Id. (internal quotations and citation omitted).
The only person deposed that did not testify at trial was Jennifer Loucks, an employee at Fireman's Fund, whose deposition related primarily to issues associated with the ERISA claim. Therefore, the costs relating to her deposition are excluded. In addition, Shannon's deposition, the cost of which was covered by Fireman's Fund per agreement between the parties, is also excluded.[27]
b. Expert Witness Fee
Shannon also seeks reimbursement for costs relating to Dr. Gilbaro's deposition and appearance at trial totaling $2,900.00. As Fireman's Fund correctly notes, I ruled *305 prior to trial that Dr. Gilbaro was Shannon's treating physician, not an expert witness. As such, Shannon's request for fees to Dr. Gilbaro are excluded.
c. Westlaw Computer Charges
It is well established that "computer research is merely a substitute for an attorney's time that is compensable under an application for attorneys' fees and is not a separably taxable cost." United States v. Merritt-Meridian Constr. Corp., 95 F.3d 153, 173 (2d Cir.1996). In lieu of the sizable award of attorneys' fees already granted, an award for such expenses would be duplicative and inappropriate. See Marisol A. v. Giuliani, 111 F.Supp.2d 381, 402 (S.D.N.Y.2000) (deducting costs for computerized research from expense request); see also Scanlon v. Kessler, 23 F.Supp.2d 413, 418 (S.D.N.Y.1998); Tanzini, 978 F.Supp. at 85.
d. Other Costs
Additional costs sought by Shannon include photocopying, filing fees, Federal Express, trial exhibits, and secretarial overtime. All of these costs, with the exception of those for secretarial overtime, see O'Grady v. Mohawk Finishing Prods., Inc., No. 96-CV-1945, 1999 WL 30988, at *8 (N.D.N.Y. Jan. 15, 1999), are "reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients." LeBlanc-Sternberg, 143 F.3d at 763 (internal quotations and citation omitted). Accordingly, these costs are compensable.
e. Total Costs
In sum, Shannon is entitled to costs in the amount of $8,205.12.
III. CONCLUSION
For the reasons set forth above Fireman's Fund's motions for judgment as a matter of law and for a new trial are denied. Fireman's Fund's motion for a remittitur of the jury award is granted and the award is hereby reduced to $40,000.00. Shannon's motion for attorneys' fees and costs is granted in the amount of $164,889.52.
Further, Shannon is directed to notify this Court, in writing, by June 25, 2001, whether he accepts the remittitur. In the event Shannon does not accept, a new trial on compensatory damages will commence on a date to be set by the Court. If Shannon does accept the remittitur, an amended judgment will be entered in accordance with this Opinion.
SO ORDERED.
NOTES
[1] Jurisdiction is based on diversity of citizenship pursuant to 28 U.S.C. § 1332.
[2] References to the trial transcript ("Tr.") are made throughout this Opinion.
[3] Remittitur "is the process by which a court compels a plaintiff to choose between reduction of an excessive verdict and a new trial." Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45, 49 (2d Cir.1984); see also Kirsch v. Fleet St., Ltd., 148 F.3d 149, 165 (2d Cir. 1998).
[4] Edward Helfers is currently the Vice-President and Underwriting Director for the Inland/Marine Property Unit. See Tr. at 626. Lisa Uzzo is the Assistant Vice President for the Inland/Marine Property Unit. See id. at 475-76.
[5] Miller was President of McGee prior to the merger.
[6] Although there are differences between the NYHRL, the City law, and the federal Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., age discrimination suits brought under the NYHRL and the City law are subject to the same analysis as claims brought under the ADEA. See Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir.2001); see also Lightfoot v. Union Carbide Corp., 110 F.3d 898, 913 (2d Cir.1997).
[7] Rule 50 requires that a party move for judgment as a matter of law prior to the submission of the case to the jury. See Fed.R.Civ.P. 50(a)(2). If the motion is denied, it may be renewed within ten days after the entry of judgment. See Fed.R.Civ.P. 50(b). Fireman's Fund complied with these requirements and therefore the motion is properly filed.
[8] A plaintiff's burden of establishing a prima facie case is de minimis. See Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203-04 (2d Cir. 1995). "To establish a prima facie case of age discrimination, a plaintiff must show four things: (1) he is a member of the protected class; (2) he is qualified for his position; (3) he has suffered an adverse employment action; and (4) the circumstances surrounding that action give rise to an inference of age discrimination." Abdu-Brisson, 239 F.3d at 466-67 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)).
[9] Although the Schlumberger account was coded as an inland policy, it contained property risks as well. See Tr. at 307-08.
[10] Reneri testified that Shannon was performing the same duties with respect to inland and property related policies as the other underwriters in the Unit. See Tr. at 376-77.
[11] In fact, although Fireman's Fund's response states that both Reneri and Mills conducted field audits, they each conducted only one audit. See Tr. at 101. Helfers further testified that either Shannon or Elias, had they remained employed, would have been in line to conduct the next audit. See id. at 101-02.
[12] During the trial Shannon also presented evidence showing the impact of the RIF on those employees over the age of sixty. See Tr. at 411-415. Fireman's Fund asserts that it was an error for the Court to allow such statistics and, accordingly, a new trial is warranted. Fireman's Fund's contention is discussed in section II.B.2.b, infra.
[13] In order for employees to be "similarly situated," they "must have been subject to the same standards governing performance evaluation and discipline, and must have engaged in conduct similar to the plaintiff's ...." Norville, 196 F.3d at 96 (internal quotations and citation omitted); see also Bennett v. Watson Wyatt & Co., 136 F.Supp.2d 236, 250 (S.D.N.Y.2001). Fireman's Fund does not argue that the underwriters in the Unit were not "similarly situated" to Shannon.
[14] The 415 employee population used for this calculation was a subset of marine employees relied upon by Fireman's Fund in doing its own impact analysis. See Tr. at 407; Pl.Ex. 69.
[15] N.Y. C.P.L.R. § 5501(c) provides in relevant part:
In reviewing a money judgment ... in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.
Id. Although section 5501(c) is directed to the appellate divisions, it applies to trial courts as well. See Gasperini, 518 U.S. at 425, 116 S.Ct. 2211.
[16] Shannon has heart disease and was hospitalized for congestive heart failure early in 1998. See Tr. at 268-69. At or about that time Dr. Gilbaro, an internist with a specialty in pulmonary medicine and critical care, became Shannon's treating physician. See id.
[17] Because of inflation, an amount that may have been excessive five to ten years ago may be reasonable today. See Luciano v. Olsten Corp., 912 F.Supp. 663, 673 (E.D.N.Y.1996).
[18] Both parties agree that the lodestar calculation is the proper measure by which to evaluate Shannon's request for attorneys' fees.
[19] Shannon's fee application also includes nominal amounts of time for Peter Goodman and Joseph Seminara (partners in Graff's firm), Joanne Lehu and Michael Peterson (associates), and William Hershkowitz (paralegal). In light of the extraordinary amount sought by Shannon, the approximately seven hours spent by these individuals will not be considered. See Rodriguez v. McLoughlin, 84 F.Supp.2d 417, 424 (S.D.N.Y.1999) (finding a request for fees by attorneys who spent an hour or less working on a case "unreasonable, as it is unlikely that counsel could have made a meaningful contribution to the case in such a brief period of time.").
[20] KKF is a twenty-four lawyer firm. See Reply Brief in Support of Plaintiff's Application for an Award of Reasonable Attorneys' Fees and Costs at 7 n. 10.
[21] Although Siskin did not submit an affidavit attesting to his experience, Graff, as senior partner at KKF and lead counsel, testified to Siskin's experience and activities related to this case. See Graff Aff. ¶ 8.
[22] This Court's rules require a party to submit a three page letter explaining the basis for a proposed motion for summary judgment and further require that the adversary respond in a similar fashion. Shannon's response to Fireman's Fund's letter was ten pages long three times the page limit mandated by the Court's rules.
[23] Shannon's argument that an enhancement is warranted because of the undesirability of this case is unavailing. The record does not indicate that Shannon had any trouble obtaining an attorney.
[24] The 10% reduction will only be applied to hours spent prior to the abandonment of those claims.
[25] Siskin did not spend any time on the unrelated claims.
[26] This figure was reached by (1) calculating the total hours billed prior to the abandonment of the other claims, which equaled 259.7, and (2) multiplying this number by .65 to account for the 35% reduction due to excessive, redundant and vague billing.
[27] The only costs associated with Shannon's deposition included in the fee application relate to a disc and a condensed transcript.
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251 F.Supp.2d 138 (2003)
FRESH KIST PRODUCE, LLC, Plaintiff,
v.
CHOI CORPORATION, INC., d/b/a, Washington Wholesale Produce Company, et al., Defendants.
Civil Action No. 01-1834(RMU).
United States District Court, District of Columbia.
March 10, 2003.
*139 John Philip Van Beek, Young, Goldman & Van Beek, Alexandria, VA, Michael J. Keaton, David Allen Adelman, Keaton & Associates, Glen Ellyn, IL, for plaintiff.
Mary Jean Fassett, McCarron & Diess, Washington, DC, for defendant, J.C. Watson Company, Inc.
Paul Leonard Pascal, Pascal & Weiss, P.C., Washington, DC, for claimants.
Dimitri Peter Mallios, Margolius, Mallios, Davis, Rider & Tomar, L.L.P., Washington, DC, for claimant, Pete Pappas & Sons, Inc.
MEMORANDUM OPINION
URBINA, District Judge.
GRANTING THE PLAINTIFF'S MOTION TO AMEND THE COURT'S JUDGMENT
I. INTRODUCTION
Plaintiff Fresh Kist Produce ("Fresh Kist"), a seller of perishable produce, brings this motion to collect pre-judgment interest from defendant J.C. Watson ("JCW"), also a seller of perishable produce. Fresh Kist asks the court to amend its July 31, 2002 Memorandum Opinion by adding to its judgment the requirement that JCW pay pre-judgment interest on the disgorged funds. The Memorandum Opinion granted in part Fresh Kist's motion for summary judgment and required JCW to disgorge certain funds. For the reasons that follow, the court grants the plaintiffs motion to modify the judgment and require JCW to pay pre-judgment interest.
II. BACKGROUND[1]
Both Fresh Kist and JCW are produce sellers falling within the provisions of the Perishable Agricultural Commodities Act ("PACA"), 7 U.S.C. § 499a et seq. PACA requires produce buyers to pay proceeds from sales into floating trusts to protect produce sellers when produce buyers default on payment. Pursuant to PACA, if a produce buyer becomes insolvent and is unable to pay its sellers for their perishable goods, the sellers may collect a pro rata payment from the PACA trust, preempting other creditors' claims.
Produce seller Fresh Kist brought the instant case to recover PACA trust funds that produce seller JCW obtained by filing an earlier case, C.A. No. 01-1225 (D.D.C. filed on June 5, 2001), against Washington Wholesale Produce Company ("WWP"), a buyer that bought produce from both Fresh Kist and JCW. The facts of the instant case are intertwined with those of the earlier case (C.A. No. 01-1225). In the earlier case, produce seller JCW asserted that produce buyer WWP owed it $70,946.90 for unpaid invoices for perishable produce commodities. JCW's Compl. (C.A. No. 01-1225). In its June 5, 2001 complaint, JCW plead that WWP was insolvent. Id. ¶ 19. WWP paid a total of $59,189.40 to JCW pursuant to a partial settlement and the Consent Order compelling this payment. Consent Order dated Aug. 10, 2001 (C.A. No. 01-1225); Mem. Op. dated July 31, 2002 at 3.
*140 On August 28, 2001, Fresh Kist filed, in the instant case, a complaint and a motion for a temporary restraining order and an order establishing a non-party PACA claims procedure. The court issued a temporary restraining order freezing WWP's PACA trust funds and requiring WWP to pay $11,757.50, the amount still owed to JCW pursuant to the Consent Order in C.A. No. 01-1225, into the court's registry. Order Granting Motion for T.R.O. dated Aug. 29, 2001. In its motion for summary judgment, Fresh Kist argued that JCW violated applicable laws by taking WWP's PACA trust funds once it knew WWP was insolvent. PL's Mot. for Summ. J. Ruling on Fresh Kist's and JCWs cross-motions for summary judgment, this court held, inter alia, that (1) Fresh Kist is a qualified PACA trust beneficiary, (2) JCW breached and dissipated the PACA trust, (3) JCW did not enhance the value of the trust, and (4) JCW must return $59,189.40 (the funds JCW had demanded from WWP in violation of PACA) to the PACA trust. Mem. Op. dated July 31, 2002 at 5,18.
In the instant motion, Fresh Kist asks the court to amend its judgment by ordering JCW to pay pre-judgment interest on the disgorgement amountthe $59,189.40 it accepted from WWP in violation of PACA. Pl.'s Mot. to Amend Summ. J. ¶ 7. The plaintiff argues that the interest is needed to compensate the PACA trust beneficiaries for the interest that would have accrued to them had WWP promptly paid the money owed to them pursuant to the provisions governing the PACA trust. Id. Fresh Kist argues that the court should award pre-judgment interest calculated from June 5, 2001 (the date of JCW's complaint alleging that WWP was insolvent) through July 31, 2002 (the date of the court's Memorandum Opinion ordering disgorgement). Id. at 3.
III. ANALYSIS
A. Legal Standard for Amendment of Judgment Pursuant to Rule 59(e)
Federal Rule of Civil Procedure 59(e) motions to alter or amend a judgment must be filed within 10 days of the entry of the judgment at issue. FED.R.CIV.P. 59(e); W.C. & AN. Miller Cos. v. United States, 173 F.R.D. 1, 3 (D.D.C.1997) (citing Derrington-Bey v. Dist. of Columbia Dep't of Corrections, 39 F.3d 1224, 1226 (D.C.Cir. 1994)). While the court has considerable discretion in ruling on a Rule 59(e) motion, the reconsideration and amendment of a previous order is an extraordinary measure. Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir.1996) (per curiam) (citations omitted). Rule 59(e) motions "need not be granted unless the district court finds that there is an `intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Id. Finally, "[a] Rule 59(e) motion to reconsider is not simply an opportunity to reargue facts and theories upon which a court has already ruled," New York v. United States, 880 F.Supp. 37, 38 (D.D.C. 1995), nor is it a vehicle for presenting theories or arguments that could have been advanced earlier. W.C. & AN. Miller Cos., 173 F.R.D. at 3.
B. The Court Grants the Plaintiffs Motion to Amend the Judgment
At the outset, the court notes that the plaintiffs post-judgment motion for pre-judgment interest constitutes a motion to alter or amend the court's judgment pursuant to Rule 59(e). Osterneck v. Ernst & Whinney, 489 U.S. 169, 175, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989). Because the plaintiff filed its motion within the 10-day period set for Rule 59(e) motions, the court will treat the motion as a Rule 59(e) motion to alter or amend the judgment, as opposed to a Rule 60(b) motion *141 seeking relief from a judgment or order. United States v. Emmons, 107 F.3d 762, 764 (10th Cir.1997) (applying the filing-date-determinative rule); Small v. Hunt, 98 F.3d 789, 797 (4th Cir.1996) (same).
The underlying judgment ordered disgorgement of $59,189.40 from JCW, but did not order pre-judgment interest. Though the plaintiff did request pre-judgment interest in its motion for summary judgment, the plaintiff failed to detail this request or provide legal support for this request. In its motion to amend judgment, the plaintiff presents a legal argument in support of the request for prejudgment interest. Although the court disapproves of parties raising arguments that they could have advanced earlier, the court recognizes that the interests of justice and fairness support reviewing the plaintiffs motion. W.C. & A.N. Miller Cos., 173 F.R.D. at 3.
Turning to the merits of the plaintiffs argument for pre-judgment interest, the court determines that an award of prejudgment interest in this PACA case is within its discretion. Next, the court evaluates the relevant equitable concerns. Finally, the court determines that the equities weigh in favor of an award of prejudgment interest.
1. An Award of Pre-judgment Interest Is Within the Court's Discretion
Because PACA claims arise under federal statute, federal law governs the availability of pre-judgment interest. In re W.L. Bradley Co., 78 B.R. 92, 93 (Bankr.E.D.Pa.1987) (citing Poleto v. Consol. Rail Corp., 826 F.2d 1270 (3d Cir. 1987) overturned on other grounds by Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990)). While no federal statute directly addresses the issue of interest on PACA judgments, the general federal interest statute, 28 U.S.C.A. § 1961(a) allows interest "on any money judgment in a civil case recovered in a district court." Id. The PACA statute is silent on the issue of pre-judgment interest. 7 U.S.C. § 499a et seq.; E. Armata, Inc. v. Platinum Funding Corp., 887 F.Supp. 590, 595 (S.D.N.Y. 1995); In re Southland + Keystone, 132 B.R. 632, 641 (9th Cir.BAP 1991). Where a statute is silent on this issue, an award of pre-judgment interest lies within the court's discretion and the court may fashion a remedy to enforce congressional intent. E. Armata, Inc., 887 F.Supp. at 595 (citing Rodgers v. United States, 332 U.S. 371, 373, 68 S.Ct. 5, 92 L.Ed. 3 (1947)). The Ninth Circuit has ruled that district courts have the discretion to award reasonable pre-judgment interest to PACA claimants when the award is needed to protect the interests of PACA claimants. Middle Mountain Land & Produce, Inc. v. Sound Commodities Inc., 307 F.3d 1220, 1226 (9th Cir.2002).
Congress enacted PACA to protect produce sellers from slow payment as well as non-payment. E. Armata, Inc., 887 F.Supp. at 595; Morris Okun, Inc. v. Harry Zimmerman, Inc., 814 F.Supp. 346, 351 (S.D.N.Y.1993). Courts have consistently awarded pre-judgment interest to compensate PACA trust beneficiaries (produce sellers) where defendant PACA trustees (produce buyers) failed to make adequate payments. Id.; Gullo Produce Co. v. A.C. Jordan Produce Co., 751 F.Supp. 64, 68 (WD.Pa.1990); In re W.L. Bradley Co., 78 B.R. at 94; In re Monterey House Inc., 71 B.R. 244, 248 (Bankr.S.D.Tex.1986). These awards are consistent with Congress' intent to promote prompt and full payment to produce sellers.
This case is different from cases involving PACA trust beneficiaries (produce sellers) suing PACA trustees (produce *142 buyers) for payments due, however, because this case involves a PACA trust beneficiary (produce seller Fresh Kist) suing another trust beneficiary (produce seller JCW) for illegally collecting from the PACA trustee (produce buyer WWP). Here, the congressional purpose of promoting prompt payment is less obvious. The interest Congress expressed in produce sellers' receiving prompt and full payment from produce buyers still applies in the present situation, though in an attenuated manner. Trustees (produce buyers) cannot make prompt payment to trust beneficiaries (produce sellers) if one beneficiary has illegally withdrawn more than its pro rata share of funds from the PACA trust. Therefore, whether the cause of slow payment is the trustee's intransigence or the interference of another trust beneficiary is irrelevant; the congressional purpose of securing prompt payment for all beneficiaries is similarly frustrated.
2. Equitable Concerns Require an Award of Pre-judgment Interest
Although prior cases interpreting PACA do not provide a precise answer to the question before this court, they do establish a clear precedent for granting pre-judgment interest where equitable concerns and fairness so require. E.g., Tray-Wrap, Inc. v. Meyer, 1994 WL 710804, at *7 (S.D.N.Y. Dec.20, 1994). In determining whether to award pre-judgment interest, the court considers the following factors: (1) the need to make the plaintiff whole, (2) the degree of wrongdoing on the part of the defendant, (3) the availability to the plaintiff of investment opportunities, (4) whether plaintiff delayed in bringing the action, and (5) other considerations of fairness. Osterneck, 489 U.S. at 176,109 S.Ct. 987.
Applying the first factor, the court determines that pre-judgment interest is necessary to fully compensate the plaintiff and the other beneficiaries (produce buyers) of WWP's PACA trust. Id. While the funds were in the hands of JCW, the rightful owners (the PACA trust beneficiaries) could not earn interest on the funds. Each PACA beneficiary's pro rata share, including the plaintiffs, was diminished not only by the $59,189.48 improperly accepted by JCW, but also by the interest that amount would have accumulated had it remained in the trust.
Turning to the second consideration, the court concludes that the defendant's culpability level is low. Id. In Frederick County Fruit Growers Ass'n v. Martin, the court affirmed the grant of pre-judgment interest to the plaintiff workers association because the lower court found that the growers knowingly underpaid their workers contrary to federal law. 968 F.2d 1265, 1275 (D.C.Cir.1992). Here, the court concluded in its Memorandum Opinion that the "actions that JCW undertook to collect PACA benefits were contrary to law." Mem. Op. dated July 31, 2002 at 13. Although the court determined that JCW knew that WWP, the PACA trustee, was insolvent when it sought and accepted $59,189.48 from the trust in violation of 7 U.S.C. § 499a et seq., the court did not go so far as to find bad faith on the part of JCW. Id. at 12, 18. Therefore, the PACA violation reflects a lower "degree of personal wrongdoing on the part of the defendant" than existed in Frederick County Fruit Growers Ass'n. 968 F.2d at 1275.
The court cannot weigh the third factor because the record contains no evidence regarding whether the plaintiff had an available investment opportunity. Considering the fourth factor, the court concludes that the plaintiff did not delay bringing an action against JCW for its unlawful acceptance of trust funds. Id. The plaintiff initiated this action on August, 28, 2001, less than two months after JCW's PACA *143 violation (when JCW began its proceedings against WWP that resulted in the payment of $59,189.40 from the PACA trust to JCW). Compl.; JCW's Compl. (C.A. No. 01-1225); Consent Order dated Aug. 10, 2001 (C.A. No. 01-1225). The two months between JCW's PACA violation and the plaintiffs claim in this case falls within the permissible time frame recognized in In re W.L. Bradley Co., where the court found no inequity when the plaintiff waited eight months to file a claim under PACA. 78 B.R. at 94.
Finally, fairness demands an award of pre-judgment interest.[2]Osterneck, 489 U.S. at 176, 109 S.Ct. 987. Congress enacted the PACA provisions "to increase the legal protection for unpaid sellers and suppliers of perishable agricultural commodities until full payment of sums due have been received by them." In re Bradley Co., 78 B.R. at 93 (quoting H.R. No. 98-543, 98th Cong., 1st Sess. 3 (1983)). Congress created PACA to remedy the failure of buyers to pay for goods and to do so in a timely manner. Id. This suggests that Congress was concerned not only with sellers' need to enforce claims against buyers, but with their ability to do so quickly. Id.; see also Morris Okun, Inc., 814 F.Supp. at 351 (explaining that "failure to make [a pre-judgment interest] award may create a disincentive to prompt payment to suppliers and encourage collection litigation while financially strapped purchasers fend off creditors, contrary to the congressional intent evidenced in PACA."). An award of pre-judgment interest effectively remedies the harm caused by payment delays by providing to the plaintiff the amount of interest it would have earned had the payment occurred without delay. The argument remains salient where the defendant party is not a trustee, but a trust beneficiary. Cf. id.
Accordingly, the plaintiff is entitled to pre-judgment interest from the date of the PACA violation through the date of the entry of the court's judgment. E. Armata, 887 F.Supp. at 595 (ordering pre-judgment interest accruing from the date of default of payment). JCW must pay interest on all funds received from WWP on or after June 5, 2001. Interest is due from the date JCW received the post June 4, 2001 payments from WWP up to July 31, 2002, the date of the court's Memorandum Opinion ordering disgorgement, and shall be *144 paid at the statutory rate. 28 U.S.C.A. § 1961; Morris Okun, 814 F.Supp. at 351 (limiting interest amount to the statutory rate).
IV. CONCLUSION
For all these reasons, the court grants the plaintiffs motion to amend the order granting summary judgment by adding an award of pre-judgment interest. JCW shall pay the interest due within 20 calendar days of the filing of this Memorandum Opinion and the accompanying order. An order directing the parties in a manner consistent with this Memorandum Opinion is separately and contemporaneously issued this_day of March 2003.
ORDER
GRANTING THE PLAINTIFF'S MOTION TO AMEND THE COURT'S JUDGMENT
For the reasons stated in this court's Memorandum Opinion separately and contemporaneously issued this _ day of March 2003, it is
ORDERED that the plaintiffs motion to amend the court's judgment is GRANED.
SO ORDERED.
NOTES
[1] A detailed recitation of the facts and procedural history of this case can be found in the July 31, 2002 Memorandum Opinion.
[2] Describing the court's July 31, 2002 Memorandum Opinion, the defendant argues, "this Court acknowledged that it was crafting statutory requirements not provided for by Congress." Def.'s Opp'n at 2. The defendant relies on this statement to conclude that ordering payment of pre-judgment interest would be unfair because the defendant did not have notice that its actions would warrant such an award. Id. at 2-3. This argument mischaracterizes the court's holding. Rather, the court stated that it is
reluctant to fashion statutory requirements not provided by the legislature. In this situation, however, the "race to the courthouse" scenario, when the winning beneficiary keeps most or all the trust funds, constitutes an absurd result contrary to Congress' intent and contrary to this court's interpretation of the relevant law.
Mem. Op. dated July 31, 2002 at 15 (internal citations omitted). The court's reference to fashioning statutory requirements is merely an acknowledgment of the well-established principle that courts should defer to the congressional purpose behind the statute. In re Bradley Co., 78 B.R. at 93.
In this case, the PACA provision was enacted with the intent to protect all trust beneficiaries equally. Supra at 5-9. To fulfill this goal, courts have consistently interpreted this statute through the lens of congressional intent as rejecting the "first in time, first in right" theory as a method of protecting all beneficiaries equally. Mem. Op. dated July 31, 2002 at 10. Therefore, the defendant's assertion that this court created a statutory requirement is disingenuous.
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216 F.Supp. 362 (1963)
UNITED STATES of America, Plaintiff,
v.
GENERAL MOTORS CORPORATION, Losor Chevrolet Dealers Association, Dealers' Service, Inc., Foothill Chevrolet Dealers Association, Kenneth E. Staley, Lee N. Mays, Roy M. Cash, and Robert M. O'Connor, Defendants.
No. 30,132-Cr.
United States District Court S. D. California, Central Division.
March 14, 1963.
*363 Maxwell M. Blecher, Antitrust Division, Dept. of Justice, Los Angeles, Cal., Les J. Weinstein, Robert C. Weinbaum and Paul A. Owens, Antitrust Division, Dept. of Justice, Washington, D. C., for plaintiff.
*364 O'Melveny & Myers, Homer I. Mitchell, Henry C. Thumann, Donald M. Wessling, Lawler, Felix & Hall, Marcus Mattson, J. Phillip Nevins, Los Angeles, Cal., Aloysius F. Power, Robert A. Nitschke, and Nicholas J. Rosiello, Detroit, Mich., for defendants General Motors Corp., Kenneth E. Staley, Lee N. Mays, Roy M. Cash and Robert M. O'Connor.
Hansen & Dolle, Victor R. Hansen, Robert W. Culver, and Glenn S. Roberts, Los Angeles, Cal., for defendants Losor Chevrolet Dealers Assn., Dealers' Service, Inc., and Foothill Chevrolet Dealers Assn.
THURMOND CLARKE, District Judge.
This case began one and one-half years ago when the Grand Jury returned a two-count indictment charging defendants with violations of the antitrust laws. The second count was dismissed by order of this court, dated January 17, 1962. On November 20th of last year, this trial began. Now, almost four months later, there are before us over 600 exhibits and over 6,000 pages of recorded testimony. The Government has rested its case and the defense has moved for judgment of acquittal.
The defendants in this criminal proceeding are General Motors Corporation, three associations of Chevrolet dealers (Losor, Foothill and Dealers' Service, Inc.) and four individuals (Staley, Mays, Cash and O'Connor) who are officials of General Motors Corporation. They are charged in Count One, the only remaining Count of the indictment, with violation of Section 1 of the Sherman Act. Specifically, defendants are charged with having conspired to suppress sales of Chevrolet automobiles by Chevrolet dealers through discount houses and referral services by inducing the dealers to terminate selling agreements with the discount houses and referral services. Also in Count One, defendants are charged with having utilized "shoppers" in order to discover dealers who were selling through discount houses or referral services and with having induced such dealers to repurchase Chevrolets sold by them to "shoppers."
That defendants did engage in the activity charged is not in dispute. In dispute is the question of whether the activity with which the defendants are charged amounted to an unreasonable restraint of trade. If the agreement to persuade dealers to refrain from selling Chevrolet automobiles through discount houses and referral services was a reasonable restraint of trade, there has been no violation of Section 1 of the Sherman Act. Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1910).
By deciding to prosecute these defendants under criminal law, the Government has accepted a difficult burden of proof. For conviction, the Government had to produce evidence that the defendants were guilty beyond a reasonable doubt. In order to get its case to a jury and thereby escape a judgment of acquittal, the Government had to produce evidence which, taken in the light most favorable to the Government, could convince a reasonable juror that the defendants were guilty as charged beyond a reasonable doubt. Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229 (1947). The Government has failed to sustain this burden.
The Government has attempted to pin the label of "boycott" onto the activity described in Count One of the indictment. A boycott is a per se violation of the antitrust laws for which there can be no justification. It consists of a "concerted refusal to deal." Klor's, Inc. v. Broadway-Hale Stores, 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959). The Government's argument is not well taken for the reasons stated in Boro Hall Corporation v. General Motors Corporation, 37 F.Supp. 999 (S.D.N.Y.1941); 124 F.2d 822 (2d Cir., 1942); rehearing denied 130 F.2d 196 (2d Cir., 1942); cert. den. 317 U.S. 695, 63 S.Ct. 436, 87 L.Ed. 556 (1943).
The Government has attempted to show that the decision of the dealers *365 to terminate their relations with the discount houses was the result of irresistible economic pressure exerted by defendants. There is no evidence in the record that could convince a reasonable juror beyond a reasonable doubt that economic pressure and not self-interest precipitated the decision of the dealers. Indeed, termination of discount house operations was encumbent upon the dealers, under the provision of the franchise contract which prohibits a dealer from establishing a second location, without the consent of General Motors. That the defendants did not stress the contractual clause at every opportunity does not mean that defendants put little stock in it. On the contrary, the record is replete with testimony that General Motors, through its officials, tries to reason and confer with its dealers as partners and not as antagonists. Similarly, there is nothing to show that the Dealers Associations did any more than to try to point out what was thought to be in the best interests of the dealers.
The shopping activity and the repurchase of the Chevrolets by the dealers who sold to the shoppers was perfectly legitimate activity and is justified under the doctrine of Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961).
Finally, no reasonable juror could find beyond a reasonable doubt that termination of sales through discount houses unreasonably lessened and restrained competition. The record shows that dealers do compete in their pricing of new cars. The record further discloses that General Motors Corporation reasonably believes that franchise dealers are better representatives of the Corporation than discount houses for the reason that discount houses and referral services have no special or continuing interest in the well being of General Motors, offer no service facilities, and operate entirely free of any control by General Motors.
In conclusion, the court wishes to add a few general remarks. The Government has argued that this criminal prosecution in no way represents an attack on the franchised dealer method of selling automobiles. I cannot agree.
In applying the antitrust laws, it seems to me that a balance must be struck. The interest of the consumer in a freely competitive market must be protected. But, at the same time, industry has rights which also must be respected. In part, business has, or should have, the right to merchandise a product in a manner that the particular manufacturer determines to be the most feasible and the most competitive. Indeed, I believe that the best way to further the interest of the consumer is to allow business, large and small, to avail itself of the free enterprise system with as little Government interference as possible. This court feels, therefore, that its decision protects both the interests of the public and the interests of business.
Mr. Mitchell, in his argument two days ago, quoted Justice Holmes, a great jurist whose ideas were often first spoken in dissent before finally gaining ascendancy in the policy and law of this nation. Mr. Mitchell was referring to Justice Holmes's dissenting opinion in Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, at page 411, 31 S.Ct. 376, at page 386, 55 L.Ed. 502 where Justice Holmes said: "I think that, at least, it is safe to say that the most enlightened judicial policy is to let people manage their own business in their own way, unless the ground for interference is very clear." This seems a wise policy that might profitably be applied to the instant case.
In the instant case, General Motors, the manufacturer, has chosen the franchised dealership as the outlet best suited to the merchandising of Chevrolet automobiles. General Motors has made the further decision that discount houses and referral services are not the kinds of outlets for Chevrolet automobiles that will keep Chevrolet a leader in sales. At present, the discount operation does not fit the bill because (1) the discount store does not offer service facilities; (2) the discount store is not run by men whom *366 General Motors has handpicked as its representatives on the retail sales level; and (3) the discount store's automobile department is not run, as is a dealership, by a man having a large investment in his business who has a long range view and will endeavor to maintain the public's confidence in, and good-will toward, Chevrolet. In its broader aspects, the case presents this question: Despite the decision of General Motors, should the Government, through the antitrust laws, compel General Motors to adopt the discount houses and, with them, a method of merchandising not of General Motors' choosing? The court thinks not.
The free enterprise system is a basic part of the American way of life. Justice Holmes's suggestion "to let people manage their own business in their own way, unless the ground for interference is very clear" is good advice. If the advice is heeded both by the courts and by government, I am confident that the United States will continue to be free, strong and prosperous.
For the foregoing reasons, defendants' proposed judgment of acquittal, as set forth below, is hereby adopted by the court.
JUDGMENT OF ACQUITTAL
The above entitled matter having come on for trial before The Honorable Thurmond Clarke, Judge Presiding, upon Count One of the Indictment (Count Two having been dismissed by the Court prior to trial), the Government and defendants being represented by their respective attorneys of record, and the evidence on the part of the Government having been closed, and defendants having moved for a judgment of acquittal under Rule 29 (a) of the Federal Rules of Criminal Procedure, and the Court being fully advised in the premises, concludes as follows:
1. Count One of the Indictment (hereinafter referred to as the Indictment) alleges that pursuant to agreements or understandings with some Chevrolet dealers in the Southern California Area, discount and referral houses performed many merchandising functions in the retail sale of such Chevrolet dealers' Chevrolets to consumers, including referral of customers to such dealers, negotiating terms and conditions of sales of such dealers' Chevrolets to consumers and appraising and purchasing trade-in cars. Thus, the Indictment charges that sales of Chevrolets were made by some dealers through discount or referral houses pursuant to agreements or understandings with such houses for the performance of merchandising functions by such houses in the sale of such dealers' Chevrolets. The Indictment does not concern sales by Chevrolet dealers to discount or referral houses for resale and there was no evidence that any such sales to discount or referral houses were made.
The Indictment further alleges that beginning in the summer of 1960 and continuing to the date of the return of the Indictment (October 12, 1961) the defendants and co-conspirators, in violation of Section 1 of the Sherman Act (15 U.S.C. § 1), engaged in a combination and conspiracy in unreasonable restraint of trade and commerce to induce and persuade Chevrolet dealers to cease sales of Chevrolets in the Southern California Area pursuant to such agreements or understandings with discount or referral houses and to suppress and restrain such sales.
2. By stipulation, the evidence shows: During the period of the offense charged in the Indictment, the Chevrolet Motor Division of General Motors Corporation caused Chevrolets to be marketed in the Southern California Area by dealers under a plan of marketing evidenced by and embodied in written Dealer Selling Agreements between the Chevrolet Motor Division and each of its dealers in such area. These Dealer Selling Agreements are identical in form; each assigns to the dealer an area of primary sales responsibility but leaves the dealer free to sell Chevrolets at any price to anyone wherever he may live, work, or have a place of business; each requires the dealer to establish a place of business at a location or locations approved by the Chevrolet Motor Division; and each requires *367 the dealer to refrain from establishing another place of business or branch sales office at any other location without the approval of the Chevrolet Motor Division. In the Los Angeles Metropolitan Area each dealer's area of primary responsibility is the entire Metropolitan Area and the Metropolitan Area Addendum to the Dealer Selling Agreement, applicable to each Chevrolet dealer in the Los Angeles Metropolitan Area, provides in writing that the Chevrolet Motor Division will not increase the number of dealers or change the location of any dealer's place of business without 60 days notice to each dealer in the Metropolitan Area and an opportunity to be heard.
3. The Dealer Selling Agreements are in writing and it is therefore the duty of the Court to determine the meaning and effect of these agreements. In determining the meaning and effect of these agreements, it is the duty of the Court to give effect to their spirit and purpose as determined from all of the provisions of the agreements. Since these agreements require the dealers to refrain from the establishment of additional places of business or branch sales offices without approval of the Chevrolet Motor Division, these agreements prohibit dealers from establishing, without approval of the Chevrolet Motor Division, the equivalent of additional places of business or branch sales offices and from accomplishing by indirection or subterfuge the establishment of additional places of business or branch sales offices. For a dealer to arrange with a discount or referral house operating a place of business at a location not approved by the Chevrolet Motor Division to have such discount or referral house perform merchandising functions in the sale of such dealer's Chevrolets including engaging in the business of referring customers to such dealers, negotiating terms and conditions of sales of such dealers' Chevrolets to consumers and appraising and purchasing trade-in cars on such sales is just another way whereby the dealer provided for himself what was in substance and effect an additional and unauthorized place of business or branch office without approval of the Chevrolet Motor Division.
4. Having regard to substance rather than to form, the Dealer Selling Agreements require Chevrolet dealers to refrain from having or performing agreements or understandings with discount or referral houses having places of business at locations not approved by the Chevrolet Motor Division whereby such houses engage in the business of referring customers to such dealers with such dealers negotiating the terms of sale with the customer, or whereby such houses negotiate the terms of sale of the Chevrolet with the customer and whereby such dealers, upon instructions from such houses, register title to the Chevrolet in the name of the customer. Under either such form of transaction, and under any combination thereof, the agreement or understanding is one in which the dealer uses discount or referral houses operating places of business at locations other than the dealer's approved location, to perform merchandising services for him in the sale of his Chevrolets. Such agreements and understandings and their performance are in violation of the Dealer Selling Agreements.
5. By stipulation, the evidence also shows: Each Dealer Selling Agreement provides that the agreement is made in reliance upon the personal qualifications and business ability of the persons who own and operate the organization designated as the "Dealer"; that the "Dealer" shall perform the operating requirements of the agreement including the sale of Chevrolets, pursuant to the selling privilege granted to the "Dealer," in a manner which will preserve the good will of Chevrolet products; and that the "Dealer" shall not, without consent of the Chevrolet Motor Division, transfer to others (such as discount or referral houses) the "Dealer's" obligation to perform the operating requirements of the agreement including the requirement to sell the Chevrolet products in accordance *368 with the selling privilege granted to the "Dealer."
6. The Dealer Selling Agreements, properly construed, prohibit Chevrolet dealers from having or performing agreements or understandings with discount or referral houses whereby such dealers have such discount or referral houses perform merchandising functions in the sale of such dealers' Chevrolets including engaging in the business of referring customers to such dealers, negotiating terms and conditions of sales of such dealers' Chevrolets to consumers and appraising and purchasing trade-in cars on such sales.
7. Under the Chevrolet marketing plan as evidenced by and embodied in the Dealer Selling Agreements, a dealer has the right to sell Chevrolets at any price to anyone wherever he may work, live, or have a place of business. Under such agreements, a Chevrolet dealer is not guaranteed or granted any markets, territories or customers nor is he denied or excluded from any markets, territories or customers; there is neither territory security nor territory exclusivity nor customer exclusivity.
8. Section 1 of the Sherman Act prohibits contracts, combinations and conspiracies in unreasonable restraint of competition in interstate commerce. As pointed out by Mr. Justice Brandeis, in Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 62 L. Ed. 683, decided in 1918, every agreement concerning trade restrains but not every agreement that restrains is violative of the Sherman Act. In White Motor Company v. United States, 83 S.Ct. 696, the Supreme Court reaffirmed Mr. Justice Brandeis' statement in that case as the accepted test for determining the reasonableness of a restraint of competition:
"The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts."
9. The words "in unreasonable restraint of competition" are a statutory phrase, as judicially interpreted, and it is the duty of this Court to determine the meaning of such statutory phrase as applicable in this case to the type of relevant facts which the Chicago Board of Trade case described. United States v. American Trucking Associations, 310 U.S. 534 544, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940).
The restraints herein were contractual restrictions contained in the Dealer Selling Agreements and described in paragraphs 2, 3, 4, 5 and 6 hereof. These paragraphs imposed two limited restrictions on the sale of Chevrolets by Chevrolet dealers: (1) The requirement that the dealer not directly or indirectly establish unauthorized locations; and (2) the requirement that the dealer's sales of Chevrolets be made by the dealer (and not someone else) in a manner that will promote rather than injure the good will of Chevrolet and its products. The uncontradicted evidence shows that these limited restrictions were developed and adopted as a part of a marketing plan which recognizing the special nature of the product, was designed to and did preserve the good will of Chevrolet, provide adequate sales and service facilities and promote competition by Chevrolet dealers with dealers in other makes of automobiles and by Chevrolet dealers among each other; that these restrictions, in view of the rights of the dealers described in paragraph 7 hereof, are reasonable; that they do not constitute an unreasonable restraint of competition; that they do not violate Section 1 of the Sherman Act.
*369 A location limitation substantially identical to the location limitation provisions of the Dealer Selling Agreements was held valid in 1942 by the Court of Appeals for the Second Circuit in a decision written by Judge Augustus N. Hand. The Supreme Court denied certiorari. There is no decision to the contrary. Boro Hall Corporation v. General Motors Corporation, 2 Cir., 124 F.2d 822, 824; rehearing den. 2 Cir., 130 F.2d 196, 197, cert. den. 317 U.S. 695, 63 S.Ct. 436, 87 L.Ed. 556 (1943).
10. Defendants General Motors Corporation and its officials, Kenneth E. Staley, Lewell N. Mays, Roy M. Cash and Robert M. O'Connor, and each of them, had the right to endeavor to preserve and protect the Chevrolet plan of marketing and to endeavor to induce and persuade Chevrolet dealers to cease conduct which was violative of the Dealer Selling Agreements and in particular to cease making and performing arrangements with discount or referral houses whereby such houses, in places of business at locations not approved by the Chevrolet Motor Division, performed merchandising functions in the sale of such dealers' Chevrolets including engaging in the business of referring customers to such dealers; negotiating terms and conditions of sales of such dealers' Chevrolets to consumers and appraising and purchasing trade-in cars on such sales.
11. Defendants General Motors Corporation, Kenneth E. Staley, Lewell N. Mays, Roy M. Cash and Robert M. O'Connor were not precluded from exercising the rights described in paragraph 10 hereof by the fact that Chevrolet dealers and salesmen, whether acting individually or on behalf of the defendant dealer associations, requested that said defendants act to comply with the intent and purpose of the Dealer Selling Agreements and thus to preserve and protect the Chevrolet plan of marketing.
12. Defendants General Motors Corporation, Kenneth E. Staley, Lewell N. Mays, Roy M. Cash and Robert M. O'Connor had the right by shopping or by accepting shopping information from dealers and defendant dealers associations, to ascertain which dealers were selling Chevrolets in violation of the Dealer Selling Agreements and to request that such dealers undo their violations by repurchasing shopped Chevrolets sold in violation of said agreements.
13. Defendants General Motors Corporation, Kenneth E. Staley, Lewell N. Mays, Roy M. Cash and Robert M. O'Connor did not engage in any combination or conspiracy in unreasonable restraint of trade or commerce in violation of Section 1 of the Sherman Act.
14. The Dealer Selling Agreements in the Southern California Area are necessarily and properly interrelated one to the other, particularly in respect of the location limitations hereinabove described. They are a network of agreements which together constitute Chevrolet's plan for the marketing of Chevrolets in the Southern California Area and every dealer has a lawful interest in every other dealer's adherence to the location limitations of said agreements. The Court concludes that defendants Losor Chevrolet Dealers Association, Dealers' Service, Inc. and Foothill Dealers Association, and the member Chevrolet dealers on whose behalf they acted, had a lawful interest in the adherence by all dealers to the location limitations of the Chevrolet marketing plan and had the right (a) to request that the Chevrolet Motor Division take steps to cause Chevrolet dealers to cease conduct which was violative of the location limitation provisions of the Dealer Selling Agreements and (b) to ascertain which Chevrolet dealers were engaging in such conduct and to advise the Chevrolet Motor Division of the facts ascertained.
15. Defendants Losor Chevrolet Dealers' Association, Dealers' Service, Inc. and Foothill Chevrolet Dealers Association engaged in activities concerned with the passage of legislation and enforcement of the California Motor Vehicle Dealer and Salesman Licensing Laws. (Cal.Veh.Code Sec. 11700 et seq.; *370 § 11800 et seq.) As a matter of law, such conduct did not violate the Sherman Act. Eastern Railroad Presidents' Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961).
16. Defendants Losor Chevrolet Dealers Association, Dealers' Service, Inc. and Foothill Chevrolet Dealers Association, individually or as a group, did not engage in any combination or conspiracy in unreasonable restraint of trade or commerce in violation of Section 1 of the Sherman Act.
Now, Therefore, It Is Hereby Adjudged that the motions of defendants and each of them for a judgment of acquittal are hereby granted and defendants and each of them are hereby adjudged acquitted of every offense charged in the Indictment.
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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. 09-10414 ELEVENTH CIRCUIT
OCTOBER 29, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-00091-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BAHRAM KHANALI,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(October 29, 2009)
Before BLACK, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Bharam Khanali, a chiropractor licensed to practice in Florida, appeals from
his 60-month sentence imposed after pleading guilty to one count of conspiracy to
commit health care fraud, 18 U.S.C. §§ 371 & 1347. On appeal, Khanali argues
that: (1) the district court erred in denying an acceptance of responsibility sentence
reduction; and (2) his sentence is unreasonable. After careful review, we affirm.
We review a district court’s factual findings concerning a reduction for
acceptance of responsibility for clear error. United States v. Williams, 408 F.3d
745, 756 (11th Cir. 2005). We review the ultimate sentence a district court
imposes for “reasonableness,” which “merely asks whether the trial court abused
its discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008)
(quoting Rita v. United States, 127 S. Ct. 2456, 2465 (2007)).
First, we reject Khanali’s claim that the district court erred in denying him
an acceptance of responsibility sentence reduction. Section 3E1.1 of the
Sentencing Guidelines permits a district court to give a defendant a sentence
reduction if “the defendant clearly demonstrates acceptance of responsibility for
his offense.” U.S.S.G. § 3E1.1(a). However, “[a] defendant who enters a guilty
plea is not entitled to an adjustment . . . as a matter of right.” U.S.S.G. § 3E1.1
cmt. n.3. While a guilty plea constitutes significant evidence of acceptance of
responsibility, that evidence may be outweighed by conduct that is inconsistent
with acceptance. United States v. Lewis, 115 F.3d 1531, 1537 (11th Cir. 1997).
Appropriate considerations include the defendant’s “voluntary termination or
withdrawal from criminal conduct.” U.S.S.G. § 3E1.1 cmt. n.1(b). We previously
2
have held that subsequent criminal activity may be considered, even if unrelated to
the offense of conviction. United States v. Pace, 17 F.3d 341, 343 (11th Cir. 1994).
Like the defendant in Pace, Khanali tested positive for marijuana in violation
of his bond terms, and although this criminal conduct was unrelated to the offense
of conviction, it nonetheless could be considered. Id. The district court thus did
not clearly err in denying Khanali an acceptance of responsibility reduction.
We also find no merit in Khanali’s argument that his sentence was
unreasonable. In reviewing sentences for reasonableness, we perform two steps.
Pugh, 515 F.3d at 1190. First, we must “‘ensure that the district court committed
no significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence -- including an
explanation for any deviation from the Guidelines range.’” Id. (quoting Gall v.
United States, 128 S.Ct. 586, 597 (2007)).1 If we conclude that the district court
1
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
3
did not procedurally err, we must consider the “‘substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard,’” based on the “‘totality
of the circumstances.’” Id. (quoting Gall, 128 S. Ct. at 597). “[T]he party who
challenges the sentence bears the burden of establishing that the sentence is
unreasonable in the light of both th[e] record and the factors in section 3553(a).”
United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006) (internal quotation
omitted). We ordinarily expect that a sentence within the advisory guidelines
range will be reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir.
2008). While the district court must consider the § 3553(a) factors, it is not
required to discuss each individually. United States v. Talley, 431 F.3d 784, 786
(11th Cir. 2005). The district court must merely acknowledge “that it has
considered the defendant’s arguments and the [§ 3553(a)] factors.” Id.
As applied here, Khanali has not shown that his 60-month sentence is
procedurally reasonable. Regarding Khanali’s argument that the loss amount
calculated in the PSI was unsupported, Khanali agreed to the loss amount below,
and his argument on appeal therefore must be rejected as invited error. See United
States v. Ross, 131 F.3d 970, 988 (11th Cir. 1997) (“It is a cardinal rule of
appellate review that a party may not challenge as error a ruling or other trial
proceeding invited by that party.”) (quotations omitted). Moreover, contrary to
4
Khanali’s claim, the district court did not consider Hernandez’s PSI when it
imposed Khanali’s sentence; it stated that it was “not including facts necessarily”
and did not mention any such facts while imposing the sentence. Lastly, the
district court acknowledged the nature of the offense, the sentencing Guidelines,
the statements by Khanali and his family, and the seriousness of the crime. The
record thus shows that the district court considered the factors in § 3553(a), and its
failure to explicitly discuss each factor does not render the sentence procedurally
unreasonable. Talley, 431 F.3d at 786.
Similarly, Khanali has not shown that his sentence, within the Guidelines
range, is substantively unreasonable. As the district court found, the offense in
question is a serious offense involving over a million dollars in healthcare fraud.
The district court discussed the impact of such fraud on society. The district court
also took into account Khanali’s background and character, as well as his family.
And while it chose to give more weight to the seriousness of the offense, which is
within the district court’s discretion, we will not substitute our own judgment in
weighing the factors. United States v. Amedeo, 487 F.3d 823, 832 (11th Cir.
2007).
AFFIRMED.
5
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 10, 2007
Charles R. Fulbruge III
Clerk
No. 06-40850
Summary Calendar
PHILIP J. POHL,
Plaintiff-Appellant,
versus
BRAD LIVINGSTON; PAMELA WILLIAMS,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:06-CV-4
--------------------
Before DeMOSS, STEWART and PRADO, Circuit Judges.
PER CURIAM:*
Philip J. Pohl, Texas prisoner # 408856, appeals the
dismissal of his 42 U.S.C. § 1983 action as frivolous. Pohl
asserts that he has a “liberty interest” in parole. He asserts,
however, that the appellees have violated his rights under
Texas law and the Constitution because they are using “an
unconstitutionally vague code to do away with parole.” He
further asserts that his due process rights have been violated
because he has been denied meaningful review. He contends that
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-40850
-2-
the appellees focus only on the nature of the crime of conviction
when making a parole determination.
To obtain relief under § 1983, the plaintiff must
demonstrate the violation of a constitutional right. Allison v.
Kyle, 66 F.3d 71, 73 (5th Cir. 1995). This court has determined
that Texas law does not create a liberty interest in parole
that is protected by the Due Process Clause. Orellana v. Kyle,
65 F.3d 29, 31-32 (5th Cir. 1995); see also Johnson v. Rodriguez,
110 F.3d 299, 308 (5th Cir. 1997). Thus, to the extent that Pohl
seeks relief regarding alleged due process violations resulting
from the parole review process, the district court did not abuse
its discretion in denying his claim. See Orellana, 65 F.3d
at 32.
Pohl also contends that he has a “liberty interest” in
mandatory supervision. Specifically, he contends that when he
was sentenced in 1985, a life sentence was equivalent to 60 years
and an inmate was eligible for mandatory supervision when he
served 20 years. Pohl contends because he has served 21 years,
he is eligible for mandatory supervision. He contends that the
defendants are violating the Due Process and Ex Post Facto
Clauses by applying harsher parole laws enacted after the date of
his conviction.
As the district court determined, Pohl’s argument is
foreclosed by Arnold v. Cockrell, 306 F.3d 277, 279 (5th Cir.
2002), which held that an inmate serving a life sentence is not
No. 06-40850
-3-
eligible for release under the 1977 version of the Texas
mandatory supervision statute and, thus, does not have a
constitutionally protected interest in such release. This court
based its decision on a similar determination by the Texas Court
of Criminal Appeals in Ex parte Franks, 71 S.W.3d 327 (Tex. Crim.
App. 2001), concerning the 1981 version of the Texas mandatory
supervision statute. See id.
Pohl further argues that the elimination of annual parole
reconsideration hearings violates the Ex Post Facto Clause. He
contends that he has been given a three-year set-off, as opposed
to an annual review. Pohl characterizes this three-year set-off
as a “new 3 year sentence[].”
Ex post facto principles apply to the procedures for
reviewing a prisoner's eligibility for parole. See Allison,
66 F.3d at 74. However assuming arguendo that Pohl’s parole
eligibility is governed by the parole review law in place at the
time of his sentence, annual parole review was not mandated. See
id. Thus, Pohl has not shown an ex post facto or other
constitutional violation. See id.
Pohl’s appeal “lacks an arguable basis in law or fact.”
Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998). Thus, it is
dismissed as frivolous. See 5TH CIR. R. 42.2. For purposes of
the three-strikes provision of 28 U.S.C. § 1915(g), the district
court’s dismissal under 28 U.S.C. § 1915A counts as a strike, and
the dismissal of this appeal as frivolous counts as a strike.
No. 06-40850
-4-
See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Accordingly, Pohl is warned that if he accumulates three strikes
he may not thereafter proceed IFP in any civil action or appeal
filed while he is incarcerated or detained in any facility unless
he is under imminent danger of serious physical injury. See
§ 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.
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1 Ill. App.2d 226 (1954)
117 N.E.2d 306
Harry D. Lucas, Appellant,
v.
Frederick E. Hambrecht, M.D., Appellee.
Gen. No. 10,711.
Illinois Appellate Court.
Opinion filed January 28, 1954.
Released for publication February 15, 1954.
Jack E. Walker, for appellant.
Charles D. Snewind, of counsel.
Burrel Barash, and Robert C. Stoerzbach, for appellee.
(Abstract of Decision.)
Opinion by JUSTICE WOLFE.
Judgment affirmed.
Not to be published in full.
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933 F.2d 1368
137 L.R.R.M. (BNA) 2513, 119 Lab.Cas. P 10,769
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.ILLINOIS-AMERICAN WATER COMPANY SOUTHERN DIVISION, Respondent.
No. 90-1308.
United States Court of Appeals,Seventh Circuit.
Argued Oct. 31, 1990.Decided June 7, 1991.
Charles P. Donnelly, Jr., Margaret Luke, Washington, D.C., Aileen A. Armstrong, N.L.R.B., Appellate Court, Enforcement Litigation, Washington, D.C., Joseph H. Solien, St. Louis, Mo., for petitioner.
Robert L. Broderick, R. Michael Lowenbaum, Thompson & Mitchell, St. Louis, Mo., for respondent.
Before WOOD, Jr., POSNER and EASTERBROOK, Circuit Judges.
HARLINGTON WOOD, Jr., Circuit Judge.
1
The National Labor Relations Board ("Board") seeks enforcement of an unfair labor practice order issued against Illinois-American Water Company ("Illinois-American") on September 22, 1989.1 The Board affirmed the Administrative Law Judge's ("ALJ") holding that Illinois-American violated section (8)(a)(1) of the National Labor Relations Act ("Act"), 29 U.S.C. Sec. 158(a)(1), by threatening employees with loss of employment if the bargaining representative, Local No. 13, Office and Professional Employees International Union, AFL-CIO ("Union"), demanded that the terms of the collective bargaining agreement be applied to Illinois-American's computer center employees. The Board also found that Illinois-American violated sections 8(a)(5) and (1) of the Act, 29 U.S.C. Secs. 158(a)(5) and (1), by (1) refusing to recognize and bargain with the Union as exclusive bargaining representative of the appropriate bargaining unit; (2) refusing to apply the terms and conditions of the collective bargaining agreement to the computer center employees; and (3) refusing to supply information requested by the Union. We grant enforcement of the Board's order.
I. BACKGROUND
2
Illinois-American Water Company is a privately-owned public utility that supplies and distributes water to the general public in certain areas of Illinois. A subsidiary of American Waterworks Company, Inc., Illinois-American is in the mid-American region of the parent company. The mid-American region's headquarters are located in Richmond, Indiana. When the present conflict arose in 1986, the company was divided into a northern division, consisting of district offices in Peoria and Pekin, and a southern division, comprised of district offices in Alton, Granite City, East St. Louis, Cairo and Belleville. The Belleville district office closed in 1987 and is now the site of the corporate office and the computer center.
3
For many years, the Union has represented the company's southern division employees in two bargaining units.2 As defined in the 1986 collective bargaining agreement, one unit included "clerical employees, excluding management staff and supervisors" in the Alton district office. The other unit, which the union has represented since 1948 and which is the unit of concern in this petition, included "all office employees in [the Belleville, East St. Louis and Granite City] District Offices, exclusive of supervisory employees and confidential employees, including those employees performing group insurance and/or pension duties."3
4
Before the opening of the computer center, the company's East St. Louis district office employees handled customer inquiries and requests for water service. Customers who visited personally were referred to customer service clerks. Telephoning customers would also be referred to customer service clerks. The actual duties of a customer service clerk included handling requests for the following: water service commencement or termination; billing information; transfer of service; meter checks and replacements; and street leak investigation. When handling customer requests, the clerks physically obtained and viewed account records that were prepared by other district office employees. Entry clerks in the district office entered information into route books and then sent their work to the Richmond headquarters. A radix computer was utilized for account investigation.
5
In 1985, Illinois-American began to consider implementing a computer system to store information and handle customer requests and inquiries. The Union's business representative, Herbert Goodrick, learned about Illinois-American's plans for computerization. Goodrick sent a letter to Illinois-American to request bargaining about possible changes by Illinois-American that would affect employees in the bargaining units represented by the Union. A reply letter from Illinois-American informed the Union that its plans were in the "embryo stage" and that company vice president and southern district manager, Thomas Conner, would meet with Goodrick in July 1986.
6
The first meeting concerning the changes actually occurred November 25, 1986. Conner and Robert McMillian, then-customer service representative in the East St. Louis office, attended for Illinois-American and Goodrick and unidentified persons represented the Union. At the hearing before the ALJ, McMillian explained that at the November meeting Conner outlined Illinois-American's plans for a computer center, including the company's intention that computer center employees would not be covered by existing union contracts. McMillian testified that Goodrick responded that he would organize the computer center employees if Illinois-American failed to recognize the Union as their representative. The ALJ credited McMillian's testimony despite Goodrick's denial of having made such a statement.
7
After that initial meeting, the Union repeatedly asserted that it was entitled to represent the computer center employees through the already existing district office bargaining unit, and Illinois-American held to its contrary position. At the hearing before the ALJ, Goodrick testified that Conner told him privately, in January or February 1987, that Illinois-American would hire twelve new employees and dismiss twelve bargaining unit employees if the Union continued to protest removal of computer center employees from the bargaining unit. Goodrick added that at a March 1987 meeting attended by other Illinois-American supervisors, Goodrick and two Union stewards, Conner asserted that the Union's representation demands would cause Illinois-American to fire unit employees and fill computer center positions with new employees. The hearing testimony given by Goodrick, Conner and a Union steward, Mary Allen, contained discrepancies regarding the actual date of this meeting and the people in attendance. The ALJ credited Goodrick's testimony and found that Conner did make such a threat.
8
As tension mounted between the Union and Illinois-American over the issue of the computer center employees, an additional problem surfaced. In letters in March and May 1987, the Union requested that Illinois-American supply to the Union the name, address, birth date, social security number, dates employed and employment status of each bargaining unit employee. Illinois-American denied the request in a letter dated May 14, 1987, and asked the purpose of such a request. Illinois-American explained that its concern for the privacy of its employees made it reluctant to release some of the information sought by the Union. The Union responded by letter on May 20, 1987, asserting that the information was necessary for it to fulfill its function in collective bargaining matters. On June 2, Illinois-American responded that it would not supply home telephone numbers or personal information, but enclosed copies of a monthly report of Union dues withheld from regular employees, and a weekly report of dues withheld from temporary employees. These reports listed the district offices where the employees worked. Illinois-American maintained that it would not provide any more information without authorization by the employees.4 Dissatisfied by Illinois-American's response, the Union filed its first grievance against Illinois-American on June 2, 1987, and alleged that Illinois-American violated sections (8)(a)(1) and (5) by failing to provide the Union with this requested information.
9
Problems continued regarding the computerization situation and led to the filing of another grievance by the Union. After a substantial remodelling of the Belleville district office to accommodate the company's new computer system, the company began the hiring and training of the computer center employees. By June 10, 1987, Illinois-American had selected nine East St. Louis bargaining unit employees for the computer center position of customer inquiry representative ("CIR").5 These employees had held district office positions such as customer service clerk, entry clerk, teller, switchboard operator, and other clerical positions, and all had been in the bargaining unit. These nine CIRs were removed from the East St. Louis bargaining unit on September 26, 1987.
10
Computer training started on June 16, 1987, and the CIRs received approximately sixty-two hours of computer training by October of 1987. Six district office employees and three district office supervisors who remained in East St. Louis received computer training as well. Each supervisor received roughly forty hours of training. The other employees participated in an average of eight hours of training. The training, although similar to the training of the CIRs, was substantially less extensive.
11
The computer center opened on September 28, 1987. After computerization, the duties of all of the district employees--CIRs and East St. Louis employees--changed in some fashion, while the end result of their endeavors remained the same. The East St. Louis employees processed customer remittance, prepared deferred payment agreements, and accepted occupancy permits. They then entered their work into the computer. Customers continued personal visits, but for water service or billing inquiries, they were referred to a phone connected with a computer center CIR.
12
The CIRs maintained customer contact only by telephone. They could handle requests for service or inquiries, but did not manually complete orders. The CIR keyed the requested service into the computer, and the order was transmitted to the appropriate district office. The computers gave the CIR the ability to retrieve customer records directly on the computer screen, thus eliminating the physical record retrieval employed before the computerization. Two CIRs, one having been an East St. Louis entry clerk, entered information into the computer and this replaced the pre-computer entry clerk duty of preparing route books and sending them to the Richmond office.
13
The CIRs and the East St. Louis unit employees receive slightly different wages and benefits. The CIRs are salaried employees and are paid semimonthly, while the district office employees are paid hourly wages on a weekly basis. Both work similar hours, although computer center employees work between 7:30 a.m. and 6:00 p.m. and the district office employees work from 8:00 a.m. to 4:30 p.m. The computer center employees receive one more holiday than the district office employees. All Illinois-American employees are covered by the same group health insurance and pension programs.
14
The interchange between the computer center and East St. Louis office is limited to contact by telephone or messenger, or through the computer system. McMillian is manager of the computer facility. He and Conner determine the wages, benefits and hours of the computer center employees. McMillian has the authority to fire or discipline computer employees, but Conner oversees McMillian and may be consulted if severe discipline is involved. Conner executes the collective bargaining agreements for southern division employees and participates in grievance procedures for those employees. The immediate supervisor of the computer center employees, Colleen Bromley, was a customer service supervisor of unit employees at the East St. Louis office before the opening of the computer center.
15
The Union filed its second grievance against Illinois-American on September 14, 1987. The Union stated that beginning March 17, 1987, Illinois-American had interfered with, restrained and coerced its employees in exercise of their section 7 rights by threatening to lay off employees if the Union objected to removal of computer center employees from the bargaining unit. The Union also claimed that beginning September 10, 1987, Illinois-American had failed and refused to bargain collectively and in good faith by removing the computer center employees from the bargaining unit and by refusing to recognize the Union as representative of computer center employees.
16
The hearing on these grievances occurred before an ALJ on February 8 and 9, 1988. The ALJ found that despite Illinois-American's contention to the contrary, the CIRs should be included in the East St. Louis district office bargaining unit. According to the ALJ, the CIRs performed the same basic functions as those performed in the district offices before the computer center opened, and the result of the endeavors of the two employee groups remained the same. He also determined that the offices are functionally integrated, the supervision is similar due to the overall control by Conner, and that the terms and conditions of employment are not substantially different. These findings led to the ALJ's ultimate determination that Illinois-American failed to show that the computer center employees are sufficiently dissimilar from the bargaining unit and that Illinois-American violated sections 8(a)(5) and (1) of the Act by refusing to recognize the Union as the exclusive bargaining representative of the computer center employees. He also found that Illinois-American violated section 8(a)(1) of the Act through Conner's threats of termination of unit employees if the Union insisted on representing the computer center employees as members of the East St. Louis bargaining unit. Regarding the Union's earlier grievance on the information problem, the ALJ concluded that the information requested by the Union in its letter of May 30, 1987, was relevant to the Union's function as bargaining unit representative, and that Illinois-American violated sections 8(a)(5) and (1) by refusing to furnish that information. The Board affirmed the ALJ's rulings, findings and conclusions and adopted the ALJ's order with an addition on the matter of compliance with the order as to information to be supplied.6 The Board then ordered Illinois-American to cease and desist from the unlawful conduct found by the Board; to honor, upon request, the collective bargaining agreement and to apply it to the computer center employees; and to make the computer center employees whole for losses suffered by Illinois-American's failure to apply the agreement to them.
II. ANALYSIS
A. Standard of Review
17
The Board found that Illinois-American violated sections 8(a)(1) and (5) of the Act. In reviewing a decision of the Board, "we are constrained to uphold the Board's determination if it is supported by substantial evidence in the record." NLRB v. American Printers and Lithographers, 820 F.2d 878, 881 (7th Cir.1987). As we stated in NLRB v. P*I*E Nationwide, Inc., 923 F.2d 506, 513 (7th Cir.1991), "[t]his standard of review does not allow us to dabble in fact-finding, and we may not displace reasonable determinations simply because we would have come to a different conclusion if we reviewed the case de novo." We now examine the Board's findings in light of this standard.
B. Threat of Termination
18
The Board found that Illinois-American violated section 8(a)(1) of the Act because of Conner's threats that bargaining unit employees would be terminated if the Union insisted that the computer center employees be considered part of the East St. Louis bargaining unit. It is an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise" of their section 7 rights. 29 U.S.C. Sec. 158(a)(1). Section 7 gives employees the right "to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection...." 29 U.S.C. Sec. 157.
19
In making this section 8(a)(1) finding, the ALJ considered conflicting testimony. Goodrick testified that in March 1987, in a meeting attended by Goodrick, two Union stewards, Illinois-American supervisors and Conner, Conner stated that the Union's representation demands would result in the hiring of new employees and the firing of unit employees. While the testimony by Goodrick, Conner and Union steward Mary Allen differed as to the actual date of this meeting and the people in attendance, the ALJ found that Conner's failure to deny that he made such comments in the presence of Union stewards justified crediting Goodrick's testimony and therefore the ALJ found that Conner made such a threat.7
20
Credibility determinations such as this "are to be made by the ALJ and the Board, and will not be overturned by a reviewing court absent extraordinary circumstances." NLRB v. Berger Transfer & Storage Co., 678 F.2d 679, 687 (7th Cir.1982); see also NLRB v. Roselyn Bakeries, Inc., 471 F.2d 165, 167 (7th Cir.1972) (duty of reviewing court to recognize the Board's ability to "judge the impact of the statements made in the context of the employer-employee relationship.") Extraordinary circumstances worthy of overturning a credibility determination include bias by the ALJ or the ALJ's disregard for sworn testimony. Berger, 678 F.2d at 679. No such circumstances exist in this case.
21
Illinois-American contends that there was no 8(a)(1) violation because Conner's statement was not threatening, coercive or intimidating and was not motivated by anti-union animus. The economic dependency of the employee on the employer makes the employee extremely sensitive to employer statements, therefore we "must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear." NLRB v. Gissel Packing Co., 395 U.S. 575, 617, 89 S.Ct. 1918, 1942, 23 L.Ed.2d 547 (1969).
22
An employer may express views about union representation, "so long as the communications do not contain a 'threat of reprisal or force or promise of benefit.' " Id. at 618, 89 S.Ct. at 1942. In considering whether a statement constitutes a threat to the right of self-organization, the test "is not whether an attempt at coercion has succeeded or failed, but whether the employer engaged in conduct which reasonably tends to interfere with, restrain, or coerce employees in the free exercise of their section 7 rights." Berger, 678 F.2d at 689. See NLRB v. Ajax Tool Works, Inc., 713 F.2d 1307, 1313 (7th Cir.1983). The statement made by Conner indicated that Illinois-American would retaliate against unit employees if they attempted to retain their Union representation. Conner uttered this threat to the Union representative and stewards, key figures with respect to the bargaining unit.
23
The positions of many of the district office unit employees were not going to be necessary after computerization. Employees who wished to maintain the bargaining unit status for computer center employees therefore faced the choice of representation or loss of employment. Such employer action is exactly what section 8(a)(1) is meant to prevent. Given our standard of deference to the ALJ and the Board and our reading of the testimony concerning Conner's statement, we accept the Board's credibility determination and we find that the Board's decision is supported by substantial evidence. We agree with the Board's finding that Illinois-American violated section 8(a)(1) of the Act.
C. The Appropriate Bargaining Unit
24
Section 8(a)(5) of the Act provides that an unfair labor practice occurs when an employer "refuse[s] to bargain collectively with the representatives of his employees." 29 U.S.C. Sec. 158(a)(5). Union representation is explained in section 9(a), which states "[r]epresentatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining...." 29 U.S.C. Sec. 159(a). The Board concluded that the computer center employees should be included in the East St. Louis bargaining unit and that Illinois-American violated sections 8(a)(5) and (1) by failing to recognize the CIRs as bargaining unit employees.
25
In beginning our examination of these violations of the Act, we first consider what constitutes an appropriate bargaining unit. In adopting the decision of the ALJ, the Board found the appropriate bargaining unit to be: "All office employees employed by [Illinois-American] at its Belleville computer center, and Granite City and East St. Louis District Offices, EXCLUDING employees performing group insurance and/or pension duties, other confidential employees, guards, and supervisors as defined in the Act."8
26
After a bargaining unit determination, the employer is required to recognize and bargain with the union as the representative of the unit employees. NLRB v. Bay Shipbuilding Corp., 721 F.2d 187, 190 (7th Cir.1983) (enforcing 263 N.L.R.B. 1133 (1982)). As Bay Shipbuilding explains, "[t]his obligation does not expire automatically when technological innovations affect the jobs of some of the employees in the unit. Rather the employer's obligations depend on whether the changes in job structure are so significant that the existing bargaining unit, including the affected employees, is no longer appropriate." Id. When such changes occur, the burden is on the employer to show "sufficient dissimilarity" to warrant severance from the bargaining unit. NLRB v. United Technologies Corp., 884 F.2d 1569, 1572 (2d Cir.1989) (citing Bay Shipbuilding, 263 N.L.R.B. at 1140, enforced, 721 F.2d at 191). The Board found that Illinois-American failed to sustain that burden. After reviewing the facts, we find that the Board's decision is supported by substantial evidence.
27
The need to maintain a fixed bargaining unit is a central element to the congressional purpose of "stabilizing labor-management relations in interstate commerce." United Technologies, 884 F.2d at 1572. For this reason, "once the bargaining unit is established by the collective bargaining agreement or by NLRB action, an employer may not remove a job within the unit without either the approval of the Board or consent of the union." Id. In this case, Illinois-American unilaterally removed the computer center employees from the district office bargaining unit. Illinois-American did not just create jobs that were non-Union positions, but instead removed the transferred East St. Louis employees from their bargaining unit, leaving them with no Union representation.
28
To determine an appropriate bargaining unit, the "Board looks to the bargaining history and the 'community of interest,' or lack thereof." American Printers and Lithographers, 820 F.2d at 881. As Bay Shipbuilding explains, "community of interest factors rather than strict definitions are the proper benchmarks for making unit determinations." 721 F.2d at 191. Illinois-American contends that the Board's decision is not consistent with the traditional application of community of interest principles.
29
As outlined in Ralph Rogers & Co. v. NLRB, 870 F.2d 379, 384-85 (7th Cir.1989),
30
[s]ome of the factors used by this circuit in determining whether a group of employees share a community of interests include: (1) the geographic proximity of the work sites; (2) a history of collective bargaining; (3) the degree of functional integration of the employer's operations; (4) the centralization of management and labor relations functions; (5) similarity in skills, employee benefits, wages and hours of work; and (6) the degree of employee interchange among the company's sites.
31
See also NLRB v. Speedway Petroleum, 768 F.2d 151, 155 n. 4 (7th Cir.1985). The issue to be considered following this community of interest analysis is whether a single bargaining unit comprised of the two groups would be appropriate. Illinois-American contends that the Board ignored the differences between the computer center employees and the East St. Louis unit employees. This is hardly the case. The ALJ's opinion enunciates the differences, but states that the differences are not substantial and do not merit the removal of the computer center employees from the bargaining unit. We agree.
32
Some of the differences listed by Illinois-American are trivial, such as the geographic distance between the Belleville computer center and the East St. Louis office. The offices are located ten miles apart; however, it is difficult to consider that as a negative factor for the Union since the bargaining unit under the 1986 agreement consisted of workers from the Granite City, East St. Louis and Belleville offices.
33
A key difference, according to Illinois-American, is the level of skills and training required for the different positions, as well as the equipment used. The ALJ and Board, however, did not agree and determined that the CIRs performed the same basic functions as did the district office employees before the computer center opened. Perhaps most importantly, the end result of their respective tasks remained the same. The Board determined that the offices are functionally integrated, the supervision is similar because of Conner's overall supervision, and that the terms and conditions of employment are substantially the same.
34
The Bay Shipbuilding and United Technologies cases concerned employment changes similar to the Illinois-American changes. In Bay Shipbuilding, the employer introduced computerization to the shipbuilding process of lofting. All of the loftsmen assigned to the new computerized department previously worked in the manual lofting department. The manual loftsmen were in the bargaining unit represented by the union, but the company determined that the loftsmen in the computerized department should not be in the bargaining unit. The ALJ and Board found, and this court agreed, that because both positions required the same basic skills, were under the same ultimate supervision and maintained substantial interaction, all lofting employees--manual or computerized--should be included in the original bargaining unit. 721 F.2d 187.
35
A similar situation arose in United Technologies, where the Board found that the position of control coordinator was an updated version of two previous positions "with minor changes attributable to new technology." 884 F.2d at 1572. So it is with the Illinois-American computer center employees--the differences are superficial alterations. Id. at 1573.
36
Illinois-American does not acknowledge that the duties of the employees in East St. Louis, who are undoubtedly in the bargaining unit, as well as the unit employees who became CIRs, have changed as a result of the computer center. An overlapping of the current functions of the computer center employees and the East St. Louis employees constitutes the work performed by unit employees before the opening of the computer center. Of course, some new functions are now being performed at the computer center, but this is simply a result of technological advances.
37
The ALJ described the situation with the computer center employees as a "hybrid" or "converse" accretion. Consolidated Papers, Inc. v. NLRB, 670 F.2d 754, 756-57 (7th Cir.1982), explains that
38
[a]n accretion is the addition of a relatively small group of employees to an existing bargaining unit where these additional employees share a sufficient community of interest with unit employees and have no separate identity. The additional employees are then absorbed into the existing unit without first having an election and are governed by the unit's choice of bargaining representative.
39
The common accretion situation occurs when new employees are absorbed into an existing unit because of the similarity of their job duties to those of the unit employees. The courts exhibit heightened concern when applying the accretion doctrine because the accreted employees receive union representation without voicing their own choice through an election. Consolidated Papers, 670 F.2d at 757 n. 4. To a certain extent, an accretion interferes with the employees' "freedom to choose their own bargaining agents." Id.
40
The reason the ALJ labeled the situation in this case as a "hybrid" is because Illinois-American employees came from within an existing unit and moved into new positions as a result of company organizational changes and technological advances. This was not a situation where the union tried to add completely new employees into an existing unit. Instead of an accretion that interfered with the freedom of the employees to choose their own bargaining agent, the Illinois-American policy actually robbed the transferred unit employees of their chosen representation.
41
Illinois-American argues that the Board erred in its accretion determination. We note that the Board's decision of accretion is comparable to a determination of an appropriate bargaining unit. Lammert Industries v. NLRB, 578 F.2d 1223, 1225 (7th Cir.1978). Thus, in reviewing that determination, we will not set aside the Board's decision unless we find that the Board acted arbitrarily and capriciously. Id. See also Consolidated Papers, 670 F.2d at 757. Our review of the evidence does not cause us to find that the Board's determination regarding the hybrid accretion and its inclusion of the computer center employees in the bargaining unit was arbitrary or capricious.
42
Having considered the relevant factors, we accept the Board's decision to include the computer center employees in the district office bargaining unit. We also find that the Board acted properly in finding that Illinois-American violated sections 8(a)(5) and (1) by failing to recognize the Union as exclusive bargaining agent for both the computer center employees and district office employees, and by failing to grant to the Union and computer center employees the rights that accompany that bargaining unit decision.
D. Information Request
43
As part of the section 8(a)(5) duty to bargain, an employer has a duty to furnish all information requested by a union that is necessary to the union in order for it to fulfill its obligation as representative of bargaining unit employees. NLRB v. Acme Industrial Co., 385 U.S. 432, 435-36, 87 S.Ct. 565, 567-68, 17 L.Ed.2d 495 (1967); NLRB v. Burkart Foam, Inc., 848 F.2d 825, 833 (7th Cir.1988); NLRB v. Pfizer, Inc., 763 F.2d 887, 889 (7th Cir.1985). Illinois-American failed to comply with the Union's request that it provide the Union with the name, address, home phone number, birth date, social security number, employment dates, and type of employment for each bargaining unit employee.
44
Illinois-American contends that it did not violate section 8(a)(5) by refusing to supply personal employee information because it did not have the consent of its employees. Illinois-American also argues that it should not have had to bear the burden of providing information already available to the Union. An employer "may defend against a request for information by showing that there is a clear and present danger that the union will use the information to harass employees." Burkart Foam, 848 F.2d at 833. Similarly, an employer may argue, as does Illinois-American, that it is withholding information to protect the privacy interests of its employees. The burden is on the employer to show a "legitimate claim to confidentiality," and Illinois-American failed to sustain that burden. Pfizer, 763 F.2d at 891.
45
The evidence did not show that the employees made any requests to Illinois-American that it refrain from disclosing personal employee information. The Union requested the information because it was in the process of storing member information in a new computer system. The Union submitted similar information requests to all employers with employees represented by the Union, and all but Illinois-American complied with the request.
46
The Board may determine that the employer has a duty to provide information if it finds even "a probability that the information is relevant and that it will be of use to the union in carrying out its statutory duties." Pfizer, 763 F.2d at 889. Because a "discovery-type" standard should be used in considering relevance of the requested information, " 'a broad range of potentially useful information should be allowed the union for the purpose of effectuating the bargaining process.' " Id. at 889-90 (quoting Procter & Gamble Manufacturing Co. v. NLRB, 603 F.2d 1310, 1315 (8th Cir.1979)). See also General Electric Co. v. NLRB, 916 F.2d 1163, 1168 (7th Cir.1990) (relevance most often viewed liberally to allow for broad disclosure of information). General Electric notes that "[s]ome information requested by unions is 'presumptively relevant' because it relates directly to unit employees and their conditions of employment and therefore goes to the core of the employer-employee relationship." Id. at 1171. Names, addresses, phone numbers and the rest of the information requested by the Union, basic employee information, certainly could be considered presumptively relevant. Id. at 1167. Regardless, given the expansive standard for disclosure of information, we find that the Board correctly determined that Illinois-American violated the Act by failing to provide the Union with the requested information.
III. CONCLUSION
47
Substantial evidence supports the Board's finding that Illinois-American violated sections 8(a)(1) and (5) of the National Labor Relations Act through its actions with respect to Union representation for the computer center employees and the refusal to furnish information requested by the Union. For the foregoing reasons, the Board's order is ENFORCED.
1
This order is reported at 296 N.L.R.B. 92 (1989)
2
In March 1986, the Union and Illinois-American entered into a three-year collective bargaining agreement. At oral argument, counsel for Illinois-American explained that there has not been a new collective bargaining agreement since the expiration of the 1986 agreement
3
The record indicates that the Granite City office is no longer staffed with bargaining unit employees. Those employees were transferred to the East St. Louis district office, as were the Belleville district office employees upon the closing of the Belleville office
4
Illinois-American did not produce any evidence to show that its employees requested withholding of personal information for privacy reasons
5
Illinois-American eventually transferred three more East St. Louis unit employees to the computer center. One of these three filled a supervisory position
6
The Board modified the Order to require Illinois-American to furnish to the Union the information requested in the letter of March 30, 1987. The ALJ inadvertently failed to include that requirement in the initial order
7
Conner did not deny making such statements to the Union stewards, and stated only that Goodrick was not present at the meeting with the stewards
8
On January 18, 1991, the Board reaffirmed its decision regarding the appropriateness of this bargaining unit in a related case between Illinois-American and the Union. Illinois-American Water Company, Southern Division and Office and Professional Employees Internat'l Union, 301 N.L.R.B. No. 23 (1991)
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436 U.S. 493 (1978)
GENERAL ATOMIC CO.
v.
FELTER, JUDGE, ET AL.
No. 77-1237.
Supreme Court of the United States.
Decided May 30, 1978.
ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS
PER CURIAM.
Petitioner has filed a motion for leave to file a petition for a writ of mandamus and requests that a writ of mandamus issue to the District Court for the First Judicial District, Santa Fe County, N. M., directing the court to vacate two orders on the ground that they violated this Court's mandate in General Atomic Co. v. Felter, 434 U. S. 12 (1977).
In that opinion, we held that under the Supremacy Clause of the United States Constitution the Santa Fe court lacked power to enjoin the General Atomic Co. (GAC) from filing and prosecuting in personam actions against the United Nuclear Corp. (UNC) in federal court. Upon remand, the Santa Fe court modified its injunction "to exclude from its terms and conditions all in personam actions in Federal Courts and all other matters mandated to be excluded from the operation of said preliminary injunction by the opinion of *494 the United States Supreme Court, dated October 31, 1977." Shortly thereafter, GAC filed a demand for arbitration with UNC of issues growing out of the 1973 uranium supply agreement around which the litigation between the parties revolves. This demand, filed with the American Arbitration Association, relied upon the Federal Arbitration Act, 9 U. S. C. § 1 et seq. (1976 ed.), and the arbitration clause of the 1973 agreement. GAC also filed demands for arbitration against UNC in the federal arbitration proceedings involving Duke Power Co. (Duke) and moved for permission to file a cross-claim against UNC in the arbitration proceedings involving Commonwealth Edison Co. (Commonwealth). Finally, GAC requested the Santa Fe court to stay its own trial proceedings with respect to issues subject to these arbitration demands. UNC, in addition to opposing this motion, also asked the court to stay the arbitration proceedings.
On December 16, 1977, the Santa Fe court issued a decision in which it concluded that GAC had waived any right to arbitration with UNC which it might have had because it failed to demand arbitration in a timely manner and that neither the Duke nor Commonwealth agreements gave GAC any right to demand arbitration with UNC. On the basis of these conclusions, Judge Felter filed the following order staying the arbitration proceedings:
"IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that United Nuclear Corporation's Application for Order Staying Arbitrations and Partial Final Judgment, be and the same hereby is granted.
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that further arbitration proceedings predicated upon the following demands for arbitration made by Defendant General Atomic Company against Plaintiff United Nuclear Corporation in the following arbitration proceedings, viz:
"A. The Demand for Arbitration filed by General Atomic *495 Company on November 29, 1977 with the American Arbitration Association for arbitration of the disputes arising under the 1973 Supply Agreement, a copy of which is attached to GAC's Motion to Stay Proceedings,
"B. Duke Power Company v. GAC, Case No. 31-10-0009-76, in Charlotte, North Carolina,
"C. Commonwealth Edison Company v. UNC, GAC and Gulf, Case No. 51-10-0106-74C in Chicago, Illinois
"shall be, and each of them hereby are, stayed until the further order of the Court, Provided, however, that this Partial Final Judgment shall not, in and of itself, operate to preclude Defendant General Atomic Company from asserting claimed federal rights in appropriate judicial proceedings.
"IT IS FURTHER ORDERED, DECLARED, DETERMINED AND ADJUDICATED that Defendant General Atomic Company has no right to arbitrate any issue in the aforesaid arbitration proceedings or pending herein against Plaintiff United Nuclear Corporation."
On December 27, 1977, the court formally denied GAC's motion to stay the trial pending completion of the arbitration proceedings.
During the course of our opinion in General Atomic Co., we specifically addressed the restrictions placed by the Santa Fe court's previous injunction upon GAC's attempt to assert what it believed to be federally guaranteed arbitration rights in other forums:
"What the New Mexico Supreme Court has described as `harassment' is principally GAC's desire to defend itself by impleading UNC in the federal lawsuits and federal arbitration proceedings brought against it by the utilities.11 This, of course, is something which GAC has every right to attempt to do under Fed. Rule Civ. Proc. 14 and the Federal Arbitration Act. . . . The right to pursue federal *496 remedies and take advantage of federal procedures and defenses in federal actions may no more be restricted by a state court here than in Donovan [v. Dallas, 377 U. S. 408 (1964)]. Federal courts are fully capable of preventing their misuse for purposes of harassment." 434 U. S., at 18-19.
Footnote 11 specifically addressed arbitration proceedings which are the subject of Judge Felter's new stay order:
"The injunction has also prevented GAC from asserting claims against UNC under the arbitration provision of the 1973 uranium supply agreement in the pending arbitration proceeding instituted against GAC and UNC by Commonwealth prior to its issuance, even though the District Court granted Commonwealth's demand for arbitration and the Seventh Circuit has affirmed. Commonwealth Edison Co. v. Gulf Oil Corp., 400 F. Supp. 888 (ND Ill. 1975), aff'd, 541 F. 2d 1263 (1976). In addition, the Western District of North Carolina federal court has refused to stay arbitration between Duke and GAC in a proceeding also instituted prior to the injunction, despite GAC's contention that UNC was an indispensable party to any such arbitration proceeding which it was prevented from impleading by the injunction. The court acknowledged, however, that UNC would be a proper party to the proceeding. General Atomic Co. v. Duke Power Co., 420 F. Supp. 215 (1976)."
In its order of December 16, 1977, the Santa Fe court has again done precisely what we held that it lacked the power to do: interfere with attempts by GAC to assert in federal forums what it views as its entitlement to arbitration.[1] Clearly, our *497 prior opinion did not preclude the court from making findings concerning whether GAC had waived any right to arbitrate or whether such a right was contained in the relevant agreements. Nor did our prior decision prevent the Santa Fe court, on the basis of such findings, from declining to stay its own trial proceedings as requested by GAC pending arbitration in other forums. But, as demonstrated supra, we have held that the Santa Fe court is without power under the United States Constitution to interfere with efforts by GAC to obtain arbitration in federal forums on the ground that GAC is not entitled to arbitration or for any other reason whatsoever. GAC, as we previously held, has an absolute right to present its claims to federal forums.
As was recently reaffirmed in Vendo Co. v. Lektro-Vend Corp., 434 U. S. 425 (1978), if a lower court "mistakes or misconstrues the decree of this Court, and does not give full effect to the mandate, its action may be controlled . . . by a writ of mandamus to execute the mandate of this Court." In re Sanford Fork & Tool Co., 160 U. S. 247, 255 (1895). A litigant who, like GAC, has obtained judgment in this Court after a lengthy process of litigation, involving several layers of courts, should not be required to go through that entire process again to obtain execution of the judgment of this Court. In light of the prior proceedings in this matter, it is inconceivable that upon remand from this Court the Santa Fe court was free to again impede GAC's attempt to assert its arbitration claims in federal forums. Because the Santa Fe court has refused or failed to comply with the judgment of this Court, petitioner's motion for leave to file a petition for a writ of mandamus is granted. Assuming as we do that the Santa Fe court will now conform to our previous judgment by promptly vacating or modifying its order of December 16, 1977, to the extent that it places any restriction whatsoever upon GAC's exercise *498 of its right to litigate arbitration claims in federal forums, we do not at present issue a formal writ of mandamus.[2] See Bucolo v. Adkins, 424 U. S. 641 (1976); Deen v. Hickman, 358 U. S. 57 (1958).
It is so ordered.
NOTES
[1] Although the court stated that its order staying the arbitration proceedings "shall not in and of itself operate to preclude Defendant General Atomic Company from asserting its claimed federal rights in appropriate judicial proceedings," the only plausible reading of this provision in light of the stay order is that the court did not view the proceedings in question as "appropriate."
[2] We do not read the December 27, 1977, order as restricting GAC from pursuing its arbitration claims in other forums. Consequently there is no occasion to disturb it.
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534 P.2d 1282 (1975)
John C. MORAN et al., Appellees,
v.
STATE of Oklahoma ex rel. Larry DERRYBERRY, Attorney General, Appellant.
No. 47716.
Supreme Court of Oklahoma.
May 2, 1975.
Stipe, Gossett, Stipe & Harper by Gene Stipe, John Estes and Carl Hughes, Oklahoma City, for appellees.
Larry Derryberry, Atty. Gen., James R. Barnett, Asst. Atty. Gen., William W. Gorden, Legal Intern, for appellant.
John Christopher Sturm, Commissioner, Edmund, Sam Hill and Mary Elizabeth Cox, Oklahoma City, for State Ins. Fund, amicus curiae.
*1283 DAVISON, Justice:
State of Oklahoma, ex rel. Larry Derryberry, Attorney General (Appellant), prosecutes this appeal from a judgment enjoining the State Insurance Fund Commissioner and the Board of Managers of the State Insurance Fund from proceeding, as directed by 85 O.S.Supp. 1974, §§ 152 and 153 (Senate Bill No. 726, Session Laws 1974), to liquidate assets of the State Insurance Fund to the extent of $4,000,000.00 and then deposit the proceeds in the Fund's account, to be expended only upon appropriation by the Legislature.
This action was instituted in the lower court by John C. Moran, William R. Allen, Anderson Development Company, Inc., and Lawrence Drilling Company, Inc., (Appellees), as employers in business activities subject to the Workmen's Compensation Law and insurable by the "State Insurance Fund", and currently policyholders with the State Insurance Fund. Their action was against the State Insurance Fund Commissioner (Executive Manager of the Fund) and the Board of Managers of the Fund, to enjoin the above mentioned liquidation of assets and the subjection thereof to Legislative appropriation. The Appellant, State of Oklahoma, ex rel. Larry Derryberry, Attorney General, intervened therein under authority of 12 O.S. 1971, § 1653, permitting such entry when a statute is alleged to be unconstitutional. The original defendants are not parties to this appeal. However, the State Insurance Fund by its Commissioner and attorneys appear Amicus Curiae.
The Journal Entry states the judgment was rendered when plaintiffs' (Appellees') Motion for Summary Judgment was sustained. The Journal Entry of Judgment further recites:
"That based upon the pleadings of the parties on file herein, the evidence and testimony adduced at this and prior hearings, and, the announcements of all counsels of record that there is no further evidence or testimony to be offered, the court finds that there are no facts at issue or yet to be determined."
Included in the above enumerated factors was the evidence and testimony produced by Appellees at the hearing relative to issuance of a temporary restraining order. The Appellant produced no witnesses or evidence.
*1284 The trial court found and adjudged there "are no excess, surplus funds in the trust funds of the State Insurance Fund," and further that said 85 O.S.Supp. 1974, §§ 152 and 153, and a companion appropriation bill (Sec. 4, of Senate Bill No. 434), infra, were unconstitutional and void on several grounds, including Art. 2, § 15, Oklahoma Constitution forbidding the passage of any law impairing the obligation of contracts.
The general proposition in this appeal concerns the authority of the Legislature to take and then appropriate, for other than Workmen's Compensation purposes, the funds or alleged surplus funds of the State Insurance Fund.
In 1974 the Legislature enacted 85 O.S. Supp. 1974, §§ 152 and 153, above mentioned.
§ 152 stated the purpose of the Act was to provide for disposition and use of "existing surplus funds of the State Insurance Fund in excess of the reserves and surplus authorized to be maintained by law."
§ 153 directed the State Insurance Fund Commissioner with the approval of the Board of Managers of the State Insurance Fund to liquidate assets in the State Insurance Fund Workmen's Compensation Account sufficient to cause $4,000,000.00 to be transferred to the State Insurance Fund, and such funds to be expended only upon appropriation by the Legislature.
§ 4, of Senate Bill No. 434, Oklahoma Session Laws, 1974, appropriated $4,000,000.00 to the State Board of Education, "from any monies in the State Insurance Fund" for the support of the public school activities.
The State Insurance Fund is an entity first created by an Act of the Legislature in 1933 (Laws 1933, Chap. 28, p. 58). The Act of 1933, with intervening amendments and some repealed sections, now appears in our statutes as 85 O.S. 1971, §§ 1 to 151, except as § 131 was amended in 1972 to permit expansion of insurance coverage to employment subject to the Longshoremen's and Harbor Workers' Compensation Act. The Fund was created during the Great Depression to satisfy the need for Workmen's Compensation insurance for companies unable to procure coverage from private insurance companies and for employers in high risk industries.
We are confronted with the proposition of, the status of the State Insurance Fund, the legal nature of its funds, including reserve funds, and the right of the State, acting through the Legislature, to take and use these funds.
Title 85 O.S. 1971, § 131, provides that the Fund shall be administered "without liability on the part of the State beyond the amount of said Fund" (Emphasis added); that it shall be a Revolving Fund consisting of premiums received, all property and securities acquired through use of its moneys, and all interest earned upon its moneys; and that "Said Fund shall be fairly competitive with other insurance carriers and it is the intent of the Legislature that said Fund shall become neither more nor less than self-supporting."
§ 134 thereof provides in part that the Fund shall have power and authority to enter into contracts of insurance within prescribed limits; to reinsure any risk or any part thereof; "To produce a reasonable surplus to cover catastrophe hazard." (Emphasis added).
§ 137 thereof provides in part, that ten (10%) per centum of the premiums shall be set aside for the creation of a surplus until it amounts to $250,000.00, and thereafter five (5%) per centum of the premiums until in the judgment of the State Insurance Board "such surplus shall be sufficiently large to cover the catastrophe hazard, and all other unanticipated losses." (Emphasis added), and further that "Reserves shall be set up and maintained adequate to meet anticipated losses and to carry all claims and policies to maturity, which reserves shall be computed in accordance with such rules as approved by the State Insurance Board." (Emphasis added).
The "State Insurance Board" mentioned above is now the State Board for Property *1285 and Casualty Rates. (36 O.S. 1971, §§ 107, 332). It is a part of the Insurance Department of the State of Oklahoma. (36 O.S. 1971, § 301).
In connection with § 137, we note that in the corresponding section in the 1933 Act (§ 7) supra, it was provided that the ten (10%) per centum portion of the premiums collected should initially be set aside for repayment of the appropriation made by State out of the General Revenue Fund for the purpose of putting the State Insurance Fund Act into operation. This has reference to a $25,000.00 appropriation provided in the original 1933 Act (§ 22), supra. The only evidence in the record before us is that this appropriation was never paid or set over to the State Insurance Fund. It appears to be agreed, or conceded, that no State appropriation has ever been used by the State Insurance Fund.
Under the provisions of 85 O.S. 1971, § 149, the State and all its departments are required to insure against liability for compensation with the State Insurance Fund, and all municipal corporations, including counties, cities, towns and townships, may insure with the Fund, unless rejected by the Fund, or any county, city, town or township may carry their own insurance.
At the hearing on the temporary restraining order all of the testimony was to the effect that the money reserves of the State Insurance Fund were not excessive and were in fact considerably below a safe margin when considered in connection with those of other similar State insurance funds.
The evidence supplied by Appellees (there was no contra testimony) reflected a premium income for the previous year (1973) of close to $6,000,000.00, with a pay-out of $1.04 for each $1.00 of premium income; that total reserves for losses were in the area of $8,000,000.00, to cover about 3000 open claims then pending, reserves for catastrophe losses, Longshoremen and unreported claims, and policyholders' liability reserve for about 1700 policies outstanding. In addition it was shown there was an expense reserve of about $650,000.00 required annually to operate the State Insurance Fund. It was the opinion of the State Insurance Fund Commissioner and of an expert consulting actuary in the field of Workmen's Compensation that the reserves were excessively low and inadequate; that the reserves, percentage-wise, were clearly below those maintained by the sixteen (16) other States having similar insurance funds; that the nature of the business of many of the Fund's policyholders, being high risk type or persons the private insurers would not accept, made reserve fund formulas used by private insurers not applicable in determining the amount of the Fund's reserves; that the 1972 inclusion of coverage Longshoremen and Harbor Workers was a recognized potential for large claims and expenditures; and that, considering all of the circumstances, the existing reserves should be increased by at least $4,000,000.00 or more.
In this connection, the Appellant contends that the practice of the State Insurance Fund in making refunds to policyholders (safety refunds) shows the Fund is making a "profit" and is evidence of a surplus. The record reflects that this is not an isolated situation, but is practiced generally in writing workmen's compensation, and is considered good practice by insurers. However, in view of our conclusions in determining the legal status of funds of the State Insurance Fund, the contention has no merit.
In view of the language in the statutes (supra), permitting considerable discretion in determining the amount of reserve funds, the fact that the reserve funds are the only source for paying claims (the State not being liable), and in the light of the undisputed evidence, we conclude that the trial court's finding of no "excess, surplus funds" in the funds of the State Insurance Fund is more than amply supported by the record.
This brings us to the matter of the legal status of the funds of the State Insurance Fund. The Appellant contends the funds *1286 are State monies, but admits this is a minority view.
In State v. Bone, Okl., 344 P.2d 562, we held the State Insurance Fund, as an agency or instrumentality of the State, did not have the immunity of the State from suit, and could be sued and held liable for damages because of negligence of its employee in operating a motor vehicle. Therein we stated at page 568:
"* * * * Under no circumstances can the general funds of the State be reached in order to satisfy an obligation of the Fund. Independent control exists in the Fund to operate and maintain an insurance company in the same manner as may be done by any privately owned insurance company. These factors permit it (the Fund) to be regarded as an independent business enterprise or entity."
And on page 569:
"* * * * we now hold that the State Insurance Fund is a business enterprise as distinguished from purely governmental activities, and tort liability attaches and may be adjudicated pursuant to the consent statute, Sec. 133, 85 O.S. 1951, supra. In creating and undertaking the operation of the State Insurance Fund, it is reasonable to think that the same responsibilities were intended to be assumed as ordinary insurance companies are obliged to assume."
These statements i.e., "Independent Control," and "operate and maintain in the same manner as privately owned insurance company," and "independent business," and "a business enterprise as distinguished from purely governmental activities," when joined with the legislative injunction "that said Fund shall become neither more nor less than self-supporting". (§ 131, supra), compel the conclusion that the Legislature did not intend for the State to gain a pecuniary profit from the operation, nor to gain by reason of an unexpected "windfall" in the nature of an alleged surplus or excess reserve, at the expense of the premium-paying employers or the employee beneficiaries, in a declared non-profit and non-loss insurance activity. That such is the clear majority view is shown by the authorities and decisions.
There is no question that should the State Insurance Fund become insolvent or fail to pay a workmen's compensation award, the employers insured by the Fund would be called upon to pay the award according to its terms. Atlas Wiring Co. v. Dorchester, 168 Okl. 337, 32 P.2d 913, and Rucks-Brandt Const. Corporation v. Silver, 194 Okl. 324, 151 P.2d 399. It is plain the insured employer is interested in seeing the Fund maintains reserves sufficient to pay any claims. It is also clear the employees of such employer have an interest in the maintenance of the reserves.
In Appleman, Insurance Law and Practice, Vol. 7A, § 4592, p. 190, "State Insurance Funds" it is stated:
"The purpose of a compensation act is to provide compensation for workmen injured in occupations defined by the act, and the funds created by the act, together with the revenues by which they are sustained, are trust funds devoted to the special purposes designated by the act."
And at page 192, as follows:
"The fund, itself, is not synonymous with the state, and claims against the fund are not claims against the state, the fund not being considered a state fund."
Also in Appleman, Vol. 7A, § 4594, pages 202, 203, "State Insurance Funds Payment Out of Funds" it is stated:
"The Industrial Accident Board, Compensation Commission, or whatever department stands in that stead, occupies a position of trust in relation to every person who is entitled to receive benefits from the funds, of which the Board is made trustee. The revenues received from the contributions of employers are a trust fund in the sense that a moral and legal obligation is imposed upon the state to use the revenues for the declared purposes for which they are collected."
*1287 In 100 C.J.S. Workmen's Compensation § 357b, page 40, relative to State Funds, we find the following:
"* * * * The fund is a public fund in the sense of being administered by a public body, and its character as a public fund is indicated by a statute providing that industrial insurance premiums shall be paid into the state treasury for the accident and medical aid funds; but it is not public money in the sense of being money of the state to be used for, and on behalf of, the state for a state expenditure."
It appears from the decision in Chez v. Industrial Commission of Utah, 90 Utah 447, 62 P.2d 549, 108 A.L.R. 365, that Utah had created a State Insurance Fund very similar to that of Oklahoma. In that case the determination of the rights of the parties depended on whether a debt or obligation owing to the Fund was an obligation or liability to the State. The Court held that a debt owing the Fund was not an obligation due the State, and in doing so determined the status or nature of the funds (premiums) received from employers, stating (62 P.2d p. 550), "The employer really pools his premiums in the State Fund to create a fund for the payment of an obligation for which it is liable. It is a common fund belonging to the participating employers. It is therefore not derived from anything owing to the state nor paid out on behalf of any state obligation," and at page 551, "The fund is publicly administered, but its debtors are not debtors to the state. It belongs, not to the state, but to the contributing employers for their mutual benefit." The court (p. 551) concluded that the State Insurance Fund, "while a public fund in the sense of being administered by a public body, is not public money in the sense that it is money of the state to be used for and on behalf of the state for a state expenditure * * *."
In State v. Yelle, 174 Wash. 547, 25 P.2d 569, 28 P.2d 1119, the State, as a part of its Workmen's Compensation Act, created and established a fund known as the "accident fund," and industries engaged in extrahazardous work were required to pay into this fund certain premiums, to provide compensation for injured workmen. The fund was to be "neither more nor less than self-supporting." The Legislature inserted in a general appropriation act a provision appropriating "From the Accident Fund" $1,000.00 for the relief of a named person in full settlement of his claim for injuries. The court ruled the appropriation invalid, stating, "These funds are therefore trust funds drawn from particular sources and devoted to special purposes. By the act itself the fund is impressed with a trust." The Court further held at 25 P.2d page 570:
"* * * * These funds are therefore not subject to appropriation by the Legislature for purposes other than those contemplated by the act nor by methods that run counter to the effective operation of the act." (Emphasis added)
The situation is the same in Oklahoma. Our Statute, 85 O.S. 1971, § 131(b) also specifies the uses the funds held by the State Insurance Fund shall be put to, as follows:
"Said Fund shall be applicable to the payment of losses sustained on account of insurance and to the payment of expenses in the manner provided in this Act."
Other decisions supporting the view that such funds are trust funds are: State v. Padgett, 54 N.D. 211, 209 N.W. 388, 391 ("The claims against the fund are not claims against the state, and the fund itself is not a state fund."); Senske v. Fairmont & Waseca Canning Co., 232 Minn. 350, 45 N.W.2d 640, 646, ("It is a fund which belongs to the industry, in which the state has no interest other than its proper administration."); State v. Olson, 43 N.D. 619, 175 N.W. 714, 717 ("not a state fund,") State v. Musgrave, 84 Idaho 77, 370 P.2d 778, 782 ("The money in the fund does not belong to the state,"); State v. McMillan, 36 Nev. 383, 136 P. 108, 110 (premiums could not be used or made available for payment of ordinary expenses *1288 of state government.); McArthur v. Smallwood, 225 Ark. 328, 281 S.W.2d 428 (are trust funds for workmen's compensation purposes, page 432.)
It is our conclusion the funds of the State Insurance Fund are not State funds and do not belong to the State, that such funds are trust funds for the benefit of employers and employees, and are not available for the general or other purposes of the State, nor are they subject to appropriation by the Legislature for purposes other than those contemplated by the State Insurance Fund Act.
This brings us to the matter of the constitutionality of 85 O.S.Supp. 1974, §§ 152, 153, and Senate Bill 434, § 4, Session Laws 1974, supra. There is no question about this, the legislative acts are unconstitutional.
Pursuant to the provisions of 85 O.S. 1971, § 148, every person, firm or corporation insuring in the "State Insurance Fund" shall receive from the State Insurance Fund "a contract or policy of insurance," for which these parties pay a premium to the Fund. The accumulated premiums, and property and securities acquired by use of such moneys, and interest earned therefrom are a "Revolving Fund," to be used to pay insurance losses and to pay expenses as provided in the Act. (§ 131). We have held (supra) that this fund is a trust fund for the benefit of insured employers and for their employees. The employers had a vested legal right, when they entered into the insurance contracts with the Fund and paid the premiums, to rely upon this trust being maintained and administered in accordance with the State Insurance Fund Act, supra, and the law applicable thereto.
In Baker v. Tulsa Building & Loan Ass'n, 179 Okl. 432, 66 P.2d 45, 46, we stated the well established rule of law as follows:
"The existing statutes and the settled law of the land at the time a contract is made become a part of it and must be read into it."
Therein we further stated:
"A `vested right' is the power to do certain actions or possess certain things lawfully, and is substantially a property right, and may be created either by common law, by statute, or by contract. And when it has once been created, and has become absolute, it is protected from the invasion of the Legislature by those provisions in the Constitution which apply to such rights."
Article 2, § 15, Constitution of Oklahoma, provides that no law impairing the obligation of contracts shall ever be passed.
The 1974 legislative laws, 85 O.S.Supp. 1974, §§ 152, 153, and § 4, of Senate Bill 434, Session Laws 19741 do impair the insurance contracts and rights of Appellees thereunder, and are unconstitutional and void.
Judgment of Trial Court is affirmed.
All Justices concur.
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875 F.2d 317Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.John Howard WILLIAMS, Plaintiff-Appellant,v.Jerry OVERCASH, City of Georgetown Police Department, JamesSimmons, Margaret Bromell, Tommy Boyd, WilliamFairey, Wilhelmina Izzard, Defendants-Appellees.
No. 88-6810.
United States Court of Appeals, Fourth Circuit.
Submitted March 22, 1989.Decided May 3, 1989.
John Howard Williams, appellant pro se.
William Walter Doar, Jr., Moore, Flowers & Doar, for appellees.
Before WIDENER, PHILLIPS, and CHAPMAN, Circuit Judges.
PER CURIAM:
1
John Howard Williams appeals from the district court's order denying relief under 42 U.S.C. Sec. 1983. Our review of the record and the district court's opinion accepting the recommendation of the magistrate discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court. Williams v. Overcash, C/A No. 87-83-2 (D.S.C. Sept. 6, 1988). We dispense with oral argument because the dispositive issues recently have been decided authoritatively.
2
AFFIRMED.
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ACCEPTED
05-18-00140-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
5/21/2018 12:48 PM
LISA MATZ
CLERK
Case No. 05-1 8-00140-CV
FILED IN
5th COURT OF APPEALS
IN TFIE COURT OF APPEALS FOR TFIE FIF'TH DISTRICT DALLAS,
OF TEXAS TEXAS
5/21/2018 12:48:06 PM
LISA MATZ
Clerk
ARCHER WESTERN CONSTRUCTION,LLC
Appellant
V
SOUTH TEXAS INNOVATIONS, LLC
Appellee
On appeal from the 193'd Judicial District Court of Dallas County, Texas
Ihe Honorable Carl Ginsberg presiding
APPELLANTOS REPLY BRIEF
Paulo Flores
State Bar No. 07164447
[email protected]
Timothy D. Matheny
State Bar No. 24000258
[email protected]
Tracey L. Williams
State Bar No. 24031954
twilliams@pecklaw. com
PECKAR & ABRAMSON P.C.
8080 N. Central Expwy.,
Suite 1600, LB 65
Dallas, Texas 75206
214-523 -51 00 (telephone)
21 4-521 -l 406 (facsimile)
IDENTITIES OF PARTIES AND COUNSEL
Parties
Archer Western Constructiono LLC
Appellant/Defendant/Cros s-Plaintiff/Cross-Defendant
South Texas Innovationso LLC
App e 1I e e/ D e fen d antlC ro s s - P IaintiffI Cro s s - D e fend ant
The Hanover Insurance Company
Interested Party
Counsel
Archer Western Construction, LLC
Trial and Appellate
Paulo Flores
State Bar No. 07164447
[email protected]
Timothy D. Matheny
State Bar No. 24000258
tmatheny @pecklaw.com
Tracey L. Williams
State Bar No. 24031954
twi I I i ams @p ecklaw. c om
PECKAR & ABRAMSON P.C.
8080 N. Central Expwy.,
Suite 1600, LB 65
Dallas, Texas 75206
(2t4) s23-sr00
1
South Texas Innovations, LLC and The Hanover Insurance Company
Trial and Appellate
Seth I. Rubinson
State Bar No. 24053908
srubinson@rubinsonlaw. com
RUBINSON LAW
1135 Heights Blvd.
Houston, Texas 77008
(832) 48s-48e9
fDamian W. Abreo - Mr. Abreo has withdrawn as counsel for STI and Hanover
State Bar No. 24006728
[email protected]
JOHNSON DELUCA KURISKY & GOULD
4 Houston Center
l22lLamar St., Suite 1000
Houston, Texas 770I0
(713) 6s2-2s2sl
Appellate only:
Nancy H. Elliott
State Bar No. 08701240
ne I I i ott@ zflaw ftrm. c om
ZABEL FREEMAN
1135 Heights Blvd.
Houston, Texas 77008
(7 t3) 802-ert7
1l
TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COTINSEL ... i
INDEX OF AUTHORITIES .iv
REPLY 1
I Preliminary Matters ........., 1
A. Standard of Review 1
B. Appellee cannot use evidence in this appealthat was not
presented to the Trial Court, and all such evidence should
be disregarded by this Court. 2
il. Appellee cannot validly make arry argument that Archer
expressllz waived the arbitration clause 2
A. There is no evidence whatsoever of an express waiver 2
B. There is no waiver by Archer of its waiver argument 4
C. The "evidence" presented, allegedly in support of
Appellee's argument of express waiver clearly does not
rise to the level of express 6
II. Archer did not substantially invoke the judicial process so as to
impliedly waive the arbitration clause. 6
m. Appellee has not shown legal prejudice sufficient for a finding
of an implied waiver of the arbitration clause ...16
ry Appellant hereby withdraws its Issue No. 1 - The trial court
erred (or, alternatively, abused its discretion) in denying Archer
Western's Motion to Stay the Proceeding and to Compel
Arbitration as the arbitration clause itself prohibits waiver.......... . 18
PRAYER . 18
CERTIFICATE OF SERVICE ......... .20
CERTIFICATE OF COMPLIANCE .20
111
INDEX OF AUTHORITIES
Page(s)
Cases
Apollo Theater Found., Inc. v. W. Int'l Syndication,
No. 02 CIV 10037,2004 U.S. Dist. LEXIS 11110 (S.D.N.Y. June
a
2r,2004) J
BBX Operating, LLC v. Am, Flourite, Inc.,
No. 09-17-00245-CV, 2018 WL 651276 (Tex. App.- Beaumont
February l, 201 8, no pet.)............. 3,14
In re Bruce Terminix Co.,
988 S.W.2d702 (Tex. 1998)...... 4
Cent. Educ. Agency v. Burke,
711 S.W.2d7 (Tex. 1986).... 5
Ellman v. J.C. Gen. Contractors,
419 S.W.3d 516 (Tex. App. - El Paso 2013, no pet.) .15, 16
In re Fleetwood Homes of Tex.,
257 S.W.3d 692 (Tex. 2008)...... ....4, l0
G.T. Leach Builders, LLC v. Sapphire V.P., L.P.,
458 S.W.3d 502 (Tex. 2015)...... 4,8,10, 11
Garcia v. Huerta,
340 S.W.3d864 (Tex.App.-San Antonio 2011, pet. denied)...... ......3
Greystar, LLC v. Adams,
426 S.W.3d 861 (Tex. App. - Dallas 2014, no pet) .2
Henry v. Cash Biz, LP,
No. 16-0854,2018 WL 1022838,2018 Tex. LEXIS 164, _S.W.3d
_ (Tex. F eb. 23, 20 1 8)...... 4
Hogg v. Lynch, Chappell & Alsup, P.C.,
480 S.W.3d767 (Tex. App. - El Paso 2015, no pet.)
1V
Okorafor v. (Jncle Sam & Assocs.,
295 S.W.3d27 (Tex. App. - Houston [1st Dist.], no pet.). .............3,15
Perry Homes v. Cull,
2s8 S.W.3d 580 (Tex. 2008).......... r,3, 4,7 , ll, 13, 16
Prof'l Advantage Sofnuare Solutions, Inc. v. West Gulf Mar. Ass'n Inc,,
No. 01-15-01006-CV, 2016 WL 2586690 (Tex. App.- Houston [1st
Dist.l May 5,2016, no pet.) I4
Triton Container Int'1, Ltd. v. Baltic Shipping Co,,
Civil Action No. 95-0427 CIW 95-2229,1995 WL 729329,1995
U.S. Dist. LEXIS 18213 (E.D.La. Dec.7,1995), affd,95 F.3d 54
(5th Cir.1996)...... .........3
Tuscan Builders, LP v. 1437 SH6 L.L.C.,
438 S.W.3d7I7 (Tex. App. - Houston [1st Dist.] 2014, no pet.).... 14
In re Vesta Ins. Group, Inc.,
192 S.W.3 d759 (Tex.2006) (p"t curiam) 10
Wisennant v. Arnett,
339 S.W.3d920 (Tex. App. - Dallas 2011, no pet.) 5
Other Authorities
Tex. R. App. 38.1 5
V
REPLY
I. Pnnr-rnananv MarrERS:
A. SraNoann or Rnvrnw
"A reviewing court should defer to a trial court's factual findings if they are
supported by the evidence, but ultimately the question whether a waiver has
occurred is a question of law, which an appellate court reviews de novo."l
Under a proper abuse-of-discretion review, waiver is a question of law
for the court, and we do not defer to the trial court on questions of
law. We do defer to a trial court's factual findings if they are
supported by evidence, but there was no factual dispute here . . . This
leaves only the conclusion whether such conduct constitutes
prejudice, a legal question we cannot simply abandon to the trial
court.2
In the case before this Court, there were no findings of fact by the trial court
whatsoever. In fact, the sum total of the trial court's Order, with respect to the
Motion to Compel Arbitration, was: "ON THIS DAY came to be heard Archer
Western's Motion to Compel Arbitration. Having taken the matter under
advisement, the Court herby DENIES the Motion to Compel Arbitration." As
such, there are no trial court findings of fact for this Court to consider, and it
reviews the trial court's action de novo, as a matter of law, for abuse of discretion.
t Hoggv. Lynch, Chappell & Alsup, P.C.,480 S.W.3d 767,780 (Tex. App. - El Paso
2015, no pet.)
t Perry Homes v. Cull,258 S.W.3d 580, 598 (Tex. 2008).
1
B. Appnr-r,nE cANNor usn EVIDENCE IN THIS AppBAL THAT wAs Nor
IRESENTED To tnn TRr,ql, Counr, AND ALL sucH EvTDENCE sHouLD
BE DTSREGARDED BY THrs Counr.
The evidence submitted by South Texas Innovations, LLC ("Appellee") for
its argument of waiver consisted of the 15 exhibits to Appellee's Response and
Opposition to Archer Western Construction's Motion to Stay and Compel
Arbitration ("Response"), and the testimony at hearing of Damien Abreo and Gary
Haymond, as found in the Reporter's Record. All other evidence presented to this
Court by Appellee, including the Supplemental Clerk's Record submitted by
Appellee to this Court on April 18, 2018, with the exception of those parts
duplicative of the Response exhibits, should be disregarded and not considered by
this Court. Any items not presented to the trial court will not be considered by a
court of appeals in its scope of review of the trial court's action.3
il. Appnr,r,nn cANNor vALIDLy MAKE ANy ARGUMENT THAT ARcrrnn
EXPRESSLY WAIVED THB ARBITRATION CLAUSE.
A. There is no evidence whatsoever of an express waiver
There was never any evidence of express waiver presented by Appellee to
the Trial Court. (In fact, as addressed next, Appellee did not even raise the issue of
express waiver at the trial court level.) There could be no evidence of express
3
Greystar, LLC v. Adams,426 S.W.3d 861, 865 (Tex. App. - Dallas 2014, no pet.)("It is
well-established an appellate court may not consider matters outside the record, which includes
documents attached to a brief as an exhibit or an appendix that were not before the trial court.");
See also Hogg,480 S.W.3d at787, n. 10.
2
waiver, as none exists, as supported by one of Appellee's own cited cases. As
stated by Appellee in its Brief: "Express waiver arises when a party affirmatively
indicates that it wishes to resolve the case in the judicial forum, rather than through
arbitration."a A case relied on by Appellee in its Brief amplifies on this, and
makes clear that the word "express" means what it says - express:
Aparty makes an express waiver when it 'affirmatively indicates that
it wishes to resolve the case in the judicial forum, rather than through
arbitration.' Ohorafor v. (Jncle Sam & Assocs., lnc.,295 S.W.3d 27,
39 (Tex.App.-Houston [1st Dist.] 2009, pet. denied); see Triton
Container Int'L, Ltd. v. Baltic Shipping Co., CIY.A. 95-0427, 1995
WL 729329, at *3 (E.D.La. Dec. 8, 1995), aff d, 95 F.3d 54 (5th
Cir.I996) (party's communication to opposing counsel expressly
stating that it intended to settle the case and did not intend to seek
arbitration, was an express waiver of the right to arbitrate); Garcia v.
Huerta, 340 S.W.3d 864, 867 (Tex.App.-San Antonio 2011, pet.
denied) (court found express waiver where party affirmatively stated
in settlement agreement that it was waiving its right to enforce an
5
arbitration agreement).
As the cases cited in Hogg make clear - for express waiver to occur, there has to be
an express statement affirmatively stating something to the effect of "I waive
arbitration." Just for reference, in Perry Homes v. Cull, the only Texas Supreme
a
Appellee's Brief atpg.18, citing, Okorafor v. (Jncle Sam & Assocs.,295 S.W.3d 27,39
(Tex. App. - Houston ;1't Dist.1, no pet.); see also BBX Operating, LLC v. Am. Flourite, Inc.,
No.09-17-00245-CV,2018 WL 651276, at *15 (Tex. App. - Beaumont February 1,2018, no
pet.); and Apollo Theater Found., Inc. v. W. Int'l Syndication, No. 02 CIV 10037, 2004 U.S.
Dist. LEXIS 11110, at *8 (S.D.N.Y. June2I,2004).
t Hogg,480 S.W.3d at78l.
a
J
Court case finding a waiver of an arbitration clause,6 even a 79 page objection to
arbitration was not found to be an express waiver of the arbitration clause; the
Texas Supreme Court still underwent the implied waiver analysis: "But under the
totality-of-the-circumstances test, discovery is not the only measure of waiver
Here, when the warranty defendants initially moved to compel arbitration, the
Culls filed a 79-page response opposing it . In our case, there was no
evidence of express waiver argued or submitted by Appellee to the trial court, nor
could there be - no such evidence exists.
B. There is no waiver by Archer of its waiver argument
Appellee argues, at page 20 of its Brief, "Archer Western has waived any
complaint about its express waiver of arbitration by failing to raise it in the trial
court and its brief." Not only does this argument have no merit whatsoever,
Appellee never argued express waiver to the trial court, either in its Response or in
its oral argument to the trial court. Nowhere in Appellee's Response, nor in its
argument to the Court, does Appellee ever refer to, or invoke, express waiver. A11
u
In Hurry v. Cash Biz, LP,2018 WL 1022838,2018 Tex. LEXIS 164, (Tex.
-S.W.3d -, have
Feb.23,2018), a case cited in Appellee's Response, the Texas Supreme Court noted, "We
declined to conclude that the right to arbitrate was waived in all but the most unequivocal of
circumstances." The Texas Supreme Court then cites to its Perry Homes opinion where it did
find a waiver; and then to G.T. Leach Builders, LLC,458 S.W.3d at 5l2,In re Fleetwood Homes
of Tex., 257 S.W.3d 692,694 (Tex. 2008), and In re Bruce Terminix Co.,988 S.W.2d 702,703-
04 (Tex. 1998), as cases in which it did not find waiver. The Texas Supreme Court could have
equally said that only one case exists in which it concluded that the right to arbitrate was waived.
7
Pnrry Homes,258 S.W.3d at596.
4
of Appellee's argument, both in its Response,t as well as in its argument to the trial
court,e addressed the concept of implied waiver, specifically: (1) substantial
invocation of the judicial process; and (2) prejudice to Appellee. As Appellee
states in its own Response, "It is well established that 'fi]ssues not expressly
presented to the trial court may not be considered on appeal as grounds for
reversalf.1r,10 11 is Appellee who has never argued express waiver.
It is clear from the Reporter's Record that all the trial court judge considered
was implied waiver. The judge himself stated: "I think we're just talking about
1 1
invocational process."
In any event, Appellant is appealing the trial court's one sentence denial of
its Motion to Compel Arbitration. There is no reason to, nor is Appellant obligated
to, separate out and address different subsets of waiver.
8
In fact, a word search reveals the word "express" does not appear in STI's Response.
e
All references by Mr. Rubinson in the Reporter's Record are to "substantial invocation"
and "prejudice;" he never even uses the word "express," much less does he argue an express
waiver, or present any evidence whatsoever of an express waiver. Mr. Rubinson mentions
substantial invocation of the judicial process at RR pg. 7,line 16; pg. 8, line s 3-4; p9.9, lines 5-
6and16;pg.27,line25;andpg.29,line5. Heonlymentions"prejudice"once,atRRpg.29,
Iine 7, but at least he mentions it and clearly intended to put on evidence of prejudice (although it
was clear insufficient). And, as stated above, "express waiver" is never even mentioned.
r0
Respotrre atpg.35, (citing Cent. Educ. Agencyv. Burke,711 S.W.2d 7,8 (Tex. 1986);
see also Whisennant v. Arnett,339 S.W.3d 920,926 (Tex. App. - Dallas 2011, no pet.); and Tex.
R. App. 38.1.
r1
RR atpg.15, lines l2-I4. (It is clear from RR at pg. 7, lines 10-16 that the trial judge
used "invocational" as shorthand for "substantial invocation of the judicial process.")
5
C. The ooevidence" presented, allegedly in support of Appelleeos
argument of express waiver clearly does not rise to the level of
express waiver:
If somehow this Court still believes that there is any issue in this case
regarding express waiver; this is the sum total of Appellee's "evidence," as argued
in its Brief to this Court, of express waiver:
Certainly. I had initiated two separate lawsuits on behalf of South
Texas Innovations. One lawsuit was against Lennar MultiFamily
Communities, which is the entity developing the projects that forms
the basis of this suit. The other was against Archer Western
Construction, the general contractor.
In both cases, opposing counsel filed motions to compel arbitration,
motions to stay. We had a discussion, and in the course of that
discussion, it was agreed -- and please allow me to use that word in
the loose sense, not a Rule 11 or a formal contract -- but it was agreed
between us that I would nonsuit the arbitration. And there's a number
of reasons for that. I would then move to consolidate the case against
Archer into the pending litigation brought by Beaird. And the
statement was, we won't move this to arbitration as long as we can get
everything resolved in the context of one lawsuit. Does that answer
your question?12
It is self-evident - this is not an express waiver of an arbitration clause
il. AncTTnn DID NoT SUBSTANTIALLY INVOKE THE JUDICIAL PRoCESS So AS TO
IMPLIEDLY WAIVE THE ARBITRATION CLAUSE.
Appellant agrees with Appellee that the applicable standard for this Court to
consider is the "Totality of the Circumstances Test" announced by the Texas
t'RR Il-12 - testimony by Appellee's former counsel, Damian Abreo, to the trial courl.
6
Supreme Court in Peruy Homes v. Cull.t3 This has been thoroughly briefed by the
Parties, but a few points in reply to Appellee's Brief:
Appellee's statement at page 28 of its Response, that "Archer purposely
delayed in seeking arbitration until after the trial court denied its motion for
continuance and shortly before the trial setting" is absolutely inaccurate. The
trigger here, which is conveniently ignored by Appellee, was the mediation date.
On January 9,2018, mediation was held on Beaird's claims, pursuant to order of
the trial court, and all of Beaird's claims were settled, leaving only the claims
between Archer Western and STI for adjudication. Therefore, on January 22,
2018, Archer Western filed its Motion to Stay the Proceeding and to Compel
Arbitratiotrto 1th. "Motion to Compel Arbitration") that is the subject of this
appeal. Subsequently, on February 27, 2018, the trial court signed the Agreed
15
Order to Dismiss Certain Claims and Parties with Prejudice. This was the point
in the life of this lawsuit when all that existed were claims subject to the arbitration
clause. This is consistent, for example, with why pleadings, etc. filed after the
consolidation did not have a statement saying they were subject to the Motion to
Arbitrate.
t3
Pnrry Homes,258 S.W.3d at59I-592.
to
CR at pages 244 - 256.
t5
CSR at pages 40 - 43.
7
With respect to the counterclaim referenced by Appellee in its Brief, at page
25: (l) As cases cited in Appellee's own Brief state: "the filing of defensive
pleadings, including mandatory or compulsive counterclaims, made in response to
a party's pleadings, do not necessarily waive arbitration."16 (2) As pointed out in
Appellant's Brief, the trial court granted the relief requested by Appellant - it put a
stop to the serial lien filing engaged in by Appellee that was interfering with
funding for the construction project.lT This is clearly not a case in which Appellant
sought judicial relief that was denied and then sought to switch to a different forum
- arbitration. (3) Appellee, surely, cannot engage in wrongful conduct that is
subsequently restrained by the trial court,l8 and use Appellant's protective and
defensive response as a basis for claiming waiver.
With respect to Appellee's argument that Appellant sought extensive merits-
based discovery from STI, this is simply not borne out by the record. The
discovery listed at page 27 of Appellee's Response was largely defensive and
related to Beaird Drilling's claims, as detailed at pages 28 and 29 of Appellant's
'u Hogg,480 S.W.3d at784 (Tex. App. - El Paso 2015, no pet.) (citing G.T. Leach
Builders,458 S.W.3d at 512-13).
tt To the extent the Court considers the supplemental record filed by Appellee, the
Temporary Restraining Order entered by the trial court on December 4,2077 and the Agreed
Temporary Injunction Order entered by the trial court on December 14,2017 are part of such
record - 2nd Supp. CR217-19 and228-89 (none of which were presented to the trial court, in the
Response or at hearing).
r8
To the extent the Court considers the supplemental record, see 2nd Supp. CF*2I7-I9
and228-89.
8
Brief. The legal standards are addressed in Appellant's Brief, as well as further
addressed below using Appellee's own cases.
Although not hugely material, Appellee's timing calculation - a delay of 5-
l12 months - is actually inaccurate. Appellee calculates its timing from the date it
filed suit, JuIy 7,2017 . The proper calculation should be when Appellant appeared
in this case - August 28,2017.te Appellant filed its Motion to Compel Arbitration
on January 22,201820 - less than five months after answering and appearing in this
suit.2r Acknowledging that length of delay standing alone is not dispositive, only
one of the cases cited by both Parties to this Court even contemplates such a short
time peri od - Hogg v. Lynch, Chappett & Alsup.2' Ar detailed below, Hogg had
extreme facts - Ms. Hogg perjured herself to the trial court and moved to abate for
arbitration on the eve of suffering death penalty type sanctions from the trial court.
As noted, even in Hogg:
LCA contends that it was prejudiced by Ms. Hogg's delay in seeking
arbitration, pointing out that Ms. Hogg had been aware of the
existence of the arbitration clause from the outset of litigation, yet
waited to file her motion to compel arbitration three months after the
parties began discovery, and less than four months before the trial
te
csR atpg.12.
20
CR at pages 244 - 256.
" RR atpg. 13, lines 19-25; and pg. 14, lines 1-16. Of course, even that is
Snn, e.g.,
irrelevant - the Motion to Compel Arbitration was filed within two weeks of the triggering event
- the mediation, and was actually filed even before the dismissal of the Beaird Drilling claims.
" Hogg,480 S.W.3d 767.
9
setting. We do not, however, find that this approximate three-month
delay, standing alone, prejudiced LCA's case. In fact, various courts
have found that much longer delays are not sufficient to cause
prejudice to the opposing party's case. See, e.g., In re Fleetwood
Homes of Tex., L.P.,257 S.W.3d 692, 694 (Tex.2008) (per curiam)
(eight-month delay);In re Vesta Ins. Group, Inc., 192 S.W.3d 759,
763 (Tex.2006) (per curiam) (two-year delay).z3
As covered thoroughly in Appellant's Brief, typically the delays addressed by the
Courts are far in excess of five months, almost always over a year, and often in
excess ofa year and a half.
Finally, as to this issue, a survey of the Courts of Appeal cases cited by
Appellee in its Brief where a finding of waiver was found or sustained, actually
push toward a finding by this Court that under the Totality of the Circumstances
Test there has clearly not been a substantial invocation of the judicial process by
Appellant, nor a sufficient showing of prejudice to Appellee, such as to overcome
the heavy burden to show an implied waiver of the arbitration clause. We start
with the incredibly thorough Hogg opinion, which has already been cited heavily
in this Reply.
Key points from Hogg follow:
a As noted above, "the filing of defensive pleadings, including
mandatory or compulsive counterclaims, made in response to a party's
pleadings, do not necessarily waive arbitration."2a
23
Id. at7gl.
2a
Id. at 784 (citing G.T. Leach Builders,458 S.W.3d at 512-13)
10
a "Ms. Hogg correctly points out that there are multiple cases in which
the parties engaged in far more extensive discovery for far longer
periods of time, yet the courts in those cases found that arbitration had
not been waived. In fact, the Supreme Court recently chronicled
several of its holdings in which it declined to find a waiver despite
rather extensive and prolonged discovery periods ranging from six to
nineteen months."25
o "Although how long a party has engaged in pretrial activities is one
factor to be considered in determining whether arbitration has been
waived, a court should not look simply to the number of days between
the initiation of litigation and the request for arbitration; instead, the
court should consider how extensive the discovery was in the context
of the facts of a particular case."26
o "Ms. Hogg's own attorney admitted in his sworn affidavit that at least
half of the discovery conducted went to the question of the
enforceability of the contingent fee agreement, which clearly went to
the merits of this ease."21
o "While we cannot conclude that the parties in this case conducted 'full
discovery,' we are able to conclude that the parties had conducted a
substantial amount of discovery with regard to this single-issue case,
and were likely nearing the end of the discovery proceedings when
Ms. Hogg filed her motion to compel arbitration. Once again,
however, this does not end our analysis, as the next factor is perhaps
the most important factor in our determination whether Ms. Hogg
substantially invoked the judicial process [--] Ms. Hogg Willingly
Engaged in Litigation Until She Faced an Adverse Ruling."28
2s
Id. at788 (citing G.T. Leach Builders,458 S.W.3d at 514-15).
'6 Id.lcitingCitizens Nat'l Bank 271 S.W.3d at 355 (citing Percy Homes,258 S.W.3d at
590, 593)).
" Id. at7B9.
'8 Id.
11
a In readingHogg, it is crystal clearthis was the crux of the case - the
reason why both the trial court and the El Paso Court of Appeals
found a waiver of the arbitration clause. In the interest of brevity, the
facts will be summarized here, but they can be found at page 777 of
the Hogg opinion. In summary, Ms. Hogg responded to a Request for
Production that no recordings between her and the Defendant (the
party opposing arbitration) existed; she so testified under oath to the
trial judge in a motion to compel hearing; however, she had (probably
accidentally) sent an email to Defendant stating: "Hey do not mention
that i recorded every meeting with those attys in midland. Idk if its
legal. And u def dont want them knowing i recorded mediation! My
new attys will deal with it please dont even tell ur dad! No one needs
to know! Love u dont worry! Focus on u sweet baby girl. Say ur
prayers. It wil all come out in the end. I only appear to be stupid son! I
love yall! George is watching over us! Hugs! Thank you, DGHogg.u2e
Probably not surprisingly, when on the eve of being sanctioned Ms.
Hogg filed a Motion to Abate for Arbitration, such Motion was
denied, and the denial was affirmed by the El Paso Court of Appeals.
o It is clear from the Hogg opinion that the overarching basis for the
Court's holding was the inescapable conclusion that Ms. Hogg was
trying to avoid soon to be placed sanctions. "In the present case, Ms.
Hogg was willing to participate in the discovery process and to litigate
the discovery battle with LCA in a judicial forum only up until the
point that she received an adverse ruling from the district court and
was faced with the possibility of having the court impose case-
30
crippling sanctions." "[T]here can be no doubt that her strategy in
attempting to switch forums at this critical juncture was her only hope
2e
Id. at777. (Ms. Hogg's son's name was Scott Lee Whitley; the attorney, who was with
the Defendant law firm, was named Scott Ryburn; it appears Ms. Hogg meant to send her son
Scott, not to the Scott that worked for her opponent.)
30
Id. at7go.
T2
of getting a 'second bite at the apple' on the issue of the parties'
3I
discovery dispute."
o The Hogg Court then came back to this theme, as quoted below, to
find prejudice. But first, pertinent to our case, the El Paso Court of
Appeals found there was insufficient evidence presented of prejudice
with respect to costs incurred. Just as in this case, the evidence of
costs in Hogg was very general and generic. "However, as set forth
above, in the present case, not only did LCA fail to provide any
evidence of the costs it incurred in responding to Ms. Hogg's
discovery requests, it failed to provide any evidence from which we
could conclude that the discovery requested by Ms. Hogg was
"substantial" or that LCA provided her with 'extensive' documents in
response to her requests."32 "Therefore, based on the record before
us, we are unable to conclude that LCA would suffer any significant
financial detriment if the parties' dispute was submitted to
arbitration."33
a However: "In determining whether prejudice has resulted in 'cases of
waiver by litigation conduct, the precise question is not so much when
waiver occurs as when a party can no longer take it back.' Perry
Homes,258 S.W.3d at 595. In the present case, we conclude that the
point at which Ms. Hogg could not 'take it back' occurred when, after
willingly participating in litigation over the discovery dispute, she
suffered an adverse ruling from the trial court, and was faced with the
nearcertainty of having a sanctions order entered against her. Ms.
Hogg's last-ditch effort to save her case from the impending sanctions
order, by seeking a new forum in which she could potentially
34
relitigate that issue, simply came too late."
3t
Id. x79r.
32
Id. at 793.
33
Id.
34
Id. at796.
I3
o "Therefore, because we find that Ms. Hogg purposefully and
unjustifiably manipulated the exercise of her arbitral rights to her own
advantage and to LCA's prejudice, we conclude that, based on these
35
unique facfs, Ms. Hogg waived her right to arbitration."
These "unique facts" are obviously extreme; the facts before this Court in no
way approach the unique facts in Hogg
Below, is a brief statement of why the remaining Courts of Appeal cases
cited by Appellee actually support Appellant's position in this appeal (in reverse
date order):
o BBX Operating, LLC v. Americqn Flourite, Inc., No. 09-17-00245-
CY,2018 WL 651276 (Tex. App. - Beaumont February 1,2018, no
pet.) - The basis for denial of the motion to compel arbitration was
invocation of relief by movant and that relief was denied by the trial
court, and then movant moved to compel arbitration. "BBX then
received an adverse ruling when the trial court denied BBX's motion
to enforce the Rule 11 Agreement. Only after receiving this adverse
ruling did BBX file its demand for arbitration." BBX Operating at *8.
o Prof'l Advantage Sofnuare Solutions, Inc. v. West Grlf Mar. Ass'n
1nc., No. 01-15-01006-CV, 2016 WL 2586690 (Tex. App. - Houston
[lst Dist.] May 5, 2016, no pet.) - Particularly egregious facts -
Almost three year delay in filing motion, and three attempted
summary judgment motions engaged in by movant, all denied by the
trial court, after which movant moved to compel arbitration.
a Tuscan Builders, LP v. 1437 SH6 L.L.C.,438 S.W.3d 717 (Tex. App.
- Houston [1't Dist.] 2014, no pet.) - One year delay in filing motion,
during which not only did movant engage in substantial discovery,
movant also joined third parties, and then benefitted from their
substantial discovery.
3t
Id. le phasis added)
t4
a Ellman v. JC Gen. Contractors,4l9 S. W. 3d 516 (Tex. App. - El
Paso 2013, no pet.) - Three year delay in filing motion and movant
admitted, in court pleadings, to have conducted "extensive discovery."
Ellman at 519.
a Okorafor v. Uncle Sam & Associates, lnc.,295 S.W.3d 27 (Tex. App.
- Houston [1" Dist.] 2009, pet. denied) - 21 month delay in filing
motion and motion was filed after movant had received respondent's
discovery, but before movant had provided discovery responses and
documents to respondent. The trial court even abated the hearing on
the motion to compel arbitration to allow movant to respond to the
discovery, and movant failed to properly do so, at which point the trial
court denied the motion. "Armed with discovery provided by Uncle
Sam and facing a looming deadline to produce discovery requested by
Uncle Sam, the Okorafors tried to have it both ways and moved to
compel arbitration." Okorafor at 40. As to prejudice: "Because the
Okorafors had not complied coffespondingly with Uncle Sam's
requested discovery, Uncle Sam would be essentially handicapped by
having to arbitrate without benefit of any discovery responses from
the Okorafors, including potentially deemed admissions." Id. at 4I.
The trial court even deferred on ruling on the Okorafors' motion to
arbitrate and gave them a week's extension to answer discovery, and,
at a subsequent hearing the trial court determined, "the responses
provided within that week were incomplete, missing, inadequate, and
thus 'deficient."' Id. The Houston Court of Appeals agreed with the
trial court that, "To compel Uncle Sam to arbitrate, thus hampered by
a lack of knowledge of the Okorafors' case, would result in an 'unfair
advantage' to the Okorafors." Id.
These Courts of Appeal cases provided by Appellee further push toward the
inescapable conclusion that Appellant did not impliedly waive the arbitration
clause by substantially invoking the litigation process to the extremely high degree
required.
15
ilI. AppnT,T.nB HAS NoT SHowN LBGAL PREJUDICE SUFFICIENT F.oR A FINDING
OF AN IMPLIED WAIVER OF THE ARBITRATION CLAUSE.
The sum total of Appellee's evidence of prejudice is that Appellee has
incurred attorney's fees between $101,000 and $104, 000 "on the Archer Western
litigation," plus Mr. Rubinson's January 2018 invoice.36 Incidentally, as can be
seen at RR. 20, lines 16 - 22, Appellee argues that this does not include the costs of
it taking depositions of Appellant's personnel a few weeks prior to the hearing,
which it claims should be added. Courts are clear - costs incurred by a non-movant
to obtain discovery cannot and should not be considered in the prejudice analysis.
"[A] party who requests lots of discovery is not prejudiced by getting it
Mr. Haymond did not attempt any segregation of fees whatsoever.
During cross-examination, Mr. Haymond admitted he could not provide any
more detail, including he could not even break down as to how much of the
amount was due to Beaird Drilling, the former Plaintiff in this suit, and how much
was due to Archer Western. Nor did he break down how much was due to
Appellee's affirmative actions against the other parties to the case.
here today, how does that 101 to 104,000 break
Q. And as far as this lawsuit
down as between defending against Beaird's claims versus prosecuting and
defending the Archer Western claims?
'6 RR atpg.20, lines 7-22; andpg.2I,lines2I-25.
" Pnrry Homes,258 S.W.3d at 600 (emphasis in original). See also Ellman,4l9 S.W.3d
at 522 ("The discovery initiated by JC does not provide a basis for finding prejudice.").
16
A. So just like I said, it's the lawyers' bill per case, and I just added all the
ones that said Archer Western.
a. So you can't tell me how much of those fees are related to Beaird
specifically?
A. I didn't. I wasn't asked to provide that information
a. Okay. And would you agree with me Beaird Drilling has been very
aggressive in its prosecution of this case?
A. Not toward us.
Q. How about towards Archer Western?
A. Yeah, a lot of - - I saw a lot of paper flying to Archer.
a.And every deposition that Beaird has noticed in the case against Archer
Western, against the Lennar entities, against Mr. Allums, your attorneys
have attended those depositions, correct?
A. Damian attended the first few solely.
Q. You've always had an attorney present?
A. Yes, sir.38
As detailed atpages 31 - 37 of Appellant's Brief, this is simply insufficient
evidence to uphold a finding of prejudice sufficient to overcome the extremely
high burden of showing an implied waiver of an arbitration clause
38
RR aI" pg. 25,lines 1 I-25; and pg. 26,lines 1- 13
t1
IV Appnr,r,nNT HEREBy wrrHDRAws rrs Issun No. 1 - THn rRrAL couRT
ERRED (ono , ALTERNATTvELv, ABUSED ITS orscnnrron) rN DENvING
ARcnnn WnsrnnN's MotloN To Sra.v rnn PnocEEDING AND To Conmpr,
AnnTTn,tTIoN As THE ARBITRATIoN CLAUSE ITSELF PROHIBITS wAIvER.
The clause at issue states: "Subcontractor waives to the fullest extent
permitted by law any objection that they may now or may hereafter have to having
arbitration proceedings conducted in the state or United States territory in which
the Project is located, including any claim that it is an inconvenient forum for such
arbitration or court proceedings." Appellant's reading of this clause was that
"conducted in the state or United States territory in which the Project is located"
simply was part of the term "arbitration proceedings;" i.e., "arbitration proceedings
conducted in the state or United States territory in which the Project is located."
Appellant concedes Appellee's reading, that this is a waiver about objecting to
forum location, is a more logical reading of the clause, and hereby withdraws Issue
No. 1.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Archer Westem Construction,
LLC hereby requests that this Court reverse the order of the Trial Court and render
an order staying the underlying proceedings and compelling arbitration between
the remaining parties to this case - Archer Westem, STI, and Hanover. Archer
Western Construction, LLC further prays for such other and further relief, at law
and in equity, to which it may show itselfjustly entitled
l8
Re spectfully submitted,
PECKAR & ABRAMSON, P.C.
By: /s/ Paulo Flores
Paulo Flores
State Bar No. 07164447
[email protected]
Timothy D. Matheny
State Bar No. 24000258
[email protected]
Tracey L. Williams
State Bar No. 24031954
twi I I i ams @p e cklaw. com
8080 N. Central Expressway
suite 1600, LB 65
Dallas, Texas 7 5206-1819
(214) 523 -5 1 00 Telephone
(21 4) 521 -4601 Facsimile
ATTORNEYS FOR APPELLANT
t9
CERTIFICATE OF SERVICE
I hereby certifl' that on this the 2l't day of May, 2018, a true and correct
copy of the above foregoing instrument was served upon all counsel of record in
accordance with the Texas Rules of Appellate Procedure.
/s/ Paulo Flores
Paulo Flores
CERTIFICATE OF COMPLIANCE
In compliance with Rule 9.4(iX3) of the Texas Rules of Appellate
Procedure, I hereby certifr that there are 5,138 words total in the foregoing
document, according to the Word count, excluding those words permitted to be
excluded by Rule 9.4(iX1) of the Texas Rules of Appellate Procedure.
/s/ Paulo Flores
Paulo Flores
20
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252 So.2d 851 (1971)
Jewel Evangeline ROWAN, Appellant,
v.
The STATE of Florida, Appellee.
No. 69-959.
District Court of Appeal of Florida, Third District.
September 28, 1971.
Rehearing Denied October 20, 1971.
Jack J. Taffer, Miami, for appellant.
Robert L. Shevin, Atty. Gen., for appellee.
Before CHARLES CARROLL, HENDRY and BARKDULL, JJ.
PER CURIAM.
Appellant was charged by information with the crime of murder in the second degree. Upon trial she was found guilty of murder in the third degree and was so adjudged, and sentenced accordingly. On her appeal therefrom it is argued the evidence was insufficient to permit conviction for the crime of murder in the third degree, and was insufficient to have supported a finding of guilt of the crime charged. It is further contended by appellant that the trial court committed reversible error in allowing, over objection, use by the state of a rebuttal witness who had not been included in a furnished list of prospective witnesses.
Upon consideration thereof in the light of the record and briefs we conclude no reversible error has been made to appear. While the evidence was not without conflict, the record discloses a sufficiency of evidence upon which the defendant could have been found guilty of second degree murder. The jury's conviction of *852 the defendant for the lesser degree of murder was permissible in law. The ruling allowing the state to use a rebuttal witness not previously listed was within the discretion of the trial court, and the circumstances in which the ruling was made were not shown to be such as should cause this court to reverse the judgment. See Rhome v. State, Fla.App. 1969, 222 So.2d 431; Buttler v. State, Fla.App. 1970, 238 So.2d 313; Howard v. State, Fla.App. 1970, 239 So.2d 83. In conformity to those rulings, the trial court in its discretion may permit production of testimony of a rebuttal witness not previously listed, where the need or occasion for such rebuttal testimony is prompted by testimony presented on behalf of the defendant, and where the necessity for it reasonably may not have been anticipated.
Affirmed.
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757 N.W.2d 108 (2008)
MACOMB TOWNSHIP, Plaintiff-Appellee,
v.
Ronald MICHAELS and Dolores Michaels, Defendants-Appellants.
Docket No. 136923. COA No. 286640.
Supreme Court of Michigan.
October 27, 2008.
Order
On order of the Court, the motion for immediate consideration is GRANTED. The motion for reconsideration of this Court's August 1, 2008 order is considered, and it is DENIED, because it does not appear that the order was entered erroneously.
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16‐1837‐cv
Davis v. Brown, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 20th day of December, two thousand
4 seventeen.
5
6 PRESENT: GERARD E. LYNCH,
7 RAYMOND J. LOHIER, JR.,
8 Circuit Judges,
9 CHRISTINA REISS,
10 Chief District Judge.*
11 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
12
13 COREY DAVIS,
14
15 Plaintiff‐Appellant,
16
17 v. No. 16‐1837‐cv
18
19 JOY BROWN,
20
21 Defendant–Cross‐Claimant–Appellee,
22
23 PODS INC.,
24
* Chief Judge Christina Reiss, of the United States District Court for the District of
Vermont, sitting by designation.
1 Defendant–Cross‐Defendant–Appellee.**
2 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
3
4 FOR APPELLANT: Corey Davis, pro se, Bradford, PA.
5
6 FOR APPELLEES: Marc I. Kunkin, Hill Rivkins LLP,
7 New York, NY, for PODS Inc.
8
9 Joy Brown, pro se, Hempstead, NY.
10
11 Appeal from orders of the United States District Court for the Eastern
12 District of New York (Sandra J. Feuerstein, Judge).
13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
14 AND DECREED that the appeal from the District Court’s October 2015 order is
15 DISMISSED for lack of jurisdiction, and the District Court’s May 2016 order is
16 AFFIRMED.
17 Corey Davis, pro se and incarcerated, appeals from the October 2015 order
18 of the District Court (Feuerstein, J.) dismissing his complaint pursuant to the
19 parties’ stipulation and its May 2016 order denying his motion for relief pursuant
20 to Rules 60(b)(1) and 60(b)(3) of the Federal Rules of Civil Procedure. We
21 assume the parties’ familiarity with the facts and record of the prior proceedings,
22 to which we refer only as necessary to explain our decision to dismiss in part and
23 affirm in part.
** The Clerk of Court is directed to amend the official caption as set forth above.
2
1 We have determined sua sponte that Davis’s notice of appeal was untimely
2 filed with respect to the October 2015 dismissal order. The timely filing of a
3 notice of appeal in a civil case is a jurisdictional requirement. Bowles v. Russell,
4 551 U.S. 205, 214 (2007). A notice of appeal “must be filed with the district clerk
5 within 30 days after entry of the judgment or order appealed from.” Fed. R.
6 App. P. 4(a)(1)(A); see also 28 U.S.C. § 2107(a). The time to file a notice of appeal
7 is tolled during the pendency of a Rule 60 motion if that motion is filed within 28
8 days after the judgment is entered. Fed. R. App. P. 4(a)(4)(A)(vi). But
9 subsequent Rule 60 motions will not toll the time to appeal; only the first motion
10 does so. Glinka v. Maytag Corp., 90 F.3d 72, 74 (2d Cir. 1996). Although
11 Davis’s first Rule 60 motion tolled the time to file a notice of appeal, the District
12 Court denied that motion on January 14, 2016, giving Davis until Tuesday,
13 February 16, 2016 to file his notice of appeal. See Fed. R. App. P. 26(a)(1)(C).
14 Davis did not appeal until four months later, in June 2016. Accordingly, we lack
15 jurisdiction to review the October 2015 order.
16 Davis also appeals the District Court’s May 2016 order, arguing that he was
17 entitled to relief pursuant to Rule 60(b)(6) because the District Court did not have
18 the authority to modify the stipulation and proposed order before dismissing the
3
1 action. Even assuming that Davis has not forfeited this argument about the
2 District Court’s lack of authority, see McLeod v. Jewish Guild for the Blind, 864
3 F.3d 154, 156 (2d Cir. 2017), the District Court did not abuse its discretion in
4 dismissing the case without retaining jurisdiction over the settlement agreement
5 because, as Davis’s own submission to the District Court made clear, retention of
6 jurisdiction was not a condition of the parties’ settlement agreement, and Rule
7 4l(a)(l)(ii) of the Federal Rules of Civil Procedure does not enable parties to
8 obligate a court to retain such jurisdiction.
9 As a result, the District Court properly declined to exercise ancillary
10 jurisdiction over enforcement of the settlement agreement. See Hendrickson v.
11 United States, 791 F.3d 354, 358 (2d Cir. 2015). Federal courts are courts of
12 limited jurisdiction that do not automatically retain jurisdiction over the
13 enforcement of settlement agreements. Id. To retain ancillary jurisdiction over
14 the enforcement of a settlement agreement, the District Court’s order of dismissal
15 must either expressly retain jurisdiction or incorporate the terms of the settlement
16 agreement. Id. Here, the District Court’s dismissal order explicitly did not
17 retain jurisdiction or incorporate the terms of the settlement agreement.
18
4
1 We have considered Davis’s remaining arguments and conclude that they
2 are without merit. Accordingly, we DISMISS the appeal from the District
3 Court’s October 2015 order and AFFIRM the District Court’s May 2016 order
4 denying Rule 60 relief.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk of Court
5
| {
"pile_set_name": "FreeLaw"
} |
2016 IL 119006
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 119006)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JESUS
COTTO, Appellant.
Opinion filed May 19, 2016.
JUSTICE KILBRIDE delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Freeman, Thomas, Karmeier, Burke, and
Theis concurred in the judgment and opinion.
OPINION
¶1 This appeal asks this court to decide if every postconviction petitioner
represented by counsel is entitled to a reasonable level of assistance from counsel
after first-stage proceedings, regardless of whether counsel was appointed or
privately retained. The appellate court is split on the issue. Compare People v.
Csaszar, 2013 IL App (1st) 100467, ¶ 25 (reasonable level of assistance standard
does not apply to privately retained counsel), with People v. Anguiano, 2013 IL
App (1st) 113458, ¶ 31 (reasonable level of assistance standard applicable to both
retained and appointed counsel).
¶2 The circuit court granted the State’s motion to dismiss defendant’s
postconviction petition, and a divided appellate court affirmed. 2015 IL App (1st)
123489, ¶ 13. For the reasons that follow, we conclude that the reasonable level of
assistance standard applies to both retained and appointed postconviction counsel.
We reject the appellate court’s contrary conclusion but affirm its judgment on an
alternative basis.
¶3 BACKGROUND
¶4 Following a bench trial in 2008, defendant was found guilty of armed robbery.
Based on defendant’s prior felony convictions, the Cook County circuit court
sentenced him as a habitual criminal to natural life imprisonment.
¶5 At defendant’s trial, the State presented the testimony of 14-year-old
Guadalupe Cardenas and 14-year-old Kelvyn Negron. On May 7, 2008, Cardenas,
Negron, and Cardenas’s younger sister were walking home from school when
defendant exited an alley and approached them. Defendant grabbed Negron in a
“choke hold” and demanded his personal belongings. As defendant and Negron
struggled, Cardenas attempted to pull Negron away from defendant. Defendant
threatened Cardenas with a gun from his sleeve. Defendant ripped two gold chains
off Negron’s neck and then ran to a nearby parked car. Cardenas memorized the
license plate of defendant’s vehicle and provided police with that information.
¶6 Ultimately, defendant was apprehended by police officers based on the victims’
descriptions of their assailant and his vehicle. Cardenas and Negron identified
defendant from a police lineup. Defendant confessed to taking the gold chains from
Negron but denied possessing a gun during the robbery. Instead, defendant claimed
he had a piece of black rubber tubing inside his sleeve.
¶7 The trial court found defendant guilty of armed robbery. Based on defendant’s
prior Class X felony convictions for armed robbery and aggravated vehicular
hijacking with a weapon, he was sentenced as a habitual criminal to natural life
imprisonment. On direct appeal, the appellate court affirmed defendant’s
conviction and sentence. People v. Cotto, No. 1-08-3031 (June 3, 2009)
(unpublished order under Supreme Court Rule 23).
¶8 On September 28, 2011, defendant, through privately retained counsel, filed a
postconviction petition. That petition is the subject of the instant appeal.
-2-
¶9 In the postconviction petition, defendant claimed he was denied his due process
rights when the trial court failed to explain his right to substitution of judge.
Defendant also raised numerous claims of ineffective assistance of trial and
appellate counsel. Specifically, defendant alleged that his trial counsel was
ineffective for failing to: (1) discuss the case and defendant’s criminal background
with him and his family members; (2) conduct an independent investigation into
the underlying criminal incident; (3) adequately prepare defendant for trial;
(4) speak to other witnesses; (5) challenge the reliability of the victims’
identification of defendant; (6) present expert testimony on gun-barrel diameters to
challenge the veracity of the victims’ testimony that defendant possessed a gun;
(7) request a hearing on natural-life sentencing; and (8) properly prepare defendant
for the sentencing hearing, including obtaining mitigation material. Defendant also
alleged trial counsel was ineffective for soliciting details of defendant’s criminal
background from him during his direct testimony and asking defendant to
“basically lie about having a rubber tube.”
¶ 10 Defendant’s postconviction petition further alleged that his trial and appellate
counsel were ineffective for: (1) “failing to notice, argue, preserve, and raise the
procedural error issue of not receiving adequate notice of [the] government’s
request for natural life” and (2) failing to provide defendant with notice of the
appellate court’s decision within 30 days to preserve his right to appeal.
¶ 11 In support of his petition, defendant attached more than 100 pages of court
transcripts from his trial and various pretrial and posttrial hearings. Defendant also
attached affidavits from his brother and mother, who averred that defendant’s
counsel failed to communicate with them throughout trial and appeal and failed to
inform them about defendant’s conviction and the appellate court’s decision until
more than 30 days had lapsed. Lastly, defendant attached his own affidavit
corroborating the allegations in his petition and a copy of an envelope from his
counsel addressed to defendant’s mother, postmarked September 4, 2009.
¶ 12 The trial court advanced defendant’s petition to second-stage proceedings. On
March 30, 2012, the State filed a motion to dismiss the petition. The State argued
that the petition was not timely filed and that defendant failed to allege the untimely
filing was not due to his culpable negligence. The State also argued that
defendant’s substantive claims were barred by res judicata and waiver and
consisted primarily of unsupported, conclusory allegations. The State further
asserted that none of defendant’s claims made a substantial showing of a
-3-
constitutional violation, and, therefore, defendant was not entitled to an evidentiary
hearing.
¶ 13 On August 17, 2012, defendant’s postconviction counsel filed a response to the
State’s motion, arguing that the petition was untimely filed because trial counsel
failed to inform defendant about the appellate court’s June 3, 2009, decision. In
support, defendant alleged that the attached envelope, addressed to his mother and
postmarked September 4, 2009, proved that the notice of appeal was mailed to his
mother and not to defendant. Accordingly, defendant alleged that the “petition
establishes clear facts that suggest the delay was not due to defendant’s culpable
negligence.”
¶ 14 On November 2, 2012, the circuit court held a hearing on defendant’s petition,
and the parties presented extensive arguments on the substantive claims in the
petition. Following arguments, the court allowed the State’s motion to dismiss
defendant’s petition. The court found that the record did not substantiate
defendant’s claim that his trial counsel suborned perjury. The court also found that
“[t]he decisions made by [trial counsel] in the course of the trial appear to have
been within that range of [a] lawyer’s decisions and judgments which *** certainly
do not rise to the level of deprivation of a constitutional right under the Sixth
Amendment.” The court determined it was clear from the record that defendant was
apprised of his eligibility for a natural life sentence. Relevant to the issue in this
appeal, the trial court did not reference the timeliness of defendant’s petition or
otherwise indicate that the dismissal was based on the petition’s untimely filing.
¶ 15 On appeal, defendant argued solely that his privately retained postconviction
counsel did not provide him with the requisite “reasonable level of assistance”
during the second-stage proceedings because counsel failed to contest the State’s
assertion that defendant’s petition was untimely based on his culpable negligence.
A majority of the appellate court rejected defendant’s argument and affirmed the
circuit court’s dismissal of his postconviction petition. 2015 IL App (1st) 123489,
¶ 13.
¶ 16 Relying on People v. Csaszar, 2013 IL App (1st) 100467, the appellate court
majority concluded that defendant’s claim failed because only pro se petitioners
are entitled to a reasonable level of assistance in postconviction proceedings and
defendant hired private counsel to file his postconviction petition. 2015 IL App
(1st) 123489, ¶ 10. Citing Csaszar, the majority explained that “although a pro se
-4-
defendant had a right to reasonable assistance from appointed counsel, neither the
Act nor case law supported the claim that the State was required to provide
reasonable assistance of counsel for any petitioner able to hire his own
postconviction counsel.” 2015 IL App (1st) 123489, ¶ 10 (citing Csaszar, 2013 IL
App (1st) 100467, ¶¶ 18, 25).
¶ 17 The appellate majority acknowledged the contrary conclusion reached in
People v. Anguiano, 2013 IL App (1st) 113458, a decision that determined the
Post-Conviction Hearing Act requires a reasonable level of assistance from all
postconviction counsel, appointed and privately retained. The majority, however,
declined to follow Anguiano and “continue[d] to find the reasoning in Csaszar
persuasive.” 2015 IL App (1st) 123489, ¶ 11.
¶ 18 Alternatively, the majority explained that even under Anguiano, it would affirm
the dismissal of defendant’s petition. The majority found that defendant’s retained
counsel provided reasonable assistance when counsel recognized the procedural
hurdle of untimeliness and argued that defendant was not culpably negligent for the
late filing. The majority also observed that defendant “failed to explain what
additional steps counsel should have taken to overcome the late filing, and it
appears to have been the best option available.” 2015 IL App (1st) 123489, ¶ 12.
¶ 19 The dissenting justice agreed with the rationale from Anguiano. Applying
Anguiano, the dissent believed that postconviction counsel failed to provide a
reasonable level of assistance in explaining the untimeliness of defendant’s
petition. 2015 IL App (1st) 123489, ¶¶ 17-19 (Pucinski, P.J., dissenting).
¶ 20 We allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Jan.
1, 2015).
¶ 21 ANALYSIS
¶ 22 On appeal, defendant argues that his privately retained postconviction counsel
failed to provide him with a reasonable level of assistance “by failing to adequately
contest the State’s assertion that he was culpably negligent in filing his petition
late.” Defendant acknowledges the split of appellate authority on the issue of
whether retained counsel must be held to the same “reasonable level of assistance
standard” applicable to appointed counsel. Defendant urges this court to adopt the
-5-
reasoning of Anguiano, holding that both retained and appointed counsel must
provide reasonable assistance.
¶ 23 In response, the State agrees with defendant that all postconviction petitioners
are entitled to reasonable assistance from their counsel, regardless of whether
counsel is appointed or retained. The State argues, however, that defendant was
provided with the requisite reasonable level of assistance in this case. The State
contends that defendant’s postconviction counsel acted reasonably by offering an
explanation for the untimely filing of defendant’s petition. Moreover, the State
notes that the circuit court did not reference the late filing of defendant’s petition
when it granted the State’s motion to dismiss.
¶ 24 The parties’ respective arguments present questions of law that we review
de novo. People v. Clemons, 2012 IL 107821, ¶ 8. This court also reviews de novo
the dismissal of a postconviction petition without an evidentiary hearing. People v.
Hall, 217 Ill. 2d 324, 334 (2005).
¶ 25 The primary issue in this appeal is whether postconviction petitioners who
retain private counsel are entitled to a reasonable level of assistance, the same level
of assistance guaranteed to pro se petitioners with appointed counsel after a
petition advances from first-stage proceedings under the Post-Conviction Hearing
Act (725 ILCS 5/122-1 et seq. (West 2010)). As this case demonstrates, the
appellate court is split on the issue.
¶ 26 Initially, we summarize the familiar procedural framework of the Act. 725
ILCS 5/122-1 et seq. (West 2010). The Act provides a method for an individual
subject to a criminal sentence to challenge a conviction by alleging it was the result
of a substantial denial of federal or state constitutional rights, or both. 725 ILCS
5/122-1 et seq. (West 2010). The Act provides a three-stage process for
adjudicating petitions. People v. Hommerson, 2014 IL 115638, ¶ 7. At the first
stage, the circuit court determines whether the petition is “frivolous or is patently
without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2010). If the petition is not
dismissed at first-stage proceedings, it advances to the second stage. Hommerson,
2014 IL 115638, ¶ 7.
¶ 27 During second-stage proceedings, the court may appoint counsel for an
indigent defendant, who may amend the petition as necessary, and the State may
file a motion to dismiss or an answer to the petition. 725 ILCS 5/122-4, 122-5
(West 2010). If the court appoints counsel at the second stage, appointed counsel is
-6-
required to file a certificate showing compliance with Illinois Supreme Court Rule
651(c), namely, stating that appointed counsel has consulted with the defendant,
examined the record of trial proceedings, and made any necessary amendments. Ill.
S. Ct. R. 651(c) (eff. Feb. 6, 2013); see also People v. Turner, 187 Ill. 2d 406, 410
(1999) (noting that “Supreme Court Rule 651(c) outlines the specific duties of
appointed counsel in post-conviction proceedings”).
¶ 28 At the conclusion of the second stage, the court must determine whether the
petition and any accompanying documentation make a substantial showing of a
constitutional violation. People v. Edwards, 197 Ill. 2d 239, 245-46 (2001). If not,
the petition may be dismissed. Edwards, 197 Ill. 2d at 246. If the requisite showing
is made, however, the petition advances to the third stage, and an evidentiary
hearing is held. Edwards, 197 Ill. 2d at 246.
¶ 29 Relevant to the controversy in this case, it is settled that there is no
constitutional right to assistance of counsel during postconviction proceedings.
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Johnson v. Avery, 393 U.S. 483,
487-88 (1969). Accordingly, this court has explained that “[t]he right to assistance
of counsel in postconviction proceedings is a matter of legislative grace, and a
defendant is guaranteed only the level of assistance provided by the
Post-Conviction Hearing Act.” People v. Hardin, 217 Ill. 2d 289, 299 (2005).
¶ 30 This court has concluded that the Act provides a postconviction petitioner with
“reasonable” assistance. Hardin, 217 Ill. 2d at 299; People v. Owens, 139 Ill. 2d
351, 358-59 (1990). Indeed, the reasonable assistance standard has been applicable
to Illinois postconviction proceedings for two decades. See Anguiano, 2013 IL App
(1st) 113458, ¶¶ 19-22 (detailing the development of this court’s jurisprudence on
the standards applicable to postconviction counsel’s performance).
¶ 31 This court has broadly rejected any distinction between appointed and retained
counsel for purposes of Illinois Supreme Court Rule 651(c). People v. Richmond,
188 Ill. 2d 376, 380-81 (1999). After examining the language of that rule, we
explained that “we can discern no apparent reason not to impose on retained
counsel in this case the same requirements that we impose on appointed counsel
representing a defendant who originally files a pro se post-conviction petition.”
Richmond, 188 Ill. 2d at 381.
¶ 32 This court has also required reasonable assistance from privately retained
postconviction counsel at the first and second stage of postconviction proceedings.
-7-
See People v. Mitchell, 189 Ill. 2d 312, 358 (2000) (reviewing retained counsel’s
performance under the reasonable assistance standard). Notably, this court has
never held that the reasonable assistance standard is inapplicable to a
postconviction defendant who retained private counsel or otherwise distinguished
between appointed and retained counsel for purposes of that standard.
¶ 33 Nonetheless, the appellate court here determined that the reasonable assistance
standard is not applicable when a defendant is represented by privately retained
counsel during second-stage proceedings. Relying on People v. Csaszar, 2013 IL
App (1st) 100467, ¶ 25, the appellate court majority concluded that retained
postconviction counsel is not required to provide a reasonable level of assistance.
2015 IL App (1st) 123489, ¶¶ 10-11.
¶ 34 In Csaszar, the defendant hired private counsel to file his postconviction
petition, and the petition was dismissed at the second stage. On direct appeal, the
defendant argued only that his retained counsel failed to provide him with
reasonable assistance. Csaszar, 2013 IL App (1st) 100467, ¶ 15.
¶ 35 Rejecting the defendant’s argument, the Csaszar court first noted that a
postconviction petitioner does not have a constitutional right to assistance of
counsel in postconviction proceedings. Csaszar, 2013 IL App (1st) 100467, ¶ 16
(citing People v. Guest, 166 Ill. 2d 381, 412 (1995)). The court in Csaszar
recognized this court’s consistent holdings that postconviction petitioners are
entitled to a reasonable level of assistance from appointed counsel under Illinois
Supreme Court Rule 651(c) (eff. Feb. 6, 2013). See Csaszar, 2013 IL App (1st)
100467, ¶ 16 (collecting cases). The Csaszar court concluded, however, that those
holdings guaranteed reasonable assistance only to pro se petitioners with appointed
counsel because “Rule 651(c) applies only when the petitioner files his original
postconviction petition pro se, and not when the petitioner obtains the assistance of
retained counsel.” Csaszar, 2013 IL App (1st) 100467, ¶ 16.
¶ 36 The court also rejected the defendant’s reliance on decisions this court issued
before the adoption of Rule 651(c) that guaranteed a specific level of assistance
from postconviction counsel. The court explained that those earlier decisions were
also based on concerns about the quality of representation that appointed counsel
provided to indigent defendants. Csaszar, 2013 IL App (1st) 100467, ¶ 17.
Accordingly, the court in Csaszar concluded that, because “the Act does not
require reasonable assistance of retained counsel,” the defendant failed to state a
-8-
cognizable claim on appeal, and it affirmed the dismissal of the defendant’s
petition. Csaszar, 2013 IL App (1st) 100467, ¶ 25.
¶ 37 In contrast, the appellate court reached the opposite conclusion in People v.
Anguiano, 2013 IL App (1st) 113458, ¶ 22, holding that both retained and
appointed counsel are required to provide a reasonable level of assistance to a
defendant in second-stage postconviction proceedings. In Anguiano, the privately
retained counsel who represented the defendant on direct appeal filed a
postconviction petition, alleging that the defendant’s trial counsel was ineffective.
The State moved to dismiss the petition on the grounds of res judicata. The trial
court agreed with the State and granted its motion to dismiss. Anguiano, 2013 IL
App (1st) 113458, ¶¶ 11-12.
¶ 38 On appeal, Anguiano argued that his retained postconviction counsel failed to
provide a reasonable level of assistance when counsel did not consult with the
defendant and raised the same issue in both his direct appeal and postconviction
petition. Anguiano, 2013 IL App (1st) 113458, ¶ 17. The court in Anguiano first
concluded that Rule 651(c) does not apply when the initial petition is filed by
retained counsel. Anguiano, 2013 IL App (1st) 113458, ¶ 25.
¶ 39 Next, the Anguiano court considered whether case law interpreting the Act
generally supported a conclusion that, at the second stage, all postconviction
petitioners have a right to reasonable assistance of counsel, whether appointed or
retained. Citing Mitchell, 189 Ill. 2d at 358, and People v. Kegel, 392 Ill. App. 3d
538, 539 (2009), the court answered that question affirmatively because both
decisions applied the reasonable assistance standard in the context of a petition
filed by retained counsel. Anguiano, 2013 IL App (1st) 113458, ¶¶ 26-28.
¶ 40 The court in Anguiano also observed that the reasonable level of assistance
standard was not subject to the same limitation of Rule 651(c) because the Act
generally requires a reasonable level of assistance and applies to all petitions,
unlike Rule 651(c). In addition, the court explained that neither the Act nor this
court has ever limited the guarantee of reasonable assistance to formerly pro se
defendants with appointed counsel. Ultimately, the court held that both appointed
and retained counsel must provide a reasonable level of assistance to
postconviction defendants at second-stage proceedings. Anguiano, 2013 IL App
(1st) 113458, ¶ 40.
-9-
¶ 41 We agree with defendant that Anguiano best comports with this court’s
jurisprudence on the reasonable level of assistance standard. We, therefore, accept
the State’s concession on the issue. Although Rule 651(c) applies only to a
postconviction petition initially filed by a pro se defendant (Richmond, 188 Ill. 2d
at 381), this court has never conditioned the reasonable level of assistance standard
on the applicability of that rule. Indeed, this court has treated the reasonable
assistance standard as generally applying to all postconviction defendants without
reference to Rule 651(c) or between retained or appointed counsel. See, e.g.,
People v. Perkins, 229 Ill. 2d 34, 42 (2007) (stating “[t]he Act provides for a
‘reasonable’ level of assistance”). Put another way, Rule 651(c) “is merely a
vehicle for ensuring a reasonable level of assistance” (Anguiano, 2013 IL App (1st)
113458, ¶ 37) and should not be viewed as the only guarantee of reasonable
assistance in postconviction proceedings.
¶ 42 Accordingly, we find that the appellate court in this case erred when it
concluded that defendant was not entitled to reasonable assistance from his retained
counsel at second-stage proceedings. We also overrule Csaszar for reaching the
same erroneous conclusion. We hold that there is no difference between appointed
and privately retained counsel in applying the reasonable level of assistance
standard to postconviction proceedings. Both retained and appointed counsel must
provide reasonable assistance to their clients after a petition is advanced from
first-stage proceedings.
¶ 43 Next, we consider whether defendant’s privately retained counsel provided him
with a reasonable level of assistance. Although the State concedes that the appellate
court erred by concluding that defendant was not entitled to reasonable assistance
from his retained counsel, it argues that the appellate court’s judgment should be
affirmed even under that standard. The State notes the appellate court also
concluded that, “even under Anguiano,” it would affirm the dismissal of
defendant’s petition because he received reasonable assistance.
¶ 44 Defendant argues that “the sheer inadequacy” of his postconviction counsel’s
explanation on the untimeliness of the petition precluded him from prevailing on
the merits of his petition on review. Defendant notes that his petition was filed over
a year and a half late and his counsel’s only explanation relied on an envelope
showing that the appellate court’s decision was mailed to his mother on September
4, 2009. Although recognizing that the record does not reveal when postconviction
counsel was retained, defendant asserts that fact is not necessary to resolve his
- 10 -
claims. He acknowledges that the trial court did not indicate his petition was
dismissed based on its untimeliness, but he argues that the court is presumed to
follow the law.
¶ 45 As we have noted, there is no constitutional right to effective assistance of
postconviction counsel. Hardin, 217 Ill. 2d at 299. Consequently, the reasonable
level of assistance provided for by the Act is “less than that afforded by the federal
or state constitutions.” People v. Pendleton, 223 Ill. 2d 458, 472 (2006).
¶ 46 Here, defendant’s retained postconviction counsel drafted a petition with
several detailed claims of ineffective assistance by trial counsel, claims of
ineffective assistance by appellate counsel, and claims alleging a violation of
defendant’s due process rights. The petition included several supporting
attachments, including: (1) affidavits from defendant, his brother, and his mother;
(2) more than 100 pages of transcripts from the trial, pretrial hearings, and posttrial
hearings; and (3) a copy of an envelope from defendant’s counsel addressed to
defendant’s mother, postmarked September 4, 2009.
¶ 47 Defendant’s petition survived first-stage dismissal and proceeded to
second-stage proceedings. After the State filed a motion to dismiss, defendant’s
counsel filed a response rebutting the State’s claims and included an explanation
for the petition’s untimeliness.
¶ 48 At the hearing on the State’s motion to dismiss, the trial court considered
extensive arguments by both sides on the substantive claims in defendant’s
petition. Ultimately, the trial court granted the State’s motion to dismiss. After
evaluating the merits of defendant’s substantive claims, the court concluded that he
did not make the requisite substantial showing of a constitutional violation.
¶ 49 Before this court, as in the appellate court, the only error alleged by defendant is
that his retained postconviction counsel failed to explain adequately the delay in
filing his petition. Defendant does not otherwise challenge the trial court’s ruling
on the merits of his claims and, therefore, has forfeited review of those claims. See
People v. Conick, 232 Ill. 2d 132, 144 (2008) (issues not raised by postconviction
petitioner in the appellate court forfeited on review).
¶ 50 After considering the record in this case, we reject defendant’s argument that
his postconviction counsel failed to provide reasonable assistance. In our view,
defendant’s retained postconviction counsel ably discharged his duties. Notably,
- 11 -
defendant fails to explain what additional information should have been included
by counsel in regard to the timeliness issue. Nor does defendant identify when he
retained postconviction counsel in relation to the filing deadline for his petition.
More critically, the record demonstrates that defendant’s petition was not
dismissed as untimely. The trial court reviewed defendant’s claims on their merits
with no mention of the petition’s late filing.
¶ 51 Under these circumstances, we find no deficiency in postconviction counsel’s
representation. Accordingly, we conclude that defendant received the reasonable
assistance of counsel contemplated by the Act.
¶ 52 CONCLUSION
¶ 53 For these reasons, we affirm the dismissal of defendant’s postconviction
petition.
¶ 54 Appellate court judgment affirmed.
- 12 -
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552 F.3d 836 (2009)
Salah N. OSSEIRAN, Appellee
v.
INTERNATIONAL FINANCE CORPORATION, Appellant.
No. 07-7122.
United States Court of Appeals, District of Columbia Circuit.
Argued September 9, 2008.
Decided January 13, 2009.
*837 Francis A. Vasquez Jr., argued the cause for appellant. With him on the briefs was Frank Panopoulos.
Michael Joseph argued the cause and filed the brief for appellee. With him on the brief was Alex Blanton. Joseph O. Click entered an appearance.
Before RANDOLPH, ROGERS and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge:
The International Finance Corporation is a global institution with 178 member states, including the United States. It invests in private enterprises in developing nations. Its charter states that it "shall seek to revolve its funds by selling its investments to private investors whenever it can appropriately do so on satisfactory terms." Articles of Agreement of the International Finance Corporation, art. 6, § 3(vi), Dec. 5, 1955, 7 U.S.T. 2197, T.I.A.S. No. 3620 ("IFC Charter"). Salah N. Osseiran, a Lebanese businessman, sought to purchase one of International Finance's investments. When the deal soured, Osseiran sued International Finance. The question on appeal is whether the International Finance Corporation is immune from the suit.
In September 2005, Osseiran approached Jan van Bilsen, International Finance's portfolio manager for the Middle East. Osseiran wanted to buy International Finance's 11 percent stake in the Middle East Capital Group, a Guernsey corporation headquartered in Beirut, Lebanon. At the time, Osseiran was a minority shareholder in the Capital Group. In an October 3, 2005, email to van Bilsen, Osseiran offered to purchase the shares and requested confidentiality for his offer. The parties then began negotiating the terms of the proposed sale, primarily through email and telephone exchanges. Two months of bargaining culminated in *838 van Bilsen sending Osseiran a draft sales agreement on November 26. The November agreement set forth the purchase price, payment terms, and warranties. It also stated that the parties intended to be contractually bound only upon execution of the document; van Bilsen noted that International Finance reserved the right to modify the terms. On December 1, Osseiran responded that the agreement was "generally Ok" and proposed some changes. Salah N. Osseiran Decl., Feb. 26, 2006, Ex. D. At this point the parties' accounts diverge. Despite Osseiran's entreaties, International Finance declined to sign the draft agreement. On or before February 16, 2006, Osseiran learned that International Finance intended to sell its shares to a higher bidder.
Osseiran's amended complaint was in three counts. Count 1 alleged that the November agreement was a binding contract and that International Finance breached it. Count 2 alleged that International Finance knew Osseiran planned to acquire a controlling interest in the Middle East Capital Group, that he bought out other shareholders in reliance on International Finance's "promise to sell" him its shares, and that International Finance is therefore estopped from reneging and selling the shares to another party. Count 3 alleged breach of confidentiality on the basis that International Finance agreed to keep its discussions with Osseiran secret but then divulged them.
International Finance moved to dismiss on the grounds that it was immune from suit under the International Organizations Immunities Act, 22 U.S.C. §§ 288-288f, and that the complaint failed to state a cause of action. The district court held that International Finance had waived its immunity, but granted the motion to dismiss the breach of contract count pursuant to Federal Rule of Civil Procedure 12(b)(6).[1]Osseiran v. Int'l Fin. Corp., 498 F.Supp.2d 139, 142 (D.D.C.2007). We have appellate jurisdiction over International Finance's interlocutory appeal from the denial of its immunity claim with respect to Count 2 (promissory estoppel) and Count 3 (confidentiality). See, e.g., Rendall-Speranza v. Nassim, 107 F.3d 913, 916 (D.C.Cir.1997).
The International Organizations Immunities Act applies to those international organizations which the President designates as entitled to the benefits of the Act. Section 2(b) states that such organizations "shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments, except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract." 22 U.S.C. § 288a(b). Among the protected institutions are the International Monetary Fund, the World Bank, and the World Trade Organization. 22 U.S.C. § 288 (historical note).
In 1956, President Eisenhower conferred the benefits of the Act on the International Finance Corporation, subject to any limitations contained in the corporation's charter. Exec. Order No. 10,680, 21 Fed.Reg. 7,647 (Oct. 2, 1956). A section of the charter entitled "Position of the Corporation with Regard to Judicial Process" states:
Actions may be brought against the Corporation only in a court of competent *839 jurisdiction in the territories of a member in which the Corporation has an office, has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities. No actions shall, however, be brought by members or persons acting for or deriving claims from members. The property and assets of the Corporation shall, wheresoever located and by whomsoever held, be immune from all forms of seizure, attachment or execution before the delivery of final judgment against the Corporation.
IFC Charter art. 6, § 3(vi). The provision carries "full force and effect in the United States" by virtue of the International Finance Corporation Act, 22 U.S.C. § 282g, which executes United States membership in the corporation.
The waiver language just quoted is identical to that appearing in the charter of the International Finance Corporation's parent entity, the World Bank, and is common in the charters of other international financial institutions. See Restatement (Third) of Foreign Relations Law § 467 reporter's note 3 (1987). We first considered a charter with this language in Lutcher S.A. Celulose e Papel v. Inter-Am. Dev. Bank, 382 F.2d 454, 457 (D.C.Cir.1967), which held that, through this language, the defendant bank waived immunity from a debtors' suit to enforce a loan agreement.
There followed Mendaro v. World Bank, 717 F.2d 610 (D.C.Cir.1983), and Atkinson v. Inter-Am. Dev. Bank, 156 F.3d 1335 (D.C.Cir.1998). The question in Mendaro was whether the World Bank had immunity from a former employee's sexual harassment and discrimination suit. Although the waiver provision contained no exceptions for different types of suit, the court read a qualifier into it. The court reasoned that an organization would not give up immunity unless it would gain a "corresponding benefit which would further the organization's goals." Mendaro, 717 F.2d at 617. A waiver of immunity "with respect to the World Bank's commercial transactions with the outside world" made sense, the court thought, because otherwise private parties would be hesitant to transact business with the Bank. Id. at 618. The court thought language in the charter indicated that the waiver of immunity, like immunity itself, was meant to aid the Bank in accomplishing its mission.[2]Id. The court went on to hold that the World Bank had not waived its immunity from its employee's suit because the potential benefit of attracting qualified staff was offset by the Bank's employee grievance process and outweighed by the disruption to its labor practices. Id. at 619 n. 56; see also Atkinson, 156 F.3d at 1338.
In Atkinson, the court considered another claim related to an international organization's internal affairs. The court held that the Inter-American Development Bank had not waived its immunity from an action to garnish one of its employee's wages in order to satisfy a divorce judgment. Atkinson, 156 F.3d at 1338-39. Waiver of immunity from such actions would yield the Bank no conceivable benefit. Id. at 1338. In so holding the court stated that if waiver of immunity from a "particular type of suit would further the [organization's] objectives," then the court will find a waiver. Id. (emphasis in original).
*840 Both Mendaro and Atkinson upheld an international organization's claim that it had not waived immunity. Both opinions were consistent with the organization's apparent view that invoking immunity was in its best interest. But neither case considered the organization's view conclusive. The court held in both cases that it was for the federal judiciary to decide whether an international organization's invocation of immunity for certain actions would interfere with its mission. One might suppose that an organization could mount a case that its judgment about the need for immunity in certain classes of cases was deserving of judicial deference. But the International Finance Corporation has not argued the case along these lines.
Instead, International Finance contends that waiver of immunity for promissory estoppel and breach of confidentiality suits would not advance its interests because Osseiran has not established the essential elements of his claims or, in the alternative, because his claims are not cognizable under governing law. In other words, Osseiran will lose on the merits. The trouble is that in this area, as in others, immunity does not turn on the validity of the underlying suit. See Kirkham v. Société Air France, 429 F.3d 288, 293 (D.C.Cir.2005); Lutcher, 382 F.2d at 460 (finding that the defendant international organization waived immunity to the plaintiff's suit, then affirming dismissal for failure to state a claim). Both Mendaro and Atkinson ask whether a waiver of immunity to allow this type of suit, by this type of plaintiff, would benefit the organization over the long term. Atkinson, 156 F.3d at 1338; Mendaro, 717 F.2d at 618. Since the validity of Osseiran's claims is not a prerequisite to jurisdiction, we need not determine whether the law of Guernsey, the site of Middle East Capital Group's incorporation, controls, as International Finance claims.
Both Mendaro and Atkinson stated that immunity from suits based on "commercial transactions with the outside world" can hinder an organization's ability to operate in the marketplace. Mendaro, 717 F.2d at 618; Atkinson, 156 F.3d at 1338. The thought was that parties may hesitate to do business with an entity insulated from judicial process; promises founded on good faith alone are worth less than obligations enforceable in court. See Atkinson, 156 F.3d at 1338; see also Lutcher, 382 F.2d at 460. International Finance is in the business of selling its investments to private parties. IFC Charter art. 3, § 3(vi). Sales agreements result from negotiations. Osseiran's promissory estoppel and confidentiality claims concern International Finance's alleged representations during such negotiations. To follow the Mendaro-Atkinson theory, waiver of immunity for an action by such a plaintiff, asserting claims arising out of that category of activity, might help attract prospective investors by reinforcing expectations of fair play. Such a "corresponding benefit" would promote International Finance's chartered objective of revolving its investments.
As against this potential benefit, International Finance identifies no unique countervailing costs like those the court identified in Mendaro. See 717 F.2d at 618 (noting waiver would "lay the Bank open to disruptive interference with its employment policies").[3] It follows that the broad language of the waiver in International Finance's charter is controlling and that the corporation does not have immunity *841 from Osseiran's claims in counts 2 and 3 of his amended complaint.
Affirmed.
NOTES
[1] The statutory basis for the court's jurisdiction is the International Finance Corporation Act, 22 U.S.C. § 282f, which provides that any "action at law or in equity to which the [International Finance] Corporation shall be a party shall be deemed to arise under the laws of the United States, and the district courts of the United States shall have original jurisdiction of any such action."
[2] International Finance's charter, like the others considered in this line of cases, prefaces the article on "Status, Immunities and Privileges" with this statement: "To enable the Corporation to fulfill the functions with which it is entrusted, the status, immunities and privileges set forth in this Article shall be accorded to the Corporation in the territories of each member." IFC Charter art. 6, § 1.
[3] The Corporation's internal policy of requiring formal execution before assuming binding obligations may go to the reasonableness of Osseiran's reliance. But it does not militate against finding waiver.
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956 F.Supp. 240 (1997)
COOPER INDUSTRIES, INC.; Keystone Consolidated Industries, Inc.; The Monarch Machine Tool Co.; Niagara Mohawk Power Corporation; Overhead Door Corporation, Plaintiffs,
v.
AGWAY, INC.; BMC Industries, Inc.; Borg-Warner Corporation; Elf Atochem North America, Inc.; Mack Trucks, Inc.; Motor Transportation Services, Inc.; Pall Trinity Micro Corporation; The Raymond Corporation; Redding-Hunter, Inc.; Rotelcom, Inc.; Smith Corona Corporation; Sola Basic Industries, Inc.; Wilson Sporting Goods, Inc.; Philip A. Rosen; Harvey M. Rosen; City of Cortland; and New York State Electric and Gas Corporation, Defendants.
No. 92-CV-0748.
United States District Court, N.D. New York.
February 27, 1997.
*241 O'Connor, Gacioch & Pope, Binghamton, NY, for plaintiffs; Thomas F. O'Connor, Alan J. Pope, of counsel.
Weinberg, Bergeson & Neuman, Washington, D.C., for defendant Pall Trinity Micro; Reed W. Neuman, of counsel.
MEMORANDUM-DECISION & ORDER
McAVOY, Chief Judge.
I. BACKGROUND
The motion before the Court is brought by the above-referenced plaintiffs seeking summary judgment on the issue of liability as against the defendant Pall Trinity Micro Corporation ("PTM") for response costs at the so-called Rosen superfund site. The defendant opposes the motion and has cross-moved for summary judgment in its favor.
This case is brought under the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9657. The facts of this case are well-known to the parties and the Court, and are set forth in the relevant sections of the decision of the Court below.
By way of an overview, the Court notes that the plaintiffs have and are currently paying the costs of removal and the costs of the remedial investigation at the Rosen Superfund Site, pursuant to a number of Administrative Orders on Consent issued by the EPA. The costs to date exceed $1.9 million.
In brief, the plaintiffs allege that PTM arranged for the removal of certain scrap metal and liquid waste from its facility directly and indirectly through Rosen Brothers. This relationship allegedly occurred intermittently during the nineteen seventies. The plaintiffs further allege that the Rosen Brothers dumped some or all of the waste removed from PTM at their "yard," the so-called Rosen Site. Finally, the plaintiffs allege that the waste from PTM that was dumped at the Rosen Site caused the incurrence of a portion of the response costs associated with the Rosen Site cleanup. On this basis the plaintiffs seek an order imposing CERCLA liability against the defendant PTM.
Briefly stated, in reply, the defendant argues that there is proof that PTM had a relationship with the Rosen Brothers for only six months in the early seventies. Moreover, the defendant alleges that at best small amounts of scrap metal were dumped at the Rosen Site. Finally, the defendant alleges that these small amounts of scrap metal could have contributed no more than background *242 levels to the Rosen Site environment. On this basis generally, the defendant argues that it should not be held liable for any response costs incurred in connection with the Rosen Site.
To establish liability under CERCLA, the plaintiffs must show that PTM is a responsible party as defined under CERCLA, that the Rosen site is a "facility" within the meaning of CERCLA, that hazardous substances were released at the Rosen site, that the plaintiffs have incurred response costs due to the release of hazardous substances at the Rosen site, and that the response costs are consistent with the National Contingency Plan. See B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir.1992).
Pursuant to a Memorandum-Decision and Order of this Court, dated August 25, 1995, it is established that: (1) the plaintiffs have incurred response costs due to the release of hazardous substances at the Rosen site; (2) the response costs are consistent with the National Contingency Plan; (3) the Rosen site is a "facility" within the meaning of CERCLA; and (4) hazardous substances were released at the Rosen site. Thus, the remaining issue to be determined with respect to PTM is whether it is a "responsible party."
The plaintiffs have moved for summary judgment on the basis that the evidence conclusively shows (1) that PTM arranged for the disposal of its waste by the Rosen Brothers, the owners of the Rosen site, (2) that PTM waste actually was disposed of at the Rosen site, (3) that PTM's waste contained CERCLA hazardous substances, and (4) that hazardous substances of the kind found in PTM's waste were found at the site.
PTM responds by arguing that it, rather than the plaintiffs is entitled to summary judgment. The first arguments do not deal with the merits of a CERCLA claim. Rather, the defendant argues that the plaintiffs have failed to plead a claim for which relief can be granted, that CERCLA cannot be applied retroactively, and that CERCLA, as applied in this case, violates the Commerce Clause of the United States Constitution. Then, the defendant turns to the merits of the CERCLA claim allegedly asserted against it. PTM argues that the plaintiff's expert affidavit must be excluded, that the affidavits and testimony relied on by the plaintiffs is inadmissible on summary judgment, that the entire argument relied on by the plaintiffs is based on impermissible inferences, and that, with respect to manganese and copper from scrap metal at the Rosen site, PTM's divisible share is zero.
The Court will address each of these arguments seriatim.
II. DISCUSSION
A. Motion to Dismiss for Failure to State a Claim, CERCLA Retroactivity, and CERCLA in Relation to the Commerce Clause
These issues were raised before the Court in the summary judgment motions relating to the defendant Mack Trucks, Inc. The Court subsequently heard oral argument and rendered a written decision. See Cooper v. Agway, 1996 WL 550128 (Sept. 23, 1996). The Court held that the plaintiffs' Complaint was viable, that CERCLA applied retroactively, and that CERCLA did not violate the Commerce Clause.
"The law of the case doctrine `posits that when a Court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'" DiLaura v. Power Authority of N.Y., 982 F.2d 73, 76 (2d Cir.1992), quoting Liona Corp. v. PCH Assocs. (In Re PCH Assocs.), 949 F.2d 585, 592 (2d Cir.1991) (further citation omitted). As the issues listed above have previously been decided by this Court, they constitute the law of the case, and will not be revisited herein. The defendant PTM is referred to the Court's reasoning in its September 23, 1996 Memorandum-Decision and Order for an extended discussion of these issues.
The defendant PTM's motion to dismiss the Complaint on the aforementioned grounds is denied.
B. Standard For Summary Judgment
The standard for analyzing a summary judgment motion is well-settled. A motion *243 for summary judgment should be granted "if the pleadings ... together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The movant bears the initial burden of showing the Court that, on the evidence before it, there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). In determining whether a genuine issue of material fact has been raised, not only must there be no genuine issue as to the evidentiary facts, but there also must be no controversy regarding the inferences to be drawn from them. Bennett v. New York City Dept. of Corrections, 705 F.Supp. 979, 982 (S.D.N.Y. 1989).
Once the moving party has satisfied its burden, the nonmovant must then "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). When "considering a motion for summary judgment, the district court may rely on `any material that would be admissible or usable at trial.'" Azrielli v. Cohen Law Offices, 21 F.3d 512, 516 (2d Cir.1994), quoting Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil § 2721 at 40 (2d ed. 1983)). All ambiguities must be weighed in favor of the non-moving party. Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.1989). "Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991). With these standards in mind, the Court now turns to the issues presented.
B. CERCLA Liability
As an initial matter, the defendant strenuously argues that the Court should not consider the affidavit of the plaintiffs' expert, Roy O. Ball. It is the defendant's contention that Mr. Ball's opinions are based on unsupportable inferences. In reply, the plaintiffs sufficiently rebut the defendant's contentions, such that the Court has considered the Ball Affidavit in connection with the present motions.
Liability under CERCLA is imposed where a plaintiff establishes the following five elements: (1) the defendant falls within one of the four categories of "responsible parties" enumerated in § 107(a), 42 U.S.C. § 9607(a); (2) the site of the clean-up is a facility under § 101(9), 42 U.S.C. § 9601(9); (3) there is a release or threatened release of hazardous substances at the facility; (4) as a result of which plaintiff has incurred response costs; and (5) the costs incurred conform to the national contingency plan ("NCP") under § 107(a)(4) as administered by the EPA. See U.S. v. Alcan Aluminum Corp., 990 F.2d 711, 719-20 (2d Cir.1993), citing B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir.1992). "If the [plaintiffs] establish[ ] each of these elements on undisputed facts, and the defendant is unable to demonstrate by a preponderance of the evidence the existence of one of the three affirmative defenses set forth in § 9607(b), then [the plaintiffs are] entitled to summary judgment on the issue of liability, even when genuine issues of material fact remain as to appropriate damages." U.S. v. Alcan Aluminum Corp., supra, at 720, citing Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 668 (5th Cir.1989).
CERCLA is a strict liability statute, and imposes liability "any person who by contract, agreement, or otherwise arranged for disposal or treatment" of hazardous substances "from which there is a release, or a threatened release which causes the incurrence of response costs." 42 U.S.C. § 9607(a)(3) and (4). As explained by the Second Circuit, "[t]he plain meaning of this language dictates that [a plaintiff] need only prove: (1) there was a release or threatened release, which (2) caused incurrence of response costs, and (3) that the defendant generated hazardous waste at the clean-up site. What is not required is that [a plaintiff] show that a specific defendant's waste caused incurrence of clean-up costs." Alcan, 990 F.2d at 721 (emphasis added).
As to what constitutes a hazardous substance, CERCLA defines the term by cross-referencing several other environmental statutes.[1]*244 See 42 U.S.C. § 9601(14). Significantly, the Act expressly refers to any such substance, and imposes no quantitative requirement. 990 F.2d at 720.
The Court need not discuss each element of CERCLA liability at this time. It has already been determined by this Court that: (1) there was a release of hazardous substances at the Rosen site; (2) that the Rosen site is a "facility" within the meaning of CERCLA; (3) that the plaintiffs have incurred response costs due to the release of hazardous substances at the Rosen site; and (4) that the response costs incurred by the plaintiffs are consistent with the National Contingency Plan. See August 25, 1995 Memorandum-Decision and Order of this Court. Accordingly, the Court, for the purposes of deciding the present summary judgment motions, must consider whether the record raises a material factual issue as to whether the defendant PTM is a responsible party.
D. Responsible Party
There are really two issues for the Court to examine: first, whether PTM is a responsible party, and second, to what extent PTM is responsible, if at all.
Pursuant to the express language of the statute, "responsible parties," in relevant part, include:
any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances
42 U.S.C. § 9607(a)(3). Therefore, to meet their burden, the plaintiffs in this case must show that the defendant arranged in some manner to have its waste transported to the Rosen site, that such waste was transported to the site, that the waste contained hazardous substances, and that those same substances were found at the site.
There are two basic categories of waste material at issue in this case with respect to PTM: (1) scrap metal, which includes metal turnings or scrapings, carbon steel separator sheets, and steel and copper wire scrap, and (2) liquid wastes, such as waste solvents and cutting oils.
1. Scrap Metal
As to the metal turnings or scrapings, PTM admits to having produced this form of scrap metal. More particularly, PTM stated in response to an interrogatory that the scrap metal provided by PTM to Rosen Brothers could have contained cast iron, malleable iron, carbon steel, types 304 and 316 stainless steel, aluminum, inconel, menel, hastelloy, brass, copper, copper-nickel, chromel, alumel, nickel-chromium, and nickel-aluminum.
The plaintiff claims that the deposition testimony of ex-Rosen employees, Linda McCloy, Derl Ross, Elbert Soule, and Michael Scott establishes that such scrap metal was transported by Rosen from PTM to the Rosen site during at least the time period 1971-1974. In particular, McCloy states that PTM was a customer of Rosen Brothers when she worked there, that Rosen Brothers handled the scrap metal turnings, which were "greasy wet," and that they dumped them at the Rosen Site. It was Ms. McCloy who received the calls from PTM when a pick up was needed, and it was she who dispatched an employee to drive a truck to PTM to pick up the scrap turnings. As to Ross, he testified at his deposition that he would go to PTM once a week, pick up the "turning box" that contained scrap metal and cutting oil, take it to the Rosen site, and dump the contents onto the ground. Mr. Soule testified at his deposition that he recalled picking up a box of oily metal turnings about once a month from PTM and dumping the contents on the ground at the Rosen Site. Finally, as to Mr. Scott, he testified that PTM steel and aluminum turnings covered with cutting oil were taken in boxes to the Rosen Site, and *245 dumped. Each testified that they had personal knowledge of the contents of the boxes being picked up and/or dumped.
The defendant's attacks on the testimony of these deponents as statements based on hearsay or lacking personal knowledge. However, this simply is not an accurate assessment of the testimony of the witnesses, and is of no moment. Summary judgment in favor of the plaintiffs is appropriate on CERCLA liability for the dumping of metal turnings or scrapings.
As to the carbon steel separator sheets, the defendant PTM does not oppose the argument of the plaintiffs that such scrap was sold by PTM to Polson Metal Recovery, Inc., resold to Rosen Brothers, and subsequently dumped at the Rosen Site. Carbon steel is a CERCLA hazardous substance. Summary judgment in favor of the plaintiffs is appropriate on the issue of CERCLA liability as to the dumping of carbon steel separator sheets.
As to the steel and copper wire scrap, PTM admits that it generated such scrap. The plaintiffs rely on the testimony of an ex-Rosen Brothers employee for its assertion that such scrap was dumped at the Rosen Site. The employee, Mr. [H]ollenbeck, testified that he personally viewed metal and copper wire in a "box" at PTM. In addition, he picked up and dumped the "box" at the Rosen site. The defendant states that Mr. Hollenbeck testified that after being dumped at the Rosen Site, the scrap was then separated and taken away. In fact, Mr. Hollenbeck stated only that he assumed that that is what occurred. However, the testimony of Phillip Rosen, indicates that no copper wire ever went to the Rosen site. Rather, it all went to the Cobb Building (off site) and later to another location. Given two diametrically opposed versions of events with respect to the wire scrap, both based on personal knowledge, the Court cannot grant summary judgment on CERCLA liability for the dumping of wire scrap.
2. Liquid Waste
It is not contested that PTM produced waste solvents and cutting oils, and that such liquid waste was stored in 55-gallon drums at PTM. The plaintiff, relying solely on the deposition testimony of an ex-Rosen employee, Glenn Mattoon, claims that at least 200 of these drums were transported to the Rosen Site and buried/crushed, causing an undetermined amount of the solvents and oils inside[2] to spill out and seep into the ground. On the basis of the Mattoon deposition testimony, based on the personal knowledge of Mr. Mattoon, the plaintiffs have met their burden as to summary judgment in relation to liability.
The defendant attempts to meet its burden in two ways. First, the defendant attempts to discredit Mr. Mattoon as a witness, and second, the defendant claims that those whom Mr. Mattoon claims were with him on the day that the barrels were dumped contradict his testimony.
As to the first basis, PTM recounts an alleged forgery conviction from decades ago, repeats charges of theft, and makes allegations of Mr. Mattoon's "pathetic reputation for dishonesty" in the community. PTM asserts that this is proper, and cites U.S. v. McMurray, 20 F.3d 831, 834 (8th Cir.1994). McMurray, however, discusses the impeachment of a witness at trial. McMurray does not address the issue of impeachment at the summary judgment stage, and thus, provides little authority for the vitriolic assaults on Mr. Mattoon's character contained in the papers filed in connection with this motion. Nevertheless, summary judgment should be denied in this case if PTM has set forth specific facts that place the credibility of Mr. Mattoon at issue. See County of Orange v. Sullivan Highway Products, Inc., 752 F.Supp. 643, 647 (S.D.N.Y.1990); Vantage Point, Inc. v. Parker Bros., Inc., 529 F.Supp. 1204, 1214 (E.D.N.Y.1981), aff'd mem., 697 F.2d 301 (2d Cir.1982). The specific allegations challenging Mr. Mattoon's credibility are as follows: he is a convicted forger, he is/was a suspect in other crimes, he lied *246 under oath, and the defendant's expert refutes allegations of a large dumping of liquid waste at the Rosen Site. The Court will address each of these allegations seriatim.
Mr. Mattoon's conviction for forgery, although bearing on credibility, occurred in or around 1958. It is clearly inadmissible. See Fed.R.Evid. 609(b). Not only is this prior conviction nearly 40 years old, but, it is of limited probative value in relation to its prejudicial effect. Id. The fact that Mr. Mattoon committed a forgery nearly forty years ago does not raise an issue of fact as to whether he is to be believed today.
The fact that Mr. Mattoon was a suspect in prior crimes is of no moment to the Court at this stage. Allegations of wrongdoing are not facts that bear on Mr. Mattoon's credibility. See Sterling Nat. Bank & Trust Co. v. Federated Dept. Stores, 612 F.Supp. 144, 146 (S.D.N.Y.1985). Thus, they will not serve to raise a material factual issue.
PTM alleges that Mr. Mattoon lied under oath. Specifically, the defendant alleges that Mr. Mattoon lied about his involvement in an alcohol related automobile accident in April 1994, about past military service, and about certain civil judgments filed against him. A review of the deposition of Mr. Mattoon belies the defendant's desperate attempts to paint Mr. Mattoon as a liar. At best, Mr. Mattoon failed to answer questions directly that in his view, and that of the Court, strayed well beyond matters bearing on this case. As an example, the Court reproduces the following colloquy from Mr. Mattoon's deposition:
Q. Were you in the service?
A. If you say so.
Q. I don't know. I mean were you in the service?
A. I don't know. You seem to know about my personal life. You've had investigators down checking with my son, all my friends.
Q. I believe Mr. Owens was checking with your son as well.
A. Yeah, but he didn't degrade me like you people were [sic].
Q. I certainly don't mean to degrade you.
A. I don't care whether it's your intention. No more personal life.
Q. I certainly don't mean to degrade you, Mr.
A. You're doing it.
Q. It's not my intention.
A. That's what you're doing.
Q. I apologize if that's the way you're taking it.
A. You don't need to dig up my personal life like you have.
Q. I just want to know if you were in the service.
A. Could be. Now back off.
Q. I don't mean to be
A. Back off.
Q. Mr. Mattoon, I really apologize, but I have a right to ask my questions.
A. You ain't got a right to dig up my personal life. This is Rosen, not me, and you're bringing stuff in here that doesn't need to be here. Let's do Rosen and get done with so I can get back on a normal life. You guys been harassing me for the last three months, your investigators, and harassing my family, harassing my friends, and I know it wasn't him the last couple weeks.
Q. Were you in the service?
A. Fifth Amendment.
Plaintiffs' Exhibit G(13) at 187-189).
Mr. Mattoon failed to directly answer the question of whether he was in the service. Moreover, it is clear that he was agitated and completely unwilling to cooperate on that line of inquiry. However, to state that Mr. Mattoon lied while under oath is an overstatement. As to the alleged lies under oath relating to civil judgments, Mr. Mattoon simply stated that he had not received any, and objected to the questioning. In essence, Mr. Mattoon stated that he had no knowledge of any civil judgments filed against him. To state that Mr. Mattoon lied is, again, an overstatement of his testimony. Accordingly, the Court will not deny the plaintiffs' motion for summary judgment as to liability with respect to the alleged dumping of liquid waste on the basis that Mr. Mattoon lied under oath.
*247 Finally, as to witness credibility, the defendant argues that Mr. Mattoon must be found incredible by the Court on the basis that the defendant's expert, James Smith, refutes his testimony. More specifically, the defendant's expert states that based on his reading of Mr. Mattoon's testimony, approximately 11,000 gallons of used solvents and oils were released at the Rosen Site. In addition, upon analysis of trichloroethane samples taken from locations nearest to the spot indicated by Mr. Mattoon as the spill site, James Smith concluded that there is no evidence to support a claim that 11,000 gallons of solvents and oils were spilled.
The plaintiffs argue that the defendant's expert wrongly assumes that the maximum amount of solvent spilled. In fact, Mr. Mattoon stated that approximately 25 of the barrels were not full. Moreover, Mr. Mattoon did not testify that all the barrels leaked or were broken open. Thus, according to the plaintiffs the assumptions upon which the defendant's expert based his opinions were invalid. In addition, the plaintiffs' expert, Roy Ball, stated that trichloroethane was, in fact, found at the location of the dumping of the 200 barrels. Moreover, acetone, toluene, chromium, zinc, perchloroethylene, trichloroethylene, benzene, xylene, ethylbenzene, and chloride were found at the same location. Each is a CERCLA hazardous substance, and each is a constituent of the solvents and/or oils used by the defendant. The defendant's expert does not refute these facts. Accordingly, the testimony of the defendant's expert does not establish that Mr. Mattoon's version of events relating to the dumping of liquid waste cannot be believed.
The Court now turns to the second basis on which the defendant attempts to rebut the assertions of Mr. Mattoon; contradictory testimony of those allegedly present with Mr. Mattoon on the day that the dumping occurred. Mr. Mattoon testified that when he delivered the 200 barrels to the Rosen Site he was assisted there by Michael Scott and George Berg. The defendant argues that Berg never mentions liquid waste, Scott denied knowledge that PTM ever provided liquids to Rosen, and Phillip Rosen stated that Mr. Mattoon never took liquids from PTM. As to Berg, who is now deceased, the fact that he never mentions liquids is not a fact that raises a material factual issue on the issue of liability for liquid waste dumping. The Berg affidavit is fairly general. In his affidavit, Berg expressly mentions drums only in connection with Brockway and drums of paint. Defendant's Exhibit 4 at 1. However, he also states that Rosen had two sites for draining drums, called acid ponds, which were filled with cement. Id. at 2-3. There is no further elaboration with regard to sources and types of liquid waste dumped at the Rosen Site in those acid ponds. Moreover, there is no specific denial of Mr. Mattoon's testimony. Thus, there is no factual support for a claim that PTM liquid waste was not dumped at the Rosen Site. In other words, there are no facts in the Berg Affidavit to contradict the Mattoon claims.
The testimony of Michael Scott that the defendant suggests supports summary judgment in its favor in regard to liquid waste is not contradictory of Mattoon. Scott states, in response to a question of whether he ever saw oils or solvents on PTM turnings, that he couldn't be sure because he couldn't be sure which turnings came from which business providing waste to Rosen. Contrary to PTM's assertion, this is not a statement that Scott had no knowledge that PTM provided liquids to Rosen. The testimony concerned turnings, their general appearance, and whether any liquid was on the turnings. The deponent was not asked about drums of liquid waste. The defendant has mischaracterized Scott's deposition testimony.
The testimony of Phillip Rosen that the defendant suggests supports summary judgment in its favor in regard to liquid waste is not contradictory of Mattoon. The only testimony given by Mr. Rosen in relation to PTM liquid waste of any kind was that he didn't think he understood the question that he was asked at his deposition. The question was not rephrased, and Mr. Rosen gave no further testimony in relation to PTM liquid waste or its disposal. This cannot be said to be factual support for the defendant's position.
For the foregoing reasons, the Court grants the plaintiffs' motion for summary *248 judgment on the issue of liability against PTM as to liquid waste solvents and cutting oils.
To recapitulate, the Court grants the plaintiffs' motion for summary judgment, in part, on the issue of liability for the dumping of scrap metal turnings, carbon steel separator sheets, and liquid waste solvents and cutting oils, and further, the Court denies the plaintiffs' motion for summary judgment, in part, on the issue of liability for the alleged dumping of steel and copper wire scrap.
E. Divisibility
Having established liability against PTM, the defendant may now avoid joint and several liability for the entire cost of remediation at the Rosen Site only if it can show that its scrap metal turnings, carbon steel separator sheets, and liquid waste "did not contribute to the release and the clean-up costs that followed, or contributed at most to only a divisible portion of the harm." Alcan, 990 F.2d at 722 (citation omitted). To defeat PTM's motion for summary judgment on the issue of divisibility, the plaintiffs "need only show that there are genuine issues of material fact regarding a reasonable basis for apportionment of liability." Id. As explained in Alcan, the concept of causation is being reintroduced to the CERCLA context when a Court analyzes divisibility. However, this "special exception to the usual absence of a causation requirement, ... is applicable only to claims ... where background levels are not exceeded." Id. Thus, the defendant must first establish that the hazardous substances that caused the plaintiffs to incur response costs did not exceed background levels. Id. If the defendant can make such a showing, it must then establish that there is a basis for divisibility of harm. Id. It is important to note that as a strict liability statute, if the defendant fails to prevail on the divisibility argument as to any particular CERCLA hazardous substance, it is jointly and severally liable for the entire response cost. See U.S. v. Alcan Aluminum (Alcan-Butler), 964 F.2d 252, 266 (3d Cir.1992).
In Alcan, the Court denied summary judgment on the issue of divisibility based on a dispute between each sides' experts as to the effect of the dumping of Alcan's waste emulsion. 990 F.2d at 722-23. This Court also finds that there are questions of fact that preclude summary judgment on the issue of divisibility.
First, this Court has granted summary judgment on the issue of liability as to scrap metal turnings, carbon steel separator sheets, and liquid waste. The defendant has assumed divisibility on scrap metal comprised of copper and manganese only. Thus, to the extent that PTM has not shown that the hazardous substances found in liquid waste and carbon steel contribute less than background levels at the Rosen Site, a ruling in favor of PTM is inappropriate.
Second, as to scrap metal itself, the defendant assumes that it is responsible for the time of its direct dealing with Rosen Brothers in the early 1970s. According to the defendant this time period is roughly 6 months. It is on the basis of the amount of scrap metal dumped in that discrete time period that the defendant's expert reaches his conclusions. However, the plaintiffs' expert bases his conclusions on an additional 700,000 pounds of scrap metal allegedly disposed of at the Rosen Site. The plaintiffs argue that this additional scrap came from PTM by way of Polsen's Metal Recovery, which was owned in part by Phillip Rosen. In support, the plaintiffs point to the deposition testimony of Mike Scott and Walter Ellis. Both individuals testified that metals originating at PTM came to the Rosen Site via Polson's.
Third, the defendant's experts claims that, as to background levels of manganese, copper, nickel chromium, and cobalt, the amount of scrap metal, excluding or including the 700,000 pounds claimed by the plaintiffs, would release only infinitesimal amounts into the environment.[3] The plaintiffs claim that the Remedial Investigation Report indicates that certain CERCLA hazardous substances *249 found in the defendant's scrap metal waste and liquid waste exceed background levels. Moreover, the plaintiffs argue that the sampling performed by the defendant's expert, James Smith, was compared to background levels for a far wider geographical area than the area more closely surrounding the Rosen Site. When compared with the closer surrounding area, the plaintiffs claim that the numerous CERCLA hazardous substances contained in the waste generated by PTM and dumped at the Rosen Site exceed background levels.
Finally, the defendant argues that certain CERCLA hazardous substances will not be released into the environment, or may be released into the environment in such small amounts as to merit relieving PTM from liability as to the response costs incurred at the Rosen Site. However, as stated by the Second Circuit, "proof that a defendant's waste did not release listed hazardous substances is only relevant to the issue of apportionment of damages, not to the issue of liability." B.F. Goodrich v. Betkoski, 99 F.3d 505, 516 (2d Cir.1996) (citation omitted). Moreover, "a defendant who disposes of hazardous substances that are not independently releasable may still be held liable, even though that defendant may not be required to pay damages when the cost apportionment phase of the litigation is reached." Id. In addition, the plaintiffs' expert disputes that the CERCLA hazardous substances contained in the defendant's scrap metal has not or will not be released into the environment.
On the basis of the foregoing, the Court cannot grant summary judgment on the issue of divisibility in the defendant's favor. "These differing contentions supported by expert affidavits raise sufficient questions of fact to preclude the granting of summary judgment on the divisibility issue." See Alcan, supra at 722.
F. Apportionment
The defendant PTM would have this Court address its apportionment arguments at this time. This the Court declines to do.
"[W]here a defendant seeks to apportion damages according to its own contribution to the harm, it is the defendant's burden to establish that the damages are capable of such apportionment." Town of New Windsor v. Tesa Tuck, Inc., 935 F.Supp. 315, 317 (S.D.N.Y.1996), citing Alcan-Butler, supra at 269. For the same reasons that lead to the Court denying the defendant's motion for relief under a divisibility theory, the Court also declines to decide the apportionment issue at this time. In addition, the defendant has failed to provided the Court with total amounts of scrap metal or liquid waste dumped at the Rosen Site. Without such information, and the constituent components of those substances, the Court cannot reasonably apportion liability for response costs.
III. CONCLUSION
For the reasons stated herein, the Court hereby DENIES the defendant PTM's motion to dismiss the plaintiffs' Complaint for failure to state a claim, on the basis that CERCLA cannot be applied retroactively, and on the basis that CERCLA as applied against PTM violates the Commerce Clause of the United States Constitution, and further GRANTS the plaintiffs' motion for summary judgment, in part, on the issue of liability for the dumping of scrap metal turnings, carbon steel separator sheets, and liquid waste solvents and cutting oils, and further, DENIES the plaintiffs' motion for summary judgment, in part, on the issue of liability for the alleged dumping of steel and copper wire scrap, and further DENIES the defendant's cross-motion for summary judgment in its entirety.
IT IS SO ORDERED.
NOTES
[1] Any substance listed in the following: Clean Water Act, CERCLA § 9602, § 3001 of the Solid Waste Disposal Act, § 307(A) of the Clean Water Act, § 112 of the Clean Air Act, and any imminently hazardous chemical substance or mixture with respect to which the EPA has taken action.
[2] It is undisputed that the solvents and cutting oils contain a number of CERCLA hazardous substances.
[3] The Court notes that "[t]he absence of threshold quantity requirements in CERCLA leads logically to the conclusion that the Act's `hazardous substance' definition includes even minimal amounts." B.F. Goodrich v. Betkoski, 99 F.3d 505, 517 (2d Cir.1996).
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Order Michigan Supreme Court
Lansing, Michigan
June 28, 2010 Marilyn Kelly,
Chief Justice
Rehearing No. 563 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
1 December 8 Stephen J. Markman
Diane M. Hathaway,
Justices
136648
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v SC: 136648
COA: 277012
Wayne CC: 06-013878-01
EDWIN DEWAYNE RICHMOND,
Defendant-Appellant.
______________________________________
On order of the Court, the prosecution’s motion for rehearing of this Court’s
opinion, 486 Mich 29 (2010), is GRANTED in part. We grant the prosecution’s request
for clarification about how it may proceed against defendant in light of this Court’s
decision.
The prosecution may refile the charges against defendant and, if necessary, file an
interlocutory appeal to challenge the underlying suppression ruling. As the dissent in
Richmond explained, the circuit court’s suppression ruling is subject to correction
because of the intervening change in the law occasioned by our decision in People v
Keller, 479 Mich 467 (2007). Slip op at 3-4. See also Freeman v DEC Int'l, Inc, 212
Mich App 34, 38 (1995) (exception to law of the case doctrine); People v Johnson, 191
Mich App 222, 225 (1991) (exception to collateral estoppel doctrine). This Court’s
opinion vacates the Court of Appeals’ decision, which corrected the circuit court’s ruling
in light of Keller, on jurisdictional grounds, not on the merits.
The prosecutor’s original decision to dismiss the case to seek appellate review
was, at most, a procedural misstep that did not reach the merits of her case. Moreover,
we note that the prosecutor has non-frivolous arguments such that she can appropriately
2
seek to reinstate her case. The comments to MRPC 3.1 define “frivolous” as “an action
taken primarily for the purpose of harassing or maliciously injuring a person.” In light of
the intervening change in the law in Keller, in view of the fact that the prosecutor has
received a unanimous Court of Appeals decision in her favor, and in view of the
clarifying nature of the instant decision, we believe that reasonable arguments remain
available to the prosecutor to explain why reinstatement of charges under these
circumstances is appropriate.
In all other respects, the motion for rehearing is DENIED.
CORRIGAN, J. (concurring in part and dissenting in part).
I would grant the prosecution’s motion for rehearing, and upon rehearing, would
affirm for the reasons stated in my dissenting opinion in People v Richmond, 486 Mich
29, 42 (2010). As the prosecutor suggests in her motion for rehearing, the majority
opinion in Richmond creates an absurd situation: a prosecutor may accept a dismissal of
charges but may not move for such a dismissal without rendering the case “moot.” When
a prosecutor maintains legally cognizable and live interests that can be vindicated only
through appellate review, whether a claim is “moot” does not arbitrarily turn on whether
the prosecutor, rather than the defendant or the trial court, moves to dismiss the case.
I concur in the Court’s order of clarification, however, because I agree that the
prosecution may proceed in the manner explained in the order. The prosecutor clearly
has a non-frivolous case that she rightfully wishes to pursue. Thus, where double
jeopardy grounds do not bar it, this order preserves a prosecutor’s statutory right of
appeal and ensures that the administration of justice will not be forever thwarted by the
rule created in Richmond.
KELLY, C.J. and CAVANAGH, JJ., would deny rehearing.
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.
June 28, 2010 _________________________________________
Clerk
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[J-58-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 709 CAP
:
Appellee : Appeal from the Judgment of Sentence
: imposed on October 9, 2014 in the
: Court of Common Pleas, York County,
v. : Criminal Division at No. CP-67-CR-
: 0006857.
:
TIMOTHY MATTHEW JACOBY, : SUBMITTED: May 10, 2016
:
Appellant :
OPINION
JUSTICE WECHT1 DECIDED: September 28, 2017
On October 9, 2014, Timothy Matthew Jacoby was sentenced to death after a
jury convicted him of first-degree murder, burglary, tampering with physical evidence,
and robbery.2 In this automatic direct appeal, we affirm the convictions and the death
sentence.
I. Background
On March 31, 2010, at 2:52 p.m., the York County 911 call center received a call
that originated from Monica Schmeyer’s residence on Trone Road in York,
Pennsylvania. When the police arrived, they found Monica Schmeyer dead on her living
room floor. Blood droplets and stains surrounded her body. The telephone was off the
1
This case was reassigned to this author.
2
18 Pa.C.S. §§ 2502(a), 3502(a), 4910(1), and 3701(a)(1)(i), respectively.
hook; there was blood on the 9 and the 1. There was also a .32 caliber Speer branded
shell casing on the floor near Monica Schmeyer’s body.
Jacoby eventually became a suspect in the murder. The following is a summary
of the evidence that the Commonwealth presented to prove that Jacoby killed Monica
Schmeyer.
In 2010, Jacoby was a member of an informal group of individuals that gathered
at a Hooters restaurant located on Route 30 in York County, Pennsylvania. The group
called themselves the “Orange Shorts Society” (“OSS”), a moniker derived from the
uniforms worn by Hooters’ waitresses. The members of the OSS included Jacoby,
Sarah Powell (Jacoby’s fiancée at the time), Dr. Jon Schmeyer, and Pete Lobianco.
At some of these informal meetings, Dr. Schmeyer talked about his divorce from,
and the current state of affairs with, his ex-wife, Monica Schmeyer. Dr. Schmeyer told
the group that he paid Monica $1,700 in alimony each month, in cash. Monica was
known to have a habit of keeping her cash in white envelopes secreted in various
places around her home. Dr. Schmeyer also mentioned that their daughter, Elsa
Schmeyer, would be travelling to Japan in March of 2010.
There was an OSS meeting scheduled for March 31, 2010. On that date, at
approximately 2:00 p.m., Dr. Schmeyer met with Sarah Powell to discuss certain
financial matters related to foreign currency. During the meeting, Dr. Schmeyer sent a
text message to Jacoby, but received no return message. At 3:00 p.m., Dr. Schmeyer
and Powell proceeded to the Hooters for the scheduled OSS meeting. Jacoby never
showed for this meeting, even though members of the club—including his fiancée—
expected him to attend. Powell tried unsuccessfully to call Jacoby. Powell eventually
left the restaurant to return to their shared home. Jacoby was not there either. Jacoby
[J-58-2016] - 2
finally returned home at approximately 6:00 p.m. He told Powell that he had been at
work.
Around the same time that the OSS members were gathering, in a different part
of town, William Kagarise exited his house on Snyder Mill Road, and walked toward his
barn to feed his animals. As Kagarise walked to the barn, he looked up and saw a
white male walking on Snyder Mill Road with his head down. The male was walking
toward Trone Road, which is where Monica Schmeyer lived. Approximately twenty to
thirty minutes later, Kagarise saw the same white male walking on Snyder Mill Road,
but this time away from Trone Road. The man was carrying a white envelope in one
hand, which Kagarise did not observe when he first saw the man.
Kagarise described the man as approximately five feet, ten inches tall, with short
hair. Kagarise noted that the man was walking fast, and with a purpose, an unusual
behavior for someone at that time of the day in that part of town. Kagarise had never
seen the man before that day.
Anthony Crawford also lived on Snyder Mill Road. On the date in question,
Crawford saw a silver van parked along Snyder Mill Road at approximately 4:30 or 5:00
p.m. He also saw a white male walking toward the van. Police later investigated the
area and found two sets of tire tracks in the grassy area where Crawford saw the van.
Using surveillance video from a local bank located minutes from Trone Road, the police
were able to determine that the same van had passed the bank headed in the general
direction of Monica Schmeyer’s residence at about 2:38 p.m., and passed in the
opposite direction at approximately 2:59 pm. The police observed the same van head
again towards Trone Road at 3:56 p.m., and then return from that direction at 4:57 p.m.
The van belonged to a company called Armstrong World Industries. In 2010,
both Stanley Knight and Jacoby worked for the company. Knight identified the van from
[J-58-2016] - 3
the surveillance videos. He explained that the van had been customized so that work-
related materials could fit into it. Knight was able to observe some of the
customizations to the van in the video, and positively identify the van. Knight also
indicated that both he and Jacoby had used the van in the past, and that Jacoby had
access to the van on the date in question.
When an employee at Armstrong World Industries used the van, he or she was
required to sign out the van on a calendar that was posted in the lot where the van was
parked. However, the March 2010 page was missing, which Knight found to be highly
unusual. Nonetheless, Jacoby later submitted an expense report on March 31, 2010,
which indicated that he used the van at some time between March 26 and March 31.
Knight also noted that Armstrong World Industries did not do business in the area
surrounding Monica Schmeyer’s residence.
Dr. Samuel Land autopsied Monica Schmeyer, and concluded that she died from
a single gunshot wound above her left ear. Dr. Land found a bullet and a fragment
inside of Monica Schmeyer’s skull. The doctor also observed bruising and lacerations
to her brow, face, and chin. Dr. Land determined that these injuries were not consistent
with a single post-death fall to the floor, but instead resulted from repeated strikes to the
head by her assailant, possibly with a firearm.
When the police processed the crime scene, officers found blood on the bottom
of Monica Schmeyer’s sock and droplets of blood on her pants and bedding. The police
believed that this blood evidence suggested that there was a struggle before she was
killed. Thus, Dr. Land took scrapings from underneath Monica Schmeyer’s fingernails
and submitted them to the police for DNA testing.
[J-58-2016] - 4
The scrapings were submitted to NMS Labs for Y-STR DNA.3 A sample from
Monica Schmeyer’s left hand produced a full Y-STR profile from a single contributor.
Further testing revealed that Jacoby and all of his male relatives could not be excluded
as the source of the sample. Notably, by all accounts, Monica Schmeyer had never met
Jacoby before her death. Thus, the presence of a Y-STR profile that could not exclude
Jacoby under her fingernails provided police with compelling evidence that Jacoby was
her murderer.
Corporal David Krumbine, an expert in firearm and tool mark examinations,
inspected the .32 caliber Speer branded cartridge that was found near Monica
Schmeyer’s body. Cpl. Krumbine determined that the cartridge could have been fired
from a Kel-Tec manufactured firearm. The expert also concluded that the bullet and
fragment retrieved from Monica Schmeyer’s skull were consistent with the Speer
cartridge.
Cpl. Krumbine’s conclusion that the cartridge could have been fired from a Kel-
Tec firearm was important to the police’s effort to identify the killer, because Jacoby was
the registered owner of a Kel-Tec P32 semiautomatic handgun. However, this
particular weapon was never found, and no one could link the cartridge to the weapon
registered to Jacoby.
The police were still investigating the murder approximately fifteen months later
when they requested and obtained a search warrant for Jacoby’s residence. On July 6,
2011, the police executed the warrant and found a second-generation Kel-Tec barrel.
The top of that barrel had been ground down to resemble the shape of a first-generation
3
As set forth in more detail infra, Y-STR DNA analysis is a form of DNA testing
that focuses upon the Y-chromosome and can be used to exclude a male suspect and
his male relatives from being a DNA match to a particular sample.
[J-58-2016] - 5
barrel, which is necessary for the second-generation barrel to fit onto a first-generation
Kel-Tec firearm. Internet purchase records demonstrated that Jacoby had purchased a
second-generation barrel, but this purchase occurred after Monica Schmeyer had been
murdered. Nonetheless, as noted earlier, Jacoby was the registered owner of a first-
generation Kel-Tec firearm, and the barrel that he purchased was not compatible with
the weapon he owned without first being ground down to the correct size.
Following the search of Jacoby’s residence, the police requested and received a
second search warrant for Jacoby’s parents’ farm and home.4 In part, the police sought
the warrant because Jacoby’s fiancée, Sara Powell, told police officers that Jacoby had
moved his .32 caliber Kel-Tec weapon, which he usually kept under the pillow on his
bed, to his parents’ house. The warrant was executed later the next day.
At Jacoby’s parents’ house, the police found an empty box for a Kel-Tec P32
first-generation semiautomatic handgun, as well as documentation supporting the
purchase and registration. Jacoby’s signature was affixed to the documentation. The
police also found live .32 caliber Speer ammunition, and a first-generation Kel-Tec
barrel. The police also found a “Desert Eagle” .50 caliber handgun.5
The police also searched an area of Jacoby’s parents’ farm that was used as a
shooting range. The police examined this area because Jacoby’s brother had informed
officers that he had seen Jacoby using the range to fire a .32 caliber weapon. There,
the police found four .32 caliber Speer spent cartridge casings.
4
Jacoby challenges the affidavits of probable cause offered in support of both of
these warrants in this direct appeal. We discuss the particulars of those affidavits in our
analyses of Jacoby’s challenges below.
5
This weapon formed the basis of a persons not to possess firearm charge
against Jacoby. However, the Commonwealth later withdrew this charge.
[J-58-2016] - 6
Cpl. Krumbine examined the four casings, and compared them to the casing
found next to Monica Schmeyer’s body. He concluded that the casings all had been
fired from the same, but unknown, firearm. He also ascertained that all of these
cartridges contained the same Speer headstamp as the unspent ammunition found in
Jacoby’s parents’ house.
Cpl. Krumbine then fired some test shots using the first-generation Kel-Tec barrel
found at Jacoby’s parents’ residence. He noted that the bore of the barrel contained
extensive scratch marks that were intentionally made, and not the result of normal
cleaning. When fired, the weapon left marks on the bullets that were consistent with
marks left on the bullet removed from Monica Schmeyer’s skull, though Cpl. Krumbine
could not conclude definitively that they were fired from the same gun because the
damage to the bore rendered such an exacting analysis impossible.
On October 9, 2012, the Commonwealth filed an information formally charging
Jacoby with the murder. On June 24, 2013, Jacoby filed a suppression motion seeking
to suppress the evidence obtained as a result of the search warrants executed on his
home and on his parents’ home and property. Jacoby further challenged a separate
search warrant used by the police to secure a DNA sample from him for comparison to
the genetic material found under Monica Schmeyer’s fingernails. Jacoby also
requested a Frye6 hearing, relative to the Commonwealth’s Y-STR DNA analysis.
Following a July 2, 2014 hearing, the trial court denied the motions.
On September 29, 2014, Jacoby proceeded to a jury trial. On October 8, 2014,
the jury found Jacoby guilty of first-degree murder, burglary, tampering with physical
evidence, and robbery. At the conclusion of the penalty phase, the jury recommended a
6
See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
[J-58-2016] - 7
death sentence. On October 9, 2014, the trial court formally sentenced Jacoby to
death.
On October 20, 2014, Jacoby filed a timely post-sentence motion,7 which the trial
court denied on March 17, 2015. On July 23, 2015, Jacoby filed a petition seeking
permission to file an appeal nunc pro tunc with the trial court, along with a
contemporaneous nunc pro tunc notice of appeal. The trial court granted the
permission on the same day.8
II. Issues
Presently, Jacoby raises the following seven issues, which we have restated and
reordered for ease of discussion and disposition:
I. Whether the evidence presented, viewed in the light most favorable
to the Commonwealth, was insufficient to prove beyond a
reasonable doubt [Jacoby] guilty of first[-]degree murder, burglary[,]
and robbery?
II. Whether the trial court erred in denying [Jacoby’s] request for a
new trial where the first[-]degree murder, burglary[,] and robbery
verdicts were contrary to the weight of the evidence and doshock
one’s sense of justice?
III. Whether the warrant seeking to search [Jacoby’s] residence at
1719 West Princess Street, York[,] Pennsylvania[,] lacked probable
cause[:]
1. Whether there was insufficient information contained
within the search warrant to establish probable cause
that [Jacoby] was a suspect in the homicide?
2. Whether the search warrant lack[ed] probable cause
because it [did] not specifically set forth facts and
circumstances to support the belief that the murder
7
The tenth day after sentencing fell on Sunday, October 19, 2014. Thus, Jacoby’s
motion, filed the next day, was timely. See generally 1 Pa.C.S. § 1908.
8
Both Jacoby and the trial court complied with Pa.R.A.P. 1925.
[J-58-2016] - 8
weapon [would have been] found in [Jacoby’s]
residence.
3. Whether the information in the affidavit of probable
cause [was] stale.
IV. Whether the warrant seeking to search [Jacoby’s] parents’
residence at 2440 Meeting House Road, Spring Grove,
Pennsylvania[,] lacked probable cause?
V. Whether the warrant to search [Jacoby] for a DNA sample lacked
probable cause?
VI. Whether the trial court erred in denying [Jacoby’s] request for a
Frye hearing and admitted the Y[-]STR DNA evidence, where such
evidence is unreliable?
VII. Whether the evidence presented during the penalty phase, viewed
in the light most favorable to the Commonwealth, was insufficient to
support a sentence of death?
Brief for Jacoby at 5-6 (some material omitted; capitalization modified).
III. Sufficiency of Trial Evidence
Jacoby first challenges the sufficiency of the evidence proffered by the
Commonwealth to prove him guilty of first-degree murder, burglary, and robbery. In
reviewing sufficiency of evidence claims, “we determine ‘whether the evidence admitted
at trial, and all the reasonable inferences derived therefrom viewed in favor of the
Commonwealth as verdict winner, supports the jury’s findings of all the elements of the
offense beyond a reasonable doubt.’” Commonwealth v. Cash, 137 A.3d 1262, 1269
(Pa. 2016) (quoting Commonwealth v. Smith, 985 A.2d 886, 894-95 (Pa. 2009)). A
sufficiency challenge is a pure question of law. Thus, our standard of review is de novo
and our scope of review is plenary. Commonwealth v. Sanchez, 82 A.3d 943, 967 (Pa.
2013).
We begin with Jacoby’s challenge to his first-degree murder conviction. Jacoby
argues that the Commonwealth failed to prove, beyond a reasonable doubt, that he
killed Monica Schmeyer. Brief for Jacoby at 48. Essentially, Jacoby claims that neither
[J-58-2016] - 9
the Commonwealth’s ballistics evidence nor its DNA evidence was sufficient to prove
identity, either alone or when combined. Jacoby maintains that the remaining evidence
consisted of nothing more than the creation of a timeline that was “so inconclusive that
a jury could not draw a probability of fact from it.” Id. at 51. The Commonwealth
counters that various pieces of evidence permitted the jury to infer that Jacoby was the
killer, even if the jury disregarded entirely its timeline evidence. See generally Brief for
the Commonwealth at 66-67.
To sustain a conviction for first-degree murder, the Commonwealth must
establish beyond a reasonable doubt that: (1) a human being was unlawfully killed; (2)
the defendant was responsible for the killing; and (3) the defendant acted with malice
and the specific intent to kill. Sanchez, 82 A.3d at 967 (citation omitted). As noted
above, Jacoby challenges generally the Commonwealth’s proof identifying him as the
killer, and not whether the Commonwealth established the other elements of murder.
Regardless of his specific argument, “[i]n all cases where a death sentence has been
imposed, this Court is required to conduct an independent review of the sufficiency of
the evidence supporting a first-degree murder conviction.” Commonwealth v. Perez, 93
A.3d 829, 840 (Pa. 2014) (internal quotation marks and citation omitted). Thus, we will
review briefly the evidence in support of the other elements of first-degree murder.
At trial, the Commonwealth called Dr. Land, who testified that Monica Schmeyer
died from a gunshot wound to her head, with the point of entry being just above her left
ear. Dr. Land also noted that she had bruises around both of her eyes, her right cheek,
and left chin, as well as various skin tears around her mouth. In our view, this is
sufficient evidence to show that the victim was killed unlawfully by someone with a
specific intent to kill. See Commonwealth v. Mattison, 82 A.3d 386, 392 (Pa. 2013)
(noting that “[s]pecific intent to kill can be established through circumstantial evidence,
[J-58-2016] - 10
such as the use of a deadly weapon on a vital part of the victim’s body”) (citing
Commonwealth v. Rega, 933 A.2d 997, 1009 (Pa. 2007)).
We now focus upon Jacoby’s specific identity challenge. The Commonwealth
produced several witnesses at trial to establish Jacoby’s identity as the murderer. Dr.
Schmeyer testified that he met Jacoby and the other members of the OSS club at the
local Hooters restaurant. Dr. Schmeyer also testified that he had been paying alimony
to Monica Schmeyer in the amount of $1,700 per month in twenty-dollar bills. Dr.
Schmeyer’s younger daughter, Elsa, was living with Monica Schmeyer at the time.
However, Elsa was in Japan on the actual date of the murder. Dr. Schmeyer explained
at trial that he may have spoken about the alimony and Elsa’s trip at the OSS meetings.
Pete Lobianco, another member of the OSS, indicated at trial that he learned both of the
alimony arrangement and Elsa’s trip at OSS meetings, at which Jacoby usually was
present. Both Dr. Schmeyer and Lobianco testified that Jacoby was not at the March
31, 2010 OSS meeting, which corresponded generally with the time that Monica
Schmeyer was killed.
In addition, William Kagarise testified that he saw a white male matching
Jacoby’s description walking with his head down in the direction of Trone Road on the
day of the murder. Kagarise saw the same person walking in the opposite direction
twenty to thirty minutes later, carrying a white envelope that he did not have the first
time that Kagarise saw him. Kagarise testified that he waved at the person and greeted
him. The man only nodded, kept his head down, and passed by. Officer Jerry Knouse
testified at trial that, when he was inside Monica Schmeyer’s home after the murder, he
observed several white envelopes containing various amounts of money.
Anthony Crawford testified that he observed a silver van pull onto the grass on
Snyder Mill Road between 4:30 and 5:00 p.m. on the day in question, and saw a white
[J-58-2016] - 11
male walking in the direction of the van. Police located two sets of tire tracks on the
grass in this location. Additionally, the bank’s surveillance video showed a silver cargo
van driving in the direction of Trone Road at about 2:38 p.m., and driving away at about
2:59 p.m. The same van appeared on the video at approximately 3:56 p.m. heading
toward Trone Road, and heading away from that direction at 4:57 p.m. Stanley Knight,
Jacoby’s co-worker, identified the van in the surveillance video and explained that
Jacoby had access to the van. When the police inspected the calendar that was used
as a sign-out sheet for the van, they found that the March page had been removed from
the calendar. No one could explain why that page was missing. However, Jacoby
submitted an expense report for reimbursement for gas for the van during March 26 and
March 31, 2010.
Cpl. Krumbine testified as an expert in firearms and tool mark examinations. He
explained to the jury that the .32 caliber shell casing that was found at the murder scene
was consistent with the unspent ammunition that was found in a bedroom in Jacoby’s
parents’ home. Moreover, the casing was discharged from the same firearm that was
used to fire the same size ammunition at the shooting range at Jacoby’s parents’ house.
The search warrant executed on Jacoby’s parents’ house revealed an empty box for a
.32 caliber Kel-Tec weapon and documentation proving that Jacoby purchased the
weapon. These two items were found in the same bedroom where the unspent .32
caliber ammunition was found.
As noted earlier, the police obtained scrapings from underneath Monica
Schmeyer’s fingernails for DNA testing. Y-STR DNA testing revealed a DNA profile
from under the nails that did not belong to Monica Schmeyer. Testing further
determined that Jacoby, as well as all males in his paternal lineage, could not be
excluded as the contributor of the sample.
[J-58-2016] - 12
As the ultimate finder of fact, the jury was free to believe some, all, or none of the
Commonwealth’s evidence. The jury also was free to resolve any inconsistencies or
discrepancies in the testimony in either party’s favor. See generally Commonwealth v.
Ramathal, 33 A.3d 602, 607 (Pa. 2011) (explaining that “[t]he Commonwealth may
sustain its burden of proof by means of wholly circumstantial evidence, and the jury,
which passes upon the weight and credibility of each witness’s testimony, is free to
believe all, part, or none of the evidence”). Here, the evidence supported the jury’s
determination that Jacoby drove his employer’s van to the area of the victim’s
residence, parked a distance away, walked to the residence, committed the murder,
returned to the vehicle, and drove away. The testimony regarding the customized van
belonging to Jacoby’s employer, combined with the testimony concerning the shell
casing, and Jacoby’s knowledge that Monica Schmeyer would be alone and usually
kept cash on hand was more than sufficient, when viewed in the light most favorable to
the Commonwealth, to prove that Jacoby was the person who committed the murder.
The evidence supports the first-degree murder conviction, and Jacoby is not entitled to
relief on this claim.
Jacoby next claims that the Commonwealth presented insufficient evidence to
sustain his burglary conviction. Specifically, Jacoby asserts that the Commonwealth
failed to prove that it was Jacoby who had entered the residence and did so with intent
to commit a crime therein. Brief for Jacoby at 52. To sustain a burglary conviction, “the
Commonwealth is required to prove beyond a reasonable doubt that the offender
entered the premises with the contemporaneous intent of committing a crime therein, at
a time when he or she was not licensed or privileged to enter.” Sanchez, 82 A.3d at
973.
[J-58-2016] - 13
Regarding his claim that the Commonwealth failed to prove that he was the
actor, Jacoby incorporates by reference in his brief his identity argument in his
challenge to his first-degree murder conviction. We reject the same argument for the
reasons set forth in our preceding analysis.
Jacoby next contends that the Commonwealth did not prove that he entered the
residence with the intent to commit a crime once inside. Jacoby relies upon two
Superior Court opinions in support of this argument: Commonwealth v. Willetts, 419
A.2d 1280 (Pa. Super. 1980), and Commonwealth v. Crowson, 405 A.2d 1295 (Pa.
Super. 1979) (per curiam). Neither case affords him any form of relief.
In Willetts, Willetts was convicted of attempted burglary and theft by unlawful
taking. The theft conviction stemmed from Willetts being accused of stealing a van
belonging to a business. The Commonwealth presented eyewitness testimony that
Willetts was seen climbing in and out of, and kicking the van in question, that the van
was stolen, and that a search of Willetts’ person incident to his arrest yielded a map and
a business card that was taken from the stolen van. Nevertheless, the Superior Court
concluded that there was insufficient evidence of theft because “[t]here was no
testimony placing [Willetts] in the vicinity of the service station from which the van was
stolen, nor did anyone see [Willetts] operate the van . . . [and Willetts’] activity around
the van did not evidence [] dominion and control over the vehicle.” Willetts, 419 A.2d at
1282.
Likewise, in Crowson, the Superior Court reversed Crowson’s burglary
conviction. Specifically, the panel concluded that “there [was] no evidence that
[Crowson] entered the [victim’s] residence surreptitiously or by force. In fact, there is no
evidence at all regarding the manner of entry by [Crowson] . . . [or] about the
circumstances regarding [the] entry.” Crowson, 405 A.2d at 1296. The Superior Court
[J-58-2016] - 14
rejected the Commonwealth’s position that “specific intent to commit a crime can be
inferred solely from the commission of a crime within the entered structure.” Id. at 1296-
97. Therefore, the intermediate court concluded that the Commonwealth had failed to
provide sufficient evidence that Crowson’s entry into the residence in question was
done with the specific intent to commit a crime. Id. at 1297.
In this case, as noted above, the Commonwealth provided evidence that Jacoby
was inside Monica Schmeyer’s home, and was in possession of a .32 caliber firearm.
The Commonwealth also established that Jacoby was seen by William Kagarise walking
from the direction of the home with a white envelope in his hand. The police noted that
Monica Schmeyer kept envelopes containing cash inside her home. The
Commonwealth’s evidence also established that Jacoby learned of this practice, and
that Elsa Schmeyer would not be in the home on the day that he committed the murder.
The evidence warranted the jury to infer that Jacoby, at a minimum, entered the home
with the intent to commit at least a theft. Unlike Willetts, the Commonwealth produced
evidence that placed Jacoby near the crime scene around the time of the 911 call.
Furthermore, unlike Crowson, the Commonwealth introduced evidence that Jacoby and
Monica Schmeyer did not know each other prior to the murder. From this information,
the jury was free to conclude that Jacoby was not licensed or privileged to enter, and
that he gained entry with the intent to commit a crime. Hence, the jury was provided
with circumstantial evidence by which to evaluate the circumstances of the entry, a
factor absent in Crowson. The evidence was sufficient to sustain the burglary
conviction.
Next, Jacoby challenges his robbery conviction, contending that the
Commonwealth’s evidence was insufficient to prove that he committed a theft for
purposes of the offense. See Brief for Jacoby at 54. To convict a person of robbery, as
[J-58-2016] - 15
is relevant to this case, the Commonwealth must prove that the person inflicted serious
bodily injury upon another person in the course of committing a theft. 18 Pa.C.S. §
3701(a)(1)(i).
The Commonwealth demonstrated, through circumstantial evidence, that Jacoby
was aware that Dr. Schmeyer paid alimony to Monica Schmeyer in cash, and that she
would be home alone on the date in question. The evidence also established that
Monica Schmeyer secreted her money in white envelopes that she placed around her
house. Various witnesses established that Jacoby was seen going to and away from
her residence on the date and at the time of the murder. More importantly, William
Kagarise saw Jacoby coming from the residence carrying a white envelope identical to
those in which Monica Schmeyer kept her money. Undoubtedly, the jury could infer
from this evidence that Jacoby stole cash from Monica Schmeyer in the course of
assaulting and killing her. Jacoby’s argument to the contrary fails.
IV. Weight of the Evidence
Next, Jacoby alleges that the verdict was against the weight of the evidence,
asserting, inter alia, that the “physical evidence presented by the Commonwealth
disputes the Commonwealth’s own theory of the case.” Brief for Jacoby at 57. Jacoby
highlights minor inconsistencies between the surveillance video and the testimony of
various Commonwealth witnesses. Jacoby notes that the Commonwealth’s surveillance
video shows the van driving to and from the direction of Trone Road within a span of
only twenty-one minutes. He further points out that a detective at trial testified that it
takes approximately four minutes to drive from the location of the surveillance video to
Snyder Mill Road. A detective also approximated that it would take nine minutes to walk
from Snyder Mill Road to Monica Schmeyer’s residence. Thus, Jacoby contends, the
Commonwealth’s own witnesses established that it would have taken him at least
[J-58-2016] - 16
twenty-six minutes to complete the drive and walk to the residence, and back. This
calculation does not even include any time spent inside the residence. Finally, Jacoby
identifies other inconsistencies in the timeline testimony, such as the conflict between
William Kagarise’s statement that Jacoby walked back from the Trone Road area
between 3:00 and 3:15 p.m. and Anthony Crawford’s assertion that he saw Jacoby
coming from that area at approximately 5:00 p.m., and with the surveillance video
showing the van leaving that area at 2:50 p.m.
The Commonwealth counters Jacoby’s argument, maintaining that the evidence
pertaining to the location of the van and the eyewitness testimony was introduced for
the purpose of establishing Jacoby’s presence in the area of Monica Schmeyer’s home
at the time of the murder. Moreover, the “evidence shows that [Jacoby] had the
opportunity to commit the home-invasion robbery that culminated in Monica Schmeyer’s
murder.” Brief for the Commonwealth at 77. Although there were facial inconsistencies,
the Commonwealth argues that the jury was free to use the evidence for these two
purposes.
“A motion for a new trial based on a claim that the verdict is against the weight of
the evidence is addressed to the discretion of the trial court.” Commonwealth v. Clay,
64 A.3d 1049, 1054-55 (Pa. 2013). “A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same facts would have
arrived at a different conclusion.” Id. at 1055. When a trial court considers a motion for
a new trial based upon a weight of the evidence claim, the trial court may award relief
only “when the jury’s verdict is so contrary to the evidence as to shock one’s sense of
justice and the award of a new trial is imperative so that right may be given another
opportunity to prevail.” Id. The inquiry is not the same for an appellate court. Rather,
when an appellate court reviews a weight claim, the court is reviewing the exercise of
[J-58-2016] - 17
discretion by the trial court, not the underlying question of whether the verdict was
against the weight of the evidence. Id. at 1054. The appellate court reviews a weight
claim using an abuse of discretion standard. Id. at 1057.
At trial, the jury was the ultimate fact-finder and the sole arbiter of the credibility
of each of the witnesses. “Issues of witness credibility include questions of inconsistent
testimony and improper motive.” Commonwealth v. Sanchez, 36 A.3d 24, 27 (Pa.
2011) (citation omitted). A jury is entitled to resolve any inconsistences in the
Commonwealth’s evidence in the manner that it sees fit. See Commonwealth v. Rivera,
983 A.2d 1211, 1220 (Pa. 2009) (stating that “the trier of fact, in passing upon the
credibility of witnesses, is free to believe all, part, or none of the evidence”) (citation
omitted).
As noted, inconsistencies in eyewitness testimony are not sufficient to warrant a
new trial on grounds that the verdict was against the weight of the evidence. Clay, 64
A.3d at 1055. Although Jacoby has highlighted various inconsistencies in the
Commonwealth’s evidence, the jury was permitted to reject Anthony Crawford’s
testimony that Jacoby passed by at a much later time than other evidence suggested,
and to resolve any minor inconsistencies between Kagarise’s testimony and the
surveillance video in the Commonwealth’s favor. Assessing all of the evidence
according to the governing principles cited above, we simply cannot conclude that the
trial court abused its discretion when it concluded that the jury’s verdict did not shock its
sense of justice. Consequently, Jacoby’s weight challenge necessarily fails.
V. Search Warrant Executed on Jacoby’s Residence
Jacoby raises several challenges to the search warrants issued in this case. In
his first challenge in this regard, Jacoby challenges the warrant that was executed on
his home on July 6, 2011. Jacoby presents three challenges to this warrant. First, he
[J-58-2016] - 18
asserts that the warrant lacked probable cause supporting the contention that he was
the actor in the murder. Second, he maintains that the warrant lacked probable cause
to establish that the murder weapon would be found inside his residence. Finally,
Jacoby argues that the information contained in the affidavit of probable cause was
stale. We find merit to some of Jacoby’s arguments, but hold that any error was
harmless.
We review the denial of a motion to suppress by examining whether the trial
court’s factual findings are supported by the record. In doing so, we consider all of the
Commonwealth’s evidence, as the succeeding party, as well as any defense evidence
that went uncontradicted. Commonwealth v. Martin, 101 A.3d 706, 719 (Pa. 2014)
(citation omitted). We are bound by any factual findings that are supported by the
record. Id. However, we owe no deference to any legal conclusions drawn by the trial
court. To the contrary, we review those conclusions de novo. Commonwealth v.
Briggs, 12 A.3d 291, 320-21 (Pa. 2011).
All three of Jacoby’s contentions pertain to the alleged inadequacy (and
staleness) of probable cause offered in support of the warrant. The Fourth Amendment
to the United States Constitution commands that “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.” U.S. CONST. amend IV. Similarly, Article I,
Section 8 of the Pennsylvania Constitution provides that “[t]he people shall be secure in
their persons, houses, papers and possessions from unreasonable searches and
seizures, and no warrant to search any place or to seize any person or things shall
[J-58-2016] - 19
issue without describing them as nearly as may be, nor without probable cause,
supported by oath or affirmation subscribed to by the affiant.” PA. CONST. art. I, § 8.
A search warrant may issue only upon a demonstration of probable cause by an
affiant. See generally Commonwealth v. Gary, 91 A.3d 102, 107 (Pa. 2014). The
existence of probable cause is measured by examining the totality of the circumstances.
Illinois v. Gates, 462 U.S. 213, 238 (1983). “Probable cause exists where the facts and
circumstances within the affiant’s knowledge and of which he [or she] has reasonably
trustworthy information are sufficient in and of themselves to warrant a [person] of
reasonable caution in the belief that a search should be conducted.” Commonwealth v.
Johnson, 42 A.3d 1017, 1031 (Pa. 2012) (internal quotation marks and citation omitted).
A magisterial district judge, when deciding whether to issue a search warrant, must
“make a practical, common-sense decision whether, given all of the circumstances set
forth in the affidavit . . . including the veracity and basis of knowledge of persons
supplying hearsay information, there is a fair probability that contraband or evidence of
a crime will be found in a particular place.” Id. (citation omitted). Conversely, “[a] court
reviewing a search warrant determines only if a substantial basis existed for the
magistrate to find probable cause.” Id. (citation omitted). We also note that there is a
strict particularity requirement in Article I, Section 8 of the Pennsylvania Constitution
that “a warrant must describe the items as specifically as is reasonably possible.”
Commonwealth v. Grossman, 555 A.2d 896, 899 (Pa. 1989); see also Pa.R.Crim.P.
205(2) (requiring all search warrants to “identify specifically the property to be seized”);
id. at 205(3) (requiring all search warrants to “name or describe with particularity the
person or place to be searched”).
The murder in this case occurred on March 31, 2010. The warrant to search
Jacoby’s house did not issue until approximately fifteen months later, on July 6, 2011.
[J-58-2016] - 20
Detective Lisa Layden applied for the warrant, and was the affiant on the affidavit of
probable cause. The affidavit contained the following information.
Det. Layden noted that a .32 caliber shell casing was found at the scene of the
murder. She further indicated that the casing most likely came from a .32 caliber
firearm, possibly one manufactured by Kel-Tec. Search Warrant S51, Affidavit of
Probable Cause, 7/6/2011, at 7. The detective explained that Jacoby was the
registered owner of a Kel-Tec .32 caliber semiautomatic pistol. Id.
Det. Layden also averred that Officer Bryn Lindenmuth interviewed Monica
Schmeyer’s neighbors in the days following the murder. One witness, William Kagarise,
provided Officer Lindenmuth with a description of a man that he saw walking toward,
and later away from, Monica Schmeyer’s home around the time of the killing. Id. at 3.
Det. Layden noted that Anthony Crawford provided Officer Lindenmuth with a similar
physical description of a man that he observed on the same day. Id. Crawford also told
Officer Lindenmuth that he saw a silver van parked in the grass on the side of the road
near his home. Id.
Det. Layden interviewed a woman named Olivia Becker. Becker was Dr.
Schmeyer’s girlfriend. She described a man who was a member of the OSS with Dr.
Schmeyer. Id. at 6. The detective noted that the description was similar to those
provided by Kagarise and Crawford. Id. Moreover, the descriptions matched Jacoby.
Id. at 7.
Det. Layden then explained that she interviewed Bob Sandkuhler and James
Baker of Armstrong World Industries. Both men confirmed that Jacoby worked for that
company. Id. They both informed Det. Layden that Jacoby had signed the company’s
silver van out for use on the day of the murder. The detective explained in the affidavit
that the van owned by Armstrong World Industries was consistent with the description of
[J-58-2016] - 21
the silver van provided by Anthony Crawford. Det. Layden met again with Crawford,
who identified the van owned by Armstrong World Industries as the van he saw near his
house on the day of the murder. Id.
Finally, Det. Layden’s affidavit described Jacoby’s firearm as follows:
The weapon referred to in this search warrant application is a unique item.
The current registered owner (Jacoby) is a convicted felon according to a
criminal history check through PA State Police. Due to this past history, it
is reasonable to believe Jacoby would retain this item, as he is barred
from legally obtaining another hand-gun.
It is reasonable to believe that evidence relevant and material to this
criminal investigation may be found within the residence, property and/or
vehicles owned, rented, or accessible to Jacoby or Sara Powell.
Id. at 8.
We are mindful that, “[i]n dealing with probable cause, however, as the very
name implies, we deal with probabilities. These are not technical; they are the factual
and practical considerations of everyday life on which reasonable and prudent men, not
legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175 (1949). Thus,
viewing the information contained in Det. Layden’s affidavit accordingly, we reject
Jacoby’s arguments that the affidavit lacked probable cause to believe that he was the
actor in the murder. The affidavit, on its face, provided sufficient probable cause to
indicate that Jacoby was the man seen walking to and from the direction of Monica
Schmeyer’s residence on the day in question, and that he used a van belonging to his
employer to drive to and from the general area. There also was probable cause to
believe that Jacoby owned a .32 caliber weapon, the same type of weapon used in the
murder. Thus, the statement of probable cause was sufficient in this regard. However,
his arguments pertaining to whether probable cause existed to believe that the weapon
would be found in his home and that the information contained in the affidavit on this
[J-58-2016] - 22
point was stale are not as easily rejected. To the contrary, we find merit to those
claims.
As noted, Jacoby challenges both the adequacy and staleness of the information
offered in the affidavit to believe that the alleged murder weapon would be found in his
home fifteen months after the murder. Again, Det. Layden asserted in the affidavit that
it was “reasonable” to believe the murder weapon was secreted in Jacoby’s house after
such a substantial period of time because Jacoby was not permitted to own a weapon
as a felon, and therefore was likely to retain the weapon due to the difficulty in procuring
another one in light of his felon status. This is conjecture and speculation, particularly
considering the gap in time, and cannot suffice as probable cause on this point.
The trial court reached similarly speculative conclusions. The court held that the
information provided probable cause and was not stale for two reasons. First, the court
noted that “guns are durable and sometimes valuable objects that people typically hold
on to for the long term.” Trial Court Opinion, 9/21/2015, at 4. This conclusion suffers
from the same defect as Det. Layden’s. It is not tailored or individualized to Jacoby in
any fashion. The court reaches its conclusions on what some unknown people may or
may not do under undefined circumstances. This conclusion falls short of probable
cause. Second, like Det. Layden, the court held that “the fact that [Jacoby] is a
convicted felon and therefore unable to legally obtain another firearm, increases the
likelihood that he would have held on to the firearm already in his possession.” Id.
Even if the trial court is correct that Jacoby’s felony status “increases the likelihood” of
keeping the firearm, that is not the same as establishing that it is probable that the
firearm was still in Jacoby’s home. Like the court’s first conclusion, the latter
explanation is not individualized to Jacoby, or his circumstances. The trial court’s
conclusion rests upon the same flaw described earlier. Probable cause, at a minimum,
[J-58-2016] - 23
must be individualized to the suspect and the circumstances of the case; it requires
more than generalized statements about human behavior that are unsupported by the
specific facts of the case.
“At the very core of the Fourth Amendment stands the right of a man to retreat
into his own home and there be free from unreasonable governmental intrusion.” Kyllo
v. United States, 533 U.S. 27, 31 (2001) (quoting Silverman v. United States, 365 U.S.
505, 511 (1961) (internal quotation marks omitted)). Generally, before police officers
constitutionally, i.e., reasonably, may enter into a person’s home to search for evidence
of a particular crime, they must apply for, and obtain from a neutral and detached
magistrate, a search warrant supported by individualized probable cause.
Neither the Fourth Amendment nor Article I, Section 8 of the Pennsylvania
Constitution explicitly requires individualized suspicion. See Samson v. California, 547
U.S. 843, 855 n.4 (2006) (“The touchstone of the Fourth Amendment is
reasonableness, not individualized suspicion.”). Nonetheless, although not an
“irreducible” component of reasonableness, the general rule is that probable cause must
be predicated upon individualized suspicion, and that searches conducted without such
suspicion ordinarily are deemed unreasonable. City of Indianapolis v. Edmond, 531
U.S. 32, 37 (2000) (citing Chandler v. Miller, 520 U.S. 305, 308 (1997)); Commonwealth
v. Mistler, 912 A.2d 1265, 1271 (Pa. 2006). The United States Supreme Court has
deviated from this baseline principle only in very limited circumstances, such as when
intrusion would serve “special needs, beyond the normal need for law enforcement.”
Edmond, 531 U.S. at 37 (citations omitted). Examples of such instances include: (1)
drug tests; (2) certain administrative purposes; (3) border patrol checkpoints; and (4)
sobriety checkpoints. See Mistler, 912 A.2d at 1271 (collecting cases). The search
warrant executed in the case sub judice implicated none of these special categories. As
[J-58-2016] - 24
such, the probable cause offered in support of that warrant was subject to the general
rule, and, thus, must have manifested suspicion individualized to the time and place of
the search. It failed to do so here.
Probable cause to search Jacoby’s home did not exist simply because probable
cause existed to believe that he had committed the murder, with a weapon of the same
caliber as one that he owned, and then drove in the general direction of his home fifteen
months before the search warrant was issued. Together and by themselves, these
factors do not justify entry without some nexus to the home. The trial court overlooked
the significant gap of time between the murder and the search, and then attempted to
buttress its conclusion with an unsourced assessment of general human behavior.
Without support, the trial court reasoned that people—felons especially—generally do
not discard firearms, even those used in murders.
This broad perspective on probable cause finds no support in Pennsylvania law
and is troubling on several levels. First, the trial court deviated from the search
jurisprudence summarized above without acknowledging or attempting to distinguish it.
The trial court would hold that, if police officers develop probable cause that a person
committed an offense anywhere in the Commonwealth with a weapon of the same
caliber as the one that he or she owns, probable cause exists automatically to search
that person’s home, no matter where it is located. It is easy to discern the infirmity of
this approach. If the trial court’s reasoning were to prevail, when a person commits an
offense with such a weapon in Erie County, police automatically would have probable
cause to search that person’s home, even if it is located in Delaware County. This is
inconsistent with Fourth Amendment jurisprudence.
Additionally, the trial court’s method for evaluating probable cause does not
require consideration, in any way, of the time lapse between the commission of the
[J-58-2016] - 25
offense and the search. Rather than addressing the time gap, the trial court would rest
upon its belief that people generally hold on to guns (even those used in murders) and
that, as such, probable cause to search for guns exists in apparent perpetuity. By this
logic, in the case of the Erie murder, the trial court would find probable cause to search
the Delaware County residence not only immediately after the murder, but also fifteen
months later, and presumably even ten years after the crime.
Finally, aside from the deviation from the core principles of the Fourth
Amendment and Article I, Section 8 that necessarily results from evaluating probable
cause in such general, categorical terms, there is another obvious peril in considering
probable cause in this manner. People of different genders, races, religions, and
backgrounds might respond to certain circumstances differently. Similarly, older people
might not conduct themselves as a younger generation would. Mainers might not
behave like Texans. There is nothing even to suggest that similar people within the
same general category would respond to a set of circumstances in the same way.
Probable cause to search Jacoby’s home must be evaluated based upon the
circumstances of his case, his behavior, and any nexus to the location to be searched,
but not upon categorical assumptions. Our Constitutions prohibit such categorical
conclusions, as well as those searches that are based upon such conclusions.
The architects of our Constitutions rejected general searches, and instead
charged police officers with demonstrating specific and articulable facts to establish
probable cause that a particular person committed a particular crime and that evidence
of that crime would be found in a particular place. The trial court’s approach shortcuts
this bedrock inquiry with general assumptions about human behavior, untethered to the
actual facts at hand, and was erroneous. For these reasons, we find an absence of
probable cause in the warrant to believe that the murder weapon would be found in
[J-58-2016] - 26
Jacoby’s residence fifteen months after the murder. As such, we need not address
Jacoby’s staleness argument.
However, Jacoby is not entitled to relief, because we find that that the trial court’s
error was harmless. “An error is harmless if it could not have contributed to the verdict.
In other words, an error cannot be harmless if there is a reasonable possibility the error
might have contributed to the conviction.” Commonwealth v. Wright, 961 A.2d 119, 143
(Pa. 2008) (citation omitted). The Commonwealth bears the burden to prove beyond a
reasonable doubt that the error did not contribute to the verdict. Id. (citation omitted). In
our view, it has done so here.
Harmless error exists where: (1) the error did not prejudice the defendant
or the prejudice was de minimis; (2) the erroneously admitted evidence
was merely cumulative of other untainted evidence which was
substantially similar to the erroneously admitted evidence; or (3) the
properly admitted and uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error was so insignificant by
comparison that the error could not have contributed to the verdict.
Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005) (quoting Commonwealth v.
Robinson, 721 A.2d 344, 350 (Pa. 1998)).
Earlier in this opinion, we summarized all of the evidence presented against
Jacoby. Reviewing that evidence in light of the standard set forth immediately above,
we conclude that the Commonwealth’s evidence, sans the Kel-Tec second-generation
barrel that was found in Jacoby’s home, was overwhelming, and that the introduction of
the barrel was “so insignificant by comparison that the error could not have contributed
to the verdict.” Id. The Commonwealth’s evidence established that Monica Schmeyer
was killed by a gunshot wound to the head, which was inflicted from a close distance.
Discussions at OSS meetings revealed that Monica Schmeyer collected support from
Dr. Schmeyer, and that she kept the funds in cash and in white envelopes. Moreover,
Dr. Schmeyer announced at those same meetings that Schmeyers’ daughter would not
[J-58-2016] - 27
be home on the day of the murder. On that date, a man matching Jacoby’s description
was seen driving a customized van that belonged to the company for which Jacoby
worked. Jacoby later submitted a voucher for reimbursement for costs associated with
the use of the van for a span of time that included the day of the murder. The man
meeting Jacoby’s description also was seen walking in the direction of the Schmeyer
residence, and then walking back a short time later carrying a white envelope. Jacoby,
who attended OSS meetings,9 also was not present at the OSS meeting that was held
at the exact time that Monica Schmeyer was murdered, even though his fiancée
generally expected him to be at the meeting.
The murder weapon was a .32 caliber firearm. The police recovered ammunition
matching the casings found at the murder scene at the following locations: a bedroom
in Jacoby’s parents’ home, and a makeshift shooting-range on that property. In fact, the
casings found at the murder scene were proven definitively to have been fired from a
gun that also was fired at that shooting range. The Commonwealth produced for the
jury a receipt proving that Jacoby had purchased a .32 caliber firearm.
Finally, through the Y-STR DNA testimony, the Commonwealth was able to
include Jacoby, by virtue of his male lineage, in the limited group of people who could
9
As the dissent observes, the frequency of Jacoby’s attendance at the OSS
meetings was not described with precision at trial. Compare N.T., Oct. 6, 2014, at 1212
(indicating that Jacoby’s attendance was irregular), with id. at 1297 (characterizing the
attendance as “somewhat regular.”). Nonetheless, the point is that the crime aligned
with the circumstances discussed at the OSS meeting, such as the fact that Monica
Schmeyer secreted her money in white envelopes and the fact that she was alone on
the date of the murder due to her daughter’s absence. The remainder of the evidence
convincingly established that Jacoby was the perpetrator of the crime. Thus, explicit
testimony proving that Jacoby attended the meeting where these matters were
discussed was not necessary. The circumstantial evidence proved both the crime and
the identity of the perpetrator.
[J-58-2016] - 28
have committed the crime, as such biological evidence was found under Monica
Schmeyer’s fingernails.
Viewed objectively, this evidence demonstrates overwhelmingly that Jacoby was
the murderer, even without considering the evidence found via the search warrant
executed on Jacoby’s residence. In dissent, Chief Justice Saylor maintains that
introduction of the Kel-Tech second-generation barrel could not have been harmless,
largely because, in closing arguments, the Commonwealth urged the jury to consider
that evidence. See Dissenting Opinion at 5-6 (citing N.T. 10/7/2014 at 1535 (“The
ballistics tell us everything.”); id. at 1564 (“Gun, DNA, guilty.”)). However, the barrel
found in Jacoby’s home was not the entirety of the ballistics evidence, and not the only
evidence relied upon by the Commonwealth. The ballistics evidence included the much
more inculpatory material that was found at Jacoby’s parents’ house, which police
actually matched with the evidence found at the murder scene. Hence, there was
ample, indeed overwhelming, ballistics evidence even without the barrel in question.
Moreover, although the Commonwealth’s arguments fairly can shed light on the
importance of certain aspects of its evidentiary case, those arguments do not
automatically shield errors from being deemed harmless, and do not do so here. As the
preceding summary of the inculpatory evidence demonstrates, the Kel-Tech barrel
played, at best, only a minimal part in the Commonwealth’s ballistics evidence and its
overall evidentiary presentation, and its admission was overwhelmed by the substantial
remainder of inculpatory evidence. Thus, we hold that the incorrectly admitted evidence
did not contribute to the verdict in any meaningful way. The error, simply put, was
harmless. Jacoby is not entitled to relief.
VI. Search Warrant Executed on Jacoby’s Parents’ Residence
[J-58-2016] - 29
Jacoby next challenges the July 7, 2011 search warrant that was executed on his
parents’ home. Specifically, Jacoby contends that the affidavit lacked sufficient
probable cause to justify issuance of the warrant. In his view, the affidavit lacked
specific facts that would lead one to conclude that evidence of the homicide might be
found in his parents’ home, and, to the extent that such information was in the affidavit,
it was stale. Brief for Jacoby at 32-33. The Commonwealth has two responses. First,
as a threshold matter, the Commonwealth disputes the trial court’s conclusion that
Jacoby had standing to contest the search of his parents’ home. Second, the
Commonwealth claims that the affidavit contained adequate probable cause to support
the issuance of the warrant, and the facts offered in support of probable cause were not
stale. Brief for the Commonwealth at 31, 33-34.
The affidavit offered in support of the warrant to search Jacoby’s parents’ home
contained all of the same information that was averred in the affidavit to search
Jacoby’s house, but with the following averments, as summarized by the trial court:
During the search of [Jacoby’s] residence, a small caliber bullet and barrel
of a handgun had been found; and
[Jacoby’s] fiancée, who lived with [Jacoby] at his residence, had seen
handguns in their home, including a small gun fitting the description of the
weapon used to murder the Victim, and had also seen [Jacoby] give guns
to his father and shoot guns at the range on his father’s farmette on 2440
Meeting House Road.
Trial Court Opinion, 9/21/2015, at 6; Search Warrant S57, Affidavit of Probable Cause,
7/6/2011, at 8.
Before we can assess whether these additional statements suffice to establish
probable cause to search Jacoby’s parents’ residence, we first must consider whether
Jacoby has standing to challenge the search. Standing is the authority “to assert a
constitutional violation and thus seek to exclude or suppress the government’s evidence
[J-58-2016] - 30
pursuant to the exclusionary rules under the Fourth Amendment [to] the United States
Constitution or Article 1, Section 8 of the Pennsylvania Constitution.” Commonwealth v.
Hawkins, 718 A.2d 265, 266 (Pa. 1998) (citation omitted). In Pennsylvania, as a
constitutional mandate, individuals that are charged with possessory offenses generally
enjoy automatic standing to challenge the constitutionality of searches that yield
evidence that the Commonwealth intends to use against that person at trial. See
Commonwealth v. Sell, 470 A.2d 457, 469 (Pa. 1983). However, that mandate does not
extend to any and all possessory offenses. Indeed, there are limits to automatic
standing.
Generally, a defendant will have automatic standing to challenge a search or
seizure if he or she can demonstrate either: “(1) his presence on the premises at the
time of the search and seizure; (2) a possessory interest in the evidence
[unconstitutionally] seized; (3) that the offense charged include[s] as an essential
element of the prosecution’s case, the element of possession at the time of the
contested search and seizure; or (4) a propriety or possessory interest in the searched
premises.” Commonwealth v. Peterkin, 513 A.2d 373, 378 (Pa. 1986) (citation omitted;
brackets in original).
In this case, Jacoby maintained that he had automatic standing under Article I,
Section 8, of the Pennsylvania Constitution, because he had been charged with at least
one possessory offense. The Commonwealth responded that this Court’s decision in
Peterkin—discussed immediately below—limits the application of the automatic
standing doctrine when the basis for standing is a possessory offense. The trial court
determined that Jacoby had standing because he had been charged with persons not to
possess a firearm in connection with the .50 caliber Desert Eagle handgun that was
found in his parents’ home. The trial court apparently believed that the existence of the
[J-58-2016] - 31
possessory charge sufficed to establish standing, without any further consideration of
the timing and circumstances of that offense. Peterkin instructs otherwise.
In Peterkin, following convictions for first-degree murder, robbery, and
possession of an instrument of crime (“PIC”), Peterkin challenged the search of a
friend’s home, where the police found the murder weapon that that also formed the
basis of the PIC charge. Among other claims, Peterkin alleged that he had automatic
standing to challenge the search of his friend’s home. Id. at 377. This Court specifically
rejected the notion that the PIC charge, in and of itself, conferred automatic standing
upon Peterkin. We explained that the Commonwealth’s “case against [Peterkin] on that
charge was not dependent upon his possession of the instrument of the crime at the
time of the contested search and seizure.” Id. at 378. Rather, the PIC “charge
emanated from [Peterkin’s] criminal employment of the [weapon] in the commission of
the murders and robbery.” Id.
In the case sub judice, it is undisputed that Jacoby was not present at the time of
the search of his parents’ home, that he lacked a possessory interest in his parents’
home, and that he lacked a possessory interest in the items seized. Furthermore,
although the Commonwealth initially charged Jacoby with persons not to possess a
firearm, the trial court erred in relying upon this charge to award automatic standing.
According to the criminal information, the Commonwealth alleged “that on or about
March 31, 2010,” Jacoby “possessed . . . a .50 caliber pistol” at a time when Jacoby had
previously been convicted of a robbery, a felony for purposes of a persons not to
posses a firearm charge. Criminal Information, 10/9/2012, at 1. The possessory
offense, in and of itself, however, is not dispositive. Peterkin requires us to focus upon
whether the defendant is charged with possessing a certain item or contraband “at the
time of the contested search and seizure.” Peterkin, 513 A.2d at 378. Here, the
[J-58-2016] - 32
“contested search and seizure” is the July 7, 2011 search of Jacoby’s parents’ home,
whereas the Commonwealth alleged that the crime of persons not to possess occurred
when the murder took place, on March 31, 2010. Criminal Information, 10/9/2012, at 1.
Thus, as in Peterkin, because the Commonwealth did not charge Jacoby with a
possessory offense arising from the time of the contested search, the possessory
offense itself does not confer automatic standing upon Jacoby. Consequently, Jacoby
lacked standing to challenge the search warrant and subsequent search of his parents’
home.10
VII. Search Warrant for DNA Sample
In his next argument, Jacoby challenges the search warrant issued to collect a
DNA sample from him. Specifically, Jacoby maintains that the warrant was not
supported by probable cause, because the informant used, in part, as the basis for
probable cause was anonymous. Jacoby also argues that, even though the informant
indicated that Jacoby had a cut on his hand on the day of the murder, the informant did
not specify where the cut was located on his hand or the seriousness of the cut.
Apparently, Jacoby believes that this lack of specificity undercuts the existence of
probable cause. The Commonwealth argues that Jacoby’s argument zeroes in on only
10
As a side note, even if Jacoby did have automatic standing, he nonetheless likely
would be unable to satisfy another threshold requirement for suppression, that he
demonstrate an expectation of privacy in the area that was searched. Standing confers
only the authority to file the motion and assert a constitutional violation. See generally
Commonwealth v. Enimpah, 106 A.3d 695, at 698-99 (Pa. 2014). But, it does not
negate the need to demonstrate a reasonable expectation of privacy in the area that
was searched. See New York v. Class, 475 U.S. 106, 112 (1986) (explaining that a
“State’s intrusion into a particular area, whether in an automobile or elsewhere, cannot
result in a Fourth Amendment violation unless the area is one in which there is a
constitutionally protected reasonable expectation of privacy”) (internal quotation marks
omitted). Here, Jacoby would have had to prove that he had an expectation of privacy
in someone else’s house.
[J-58-2016] - 33
one line of the affidavit of probable cause, and ignores the remainder of the information
contained therein. In the Commonwealth’s view, “[l]ooking at the information contained
in the affidavit as a whole in a common sense, non-technical manner, the affidavit
contains sufficient information to establish probable cause.” Brief for the
Commonwealth at 35.
The affidavit for the DNA warrant details the evidence that the police had
gathered and asserted in the search warrant application for Jacoby’s residence.
Particularly, the affidavit notes the description of the van and the witnesses who saw a
man matching Jacoby’s general features walking to and from the direction of Trone
Road on the date and at the time of the murder. Search Warrant S65, Affidavit of
Probable Cause, 9/20/2012, at 2. In addition, the affidavit contains information related
to the evidence found through the execution of the warrants on Jacoby’s residence and
on Jacoby’s parents’ residence, including the weapon and ammunition evidence. Id. at
3. The affidavit also notes that ballistic testing confirmed that “all of the .32 caliber
spent shell casings recovered at [Jacoby’s] parents’ property were fired from the same
gun that fired the .32 caliber spent shell casing found at the crime scene.” Id. at 4.
Finally, the affidavit indicates that Monica Schmeyer had multiple contusions on her
body that were indicative of an assault, and that fingernail scrapings from both of her
hands, which may be suitable for locating and testing a DNA sample from her attacker,
had been preserved during the autopsy. Id. at 4-5.
The totality of the circumstances described within the four corners of the affidavit
established probable cause for the issuance of the warrant. The affidavit described the
evidence gathered by law enforcement throughout the investigation, including two
executed search warrants, which convincingly raised the probability that Jacoby was the
perpetrator of the murder. This, coupled with the description of the nature and
[J-58-2016] - 34
character of the injuries sustained by Monica Schmeyer during the assault, created the
probability that Jacoby’s DNA would be found on the fingernail scrapings preserved
during the autopsy. It is immaterial to our analysis whether anyone observed a cut on
Jacoby’s hand. Probable cause clearly existed regardless of that information. The trial
court correctly denied Jacoby’s suppression motion pertaining to the DNA warrant.
VIII. Frye Hearing on Y-STR DNA Evidence
Next, Jacoby asserts that the trial court erred in denying his request for a Frye
hearing on the reliability of the methodology used in the Y-STR DNA testing. Brief for
Jacoby at 38-47. Appellate courts review evidentiary decisions for an abuse of
discretion. Commonwealth v. Walker, 92 A.3d 766, 772 (Pa. 2014) (citations omitted).
“An abuse of discretion is not merely an error of judgment, but if in reaching a
conclusion the law is overridden or misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the
evidence or the record, discretion is abused.” Id. at 772-73 (internal quotation marks
and citations omitted).
In general, expert testimony is permitted in all trials “when it involves
explanations and inferences not within the range of ordinary training[,] knowledge,
intelligence and experience.” Id. at 788. Expert testimony is governed generally by
Rule 702 of the Pennsylvania Rules of Evidence.
Rule 702. Testimony by Expert Witnesses.
A witness who is qualified as an expert by knowledge, skill, experience,
training or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge is beyond that possessed by the average
layperson;
(b) the expert’s scientific, technical, or otherwise specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; and
[J-58-2016] - 35
(c) the expert’s methodology is generally accepted in the
relevant field.
Pa.R.E. 702. The Frye standard, first adopted by this Court in Commonwealth v. Topa,
369 A.2d 1277 (Pa. 1977), is used to determine the admissibility of novel scientific
evidence, and is incorporated into Rule 702. Grady v. Frito-Lay Inc., 839 A.2d 1038,
1043 (Pa. 2003). Frye permits novel scientific evidence to be admitted at trial “if the
methodology that underlies the evidence has general acceptance in the relevant
scientific community.” Walker, 92 A.3d at 789 (citation omitted). Once it is established
that the scientific evidence in question is novel, “the proponent must show that the
methodology is generally accepted by scientists in the relevant field, but need not prove
the conclusions are generally accepted.” Id. at 790 (citation omitted). The burden is on
the proponent of the evidence to demonstrate its admissibility. Id. A Frye hearing is not
required in every instance that a party wants to introduce scientific evidence. Rather, a
hearing is warranted only when the trial court “has articulable grounds to believe that an
expert witness has not applied accepted scientific methodology in a conventional
fashion in reaching his or her conclusions.” Id. (citation omitted).
As noted above, the science at issue in this case is Y-STR DNA. Pennsylvania
courts have not had an opportunity to comment upon the admissibility of Y-STR DNA
evidence. We begin with a description of Y-STR DNA, upon which the parties appear to
agree. As Jacoby points out, in general, “[t]here are basically two types of DNA testing:
RFLP (restriction fragment length polymorphisms) and PCR (polymerase chain
reaction).”11 Brief for Jacoby at 38. In PCR testing, a technician takes DNA primers
and consistently copies these two pieces of DNA over a period of time to the point that
11
Jacoby acknowledges that this Court has upheld the RFLP method as generally
accepted in the scientific community. See generally Commonwealth v. Blasioli, 713
A.2d 1117, 1126-27 (Pa. 1998).
[J-58-2016] - 36
“millions or billions of DNA molecules” are created. Id. at 39. STR stands for “short
tandem repeats,” which basically is a short DNA sequence that repeats itself. 12 Id.
“The number of repeats in STR markers can be highly variable among individuals,
which make them particularly desirable for identification determinations.” People v.
Zapata, 8 N.E. 3d 1188, 1192 (Ill. App. Ct. 2014) (citation omitted). Current STR
analyses “focus[] on the small noncoding regions of the DNA molecule.” Id. (citation
omitted). “The number of repeats of a specific STR sequence present at a given locus,
combined over a designated number of loci, creates a unique DNA ‘profile’ of an
individual.” Id. (citation omitted).
Y-STR DNA focuses upon the Y chromosome, which is “found only in males and
is one of the smallest human chromosomes.” Brief for Jacoby at 40 (citation omitted).
When conducting a Y-STR DNA analysis, the scientist is looking at how common this
particular locus or haplotype is in the database of Y chromosomes. Id.
In his pretrial motion, Jacoby requested a Frye hearing for two general reasons.
First, Jacoby maintained that “Y-STR is notably weaker [than other types of DNA
testing] because instead of making a ‘match,’ the result can merely indicate that Jacoby
and all his male relatives cannot be ruled out.” Jacoby’s Omnibus Pretrial Motion,
6/24/2013, at ¶55; see id. at ¶59 (stating, “Y-STR DNA cannot uniquely identify an
individual like RFLP DNA, and should be reserved for cases where STR testing has
failed”). Second, Jacoby claimed that the Y-STR DNA database has problems like “size
limitations, a limited cross-section of samples and a limited representation of rare
12
As this Court noted in Blasioli, “[t]here are four kinds of nucleotide bases in DNA:
adenine (A), guanine (G), cytosine (C), and thymine (T). Due to their chemical
composition, these can fit together only as follows: adenine will only pair with thymine,
and cytosine will pair only with guanine.” Blasioli, 713 A.2d at 1120 n.5 (citation
omitted).
[J-58-2016] - 37
haplotypes.” Id. at ¶60. Presently, Jacoby claims that “unlike autosomal DNA, Y-STR
DNA has limited discriminatory power.” Brief for Jacoby at 42. Jacoby also argues that
“[t]here are several limitations to the current databases available for Y-STR DNA
comparison.” Id. at 45. Although Jacoby asserts that NMS Labs uses the “counting
method,”13 he does not argue that the counting method is novel science, nor does he
challenge the statistical conclusions stemming from the use of the counting method.
See id. at 40-41.
As noted, Jacoby has raised a number of arguments in support of his request for
a Frye hearing. However, at the trial court’s hearing on the motion, it is clear that
Jacoby was unable to satisfy the threshold Frye requirement that the methodology
being challenged is novel. To appreciate fully the deficiency in this aspect of Jacoby’s
argument, a review of the relevant portions of the transcript from that hearing is
necessary, and follows:
[ADA]: . . . the Commonwealth would assert that there
is not the need for a Frye hearing in this matter
because this is not novel science.
* * *
THE COURT: But wait a minute, we’re talking about whether
from a perspective of -- is it novel science, or is
it just a different application of established
science? Is that not really what this is about?
[DEFENSE COUNSEL]: It is, yes. However, when you’re looking at
how you analyze Y-STR, its application is
13
Jacoby describes the counting method as being comprised of four steps. First, a
“profile of a Y[-]STR haplotype generated from an evidence sample is searched against
a reference database(s) of unrelated individuals[.]” Brief for Jacoby at 40. Next, “[t]he
number of times the Y[-]STR haplotype is observed in a database is counted[.]” Id. The
third step is where “[t]hat count is divided by the number of profiles in the reference
database(s)[.]” Id. Finally, “[a] confidence interval is placed on the proportion of
count/total profiles in a database(s).” Id. at 41.
[J-58-2016] - 38
relevant, because you can’t just take the data,
you have to analyze the data. So when you’re
analyzing the data and using it in the capacity
of forensic science, and using it in a criminal
case, specifically a homicide, that’s why we
consider the application, the analysis to be
novel.
THE COURT: And I don’t get that. Why is that?
[DEFENSE COUNSEL]: Because I don’t think you can look at it as just
a bright line test, considering how we use the
analysis of it. You have to take the DNA, and
once you gather the DNA, then you have to put
it and analyze it against everything else.
THE COURT: Is there anything novel about any of that so
far?
[DEFENSE COUNSEL]: Novel? Not until you get to the second part,
no. The analysis, the gathering, that is not
novel science.
THE COURT: What is novel then?
[DEFENSE COUNSEL]: Then when you get to the databases and the
analysis portion of it. With regular STR, you
can put it in the database and it comes back
and says that the DNA that we found belongs
to Your Honor, and the chance of it being
anyone else would be more than the people on
the planet.
When you’re looking at Y-STR, it doesn’t do
that, and I understand that that doesn’t make it
novel, but you have to get the database. The
database for STR is ginormous, more than the
people on the planet. For Y-STR, we’re not at
that point yet, and that’s why I say its
application is novel in this area.
THE COURT: Is there anything novel about how the
database is gathered or how the data making
up that base is gathered?
[DEFENSE COUNSEL]: It is to some extent because we’re not in the
same place. Like a regular database for STR, I
can take someone’s DNA and I can put it in the
[J-58-2016] - 39
national database, and I know that that’s out
there and it’s used. You can’t do that with Y-
STR. It has to be kept separate from everyone
else. You can’t mix the two together because
they’re different, so we’re starting at something
new.
THE COURT: How is that new? How is that new? That
sounds like they are gathering -- the scientific
methods used to gather the data to form the
basis of it is hindsight. That’s my
understanding. I’m not a scientist. I could be
wrong about that.
What I hear you saying is -- I don’t know what I
hear you saying, to be frank with you. I mean
what’s novel about any of this?
[DEFENSE COUNSEL]: My argument is, is that if it wasn’t novel, if it
wasn’t new, then we would have just been able
to use the same databases that have been
around for all these years that work for the
STR, the databases that have been here, that
have been used, but we didn’t, because we
can’t, so we had to create new databases, and
these databases are limited. They’re limited by
size.
THE COURT: Is there anything novel about the manner in
which the database is created?
[DEFENSE COUNSEL]: They are in the way they are utilized. They are
--
THE COURT: No, created.
[DEFENSE COUNSEL]: They’re created -- yes. I mean they’re created
for Y-STR, so they’re novel in the extent of how
they can be created. I mean it’s a different
methodology in the way that you are actually
analyzing the data. The databases themselves
are not the same as the STR databases.
THE COURT: I’m just -- is there anything scientifically novel
about the manner in which the database is put
together, is created? What’s scientifically
novel about that? Are there any particularly
[J-58-2016] - 40
new scientific procedures that are subject to
any kind of dispute or that are new?
[DEFENSE COUNSEL]: The technique is the same, and Your Honor, I
understand what the argument is. The
problem is that you’re taking something that is
being now used that was never used. It’s the
same as mitochondrial DNA. It’s used in cases
where I find bones lying in the field
somewhere, and I want to find out who this
person is, or I want to find my ancestry and go
back. It has a purpose.
Like polygraphs. Polygraphs are great.
Investigators have been using them for years,
but we don’t bring them into the Court setting
for a reason. The same reason why you have
the Y-STR. It’s a good tool, it’s going to be
very helpful in the scientific community, but it
shouldn’t be brought into the courtroom.
THE COURT: But then you’re arguing -- you’re not arguing
novel, the novel nature, you’re arguing the
persuasiveness of the evidence generated by
that process. Doesn’t that go to weight?
[DEFENSE COUNSEL]: There is a ton of issues to be argued to go to
weight.
* * *
[DEFENSE COUNSEL]: Well, arguing Y-STR, Your Honor, with all due
respect, York County has been the only place
in Pennsylvania that I’ve been able to come
across that uses it. There hasn’t been any
place else in Pennsylvania that --
THE COURT: That doesn’t make it unique. That may make it
--
[DEFENSE COUNSEL]: New.
THE COURT: But it doesn’t make it novel. If the manner in
which the information that goes into forming
the database, is based upon or is gathered by
established non [sic] and novel scientific
means, how then can the database itself be
deemed to be novel?
[J-58-2016] - 41
[DEFENSE COUNSEL]: Because of the way that it’s used.
THE COURT: How is the use of it -- how is the use of it
scientifically new?
[DEFENSE COUNSEL]: Because it’s not there yet. The databases
aren’t large enough yet --
THE COURT: Ma’am, I apologize, the application of this
evidence may be novel, but it’s not scientifically
novel. It may be used in a new non-scientific
way. Do you not agree?
[DEFENSE COUNSEL]: I agree, and I guess what I am asking the
Court to understand is that just because
something may be scientifically reliable in a
usage does not mean it can be scientifically
reliable in all usages, and what we’re doing is
we’re taking something that’s out there and
trying to adapt it to forensic usage, and it
shouldn’t be.
And I understand that Your Honor looks at it as
more of a weight issue, and I agree that there
are many weight issues that come with Y-STR.
I’m asking the Court to consider --
* * *
THE COURT: And what do [the scientific journals] say?
[DEFENSE COUNSEL]: That there [are] limitations on the databases,
that there’s limited discriminatory power, that
they haven’t addressed all the geographic
concerns with the databases at this point.
Notes of Testimony, 1/2/2014, at 40-48.
Questions that raise scientifically complex questions are no easy task for courts.
Nonetheless, when considering those questions, we remain bound by our standard of
review. Thus, Jacoby is entitled to relief only if he can demonstrate to this Court that
the trial court’s decision was an abuse of discretion; that is, inter alia, the court’s
[J-58-2016] - 42
determination was manifestly unreasonable. Under the limited circumstances of this
case, we conclude that Jacoby did not make such a showing.
As is evident from the arguments that Jacoby advanced at the hearing, i.e., his
opportunity to demonstrate the necessity for a Frye hearing, Jacoby could not overcome
the trial court’s conclusion that his argument was predicated upon the weight that
should be assigned to the Y-STR DNA evidence, and not upon the novelty of the
database process itself.14 Repeatedly, Jacoby was forced by the trial court’s
questioning to concede that the Y-STR databases were not created in a novel fashion
that would differentiate the scientific methods of creating these databases from others.
14
The learned dissent posits that we effectively are finding that Jacoby has waived
all of the arguments that he outlined in his pre-trial motion, but that were not raised at
the hearing. See Dissenting Opinoin at 5, n.4. We make no such finding. As noted,
our task simply is to determine whether the trial court abused its discretion. The court
provided Jacoby with a forum to demonstrate that a Frye hearing would be warranted in
this case. Jacoby’s counsel argued the case as she saw fit. The trial court did not
restrain Jacoby’s opportunity to present other arguments. The trial court had threshold
concerns that Jacoby was attacking only the weight that should be attributed to the DNA
results, and not the novelty of the methodologies utilized to reach those results. Given
the chance overcome those concerns, Jacoby could not. We merely evaluate the trial
court’s exercise of discretion based upon the record before this Court.
The arguments highlighted by the dissent pertain to the weight that should be
attributed to the evidence, and not the admissibility of that evidence. The dissent notes
that Jacoby challenges “the reliability of the statistical conclusions derived from the Y-
STR DNA testing,” argues that the “database is too small,” and maintains that “local
databases should be employed to account for profile frequency differences.” See
Dissenting Opinion at 6 (citing Defendant’s Ominbus Pretrial Motions at ¶¶60-61).
Finally, the dissent points out that Jacoby highlighted differences between Y-STR DNA
testing and autosomal DNA testing. Once more, all of these arguments are arguments
that can be made to a jury to demonstrate why Y-STR DNA results should not carry the
same weight as other types of DNA testing. But they are not challenges to the novelty
of the methodology of Y-STR DNA such that a Frye hearing would be justified, much
less required as a matter of law. They certainly are not so distinguishable from the
weight discussion between Jacoby’s counsel and the trial court at the hearing that the
trial court’s failure to grant a full Frye hearing cleared the high bar required to manifest
an abuse of discretion.
[J-58-2016] - 43
Indeed, Jacoby’s attorney conceded that the technique for creating the database was
the same as in other DNA databases. Jacoby’s arguments were premised substantially
upon the fact that Y-STR databases have not yet grown large enough to secure a more
reliable result, that they do not account for geographical differences, and that, because
of their size and limitations, the results are not sufficiently discriminatory to constitute
reliable evidence. These arguments are directed at the weight that should be assigned
to that evidence at trial, and not at the novelty of the creation of the databases. They
are arguments for a jury.15
Jacoby did not satisfy his burden of demonstrating that the aspect of the process
that he focused upon was novel such that we could find an abuse of discretion by the
trial court. Consequently, he is not entitled to relief.16
IX. Sufficiency of Penalty Phase Evidence
Finally, we consider Jacoby’s claim that the evidence was insufficient to support
the imposition of a death sentence. As a statutory matter, this Court is required to affirm
a death sentence unless we conclude either that the evidence was insufficient to
15
Indeed, Jacoby did just that at trial. The certified record reflects that defense
counsel cross-examined Jillian Fesolavich, a forensic biologist at NMS Labs, about the
weaknesses of the Y-STR DNA evidence in this case. Notes of Testimony, 9/29/2014,
at 417, 422-23, and 433-34. Jacoby also called his own expert, Katherine Cross, who
formerly worked for NMS Labs and “did the original extractions and testing of . . . the
fingernail samples, and ran the autosomal testing” in this case. N.T., 10/3/2014, at
1104. Ms. Cross elaborated upon the weakness of the application of Y-STR DNA
testing in this case. See generally id. at 1106-15.
16
There may be challenges to other aspects of the Y-STR DNA methodologies.
Jacoby identified some of those issues in his original pre-trial motion as well as in his
brief to this Court. We do not hold that a Frye hearing will never be required to assess
an aspect of the Y-STR DNA methodology, nor do we foreclose the possibility of relief in
other cases where a defendant challenges the admissibility of Y-STR DNA evidence.
We hold only that Jacoby’s proffer at the hearing was insufficient to demonstrate
novelty, and that the trial court did not abuse its discretion in this instance.
[J-58-2016] - 44
support at least one aggravating factor or that the jury’s determination was “the product
of passion, prejudice, or any other arbitrary factor.” 42 Pa.C.S. § 9711(h)(3)(i);
Commonwealth v. Murphy, 134 A.3d 1034, 1042 (Pa. 2016). The only aggravating
factor that was submitted to the jury by the Commonwealth was that “[t]he defendant
committed a killing while in the perpetration of a felony.” 42 Pa.C.S. § 9711(d)(6). The
jury found this factor present beyond a reasonable doubt. See Penalty Phase Verdict
Slip, 10/9/2014, at 1-2.
Presently, Jacoby acknowledges that “[t]his [C]ourt cannot determine whether the
jury gave undue weight to the aggravating factor, for that is not reviewable.” Brief for
Jacoby at 60. Instead, Jacoby reasserts his claim that the felonies that could have
supported the aggravating factor, burglary and robbery, were not supported by sufficient
evidence. However, as we have explained above, both convictions were supported by
proof beyond a reasonable doubt. Additionally, we have reviewed the certified record,
and we conclude that the death sentence was not “the product of passion, prejudice, or
any other arbitrary factor,” and Jacoby does not forward any substantive argument to
the contrary. 42 Pa.C.S. § 9711(h)(3)(i). Therefore, we find no basis to vacate the
penalty on sufficiency grounds.
X. Conclusion and Mandate
Based upon the foregoing, Jacoby is not entitled to relief. The judgment of
sentence is affirmed. The Prothonotary is directed to transmit a copy of the record and
this opinion to the Governor pursuant to 42 Pa.C.S. § 9711(i).
Jurisdiction relinquished.
Justices Todd and Dougherty join the opinion in full.
[J-58-2016] - 45
Justice Mundy joins Parts I-IV and VI-X of the opinion and files a concurring
opinion in which Justice Baer joins.
Chief Justice Saylor joins Parts I-IV, VI, VII, and IX of the opinion and files a
dissenting opinion.
Justice Donohue joins Parts I-VII and IX of the opinion and files a concurring and
dissenting opinion.
[J-58-2016] - 46
| {
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63 F.3d 1111
U.S.v.Dressel*
NO. 94-2746
United States Court of Appeals,Eleventh Circuit.
July 31, 1995
1
Appeal From: M.D.Fla., No. 93-00178-CR-T-25A
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
| {
"pile_set_name": "FreeLaw"
} |
741 F.2d 981
The LIBERTARIAN PARTY OF INDIANA, Individually and on Behalfof its Members, Affiliates, and Sympathizers, and JanetLawson and Sherry Lynn Evans, Individually and on Behalf ofAll Other Persons Similarly Situated, Plaintiffs-Appellants,v.Michael M. PACKARD, in His Official Capacity as IndianaCommissioner of Motor Vehicles, the Indiana Bureau of MotorVehicles, Julian L. Ridlen in His Official Capacity asTreasurer of the State of Indiana, Otis E. Cox in HisOfficial Capacity as Auditor of the State of Indiana, theIndiana Democrat State Central Committee, and the IndianaRepublican State Central Committee, Defendants-Appellees.
No. 83-3023.
United States Court of Appeals,Seventh Circuit.
Argued April 9, 1984.Decided Aug. 15, 1984.
Ralph Ogden, Denver, Colo., for plaintiffs-appellants.
Daniel F. Evans, Jr., Bayh, Tabbert & Capehart, Gregory F. Hahn, Dillon, Hardamon & Cohen, Indianapolis, Ind., for defendants-appellees.
Before ESCHBACH and FLAUM, Circuit Judges, and JAMESON, Senior District Judge.*
FLAUM, Circuit Judge.
1
This appeal involves a constitutional challenge to a state statutory scheme under which the State of Indiana raises revenue through the sale of personalized license plates and distributes a portion of that revenue to qualifying political parties. The plaintiffs claim that the Indiana scheme violates their rights under the first and fourteenth amendments, and they sought a preliminary injunction to restrain its implementation. The district court denied the motion for a preliminary injunction and the plaintiffs appealed. We affirm.
I. BACKGROUND
2
In 1977, the Indiana General Assembly enacted the Personalized License Plate Act (codified at Ind.Code Secs. 9-7-5.5-1 to 9-7-5.5-11 (1982)). This law authorizes the registered owner or lessee of a motor vehicle to apply to the Bureau of Motor Vehicles for a personalized license plate. A personalized license plate contains a combination of letters or numerals chosen by the owner or lessee of the vehicle rather than a state-imposed letter-numeral combination. In addition to the standard excise tax and registration fees assessed for the purchase of a license plate, a purchaser of a personalized license plate must pay a special fee totaling $40.
3
Sections 7 and 8 of the Personalized License Plate Act prescribe that upon receipt of the $40 fee, $7.00 shall be deposited in the state's Motor Vehicle Highway Account, $3 shall be distributed to the local license branches, and the remaining $30 shall be deposited with the state treasurer in a special fund for distribution to qualifying political parties. According to the Act, the monies from the special fund are distributed to "any political party that cast at least five percent (5%) but less than thirty-three percent (33%) of the total vote of the state of all political parties at the last preceding general election for the office of governor ... [in an amount] equal to the fractional amount of the vote cast ...." The balance of this special fund remaining after such distribution is distributed in equal amounts to the two political parties that cast the largest and next largest number of votes at the most recent election for governor.
4
On October 13, 1983, plaintiffs Janet Lawson and Sherry Lynn Evans purchased personalized license plates from the Indiana Bureau of Motor Vehicles, paying the $30 political contribution "not willingly and voluntarily, but because it was the only means whereby [they] could obtain a personalized license plate." Appellees' Brief at 7. Shortly thereafter, the plaintiffs brought suit against the Indiana Bureau of Motor Vehicles and various Indiana officials in federal district court.1 The individual plaintiffs and the Libertarian Party, on behalf of its members, alleged that the Indiana scheme violated their rights under the first and fourteenth amendments by conditioning the availability of a government benefit on the surrender of their first amendment rights of free association and free expression. The Libertarian Party also made an equal protection argument, complaining that the Indiana scheme unconstitutionally discriminated in favor of the Democratic and Republican parties, the only two parties that ever have qualified for state funding, at the expense of minor parties such as the Libertarians.2 In their original complaint the plaintiffs sought to have sections 7 and 8 of the Personalized License Plate Act declared unconstitutional, to have the implementation of sections 7 and 8 enjoined, and to have state officials return money that had been collected pursuant to those sections. They also sought to have the case certified as a class action, with the class consisting of "all other persons who have been or will be forced to make political 'contributions' to the Democratic and Republican parties as a condition precedent to their obtaining personalized license plates." After the defendants successfully moved to join the Indiana Republican State Central Committee and the Indiana Democrat State Central Committee as indispensable parties, the plaintiffs amended their complaint to include a claim for damages against these two new defendants.
5
On November 11, 1983, the district court held a hearing on the plaintiffs' motion for a preliminary injunction to prevent the disbursement to the Democrats and Republicans of money that had been collected through the sale of personalized license plates. After hearing evidence and the parties' arguments, the district court issued a ruling denying the plaintiffs' motion for a preliminary injunction. This appeal followed.
II. THE DECISION BELOW
6
It is well established that in deciding whether to issue a preliminary injunction, a district court should consider four factors: (1) whether the plaintiff will have an adequate remedy at law or will be irreparably harmed if the injunction does not issue; (2) whether the threatened injury to the plaintiff outweighs the threatened harm the injunction may inflict on the defendant; (3) whether the plaintiff has a reasonable likelihood of success on the merits; and (4) whether the issuance of the injunction will serve the public interest. Martin v. Helstad, 699 F.2d 387, 389 (7th Cir.1983). The decision is one within the discretion of the district court and should be reversed only if the district court is found to have abused its discretion or has applied an improper legal standard. Charles v. Carey, 627 F.2d 772, 776 (7th Cir.1980).
7
The court below acknowledged the four factors that should be considered in deciding whether to issue a preliminary injunction. However, it based its ruling only on consideration of the first two factors. The court stated:
8
There was ample evidence presented at the November 11, 1983 hearing that the Republican and Democratic Parties of the State of Indiana would be greatly harmed by the granting of a preliminary injunction in this case. Activities would have to be curtailed and employees laid off. Denial of plaintiffs' motion, on the other hand, represents a maximum harm to the three plaintiffs of $90.00, their total "contribution" under Ind.Code 9-7-5.5-7. Furthermore, the individual plaintiffs admittedly bought their plates for the sole purpose of enabling themselves to bring this action, and thus invited whatever miniscule harm they may sustain while waiting for this case to be tried on the merits.
9
Plaintiffs did not offer to post an injunction bond equal to the harm to defendants that would be caused by issuance of a preliminary injunction. The balance of harms that the Court must consider therefore requires denial of plaintiffs' motion.
10
If plaintiffs succeed on the merits, and thus recover their $90.00, it is obvious that they had an adequate remedy at law, and that their harm was not irreparable. If they lose on the merits, they were not entitled to preliminary injunctive relief in the first place.
11
Memorandum of Decision, No. IP83-1656-C at 3 (S.D.Ind. Nov. 21, 1983).
12
The plaintiffs argue that the district court erred in its ruling because it failed to recognize that the plaintiffs were alleging more than monetary injury. According to the plaintiffs, the court should have considered the merits of the case, since their claim of serious and irreparable harm was based largely upon their allegation that the implementation of sections 7 and 8 of the Personalized License Plate Act constituted an ongoing first amendment violation. The defendants concede that the district court should have considered the merits of the plaintiffs' constitutional claims, but, of course, contend that the plaintiffs' claims are not meritorious.
13
We agree with the parties that the district court should have considered the merits of the plaintiffs' claims. As many courts have recognized, the merits of a dispute often are intertwined with the other three factors to be considered in the decision to issue or deny a preliminary injunction. An assessment of the merits
14
suffuses the other factors requisite to a preliminary injunction.... The accommodation and "balancing" of these considerations often, perhaps typically, depend on underlying premises as to the substantive law defining legal rights.
15
Thus in cases involving a claim by movant of interference with protected freedoms or other constitutional rights, the finding of irreparable injury ... depends on an appraisal of the validity, or at least the probable validity, of the legal premise underlying the claim of right in jeopardy of impairment.
16
Delaware & Hudson Railway v. United Transportation Union, 450 F.2d 603, 619-20 (D.C.Cir.), cert. denied, 403 U.S. 911, 91 S.Ct. 2209, 29 L.Ed.2d 689 (1971). Cf. Reindeer Brothers, Inc. v. Rain Bird Eastern Sales Corp., 627 F.2d 44, 49 (7th Cir.1980) ("likelihood of success on the merits often serves as a threshold requirement for entitlement to preliminary relief"). In this case, the plaintiffs claimed, allegedly on behalf of a large class of people, that the continued use of their money to support the Democratic and Republican parties in Indiana violated their first amendment rights. This was the sort of allegation that, if found meritorious, could support a preliminary injunction. "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976) (plurality opinion). Accord Abood v. Detroit Board of Education, 431 U.S. 209, 244, 97 S.Ct. 1782, 1804, 52 L.Ed.2d 261 (1977) (Stevens, J., concurring); Citizens for a Better Environment v. City of Park Ridge, 567 F.2d 689, 691 (7th Cir.1975). Cf. Ellis v. Brotherhood of Railway, Airline and Steamship Clerks, --- U.S. ----, 104 S.Ct. 1883, 1889-90, 80 L.Ed.2d 428 (1984) (under Railway Labor Act, "union cannot be allowed to commit dissenters' funds to improper uses even temporarily"). "The timeliness of political speech is particularly important." Elrod v. Burns, 427 U.S. at 374 n. 29, 96 S.Ct. at 2690 n. 29. Since this is an election year, any governmental subsidization of political parties in violation of the first amendment would be especially offensive, and the timeliness of relief would be critical. Thus, proper assessment of the plaintiffs' right to a preliminary injunction necessitated consideration of the merits of the plaintiffs' claims.
17
Although we have found that the district court improperly analyzed the plaintiffs' motion for a preliminary injunction, it does not follow that we must reverse its ruling. It is well settled that a reviewing court may affirm the decision of a court below if that decision is correct, even though the court below relied upon a wrong ground or gave a wrong reason. Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 157, 82 L.Ed. 224 (1937); Panter v. Marshall Field & Co., 646 F.2d 271, 281 (7th Cir.1981). In this case, since the plaintiffs' claims largely involve questions of law, and since both parties have argued the merits of these claims on this appeal, we are in a good position to determine whether the district court's refusal to grant the plaintiffs a preliminary injunction can be justified by a low probability of their success on the merits. We therefore deem it appropriate for us to consider the merits of the plaintiffs' constitutional claims.
III. THE MERITS
18
We will divide our discussion of the merits into three parts. First, we will review briefly two major Supreme Court cases dealing with public financing of political parties, American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974), and Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). Next, we will address the plaintiffs' argument that the Indiana scheme violates their first amendment rights by conditioning the availability of a government benefit, personalized license plates, on the support of political beliefs to which the plaintiffs do not subscribe. Finally, we will address the plaintiffs' other constitutional argument, that the Indiana scheme violates the first amendment and the equal protection clause because it invidiously discriminates against minor political parties.
A. American Party and Buckley
19
We deem it appropriate to review the American Party and Buckley cases because they clearly establish that government may use public funds to finance qualifying political parties, that is, some parties but not others, and because acceptance of this proposition is a predicate to a proper evaluation of the plaintiffs' claims. In American Party, the Supreme Court found constitutional a Texas statute that authorized the use of state revenue to help finance the primary elections of those political parties casting 200,000 or more votes for governor in the preceding general election. The law precluded any payment of state funds to minor political parties to help them defray the costs incurred in conducting their nominating and ballot qualification processes. The Court did not discuss the constitutionality of using public funds to finance private political parties, implicitly upholding this practice. It did reject explicitly, however, the plaintiffs' contention that the Texas law discriminated against minor parties. The Court stated:
20
We are unconvinced, at least based upon the facts presently available, that this financing law is an "exclusionary mechanism" which "tends to deny some voters the opportunity to vote for a candidate of their choosing" or that it has "a real and appreciable impact on the exercise of the franchise."
21
415 U.S. at 794, 94 S.Ct. at 1312 (citations omitted). Thus, although the funds at issue in American Party were used only to finance primary elections, the case nonetheless supports the proposition that public funds may be used to subsidize the activities of some political parties but not others.
22
This proposition was more fully explored and ultimately reaffirmed in the Buckley case. Buckley involved the constitutionality of various facets of the Federal Election Campaign Act of 1971 (FECA), as amended in 1974. Subtitle H of FECA established the Presidential Check-Off Fund, by which taxpayers could designate one or two of their tax dollars to be paid into a presidential election fund. From this fund major political parties--defined as those parties that had obtained more than twenty-five percent of the vote in the preceding presidential election--qualified for reimbursement for up to $2,000,000 for their nominating campaigns, and for subsidies of up to $20,000,000 for their candidate's presidential campaign. Minor parties--those that had received between five percent and twenty-five percent of the vote in the preceding presidential election--qualified for convention subsidies and campaign reimbursements proportional to their share of the vote in the preceding election, with the possibility of additional post-election reimbursements if they increased their share of the votes cast over the preceding election. Other political parties and/or candidates were made ineligible for pre-election subsidies and qualified for post-election reimbursements only if they secured five percent or more of the vote cast in that presidential election.
23
In upholding the constitutionality of Subtitle H, the Supreme Court stressed that public financing of political parties served important governmental interests. The court stated:
24
Subtitle H is a congressional effort, not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people. Thus, Subtitle H furthers, not abridges, pertinent First Amendment values.
25
424 U.S. at 92-93, 96 S.Ct. at 670 (footnotes omitted). The Court also emphasized that important governmental interests were served by limiting public assistance to those candidates with significant public support. Specifically, the Court referred to "Congress' interest in not funding hopeless candidacies with large sums of public money," and "the important public interest against providing artificial incentives to 'splintered parties and unrestrained factionalism.' " Id. at 96, 96 S.Ct. at 671 (citations omitted). In addition, the Court stated that denying public financing to some parties' candidates but not others was not a severe restriction on access to the electoral process. Contrasting Subtitle H with restrictions on access to the ballot, the Court stated:
26
[T]he denial of public financing to some Presidential candidates is not restrictive of voters' rights and less restrictive of candidates'. Subtitle H does not prevent any candidate from getting on the ballot or any voter from casting a vote for the candidate of his choice; the inability, if any, of minor-party candidates to wage effective campaigns will derive not from lack of public funding but from their inability to raise private contributions. Any disadvantage suffered by operation of the eligibility formulae under Subtitle H is thus limited to the claimed denial of the enhancement of opportunity to communicate with the electorate that the formulae afford eligible candidates.
27
424 U.S. at 94-95, 96 S.Ct. at 670-671 (footnote omitted). Thus, the Court concluded that Subtitle H was constitutional.
B. The first amendment claim
28
Conceding that American Party and Buckley allow the use of public funds to finance qualifying political parties,3 the plaintiffs contend that this case is distinguishable because of the manner in which the public funds are collected.4 They argue that by allowing persons to purchase personalized license plates only if they contribute to certain political parties, the Indiana law impermissibly infringes those persons' first amendment rights of free expression and association.
29
It is well established that a government may not condition the availability of a public benefit on the relinquishment of rights guaranteed by the first amendment. Elrod v. Burns, 427 U.S. 347, 357-60, 96 S.Ct. 2673, 2681-83, 49 L.Ed.2d 547 (1976); Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972). See also Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). It also is clear that "contributing to an organization for the purpose of spreading a political message is protected by the First Amendment." Abood v. Detroit Board of Education, 431 U.S. 209, 234, 97 S.Ct. 1782, 1799, 52 L.Ed.2d 261 (1977). Similarly, the right not to contribute to the spreading of a political message is protected by the first amendment. Id. Thus, in Abood, a case on which the plaintiffs rely heavily, the Court held that a local school board and the union representing the school's teachers could not require a teacher to pay to the union fees that would be used to finance the advancement of ideological and political causes, at least where the teacher objected to advancing those causes and where the causes were unrelated to the union's duties as collective-bargaining representative.
30
The plaintiffs claim that the Indiana Personalized License Plate Act violates the "unconstitutional conditions" doctrine, id. at 227, 97 S.Ct. at 1795, in the same manner as did the fee requirements that were struck down in Abood. Both are examples, they say, of government conditioning the availability of a public benefit--public employment in Abood and personalized license plates in this case--on the surrender of the first amendment right not to contribute to the advancement of a political or ideological message. However, based on the principles established in Buckley and American Party, we find that the Indiana scheme does not condition the availability of a public benefit on the surrender of first amendment rights, because the scheme does not implicate any first amendment rights.
31
The "unconstitutional conditions" doctrine is premised on the notion that what a government cannot compel, it should not be able to coerce. "[I]f the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to 'produce a result which [it] could not command directly.' " Perry v. Sindermann, 408 U.S. at 597, 92 S.Ct. at 2697 (quoting Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958)). Accordingly, "[t]he denial of a public benefit may not be used by the government for the purpose of creating an incentive enabling it to achieve what it may not command directly." Elrod v. Burns, 427 U.S. at 361, 96 S.Ct. at 2683. Thus, in Elrod, for example, the Court reasoned that since a city government could not compel a person to affiliate with a political party, it could not discharge or threaten to discharge city employees solely on the basis of their political affiliation or nonaffiliation. Similarly, the holding of Abood, that public employees cannot be required as a condition of employment to contribute to union political activities that they oppose, was premised on the more general principle that government cannot compel persons to support financially the dissemination of ideas that they oppose. Other examples of the application of the "unconstitutional conditions" doctrine to protect first amendment rights are plentiful. See, e.g., Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. at 2697 (1972) (right to criticize public officials); Keyishian v. Board of Regents, 385 U.S. 589, 605-06, 87 S.Ct. 675, 684-85, 17 L.Ed.2d 629 (1967) (right to membership in political organization); Sherbert v. Verner, 374 U.S. 398, 404-06, 83 S.Ct. 1790, 1794-95, 10 L.Ed.2d 965 (1963) (right of Seventh-day Adventist not to work on Saturday); Torasco v. Watkins, 367 U.S. 488, 495-96, 81 S.Ct. 1680, 1683-84, 6 L.Ed.2d 982 (1961) (right not to declare belief in existence of God).
32
This case differs from Abood and the other cases cited above in that, according to American Party and Buckley, here the government can command directly what it is "coercing" through the sale of personalized license plates. In American Party, the State of Texas was using state revenue to help finance qualifying political parties. This revenue had been raised at least in part through taxes, that is, payments compelled by the government. Thus, the taxpayers of Texas effectively were subsidizing the activities of political parties that they might have opposed, and yet the Court found no constitutional objection. In Buckley, although Congress was raising money through a voluntary check-off provision, the Court explicitly indicated that Congress could have chosen to finance qualifying political parties by using general revenues that had been raised through taxes. Responding to the argument that Congress constitutionally was required to permit taxpayers to designate particular candidates or parties as recipients of their money, the Court stated:
33
[T]he appropriation to the Fund in Sec. 9006 is like any other appropriation from the general revenue except that its amount is determined by reference to the aggregate of the one- and two- dollar authorization on taxpayers' income tax returns. This detail does not constitute the appropriation any less an appropriation by Congress. The fallacy of appellants' argument is therefore apparent; every appropriation made by Congress uses public money in a manner to which some taxpayers object.
34
Buckley v. Valeo, 424 U.S. at 91-92, 96 S.Ct. at 669 (footnotes omitted) (emphasis added). Thus, the Court rejected the idea that the use of taxpayers' money to finance qualifying political parties violates the first amendment.
35
As we interpret Buckley, the reason that government constitutionally may be allowed to use public funds to finance political parties is that the funds are not considered to be contributing to the spreading of a political message, but rather are advancing an important public interest, the facilitation of "public discussion and participation in the electoral process, goals vital to a self-governing people." Buckley v. Valeo, 424 U.S. at 92-93, 96 S.Ct. at 670 (footnote omitted). In contrast, the fees at issue in Abood were being used to support the particular partisan viewpoint of one private organization. This type of subsidization of political speech clearly is intolerable under the first amendment:
36
Probably no one would suggest that Congress could, without violating this Amendment, pass a law taxing workers, or any persons for that matter (even lawyers), to create a fund to be used in helping certain political parties or groups favored by the Government to elect their candidates or promote their controversial causes. Compelling a man by law to pay his money to elect candidates or advocate laws or doctrines he is against differs only in degree, if at all, from compelling him by law to speak for a candidate, a party, or a cause he is against. The very reason for the First Amendment is to make the people of this country free to think, speak, write and worship as they wish, not as the Government commands.
37
International Association of Machinists v. Street, 367 U.S. 740, 788, 81 S.Ct. 1784, 1809, 6 L.Ed.2d 1141 (1961) (Black, J., dissenting). This portion of Justice Black's opinion was cited in Buckley along with the proposition that Congress's appropriation of money to qualifying political parties "involves no compulsion upon individuals to finance the dissemination of ideas with which they disagree." Buckley v. Valeo, 424 U.S. at 91 n. 124, 96 S.Ct. at 669 n. 124. Thus, this part of the Buckley opinion further indicates that the use of the public's tax dollars to finance qualifying political parties does not implicate taxpayers' first amendment rights.
38
Given that public financing of qualifying political parties does not offend the first amendment, it should make no constitutional difference that the money for such financing is raised through what is in effect a sales tax on personalized license plates. The main difference between a general appropriation and the scheme at issue here is that here each member of the public can control the amount of money distributed to qualifying political parties through his or her decision to buy or refrain from buying a personalized license plate.5 However, this element of control in and of itself clearly is insufficient to implicate the first amendment; the check-off system at issue in Buckley also allowed taxpayers to control the number of public dollars spent to finance qualifying political parties. Moreover, the fact that some Indiana motorists might forgo owning a personalized license plate in order to avoid contributing money to political parties with which they may not agree also is of no constitutional significance. According to Buckley, their money would be going "to facilitate and enlarge public discussion and participation in the electoral process," Buckley v. Valeo, 424 U.S. at 92-93, 96 S.Ct. at 670; that these motorists may have a different view does not create in them the type of first amendment rights afforded to dissenters in a case such as Abood. "[E]very appropriation ... uses public money in a manner to which some taxpayers object." Buckley v. Valeo, 424 U.S. at 92, 96 S.Ct. at 669. Thus, we conclude as a matter of law that Indiana's Personalized License Plate Act does not condition the availability of a government benefit on the surrender of first amendment rights.
39
It follows from this conclusion that the first part of the plaintiffs' complaint, the part advancing an "unconstitutional conditions" theory, does not state a cause of action. Although it generally is inappropriate to issue a final judgment on the merits when a case is only at the preliminary injunction stage, University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981), on an appeal from a grant or denial of a preliminary injunction a federal appeals court may order a complaint dismissed if it determines as a matter of law that the complaint states no cause of action. Deckert v. Independent Shares Corp., 311 U.S. 282, 287, 61 S.Ct. 229, 232, 85 L.Ed. 189 (1940); Pratte v. NLRB, 683 F.2d 1038, 1045 (7th Cir.1982); Lee v. Ply*gem Industries, 593 F.2d 1266, 1270 (D.C.Cir.1979). Such a disposition seems particularly appropriate here, since both parties have argued the merits and urged us to consider them. Accordingly, on the remand of this case, we order the district court to dismiss that portion of the plaintiffs' amended complaint alleging that the Indiana statutory scheme violates the constitution by conditioning the availability of personalized license plates on the surrender of first amendment rights. Since this is the only allegation made by the individual plaintiffs and the only allegation made on behalf of the proposed class, the individual plaintiffs should be dismissed from the case and the motion for class certification denied.
C. The equal protection claim
40
In its amended complaint in the district court, the Libertarian Party alleged that Sections 7 and 8 of the Personalized License Plate Act effectively discriminates against nonmajor political parties in Indiana. Having stated that only the Democratic and Republican parties ever have received money raised pursuant to the Act, the complaint goes on to allege:
41
By only providing for payments to the Democrat and Republican Parties, the statute establishes a mandatory system of financial support for the two major political parties, to the total exclusion of the Libertarian Party. This enables the Democrats and Republicans to dominate Indiana politics and establishes the Democrat and Republican Parties as the officially approved political parties in the State of Indiana, thereby violating the First Amendment rights of the Libertarian Party and of its members.
42
Insofar as the Libertarian Party is complaining that the Indiana scheme is invalid on its face because it finances only parties that show significant public support, we may reject that argument as a matter of law. Indiana's interest in "not funding hopeless candidates with large sums of public money ... necessarily justifies the withholding of public assistance from candidates without significant public support." Buckley v. Valeo, 424 U.S. at 96, 96 S.Ct. at 671.
43
Buckley did leave open the possibility, however, that a scheme of public financing of political parties might have the practical effect of discriminating against nonmajor parties. After pointing out that it was deciding only the constitutionality of Subtitle H on its face, the Court stated:
44
[S]ince the public financing provisions have never been in operation, appellants are unable to offer factual proof that the scheme is discriminatory in its effect.
45
In rejecting appellants' arguments, we of course do not rule out the possibility of concluding in some future case, upon an appropriate factual demonstration, that the public financing system invidiously discriminates against nonmajor parties.
46
Buckley v. Valeo, 424 U.S. at 97 n. 131, 96 S.Ct. at 672 n. 131. Although the Court did not define "appropriate factual demonstration," it later suggested that the relevant test might be whether the public financing scheme "disadvantages nonmajor parties by operating to reduce their strength below that attained without any public financing." Id. at 99, 96 S.Ct. at 673.
47
Because the Libertarian Party has alleged that the Indiana scheme operates to exclude nonmajor parties from meaningful participation in Indiana's political process, we cannot say as a matter of law that this portion of its complaint states no cause of action. This case is only at the preliminary injunction stage, and the Libertarian Party has a right to attempt to make a factual showing, at a trial on the merits, that it is being discriminated against in violation of the Constitution.6 However, we do not find on the record before us that the Libertarian Party has made a factual showing of discrimination sufficient to support a preliminary injunction, and therefore we hold that its motion for a preliminary injunction properly was denied.
48
At the preliminary injunction hearing, the plaintiffs seemed to focus on their "unconstitutional conditions" theory, and thus they introduced only one type of evidence even arguably relevant to the equal protection claim. This evidence showed that money raised through the sale of personalized license plates constitutes a significant portion of the budgets of both the Democratic and Republican parties in Indiana. Though this showing may help support a discrimination claim, in and of itself it plainly is insufficient to establish a likelihood that the Libertarian Party would prevail on the merits of its discrimination claim.
49
The denial of the plaintiffs' motion for a preliminary injunction is affirmed, and the case is remanded for further proceedings not inconsistent with this opinion.
*
The Honorable William J. Jameson, Senior District Judge for the District of Montana, is sitting by designation
1
A third individual also filed suit along with Lawson and Evans but has since withdrawn from this litigation
2
Although the Libertarian Party has couched its argument in terms of the first amendment, rather than the fourteenth amendment's equal protection clause, its complaint clearly lends itself to both first amendment and equal protection analysis. In a case such as this, where a party complains of unequal government subsidization of first amendment activity, there is considerable interplay between first amendment and equal protection principles. See Perry Local Educators' Ass'n v. Hohlt, 652 F.2d 1286, 1296 (7th Cir.1981). See generally Emerson, The Affirmative Side of the First Amendment, 15 Ga.L.Rev. 795, 802-03 (1981) (discussing "an equal protection element in the first amendment guarantee" in the context of governmental promotion of speech). In this case, we have chosen to characterize the Libertarian Party's claim of discrimination as an equal protection argument to distinguish it from the plaintiffs' other claim, which could arise only under the first amendment as applied to the states through the fourteenth amendment
3
Of course, the criteria used to determine whether a party qualifies for public financing must pass constitutional muster. In this case that is not an issue, since a similar 5% threshold requirement based on past election returns was upheld in Buckley v. Valeo, 424 U.S. at 99-100, 103-04, 96 S.Ct. at 673, 675
4
The plaintiffs also argue that American Party and Buckley are distinguishable because in those cases certain conditions were attached to the use of public funds by political parties. In American Party, the public funds were used only to help finance primary elections, and in Buckley, accepting public funds meant agreeing to expenditure ceilings and other restrictions. However, in view of the discussion in Buckley about the strong governmental interest in public financing of political parties, we find that the lack of any restrictions on political parties' use of public funds under Indiana law does not render the Indiana statutory scheme on its face violative of the plaintiffs' first amendment rights
In addition, the plaintiffs argue that sections 7 and 8 are invalid because they provide public funding only to political parties and not to independent candidates. The Court in Buckley noted that "[s]erious questions might arise as to the constitutionality of excluding from free annual assistance candidates not affiliated with a 'political party' solely because they lack such affiliation." Buckley v. Valeo, 424 U.S. at 87 n. 118, 96 S.Ct. at 667 n. 118. The Buckley Court found that it had "no occasion to address that question in this case," id., pointing out that it was possible to construe Subtitle H as affording financial assistance to independent candidates, and that no independent candidate was challenging the law. The same is true of the case before us, and thus we also have no occasion to address the question.
5
The defendants argue that since a personalized license plate is a luxury item and not required for the lawful operation of a motor vehicle, the "unconstitutional conditions" cases are inapplicable. We recognize that motorists easily can do without personalized license plates, and that therefore any alleged coercion involved in the Indiana scheme necessarily would be slight. On the other hand, personalized license plates are public benefits, and we doubt seriously that Indiana could make them available to the public on a basis that offends the Constitution. See Elrod v. Burns, 427 U.S. at 358, 96 S.Ct. at 2682 ("[t]his Court's decisions have prohibited conditions on public benefits, in the form of jobs or otherwise, which dampen the exercise generally of First Amendment rights, however slight the inducement to the individual to forsake those rights"). Since we find that no first amendment rights are implicated by the Indiana scheme, we need not address the question of whether application of the "unconstitutional conditions" doctrine varies depending on the importance or value of the public benefit
6
This of course assumes that it wishes to do so. In their briefs and oral argument to this court, the plaintiffs have focused almost exclusively on their challenge to the Indiana law on its face. The Libertarian Party has not demonstrated any intention of developing a full factual record to support its claim of discrimination and there is some indication in the record that the parties intended the November 11 preliminary injunction hearing to function as a trial on the merits, at least with respect to the plaintiffs' claims for declaratory and injunctive relief. Nevertheless, because we are uncertain about the parties' intentions, we deem it inappropriate for us to dispose of the entire case on the merits
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762 F.2d 1005
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.IMAM ALI ABDULLAH AKBAR, PLAINTIFF-APPELLANT,v.A.R. JAGO, DEFENDANT-APPELLEE.
NO. 84-3540
United States Court of Appeals, Sixth Circuit.
4/10/85
ORDER
1
BEFORE: WELLFORD and MILBURN, Circuit Judges; and KINNEARY, District Judge.*
2
Akbar appeals pro se from the district court's judgment denying his petition for a writ of habeas corpus. This appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After an examination of the record and the briefs, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.
3
Akbar was convicted by a Cuyahoga County, Ohio jury of first-degree murder and sentenced to life imprisonment. Akbar exhausted his remedies in the state appellate and supreme courts and also filed one post-conviction relief petition. Although the state alleges that he has not exhausted his state remedies regarding his third issue, we conclude that this issue is barred by Ohio's doctrine of res judicata in post-conviction relief proceedings. Keener v. Ridenour, 594 F.2d 581, 589-90 (6th Cir. 1979), later appeal, Keener v. Taylor, 640 F.2d 839 (1981). So the case is fully exhausted.
4
Akbar's petition raises four issues: 1) the validity of the indictment, 2) an evidentiary question, 3) allegations of perjured testimony, and 4) the sufficiency of the evidence. Concerning the first issue, the murder indictment is clearly valid on its face and raises no constitutional violation. Costello v. United States, 350 U.S. 359, 363 (1956); Gerstein v. Pugh, 420 U.S. 103, 117 n.19 (1975). The evidentiary question concerns an alleged common-law marriage between Akbar and one of the prosecution's witnesses. The state court held that Akbar had not shown all of the elements necessary for a common-law marriage, and the district court concluded that this holding raised no question of fundamental fairness. Maglaya v. Buckhoe, 515 F.2d 265, 268 (6th Cir.), cert. denied, 423 U.S. 931 (1975). We agree with the conclusion of the district court.
5
The third issue alleges that one of the prosecution's witnesses committed perjury during the trial. Allegations of perjury and false evidence are not cognizable on federal habeas corpus unless the state knew of the perjury or false evidence. Burks v. Egeler, 512 F.2d 221, 229 (6th Cir.), cert. denied, 423 U.S. 937 (1975). There is no evidence that the state knew of or deliberately elicited any perjury in this case. Finally, the district court reviewed the sufficiency of the evidence under the standard in Jackson v. Virginia, 443 U.S. 307, 313 (1979), and concluded that the evidence was sufficient. We agree with the district court.
6
The judgment of the district court is affirmed under Rule 9(d)(3), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.
*
The Honorable Joseph P. Kinneary, U.S. District Judge for the Southern District of Ohio, sitting by designation
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730 N.E.2d 39 (2000)
191 Ill.2d 204
246 Ill.Dec. 359
The PEOPLE of the State of Illinois, Appellee,
v.
Tafford Lee HOLMAN, Appellant.
No. 85897.
Supreme Court of Illinois.
April 20, 2000.
Rehearing Denied May 30, 2000.
*41 Stephen E. Eberhardt, Tinley Park, Robert H. Farley, Jr., Naperville, for Appellant.
James E. Ryan, Attorney General, Springfield (John D. Bertocchi, Solicitor General, William R. Browers, Assistant Attorney General, Chicago, of counsel), for the People.
Justice MILLER delivered the opinion of the court:
The defendant, Tafford Lee Holman, brings this appeal from an order by the circuit court of Will County dismissing, without an evidentiary hearing, his second post-conviction petition. Because the defendant received the death penalty for one of the underlying offenses, the present appeal is to this court. 134 Ill.2d R. 651(a). We now affirm the judgment of the circuit court.
The defendant was convicted of murder and other offenses and was sentenced to death in 1981. On direct appeal, this court affirmed certain of the defendant's convictions but vacated his death sentence and remanded the cause for a new sentencing hearing. People v. Holman, 103 Ill.2d 133, 82 Ill.Dec. 585, 469 N.E.2d 119 (1984). The United States Supreme Court denied the defendant's petition for a writ of certiorari. Holman v. Illinois, 469 U.S. 1220, 105 S.Ct. 1204, 84 L.Ed.2d 347 (1985). On remand, the defendant was again sentenced to death, and this court affirmed the defendant's sentence on appeal. People v. Holman, 132 Ill.2d 128, 138 Ill.Dec. 155, 547 N.E.2d 124 (1989). The United States Supreme Court denied the defendant's petition for certiorari. Holman v. Illinois, 497 U.S. 1032, 110 S.Ct. 3296, 111 L.Ed.2d 804 (1990). The defendant then filed a petition for post-conviction relief in the circuit court of Will County. The circuit court dismissed the petition, and this court affirmed the order of dismissal. People v. Holman, 164 Ill.2d 356, 207 Ill.Dec. 467, 647 N.E.2d 960 (1995). The United States Supreme Court once again denied certiorari. Holman v. Illinois, 516 U.S. 976, 116 S.Ct. 478, 133 L.Ed.2d 407 (1995). The defendant later instituted habeas corpus proceedings in federal court. The district court granted the defendant relief, on grounds unrelated to those raised here, but the court of appeals reversed that judgment. Holman v. Gilmore, 126 F.3d 876 (7th Cir.1997). The United States Supreme Court denied review. Holman v. Page, 522 U.S. 1150, 118 S.Ct. 1169, 140 L.Ed.2d 179 (1998).
The defendant commenced the present proceeding on March 11, 1998. In a pro se petition, the defendant raised several interrelated grounds for relief, all of which were based on this court's decisions in People v. Brandon, 162 Ill.2d 450, 205 Ill.Dec. 421, 643 N.E.2d 712 (1994), and its progeny, including People v. Gevas, 166 Ill.2d 461, 211 Ill.Dec. 511, 655 N.E.2d 894 (1995), People v. Kinkead, 168 Ill.2d 394, 214 Ill.Dec. 145, 660 N.E.2d 852 (1995), People v. Birdsall, 172 Ill.2d 464, 219 Ill. Dec. 22, 670 N.E.2d 700 (1996), People v. Nitz, 173 Ill.2d 151, 218 Ill.Dec. 950, 670 N.E.2d 672 (1996), and People v. Britz, 174 Ill.2d 163, 220 Ill.Dec. 388, 673 N.E.2d 300 (1996). That line of authority equated the use of psychotropic drugs with a bona fide doubt of fitness to stand trial and recognized, as a matter of due process, a right to a fitness hearing in the provisions of section 104-21(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/104-21(a) (West 1992)). When Brandon was decided, and at the time of this defendant's trial and sentencing hearing, section 104-21(a) provided, "A defendant who is receiving psychotropic drugs or other medications under medical direction is entitled to a hearing on the issue of his fitness while under medication." 725 ILCS 5/104-21(a) *42 (West 1992). The statute has been amended twice since Brandon was decided (Pub. Act 89-428, § 605, eff. December 13, 1995; Pub. Act 89-689, § 90, eff. December 31, 1996); section 104-21(a) currently provides, "A defendant who is receiving psychotropic drugs shall not be presumed to be unfit to stand trial solely by virtue of the receipt of those drugs or medications." 725 ILCS 5/104-21(a) (West 1998).
The defendant alleged in the present post-conviction petition that he was receiving a psychotropic drug under medical direction during his trial and sentencing hearing and that a fitness hearing therefore should have been conducted for him. The defendant further alleged that trial counsel was ineffective for failing to seek the hearing that the Brandon line of cases held was required under the statute. The trial judge appointed counsel to represent the defendant in proceedings on the petition.
The State moved to dismiss the defendant's post-conviction petition, arguing that it was untimely, that it was barred as a successive petition, and that it was barred by principles of waiver and res judicata. Following a hearing on the State's motion, the trial judge dismissed the petition. In a written opinion, the judge expressed the view that the defendant could not make use of the rule announced in the Brandon line of cases. The trial judge noted that the defendant did not allege that his consumption of psychotropic drugs had affected his understanding of the proceedings against him. The judge commented on the need for finality in the legal system and observed that Brandon was decided after this court had affirmed the defendant's convictions and death sentence on appeal. The judge pointed out that all the prior decisions involving the defendant, from this court and from the federal court of appeals, had failed to find any violations of due process in the proceedings that resulted in the defendant's convictions and death sentence. The defendant's appeal to this court followed. 134 Ill.2d R. 651(a).
As a preliminary matter, we note that the defendant has filed a motion asking this court to stay the present appeal and to permit the parties to submit supplemental briefs addressing our recent decision in People v. Mitchell, 189 Ill.2d 312, 245 Ill. Dec. 1, 727 N.E.2d 254 (2000), which rejected the doctrine expressed in the Brandon line of authority equating the consumption of psychotropic drugs with a bona fide doubt of fitness to stand trial. We ordered the motion taken with the case, and we now deny it. We do not believe that further briefing is necessary, and we are prepared at this time to resolve the present appeal. The defendant has also submitted a separate motion requesting leave to file a short response to the State's citation of Mitchell as additional authority. Again we ordered the motion taken with the case. We now allow it, and we have considered the defendant's response in our disposition of the present appeal.
The Post-Conviction Hearing Act (725 ILCS 5/122-1 through 122-7 (West 1996)) provides a means by which a defendant may challenge his conviction or sentence for violations of federal or state constitutional rights. People v. Tenner, 175 Ill.2d 372, 377, 222 Ill.Dec. 325, 677 N.E.2d 859 (1997). An action seeking post-conviction relief is a collateral proceeding, not an appeal from the underlying judgment. People v. Evans, 186 Ill.2d 83, 89, 237 Ill.Dec. 118, 708 N.E.2d 1158 (1999). To be entitled to post-conviction relief, a defendant must establish a substantial deprivation of federal or state constitutional rights in the proceedings that resulted in the conviction or sentence being challenged. People v. Morgan, 187 Ill.2d 500, 528, 241 Ill.Dec. 552, 719 N.E.2d 681 (1999). Because of considerations of res judicata and waiver, the scope of post-conviction review is limited "to constitutional matters which have not been, and could not have been, previously adjudicated." *43 People v. Winsett, 153 Ill.2d 335, 346, 180 Ill.Dec. 109, 606 N.E.2d 1186 (1992). Thus, issues that were raised on appeal from the underlying judgment of conviction, or that could have been raised but were not, ordinarily will not be considered in a post-conviction proceeding. People v. West, 187 Ill.2d 418, 425, 241 Ill.Dec. 535, 719 N.E.2d 664 (1999). Principles of fundamental fairness, however, will support relaxation of the doctrines of waiver and res judicata when appropriate. People v. Neal, 142 Ill.2d 140, 146, 154 Ill.Dec. 587, 568 N.E.2d 808 (1990).
The Act generally limits a defendant to one post-conviction petition. People v. Flores, 153 Ill.2d 264, 273, 180 Ill. Dec. 1, 606 N.E.2d 1078 (1992); People v. Free, 122 Ill.2d 367, 375, 119 Ill.Dec. 325, 522 N.E.2d 1184 (1988). Section 122-3 of the Act expressly states, "Any claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived." 725 ILCS 5/122-3 (West 1996). Exceptions have been made to that requirement in a limited range of circumstances. When the proceedings on the initial petition are deficient in some fundamental way, this court has permitted defendants to file a further petition. See Flores, 153 Ill.2d at 273-74, 180 Ill.Dec. 1, 606 N.E.2d 1078; Free, 122 Ill.2d at 376, 119 Ill.Dec. 325, 522 N.E.2d 1184.
The present post-conviction petition, which is the defendant's second, must therefore be deemed barred unless the defendant can justify bringing a successive petition. This court has previously referred to the cause and prejudice standard as an aid in determining whether a successive post-conviction petition may proceed. Flores, 153 Ill.2d at 279, 180 Ill.Dec. 1, 606 N.E.2d 1078; see also People v. Wright, 189 Ill.2d 1, 42-43, 243 Ill.Dec. 198, 723 N.E.2d 230 (Bilandic, J., specially concurring). The United States Supreme Court applies that standard in evaluating successive habeas corpus actions. McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). Under this standard, the term "`cause' has been defined as `"some objective factor external to the defense [that] impeded counsel's efforts" to raise the claim' in an earlier proceeding. (McCleskey, 499 U.S. at 493, 111 S.Ct. at 1470, 113 L.Ed.2d at 544, quoting Murray v. Carrier (1986), 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397, 408.)" Flores, 153 Ill.2d at 279, 180 Ill.Dec. 1, 606 N.E.2d 1078. The term "prejudice" has been defined "as an error which `"so infected the entire trial that the resulting conviction violates due process."'" Flores, 153 Ill.2d at 279, 180 Ill.Dec. 1, 606 N.E.2d 1078. We do not believe that the defendant can make either showing here.
In the present petition, the defendant alleges that he was receiving psychotropic drugs under medical direction during the proceedings against him. The sole premise of the current petition is that Brandon and its progeny require that the defendant be granted relief. With the Brandon line of authority having been overruled, it is as though the doctrine expressed in those decisions never existed, and the defendant now occupies essentially the same position he did before those cases were decided. Because post-conviction relief extends only to deprivations of constitutional rights, the defendant must assert a constitutional basis for the present petition. As Mitchell confirms, the right guaranteed by section 104-21(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/104-21(a) (West 1994)) is wholly statutory, and the only constitutional ground on which the defendant may now seek relief is his contention that trial counsel was constitutionally ineffective for failing to request a fitness hearing in this case.
We do not believe that the defendant has demonstrated cause and prejudice for his failure to raise this argument at an earlier point in the history of this case. With respect to the "cause" portion of the inquiry, we are unable to discern any objective circumstance that would have prevented the defendant's lawyers from raising *44 the same issue in the defendant's initial post-conviction petition. The defendant has presented no basis for us to excuse his failure to present this issue in the earlier petition. Regarding the "prejudice" aspect of the inquiry, we cannot say that counsel's failure to request a fitness hearing constituted an error that so infected the proceedings at trial and sentencing that the defendant's convictions and death sentence must be considered violations of due process. Apart from the bare assertion that the defendant was receiving psychotropic drugs under medical direction at the time of the proceedings against him, the record before us contains no showing of the frequency or extent of the defendant's medication, and thus nothing that would cause us to question the general statutory presumption of fitness (725 ILCS 5/104-10 (West 1994) ("A defendant is presumed to be fit to stand trial or to plead, and be sentenced")).
The Brandon line of authority, which equated the consumption of psychotropic drugs with a bona fide doubt of fitness, has been overruled, and thus it no longer provides any basis for the present post-conviction petition. The defendant could have challenged, in his initial post-conviction petition, his trial and sentencing lawyers' failure to request a fitness hearing for him, yet he did not do so. As noted earlier, it is well established that claims not raised in an original or amended post-conviction petition are waived. 725 ILCS 5/122-3 (West 1996). We find no fundamental deficiency in the earlier proceeding that would warrant consideration of this late claim here. Because all the matters raised in the present post-conviction petition depend on the Brandon line of cases, and because this court's decision in Mitchell has overruled that authority, we must affirm the judgment of the circuit court, which dismissed the defendant's petition.
For the reasons stated, the judgment of the circuit court of Will County is affirmed. The clerk of this court is directed to enter an order setting Tuesday, September 19, 2000, as the date on which the sentence of death, entered in the circuit court of Will County, is to be carried out. The defendant shall be executed in the manner provided by law. 725 ILCS 5/119-5 (West 1998). The clerk of this court shall send a certified copy of the mandate in this case to the Director of Corrections, to the warden of Tamms Correctional Center, and to the warden of the institution where the defendant is now confined.
Judgment affirmed.
Justice FREEMAN, dissenting:
I disagree with the result reached by the court for the reasons stated in my dissents in People v. Mitchell, 189 Ill.2d 312, 362, 245 Ill.Dec. 1, 727 N.E.2d 254 (2000) (Freeman, J., dissenting, joined by Harrison, C.J., and McMorrow, J.), and People v. Jones, 191 Ill.2d 194, 202-03, 246 Ill.Dec. 346, 730 N.E.2d 26 (2000) (Freeman, J., dissenting, joined by Harrison, C.J., and McMorrow, J.). The present case essentially mirrors that of defendant Jones. As in that case, I would decide this appeal, along with its procedural complexities, on the basis of the law as it stood prior to the issuance of Mitchell. See Mitchell, 189 Ill.2d at 393-94, 245 Ill.Dec. 1, 727 N.E.2d at 298-299 (Freeman, J., dissenting, joined by Harrison, C.J., and McMorrow, J.).
I also wish to express my strong disagreement with the court's decision to deny defendant's request for additional briefing in order to address the changes in law brought about by Mitchell and their effect on this case. In Mitchell, this court reexamined the validity of past precedent sua sponte. Since this court issued its opinion in Mitchell, we have allowed parties to file supplemental briefs addressing the changes in the law in two cases that are pending-People v. Johnson, No. 84146 (order entered February 29, 2000), and People v. Jamison, No. 80967 (order entered March 21, 2000). Because defendant's attorneys in this case could not have known of the changes in this area of the *45 law prior to the filing of their original briefing materials, I would give defendant the same opportunity to reargue his claims that the court gave to defendants Johnson and Jamison. I, therefore, would grant defendant's motion.
Chief Justice HARRISON and Justice McMORROW join in this dissent.
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595 S.W.2d 158 (1980)
F. M. STIGLER, INC., et al., Appellants,
v.
H.N.C. REALTY COMPANY and Southwest Title Company, Appellees.
No. 19815.
Court of Civil Appeals of Texas, Dallas.
January 31, 1980.
Rehearing Denied February 26, 1980.
*159 Robert S. Addison, Hugh L. Steger, Frederick A. Addison, III, Storey, Armstrong, Steger & Martin, Dallas, for appellants.
Jim E. Cowles, R. Brent Cooper, Cowles, Sorrells, Patterson & Thompson, Dallas, for appellee, Southwest Title Co.
Eugene J. Pitman, DeLange, Hudspeth, Pitman & Katz, Houston, for appellee, H.N.C. Realty Co.
*160 Before AKIN, STOREY and HUMPHREYS, JJ.
AKIN, Justice.
This priority of liens case turns on whether plaintiffs' agent's execution of an agreement subordinating plaintiffs' lien to that of a subsequent lien of defendant, H.N.C. Realty Company, was within the agent's authority. The validity of the subordination agreement depends upon the language in a recorded power of attorney which expressly granted the agent the right to subordinate plaintiffs' lien to a subsequent lien to secure advances for "improvements and construction." Because the undisputed evidence shows that the subsequent lien was not for improvements or construction, we hold that, as a matter of law, the agent lacked authority to execute the subordination agreement, thus rendering that agreement void. We also hold that plaintiffs' failure to tender back the funds received as a down payment, after learning the facts, does not constitute ratification or estoppel. Accordingly, we reverse the judgment of the trial court and remand with instructions.
The crucial facts are undisputed. Plaintiffs, Floyd M. Stigler, Inc., and others, known as the heirs of the Lively estate, sold forty-three acres of land to defendant, Leon D. Hogg, Jr., individually and as trustee, and retained a deed of trust and a vendor's lien to secure the unpaid purchase price. Plaintiffs had entered into a contract for sale of the forty-three acres to Hogg in 1972, which contract was to close by February 15, 1973. Accordingly, plaintiffs executed their warranty deed to Hogg dated February 12, 1973, and delivered it to their agent, R. B. Russell, and Hogg executed a note payable to plaintiffs for $1,418,332.76 and a deed of trust, which contained a provision that it may be subordinated to a lien for construction and improvements on the property. Plaintiffs also executed and filed of record in Dallas County on February 23, 1973, a power of attorney authorizing Russell to subordinate their lien to a lien for improvements to the land. The warranty deed and deed of trust were not filed of record until August 15, 1973, when the sale closed and when plaintiffs received the down payment of $472,777.60. The delay was occasioned because Hogg was unable to obtain funds for the down payment.
Hogg and Russell organized Interchange Properties, Inc., on May 11, 1973, and that corporation applied for and obtained a loan of $950,000 from H.N.C. Realty Company on August 14, 1973, and secured this loan by granting H.N.C. a deed of trust on the forty-three acres in question. Simultaneously, Hogg conveyed the property to Interchange Properties, Inc., for which Hogg was trustee.
Prior to borrowing these funds, plaintiffs' agent, Russell, executed on July 31, 1973, an instruments subordinating plaintiffs' deed of trust lien to H.N.C.'s deed of trust lien. This instrument was also filed of record on August 15, 1973. The subordination agreement was predicated upon the power of attorney granted Russell by plaintiffs on February 9, 1973, and recorded in the Deed of Records of Dallas County, Texas, on February 23, 1973. This recorded power of attorney appointed R. B. Russell "as our attorney in fact to act for us, and in our name, place and stead to approve closing statements, subordination agreements on improvements and construction loans."
Interchange defaulted and H.N.C. Realty foreclosed on the property on May 7, 1975, and H.N.C. purchased the property at foreclosure. Plaintiffs then sued Hogg on their note and H.N.C. Realty to set aside the foreclosure sale, to declare the subordination invalid, and to declare that plaintiffs had superior title by virtue of their prior vendor's lien. Additionally, plaintiffs sued for recovery on their note and for judicial foreclosure of their deed of trust lien. Hogg and H.N.C. then filed a third party action over and against Southwest Title for indemnity and contribution.
Trial was to a jury. At the close of plaintiffs' case, the judge rendered an instructed verdict against defendant Hogg on his note. No appeal was taken from the *161 judgment with respect to Hogg. After completion of testimony, the trial judge submitted the case to the jury, over plaintiffs' objections, on six special issues relating to the liens. In response to these issues, the jury found that R. B. Russell was acting as agent for plaintiff from 1972 through August 1973 in connection with the sale of the land in question; that Russell had authority to execute, on plaintiffs' behalf, the instrument dated July 31, 1973, subordinating their deed of trust to that of H.N.C. Realty's deed of trust; that when the plaintiffs received the down payment on the property, they did not know of the subordination agreement executed by Russell, but that Russell, their agent, knew of its execution' that plaintiffs has no knowledge that the funds for the down payment on their property came from the proceeds of H.N.C. loan, but that their agent, Russell, knew this; and that the plaintiffs ratified the action of Russell in executing the subordination of their lien. Acting on these findings of the jury, the trial judge rendered judgment against plaintiffs in their action against H.N.C. and plaintiffs appeal.
Plaintiffs first argue that the trial judge erred by not construing the power of attorney and subordination agreement as a matter of law. This is true, plaintiffs contend' because none of the parties pleaded ambiguity, fraud or mistake. We agree. Whether a contract is ambiguous is a question of law. Brown v. Payne, 142 Tex. 102, 176 S.W.2d 306, 308 (1943); International Investors Life Insurance Co. v. Utrecht, 536 S.W.2d 397 (Tex.Civ.App.-Dallas 1976, no writ). The question of whether a contract is ambiguous is a matter that must be pleaded, and absent a pleading of ambiguity, it is error for the court to admit evidence with respect to the meaning of a writing. Pickering v. First Pyramid Life Insurance Company of America, 491 S.W.2d 184, 185 (Tex.Civ.App.-Beaumont 1973, writ ref'd n. r. e.). Furthermore, a writing is ambiguous only when the application of the rules of construction renders the writing capable of two reasonable, yet different meanings. Coker v. Travelers Insurance Co., 533 S.W.2d 400, 401-02 (Tex.Civ.App.-Dallas 1976, no writ).
We hold, however, that the language set forth in the power of attorney is not ambiguous. The crucial language in the power of attorney is as follows:
We do hereby further direct, constitute and appoint R. B. Russell as our attorney-in-fact to act for us, and in our name, place, and stead, to approve closing statements, subordination agreements on improvement and construction loans, and to distribute the cash proceeds from closing as shown on the attached exhibits. [Emphasis added.]
This language is capable of only one reasonable meaning and that is that Russell's authority to subordinate plaintiffs' lien was limited to executing a subordination agreement only for an improvement and construction loan. Consequently, it was the duty of the trial judge to determine, as a matter of law, the meaning of this unambiguous writing, and it was error to submit the issue of the extent of Russell's authority to the jury. Tower Contracting Co. v. Flores, 157 Tex. 297, 302 S.W.2d 396, 399 (Tex.1957); Maykus v. Texas Bank & Trust Co., 550 S.W.2d 396, 399 (Tex.Civ.App.-Dallas 1977, no writ); Exchange Bank & Trust Co. v. Lone Star Life Insurance Co., 546 S.W.2d 948, 953 (Tex.Civ.App.-Dallas 1977, no writ).
More specifically, when authority is conferred upon an agent by a formal, written instrument, such as a power of attorney, the authority given the agent will be strictly construed so as to excluded any authority not specifically set forth, except authority necessary to effectuate the purpose of the authority granted. Gouldy v. Metcalf, 75 Tex. 455, 12 S.W. 830, 831 (1889); Reese v. Medlock, 27 Tex. 120 (1863). Consequently, as a matter of law, we hold that Russell had no power to execute a subordination agreement unless it was to a lien securing a loan for improvements and construction on the property.
The crucial question with respect to the validity of the subordination agreement executed by Russell is whether the loan was *162 an improvement and construction loan. This is true because the validity of the subordination agreement depends upon whether it was executed by the agent within his authority. An issue on this specific question was requested by plaintiffs but refused by the trial judge. We need not remand for a new trial on this question, however, because the evidence conclusively and undisputedly established that the loan was not for construction or improvements and, that H.N.C. either knew this or through the exercise of reasonable care could have ascertained the true extent of Russell's authority prior to the time its loan to Interchange was consummated.
In this respect, the disbursement sheet of H.N.C., written and signed by H.N.C.'s representative at the closing of the loan to Interchange, expressly shows that $472,777.60 of the loan proceeds are payable to the "Lively Estate Heirs," who are the plaintiffs here. Furthermore, the deed of trust and security agreement, executed by Interchange to H.N.C., show that $263,250 of the loan proceeds were placed in escrow with a bank named by H.N.C. until the loan was repaid on or before August 1, 1976, and that an additional $100,000 was used to purchase a certificate of deposit from the First National Bank in Dallas, and endorsed in blank and placed in escrow with the Texas Commerce Bank N.A. of Houston, as additional security.
The loan commitment from H.N.C. Realty to Interchange, dated June 28, 1973, provides that the loan was for "the purpose of providing temporary financial support pending completion of development plans and consummation of permanent financing." This agreement also gave H.N.C. Realty the right of first and last refusal of a permanent loan for improvements. Clearly, this instrument conclusively shows that the purpose of the loan was for other purposes than "construction or improvement" and that H.N.C. knew the purpose of the loan. Moreover, H.N.C. had the duty and burden of inquiring into the agent's authority if it intended to rely upon that authority to establish the priority of its lien. Persons dealing with a purported agent have a duty to ascertain the fact of agency and the extent of the agent's authority. E. g., Buzard v. Jolly, 6 S.W. 422, 424 (Tex.1887); Houston & Texas Central Railroad v. Ford, 53 Tex. 364, 372 (1880). This H.N.C. apparently did not do. Since plaintiffs' agent, Russell, had no authority to subordinate plaintiffs' lien, plaintiffs are not bound thereby and the subordination agreement is a nullity. Consequently, the trial judge erred in failing to grant plaintiffs' motion for judgment non obstante veredicto on the ground that the subordination agreement was not executed in accordance with the agent's authority.
H.N.C. asserts, nevertheless, that the power of attorney authorizing Russell to subordinate plaintiffs' lien did not preclude the introduction of extrinsic evidence of his authority. Additionally, for the first time on appeal, Southwest Title argues that the power of attorney was ambiguous and that the trial judge correctly refused to construe it and correctly permitted the jury to resolve the ambiguity. In this respect, Southwest Title contends that the issue of ambiguity was tried by implied consent because no exceptions to defendants' pleadings were made by plaintiffs, and no objections were made to extrinsic testimony with respect to intent and authority. These contentions are without merit because the recorded power of attorney was not ambiguous, as we have held. Consequently, the admission of extrinsic testimony varying the terms of the written power of attorney was error because it violated the parole evidence rule. Secondly, appellees had the burden to plead and prove the authority of the agent to execute the subordination agreement because the priority of H.N.C.'s lien depends upon Russell's authority. Tompkins Machinery & Implement Co. v. Peter, 84 Tex. 627, 19 S.W. 860 (Tex.1892). Sun Appliance & Electric, Inc. v. Klein, 363 S.W.2d 293, 296 (Tex.Civ.App.-Eastland 1962, no writ).
Plaintiffs next contend that the trial judge erred in overruling their motion to disregard the jury's finding that plaintiffs ratified their agent's act in executing the *163 subordination agreement because there is no evidence that the plaintiffs had the knowledge required for ratification of their agent's unauthorized act. We need not pass on the question of whether evidence existed with respect to ratification by the plaintiffs because ratification is an affirmative defense on which defendants had the burden of proof. In view of that burden of proof and, in view of the jury's finding that plaintiff's lacked the requisite knowledge to ratify the unauthorized act of Russell, this affirmative defense was decided adversely to defendants. This is true because, as a matter of law, the requisite knowledge of the subordination agreement on the part of the principal is necessary before the principal can ratify the unauthorized act of his agent. We hold, therefore, that the trial judge erred in declining to disregard the jury's finding of ratification. Thus, we need not pass upon the instruction, about which plaintiffs also complain, that an affirmance may be inferred from a failure to repudiate it. The latter, of course, is dependent upon the principal having knowledge of the unauthorized act. Lacking knowledge of the unauthorized act, the principal is in no position to repudiate it.
The defendant, H.N.C., complains of the failure of the trial judge to unconditionally submit the issue of apparent authority, which of course, rests upon estoppel. No question of estoppel exists here because the power of attorney, setting forth Russell's authority was specifically recited in the subordination instrument and thus, H.N.C. was on notice of Russell's limited authority. Apparent authority cannot exist where there is notice of lack of actual authority or a limitation of authority. Douglass v. Panama, Inc., 504 S.W.2d 776, 779 (Tex.1974).
There are two types of authority actual or apparent. Actual authority may be express or implied and is authority conferred upon the agent by the principal. National Cash Register Co. v. Wichita Frozen Food Lockers, 172 S.W.2d 781, 787 (Tex. Civ.App.-Fort Worth), aff'd, 142 Tex. 109, 176 S.W.2d 161 (1943). Apparent authority, on the other hand, is based upon equitable principles of estoppel. Thus, a party who seeks to rely upon apparent authority of the agent, must plead and prove conduct, on the part of the principal, which would lead a reasonably prudent person, exercising diligence, to believe that the agent has the authority he purports to exercise. Douglass v. Panama, Inc. at 778-79; Chastain v. Cooper & Reed, 152 Tex. 322, 257 S.W.2d 422, 427 (1953). Thus, apparent authority is created by the conduct of the principal towards third parties with whom the agent will later deal. Apparent authority cannot exist if a third party, such as H.N.C. Realty here, has notice, whether actual or constructive, of the agent's actual authority. Fidelity Trust Co. v. Fowler, 217 S.W. 953, 956 (Tex.Civ.App.-Amarillo, 1919, no writ). Because H.N.C. had notice of Russell's limited authority, no question of estoppel based upon apparent authority exists insofar as H.N.C. is concerned.
A different argument is presented by Southwest Title. It argues that because plaintiffs declined to tender back the down payment which emanated from the H.N.C. loan, plaintiffs are estopped from repudiating the subordination agreement. The basis of this contention is that the plaintiffs retained the benefits of their agent's unauthorized act after learning that the funds for the down payment came from the H.N.C. loan. Southwest Title argues that the evidence conclusively established that plaintiffs were apprised in the summer of 1975 of Russell's action in subordinating their first mortgage lien, after H.N.C. had foreclosed its lien. Demand was then made by H.N.C. to return the down payment, which plaintiffs declined to do. Instead, plaintiffs filed this action. Thus, our question is whether plaintiffs, by declining to return the funds received in August of 1973 after learning of the true facts of the unauthorized act of Russell, ratified Russell's unauthorized act, as a matter of law. Essentially, Southwest Title's contention is that by retaining the benefits of Russell's unauthorized act after learning of the unauthorized subordination of their lien, plaintiffs ratified that act and, as a matter of law, are "estopped" to deny ratification.
*164 In support of this argument, Southwest Title cites Oberholtzer v. Myles, 147 S.W.2d 569, 574 (Tex.Civ.App.-Amarillo, 1941, writ dism'd judgment cor.). The Oberholtzer court held that where the undisputed evidence showed that the principal had, by his actions, ratified a transaction, i. e., a deed, he is estopped from later attacking the validity of the deed. Oberholtzer is distinguishable from the case here on its facts. In that case, the principal executed a blank mineral deed and left it in the possession of his agent to sell the mineral interest. Later, the principal notified his agent not to proceed with the sale because the principal had sold the minerals. In response, the agent notified the principal that he (the agent) had already sold the minerals to another and enclosed a check in payment. The principal tendered the check back to his agent, but when the agent refused to accept it, the principal cashed it and used the funds, knowing all of the facts.
In our case, the principals had no knowledge in August of 1973 that the funds which they received were from the fruits of their agent's unauthorized act. Indeed, they did not acquire such knowledge until after H.N.C. had foreclosed and, instead of ratifying the unauthorized act, brought suit to set it aside. Moreover, in our view, it would be inequitable to require them to return these funds when H.N.C. either knew of Russell's lack of authority or, if this was not known, when H.N.C. had a duty to ascertain the extent of the agent's authority. Under these facts, we hold that ratification by estoppel will not lie. See Reynolds-Penland Co. v. Hexter & Lobello, 567 S.W.2d 237, 239 (Tex.Civ.App.Dallas 1978, writ ref'd n. r. e.) (holding that equity will not intervene to relieve negligence).
Southwest Title's argument of ratification by estoppel misapplies the rule that ratification by estoppel is established where the principal retains the benefits of his agent's unauthorized act, after learning the true facts. This was the basis of the Oberholtzer decision and is grounded upon sound equitable principles. Southwest Title misapplies this rule because it erroneously assumes that plaintiffs are entitled to the down payment only because of Russell's unauthorized act. Plaintiffs' entitlement to retain the down payment from Hogg does not depend upon the source of the funds, but rather upon their contract of sale with Hogg. As set forth in the Restatement (Second) of Agency § 99 (1958), the rule is:
The retention by a purported principal, with knowledge of the facts and before he has changed his position, of something which he is not entitled to retain unless an act purported to be done on his account is affirmed, and to which he makes no claim except through such act, constitutes an affirmance unless at the time of such retention he repudiates the act. Even if he repudiates the act, his retention constitutes an affirmance at the election of the other party to the transaction. [Emphasis added.]
Plaintiffs' right to retain the down payment made by Hogg does not depend upon an affirmance of Russell's unauthorized act. Consequently, it is immaterial that the funds for the down payment emanated from the loan between Interchange and H.N.C., which loan would probably not have been made but for the unauthorized subordination of plaintiffs' lien. Accordingly, this equitable rule does not require plaintiffs to tender back to H.N.C. the down payment funds so as to avoid ratification by estoppel.
We turn now to Southwest Title's cross-point complaining of the failure of the trial judge to submit the following two special issues with respect to estoppel: "Do you find ... that plaintiffs intentionally or carelessly caused H.N.C. to believe that Russell had authority to execute the subordination agreement? Do you find ... that H.N.C. made the loan to Interchange, in reliance on such belief?" We overrule Southwest Title's cross-point on the ground that the evidence is undisputed that plaintiffs neither carelessly nor intentionally mislead H.N.C. to their determinant. Instead, H.N.C.'s loss was occasioned by its failing to ascertain the true facts with respect to Russell's authority. As we have noted, infra, no question of apparent authority exists *165 where the principals execute a writing delineating the agent's actual authority and by their act in filing that power of attorney of record placed everyone, including H.N.C., on notice of the extent of Russell's authority. In such a situation, equity will not intervene to absolve H.N.C. for its own negligence. Reynolds-Penland Co. v. Hexter & Lobello at 240.
Accordingly, the judgment of the trial court is reversed and this cause is remanded with instructions to the trial court to render judgment declaring that the lien of plaintiffs is prior and superior to the lien of H.N.C. Realty; to set aside the foreclosure sale of H.N.C. Realty and the foreclosure sale deed to H.N.C. Realty; and to proceed with a judicial foreclosure of plaintiffs' lien. Pursuant to Tex.R.Civ.P. 434, plaintiffs' action against H.N.C. Realty is hereby serviced from the third-party action of H.N.C. Realty against Southwest Title Company since the plaintiffs' rights have been established by this court. Because the merits of the third-party action were not presented to the trial court, we remand under Tex.R. Civ.P. 434 for a determination of the merits of the third-party action. The judgment rendered against Hogg on his note is left undisturbed because no appeal was taken from that part of the judgment. The judgment against Hogg is severed and is thus final.
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Matter of Gardine v Martuscello (2018 NY Slip Op 01688)
Matter of Gardine v Martuscello
2018 NY Slip Op 01688
Decided on March 15, 2018
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered: March 15, 2018
525044
[*1]In the Matter of WAYNE GARDINE, Petitioner,
vDANIEL MARTUSCELLO, as Superintendent of Coxsackie Correctional Facility, et al., Respondents.
Calendar Date: January 23, 2018
Before: Garry, P.J., McCarthy, Devine, Rumsey and Pritzker, JJ.
Wayne Gardine, Napanoch, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondents.
MEMORANDUM AND JUDGMENT
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Superintendent of Coxsackie Correctional Facility finding petitioner guilty of violating a prison disciplinary rule.
Determination confirmed. No opinion.
Garry, P.J., McCarthy, Devine, Rumsey and Pritzker, JJ., concur.
ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.
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978 F.2d 709
Ibrahimv.Crystal City Fire Dept.**
NO. 91-8570
United States Court of Appeals,Fifth Circuit.
Oct 21, 1992
1
Appeal From: W.D.Tex.
2
AFFIRMED.
**
Conference Calendar
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671 A.2d 956 (1996)
Stephen E. PAGE
v.
Barbara A. PAGE.
Supreme Judicial Court of Maine.
Submitted on Briefs December 12, 1995.
Decided February 23, 1996.
*957 Neil S. Shankman, Shankman & Associates, Lewiston, for Plaintiff.
Ronald P. Lebel, Skelton, Taintor & Abbott, Auburn, for Defendant.
Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA and LIPEZ, JJ.
ROBERTS, Justice.
Stephen E. Page appeals from a judgment entered in the Superior Court (Androscoggin, Alexander, J.) affirming a divorce judgment entered in the District Court (Lewiston, Gorman, J.). He challenges the denial of his motions for a new trial, to alter or amend the judgment, and for relief from the judgment. He contends that the divorce judgment is void because he withdrew his consent to a settlement agreement before the judgment was entered on the docket. He also contends that the division of marital assets was unfair and the award of alimony was excessive. We affirm the judgment.
In June 1993, Stephen filed a complaint for a divorce from his wife Barbara in the District Court. The matter came to trial as a contested divorce. On the day of the hearing, however, the parties reached an agreement on all issues. Thereafter the proceedings were conducted as an uncontested divorce, and through Barbara's testimony the settlement agreement was entered on the record in open court with Stephen present.
Barbara filed with the court a proposed judgment reflecting the terms of the settlement agreement. Stephen then filed a letter stating that he objected to the terms and conditions of the proposed judgment. After meeting with both parties, the court signed the proposed judgment and it was subsequently entered on the docket. Stephen's post-judgment motions were denied and the Superior Court affirmed the judgment of the District Court. This appeal followed.
When the Superior Court acts solely as an intermediate appellate court, we review directly the record before the District Court to determine whether its decision contains any error of law that affects the validity of the judgment. Salenius v. Salenius, 654 A.2d 426, 428 n. 4 (Me.1995).
This case requires us to reiterate our holding in Transamerica Commercial Fin. Co. v. Birt, 599 A.2d 65 (Me.1991), that an oral stipulation entered on the record at trial is adequate to support the entry of a judgment finally disposing of the litigation. Contrary to Stephen's assertion, the parties' settlement agreement entered on the record was sufficient to support the court's subsequent entry of a final judgment based on that agreement. The terms of the settlement *958 were discussed at length on the record, and at that time all parties agreed to the settlement. We recognize that we have previously allowed an exception to this rule in those cases when a party challenges the sufficiency of the agreement placed on the record. Transamerica Commercial Fin. Co. v. Birt, 599 A.2d at 65. An example of a proper challenge to the sufficiency of a settlement is when a party alleges that his attorney acted without authority in entering into the agreement. Lane v. Maine Cent. R.R., 572 A.2d 1084, 1085 (Me.1990). No such challenge has been made here. Stephen merely objected to the terms and conditions of the judgment and therefore the exception does not apply.
Stephen's withdrawal of consent to the agreement had no significance. We now reject any requirement that the parties' consent to a judgment must continue until it is signed by the court, as we previously stated in dicta in Phillips v. Fuller, 524 A.2d 1221, 1222 n. 1 (Me.1987); but see Harbour v. Brown, 732 S.W.2d 598, 600 (Tenn.1987). Rather, a stipulation of record that sufficiently covers the settlement agreement can be summarily enforced by the entry of a judgment. Our conclusion recognizes the need to protect the court's administration of justice, as well as to control its calendar.
The entry is:
Judgment affirmed.
All concurring.
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647 F.2d 171
Kingv.Community National Bank
79-4420
UNITED STATES COURT OF APPEALS Ninth Circuit
3/30/81
1
E.D.Cal.
AFFIRMED
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511 F.2d 1396
U. S. ex rel. Arzonicav.Kelly
74-2027
UNITED STATES COURT OF APPEALS Third Circuit
3/18/75
1
E.D.Pa.
AFFIRMED
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Matter of Davina R.M.R.L. (Jennifer A.) (2014 NY Slip Op 09132)
Matter of Davina R.M.R.L. (Jennifer A.)
2014 NY Slip Op 09132
Decided on December 31, 2014
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 31, 2014
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
RANDALL T. ENG, P.J.
WILLIAM F. MASTRO
SHERI S. ROMAN
ROBERT J. MILLER, JJ.
2014-00163
(Docket No. B-17724-12)
[*1]In the Matter of Davina R.M.R. L. (Anonymous). Forestdale, Inc., et al., respondents;
andJennifer A. (Anonymous), appellant.
John C. Macklin, New Hyde Park, N.Y., for appellant.
Rosin Steinhagen Mendel, New York, N.Y. (Douglas H. Reiniger of counsel), for respondent Forestdale, Inc.
Seymour W. James, Jr., New York, N.Y. (Tamara A. Steckler and Jess Rao of counsel), attorney for the child.
DECISION & ORDER
Appeal from an order of fact-finding and disposition of the Family Court, Queens County (Margaret P. McGowan, J.), dated November 12, 2013. The order, after fact-finding and dispositional hearings, found that the mother permanently neglected the subject child, terminated her parental rights, and transferred custody and guardianship of the child to Forestdale, Inc., and the Commissioner of the Administration for Children's Services of the City of New York for the purpose of adoption.
ORDERED that the order of fact-finding and disposition is affirmed, without costs or disbursements.
The Family Court properly found that the mother permanently neglected the subject child (see Social Services Law § 384-b[7][a]). Contrary to the mother's contention, the petitioner Forestdale, Inc., established by clear and convincing evidence that it made diligent efforts to assist the mother in maintaining contact with the child and planning for the child's future (see Matter of Star Leslie W., 63 NY2d 136, 142; Matter of Sheila G., 61 NY2d 368, 373). These efforts included scheduling and facilitating visitation, developing a service plan, making referrals for mental health evaluation and treatment programs, making referrals for parenting skills and anger management classes, advising the mother as to how to obtain housing and a source of income, encouraging the mother to comply with the service plan, and warning the mother of the consequences of noncompliance (see Social Services Law § 384-b[7][f]; Matter of Star Leslie W., 63 NY2d at 142-143; Matter of Beyonce H. [Baranaca H.], 85 AD3d 1168; Matter of Hannan Nicolas G. [Jose G.], 78 AD3d 832; Matter of Arthur C., 66 AD3d 1009). Despite these efforts, the mother failed to plan for the child's future by failing to complete the necessary programs and by failing to take steps to secure appropriate housing or a source of income (see Social Services Law § 384-b[7][c]; Matter of Beyonce H. [Baranaca H.], 85 AD3d 1168). To the extent that the mother did attend any parenting or anger management classes, she never gained insight as to why she needed to attend those classes [*2](see Matter of Hannan Nicolas G. [Jose G.], 78 AD3d at 833; Matter of Daniel A.G. [Jose Ricardo G.], 78 AD3d 831, 831-832). Accordingly, the Family Court correctly found that the child was permanently neglected (see Matter of Beyonce H. [Baranaca H.], 85 AD3d 1168; Matter of Hannan Nicolas G. [Jose G.], 78 AD3d 832).
Moreover, based on the evidence adduced at the dispositional hearing, the Family Court properly determined that the best interests of the child would be served by terminating the mother's parental rights and freeing the child for adoption by her foster parent, with whom she had been residing since birth (see Matter of Daniel A.G. [Jose Ricardo G.], 78 AD3d at 831-832). Contrary to the mother's contention, the entry of a suspended judgment was not appropriate under the circumstances of this case (see Matter of Anthony R. [Juliann A.], 90 AD3d 1055; Matter of Zechariah J. [Valrick J.], 84 AD3d 1087).
ENG, P.J., MASTRO, ROMAN and MILLER, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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459 F.3d 999
Jimmy Dale BLAND, Petitioner-Appellant,v.Marty SIRMONS, Warden, Oklahoma State Penitentiary,* Respondent-Appellee.
No. 05-6013.
United States Court of Appeals, Tenth Circuit.
August 3, 2006.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED David Autry, Oklahoma City, OK, for Petitioner-Appellant.
Seth S. Branham, Assistant Attorney General of Oklahoma (W.A. Drew Edmondson, Attorney General of Oklahoma, with him on the briefs), Oklahoma City, OK, for Respondent-Appellee.
Before KELLY, BRISCOE, and McCONNELL, Circuit Judges.
McCONNELL, Circuit Judge.
1
Jimmy Dale Bland, an inmate on death row in the Oklahoma State Penitentiary, appeals the district court's denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Mr. Bland was convicted of one count of first-degree malice-aforethought murder. The jury found the existence of two aggravating factors and recommended that he be sentenced to death. The trial court adopted the jury's recommendation, and the Oklahoma Court of Criminal Appeals affirmed. Bland v. State, 4 P.3d 702, 709 (Okla.Crim. App.2000). The state courts denied his requests for post-conviction relief. Mr. Bland now appeals the district court's denial of his habeas petition, challenging aspects of both the guilt and sentencing phases of his trial. For the reasons set forth below, we affirm the decision of the district court.
I. Background
A. The Crime
2
On November 14, 1996, Jimmy Dale Bland shot and killed Doyle Windle Rains in Mr. Rains's garage in Manitou, Tillman County, Oklahoma. Bland, 4 P.3d at 709. He had been out of prison less than a year. He had served almost twenty years of a 60-year sentence for killing a man and kidnapping the victim's wife and son. Tr. Jury Trial, Day Seven, at 39-45, 55, 62-64, 107. At trial, Mr. Bland admitted killing Mr. Rains, but defended on the ground that the killing was neither malice-aforethought murder nor felony murder. Bland, 4 P.3d at 710.
3
According to the government's evidence, Mr. Bland worked for Mr. Rains doing miscellaneous construction and handyman jobs. Id. at 709; Tr. Jury Trial, Day Five, at 33. Mr. Rains was romantically involved with Mr. Bland's mother. Tr. Jury Trial, Day Five, at 26. Although Mr. Bland testified that the two men were "pretty good friends," id. at 27, their financial relations, as well as Mr. Rains's relationship with Mr. Bland's mother, were sources of friction. Mr. Bland was chronically short of money, which he used to feed his drug habit. See id. at 79. Mr. Rains would allocate their earnings between the two of them, usually keeping well more than half for himself. See id. at 35-36. On at least one occasion, Mr. Bland told his girlfriend, Connie Lord, that he planned to kill Mr. Rains, and said that he would dispose of the body by placing it in a well and putting cement on it. Tr. Jury Trial, Day Four, at 68, 73-74.
4
On November 14, 1996, Mr. Rains lent Mr. Bland his Cadillac so that Mr. Bland could drive to Oklahoma City and visit Ms. Lord. Bland, 4 P.3d at 709. During the visit, Mr. Bland spent nearly all of the cash he brought with him, most of it on drugs, which he and Ms. Lord immediately ingested. Id. Ms. Lord gave Mr. Bland $10.00 so that he could return home. Id. On the way home, Mr. Bland stopped and consumed the remaining drugs he had purchased in Oklahoma City. Tr. Jury Trial, Day Five, at 41. On his return to Manitou, before going home, Mr. Bland drove to Mr. Rains's home to return the Cadillac. Bland, 4 P.3d at 709. He brought a .22-caliber bolt-action rifle, concealed in a roll of coveralls. Id. Angry with Mr. Rains and desperate for cash, Mr. Bland shot Mr. Rains in the back of the head. Id. Mr. Bland then loaded Mr. Rains's body into a pickup truck, washed out the garage area where the killing had occurred, drove to a rural area, and "[d]umped [the] body in a creek and covered it up," hoping that no one would find it. Tr. Jury Trial, Day Five, at 67-68; Bland, 4 P.3d at 709.
5
Mr. Bland offers a slightly different story. According to his testimony at trial, he had taken the rifle with him on his trip to Oklahoma City, in accordance with his usual practice. Tr. Jury Trial, Day Five, at 53. It was still with him in the Cadillac when he arrived at Mr. Rains's home. Id. Although Mr. Rains had given Mr. Bland the gun to "[s]hoot frogs or snakes or whatever," Mr. Bland did not want Mr. Rains to know that he "was carrying it around driving [Mr. Rains's] car." Id. at 54. To ensure that Mr. Rains did not see the weapon, Mr. Bland removed it from the vehicle, rolled it into a pair of coveralls, and carried it under his arm. Id. at 53-54. The two men got into a fight over a damaged hubcap on the Cadillac. Id. at 60. While in Mr. Rains's garage, Mr. Rains took a swing at Mr. Bland, and Mr. Bland then "leaned back and kicked [Mr. Rains's] leg out from under him," at which point both men fell down. Id. at 62-63; Bland, 4 P.3d at 710. When Mr. Bland fell, "the coveralls fell out from under [his] arm," then "[t]he gun fell out and [he] just picked it up and fired." Tr. Jury Trial, Day Five, at 63; Bland, 4 P.3d at 710.
6
Whatever the precise sequence of events at Mr. Rains's home, Mr. Bland admits that he loaded the body into a pickup truck, drove to a remote area, dumped the body into a creek, and covered it with logs. Bland, 4 P.3d at 710. When he was apprehended by law enforcement several days later, he had over $300 in cash on his person, presumably taken from Mr. Rains. Id. He then returned to Mr. Rains's home and spent the night there. Bland, 4 P.3d at 709. He told his mother the next day that he had gone to work with Mr. Rains. Id.
7
It was several days before Mr. Bland was apprehended. On a tip from Ms. Lord, conveyed through her sister, Tillman County law enforcement officials visited and searched Mr. Rains's home, discovered that Mr. Rains and his pickup were missing, and observed blood on the garage floor and on a spray washer they found in the garage. Id.; Tr. Jury Trial, Day Three, at 75. They listed Mr. Rains and his pickup on the NCIC register of missing persons. Bland, 4 P.3d at 709-10. On November 16, Mr. Bland drove Mr. Rains's truck off the side of the road between Stroud and Chandler, Oklahoma. Tr. Jury Trial, Day Four, at 29-30. He was arrested for driving under the influence, and released on bond. Bland, 4 P.3d at 710.
8
At this point, law-enforcement officials had drawn no connection between Mr. Bland and the disappearance of Mr. Rains. Shortly thereafter, however, the sheriff in Chandler contacted the sheriff's office in Tillman County regarding the NCIC listing for the missing truck. Tr. Jury Trial, Day Three, at 81-82. A warrant was issued for the arrest of Mr. Bland for the unauthorized use of a motor vehicle. Id. at 83. On November 20, law enforcement officials located and arrested Mr. Bland at a friend's home, where he was hiding in a closet. Id. at 116-20. Neither then, nor during his previous encounter with law enforcement in connection with the drunk-driving accident, nor in an earlier conversation with his mother, did Mr. Bland explain the circumstances of Mr. Rains's death.
9
Mr. Bland was taken to the Tillman County sheriff's office, where he confessed to killing Mr. Rains. Bland, 4 P.3d at 710. Mr. Bland took officers to the creek where he had dumped Mr. Rains's body. Id. Although the body was badly decomposed, an autopsy established that the cause of death was a bullet wound to the back of the head. Id.
B. Judicial Proceedings
10
At trial, Mr. Bland admitted that he shot Mr. Rains, but claimed that he never intended to kill him. Id. The State argued that Mr. Bland committed the murder with malice aforethought and as part of the commission of a felony, namely robbery. The State's theory was that Mr. Bland killed Mr. Rains to obtain money to purchase drugs, or alternatively that Mr. Bland intended to kill Mr. Rains for several months prior to the actual murder because Mr. Bland was displeased with his employment arrangement and troubled by Mr. Rains's romantic relationship with his mother. Defense counsel stipulated that Mr. Bland was guilty of first-degree heat-of-passion manslaughter. Defense counsel also contended that Mr. Bland was under the influence of drugs when he killed Mr. Rains.
11
The jury convicted Mr. Bland only of first-degree malice-aforethought murder. Id. at 709; O.R. Vol. II, Doc. 383-84. At the sentencing phase, the Bill of Particulars charged that the crime committed by Mr. Bland should be punished by death due to the existence of three aggravating circumstances: (1) Mr. Bland "was previously convicted of a felony involving the use or threat of violence to the person"; (2) the "murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution"; and (3) the "existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." O.R. Vol. I, Doc. 7.
12
To establish these aggravating factors, the prosecution presented evidence about the circumstances of Mr. Bland's prior kidnapping and manslaughter convictions. The prosecution showed that Mr. Bland, while intoxicated, arrived at Raymond Prentice's home, waited for Mr. Prentice to appear on the front porch, and shot Mr. Prentice three times. Tr. Jury Trial, Day Seven, at 63-64. Mr. Bland then went inside, found Mrs. Prentice and her three-year old son, and ordered them into a car. Id. at 38, 45, 64. Before they could leave the Prentice home, however, Mrs. Prentice's brother came to the door. Id. at 44. Mr. Bland fired numerous shots at her brother, but did not kill him. Id. Mr. Bland then kidnapped Mrs. Prentice and her son. Id. at 45. The ordeal ended in a shootout between Mr. Bland and the police. Id. at 48. The prosecution also focused on the heinous nature of both crimes and the short period of time between Mr. Bland's release and his second killing. See id. at 158, 191.
13
After evidence was presented at the sentencing phase, the court struck the "committed for the purpose of avoiding or preventing a lawful arrest" aggravating circumstance. Id. at 145. The jury found the existence of the remaining two aggravating circumstances and sentenced him to death. Id. at 206; O.R. Vol. III, at 411-12.
14
The OCCA affirmed Mr. Bland's conviction and sentence. Bland, 4 P.3d at 735. The United States Supreme Court denied Mr. Bland's petition for writ of certiorari on January 8, 2001, Bland v. Oklahoma, 531 U.S. 1099, 121 S.Ct. 832, 148 L.Ed.2d 714 (2001) (mem.), and the OCCA denied post-conviction relief in an unpublished opinion on June 26, 2000, Bland v. State, No. PCD-99-1200 (June 26, 2000). On November 26, 2001, Mr. Bland filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma.
15
The district court denied the petition on December 14, 2004, but granted a certificate of appealability on six grounds: (1) jury instructions and prosecutorial argument regarding the lesser included offense of first-degree manslaughter; (2) prosecutorial argument diminishing the jury's sense of responsibility for a death verdict; (3) Mr. Bland's absence from a portion of voir dire; (4) prosecutorial comments on Mr. Bland's post-arrest silence; (5) prosecutorial misconduct; and (6) ineffective assistance of counsel. R. Docs. 61, 71; Br. of Pet./Aplt. Attach. 5. On March 17, 2005, in a case management order, this Court granted a certificate of appealability as to two additional issues: (1) whether the state court deprived Mr. Bland of "a fair trial by refusing to submit an instruction on the offense of `manslaughter by resisting criminal [attempt]'"; and (2) whether the district court should have granted an evidentiary hearing on whether Mr. Bland was denied the effective assistance of counsel. Case Mgmt. Order, Mar. 17, 2005, at 1-2; Br. of Pet./Aplt. Attach. 6.
II. Standard of Review
16
Because Mr. Bland filed his habeas corpus petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), its standards apply to claims in this appeal adjudicated on the merits by the state courts. See Turrentine v. Mullin, 390 F.3d 1181, 1188 (10th Cir.2004); Smallwood v. Gibson, 191 F.3d 1257, 1264 (10th Cir.1999). Under AEDPA, a petitioner is entitled to federal habeas relief only if the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2). In evaluating a state prisoner's habeas petition, we presume that the factual findings of the state court are correct and place the burden on the petitioner to rebut that presumption by clear and convincing evidence. Id. § 2254(e)(1); Smith v. Mullin, 379 F.3d 919, 924-25 (10th Cir.2004). We review the district court's legal analysis of the state court decision de novo. Turrentine, 390 F.3d at 1189.
17
In applying § 2254(d), we first determine whether the principle of federal law on which the petitioner's claim is based was clearly established by the Supreme Court at the time of the state court judgment. Id. If so, we then consider whether the state court decision was "contrary to" or an "unreasonable application of" that clearly established federal law. A decision is "contrary to" clearly established federal law for purposes of § 2254 if "the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases" or if "the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from" the result reached by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). It is not enough that the state court decided an issue contrary to a lower federal court's conception of how the rule should be applied; the state court decision must be "diametrically different" and "mutually opposed" to the Supreme Court decision itself. Id. at 406, 120 S.Ct. 1495. A state court decision involves an "unreasonable application" of federal law if "the state court identifies the correct governing legal principle from [Supreme Court] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 1495.
18
Even if the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law, our analysis is not complete. Unless the error is a structural defect in the trial that defies harmless-error analysis, we must apply the harmless-error standard of Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), and O'Neal v. McAninch, 513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). Turrentine, 390 F.3d at 1189. Under Brecht, habeas relief is proper only if the error had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Brecht, 507 U.S. at 623, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). Under O'Neal, a "substantial and injurious effect" exists when the court finds itself in "grave doubt" about the effect of the error on the jury's verdict. O'Neal, 513 U.S. at 435, 115 S.Ct. 992. "Grave doubt" exists where the issue of harmlessness is "so evenly balanced that [the court] feels [itself] in virtual equipoise as to the harmlessness of the error." Id.
19
The § 2254(d) standard does not apply to issues not decided on the merits by the state court. Turrentine, 390 F.3d at 1189; see Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir.1999) (noting that the § 2254 standard does not apply to a decision disposing of a claim on procedural grounds). For those claims, we review the district court's legal conclusions de novo and its factual findings for clear error. Mitchell v. Gibson, 262 F.3d 1036, 1045 (10th Cir.2001). However, if the district court based its factual findings entirely on the state court record, we review that record independently. Turrentine, 390 F.3d at 1189.
III. Issues for Review
A. Heat of Passion Manslaughter Instruction
20
Mr. Bland first argues that his right to due process of law under the Fourteenth Amendment was violated through jury instructions and prosecutorial argument that prevented the jury from considering his affirmative defense of heat of passion manslaughter. Specifically, he argues that the jury instructions failed to require the State to disprove heat of passion beyond a reasonable doubt, in violation of the Supreme Court's decision in Mullaney v. Wilbur, 421 U.S. 684, 704, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). He also contends that the prosecution improperly argued to the jury that manslaughter could not be considered unless a reasonable doubt existed as to the murder charge. The State argues that he failed to exhaust his Mullaney claim, and also defends the decision on the merits.
21
In his brief on direct appeal to the OCCA, Mr. Bland conceded that the jury was instructed in accordance with McCormick v. State, 845 P.2d 896, 900-01 (Okla. Crim.App.1993), which upheld Oklahoma's instructions on heat-of-passion manslaughter against a Mullaney challenge. Instead, he focused his argument on the prosecution's closing arguments. Br. of Appellant, OCCA Case No. F-98-152, at 34. He argued that "[t]he trial court erred in allowing the prosecution to instruct the jury to not consider Mr. Bland's affirmative defense of first degree manslaughter unless the jury had first found reasonable doubt for first degree murder." Id. at 33 (emphasis omitted). In making this argument, Mr. Bland cited both Mullaney and United States v. Lofton, 776 F.2d 918, 921 (10th Cir.1985), a decision from this Court interpreting Mullaney to require the government to prove, beyond a reasonable doubt, the absence of heat of passion to obtain a murder conviction. Br. of Appellant, OCCA Case No. F-98-152, at 33-34. Essentially, he argued that the prosecution's decision to "specifically t[ell] the jury that it could not consider defendant's affirmative defense of first degree manslaughter unless the jury first found reasonable doubt for the offense of first degree murder" effectively modified the instructions such that they violated McCormick, Lofton, and Mullaney. Br. of Appellant, OCCA Case No. F-98-152, at 34. Mr. Bland concluded this argument with a one-sentence citation to Mullaney, stating that his "right to due process was violated because the State was exempted from its duty to prove first degree murder beyond a reasonable doubt." Id. at 35.
22
Noting Mr. Bland's concession that the jury instructions were proper under Oklahoma law, the OCCA construed Mr. Bland's argument solely as one of prosecutorial misconduct. Bland, 4 P.3d at 726. Because defense counsel did not object to the prosecution's argument at trial, the OCCA reviewed Mr. Bland's claim for plain error. Id. The OCCA concluded that because the jury was properly instructed as to the manner in which the murder and manslaughter charges should be considered, and there was no evidence that the jury failed to follow their written instructions, any misstatements by the prosecutor "could not have affected the outcome of the trial." Id.
23
In his habeas petition in the district court, Mr. Bland argued both that the trial court "should have given an instruction that unless the State disproved the affirmative defense of `heat of passion' it could not convict of murder," and that the prosecution improperly argued that the jury must decide Mr. Bland's guilt on the murder charge before it could consider the manslaughter charge. R. Doc. 18, at 27. In response, the State argued that Mr. Bland did not exhaust state remedies for his challenge to the jury instructions. Mr. Bland replied that the jury instruction argument was exhausted because it is the "substantial equivalent" to, "arose under the same federal constitutional provision" as, and "was a logical extension" of, the argument made to the OCCA. R. Doc. 33, at 2. The district court agreed, and found that Mr. Bland "fairly raise[d] the issue of whether the jury instructions given, combined with [the] prosecutorial argument made, misled the jury concerning the prosecution's burden of proof." R. Doc. 61, at 9. The district court nonetheless denied relief because the jury instructions clearly set forth the various offenses for which Mr. Bland could have been convicted, and the prosecutor's comments did not infringe on a particular constitutional right. Id. at 10-11. On appeal, the State reasserts its claim that Mr. Bland failed to present his jury instruction claim to the OCCA.
1. Exhaustion
24
A state prisoner generally must exhaust available state-court remedies before a federal court can consider a habeas corpus petition. See 28 U.S.C. § 2254(b)(1)(A); Hawkins v. Mullin, 291 F.3d 658, 668 (10th Cir.2002). A claim has been exhausted when it has been "fairly presented" to the state court. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). "Fair presentation" requires more than presenting "all the facts necessary to support the federal claim" to the state court or articulating a "somewhat similar state-law claim." Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (per curiam). "Fair presentation" means that the petitioner has raised the "substance" of the federal claim in state court. Picard, 404 U.S. at 278, 92 S.Ct. 509. The petitioner need not cite "`book and verse on the federal constitution,'" id. (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir.1958)), but the petitioner cannot assert entirely different arguments from those raised before the state court. For example, in Hawkins, 291 F.3d at 669, the defendant argued on direct appeal that the trial court erred in not considering whether he knowingly and voluntarily waived the opportunity to present mitigating evidence. In his request for federal habeas corpus relief, however, he argued that trial counsel was ineffective in failing to investigate possible mitigating evidence. Id. We held that he had failed to exhaust that claim because "[w]hile [the defendant's] state-court claims focused on the trial court's actions" his federal habeas claims "specifically challenge[d] only defense counsel's failings." Id. (emphasis added).
25
Mr. Bland's arguments on direct appeal were limited to objections to the prosecution's mischaracterization of jury instructions directing the jury to consider the murder and manslaughter charges simultaneously. In the course of that argument, Mr. Bland not only neglected to argue that the trial court's instructions were erroneous, but explicitly conceded that the instructions comported with McCormick. His due process argument before the OCCA was limited to "misinformation presented by the prosecution" and did not mention any errors by the court in issuing its written jury instructions. Br. of Appellant, OCCA Case No. F-98-152, at 35.
26
Mr. Bland contends that the OCCA examined the jury instructions and held that the instructions satisfied Mullaney, and that because the court addressed the claim it was exhausted. See Abdus-Samad v. Bell, 420 F.3d 614, 623 (6th Cir. 2005) ("A claim is exhausted if the state court addressed the substance of the asserted claim."). We do not agree. Although the OCCA did note that "[t]he jury was properly instructed as to the manner in which the offenses were to be considered," this comment was in connection with the court's consideration of whether the prosecutor's comments had the effect of preventing the jury from following the trial court's instructions. See id. A challenge to the actions of the prosecution differs significantly from a challenge to the instructions given by the court. See Hawkins, 291 F.3d at 669. Because presentation of a "somewhat similar" claim is insufficient to "fairly present" a federal claim before the state courts, we conclude, contrary to the district court, that Mr. Bland failed to exhaust his Mullaney claim.
27
Generally, a federal court should dismiss unexhausted claims without prejudice so that the petitioner can pursue available state-court remedies. See Demarest v. Price, 130 F.3d 922, 939 (10th Cir.1997). However, "if the court to which Petitioner must present his claims in order to meet the exhaustion requirement would now find those claims procedurally barred, there is a procedural default for the purposes of federal habeas review." Dulin v. Cook, 957 F.2d 758, 759 (10th Cir.1992). There is no question that Oklahoma would deem Mr. Bland's due process claim regarding the jury instructions procedurally barred. Oklahoma's Uniform Post-Conviction Procedure Act requires that "[a]ll grounds for relief available to an applicant under this act must be raised in his original, supplemental or amended application. Any ground finally adjudicated or not so raised . . . may not be the basis for a subsequent application." Okla. Stat. tit. 22, § 1086; see also Medlock v. Ward, 200 F.3d 1314, 1323 (10th Cir.2000) ("Oklahoma deems waived claims that were not raised in an initial application for post-conviction relief in a death penalty case.").
28
A petitioner may overcome the procedural bar only if he can "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Mr. Bland has neither asserted cause and prejudice excusing this default, nor suggested that this Court must review the merits of his claim to prevent a fundamental miscarriage of justice. Accordingly, Mr. Bland failed to exhaust his claim that the jury instructions violated Mullaney and he is now procedurally barred from raising that claim in this Court.
2. The Instructions
29
Even were we to agree with the district court that Mr. Bland raised his Mullaney claim before the OCCA, he would not be entitled to relief. In arguing that he exhausted this claim, Mr. Bland takes the position that "the state court confronted squarely the appropriateness of the written jury instructions challenged here." Reply Br. of Pet./Aplt. 5. If he is correct, then the OCCA rejected Mr. Bland's Mullaney claim on the merits, the standard of review in § 2254 applies, and we could reverse only if the OCCA's decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court.
30
Mullaney involved a challenge to a Maine murder statute that allowed any intentional or criminally reckless killing to be punished as murder "unless the defendant proves by a fair preponderance of the evidence that it was committed in the heat of passion on sudden provocation, in which case it is punished as manslaughter." Mullaney, 421 U.S. at 691-92, 95 S.Ct. 1881. The Court declared the statute unconstitutional because "the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case." Id. at 704, 95 S.Ct. 1881. Two years after issuing the decision in Mullaney, however, the Supreme Court clarified that its holding should be narrowly construed. In Patterson v. New York, 432 U.S. 197, 214, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), the defendant argued that Mullaney prohibited a state from permitting guilt or punishment "to depend on the presence or absence of an identified fact without assuming the burden of proving the presence or absence of that fact, as the case may be, beyond a reasonable doubt." The Court rejected that interpretation. Although it acknowledged that Mullaney requires a state to prove "every ingredient of an offense beyond a reasonable doubt" and prohibits a state from "shift[ing] the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense," the Court declared it "unnecessary" to have gone further in Mullaney. Id. at 215, 97 S.Ct. 2319. Patterson thereby limited Mullaney to situations where a fact is presumed or implied against a defendant. See id. at 216, 97 S.Ct. 2319; United States v. Molina-Uribe, 853 F.2d 1193, 1203-04 (5th Cir.1988), overruled in part on other grounds by United States v. Bachynsky, 934 F.2d 1349 (5th Cir.1991) (en banc). Because the written instructions did not permit the jury to presume malice aforethought, required the State to prove malice aforethought beyond a reasonable doubt, and defined malice and heat of passion as mutually exclusive, the instructions provided to the jury in Mr. Bland's case did not violate Patterson. See Davis v. Maynard, 869 F.2d 1401, 1406-07 (10th Cir.1989) (rejecting a Mullaney challenge to substantially similar jury instructions), vacated sub nom., Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990), opinion reinstated in part, 911 F.2d 415 (10th Cir.1990) (per curiam).
31
Mr. Bland relies on our decision in Lofton, 776 F.2d at 920, to claim that he was entitled to an instruction that the prosecution had the burden to prove the absence of heat of passion beyond a reasonable doubt. In Lofton, we described Patterson as preserving, not limiting, Mullaney's holding that the government must prove beyond a reasonable doubt the absence of any defense that serves to negate an element of the crime. See id. (noting that under the statute in Patterson, malice was not an element of second-degree murder, and the affirmative defense of extreme emotional disturbance therefore did not negate an element of the offense). We held that where malice is an element of murder and a heat-of-passion defense would negate that element, as in Mullaney, the defendant "is entitled to instructions informing the jury of . . . the Government's duty to prove beyond a reasonable doubt the absence of heat of passion in order to obtain a murder conviction." Id.
32
If this Court's decision in Lofton were controlling, Mr. Bland might well be entitled to relief. Under the AEDPA standard of review, however, a habeas petition shall not be granted unless the state-court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1) (emphasis added). The decisions of lower federal courts applying Supreme Court precedent are not determinative, see Williams, 529 U.S. at 406, 120 S.Ct. 1495, and in this case the lower federal courts have in fact divided as to the proper scope of Mullaney after Patterson. Compare Lofton, 776 F.2d at 920-21, with Molina-Uribe, 853 F.2d at 1203-04. Because the OCCA's decision reasonably applies the correct legal rule from Mullaney, as the Supreme Court construed that rule in Patterson, the OCCA decision is neither contrary to, nor an unreasonable application of, clearly established Supreme Court precedent, notwithstanding the interpretation of that rule in this Circuit.
3. Prosecutorial Misstatements
33
We turn now to Mr. Bland's argument that the prosecutors misstated the jury instruction regarding the lesser included offense, and thus violated due process. To prevail on a claim based on improper remarks by the prosecutor, a petitioner generally must demonstrate that the remarks "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); see also Le v. Mullin, 311 F.3d 1002, 1013, 1018 (10th Cir.2002) (requiring a showing that the trial was "fundamentally unfair" where the prosecutor's comments appeared to contradict the jury instructions). Because the OCCA considered this claim, AEDPA standards of review apply, and we may reverse only if the OCCA's decision was "legally or factually unreasonable." Gipson v. Jordan, 376 F.3d 1193, 1197 (10th Cir.2004) (internal quotation marks omitted).
34
During closing argument, the prosecution argued that the jury need not consider the lesser included offense of first-degree manslaughter if the jury found beyond a reasonable doubt that the defendant is guilty of first-degree murder. Tr. Jury Trial, Day Six, at 8, 10. The defense did not object to the argument at trial, but Mr. Bland now contends that the argument violated Oklahoma law and misstated the jury instructions by inviting the jury first to consider the murder charges and "then only look at the manslaughter" if the jury was unable to find murder beyond a reasonable doubt. Id. at 106.
35
Reviewing for plain error, the OCCA found none. Both defense counsel and the prosecution reminded the jury to refer to the written instructions during deliberations. See id. at 9 (State's closing argument) ("Read the Instructions, study them."); id. at 59 (Defendant's closing argument) ("I want you back in the jury room[,] as I know you will[,] to read all of the instructions."). Mr. Bland has conceded that the written instructions provided to the jury were in accord with McCormick, the controlling OCCA precedent. See Bland, 4 P.3d at 726; Br. of Appellant, OCCA Case No. F-98-152, at 34. One instruction provided that "[i]f you have a reasonable doubt of the defendant's guilt of the charges of MURDER FIRST DEGREE (PREMEDITATED) AND MURDER FIRST DEGREE (FELONY MURDER), you must then consider the charge of MANSLAUGHTER FIRST DEGREE BY DANGEROUS WEAPON (HEAT OF PASSION)." O.R. Vol. II, at 374. Another instruction explained:
36
If you have a reasonable doubt as to which offense the defendant may be guilty of, Murder First Degree (Premeditated), and/or Murder First Degree (Felony Murder), or Manslaughter First Degree by Dangerous Weapon (Heat of Passion), you may find him guilty only of the lesser offense, Manslaughter First Degree by Dangerous Weapon (Heat of Passion).
37
* * *
38
If you find the defendant guilty of one or both of the charges of Murder First Degree . . ., then you may not also render a verdict on the lesser offense of Manslaughter First Degree by Dangerous Weapon (Heat of Passion).
39
Id. at 381. Based on its review of the record, the OCCA found no evidence that the jury did not follow the written instructions. Bland, 4 P.3d at 726. Moreover, the OCCA concluded that the prosecutor's comments "were not so egregious as to have denied [Mr. Bland] a fair trial or to have affected the outcome of the trial." Id.
40
We have carefully examined the record in light of petitioner's arguments, and cannot say that the OCCA's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as reflected in the decisions of the United States Supreme Court. Although the prosecutor in this case did misstate the jury instructions, both defense counsel and the prosecution reminded the jury that it should refer to the written instructions during deliberations. The jury is presumed to follow its instructions, Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000), even when there has been misleading argument. See Boyde v. California, 494 U.S. 370, 384, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990) (explaining that "arguments of counsel generally carry less weight with a jury than do instructions from the court"); Lingar v. Bowersox, 176 F.3d 453, 460-61 (8th Cir.1999) ("When counsel misstates the law, the misstatement is harmless error if the court properly instructs the jury on that point of law or instructs that the attorneys' statements and arguments are not evidence."). Furthermore, there was strong evidence that Mr. Bland was guilty of malice-aforethought murder rather than heat-of-passion manslaughter: that Mr. Bland's grievances against the victim were long-standing, that he told his girlfriend he was going to murder Mr. Rains months before doing so, that he went to Mr. Rains's home with a .22-caliber rifle hidden in his coveralls, that he shot Mr. Rains in the back of the head, that he stole money from Mr. Rains, and that he took elaborate steps to hide the body, much as he had told his girlfriend he would. In light of these considerations, the OCCA's decision was not an unreasonable application of clearly established federal law.
41
B. Jury Instruction on Manslaughter by Resisting a Criminal Attempt
42
Oklahoma provides three definitions for first-degree manslaughter: misdemeanor-manslaughter, heat of passion manslaughter, and manslaughter by resisting a criminal attempt. Okla. Stat. tit. 21, § 711. Manslaughter by resisting a criminal attempt occurs when a homicide is "perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed." Id. § 711(3). The defense did not request such an instruction at trial, but Mr. Bland now contends that there was sufficient evidence to support such an instruction and that the trial court's failure to give it sua sponte violated his right to due process as defined by Beck v. Alabama, 447 U.S. 625, 627, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). He also argues that the OCCA improperly applied a new and more exacting standard to determine whether he was entitled to this instruction.
43
Mr. Bland raised the trial court's failure to issue an instruction for manslaughter by resisting a criminal attempt on direct appeal of his conviction to the OCCA. The OCCA rejected the argument. Clarifying prior holdings of that court, which had been in disarray, the OCCA held that a jury instruction on a lesser included offense is warranted only when prima facie evidence has been presented to support the lesser offense. Bland, 4 P.3d at 719-20. It then found that there was insufficient evidence in this case to warrant such an instruction. Id. at 720. The OCCA noted that the only evidence supporting the instruction was self-serving testimony by Mr. Bland that he killed Mr. Rains to prevent the latter from assaulting him, and that testimony was inconsistent with other evidence showing that Mr. Rains was shot in the back of the head, "suggest[ing] the victim had turned away from" Mr. Bland. Id. Mr. Bland filed a petition for rehearing before the OCCA arguing that the new prima facie evidence standard violated the principles in Beck as well as longstanding Oklahoma law. District Ct.App. Vol. I, at 464-67. The OCCA rejected this claim in its order denying rehearing, holding that the prima facie evidence standard "is not inconsistent" with Beck or Oklahoma case law. Id. at 37.
44
In his habeas petition before the district court, Mr. Bland argued both that the trial court's failure to provide an instruction on manslaughter by resisting a criminal attempt violated Beck, and that the OCCA's adoption of the new prima facie standard violated Mr. Bland's due process rights as a judicial ex post facto violation. R. Doc. 18, at 39, 82 (citing Devine v. N.M. Dep't of Corr., 866 F.2d 339, 342 (10th Cir.1989)). The district court did not consider Mr. Bland's claim under Beck, but it rejected Mr. Bland's ex post facto argument on the ground that it involved a matter of state law inappropriate for relief under § 2254. Mr. Bland renews both objections in his appeal to this Court.
45
In Beck, the Supreme Court held that "a sentence of death [may not] constitutionally be imposed . . . when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict." Beck, 447 U.S. at 627, 100 S.Ct. 2382 (internal quotation marks omitted). This rule is designed to eliminate the "distortion of the factfinding process" that occurs "when the jury is forced into an all-or-nothing choice between capital murder and innocence." Spaziano v. Florida, 468 U.S. 447, 455, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984). However, the Supreme Court has held that the rule is not implicated when the court instructs the jury on one lesser included offense supported by the evidence, even if instructions on other lesser included offenses might have been warranted. Schad v. Arizona, 501 U.S. 624, 647-48, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991); see Willingham v. Mullin, 296 F.3d 917, 923-24 (10th Cir. 2002).
46
The jury at Mr. Bland's trial was instructed on the lesser included offense of first-degree heat-of-passion manslaughter. Mr. Bland does not dispute that there was evidentiary support for heat-of-passion manslaughter. Accordingly, even if the trial court's failure to provide the additional manslaughter instruction violated state law, which is an issue we lack jurisdiction to consider under 28 U.S.C. § 2254(a), it did not violate Beck, "as the jury had the option of at least one lesser included offense." James v. Gibson, 211 F.3d 543, 555 (10th Cir.2000). Accordingly, the OCCA's decision was not contrary to, and did not involve an unreasonable application of, Beck.
47
We turn now to Mr. Bland's ex post facto argument. Article I, Section 10, Clause 1 of the United States Constitution prohibits states from passing any "ex post facto Law." An ex post facto law is any law that, among other things, "deprives one charged with crime of any defense available according to law at the time when the act was committed." Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 70 L.Ed. 216 (1925). Although "[t]he Ex Post Facto Clause is a limitation upon the powers of the Legislature and does not of its own force apply to the Judicial Branch," Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (internal citation omitted), the Supreme Court has applied this rule equally to state supreme courts through the Due Process Clause of the Fourteenth Amendment, see Bouie v. City of Columbia, 378 U.S. 347, 353-54, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) ("If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction."). In challenging the OCCA's adoption of a new standard for determining when a defendant is entitled to an instruction on a lesser included offense, Mr. Bland argues that the decision deprived him of a defense to which he would have been entitled under the law as it existed at the time of his offense.
48
Prior to its decision upholding Mr. Bland's conviction, the OCCA had enunciated somewhat different standards for determining whether evidence warranted an instruction on a lesser homicide offense. See Bland, 4 P.3d at 719. Initially, the standard was "whether there is any evidence that would tend to reduce the degree of the offense." Tarter v. State, 359 P.2d 596, 601 (Okla.Crim.App.1961) (original emphasis omitted, new emphasis added) (quoting Welborn v. State, 70 Okla. Crim. 97, 105 P.2d 187 (1940)). In later cases, the OCCA gradually tightened the standard, holding that the instruction was warranted when "there is evidence that tends to prove the lesser included offense," Rawlings v. State, 740 P.2d 153, 160 (Okla. Crim.App.1987) (emphasis added), whether "the evidence in any reasonable view suggests" the lesser offense, Boyd v. State, 839 P.2d 1363, 1367 (Okla.Crim.App.1992) (emphasis added), or whether "the evidence would permit the jury rationally to find . . . the lesser offense," Malone v. State, 876 P.2d 707, 711-12 (Okla.Crim. App.1994) (emphasis added). Finally, in Bland, 4 P.3d at 719-20, the OCCA "clear[ed] up any confusion caused by this prior case law" and announced that the trial judge must determine "whether prima facie evidence of the lesser offense has been presented to warrant the instruction." It defined prima facie evidence as "[e]vidence good and sufficient on its face," such that the evidence "is sufficient to establish a given fact . . . and which if not rebutted or contradicted, will remain sufficient . . . to sustain a judgment in favor of the issue which it supports." Id. (internal quotation marks omitted).
49
Mr. Bland claims that this new prima facie evidence standard is more stringent than the previous standards, and that it therefore deprived him of the opportunity to provide the jury with an additional non-capital offense on which to convict. We need not delve into this argument because, even under the earlier standard of Malone, 876 P.2d at 711-12, the evidence in the record did not support providing instruction on manslaughter by resisting a criminal attempt. The only evidence supporting such an instruction was Mr. Bland's own testimony that Mr. Rains assaulted him. That testimony was contradicted by the fact that Mr. Rains was shot in the back of the head, eliminating any rational inference that Mr. Bland was resisting assault at the time he shot Mr. Rains. It therefore did not matter whether the OCCA applied its earlier Malone standard or its new prima facie evidence standard; Mr. Bland was not entitled to the defense under either standard. The OCCA's rejection of Mr. Bland's ex post facto argument therefore was not contrary to, and did not involve an unreasonable application of, clearly established Supreme Court precedent.
50
C. Argument Diminishing the Jury's Sense of Responsibility
51
Mr. Bland next claims that comments made during the prosecution's closing argument at the sentencing phase of the trial diminished the jury's sense of responsibility for imposing the death penalty, in violation of Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). He points in particular to two arguments. During his closing argument, one prosecutor argued:
52
Their attorney tells you that we want you to kill him. Let's get one thing straight. I didn't ask to be here, you didn't ask to be here. If he gets the death penalty you don't kill him and I don't kill him. He's put himself in that position by what he's done and by what he's done in the past. He's forced me, he's forced [the other prosecutor], he's forced you and I because of what he did and who he is to decide under the law whether he qualifies for and deserves the death penalty. There is nothing sinister or shameful about that. The death penalty is perfectly legal and a [sic] appropriate punishment under the State laws, you have to decided [sic] whether this case and this Defendant merit the death penalty. If you so decide then you haven't killed anybody, you've simply followed the law that the Court set out for you.
53
Tr. Jury Trial, Day Seven, at 160. In a separate closing argument another prosecutor argued:
54
If the Defendant gets the death penalty it's not you or I that kill him. . . . He's the one that's forced you and I because of what he did and who he is to be in this position that we're in today. . . . Ladies and gentlemen, there is nothing shameful about that, about having to make that decision. The death penalty is a perfectly legal and appropriate sentence under the laws of the State of Oklahoma. And you must decide whether this case and this Defendant merits [sic] the death penalty. And if you so decide that then you are here in this position not because of anything that you or I have done, but because this Defendant chooses not to live by the rules of society and the laws of the State of Oklahoma. You will not have killed anyone. You will simply have followed the law that the Court has given you, nothing more and nothing less.
55
Id. at 192-94. The defense did not object to either argument at trial, but Mr. Bland contended on direct appeal that these arguments violated Caldwell.
56
Reviewing for plain error, the OCCA rejected this argument because "the prosecutor never intimated in any way that the ultimate responsibility for determining the proper sentence rested anywhere other [than] the jury." Bland, 4 P.3d at 727. The district court likewise denied Mr. Bland's request for habeas corpus relief on this claim, finding that the prosecutor's comments, viewed as a whole, did not mislead jurors or attempt to diminish their responsibility for a death sentence.
57
Under Caldwell, a death sentence is unconstitutional if the determination was "made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Caldwell, 472 U.S. at 328-29, 105 S.Ct. 2633. In reviewing a prosecutor's closing argument, however, we place isolated comments within the context of the entire closing argument to determine whether the jury has been misled about its role in rendering a death verdict. See Neill v. Gibson, 278 F.3d 1044, 1059 (10th Cir.2001). It is therefore significant that, in addition to the remarks quoted above, the first prosecutor also said: "You, the Jury, have the final say. You're the people on whether [sic] this unsuspecting world is kept safe from Jimmy Dale Bland. It's a sobering thought considering having to assess the death penalty." Id. at 164. The second prosecutor reminded the jury, "[y]ou decide what the price is for shooting a defenseless sixty two year old man in the back of the head," id. at 197, and clarified that "[y]ou have the final say on whether Tillman County and the world is [sic] kept safe from Jimmy Bland in the future," id. at 198.
58
Viewing the prosecutors' arguments in context, we do not believe that they violated Caldwell — let alone that the OCCA's conclusion was contrary to, or involved an unreasonable application of, Caldwell. At worst, the prosecutors' comments may have suggested that Mr. Bland was responsible for his own predicament. That was not the vice of Caldwell: in that case, the jury was induced to believe that some other governmental decisionmaker would ultimately decide, and bear the responsibility for deciding, whether the defendant should be executed. See Caldwell, 472 U.S. at 325-26, 105 S.Ct. 2633. Nothing in Caldwell suggests that there is anything wrong with a jury being reminded that capital punishment is ultimately a result of the defendant's own actions. See Coleman v. Brown, 802 F.2d 1227, 1240-41 (10th Cir.1986) (distinguishing between the argument in Caldwell, which suggested to the jury that "someone else now has control over the defendant's fate," and an argument that brings into focus "that defendant is responsible for his own plight"). Likewise, the prosecutor's comment that the jury, in rendering a death verdict, would "simply have followed the law" did not alleviate the jury's ultimate responsibility for rendering a death verdict. See Parks v. Brown, 860 F.2d 1545, 1549 (10th Cir.1988) (en banc) (finding that the prosecution's statement that "[s]o all you are doing is you're just following the law, and what the law says. . . . The law does all of these things, so it's not on your conscience" did not reduce the jury's sense of responsibility for rendering a death sentence), rev'd on other grounds sub nom., Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990).
59
That the prosecutors' remarks did not diminish the jury's sense of ultimate responsibility is especially evident when these statements are placed in the context of the entire sentencing phase. See id. at 1550 ("In evaluating the challenged statements, it is necessary to examine the context in which they were made."). The prosecution's opening statement emphasized to the jurors that they could "assess a penalty of death if you feel it is the appropriate punishment for what the Defendant did." Tr. Jury Trial, Day Seven, at 19. Defense counsel also argued that the decision to impose a death sentence fell to the jury and that jurors "can't ever say the law made [them] do or the Judge made [them] do it, or the prosecution made [them] do it." Id. at 181. Even the prosecutors' closing arguments had an underlying theme that the jury, and no one else, must make the decision to impose a death sentence. See id. at 164, 197-98. Finally, the instructions provided to the jury underscored the jury's responsibility in rendering a verdict: "It is now your duty to determine the penalty to be imposed for this offense." O.R. Vol. III, at 394. Given these constant reminders that the jury was solely responsible for the sentence imposed, we cannot find that the prosecutors' isolated remarks diminished the jurors' sense of ultimate responsibility for the sentencing decision. The OCCA decision therefore was not contrary to, and did not involve an unreasonable application of, Caldwell.
60
D. Mr. Bland's Absence from Individual Voir Dire
61
On the second day of jury selection, the trial court conducted a limited voir dire of thirty-two individual jurors in chambers. Bland, 4 P.3d at 712. Initially, questioning focused on five potential jurors who had expressed personal concerns about serving on the jury. Id. Of those five potential jurors, one was excused for cause because he was going through a divorce and did not think that he could concentrate on the case, and another was excused due to illness. Tr. Jury Trial, Day Two, at 4-7, 15. While in chambers, defense counsel expressed concern regarding potential jurors' awareness of pretrial publicity regarding Mr. Bland's previous conviction, which had aired on the local news the preceding evening. The court agreed to question the potential jurors individually, and inquired whether Mr. Bland's presence was required. Id. at 17. Defense counsel stated that Mr. Bland's presence was not required. Potential jurors were individually called into chambers and questioned as to whether they watched the news or heard about any news reports involving the case. See Bland, 4 P.3d at 712. Only one potential juror was excused because he learned, from an inaccurate news report, that Mr. Bland had a prior murder conviction. Id. at 712-13. The remaining potential jurors returned to the courtroom and voir dire was conducted in open court, with Mr. Bland present and able to exercise his peremptory challenges. Id. at 713.
62
Despite defense counsel's explicit statement to the trial court that Mr. Bland's presence was not required during the in-chambers questioning, Mr. Bland now contends that his absence violated his right to be present at all critical stages of the trial under Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Mr. Bland raised this argument on direct appeal to the OCCA, which rejected it on the ground that Mr. Bland's "absence from the brief, limited, individual voir dire was neither a due process nor statutory violation," and that even if there was error, "[a]ny error in conducting the individual voir dire in [his] absence was harmless beyond a reasonable doubt." Bland, 4 P.3d at 713. The district court, deferring to the OCCA's decision, likewise rejected Mr. Bland's challenge.
63
Although a defendant has a due process right "to be present . . . whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge," this right does not require that a defendant be present at all proceedings. Snyder, 291 U.S. at 105-06, 54 S.Ct. 330. Instead, the constitutional right to be present exists "to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Id. at 107-08, 54 S.Ct. 330. For example, a defendant need not be present during all communications between a judge and a juror. See United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (per curiam) (holding that a defendant's absence during an in camera discussion between the judge and a juror to ascertain bias did not violate the defendant's right to due process). When the defendant's "presence would be useless, or the benefit but a shadow," due process does not require the defendant's presence at a trial proceeding. Snyder, 291 U.S. at 106-07, 54 S.Ct. 330. In determining whether exclusion of a defendant from a proceeding violated due process, we consider the proceedings "in light of the whole record." Gagnon, 470 U.S. at 526-27, 105 S.Ct. 1482. Because in this individual voir dire the judge conducted all questioning himself and personally determined whether each juror should be excused for cause, Mr. Bland's presence could not have had any effect on the outcome, rendering his presence "useless" or a mere "shadow." See Snyder, 291 U.S. at 106-07, 54 S.Ct. 330; Gagnon, 470 U.S. at 527, 105 S.Ct. 1482.
64
Mr. Bland also contends that he was prejudiced because he was unable to observe potential jurors and challenge them "simply on the basis of sudden impressions or personal knowledge indispensable to the selection of an impartial jury." Bland, 4 P.3d at 712. This is not enough to establish a constitutional violation. See Gagnon, 470 U.S. at 527, 105 S.Ct. 1482; United States v. Santiago, 977 F.2d 517, 522-23 (10th Cir.1992) (finding that a defendant's absence from an ex parte discussion with a juror was not fundamentally unfair even though the defendant could not observe juror's potential bias). Considering Mr. Bland's absence from individual voir dire in light of the entire jury selection process, Mr. Bland had ample opportunity to observe jurors during voir dire and exercise peremptory challenges accordingly. His absence during these limited proceedings did not infringe on his right to due process, and the OCCA's decision was therefore not contrary to, and did not involve an unreasonable application of, clearly established federal law.
E. Comments on Post-Arrest Silence
65
Mr. Bland also challenges several prosecutorial comments on his post-arrest silence, which were introduced to impeach his story that he committed the murder in the heat of passion. During cross-examination the prosecutor engaged in the following dialogue with Mr. Bland:
66
Q: Do you remember when Agent Briggs came and arrested you in the, Mike Baker's house, don't you?
67
A: Yes, sir. I do.
68
Q: Why were you hiding in the closet?
69
A: Because they were trying, they were knocking on the door and they were saying it was a police officer and I was trying to hide.
70
Q: You didn't feel at that point that you needed to tell them how this all happened and explain it?
71
A: No, sir. I was still scared.
72
Q: You were still running, weren't you?
73
A: Yes, sir.
74
Q: Well, I'm sure that when Agent Briggs got you out of the closet the first thing you wanted to tell him was the circumstances, why this happened, that you didn't intend to kill Windle?
75
Tr. Jury Trial, Day Five, at 72. In closing argument, the prosecutor referred to Mr. Bland's silence on several occasions. He rhetorically inquired: Why didn't he call the Sheriff, why didn't he tell Trooper Fisher when he found him in Chandler[?] . . . Did he ever call the cops and tell them how Windle attacked him? . . . In Oklahoma City an O.S.B.I. agent finally shows us and does he say, gosh, Mr. Briggs, I had this real important story to tell you about how this guy attacked me. No. . . . Not for four hours he doesn't say anything. . . .
76
Tr. Jury Trial, Day Six, at 31-32. The prosecutor also used Mr. Bland's silence to label him a liar. See id. at 35-36 ("Now who do you think is lying? . . . It's the same person who's been lying all along, he lied to his mother, he lied to Agent Goss and who didn't tell anything to Agent Briggs or to any of the other police officers."); id. at 39 ("He was still lying when he spoke with Inspector Goss. Telling first nothing, then only a version that would help him make some self defense claim."); id. at 95-96 ("[I]f that's really what happened, if that's really his story then how do you explain his silence once Agent Briggs arrested him?").
77
Defense counsel objected to the prosecution's use of post-arrest silence in closing argument and requested a mistrial. Id. at 95-96. The trial court sustained the objection and admonished the jury to disregard the "the comments of counsel in regard to the Defendant's silence or non-silence prior to his beginning to make the voluntary statement to Agent Goss," but overruled counsel's request for a mistrial. Id. at 96-97. In his direct appeal to the OCCA, Mr. Bland argued that the trial court erred in failing to grant a mistrial. The OCCA denied relief, finding that the error was cured by the trial court's admonition to the jury. Bland, 4 P.3d at 730. The district court found that the OCCA's decision was not unreasonable due to the substantial evidence indicating guilt and the trial court's order sustaining the objection and issuing a curative instruction.
78
The State contends here, as it did in the district court, that the comments on post-arrest silence were not only harmless but also that they did not violate Mr. Bland's right to due process as defined by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Witnesses who testify in court, including criminal defendants, may generally "be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted." Jenkins v. Anderson, 447 U.S. 231, 239, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) (permitting prosecutorial comment on pre-arrest silence). One exception to this rule is "where the government ha[s] induced silence by implicitly assuring the defendant that his silence would not be used against him," such as after the issuance of Miranda warnings. Fletcher v. Weir, 455 U.S. 603, 606, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (per curiam); see also Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (holding that commenting on a defendant's post-arrest, post-Miranda silence violates due process). However, "[i]n the absence of the sort of affirmative assurances embodied in the Miranda warnings," the Supreme Court has held that it does not "violate[] due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand." Fletcher, 455 U.S. at 607, 102 S.Ct. 1309.
79
Most comments made by the prosecution at Mr. Bland's trial are analogous to those made in Fletcher. In Fletcher, the defendant testified on his own behalf that he did stab the victim, but claimed (for the first time) that he acted in self-defense and that the stabbing was accidental. Id. at 603-04, 102 S.Ct. 1309. On cross-examination, the prosecutor asked why he had failed to assert his exculpatory explanation upon arrest. Id. at 607, 102 S.Ct. 1309. The Court found no due process error in the prosecutor's questions because the prosecution used only post-arrest, pre-Miranda silence. Here, the prosecution repeatedly referred to Mr. Bland's pre-arrest and post-arrest, pre-Miranda silence by asking Mr. Bland why he did not tell his mother, Trooper Fisher, or arresting officer Agent Briggs about his confrontation with Mr. Rains. Under Fletcher, those statements, and references to them in closing argument, did not violate Mr. Bland's right to due process.
80
Only one comment made by the prosecution during closing argument referred to Mr. Bland's post-Miranda silence, in violation of Doyle, 426 U.S. at 618, 96 S.Ct. 2240. In an isolated remark, the prosecutor said, "He was still lying when he spoke with Inspector Goss. Telling first nothing, then only a version that would help him make some self defense claim." Tr. Jury Trial, Day Six, at 39. The OCCA found this error harmless. Bland, 4 P.3d at 730.
81
When reviewing a state court's determination of harmlessness, we ask whether the challenged comments had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 638, 113 S.Ct. 1710 (internal quotation marks omitted). We consider five factors in assessing harmlessness under Brecht: "(1) the prosecutor's use of the post-arrest silence; (2) whether the defense or prosecution pursued this line of questioning; (3) the amount of evidence indicating guilt; (4) the frequency and force of the reference; and (5) if the defense requested a mistrial or curative instructions." Sallahdin v. Gibson, 275 F.3d 1211, 1230-31 (10th Cir.2002). Of these, the first and third factors are the most important. Id. at 1231.
82
The prosecutor's comment on Mr. Bland's post-Miranda silence in his conversation with Inspector Goss was made not as an argument to establish Mr. Bland's guilt, but to impeach Mr. Bland's story that he killed Mr. Rains in the heat of passion after an argument. Such use was consistent with the prosecution's attempt to discredit Mr. Bland's story based on the lies he told to his mother and his repeated failure to tell the police about the homicide, even before his arrest. Furthermore, excluding commentary on Mr. Bland's post-Miranda silence, there was substantial evidence establishing Mr. Bland's guilt on the first-degree malice aforethought murder charge. Mr. Bland shot Mr. Rains in the back of the head, suggesting that Mr. Rains had turned away from Mr. Bland at the time Mr. Bland fired. Mr. Bland attempted to cover up the crime by meticulously cleaning the crime scene and hiding Mr. Rains's body in a creek, covered with logs, so that no one would find it. He lied to his mother about going to work with Mr. Rains the next day so that she would not suspect anything had happened to Mr. Rains. The single, isolated reference to Mr. Bland's post-Miranda silence could not have affected the jury's verdict, considering the substantial evidence supporting the verdict and the trial court's curative instruction directing the jury to disregard the prosecutor's comments on Mr. Bland's silence. Thus, we agree with the OCCA that any error was harmless.
F. Claims of Prosecutorial Misconduct
83
Mr. Bland next argues that several of the prosecutors' remarks deprived him of a fair trial at both stages of his trial. In addition to the prosecution's role in the errors alleged above, he raises six additional claims of prosecutorial misconduct: (1) improperly arguing that he is a liar; (2) demeaning and ridiculing him; (3) demeaning his mitigating evidence; (4) telling the jury it had a civic and moral duty to convict and sentence him to death; (5) urging a death sentence based on sympathy for the victim; and (6) arguing facts not in evidence. Mr. Bland contends not only that each instance of misconduct is sufficient to violate his right to due process, but that even if each comment is found to be harmless, the cumulative effect of the errors warrants relief.
84
The OCCA rejected each of Mr. Bland's claims of prosecutorial misconduct on the merits. The court found that it was not improper for the prosecution to comment on the veracity of Mr. Bland's testimony by calling him a liar, and that the prosecution did not improperly demean the mitigating evidence, suggest that the jury's only moral course was to return a conviction, or evoke sympathy for the victim. Bland, 4 P.3d at 727-28. Although the OCCA did note that the prosecution inappropriately compared the plight of the victim to Mr. Bland's life in prison and that the prosecutorial argument ridiculing Mr. Bland "tested the bounds of proper argument," it deemed both errors harmless based on the substantial evidence supporting the jury's verdict. Id. at 728. Likewise, the OCCA held that even if the prosecution did erroneously argue facts not in evidence, "[a]ny misstatement could not have affected the outcome of the trial." Id.
85
In rejecting Mr. Bland's claim of prosecutorial misconduct, the OCCA applied the standard for adjudicating allegations of prosecutorial misconduct set forth in its prior decisions. Id. at 729 (citing Duckett v. State, 919 P.2d 7, 19 (Okla.Crim.App. 1995), for the proposition that "[a]llegations of prosecutorial misconduct do not warrant reversal of a conviction unless the cumulative effect was such [as] to deprive the defendant of a fair trial") (internal quotation marks omitted). Because this standard is the same as that under federal law, see Patton v. Mullin, 425 F.3d 788, 811 (10th Cir.2005), we apply the deferential AEDPA standard of review, and examine whether the OCCA's decision was an unreasonable application of the standard.
86
Where prosecutorial misconduct does not implicate a specific constitutional right, improper remarks require reversal of a state conviction only if the remarks "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly, 416 U.S. at 643, 94 S.Ct. 1868. To determine whether a trial is rendered fundamentally unfair, we examine the entire proceeding, "including the strength of the evidence against the petitioner, both as to guilt at that stage of the trial and as to moral culpability at the sentencing phase" as well as "[a]ny cautionary steps-such as instructions to the jury-offered by the court to counteract improper remarks." Le, 311 F.3d at 1013. "[I]t is not enough that the prosecutors' remarks were undesirable or even universally condemned." Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (internal quotation marks omitted). The ultimate question is whether the jury was able to fairly judge the evidence in light of the prosecutors' conduct. Having already considered those claims of prosecutorial misconduct that infringed on a specific constitutional right and were not subject to the fundamental fairness test, see Paxton v. Ward, 199 F.3d 1197, 1217 (10th Cir.1999), we now consider whether the other allegations of prosecutorial misconduct, individually or cumulatively, deprived Mr. Bland of a fair trial.
1. Characterizing Mr. Bland as a Liar
87
Mr. Bland argues that it was inappropriate for the prosecution during closing argument in the guilt phase of trial to refer to him as a liar. Although labeling a defendant a "liar" is often "unnecessary" and "unwarranted," United States v. Nichols, 21 F.3d 1016, 1019 (10th Cir.1994), we have held that referring to testimony as a lie is not per se prosecutorial misconduct, United States v. Robinson, 978 F.2d 1554, 1567 (10th Cir.1992). On the contrary, it is permissible for the prosecution to comment on the veracity of a defendant's story. United States v. Hernandez-Muniz, 170 F.3d 1007, 1012 (10th Cir.1999). We have therefore rejected claims of prosecutorial misconduct where the prosecution referred to a defendant as a liar on account of irreconcilable discrepancies between the defendant's testimony and other evidence in the case. See id.; Nichols, 21 F.3d at 1019.
88
Here, the prosecution did not derive its characterization of Mr. Bland as a liar through inferences, but instead reminded the jury that Mr. Bland admitted during cross-examination that he lied to his mother and the authorities before putting forth the story he told in court. For example, in response to Mr. Bland's testimony that he did not take Mr. Rains's billfold, the prosecution argued:
89
Simmons found him with a brown billfold with the money in it. Now who do you think is lying? I think you know. It's the same person who's been lying all along, he lied to his mother, he lied to Agent Goss and who didn't tell anything to Agent Briggs or to any of the other police officers. He's admitted he's lied. He got up here and told you he's lied. And now he's still lying about the billfold.
90
Tr. Jury Trial, Day Six, at 35-36. The prosecution also challenged the credibility of Mr. Bland's testimony, arguing that Mr. Bland has "got a motive or reason to lie" to spare himself the death penalty. Id. at 93. These references to Mr. Bland's veracity, even if excessive, were permissible in light of Mr. Bland's own testimony. The OCCA's rejection of this claim of prosecutorial misconduct therefore was not an unreasonable application of clearly established federal law.
2. Demeaning and Ridiculing Mr. Bland
91
During closing argument at both phases of trial, the prosecution referred to Mr. Bland as a "sniffling . . . coward[]," a "heartless and vicious killer," and a "violent and evil man." Tr. Jury Trial Day Six, at 38; Tr. Jury Trial, Day Seven, at 165, 199. These pejoratives were unnecessary and inappropriate. See Le, 311 F.3d at 1021 ("Personal attacks by a prosecutor are improper."). Nonetheless, in light of the overwhelming evidence supporting both aggravating factors and the relative dearth of evidence on mitigating circumstances, we agree with the OCCA that the comments did not deprive Mr. Bland of a fair trial.
92
In his closing argument, Mr. Bland conceded one aggravator — that he was previously convicted of a violent felony, namely kidnaping and first-degree manslaughter. Tr. Jury Trial, Day Seven, at 179. Mr. Bland has spent all but one year of his adult life in prison, and during that time he perpetrated two homicides. There was evidence that Mr. Bland abuses drugs and alcohol, and his expert psychiatrist, Dr. Sally Church, testified that substance abuse contributes to his violent tendencies. Id. at 137. Although Mr. Bland presented testimony that he was never violent or threatening during his previous twenty years in jail, the prosecution revealed on cross-examination that the prison guard and prison counselor testifying were not very familiar with Mr. Bland's conduct in prison. Id. at 86, 93. Furthermore, there was evidence that Mr. Bland abused cocaine while in prison, id. at 93, which, as noted, contributes to his violent tendencies. In contrast, Mr. Bland's mitigating evidence was weak. Although the defense attempted to establish that Mr. Bland would be a good, non-violent prisoner, and sought to attribute his violence to unfortunate childhood events, there was little positive testimony regarding Mr. Bland's character because he had been out of prison for such a short period of time when he killed Mr. Bland. The OCCA's decision therefore did not unreasonably apply clearly established federal law.
3. Demeaning the Mitigating Evidence
93
Mr. Bland next claims that the prosecution improperly demeaned his mitigating evidence by suggesting that the jury ignore mitigating evidence and by recharacterizing the mitigating evidence as evidence in aggravation. Referring to various mitigating evidence, the prosecutor rhetorically asked, "Do we as a society or as a system of justice let those things act a [sic] shield from accepting the full responsibility for his actions[?]" Tr. Jury Trial, Day Seven, at 163. The prosecutor also referred to Mr. Bland's mitigating evidence as "excuses," and suggested that the difficulties in Mr. Bland's life, about which an expert testified, were the "kind of things that make criminals out of ordinary citizens." Id. at 187.
94
As long as the jury is properly instructed on the use of mitigating evidence, the prosecution is free to comment on the weight the jury should accord to it. See Fox v. Ward, 200 F.3d 1286, 1299 (10th Cir.2000). Mr. Bland does not contest the propriety of the mitigating evidence instruction, which provided, in pertinent part, that "[t]he determination of what circumstances are mitigating is for you to resolve under the facts and circumstances of this case." O.R. Vol. III, at 401. The prosecutors, while critical of Mr. Bland's mitigating evidence, never told the jury it could not consider Mr. Bland's mitigating evidence. The challenged prosecutorial argument was consistent with the jury instructions and bore only on the weight of the evidence.
95
Nor was it misconduct for the prosecution to suggest that some mitigating evidence helped to establish that Mr. Bland would pose a continuing threat to society. Evidence can be both mitigating and aggravating, and the prosecution is free to explain to the jury how mitigating evidence tends to prove the existence of an aggravating factor. See Penry v. Lynaugh, 492 U.S. 302, 324, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), overruled on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); Mann v. Scott, 41 F.3d 968, 979-80 (5th Cir.1994). The prosecutor's remarks on Mr. Bland's mitigating evidence therefore did not constitute misconduct that deprived Mr. Bland of a fair trial.
4. Appeal to Civic and Moral Duty
96
Mr. Bland next challenges the prosecutor's argument about the jury's civic duty. He claims that in the guilt phase, the prosecutor argued in closing that the jury had a civic duty to convict Mr. Bland. Our review of the record, and especially the portion of the transcript to which Mr. Bland refers, does not indicate any such argument in the first phase of trial. However, in the second phase, the prosecutor argued:
97
If you give him anything other than the death penalty you don't know what will happen to him or what opportunities he will get to hurt other people. You have one sentence option available to you that you will know, you've got one option and one option only that guarantees that he's not going to hurt anybody else or kill anybody else. You, the Jury, have the final say. You're the people on whether [sic] this unsuspecting world is kept safe from Jimmy Dale Bland. . . . We talked earlier about citizenship in our great country and how sometimes it comes with a price. There are times it's part of our civic and moral duties of citizenship that we're called upon to face unpleasantly, unpleasant and difficult tasks. You're [sic] got one of those tasks facing you today.
98
Tr. Jury Trial, Day Seven, at 164; see also id. at 198-99. As we have stated numerous times, "[i]t is improper for a prosecutor to suggest that a jury has a civic duty to convict." Thornburg v. Mullin, 422 F.3d 1113, 1134 (10th Cir.2005); see also Malicoat v. Mullin, 426 F.3d 1241, 1256 (10th Cir.2005); Spears v. Mullin, 343 F.3d 1215, 1247 (10th Cir.2003); Le, 311 F.3d at 1022 (explaining that such comments are "`offensive to the dignity and good order with which all proceedings in court should be conducted'" (quoting Viereck v. United States, 318 U.S. 236, 248, 63 S.Ct. 561, 87 L.Ed. 734 (1943))). That is not what the prosecutor did in this case. The civic duty to which the prosecutor referred was not the duty to convict, or to return a death sentence, but rather the duty to decide whether to sentence Mr. Bland to death. While the prosecutor's argument may have come close to the line, we do not believe he crossed it.
5. Sympathy for the Victim
99
Mr. Bland argues that the prosecution's closing arguments improperly evoked sympathy for the victim, Mr. Rains, and that the prosecution improperly contrasted Mr. Rains's death with Mr. Bland's life in prison. As to the more general appeals for sympathy, Mr. Bland points to one comment at each phase of the trial. During the first phase, the prosecution said:
100
Ladies and gentlemen, on November the 14th, 1996, Jimmy Bland wrote the ending to the story of Windle Rains' life. And today you have the chance to write the end of the story of Windle's death. Does Windle's murderer go free? Does he get off with a lesser charge because no one's here to speak for Windle as to what happened? You have the power to decide how the story of Windle's life and death will end.
101
Tr. Jury Trial, Day Six, at 133. At the sentencing phase, the prosecution "recommend[ed] for the murder of Windle Rains that [the jury] sentence this Defendant to death by lethal injection" because Mr. Bland would be "getting no more or less than he deserves for what he did to Windle." Tr. Jury Trial, Day Seven, at 201. We cannot say that these statements were intended to evoke sympathy for the victim, as they were statements based on the jury's obligation to consider the evidence and render a verdict.
102
The prosecution's comparison of Mr. Bland's life in prison with Mr. Rains's death, however, was inappropriate. We regret to observe that in death-penalty case after death-penalty case, Oklahoma prosecutors have made speeches to the jury making light of the penalty of life in prison to demonstrate that the only proper punishment for a defendant's crime was death. In this case, the terminology of choice was:
103
Maybe the Defendant will be in prison, maybe he will be behind that concrete and those jail bars with his T.V. and his cable and good food. But one thing . . . is for sure, Windle Rains won't be here and his family won't be able to be with him, they won't be able to share holidays with him. And Doyle Rains won't get that final visit with him that he hoped for.
104
Id. at 200. As we have said many times, it is prosecutorial misconduct for the prosecution to compare the plight of the victim with the life of the defendant in prison. See, e.g., Duckett v. Mullin, 306 F.3d 982, 992 (10th Cir.2002); Le, 311 F.3d at 1015-16. "It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion," Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality opinion), and comparisons such as those made here call into question the integrity of the criminal justice system.
105
Although we emphatically do not condone the prosecution's remarks, we must uphold the sentencing determination if we cannot conclude that the comments deprived Mr. Bland of a fundamentally fair trial. Le, 311 F.3d at 1016. There was substantial evidence demonstrating the existence of both aggravating factors and relatively little evidence establishing mitigating circumstances. Prosecutors should be aware that arguments of this sort, while unnecessary to obtain a proper verdict, create grave risk of upsetting an otherwise unobjectionable verdict on appeal or on collateral review. It is time to stop. Unable to conclude that the comments affected the outcome of the trial, however, we find that the OCCA's judgment finding the error harmless was not an unreasonable application of clearly established federal law.
6. Arguing Facts not in Evidence
106
Finally, Mr. Bland claims that the prosecution argued facts not in evidence during both phases of trial. During the guilt phase, the prosecution argued that a pair of eyeglasses at the scene of the crime belonged to Mr. Rains. Tr. Jury Trial, Day Six, at 22. We perceive no error. Although no direct testimony established that the eyeglasses belonged to Mr. Rains, his ownership of the eyeglasses was a permissible inference to draw from the evidence. As this Court has held, "[a] prosecutor may comment on and draw reasonable inferences from evidence presented at trial." Thornburg, 422 F.3d at 1131. The photograph of the crime scene depicted eyeglasses lying near the creek where Mr. Bland disposed of Mr. Rains's body, and Sheriff Hanes testified that the glasses were found "just a little ways from the pile of wood" in which Mr. Rains's body was found. Tr. Jury Trial, Day Three, at 87, Ex. 2B. Considering the proximity of the eyeglasses to Mr. Rains's body, it was not unreasonable for the OCCA to conclude that the evidence permitted a reasonable inference that the glasses belonged to the victim.
107
Even if the prosecution's argument about the eyeglasses were not a reasonable inference from the evidence, this misstatement did not deprive Mr. Bland of a fair trial. The presence of the glasses did not necessarily discredit Mr. Bland's story that he and Mr. Rains struggled. It was entirely possible for the jury to believe that Mr. Bland and Mr. Rains struggled, but that Mr. Rains's glasses did not fall off until Mr. Bland took Mr. Rains's body to the creek. Such a theory is consistent both with the evidence and with Mr. Bland's testimony. Thus, even if the prosecution erroneously attributed the glasses to Mr. Rains, the error did not render the trial fundamentally unfair.
108
At the sentencing phase, the prosecution argued that Mr. Bland killed Mr. Rains during a robbery. Tr. Jury Trial, Day Seven, at 155. Mr. Bland contends that this line of argument was impermissible, as the jury did not reach a verdict as to felony murder. Because the jury did not convict Mr. Bland on the felony-murder charge, which was predicated on the theory that Mr. Bland killed Mr. Rains in the course of a robbery, it was inappropriate for the prosecution to argue during the sentencing phase that Mr. Bland killed Mr. Rains during a robbery. However, the error did not render Mr. Bland's sentencing fundamentally unfair because the nature of the murder (felony murder or malice-aforethought murder) did not affect his eligibility for the death penalty, and whether Mr. Bland robbed Mr. Rains during or after the murder did not affect either the aggravating factors or mitigating circumstances.
7. Cumulative Error
109
We now address whether the above errors, considered cumulatively, deprived Mr. Bland of a fair trial at either the guilt or sentencing phase. "A cumulative error analysis aggregates all the errors that individually might be harmless, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless." Thornburg, 422 F.3d at 1137 (internal quotation marks omitted). In death-penalty cases, we review whether the "improper comments as a whole so infected the trial with unfairness as to make the resulting conviction a denial of due process, or rendered the sentencing fundamentally unfair in light of the heightened degree of reliability demanded in a capital case." Id. (internal citation and quotation marks omitted). Because the OCCA concluded that the cumulative errors did not deprive Mr. Bland of a fair trial, we must defer to its ruling unless it constitutes an unreasonable application of the cumulative-error doctrine.
110
Three errors affected the guilt phase of the trial: (1) argument that the jury should consider manslaughter only after it rejected first-degree murder; (2) a comment on Mr. Bland's post-Miranda silence; and (3) ridiculing Mr. Bland as a "sniffling . . . coward[]." The evidence establishing Mr. Bland's guilt on the first-degree malice-aforethought murder charge was quite strong. Mr. Bland had previously told Ms. Lord that he wanted to kill Mr. Bland. He admitted to hiding his shotgun in his coveralls so Mr. Rains would not see the weapon, and to shooting Mr. Rains in the back of the head. He attempted to cover up the murder by cleaning the garage and discarding Mr. Rains' body in a remote creek and covering the body with logs. He then lied to his mother so that she would not know that anything had happened to Mr. Rains. Excluding all impermissible prosecutorial comments and considering any curative instructions, it was not unreasonable for the OCCA to conclude that the jury had substantial evidence to convict Mr. Bland of first-degree murder, and that the errors did not result in a denial of due process.
111
There were two instances of prosecutorial misconduct at the sentencing phase: (1) ridiculing Mr. Bland as a "violent and evil man," and a "heartless and vicious killer"; and (2) comparing Mr. Bland's life in prison to Mr. Rains's death. For reasons already explained, however, the evidence supporting both aggravating factors was overwhelming and the mitigating evidence weak. Having reviewed the entire record, we conclude that the OCCA reasonably applied clearly established federal law in determining that the sentence was not the consequence of any prosecutorial misconduct.
G. Ineffective Assistance of Counsel
112
Last, Mr. Bland has raised three grounds for ineffective assistance of trial counsel: (1) failing to request an instruction on voluntary intoxication; (2) failing to adequately investigate, prepare, and use available evidence during both stages of trial; and (3) failing to lodge appropriate objections for the claims discussed above. Mr. Bland also requests an evidentiary hearing to further develop his claims of ineffective assistance of counsel.
113
Mr. Bland raised all of these claims on direct appeal. Applying the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the OCCA rejected his voluntary-intoxication-instruction claim, finding that Mr. Bland was not prejudiced by counsel's failure to request the instruction because the instruction was not supported by the evidence. Bland, 4 P.3d at 731. The OCCA deemed Mr. Bland's failure-to-investigate claim waived because the arguments relied on affidavits that were not part of the appellate record. Id. Nonetheless, the OCCA considered the claim in light of Mr. Bland's request for an evidentiary hearing. Id. at 732. Examining the affidavits that would be proffered at such a hearing, the court rejected the claims. Id. at 732-34. The OCCA also rejected Mr. Bland's claim arising from counsel's failure to object to prosecutorial misconduct, finding no reasonable probability that the result of the trial would have been different had counsel objected. Id. at 732. The district court likewise rejected Mr. Bland's claims, "confident that the jury would have convicted Petitioner of first-degree murder and recommended a death sentence even if trial counsel had employed all of the trial tactics and had used all of the information that Petitioner's current counsel suggests he should have." R. Doc. 61, at 26.
114
Claims of ineffective assistance of counsel present mixed questions of law and fact. Wallace v. Ward, 191 F.3d 1235, 1247 (10th Cir.1999). To prevail on such a claim, a petitioner "must prove [1] that counsel's performance was constitutionally deficient and [2] that counsel's deficient performance prejudiced the defense, depriving the petitioner of a fair trial with a reliable result." Boyd v. Ward, 179 F.3d 904, 913 (10th Cir.1999) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). It is not enough that counsel's decisions were wrong in hindsight; they must fall below "an objective standard of reasonableness," evaluated from counsel's perspective at the time the decision was made. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. For that reason, we are "highly deferential" to counsel's decisions, and a petitioner "must overcome the presumption that counsel's conduct was not constitutionally defective." Wallace, 191 F.3d at 1247.
115
We need not consider whether counsel's performance was deficient, however, if the petitioner was not prejudiced by the alleged deficiency. See Allen v. Mullin, 368 F.3d 1220, 1245 (10th Cir. 2004) (proceeding directly to prejudice analysis). To establish prejudice, a petitioner must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. For challenges to counsel's conduct during the sentencing phase, a petitioner must show "a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id. at 695.
116
1. Failure to Request a Voluntary Intoxication Instruction
117
In considering this claim of ineffective assistance, the OCCA found that Mr. Bland would not have been entitled to such an instruction and therefore was not prejudiced. Bland, 4 P.3d at 731. Oklahoma law provides for an instruction on voluntary intoxication only when a defendant presents sufficient prima facie evidence that he meets the legal criteria for the defense of voluntary intoxication. Jackson v. State, 964 P.2d 875, 892 (Okla. Crim.App.1998). To satisfy the legal criteria, a defendant must actually be intoxicated and "be so utterly intoxicated, that his mental powers are overcome, rendering it impossible for a defendant to form the specific criminal intent or special mental element of the crime." Id. The OCCA has held that it belies a defense of voluntary intoxication for a defendant to have been sufficiently aware so as to be able to testify about events surrounding a murder. See id.
118
The OCCA's decision that Mr. Bland was not entitled to a voluntary intoxication instruction was not unreasonable. Although Ms. Lord and Mr. Bland both testified that he consumed drugs before the murder, Mr. Bland's ability to recall, in detail, the events surrounding the murder — his argument with Mr. Rains, placing the gun in his coveralls, kicking Mr. Rains, cleaning the garage, and hiding Mr. Rains's body — defeats his voluntary intoxication defense under Oklahoma law. Counsel therefore could not have been ineffective in failing to request an instruction to which Mr. Bland was not entitled based on the evidence, and the OCCA therefore did not unreasonably apply clearly established federal law.
119
2. Failure to Investigate, Prepare, and Use Available Evidence
120
Although the OCCA found this claim waived due to lack of evidentiary support, it considered the claim based on the evidence that Mr. Bland would provide at an evidentiary hearing. For simplicity, we will consider the claims in light of the evidence that Mr. Bland would present if we were to order an evidentiary hearing. Mr. Bland challenges three specific items that trial counsel allegedly failed to investigate: his own intoxication, Ms. Lord's credibility, and the circumstances of his prior conviction. He also contends that counsel failed to properly use evidence available from Dr. Church to emphasize the extent of Mr. Bland's mental and substance-abuse problems.
121
As to the level of his intoxication, Mr. Bland presents affidavits from four different people who refer to his drug use immediately before and after the murder. Bland, 4 P.3d at 733. The OCCA found that counsel was not ineffective for failing to present this evidence of intoxication because trial counsel presented substantial evidence of Mr. Bland's drug use on the day of the murder and, in any case, Mr. Bland's detailed recollection of the murder precluded an instruction on voluntary intoxication. Id. This conclusion was not an unreasonable application of Supreme Court precedent. As discussed above, Mr. Bland was not entitled to an instruction on voluntary intoxication. He therefore suffered no prejudice by counsel's failure to present additional, redundant evidence supporting Mr. Bland's unrefuted testimony that he consumed drugs immediately before and after the murder.
122
To challenge Ms. Lord's credibility, Mr. Bland claims that his trial counsel should have asked the custodian of records at the Oklahoma County Jail to testify that Ms. Lord was incarcerated for seventy-five days, beginning on November 19, 1996. Id. The OCCA held that counsel's failure to call this witness did not prejudice Mr. Bland because trial counsel sufficiently called Ms. Lord's credibility into question. Id. At trial, Ms. Lord herself admitted that she had been incarcerated before trial and was currently incarcerated. Defense counsel also called two witnesses to challenge Ms. Lord's truthfulness. A child welfare specialist opined that Ms. Lord is not "a truthful person." Tr. Jury Trial, Day Five, at 8. Ms. Lord's sister testified that Ms. Lord has "been untruthful . . . on numerous occasions" and that she cannot "rely on her to tell the truth all the time." Id. at 18. In light of the ample evidence trial counsel presented to challenge Ms. Lord's credibility, the OCCA's decision that counsel's failure to present additional impeachment evidence did not prejudice Mr. Bland and did not involve an unreasonable application of clearly established federal law.
123
Directing the court to newspaper articles, Mr. Bland next argues that had counsel fully investigated his prior conviction, counsel would have discovered that Mr. Bland fired his gun at pursuing officers only after the officers shot at him. Bland, 4 P.3d at 733-34. The OCCA found that counsel was not deficient and that "[a]ny additional evidence counsel might have presented . . . would not have been found sufficiently mitigating by a reasonable juror to outweigh the evidence in aggravation." Id. at 734. The evidence introduced at trial concerning Mr. Bland's prior manslaughter conviction indicated that the police fired first and that Mr. Bland had been drinking before the crime. Considering that the jury was informed that the police fired first, it was not unreasonable for the OCCA to conclude that counsel's failure to conduct further investigation was not deficient performance.
124
Nor has Mr. Bland established that counsel was deficient for failing to question Dr. Church in such a way as to reveal the full extent of Mr. Bland's mental and substance-abuse problems. See id. at 732. Dr. Church's testimony was well developed. She testified that Mr. Bland had "low average intelligence" and "difficulty . . . understanding just the usual social standards of society" and "making judgments about what is appropriate and what is not appropriate." Tr. Jury Trial, Day Seven, at 117. She explained that his long history of abusing substances makes him a "chemically dependent person," meaning that he would have even less abilities to operate under stress if he were using drugs. Id. at 122. She talked about the childhood trauma he endured when his father suffered a brain injury, and testified that this likely manifested itself in post-traumatic stress disorder. Id. at 122-24. When asked whether he was likely to be a violent prisoner, she emphasized that Mr. Bland "knows right from wrong," and that "he would be a good prisoner" in a "structured, supervised situation." Id. at 129-30. Counsel thoroughly explored Mr. Bland's background, mental status, and chemical dependency with Dr. Church. The OCCA's finding that counsel was not deficient therefore did not involve an unreasonable application of clearly established federal law.
3. Failure to Object
125
Mr. Bland also claims that counsel was ineffective by failing to object to the prosecutorial misconduct and other sources of error discussed above. The OCCA rejected this claim, finding that timely objections would not have affected the outcome of the trial. Bland, 4 P.3d at 732. Some of the alleged prosecutorial misconduct did not constitute error for which an objection would have been sustained. This is true of the purported Caldwell violation, the prosecution's characterization of Mr. Bland as a liar, and the allegations that the prosecution demeaned his mitigating evidence, told the jury it had a moral and civic duty to convict, evoked sympathy for the victim, and argued facts not in evidence. Counsel in fact lodged objections to various improper statements, including the prosecution's only comment on Mr. Bland's post-arrest, post-Miranda silence, Tr. Jury Trial, Day Six, at 96; Bland, 4 P.3d at 730 (noting that the trial court sustained the objection), the prosecution's comparison of Mr. Bland's life in prison with Mr. Rains's death, Tr. Jury Trial, Day Seven, at 200, and the prosecution's argument ridiculing Mr. Bland as a coward, Tr. Jury Trial, Day Six, at 38. Because Mr. Bland did not suffer prejudice from the remaining errors, namely the prosecutor's inaccurate characterization of the jury instructions and calling Mr. Bland an "evil man" and a "heartless and vicious killer," the OCCA's decision that Mr. Bland was not prejudiced by counsel's failure to object was not contrary to, and did not involve an unreasonable application of, clearly established federal law.
4. Request for Evidentiary Hearing
126
Under AEDPA, a court cannot hold an evidentiary hearing unless (1) the claim relies on a new rule of constitutional law or a factual predicate that could not have been previously discovered, and (2) the facts underlying the claim are sufficient to establish by clear and convincing evidence that but for the constitutional error, no reasonable jury would have found the petitioner guilty. 28 U.S.C. § 2254(e)(2). However, the pre-AEDPA standard applies when "a habeas petitioner has diligently sought to develop the factual basis underlying his habeas petition, but a state court has prevented him from doing so." Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir.1998). By seeking an evidentiary hearing in state court, Mr. Bland diligently sought to develop the factual basis of his habeas petition. We therefore apply pre-AEDPA standards, which entitle him to an evidentiary hearing if "his allegations, if true and if not contravened by the existing factual record, would entitle him to habeas relief." Id. Having considered the evidence Mr. Bland would introduce at an evidentiary hearing to support his claims of ineffective assistance of counsel and having found no meritorious ineffective-assistance-of-counsel claim, we find that he has not established an entitlement to habeas relief. To the contrary, our review of the record indicates that Mr. Bland's trial counsel were diligent and thorough in their representation and we commend them for their work in this case. The district court therefore did not err in denying his request for an evidentiary hearing.
IV. Conclusion
127
For the reasons set forth above, we AFFIRM the district court's decision denying Mr. Bland's 28 U.S.C. § 2254 petition for a writ of habeas corpus.
Notes:
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Marty Sirmons is substituted for Mike Mullin as Warden of the Oklahoma State Penitentiary
| {
"pile_set_name": "FreeLaw"
} |
364 F.2d 674
124 U.S.App.D.C. 281
MIDWEST TELEVISION, INC., Petitioner,v.FEDERAL COMMUNICATIONS COMMISSION and United States ofAmerica, Respondents.MIDWEST VIDEO CORPORATION and Black Hills Video Corporation,Petitioners,v.FEDERAL COMMUNICATIONS COMMISSION and United States ofAmerica, Respondents.
Nos. 19975, 20021, 20264.
United States Court of Appeals District of Columbia Circuit.
July 12, 1966.
Messrs. Ernest W. Jennes, John E. Vanderstar and William Malone, Washington, D.C., were on the pleadings for appellants in Nos. 19,975 and 20,021.
Mr. Henry Geller Gen. Counsel, F.C.C., with whom Mr. John H. Conlin, Associate Gen. Counsel and Mrs. Lenore G. Ehrig, Atty., F.C.C., and Howard E. Shapiro, Atty., Dept. of Justice, were on the pleadings, for appellees.
Mr. Harry M. Plotkin, Washington, D.C., was on the pleadings for intervenors in Nos. 19,975 and 20,021 and also entered an appearance for appellants in No. 20,264.
Before BAZELON, Chief Judge, BASTIAN, Senior Circuit Judge, and WRIGHT, Circuit Judge.
PER CURIAM:
1
Black Hills Video and Midwest Video seek to intervene in Nos. 19,975 and 20,021 for the limited purpose of moving to have the record and proceedings in these cases transferred to the Eighth Circuit. We grant the motion to intervene and order the cases transferred.
2
These cases involved the validity of orders of the Federal Communications Commission concerning CATV systems. The FCC released its First Report and Order in this area on April 23, 1965, prescribing detailed rules and regulations relating to CATV systems which obtain their service by means of microwave assistance. In particular, such systems were required to carry the signals of local stations and not to duplicate the local stations' rpograms within a certain time period. Other CATV systems, i.e., those not utilizing microwave systems, were left unregulated. Black Hills and Midwest Video filed petitions for review of this order in the Eighth Circuit; the case has been briefed and argued there and is presently under submission.
3
On the same date that the First Order and Opinion issued, April 23, 1965, the FCC filed a Notice of Inquiry and Notice of Proposed Rule Making, stating that the hearings just completed had demonstrated the need for a general study of CATV regulation beyond that underlying the First Order.
4
The Commission issued a Public Notice on February 15, 1966, that it had reached agreement on a broad plan for regulation of CATV and on March 8, 1966, it issued its Second Report and Order, extending the scope of its First Order to all CATV stations, including those that do not rely on microwave systems. Midwest Television, Inc. (to be distinguished from intervenor Midwest Video) filed a petition in this court (No. 19,975) on February 16 to review the Public Notice and filed a petition to review the Second Order on the afternoon of its issuance (No. 20,021). Black Hills and Midwest Video filed petitions for review of the Second Order the next day, March 9, in the Eighth Circuit.1 Because proceedings with respect to the Second Order were 'first instituted' in this court, the Commission has filed the record here, as it is required to do by 28 U.S.C. 2112(a).2 Black Hills and Midwest Video now ask us to transfer the present cases to the Eighth Circuit pursuant to the discretionary transfer provision of that section.3
5
We noted in Eastern Air Lines, Inc. v. civil Aeronautics Bd., 122 U.S.App.D.C. 375, 378, 354 F.2d 507, 510 (1965):
6
'Certainly one factor that has considerable weight in the guidance of judicial discretion is the desirability of transfer to a circuit whose judges are familiar with the background of the controversy through review of the same or related proceedings.'
7
The Eighth Circuit has under submission the review of the Commission's First Report and Order, a case which is the precursor of the present proceedings and which perforce involves many of the same issues.4 Thus, notwithstanding our familiarity with the general area5 and the fact that the issues in the cases are not completely identical, it would not further the principles of 'sound judicial administration' that we discussed in the Eastern Air Lines case to have two courts of appeals review such closely related agency proceedings.6 Moreover, the anomalous results inherent in the possibility of conflicting decisions on review will be avoided at the outset by transferring these cases to the Court of Appeals which is reviewing the First Order and in which a petition for review of the Second Order has also been filed. Accordingly, and since it is not contended that any party will be inconvenienced or prejudiced by litigating in the Eighth Circuit,7 we grant the motion to transfer the cases.
1
That case is now here as No. 20,264, having been transferred here by the Eighth Circuit pursuant to the mandatory provision of 28 U.S.C. 2112(a), note 2 infra
2
28 U.S.C. 2112(a) reads in part:
'If proceedings have been instituted in two or more courts of appeals with respect to the same order the agency, board, commission, or officer concerned shall file the record in that one of such courts in which a proceeding with respect to such order was first instituted. The other courts in which such proceedings are pending shall thereupon transfer them to the court of appeals in which the record has been filed.'
3
'For the convenience of the parties in the interest of justice such court (in which the record has been filed) may thereafter transfer all the proceedings with respect to such order to any other court of appeals.'
Ibid. See generally Insurance Workers Int'l Union, etc. v. NLRB, 124 U.S.App.D.C. 378, 360 F.2d 823, decided February 28, 1966.
4
To the extent that substantive requirements as to carriage and nonduplication, for example, are set forth in both orders, the issues on review are substantially similar, except that additional issues are presented by the changes and new requirements set forth in the Second Order
5
See Philadelphia Television Broadcasting Co. v. FCC, 123 U.S.App.D.C. 298, 359 F.2d 282, decided March 28, 1966; Idaho Microwave, Inc. v. FCC, 122 U.S.App.D.C. 253, 352 F.2d 729 (1965); Citizens TV Protest Committee v. FCC, 121 U.S.App.D.C. 50, 348 F.2d 56 (1965); Carter Mountain Transumission Corp. v. FCC, 116 U.S.App.D.C. 93, 321 F.2d 359, cert. denied. 375 U.S. 951, 84 S.Ct. 442, 11 L.Ed.2d 312 (1963)
6
It is plain that, except for the statutory basis on which authority to regulate is asserted, the two orders are intimately related. In the Second Order it is stated, paragraph 48, that 'the new regulations will apply equally to all CATV systems, including those which require microwave licenses * * *.' Hence, it might be argued that the First Order is academic. However, it is also stated, paragraph 102, that the rules conditioning microwave grants, adopted in the First Order, would be retained 'in their present form for a while longer, until CATVs are operating in accordance with the new rules.' In addition, to the extent that the Second Order may rely in part upon findings and judgments underlying the First Order, its validity may be partially dependent upon the validity of the First Order
7
The movants, Black Hills Video and Midwest Video, are incorporated in, and have their principal offices in Arkansas, which is within the Eighth Circuit. Petitioner Midwest Television, which opposes the motion to transfer, apparently does business in San Diego, California, and Champaign and Peoria, Illinois
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204 P.3d 1191 (2009)
WILLIAMS
v.
STATE.
No. 99482.
Court of Appeals of Kansas.
April 10, 2009.
Decision Without Published Opinion. Affirmed.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 9, 2009
No. 08-51245
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROGELIO QUIROZ-CARRILLO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-1954-ALL
Before KING, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM *
Rogelio Quiroz-Carrillo appeals the 27-month sentence imposed following
his conviction on a guilty plea to being an alien found unlawfully in the United
States after previously having been removed. See 8 U.S.C. § 1326(a). He
contends the sentence imposed by the district court was unreasonable because
it was greater than necessary to meet the goals of 18 U.S.C. § 3553(a). Although
*
Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
Quiroz concedes the advisory guidelines range was properly calculated, he
contends: the range of 27-33 months was too severe; the illegal reentry guideline
is not empirically based and double-counted his criminal record; and, the
presumption of reasonableness should not apply to his within-guidelines
sentence. Quiroz further claims: his offense did not pose a danger to others; and
the guidelines range did not account for his motive for reentering, which related
to family issues.
Although post-Booker, the Sentencing Guidelines are advisory only, and
an ultimate sentence is reviewed for reasonableness under an abuse-of-
discretion standard, the district court must still properly calculate the guideline-
sentencing range for use in deciding on the sentence to impose. Gall v. United
States, 128 S. Ct. 586, 596 (2007). In that respect, its application of the
guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
As noted, pursuant to Gall, we engage in a bifurcated review of the
sentence imposed by the district court. United States v. Delgado-Martinez, 564
F.3d 750, 752 (5th Cir. 2009). First, we consider whether the district court
committed a “significant procedural error”. Id. at 752-53. If, as in this case,
there is no such error, we then review the substantive reasonableness of the
sentence imposed, as noted above, for an abuse of discretion. Id. at 751-53.
Because Quiroz did not raise his empirical-evidence and double-counting
contentions in district court, we review them only for plain error. United States
v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009), petition for cert. filed
(June 24, 2009) (No. 08-11099).
Quiroz’ claim that his within-guidelines sentence is not entitled to a
presumption of reasonableness, because the relevant guideline is not supported
by empirical evidence, lacks merit. See United States v. Duarte, 569 F.3d 528,
529-31 (5th Cir. 2009), petition for cert. filed (Aug. 27, 2009) (No. 09-6195);
2
Mondragon-Santiago, 564 F.3d at 366-67. Likewise, we have rejected the
assertion that using a prior conviction to determine the applicable offense level,
as well as to determine a defendant’s criminal history score, results in
impermissible double counting. See Duarte, 569 F.3d at 529-31. In short, there
is no error, plain or otherwise, for these two issues.
Quiroz’ assertions that he should have received a lower sentence based on
his motive for returning to the United States and that his offense overstated the
seriousness of his conduct are insufficient to overcome the presumption of
reasonableness of his within-guidelines sentence. United States v. Gomez-
Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008), cert. denied, 129 S. Ct. 624 (2008).
AFFIRMED.
3
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Order filed April 22, 2016.
In The
Fourteenth Court of Appeals
____________
NO. 14-14-00865-CV
____________
CORESLAB STRUCTURES (TEXAS), INC., Appellant
V.
SCOTTSDALE INSURANCE COMPANY, Appellee
On Appeal from the 55th District Court
Harris County, Texas
Trial Court Cause No. 2010-55665A
ORDER
On April 19, 2016, this court issued an order in which we stated that the
following relevant items were missing from the clerk’s record in this appeal:
(1) An Attorney’s Fees Affidavit, which is Exhibit G (Filed Under Seal pursuant
to Protective Order) to the Affidavit of C. Scott Kinzel, which is Exhibit N to
Coreslab’s First Amended Motion for Summary Judgment on Damages, filed
in the trial court on April 11, 2014.
(2) Plavnicky Kinzel & Makowski LLP Invoices, which are Exhibit H (Filed
Under Seal) to the Affidavit of C. Scott Kinzel, which is Exhibit N to
Coreslab’s First Amended Motion for Summary Judgment on Damages, filed
in the trial court on April 11, 2014.
(3) An Attorney’s Fees Affidavit, which is Exhibit G (Filed Under Seal pursuant
to Protective Order) to the Amended Affidavit of C. Scott Kinzel, which is
Exhibit N to Coreslab Structures (Texas), Inc.’s Response to Scottsdale’s
Motion for Summary Judgment and Cross-Motion For Summary Judgment on
Damages, filed in the trial court on September 8, 2014.
(4) Plavnicky Kinzel & Makowski LLP Invoices, which are Exhibit H (Filed
Under Seal) to the Amended Affidavit of C. Scott Kinzel, which is Exhibit N
to Coreslab Structures (Texas), Inc.’s Response to Scottsdale’s Motion for
Summary Judgment and Cross-Motion For Summary Judgment on Damages,
filed in the trial court on September 8, 2014.
(5) Exhibit P to Coreslab Structures (Texas), Inc.’s Response to Scottsdale’s
Motion for Summary Judgment and Cross-Motion For Summary Judgment on
Damages, filed in the trial court on September 8, 2014.
(6) Exhibit Q to Coreslab Structures (Texas), Inc.’s Response to Scottsdale’s
Motion for Summary Judgment and Cross-Motion For Summary Judgment on
Damages, filed in the trial court on September 8, 2014.
(7) Exhibit R to Coreslab Structures (Texas), Inc.’s Response to Scottsdale’s
Motion for Summary Judgment and Cross-Motion For Summary Judgment on
Damages, filed in the trial court on September 8, 2014.
(8) Exhibit S to Coreslab Structures (Texas), Inc.’s Response to Scottsdale’s
Motion for Summary Judgment and Cross-Motion For Summary Judgment on
Damages, filed in the trial court on September 8, 2014.
(9) Exhibit T to Coreslab Structures (Texas), Inc.’s Response to Scottsdale’s
Motion for Summary Judgment and Cross-Motion For Summary Judgment on
Damages, filed in the trial court on September 8, 2014.
This court directed the Harris County District Clerk to file each of the items listed
above, if the item is contained in the trial court’s case file, in the Fourteenth Court
of Appeals. This court also directed that, if one or more of the items listed above
2
are not part of the trial court’s case file, the district clerk should file in a supplemental
clerk’s record a certified statement that the omitted item or items are not a part of
the trial court’s case file.
In response to this court’s order, the Harris County District Clerk filed a fourth
supplemental clerk’s record in this appeal. The fourth supplemental clerk’s record
does not contain any of the nine items listed in this court’s order, nor does the fourth
supplemental clerk’s record contain a certified statement that any of these nine items
is not a part of the trial court’s case file. The fourth supplemental clerk’s record
contains a certificate in which Harris County District Clerk certifies that “the above
and foregoing are true and correct copies of all the proceedings directed by Counsel
and/or Rule 34 to be included in the 4th Supplemental Clerks Record . . . . ” The
table of contents in the fourth supplemental clerk’s record lists six of the nine items
(items 3, 5, 6, 7, 8, and 9). After each of these six items listed in the table of contents
there is an uncertified statement that “(THE ITEM MENTIONED ABOVE IS NOT
PART OF THE TRIAL COURT’S CASE FILE).” The fourth supplemental clerk’s
record contains no statement regarding item 1, item 2, or item 4.
A post-submission letter brief on file in this case contains a copy of a “Joint
Motion to Transfer Sealed Documents to the Court of Appeals” that apparently was
filed in the trial court in July 2015. In this motion, appellant’s counsel and appellee’s
counsel jointly state that two of these items (item 3 and item 4 listed above) were
filed under seal in the trial court on September 8, 2014.
The Harris County District Clerk is directed to search all locations in which
items filed under seal in the trial court are maintained to determine whether item 1,
item 2, item 3, or item 4 listed above is located there. The Harris County District
Clerk is directed to file each of the nine items listed in this order, if the item is
contained in the trial court’s case file (whether under seal or otherwise), in the
3
Fourteenth Court of Appeals on or before April 29, 2016. The items, if any, that
were filed under seal in the trial court should be filed under seal with the Fourteenth
Court of Appeals in a supplemental clerk’s record under seal. The items, if any, that
were not filed under seal in the trial court should be filed with the Fourteenth Court
of Appeals in a supplemental clerk’s record that is not under seal. If one or more of
the omitted items are not part of the trial court’s case file, the district clerk is directed
to file in a supplemental clerk’s record that is not under seal a certified statement
that the omitted item or items are not a part of the trial court’s case file.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Jamison and Busby.
4
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952 P.2d 201 (1998)
CITY OF WALLA WALLA, Appellant,
v.
Jamie ASHBY, Respondent.
No. 16326-1-II.
Court of Appeals of Washington, Division 3, Panel Ten.
March 12, 1998.
*202 Timothy J. Donaldson, Walla Walla, for Appellant.
Jeffrey J. Hatch, Walla Walla, for Respondent.
BROWN, Judge.
Today we decide whether the superior court erred when reversing a municipal court's restitution order and remanding for a cause hearing in Jamie Ashby's hit-and-run conviction under RCW 46.52.010. We affirm the superior court's order reversing the municipal court's restitution order because our case law recognizes neither legal causation to recover damage to the vehicle struck, nor a basis to order the payment as a condition of probation under RCW 9.95.210. These issues were decided in State v. Hartwell, 38 Wash.App. 135, 138, 684 P.2d 778 (1984), overruled on other grounds by State v. Krall, 125 Wash.2d 146, 881 P.2d 1040 (1994). We reverse the superior court's order remanding for a cause hearing, because the Hartwell rationale views the striking of the hit vehicle as merely a predicate fact to leaving the scene. Accordingly, we affirm in part and reverse in part.
FACTS
On November 1, 1995, Jamie Ashby rear-ended a vehicle, injuring the individual inside. She left the scene of the accident without rendering aid or providing information. At the time, Ms. Ashby was driving with a suspended license.
Ms. Ashby was charged with driving a motor vehicle while having a suspended license and failing to stop after colliding with an occupied vehicle. In December, Ms. Ashby pleaded guilty to the suspended license charge and a month later pleaded guilty to the lesser offense of failing to stop after a collision with an unoccupied vehicle, a misdemeanor. The municipal court judge ordered Ms. Ashby to pay $500 (the deductible) restitution to the victim as a condition of her probation, despite Ms. Ashby's argument restitution was not proper because there was no connection between the crime and the victim's injuries as required by case law. The judge rejected this reasoning.
Ms. Ashby then appealed the judge's restitution order to the superior court. There, the court ruled restitution appropriate only where the precise crime charged proximately caused the injury and reversed. However, the court remanded, for a proximate cause hearing permitting restitution to be reinstated if proximately caused by the violation of the crime. The City of Walla Walla then petitioned for and was granted discretionary review of both parts of the trial judge's order.
*203 On appeal, Ms. Ashby claims she was not advised restitution was a direct consequence of her plea. The City claims that Ms. Ashby never raised this issue before or requested a restitution hearing.
ANALYSIS
The dispositive issue is whether the trial court erred when reversing the municipal court's restitution order and requiring a proximate cause hearing.
A court has discretion to order restitution whenever an offender is convicted of an offense resulting in injury to any person or damage to any property. RCW 9.94A.142. Furthermore, a court may order restitution as a condition of probation "for any person or persons who may have suffered loss or damage by reason of the commission of the crime in question...." RCW 9.95.210(2).
The purpose of restitution is to compensate the victim, punish or rehabilitate the criminal and deter future crime. Scott Peterson, Court-Ordered Criminal Restitution in Washington, 62 Wash. L.Rev. 357 (1987). The court is given wide discretion in ordering restitution. See RCW 9.92.; 9A.20.030(1); 9.94A.140(2); 9.95.210(2). However, there must be a sufficient relationship between the crime charged and the injuries for which restitution is ordered. State v. Tetters, 81 Wash.App. 478, 480, 914 P.2d 784 (1996); Hartwell, 38 Wash.App. at 138, 684 P.2d 778.
In Hartwell, the case relied upon in the municipal court by Ms. Ashby, Division One addressed the same issue before this court; whether restitution is proper when the crime is hit-and-run. There, Mr. Hartwell was involved in an accident where three people were seriously injured. He left the scene of the accident without stopping to render aid or leave information. Later, he was apprehended and charged with hit-and-run of an occupied vehicle. His sentence was suspended conditioned on his fulfilling an order of restitution. Hartwell, 38 Wash.App. at 136, 684 P.2d 778. The court stated that because the injuries took place before the actual crime happened (i.e., leaving the scene), there was not a sufficient relationship between the crime and the injuries. Id. at 140, 684 P.2d 778. The court reasoned that if Mr. Hartwell chose to stay at the scene of the accident and not committed the crime of leaving, the injuries would have been the same. It then reasoned the crime could not then be said to have caused the injuries. Id. The court concluded restitution in such circumstances is inappropriate. Id. at 141, 684 P.2d 778. The court's decision did, however, seem to leave open restitution for any increased investigation expenses caused by an investigation to identify the fleeing driver.
California district courts reflected the general division of thought among jurisdictions on the issue of restitution and hit-and-run until 1995 when the California Supreme Court decided. People v. Carbajal, 10 Cal.4th 1114, 43 Cal.Rptr.2d 681, 899 P.2d 67 (1995). In Carbajal, the court held it was within a trial court's discretion in a hit-and-run case to condition probation on payment of restitution. Carbajal, 43 Cal.Rptr.2d at 688, 899 P.2d at 74. The California Supreme Court reasoned that restitution is sufficiently related to the crime of leaving the scene of the accident because the leaving forces the victim to bear the economic loss of the accident, therefore, the leaving is actually creating an injury. Id. at 686, 899 P.2d at 72. The court also discussed the importance of restitution's deterrent effect on hit-and-run offenders by forcing the criminal to confront the harm his/her actions have caused. Id. at 687, 899 P.2d at 73.
Here no finding after hearing by the municipal court can be found demonstrating Ms. Ashby's conduct caused the damage. When challenged with Hartwell, the municipal court justified the result by emphasizing the amount ordered was a condition of probation. RCW 9.95.210. Hartwell squarely rejected the probation condition argument and any causal relationship, as well as the damage to the struck vehicle. Hartwell has been followed uniformly by the courts of our jurisdiction since 1984 whenever confronted with similar restitution claims. We conclude our jurisdiction does not recognize a sufficient relationship exists between the act of striking another vehicle and leaving the scene to establish the necessary causation nexus for restitution. The City does not dispute the precedential *204 nature of Hartwell, however, urges us to recognize its flawed reasoning, reject it, and establish an element driven test for restitution.
Even though we recognize the validity of the City's well made argument that we should view the elements of "hit-and-run" to be interrelated and interdependent and reject the completed offense analysis of Hartwell, we are constrained to follow Hartwell until directed otherwise by our Supreme Court. Hartwell may not reason with pure deductive logic that the crux of this offense is simply leaving the scene. The Hartwell completed offense rationale attributes mere predicate fact status to the hitting of another vehicle and emphasizes the leaving as the core of the offense. The City fails to recognize, however, the concept is also recognized by our Supreme Court. "Under RCW 46.52.010 or .020, one must be involved in a collision or an accident resulting in property damage or bodily injury as a predicate to being convicted of hit-and-run." State v. Johnson, 119 Wash.2d 167, 175, 829 P.2d 1082 (1992) (emphasis added). Although we may be in a position to reject the reasoning of another Division of this court, until decisively rejected by our Supreme Court, we will reach similar results when presented with similar facts. Accordingly, we decide the trial court did not err when reversing the municipal court's order of restitution.
We recognize the compelling argument of the City that this result leads to the consequent inability of trial courts to access restitution under these factual circumstances as a flexible tool to help accomplish the goals of the Sentencing Reform Act, RCW 9.94A. This result may also, as suggested by the City, impair the trial court's ability to meet the criminal justice goals of deterrence, punishment, and rehabilitation, and relegate victims in the struck vehicle to a reduced opportunity for reparation from the fleeing driver.
Because we reject restitution damage related to the struck vehicle, a causation hearing is unnecessary. We note, however, the trial court incorrectly added the word "proximate" to the causation required for restitution. Foreseeable cause is the required relationship required between damage and restitution in a criminal case. "Restitution is appropriate if the ultimate damages are foreseeable to the defendant and the trial court finds a causal connection between the crime proven and the injuries for which compensation is made." State v. Clapp, 67 Wash. App. 263, 276, 834 P.2d 1101 (1992), review denied, 121 Wash.2d 1020, 854 P.2d 42 (1993) (citing Hartwell, 38 Wash.App. at 139, 684 P.2d 778). This nexus requirement is simply a reasonable or rational connection between the damage and the precise crime charged, not a proximate cause requirement.
CONCLUSION
We affirm the superior court's decision reversing the restitution award and reverse the requirement for a cause hearing. Accordingly, we do not reach Ms. Ashby's additional issues raised for the first time on appeal related to the municipal court's claimed failure to advise her that restitution was a direct consequence of her plea. In summary, Hartwell recognizes neither legal cause to recover damage to the vehicle struck, nor a basis to order restitution as a condition of probation under RCW 9.95.210. Until Hartwell's reasoning is specifically overruled, it should have been recognized as precedent by the district and superior court.
Affirmed in part and reversed in part.
KURTZ, Acting C.J., and KATO, J., concur.
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969 F.Supp. 540 (1997)
Ronald R. MARION, Plaintiff,
v.
HAZELWOOD FARMS BAKERIES, INC. and Supervalu Inc., Defendants.
No. 4:97 cv 01251 SNL.
United States District Court, E.D. Missouri, Eastern Division.
July 16, 1997.
*541 Harry B. Wilson, Thomas J. Palazzolo, Husch and Eppenberger, St. Louis, MO, Ronald L. Greenman, Jon Stride, Tonkon Torp Galen, Marmaduke and Booth, Portland, OR, for Plaintiff.
Robert W. Stewart, Stanley G. Schroeder, Sr., McMahon and Berger, St. Louis, MO, for Intervenor.
ORDER
LIMBAUGH, District Judge.
This matter is before the Court on the Defendants' Motion for Preliminary Injunction (# 10).
The Plaintiff initiated this cause of action by filing a two count complaint against defendant Hazelwood Farms Bakeries, Inc. ("Hazelwood") on June 16, 1997. The Complaint seeks a Declaratory Judgment, pursuant to 28 U.S.C. § 2201, that a covenant not to compete entered into by the parties is non-binding, and damages for intentional interference with prospective business relations.
On June 18, 1997, defendant Supervalu Inc. ("Supervalu") filed a Motion to Intervene. Supervalu and Hazelwood (collectively "Defendants") also filed a verified Counter-claim seeking a Declaratory Judgment, pursuant to 28 U.S.C. § 2201, that the various covenants not to compete entered into by the parties were valid, and a Motion for Preliminary Injunction and Temporary Restraining Order. On June 20, 1997, the Court granted Supervalu's Motion to Intervene and denied the Defendants' request for a Temporary Restraining Order.
On June 26, 1997, the Court heard arguments on the Motion for Preliminary Injunction.
The Defendants seek to enjoin the Plaintiff from accepting employment in violation of the covenants not to compete. They also seek an order directing the parties to resolve the dispute through arbitration and staying all further proceedings in this matter pending completion of arbitration.
The Eighth Circuit has identified four factors for the Court to consider in determining whether to grant injunctive relief: 1) the threat of irreparable harm to the movant; 2) the balance between this harm and the injury that granting the injunction will inflict on the other party; 3) the likelihood of success on the merits; and 4) the public interest. Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 113 (8th Cir.1981) (en banc). "The party seeking the injunction has the burden of establishing these factors." Davis v. Francis Howell School District, 104 F.3d 204, 205 (8th Cir.1997); Modern Computer Sys., Inc. v. Modern Banking Sys., Inc., 871 F.2d 734, 737 (8th Cir.1989).
The Defendants' are in the business of wholesaling frozen dough. The testimony adduced at the preliminary injunction hearing indicates that this business is highly competitive. There are only a few players in the market and everyone is competing for the same accounts. Furthermore, because the product sold is essentially fungible, customer contacts, marketing strategy and price may represent a business' only advantage. Accordingly, the Defendants carefully drafted their covenants not to compete for the specific purpose of preventing a former employee, like the Plaintiff, from accepting employment with one of their competitors.
Should the Court decide not to enforce the covenants not to compete, the Defendants' employees would be free to work for the Defendants' competitors, taking with them *542 knowledge of the Defendants' business practices, and perhaps even stealing some of the Defendants' business. The Court therefore concludes that threat of irreparable harm to the Defendants is substantial.
The injury to the Plaintiff if the injunction is granted, however, is also substantial. He has worked in this field for almost thirty years. Although the Defendants maintain that the covenants not to compete are only in effect for one year, and that the Plaintiff has been offered suitable employment in other non-competing businesses, the Plaintiff certainly has an interest in accepting employment in the field of his choice. Furthermore, the testimony at the preliminary injunction hearing indicated that the only comparable position offered to the Plaintiff in which he would not have to move from his current home was with one of the Defendants' competitors. The Court therefore concludes that the injury to the Plaintiff if the injunction is granted is also substantial.
The public interest prong of the analysis also fails to separate the parties' claims. While there is certainly a public interest in enforcing valid contracts, there is an equally strong interest in protecting freedom of choice with respect to employment decisions.
Accordingly, the resolution of the Defendants' Motion for Preliminary Injunction hinges on the likelihood of their success on the merits. The Court must be mindful, however, not to reduce this analysis to a wooden application of a mathematical probability test. Dataphase, 640 F.2d at 113. Rather, "the question is whether the balance of equities so favor the movant, that justice requires the court to intervene to preserve the status quo until the merits are determined." Id.; see also General Mills, Inc. v. Kellogg Co., 824 F.2d 622, 624-625 (8th Cir. 1987) ("the essential inquiry in weighing the propriety of issuing a preliminary injunction is whether the balance of other factors tips decidedly toward the movant and the movant has also raised questions so serious and difficult as to call for more deliberate investigation."). Unfortunately, the Defendants have failed to carry their burden with respect to this issue.
Generally, covenants not to compete are enforceable under Missouri law so long as they are "reasonably necessary to protect the employer's legitimate interests and reasonable as to time and geographical scope," Superior Gearbox Co. v. Edwards, 869 S.W.2d 239, 247 (Mo.App.1993). This, however, is not the ordinary case in which this issue arises.
As a preliminary matter, it is important to note that the Plaintiff did not voluntarily leave his employment. On the contrary, he was fired. Furthermore, as part of his termination, Hazelwood asked him to sign an "Offer of Compromise, Separation Agreement and General Release" (the "Separation Agreement"). Ex. 2 to Pl.'s Compl.
The Separation Agreement states that it is "made and entered into" by the Plaintiff, Hazelwood and "any and all affiliated entities." Ex. 2 to Pl.'s Compl. at 1. There was testimony at the preliminary injunction hearing that Supervalu is an entity affiliated with Hazelwood. The Court therefore concludes that Supervalu is a party to the separation Agreement, and that the Separation Agreement is enforceable against both defendants.[1]
The Separation Agreement also states that it was intended "to settle all issues, differences and claims between [the parties] that might arise out of [the Plaintiff's] employment with [Hazelwood], and [the Plaintiff's] termination from such employment." Ex. 2 to Pl.'s Compl. at 1.
Notwithstanding the Defendants' arguments to the contrary, the non-compete claims raised in this case clearly arise out of the Plaintiff's employment with Hazelwood. But for his employment, the Plaintiff would have never received the stock options which contained the covenants not to compete.
The Defendants admit that the stock options were granted "as additional compensation for services rendered." Defs.' Mem. in Supp. of Defs.' Mot. for T.R.O. and Prelim. *543 Inj. at 2. Moreover, the stock options at issue were only available to the Defendants' employees. Indeed, both stock options refer to the optionee as "employee" throughout the non-compete provisions. Therefore, without the Plaintiff's employment in the first instance, the non-compete issue never arises.
Furthermore, the language used in the Separation Agreement is certainly broad enough to encompass the Defendants' non-compete claims. As noted above, the Separation Agreement was intended to "settle all issues, differences and claims between [the parties]" Ex. 2 to Pl.'s Compl. at 1. (emphasis added).
The Defendants' argument that the Separation Agreement was not a "general release" and only released claims for damages is unavailing. The Separation Agreement was titled "Offer of Compromise, Separation Agreement and General Release." (emphasis added). Moreover, the "damages" language cited by the Defendants at best creates an ambiguity. It is well settled under Missouri law that ambiguities in a contract are construed against the drafter. Graue v. Mo. Property Ins. Placement, 847 S.W.2d 779, 785 (Mo.banc 1993) ("Where a contract is fairly open to two or more interpretations, that construction will be adopted which is against the one who prepared the contract."); Linnenbrink v. First Nat. Bank, 839 S.W.2d 618, 622 (Mo.App.1992) ("the general rule [is] that an ambiguous contract should be construed in favor of the party who merely signed it and against the document's drafter").
Finally, the Defendants' argument that the covenants not to compete were not expressly waived in the Separation Agreement is equally unavailing. The Separation Agreement expressly included a provision barring the Plaintiff from disclosing any confidential or proprietary information. Ex. 2 to Pl.'s Compl. at 2. Similarly, the Separation Agreement expressly reserved any claims for "knowingly fraudulent or deliberately dishonest acts." Ex. 2 to Pl.'s Compl. at 2. The Defendants certainly could have also included a non-compete provision in the Separation Agreement.
Accordingly,
IT IS HEREBY ORDERED that the Defendants' Motion for Preliminary Injunction (# 10) is DENIED.
NOTES
[1] Although no such evidence was presented at the preliminary injunction hearing, it is reasonable to conclude that Hazelwood had apparent authority to act on behalf of Supervalu. See e.g., Earl v. St. Louis University, 875 S.W.2d 234, 238-39 (Mo.App.1994).
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679 F.2d 902
United Feature Syndicate, Inc.v.Wong's Fine Jewelry
80-5920
UNITED STATES COURT OF APPEALS Ninth Circuit
4/9/82
1
C.D.Cal.
AFFIRMED
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Case: 15-20686 Document: 00513883349 Page: 1 Date Filed: 02/21/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-20686
Fifth Circuit
FILED
Summary Calendar February 21, 2017
Lyle W. Cayce
MATTHEW MARK HESLEP, Clerk
Plaintiff–Appellant,
v.
RICK THALER; WILLIAM STEPHENS, Individual capacity; LORIE DAVIS,
Professional capacity; GREG ABBOTT; TEXAS COURT OF CRIMINAL
APPEALS,
Defendants–Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:14-CV-2595
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
Matthew Mark Heslep, Texas prisoner # 1582892, is serving a 20-year
sentence after being convicted of indecency with a child. He filed a complaint
under 42 U.S.C. § 1983 alleging that the defendants deprived him of adequate
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 15-20686 Document: 00513883349 Page: 2 Date Filed: 02/21/2017
No. 15-20686
access to legal materials and thus denied him access to the courts so that he
could file a timely petition for discretionary review in the Texas Court of
Criminal Appeals.
In a § 1983 action, federal law looks to the personal injury statute of
limitations for the state in which the cause of action arose. Wallace v. Kato,
549 U.S. 384, 387 (2007). In this case, the applicable Texas statute of
limitations is two years. See Piotrowski v. City of Houston, 237 F.3d 567, 576
(5th Cir. 1992). Federal law determines when an action accrues and the
limitation period starts. Id. An action accrues “the moment the plaintiff
becomes aware that he has suffered an injury or has sufficient information to
know that he has been injured.” Id. (internal quotation marks omitted)
(quoting Russell v. Bd. of Trs. of the Firemen, 968 F.2d 489, 493 (5th Cir. 1992)).
Heslep concedes that he “had reason to know of the injury which is the basis
of this claim on July 2, 2011,” the same date used by the district court as
starting the limitations period. Heslep’s civil rights complaint filed in 2015
was untimely.
Heslep offers several novel contentions that do not show that the district
court erred by dismissing his action as untimely. The judgment of the district
court is AFFIRMED. Heslep’s motion to file a supplemental brief is
GRANTED.
2
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869 F.2d 594Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.HOME AND LOT OWNERS ASSOCIATION OF SHAWNEE-LAND, INC.,Plaintiff-Appellee,v.MARJEC INC., Defendant-Appellant,andJohn G. Leake, Trustee; County of Frederick, Virginia;Small Business Administration, An Agency of the U.S.;Estate of Nicholas C. Miller; Joseph A. Massie, Jr.;George C. Snarr, Jr., Esq., Defendants.
No. 88-3093.
United States Court of Appeals, Fourth Circuit.
Argued: Jan. 10, 1989.Decided: Feb. 16, 1989.Rehearing Denied March 21, 1989.
Robert Metcalfe Musselman (Roger K. Grillo, Robert M. Musselman & Associates, on brief), for appellant.
Dale Alan Davenport (Hoover, Hoover, Penrod & Davenport, on brief), for appellee.
Before WILKINS, Circuit Judge, BUTZNER, Senior Circuit Judge, and J. FREDERICK MOTZ, United States District Judge for the District of Maryland, sitting by designation.
PER CURIAM:
1
This appeal concerns a Bankruptcy Court order directing that certain accounts receivable allegedly due to the debtor, Marjec, Inc. (the developer of Shawnee-Land, a residential community in Frederick County, Virginia) be transferred to the Home and Lot Owners Association of Shawnee-Land, Inc. (a non-profit corporation representing the interest of various individual property owners at Shawnee-Land). The District Court found that because reversal of the Bankruptcy Court's order could not return the bankruptcy estate to solvency, Marjec had no pecuniary interest in the appeal and thus lacked standing to prosecute it. See Willemain v. Kivitz, 764 F.2d 1019 (4th Cir.1985).
2
Marjec argues before us that since reversal of the Bankruptcy Court's order would potentially reduce its nondischargeable liabilities, it does have a sufficient pecuniary interest in the outcome of the appeal to possess standing. See Caldwell v. Armstrong, 342 F.2d 845 (10th Cir.1965); Menick v. Hoffman, 205 F.2d 365 (9th Cir.1953); In Re Kaminsky, 286 F.Supp. 445 (E.D.Wis.1968). The Home and Lot Owners Association argue that the cases relied upon by Marjec are distinguishable because they involved individual debtors whereas Marjec is a corporation whose insurmountable financial difficulties have for all practical purposes brought its existence to an end. See In Re J.N. Wells, Inc., 575 F.2d 329 (1st Cir.1978); Hartman Corporation of America v. United States, 304 F.2d 429 (8th Cir.1962).
3
We need not reach the issue thus posed. The transfer of the accounts receivable in question have been effected by a recorded deed. Marjec did not obtain a stay of the transfer pending appeal and in light of the fact that the transfer has been finally accomplished, the appeal is moot. See, e.g. Central States, Southeast and Southwest Areas Pension Fund v. Central Transport, Inc., 841 F.2d 92, 96 (4th Cir.1988); In re National Homeowners Sales Service Corp., 554 F.2d 636, 637 (4th Cir.1977); In re Abingdon Realty Corp., 530 F.2d 588, 590 (4th Cir.1976).
4
AFFIRMED.
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526 S.W.2d 750 (1975)
Anita GARCIA et al., Appellants,
v.
CLIFFORD JACKSON FUNERAL HOMES, Appellee.
No. 983.
Court of Civil Appeals of Texas, Corpus Christi.
August 29, 1975.
*751 Pedro P. Garcia, Corpus Christi, for appellants.
Cecil D. Redford, Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for appellee.
OPINION
NYE, Chief Justice.
This is a suit for damages arising from the death of Marion Garcia. The deceased's wife and children brought suit for damages alleging that certain acts of negligence by the appellee. Clifford Jackson Funeral Home, were the proximate cause of Marion Garcia's death. Judgment was rendered pursuant to an instructed verdict in favor of defendant. From that judgment, the appellants have duly perfected their appeal to this Court.
The facts of this case, with a few exceptions, do not appear to be in dispute. The deceased, Marion Garcia, became ill at about 7:30 o'clock P.M. on the evening of September 9, 1969, complaining of chest pains and shortness of breath. The deceased's wife, Anita Garcia, called the Angelus Funeral Home requesting that an ambulance be sent to their home. She then called her family doctor, Dr. Fuentes, telling him that her husband was experiencing pain in his chest and shortness of breath. Upon hearing that Mrs. Garcia had already called an ambulance, Dr. Fuentes told her that he would go to the hospital and wait for them there.
Mrs. Garcia then received a call back from a Mrs. Capela (of Angelus Funeral Home) telling her that they had transferred the call to Clifford Jackson Funeral Home because their ambulance was not equipped with oxygen. The deceased's daughter, Mrs. Huckeba, had arrived home by this time. Upon seeing that her father was having difficulty in breathing, she applied mouth to mouth resuscitation to aid his breathing.
After attending to her father, and upon becoming alarmed that the ambulance had not yet arrived, Mrs. Huckeba telephoned the police station telling them that the ambulance had been called (Clifford Jackson) but had not yet arrived. Two police officers arrived a few minutes later, the time being approximately 8:32 P.M., to assist the Clifford Jackson ambulance attendants who had not yet arrived. According to Mrs. Huckeba, the ambulance arrived then or twelve minutes later. The police officer testified that when they arrived, Mr. Garcia was unconscious.
After the ambulance arrived, the two attendants attempted to give Mr. Garcia oxygen, but were unable to do so. There is conflicting evidence as to the reason for it not being used, the appellants contend that the resuscitator was not in proper working order and the attendants did not known how to use it. A manual hand resuscitator was used on the deceased either at home or on the way to the hospital. The two ambulance attendants and one of the police officers, loaded Mr. Garcia into the ambulance and took him to the hospital. Mr. Garcia received mouth to mouth resuscitation and heart massage in the ambulance.
The evidence shows, although conflicting, that the Clifford Jackson ambulance did not take the most direct route to the Garcia home, nor the most direct route from the Garcia home to the hospital, thus allegedly losing valuable time in obtaining medical aid for Mr. Garcia. Mr. Garcia was pronounced dead upon arrival at Memorial Hospital by Dr. Antonio Fuentes. The record discloses that Marion Garcia had received a check-up by Dr. Fuentes on September 8, 1969, the day before his death. Dr. Fuentes testified that during the check-up, Mr. Garcia's heart "sounded normal" although his blood pressure appeared to be high.
*752 The appellants filed this suit against Clifford Jackson Funeral Home alleging several acts of negligence. They were: 1) the failure of the Clifford Jackson ambulance to take the best route to Marion Garcia's home; 2) failure of the defendant to take the best direct route from Marion Garcia's home to the hospital; 3) the negligence of the defendant in not properly administering oxygen to Marion Garcia; and 4) the failure of the appellee to render first aid and oxygen treatment. To these allegations, the defendant filed a general denial.
At the conclusion of plaintiff's evidence, the defendant filed a motion for instructed verdict alleging that no act of negligence alleged by the plaintiffs had been proved to be a proximate cause of the death of Mr. Garcia and hence, there was no issue of proximate cause to be submitted to the jury. The trial court granted the defendant's motion for instructed verdict and rendered judgment for defendant. From that judgment, the appellants have duly perfected their appeal.
The sole question before us then is directed to the trial court's instruction of a verdict for the defendant. Appellants contend there was sufficient evidence with respect to proximate cause, which would require the trial court to submit issues to the jury. A proper determination of that question must thinge on an acceptance of the evidence and the inferences therefrom in their aspects most favorable to the appellants' cause and to discard all contrary evidence and inferences. Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953); Bass v. General Motors Corporation, 491 S.W.2d 941 (Tex.Civ.App. Corpus Christi 1973, writ ref'd n. r. e.); McKethan v. McKethan, 477 S.W.2d 357 (Tex.Civ.App.Corpus Christi 1972, writ ref'd n. r. e.).
Applying the above rule, it is clear to us that the appellants did raise fact issues as to whether the alleged acts by appellee of: 1) not taking a direct route to the deceased's home; 2) not taking a direct route from the deceased's home to the hospital; and 3) failing to properly apply the oxygen to the deceased, were negligent. However, the main question before us is whether there was any evidence to support an issue of proximate cause to such issues. We do not believe there was.
The proof that must be made to establish causal relation is early stated in general terms, but it is often difficult to determine whether a sufficient showing has been made to warrant submission of the issue to the jury. Since liability cannot be made to turn upon speculation or conjecture, it is essential that the evidence show at least a reasonable probability that the defendant's alleged negligent acts were, singularly or collectively, a proximate cause of his death. Insurance Company of North America v. Myers, 411 S.W.2d 710 (Tex.Sup.1966); Lenger v. Physician's General Hospital, Inc., 455 S.W.2d 703 (Tex.Sup.1970); Parker v. Employers Mutual Liability Insurance Company of Wisconsin, 440 S.W.2d 43 (Tex.Sup. 1969). The proof must establish a causal connection beyond the point of conjecture and must show more than a possibility.
In Insurance Company of North America v. Myers case, the substance of the doctor's testimony concerning causation was that it was only a possibility that the injury which was incurred, caused the death, not that it was or was not a reasonable medical probability. In denying recovery, the Supreme Court held:
"Causal connection ... must rest in reasonable probabilities; otherwise, the inference that such actually did occur can be no more than speculation and conjecture."
The only evidence introduced attempting to connect the alleged negligent acts of defendant with Mr. Garcia's death, was the testimony from Dr. Fuentes which is set out as follows:
"Q Okay. Let me ask you this, Doctor. If she had gotten the man to the hospital earlier, and he was alive, if they had got the man to the hospital *753 earlier, would you have been able to work with the man to save his life? And I need to have you answer in terms of medical probability, please, if you can?
A Time is very important, I'm sure as you-all know, with heart attack. Something could have probably been done, or, as it was, nothing was done when he got to the emergency room.
Q Supposing the patient had been taken to the emergency room before you got there, from your experience, working in Memorial Hospital, was the medical staff there equipped and trained to help the man?
A Yes. There are emergency room physicians now and there were at the time. I'm sure there were the interns and residents in the emergency room, and a doctor on call.
* * * * * *
Q If the ambulance attendantswell, I'm going to ask you to assume, Doctor, If I may, that no oxygen was given to him at the house when the attendants got there. If they had been able to give him oxygen there at the house, would that have helped the man?
A Yes. That's the first thing that most of the ambulance attendants will do, is give oxygen, and that's the first thing that is done in the emergency room."
This testimony at most shows that if Marion Garcia had gotten to the hospital sooner than he did, "something could have probably been done ...", and that oxygen would have helped the man." However, there is no evidence showing that the alleged negligent acts of defendant "in reasonable probability" caused Garcia's death. The testimony in the record is not sufficient to show causation or raise an issue of fact as to causation. See Insurance Company of North America v. Myers, supra; Lenger v. Physicians General Hospital, Inc., supra; Parker v. Employers Mutual Liability Insurance Company of Wisconsin, supra; Gibson v. Avery, 463 S.W.2d 277 (Tex.Civ.App. Fort worth 1971, no writ); Texas Employers Insurance Association v. Goodeaux, 478 S.W.2d 865 (Tex.Civ.App.Beaumont 1972, writ ref'd n. r. e.).
In Parker v. Employers Mutual Liability Insurance Company of Wisconsin, supra, the court was faced with a similar situation to that before us. There, plaintiff went to work in April, 1961, removing radioactive material from one spot to another. He wore protective clothing. In April, 1965, he noticed a swelling on the left side of his neck which when removed in June of 1965, proved to be cancerous and he subsequently died. Justice Hamilton, speaking for the court, wrote:
"The question now before us, then, is what evidence of causal connection between the employment and the plaintiff's injury there must be to justify the judge submitting the case to the jury.
* * * * * *
... But this probability must, in equity and justice, be more than coincidence before there can be deemed sufficient proof for the plaintiff to go to the jury."
The expert testimony in that case was to the effect that the etiology (cause) of cancer is really uncertain. The doctor further testified that the cancer "could have" been caused by radiation, but that there was no way to determine the cause. Our Supreme Court in denying recovery held that it was clear that there was no evidence at trial of a causal connection between the cancer and radiation in the expert testimony per se, other than the possibility of such a connection and testimony demonstrating a possibility only is in no way equivalent to testimony implicit with probability.
It was undisputed that Mr. Garcia's death was caused by a myocardial infarction. In order for the plaintiffs to have made out a case against the appellee that would have *754 permitted them to go to the jury, they would have had to have some evidence that the acts of negligence, on the part of appellee, were a proximate cause of Garcia's death. There must be proof that the negligent acts were a proximate cause, not a possible cause. Plaintiffs' evidence showed no more than a possibility that the claimed negligent acts caused Mr. Garcia's death. Although Dr. Fuentes testified that something could have been done, there was no evidence of what that ("something") might have been or what the probable results would have been. There was no evidence that had the ambulance arrived earlier, or that had oxygen been administered properly, Garcia would have lived. There was no evidence as to the exact time of Mr. Garcia's death. We, therefore, hold that there was no causal connection between the appellee's negligence and Garcia's death in the record before us. Appellants' points of error are overruled.
The judgment of the trial court is affirmed.
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United States Court of Appeals
For the First Circuit
No. 01-1862
NEAL DAVIGNON AND PATRICIA KELLEY,
Plaintiffs-Appellees/Cross-Appellants,
AMANDA DAVIGNON AND CHELSEA DAVIGNON,
Plaintiffs-Appellees,
v.
KARL D. CLEMMEY AND KARL D. CLEMMEY, JR.,
Defendants-Appellants/Cross-Appellees,
TOWN OF MANSFIELD, MASSACHUSETTS,
ARTHUR O'NEIL, ETC.
Defendants-Appellees,
CLEMMEY, INC., ET AL.,
Defendants.
No. 02-1293
NEAL DAVIGNON AND PATRICIA KELLEY,
Plaintiffs-Appellees/Cross-Appellants,
AMANDA DAVIGNON AND CHELSEA DAVIGNON,
Plaintiffs-Appellees,
v.
KARL D. CLEMMEY AND KARL D. CLEMMEY, JR.,
Defendants-Appellants/Cross-Appellees,
TOWN OF MANSFIELD, MASSACHUSETTS,
ARTHUR O'NEIL, ETC.
Defendants-Appellees,
CLEMMEY, INC., ET AL.,
Defendants.
No. 02-1346
NEAL DAVIGNON AND PATRICIA KELLEY,
Plaintiffs-Appellees/Cross-Appellants,
AMANDA DAVIGNON AND CHELSEA DAVIGNON,
Plaintiffs-Appellees,
v.
KARL D. CLEMMEY AND KARL D. CLEMMEY, JR.,
Defendants-Appellants/Cross-Appellees,
TOWN OF MANSFIELD, MASSACHUSETTS,
ARTHUR O'NEIL, ETC.
Defendants-Appellees,
2
CLEMMEY, INC., ET AL.,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Circuit Judge,
Cyr and Stahl, Senior Circuit Judges.
Michael J. Traft, with whom Carney & Bassil, P.C. was on brief
for defendants-appellants.
Leonard H. Kesten, with whom Deidre Brennan Regan, Patricia
Malone Campbell, and Brody, Hardoon, Perkins & Kesten were on brief
for plaintiffs-appellees and defendants-appellees.
March 4, 2003
3
CYR, Senior Circuit Judge. Defendants Karl D. Clemmey
("Karl") and Karl D. Clemmey, Jr. ("Dan") appeal from a district
court judgment, entered following a jury verdict, directing them to
pay $2,850,000 in damages to Neal Davignon, Patricia Kelley, and
their two minor children, for intentional infliction of emotional
distress, assault and battery, and various violations of their
civil rights. In turn, Davignon and Kelley cross-appeal from a
district court ruling that their jury verdict against Karl Clemmey,
totaling $2,000,000, for intentional infliction of emotional
distress, is barred by res judicata. We affirm the jury verdict.
I
BACKGROUND
The relevant background facts are recited in the light
most consistent with the jury verdict. See Quint v. A.E. Staley
Mfg. Co., 172 F.3d 1, 9 (1st Cir. 1999). On January 9, 1998, Karl
and Dan Clemmey, owners of Clemmey Auto Body in Mansfield,
Massachusetts, abruptly discharged their mechanic, Neal Davignon,
physically assaulted him, and thereafter threatened his life and
the lives and physical safety of his family. At the time,
Davignon, Patricia Kelley, and their two minor children were
tenants in a residence owned by Karl Clemmey's real estate company
— 360 Chauncey Street LLC.
Twenty minutes after he was fired, Davignon returned to
the auto body shop, with Kelley and their children, in order to
4
retrieve some personal tools which had been wrongfully confiscated
from Davignon by the Clemmeys during the earlier assault. After
Dan Clemmey refused to allow Davignon to enter, claiming that
Davignon had assaulted his father — Karl Clemmey — Kelley and the
children left in tears to seek police assistance. Subsequently,
Dan Clemmey advised the police officer that Karl Clemmey had
decided not to press assault charges against Davignon and Kelley.
Thereafter, Neal Davignon signed an assault-and-battery complaint
against Karl Clemmey.
One week later, the Clemmeys commenced a long and
relentless campaign of harassment and intimidation against Davignon
and Kelley, beginning with their filing of criminal charges of
assault and threats of arson. Subsequently, Karl Clemmey actively
opposed Davignon's pending claim for unemployment compensation.
Additionally, Karl Clemmey's real estate company, 360 Chauncey
Street LLC, commenced eviction proceedings in state housing court
against Davignon and Kelley. Davignon and Kelley counterclaimed
for intentional infliction of emotional distress and thereafter
included Karl Clemmey as a party defendant. Ultimately, in July
1998, Davignon, Kelley, and 360 Chauncey Street LLC entered into an
Agreement for Judgment, which ceded possession of the leased
premises to 360 Chauncey Street LLC, effective October 1, 1998, and
stated that "the parties agree to waive all claims and
counterclaims regarding this matter with prejudice."
5
Meanwhile, the Clemmeys, acting in concert, repeatedly
intimidated and harassed the Davignons from February to August of
1998. For instance, while Davignon was visiting a friend at
another auto repair garage, he observed that Karl Clemmey was
taking his photograph. On the same occasion, Karl Clemmey warned
Neal Davignon that no unemployment-compensation hearing would ever
be held because "[y]ou'll be dead by then, you and your family."
In due course, Neal Davignon reported these threats to
the Mansfield Police Department. Whereupon, Karl Clemmey was
arrested and charged with the January 9 assault, and the state
court entered a "stay-away" order as a condition of bail.
Thereafter, Karl Clemmey submitted several additional false
criminal complaints against Davignon, alleging assault and
threatened assault.
Another witness saw Dan Clemmey break open a trash bag
and strew its contents over the Davignons' lawn. In a similar
vein, Patricia Kelley observed as Karl Clemmey drove past the
Davignon residence. Later, upon returning home from an errand,
Kelley found that the front door had been broken. On yet another
occasion, a Mansfield police officer saw Karl as he was driving by
the Davignon home. By way of further harassment, Karl falsely
reported to the Mansfield Fire Department that the Davignons were
storing explosives and other hazardous materials at their home.
6
Upon investigation, the latter allegation proved to be unfounded as
well.
In April 1998, an anonymous telephone report was received
by the Massachusetts Department of Social Services, to the effect
that Davignon and Kelley were abusing and/or neglecting their
children. Following an investigation, which included interviews of
the Davignon children, the allegations were determined to have been
unfounded.
On several other occasions, Patricia Kelley and another
person witnessed the Clemmeys surveilling the Davignon residence
from their parked car. In August 1998, Davignon saw Karl Clemmey
as he was driving away from the Davignon residence, and immediately
thereafter found the rock which had been thrown through the window
of his residence moments earlier. On yet another occasion, Karl
Clemmey brought his car to a stop on the street beside the Davignon
residence and (i) called out to the Davignon children: "Assholes"!
and (ii) ranted that their parents were "pieces of shit." These
outbursts brought the Davignon children to tears.
Subsequently, Karl Clemmey was convicted in state court
for having assaulted Davignon on January 9, 1998; at the same time,
Kelley was acquitted of the charge that she had assaulted Dan
Clemmey. Thereafter, the numerous remaining criminal complaints
brought by the Clemmeys against Davignon and Kelley were dropped.
7
In September 1999, Davignon, Kelley, and their children
commenced the instant action against the Clemmeys in the United
States District Court for the District of Massachusetts, demanding
damages for (i) assault and battery; (ii) intentional infliction of
emotional distress; and (iii) various civil rights violations. The
Clemmeys counterclaimed against Davignon and Kelley, and instituted
a cross-claim against the Town of Mansfield and its police chief
for facilitating Davignon's and Kelley's alleged harassment of the
Clemmeys.1 Following the nine-day trial, the jury awarded Davignon
$350,000 on the assault and battery charge; as well as $1,000,000
each to Davignon and Kelley, and $1,250,000 to each Davignon child,
on their respective claims for intentional infliction of emotional
distress and civil rights violations.
On June 1, 2001, at the behest of Davignon and Kelley, the
district court certified its partial judgment as final, pursuant to
Federal Rule of Civil Procedure 54(b), and the Clemmeys timely filed
their notice of appeal. On June 11, the district court extended the
time for submitting applications for counsel fees, as well as
motions for judgment as a matter of law, new trial, and remittitur.
1
Following their appeal, the Clemmeys' cross-claim against the
Town was dismissed by the district court as moot, pursuant to
Federal Rule of Civil Procedure 16(c). The Clemmeys contend on
appeal that we must reverse the Rule 16(c) dismissal in the event
we determine that a new trial is warranted on the Clemmeys' claims.
As we reach no such conclusion, see infra, their contention need
not be addressed.
8
The Clemmeys did not file their post-trial motions until June 29,
more than ten days after the entry of final judgment on June 1.
Although the district court rejected the Clemmeys' motions
for new trial and remittitur, it vacated the $1,000,000 jury awards
to Davignon and Kelley for intentional infliction of emotional
distress as well as various civil rights violations. The district
court determined that these claims had been fully litigated and
waived by Davignon and Kelley pursuant to the July 1998 Agreement
for Judgment in the housing-court eviction proceedings, which
included a release stating that "the parties agree to waive all
claims and counterclaims regarding this matter with prejudice."
The Clemmeys now appeal from the district court rulings
which rejected their post-trial motions. Davignon and Kelley cross-
appeal from the district court order which vacated their respective
$1,000,000 awards for intentional infliction of emotional distress
and various civil rights violations.
II
DISCUSSION
A. The Clemmey Appeal
1. Federal Rule of Evidence 803(4)
The district court permitted Jeffrey Parks — a family
therapist and social worker not licensed to practice medicine — to
testify concerning statements made to him by the Davignons during
family-therapy sessions relating to the extreme emotional distress
9
experienced by the Davignon children.2 The Clemmeys contend that
the district court erred in permitting Parks to testify regarding
these statements because (i) Federal Rule of Evidence 803(4)
provides an exception to the hearsay rule only for those statements
made "for the purpose of medical diagnosis," whereas (ii) the
plaintiffs consulted Parks for generalized advice on family
problems, rather than to facilitate contemporaneous or subsequent
treatment by a medical professional for any particular illness or
disease.
Normally, "proper interpretation of the Federal Rules of
Evidence [presents] a question of law and is reviewed de novo,
whereas the application of [a particular rule of evidence] . . . is
reviewed under an abuse-of-discretion standard." Crowley v. L.L.
Bean, Inc., 303 F.3d 387, 394 (1st Cir. 2002) (citation omitted).
The Clemmeys failed to assert any objection at the time Parks
testified. Moreover, their pretrial motion in limine was
insufficient as well. See Varano v. Jabar, 197 F.3d 1, 4 (1st Cir.
1999) (noting that objection asserted by motion in limine does not
2
There are four elements to an intentional-infliction claim
under Massachusetts law: (i) defendant intended to inflict
emotional distress or knew or reasonably should have known that
emotional distress was likely to result from such conduct; (ii) the
conduct was "extreme and outrageous," "beyond all possible bounds
of decency," and "utterly intolerable in a civilized community";
(iii) the defendant's conduct proximately caused plaintiff's
emotional distress; and (iv) the distress was so "severe that no
reasonable man could be expected to endure it." Agis v. Howard
Johnson Co., 355 N.E.2d 315, 318-19 (Mass. 1976) (citations
omitted).
10
preserve evidentiary challenge absent contemporaneous objection at
trial). Consequently, we review for plain error only. We discern
none. See Linn v. Andover Newton Theolog. Sch., Inc., 874 F.2d 1,
3 (1st Cir. 1989) ("We have stated repeatedly that absent
extraordinary circumstances, we will not in a civil case excuse a
party's failure to make a contemporaneous objection [to hearsay
evidence].") (emphasis added).3
2. The Jury Instruction
The district court instructed the jury that a knowing
violation of the state-court restraining order by the Clemmeys would
be sufficient, "standing alone," to demonstrate "outrageous
conduct," an essential element of the claim for infliction of
3
The ambit of Rule 803(4) is not limited to statements made to
a licensed physician, but instead may encompass those made to
social workers, provided that the declarant intended to procure
medical treatment. See Navarro de Cosme v. Hospital Pavia, 922
F.2d 926, 933 (1st Cir. 1991). Here, the plaintiffs sought Parks'
counsel in order to address mental-health issues associated with
the campaign of harassment which the Clemmeys conducted against
them and their children.
The Clemmeys belatedly attempt to distinguish Navarro, based
on legal arguments whose correctness is not remotely obvious. For
instance, they urge that these statements should have been excluded
from evidence because the declarants (viz., the Davignons) had a
compelling motive to lie. However, the district court allowed Park
to testify only to statements the Davignons made prior to this
litigation. Similarly, the Clemmeys cite child-sex-abuse cases, in
which various courts have refused to admit parental statements to
medical doctors who diagnosed physical abuse. However, those cases
are based on the theory that a parent who abuses his or her own
child may harbor a strong motive to mislead the doctor. See, e.g.,
United States v. Yazzie, 59 F.3d 807, 813 (9th Cir. 1995).
11
emotional distress. See supra note 2.4 The Clemmeys maintain that
the challenged instruction misstates Massachusetts law. Jury
instructions are reviewed de novo. See Crowley, 303 F.3d at 394.
A jury instruction, duly objected to, constitutes
reversible error only if it (i) is "misleading, unduly complicating,
or incorrect as a matter of law," id. (citation omitted); and (ii)
cannot be considered harmless, viz., as adversely affecting the jury
verdict and the "substantial rights" of the objecting party, see
Romano v. U-Haul Int'l, 233 F.3d 655, 665 (1st Cir. 2000). Absent
a duly asserted objection at trial, however, an appellant may
prevail only by establishing "plain error," viz., by demonstrating
that (i) the instruction constituted error as a matter of law; (ii)
the error was plain; (iii) likely altered the outcome; and (iv)
threatened the fairness, integrity or public reputation of the
judicial proceeding. See Seahorse Marine Supplies, Inc. v. P.R. Sun
Oil Co., 295 F.3d 68, 80 (1st Cir. 2002).
4
The challenged instruction stated, in pertinent part:
[If Karl Clemmey] knew there was a[] [stay-
away] order and that he intentionally violated
it, I'm telling you that that's enough under
intentional infliction of emotional distress
standing alone because the orders of the state
court are expected to be obeyed. Now that
doesn't say that there's damages. The
violation would have to be the proximate cause
of this severe emotional distress.
12
We need not consider whether the instant jury instruction
constitutes a correct statement of Massachusetts law,5 nor whether
the Clemmeys adequately preserved the present claim for appeal,6
inasmuch as the record on appeal discloses beyond any genuine doubt
that the putative error was neither plain nor harmful, given that
it almost certainly did not affect the verdict. The Clemmeys
maintain, for example, that the jury may have found them liable
based merely on some isolated and relatively innocuous violation of
the "stay-away" order, such as Karl Clemmey driving by the Davignon
home on a single occasion. Of course, appellants conveniently
overlook the fact that the jury was explicitly charged with
5
We note, however, that the validity of the Clemmeys' legal
thesis is hardly self-evident. The Clemmeys cite cases which hold
that a violation of a statute does not itself establish a
negligence claim per se, but rather that it is one factor the
factfinder may consider. See Bennett v. Eagle Brook Country Store,
Inc., 557 N.E.2d 1166, 1168 (Mass. 1990). However, the Clemmeys
cite (and we have found) no Massachusetts case which holds that the
same rule applies to (i) a violation of a court order; or (ii) a
claim for intentional infliction of emotional distress. Cf., e.g.,
Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 697 (9th Cir.
2001) (en banc) (holding that conduct which violates California
penal law is "per se outrageous" for purposes of intentional-
infliction claim), cert. denied, 534 U.S. 1078 (2002).
6
During the precharge conference, the Clemmeys lodged no
objection when the district court announced its intention to give
this jury instruction. Tr. VIII, at 195-96. Following the jury
charge, however, counsel stated: "Objection for the record to the
instruction that violation of the stay-away order is per se
emotional distress." Tr. IX, at 108. A party will be deemed to
have waived objection to a jury instruction unless, prior to the
jury deliberations, it "'stat[ed] distinctly the matter objected to
and the grounds of the objection.'" Seahorse Marine Supplies, 295
F.3d at 79 (emphasis added; citation omitted).
13
assessing the outrageousness of the Clemmeys' conduct in determining
the severity of the injury proximately caused to the Davignons,
hence the amount of damages. Thus, the district court explicitly
instructed the jury: "The violation [of the stay-away order] would
have to be the proximate cause of this severe emotional distress."
(Emphasis added.)
Given the $4.5 million jury award for intentional
infliction of emotional distress, we are entirely confident that the
jury did not opt to rely upon any one innocuous drive-by. Instead,
as the trial outcome turned almost entirely upon the Clemmeys'
credibility vel non, the jury in all likelihood determined that
appellants' well-documented, extensive campaign of harassment
readily rose to the level of "outrageous conduct," resulting in
severe emotional injury to the Davignon family. Accordingly, viewed
in context, any instructional error was harmless.
3. The Sufficiency of the Evidence
a. Appellate Jurisdiction
The Davignons contend that we lack jurisdiction of the
Clemmeys' challenge to the sufficiency of the evidence supporting
the jury verdict, given that the Clemmeys failed to submit their
Rule 50 and Rule 59(e) motions within ten days after entry of the
final judgment on June 1, 2001. See Vargas v. Gonzalez, 975 F.2d
916, 917 (1st Cir. 1992) (per curiam) (noting that district court
lacks jurisdiction to extend "mandatory" ten-day window prescribed
14
by Fed. R. Civ. P. 6(b)). The Clemmeys respond that we may excuse
their tardy motions under the "unusual circumstances" exception, see
Thompson v. INS, 375 U.S. 384, 398-99 (1964) (per curiam), due to
their detrimental reliance upon the specific, albeit mistaken,
assurance by the district court that their motions were not
untimely.7 Their suggestion is problematic for several reasons.
First, the viability of the Thompson doctrine remains in
considerable doubt, see, e.g., Osterneck v. Ernst & Whinney, 489
U.S. 169, 178-79 (1989); United States v. Heller, 957 F.2d 26, 28
(1st Cir. 1992) (noting that Thompson "may be on shaky ground"); see
also Arnold v. Wood, 238 F.3d 992, 996 (8th Cir.), cert. denied, 534
U.S. 975 (2001), most notably as concerns its application to motions
submitted under Rules 50 and 59(e). See Weissman v. Dawn Joy
Fashions, Inc., 214 F.3d 224, 231 (2d Cir. 2000) (holding that
Thompson applies exclusively to timeliness of notices of appeal).
Second, unlike the situation in Thompson, the sole "assurance" given
the Clemmeys by the district court was implicit at most, in that the
district court simply granted, by endorsement, the joint motion of
the parties for an extension. Although we have not determined
whether such an endorsement, standing alone, constitutes an
"assurance" upon which an appellant reasonably may rely, but see
7
We reject their alternative argument that the judgment
entered on June 1 was not "final." The district court explicitly
certified its judgment as final, pursuant to Federal Rule of Civil
Procedure 54(b), and the Clemmeys thereafter lodged their notice
of appeal from that judgment.
15
Scola v. Beaulieu Wielsbeke, N.V., 131 F.3d 1073, 1075 (1st Cir.
1997) (noting, in dicta, that this proposition is "very dubious"),
other courts of appeals have been unreceptive. See, e.g., Rhoden
v. Campbell, 153 F.3d 773, 774 (6th Cir. 1998); Endicott Johnson
Corp. v. Liberty Mut. Ins. Co., 116 F.3d 53, 57 (2d Cir. 1997).
Finally, even assuming that the district court's endorsement did not
itself give rise to "unique circumstances," the Davignons acquiesced
in its grant of the extension. See, e.g., Weissman, 214 F.3d at
232 (holding that, despite absence of "unique circumstances,"
opposing party, by failing to oppose time extension, waived
nonjurisdictional requirement that appellant renew its Rule 50
motion after trial).
Given the enigmatic nature of the "unique circumstances"
doctrine, and our determination that the sufficiency challenges
asserted by the Clemmeys fail on the merits, see infra, we bypass
the jurisdictional issue, and turn to the substance of their appeal.
See United States v. Woods, 210 F.3d 70, 74 n.2 (1st Cir. 2000)
(noting that timely notice of appeal is not an Article III
requirement, thus does not implicate Steel Co. v. Citizens for a
Better Env't, 523 U.S. 83 (1998)); Kelly v. Marcantonio, 187 F.3d
192, 197 (1st Cir. 1999) (holding that appellate court remains free
to bypass problematic jurisdictional issue, provided it does not
implicate Article III "case and controversy" requirement)
(distinguishing Steel Co.).
16
b. The Assault and Battery Verdict for Neal Davignon
The Clemmeys contend that the $350,000 damages award to
Neal Davignon, arising from the assault and battery by Karl Clemmey
on January 9, 1998, is excessive, in that (i) Davignon established
at most that he sustained but minor physical injuries (e.g., bruised
ribs), as well as little or no lost income; and (ii) the jury may
have compensated Davignon separately — for the emotional injuries
resulting from the assault — under the Davignon intentional-
infliction-of-emotional-distress count. The Clemmeys seek either
a new trial or a remittitur.
A district court ruling rejecting a motion for new trial
is reviewed only for abuse of discretion. See Marrero v. Goya of
P.R., Inc., 304 F.3d 7, 14 (1st Cir. 2002). We accord considerable
deference to the trial court's "greater ability to understand the
scope of the evidence presented before it and to judge the
credibility of th[e] witnesses." MacQuarrie v. Howard Johnson Co.,
877 F.2d 126, 132 (1st Cir. 1989). Furthermore, new-trial motions
predicated on an insufficiency of evidence cannot prevail unless we
determine the verdict to have been "'against the clear weight of the
evidence such that upholding [it would] result in a miscarriage of
justice.'" Marrero, 304 F.3d at 14 (citation omitted); Hendricks
& Assocs., Inc. v. Daewoo Corp., 923 F.2d 209, 217 (1st Cir. 1991)
(noting double-layered deference accorded by courts of appeals —
17
first to jury, then to trial judge — in appeals from denials of Rule
59 motions).
A district court ruling rejecting a motion for remittitur
is reviewed for abuse of discretion. See Trull, PPA v. Volkswagen
of Am., Inc., 311 F.3d 58, 67 (1st Cir. 2002). The task of
estimating money damages, especially intangible, noneconomic loss,
constitutes a core jury function. Id. Thus, in the instant case
appellants face a "formidable" burden, since they must demonstrate
that the district court abused its discretion in determining that
the jury verdict (i) does not exceed "any rational appraisal or
estimate of the damages that could be based on the evidence before
the jury"; and (ii) is not "'grossly excessive, inordinate, shocking
to the conscience of the court, or so high that it would be a denial
of justice to permit it to stand.'" Id. (citations omitted).
An abundance of evidence enabled the jury rationally to
conclude that Neal Davignon sustained severe physical and emotional
injury as a consequence of the Clemmeys' brutal assault on January
9, 1998. Well known for his temper, enraged and unprovoked, Karl
Clemmey abruptly fired Davignon, shoved him, pinned him against a
van, insulted him (e.g., "You're so f---ing stupid"); threatened him
and his family with bodily harm (e.g., "You're a f---ing deadman,"
and "I'm going to stuff you in a trunk so you never see the light
of day."); misappropriated Davignon's work tools and other personal
belongings; held him from behind with a tire iron, while using it
18
to lift him off the floor by the neck and chest, swinging him from
left to right; threatened to break his back "so you never work
again"; and finally struck Davignon in the face with the tire iron.
The version of these events tendered by the Clemmeys was
quite different, of course, but both the jury and the district court
credited the Davignon evidence. Thus, the suddenness and brutality
of the assault, precipitated principally by Karl Clemmey's
unprovoked rage against Davignon and his family, amply supported the
jury finding that much of the emotional trauma sustained by Davignon
proximately resulted from the physical assault, as distinct from the
trauma caused by the Clemmeys' ensuing campaign of harassment,
thereby precluding any ruling on appeal that the $350,000 jury award
was either grossly excessive or shocking to the conscience. See
Trull, 311 F.3d at 67; see also Davis v. DelRosso, 359 N.E.2d 313,
316 (Mass. 1977) (rejecting further remittitur based on argument
that assault verdict should be "measured by reference only to the
physical damage to plaintiff," and not to "the shock and humiliation
of a sudden deliberate assault"); Ross v. Michael, 140 N.E. 292, 293
(Mass. 1923) (noting assault victim was "entitled to recover as an
element of damages for the humiliation, indignity, and injury to his
feelings").
The Clemmeys contend as well that the damages awarded in
relation to Karl's assault upon Davignon must be set aside, since
the jury may have compensated Davignon for the same injuries in its
19
discrete award for intentional infliction of emotional distress.
The district court instructed the jury to indicate, on its special
verdict form, whether and to what extent the mental and emotional
damages sustained by Davignon, due to the Clemmeys' assault,
overlapped with the damages awarded for intentional infliction of
emotional distress. The Clemmeys neither objected nor proposed an
alternative instruction. But cf., e.g., O'Connell v. Chasdi, 511
N.E.2d 349, 350 (Mass. 1987) ("In response to a special question,
the jury indicated that the damages awarded for intentional
infliction of emotional distress included the amount awarded for
assault and battery."). Moreover, on the verdict form in the
instant case, the jury explicitly noted: "no overlap."
c. The Verdict for the Davignon Children
The Clemmeys contend that the district court erred in
declining to enter judgment, as a matter of law, against the
Davignon children in relation to their claim for intentional
infliction of emotional distress, in that (i) the children's counsel
failed to mention or describe, during opening statement, any damages
sustained by the children; and (ii) the children adduced no evidence
that they were present during most of the alleged harassment, so as
to have experienced the requisite "direct impact" of any such
harassment.
Normally, a district court order rejecting a Rule 50(b)
motion is reviewed de novo, and is to be sustained unless the
20
evidence adduced at trial permitted but one conclusion — that the
verdict simply cannot stand. See Jarrett v. Town of Yarmouth, 309
F.3d 54, 59 (1st Cir. 2002). In order even to qualify for such
deferential review, however, appellants were required to preserve
their arguments by (i) submitting timely Rule 50 motions at the
close of evidence; (ii) renewing their motions following the jury
verdict; and (iii) identifying with sufficient particularity the
legal theories supporting their motions. See, e.g., CMM Cable Rep,
Inc. v. Ocean Coast Props., Inc., 97 F.3d 1504, 1530-31 (1st Cir.
1996). Absent such compliance, our review simply contemplates the
basic inquiry as to "'whether the record reflects an absolute dearth
of evidentiary support for the jury's verdict'"; and the district
court will be reversed "sparingly," that is, only where its ruling
is "obviously insupportable." Udemba v. Nicoli, 237 F.3d 8, 13-14
(1st Cir. 2001) (citations omitted).
As appellants did not broach their first contention —
viz., that the children's attorney failed to mention damages during
opening argument — until their post-verdict Rule 50 motion, it must
be deemed waived. Additionally, although the two cited cases do
acknowledge that, in certain circumstances, a trial court might
enter judgment immediately after such a delinquent opening argument,
neither case upheld such a premature dismissal on its facts. See
Best v. Dist. of Columbia, 291 U.S. 411, 415 (1934); Franchi Constr.
Co. v. Combined Ins. Co. of Am., 580 F.2d 1, 8 (1st Cir. 1978).
21
Thus, "[w]hile the district court has the power to direct a verdict
following the plaintiff's opening statement, to warrant the exercise
of that power 'it must clearly appear, after resolving all doubts
in plaintiff's favor, that no cause of action exists.'" Id.
(citations omitted).
Although plaintiffs' counsel certainly could have been
more particular, in no respect did their opening statements remotely
permit the suggestion that the Davignon children had sustained no
damages. See id. (in order to warrant early dismissal, opening
statement must be unambiguously "inconsistent" with asserted cause
of action). Instead, these opening statements placed the children
in the presence of tumultuous confrontations between their parents
and the Clemmeys, which necessarily implied that the children were
exposed to the harassment directed at their parents. See Sixty-
Eight Devonshire, Inc. v. Shapiro, 202 N.E.2d 811, 815-16 (Mass.
1964) ("[I]n an opening it is not to be expected that a plaintiff
will outline his damages with particularity. That is a matter
ordinarily left to proof.") (citation omitted).8 Consequently, we
conclude that (i) the instant claim has been waived; and (ii)
8
For instance, plaintiffs' counsel stated that they
represented the Davignon children; "Patty Kelley arrive[d], with
the two babies in the back of the car" at the Clemmeys' business on
the day the Clemmeys fired Davignon, and that when Kelley left with
the children to get the police, she was crying; and the Clemmeys
submitted a false child-abuse claim, against Davignon and Kelley,
to the DDS, seeking to have the Davignon children removed from
parental custody.
22
appellants have not demonstrated an "absolute dearth of evidentiary
support" for the jury verdict. Udemba, 237 F.3d at 13-14.
The second sufficiency challenge advanced by the Clemmeys
— that the children failed to establish that they sustained any
"direct impact" from the alleged harassment — was waived as well.
Contrary to their record citations on appeal, the Clemmeys failed
to include the present contention in their prejudgment Rule 50
motions. Appellants' assertion that their post-verdict motion not
only "focused" upon the plaintiffs' failure to mention damages in
their opening arguments, but also raised the "direct impact"
argument, is utterly disingenuous. Instead, their post-verdict
motion focused exclusively upon the "opening argument" claim. See
CMM Cable Rep, Inc., 97 F.3d at 1530-31.
Moreover, even if we were to assume, arguendo, that
Massachusetts law requires evidence of "direct impact," as advocated
by the Clemmeys, the record on appeal contains such evidence.
Unlike a truly absent family member who lives in another state, for
example, the Davignon children resided with their parents, and their
family home was the focal point of the Clemmeys' campaign.
Accordingly, it cannot reasonably be considered unduly speculative
to infer that the Davignon children were directly impacted by the
Clemmeys' actions. Furthermore, the record discloses several
instances in which the Clemmeys directed their conduct at the
children. For example, Karl Clemmey himself directly asserted to
23
the Davignon children that they were "assholes," and their parents
"pieces of shit!" Finally, Karl Clemmey submitted a false child-
abuse complaint to DSS, which resulted in a DSS interview of the
Davignon children.
Accordingly, and for all these reasons, the Clemmey appeal
must be denied. See Udemba, 237 F.3d at 13-14.
B. The Davignon Cross-Appeal
In January 1998, the Clemmeys' real estate company, which
owned the house the Davignons were renting, brought suit in state
housing court to evict Neal Davignon and Patricia Kelley, who then
counterclaimed against both the real estate company and Karl Clemmey
for intentional infliction of emotional distress. In July 1998,
Davignon, Kelley, and the company (but not Karl Clemmey) entered
into an Agreement for Judgment, which provided, inter alia, that (i)
judgment enter for the real estate company "for possession only,"
requiring the Davignons to vacate the premises by October 1, 1998;
(ii) the real estate company reimburse the Davignons for moving
expenses and attorney fees; (iii) "[t]he parties agree to waive all
claims and counterclaims regarding this matter with prejudice"; and
(iv) that the Agreement for Judgment was to operate as "a direct
order from the [Housing] Court . . . [and] as an injunction." The
caption of the Agreement designated the company alone (i.e., not
Karl Clemmey) as "Landlord/Plaintiff," and Davignon and Kelley as
24
"Tenant/Defendant." Karl Clemmey's counsel signed the Agreement for
"P's" – viz., Plaintiffs.
Davignon and Kelley now cross-appeal from a post-trial
ruling, in which the district court set aside their $2 million
damages award against Karl Clemmey for intentional infliction of
emotional distress, on the ground that their July 1998 Agreement for
Judgment in the housing-court case is res judicata. See Forman v.
Wolfson, 98 N.E.2d 615, 616 (Mass. 1951) (noting three elements of
res judicata defense: "identity of cause of action and issues, the
same parties, and judgment on the merits by a court of competent
jurisdiction").
1. Appellate Jurisdiction
First, the Davignons assert that the district court lacked
subject matter jurisdiction to vacate the jury verdict, since Karl
Clemmey failed to submit his post-trial motion within the ten-day
postjudgment deadline. For the reasons previously discussed, see
supra Section II.A.3(a), we bypass the jurisdictional issue, as the
Davignon and Kelley cross-appeal must be sustained on the merits in
any event. See Kelly, 187 F.3d at 197.
2. The Waiver of the Karl Clemmey Res Judicata Defense
Next, the Davignons insist on appeal, as they did before
the district court, that Karl Clemmey waived any res judicata
defense by failing to raise it until near the close of the
Davignons' case on the eighth day of the nine-day trial. As an
25
affirmative defense enumerated in Federal Rule of Civil Procedure
8(c), normally res judicata is deemed waived unless raised in the
answer. See Fed. R. Civ. P. 8(c); Rivera-Puig v. Garcia-Rosario,
983 F.2d 311, 319 n.12 (1st Cir. 1992); Badway v. United States, 367
F.2d 22, 24-25 (1st Cir. 1966); see also Mass. R. Civ. P. 8(c).9
Rule 8(c) is designed to provide plaintiffs with adequate
notice of a defendant's intention to litigate an affirmative
defense, thereby affording an opportunity to develop any evidence
and offer responsive arguments relating to the defense. See Knapp
Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 15 F.3d 1222, 1226 (1st
Cir. 1994). There are certain exceptions to the Rule 8(c) bar which
might be invoked, inter alia, either where (i) the defendant asserts
it without undue delay and the plaintiff is not unfairly prejudiced
by any delay, see id.; or (ii) the circumstances necessary to
establish entitlement to the affirmative defense did not obtain at
the time the answer was filed, see, e.g., Depositors Trust Co. v.
Slobusky, 692 F.2d 205, 208 (1st Cir. 1982) ("A party may also have
recourse to a late discovered affirmative defense by obtaining leave
to amend his complaint.").
9
Federal Rule 8(c) provides, in pertinent part: "In pleading
to a preceding pleading, a party shall set forth affirmatively
accord and satisfaction, arbitration and award, assumption of risk,
contributory negligence, discharge in bankruptcy, duress, estoppel,
failure of consideration, fraud, illegality, injury by fellow
servant, laches, license, payment, release, res judicata, statute
of frauds, statute of limitations, waiver, and any other matter
constituting an avoidance or affirmative defense." Fed. R. Civ. P.
8(c) (emphasis added).
26
Although application of the res judicata doctrine
essentially constitutes a legal determination for the district
court, which we would assess de novo, post-trial motions generally
are reviewed only for abuse of discretion, as is the case with
district court rulings regarding whether a defendant timely
interposed an affirmative defense. See Perez v. Volvo Car Corp.,
247 F.3d 303, 318-19 (1st Cir. 2001).
In the instant case, Karl Clemmey concededly failed to
raise the res judicata defense in his answer. Moreover, given the
circumstances, the district court abused its discretion, both in
permitting Clemmey to assert a res judicata defense at the eleventh
hour, and in failing to address the Rule 8(c) waiver issue squarely
raised by the Davignons in their opposition. See Coutin v. Young
& Rubicam P. R., Inc., 124 F.3d 331, 336 (1st Cir. 1997) (noting
that "abuse of discretion" obtains if court overlooks material
factor).
The contention that Karl Clemmey raised the res judicata
defense before trial is disingenuous, especially since he relies
entirely upon the fact that he asserted an estoppel defense in his
answer. To the contrary, (i) estoppel — viz., equitable estoppel
— is a defense separate and distinct from res judicata; and (ii)
estoppel broadly adverts to a claimant's prior representations and
conduct in general, while Rule 8(c), with its individualized
enumeration of "res judicata," "estoppel," and "release" as
27
affirmative defenses, plainly evinces an intention to accord
discrete treatment to the preclusive effects of prior consent
judgments, releases, and settlements.
Additionally, Karl Clemmey disingenuously contends that
the plaintiffs were placed on notice, during discovery, that he
intended to pursue a res judicata defense, simply by virtue of the
fact that Clemmey inquired of Patricia Kelley, on deposition,
regarding the Agreement for Judgment. The Patricia Kelley
deposition reflects, however, that defense counsel briefly probed
her understanding of the intended scope of the July 1998 settlement.
When Kelley insisted upon a narrow interpretation, and emphasized
her understanding that her waiver of claims pertained exclusively
to claims "regarding this matter" — viz., the company's claim for
eviction and possession — defense counsel dropped the subject. At
that juncture, therefore, it seems much more likely that plaintiffs
would have understood that Clemmey would not pursue any defense
predicated on the preclusive effect of the Agreement for Judgment,
particularly in light of Clemmey's admitted failure to raise the
defense in his answer.
Those cases which permit the interposition of an
affirmative defense outside the pleadings generally have involved
moderate delays, such as an attempt to raise the defense in a
pretrial motion to dismiss or for summary judgment, rather than at
trial or in a postjudgment motion. Compare, e.g., LaFreniere Park
28
Found. v. Broussard, 221 F.3d 804, 808 (5th Cir. 2000) (allowing
affirmative defense to be raised in summary judgment motion), with
Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 172 (5th Cir. 1985)
(rejecting affirmative defense raised after jury verdict). Such
postponements become far less tolerable where a defendant, such as
Karl Clemmey, has tendered no justification whatsoever for the
belated request for further delay, and his putative entitlement to
the res judicata defense accrued well before the time Clemmey
submitted an answer, in November 1999, to the Davignon complaint.
See Slobusky, 692 F.2d at 208; see also In re Cumberland Farms,
Inc., 284 F.3d 216, 227 (1st Cir. 2002) ("[I]f Rule 8(c) is not to
become a nullity, we must not countenance attempts to invoke such
defenses at the eleventh hour, without excuse and without adequate
notice to the plaintiff.").
Moreover, Clemmey continued to waffle even after
purportedly asserting his affirmative defense. At trial, the
parties stipulated that the jury should be instructed that the
Agreement, at the very least, waived Davignon's and Kelley's claims
with respect to any emotional distress directly attributable to the
eviction, as distinguished from that attributable to the other acts
of harassment and intimidation perpetrated by the Clemmeys. The
district court (i) advised Clemmey's trial counsel that he could
later contend, by motion, that the Agreement had a broader
preclusive effect; (ii) suggested as possible defenses accord and
29
satisfaction, collateral estoppel (or issue preclusion), and res
judicata (or claim preclusion); and (iii) expressed its intention
to decide the issue as a matter of law.
Nevertheless, the post-trial motion submitted by Clemmey
broached no res judicata defense. Instead, the Clemmey motion
captioned his argument "Release," rather than "Res Judicata."
Moreover, the motion made but one prefatory citation to the general
doctrine of collateral estoppel. All five pages of the Clemmey
argumentation focused exclusively upon release, however, yet another
affirmative defense which he had never asserted in his answer. See
Sharon v. City of Newton, 769 N.E.2d 738, 742 (Mass. 2002) (noting
that "the defense of a release must be raised as an affirmative
defense and [] the omission of an affirmative defense from an answer
generally constitutes a waiver of that defense," but upholding trial
court's leave to amend answer to add "release" defense only where
it "did not raise a new issue on the eve of trial").
Moreover, as has been made crystal clear, "a suit can be
barred by the earlier settlement of another suit in either of two
ways: res judicata or release . . . [and] [t]he defenses are
separate and distinct." Nottingham Partners v. Trans-Lux Corp., 925
F.2d 29, 31-32 (1st Cir. 1991) (emphasis added). Here, however,
Clemmey argued that once he established the existence of the
release, the Davignons had to bear the burden of proving its
invalidity, Costello v. Hayes, 144 N.E. 368, 370 (Mass. 1924),
30
whereas the burden of establishing the affirmative defense of res
judicata rests upon the proponent. See Cochrane v. Cochrane, 22
N.E.2d 6, 9 (Mass. 1939); see also Nwosun v. Gen. Mills Rests.,
Inc., 124 F.3d 1255, 1257 (10th Cir. 1997) ("Res judicata is an
affirmative defense on which the defendant has the burden to set
forth facts sufficient to satisfy the elements."). Unlike res
judicata, see Forman, 98 N.E.2d at 616, the release defense simply
would require a showing that the release applied to Clemmey,
encompassed the intentional-infliction claim interposed in the
district court, and was legally enforceable (e.g., not the product
of fraud or duress). See Nottingham Partners, 925 F.2d at 32; Cram
v. Town of Northbridge, 575 N.E.2d 747, 749 (Mass. 1991); Sher v.
Sandler, 90 N.E.2d 536, 540 (Mass. 1950).
It is debatable, however, whether the Agreement for
Judgment applies to Clemmey at all, given that his name appears
nowhere in its caption. The only parties named in the Agreement are
the Clemmey real estate company, Davignon, and Kelley. Moreover,
the caption of the Agreement names the company, rather than Karl
Clemmey, as "Landlord/Plaintiff," and the Davignons as
"Tenant/Defendant."
In addition, the judgment arguably purports simply to
settle the real estate company's eviction action, rather than the
counterclaims for intentional infliction of emotional distress
against Karl Clemmey individually. Karl was merely a counterclaim
31
defendant, of course, not a "plaintiff," and his attorney signed the
Agreement as counsel for the plaintiffs. The release ambiguously
applies to claims "regarding this matter," which may advert either
narrowly to the settlement of the company's claim for eviction, or
more broadly to the eviction claim as well as all counterclaims in
the case, including the counterclaims against Clemmey individually.
But the intended breadth of the pivotal term "matter" is neither
expressly nor otherwise unambiguously defined. Finally, the fact
that the settlement took effect as "a direct order from the
[Housing] Court[,] . . . [and] as an injunction," is not conclusive
for purposes of its interpretation, in that the housing court may
have envisioned its injunctive order merely as a partial, nonfinal
judgment on the 360 Chauncey Street LLC eviction claim.
A judicial interpretation of an ambiguous release of a
joint tort liability implicates two important principles. First,
unless the release specifically conveys such an intent, it should
not be construed as a release of joint tortfeasors. See Cram, 575
N.E.2d at 748-49. Second, any ambiguity in the release is to be
resolved in favor of Davignon and Kelley. See Cormier v. Cent.
Mass. Chapter of the Nat'l Safety Council, 620 N.E.2d 784, 786
(Mass. 1993) ("[A]ny doubts about the interpretation of the release
must be resolved in the plaintiff's favor."). Thus, Clemmey
arguably failed to sustain the burden of proving the affirmative
defense of release, let alone to meet the more stringent
32
requirements of res judicata (e.g., identicality of parties,
finality of prior judgment).
Nor has Clemmey demonstrated that the res judicata
doctrine, even if applicable to the Agreement for Judgment, would
support a vacatur of the entire jury verdict. Clemmey acknowledges
that evidence of tortious conduct after the entry of the Agreement
for Judgment, such as the allegation that he threw a rock through
a window at the Davignon home in August 1998, was introduced and
admitted at trial. See Havercombe v. Dep't of Educ. of the
Commonwealth of P.R., 250 F.3d 1, 4-5 (1st Cir. 2001) (noting that
res judicata may not apply where second lawsuit alleges that
defendant engaged in additional, discrete instances of wrongful
conduct following prior judgment).10
Finally, the record on appeal is sufficiently developed
to enable clear resolution of the pivotal Rule 8(c) waiver issue,
without a remand. Although the district court ably grappled with
the affirmative defense asserted by Clemmey, its failure to consider
the waiver issue, which resulted in the vacation of the jury award,
constituted an abuse of discretion.
The district court order allowing the cross-appellees'
postjudgment motion is therefore vacated, and the original judgment
10
Clemmey contends that these post-July 1998 events are
immaterial, as the Davignons did not include them in their original
complaint. Nevertheless, the testimony was admitted at trial,
without objection. Consequently, the related factual issues were
tried with the implied consent of the parties.
33
for the appellees, entered pursuant to the jury verdict, is hereby
reinstated and affirmed. The parties shall bear their own costs.
SO ORDERED.
34
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968 A.2d 784 (2009)
BISHER
v.
B.P.O.E. SCOTTDALE LODGE NO. 777.
No. 1775 WDA 2007.
Superior Court of Pennsylvania.
January 13, 2009.
Affirmed.
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62 F.3d 1414
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Thomas Jerry DUDLEY, Petitioner-Appellant,v.Ronald E. JONES, Superintendent; North Carolina AttorneyGeneral, Respondents-Appellees.
No. 95-6342.
United States Court of Appeals, Fourth Circuit.
Submitted July 25, 1995.Decided August 10, 1995.
Thomas Jerry Dudley, appellant pro se. Richard Norwood League, Office of the Attorney General of North Carolina, Raleigh, NC, for appellees.
Before WILKINS, NIEMEYER, and MICHAEL, Circuit Judges.
PER CURIAM:
1
Appellant seeks to appeal the district court's order dismissing his 28 U.S.C. Sec. 2254 (1988) petition. Appellant's case was referred to a magistrate judge pursuant to 28 U.S.C. Sec. 636(b)(1)(B) (1988). The magistrate judge recommended that relief be denied and advised Appellant that failure to file timely objections to this recommendation could waive appellate review of a district court order based upon the recommendation. Despite this warning, Appellant failed to object to the magistrate judge's recommendation.
2
The timely filing of objections to a magistrate judge's recommendation is necessary to preserve appellate review of the substance of that recommendation when the parties have been warned that failure to object will waive appellate review. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir.1985). See generally Thomas v. Arn, 474 U.S. 140 (1985). Appellant has waived appellate review by failing to file objections after receiving proper notice. We accordingly deny a certificate of probable cause to appeal, deny leave to proceed in forma pauperis, and dismiss the appeal. We also deny Appellant's motion for appointment of counsel. 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.
DISMISSED
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[Cite as Madison v. Wilborn, 2012-Ohio-2742.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CARL MADISON : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Petitioner-Appellee : Hon. W. Scott Gwin, J.
: Hon. John W. Wise, J.
-vs- :
: Case No. 2011CA00247
JERMAINE WILBORN :
:
:
Respondent-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2011MI00134
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: June 11, 2012
APPEARANCES:
For Appellant: For Appellee:
RICHARD DRAKE KEVIN BRECHT
303 Courtyard Centre 159 S. Main St.
116 Cleveland Ave. NW Suite 812
Canton, OH 44702 Akron, OH 44308
Delaney, P.J.
{¶1} Respondent-Appellant Jermaine Wilborn appeals the September 30,
2011 judgment of the Stark County Court of Common Pleas to affirm and adopt the
Magistrate’s Decision of July 1, 2011 to grant a Civil Stalking Protection Order
(“CSPO”).
FACTS AND PROCEDURAL HISTORY
{¶2} On May 17, 2011, Petitioner-Appellee Carl Madison filed a Petition for an
Ex Parte Civil Stalking Protection Order against Wilborn. The trial court granted the ex
parte CSPO the same day. A full hearing on the Petition was set for June 28, 2011
before the magistrate. The following facts were adduced at the full hearing.
{¶3} Wilborn and Madison work at the same place of employment. Testimony
established Wilborn has been hostile towards Madison since 2004.
{¶4} In November 2010, Wilborn confronted Madison in the bathroom of a
Denny’s restaurant at 1:30 a.m.
{¶5} In April 2011, Wilborn and Madison engaged in a verbal dispute at work.
Madison and three eyewitnesses testified Wilborn flew into a rage against Madison
and advanced upon Madison until the parties were nose to nose. Wilborn clenched
his fists, pounded his fists on the table, screamed profanity, and caused everyone
present to be extremely concerned that Wilborn would physically assault Madison.
Wilborn agreed the description of the incident was accurate and he was not surprised
that the witnesses of the incident were frightened by his conduct.
{¶6} A witness testified that Wilborn told her that he followed Madison from
work to find out where Madison lived and that he had followed Madison from work on
more than once occasion. Wilborn told the witness that he wanted to have contact
with Madison’s wife.
{¶7} Based on the preponderance of the evidence, the magistrate found
Madison established Wilborn engaged in a pattern of conduct that knowingly caused
Madison to believe Wilborn would cause him physical harm and caused Madison to
suffer mental distress. The magistrate granted the CSPO on July 1, 2011. The CSPO
was effective until May 17, 2016. The magistrate also issued Findings of Fact and
Conclusions of Law in support of the CSPO. The Findings of Fact and Conclusions of
Law did not include Civ.R. 53 language notifying the parties of their responsibility to
object to the Magistrate's Decision.
{¶8} On July 14, 2011, Wilborn filed a pro se objection to the July 1, 2011
CSPO. The trial court found Wilborn’s objection did not comply with the requirements
of Civ.R. 53. However, because the July 1, 2011 CSPO did not comply with Civ.R. 53,
the trial court gave the parties 14 days from July 25, 2011 to file written objections to
the CSPO. (Judgment Entry, July 25, 2011.)
{¶9} Wilborn filed a second pro se objection to the CSPO on August 10, 2011.
Wilborn also filed a notice with the trial court that he was in the process of seeking an
attorney.
{¶10} On August 24, 2011, the trial court overruled Wilborn’s objections as
being filed out of time as ordered by the trial court on July 25, 2011. The trial court
affirmed and adopted the July 1, 2011 CSPO.
{¶11} On August 25, 2011, counsel for Wilborn filed a motion for extension to
file objections to the CSPO simultaneously with his objections to the CSPO. Wilborn
requested an extension until September 9, 2011 to allow the court reporter to
complete the transcript. The trial court granted the motion for extension on August 25,
2011.
{¶12} On September 30, 2011, the trial court issued a judgment entry
overruling Wilborn’s objections. The trial court first found it erroneously granted an
extension to Wilborn on August 25, 2011 because the trial court had already denied
Wilborn’s objections on August 24, 2011. However, it reviewed Wilborn’s most recent
objections and could not find any grounds to reverse the CSPO.
{¶13} Wilborn filed a Notice of Appeal of the September 30, 2011 Judgment
Entry on October 28, 2011. The docket shows the transcript of the June 28, 2011 full
hearing was filed on October 28, 2011.
ASSIGNMENTS OF ERROR
{¶14} Wilborn raises two Assignments of Error:
{¶15} “I. THE TRIAL COURT’S DECISION TO GRANT A STALKING CIVIL
PROTECTION ORDER WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE AND WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.
{¶16} “II. THE TRIAL COURT ERRED IN FINDING THE APPELLANT’S
OBJECTION TO BE UNTIMELY FILED.”
ANALYSIS
I.
{¶17} Wilborn argues in his first Assignment of Error the trial court’s decision to
grant the CSPO was not supported by the manifest weight of the evidence nor was it
supported by sufficient evidence. We disagree.
Failure to File a Transcript with the Trial Court
{¶18} We first must address Wilborn’s failure to present a transcript to the trial
court for its review of Wilborn’s objections to the CSPO. Wilborn filed the transcript of
the full hearing on October 28, 2011, the day he filed his Notice of Appeal. The trial
court never had the opportunity to review the transcript when considering Wilborn’s
objections to the CSPO.
{¶19} Civ. R. 53(D)(3)(b)(iii) provides:
(iii) Objection to magistrate's factual finding; transcript or affidavit. An
objection to a factual finding, whether or not specifically designated as a
finding of fact under Civ. R. 53(D)(3)(a)(ii), shall be supported by a
transcript of all the evidence submitted to the magistrate relevant to that
finding or an affidavit of that evidence if a transcript is not available. With
leave of court, alternative technology or manner of reviewing the relevant
evidence may be considered. The objecting party shall file the transcript
or affidavit with the court within thirty days after filing objections unless
the court extends the time in writing for preparation of the transcript or
other good cause. If a party files timely objections prior to the date on
which a transcript is prepared, the party may seek leave of court to
supplement the objections.
{¶20} Where an appellant fails to provide a transcript of the original hearing
before the magistrate for the trial court's review, the magistrate's findings of fact are
considered established and may not be attacked on appeal. Stark v. Haser, 5th Dist.
No. 03CAF11057, 2004–Ohio–4641, ¶ 15.
{¶21} As such, we consider the magistrate’s July 1, 2011 findings of fact to be
established and cannot be attacked on appeal because Wilborn failed to provide the
transcript for the trial court’s review of his objections. We will only consider the
conclusions of law made by the magistrate and the trial court’s affirmance of the
same.
Civil Stalking Protection Order
{¶22} R.C. 2903.214 governs the filing of a petition for a civil stalking protection
order. R.C. 2903.214(C) provides: “A person may seek relief under this section for the
person, or any parent or adult household member may seek relief under this section
on behalf of any other family or household member by filing a petition with the court.”
{¶23} To be entitled to a civil stalking protection order, the petitioner must show
by a preponderance of the evidence that the respondent engaged in menacing by
stalking, a violation of R.C. 2903.211, against the person seeking the order. See
Tumblin v. Jackson, 5th Dist. No. 06CA002, 2006-Ohio-3270, ¶ 17.
{¶24} R.C. 2903.211(A), “menacing by stalking,” states that “[n]o person by
engaging in a pattern of conduct shall knowingly cause another to believe that the
offender will cause physical harm to the other person or cause mental distress to the
other person.”
{¶25} R.C. 2903.211 further provides as follows:
(D) As used in this section:
(1) “Pattern of conduct” means two or more actions or incidents closely
related in time, whether or not there has been a prior conviction based
on any of those actions or incidents.
{¶26} “R.C. 2903.211(D)(1) does not require that a pattern of conduct be
proved by events from at least two different days. Arguably, a pattern of conduct
could arise out of two or more events occurring on the same date, provided that there
are sufficient intervals between them.” State v. Scruggs, 136 Ohio App.3d 631, 634
(2nd Dist. 2000). One incident is insufficient to establish a “pattern of conduct.” Id.
The statute does not define the term “closely related in time,” but case law suggests
the trier of fact should consider the evidence in the context of all circumstances of the
case. Middletown v. Jones, 167 Ohio App.3d 679, 2006-Ohio-3465 (12th Dist.). Trial
courts may take every action into consideration, even if some actions in isolation
would not seem particularly threatening. Guthrie v. Long, 10th Dist. No. 04AP-913,
2005-Ohio-1541.
{¶27} R.C. 2903.211(D) further states, in relevant part, as follows
(2) “Mental distress” means any of the following:
(a) Any mental illness or condition that involves some temporary substantial
incapacity;
(b) Any mental illness or condition that would normally require psychiatric
treatment, psychological treatment, or other mental health services, whether or
not any person requested or received psychiatric treatment, psychological
treatment, or other mental health services.
{¶28} The decision whether to grant a civil protection order lies within the
sound discretion of the trial court. Olenik v. Huff, 5th Dist. No. 02-COA-058, 2003-
Ohio-4621, at ¶ 21. Therefore, an appellate court should not reverse the decision of
the trial court absent an abuse of discretion. In order to find an abuse of discretion,
this court must determine that the trial court's decision was unreasonable, arbitrary or
unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore,
5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶29} We further note that a judgment supported by some competent, credible
evidence will not be reversed by a reviewing court as against the manifest weight of
the evidence. C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, 280, 376
N.E.2d 578 (1978). A reviewing court must not substitute its judgment for that of the
trial court where there exists some competent and credible evidence supporting the
judgment rendered by the trial court. Myers v. Garson, 66 Ohio St.3d 610, 614 N.E.2d
742 (1993). The underlying rationale for giving deference to the findings of the trial
court rests with the knowledge that the trial judge is best able to view the witnesses
and observe their demeanor, gestures, and voice inflections, and use these
observations in weighing the credibility of the proffered testimony. Seasons Coal Co.
v. City of Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).
{¶30} Wilborn argues Madison failed to prove by a preponderance of the
evidence that Wilborn engaged in a pattern of conduct to knowingly cause Madison to
be in fear of physical harm or cause Madison mental distress. Wilborn first states the
incidents cited by the trial court cannot establish a pattern of conduct that could cause
Madison to be in fear of physical harm because the two incidents cited by the trial
court were months apart.
{¶31} The pattern of conduct can be as few as two incidents, and the statute
does not specifically set forth what “closely in time” means. In State v. Dario, 106
Ohio App.3d 232 (1st Dist.1995), the First District determined that the trier or fact must
decide on a case-by-case basis in the context of all of the circumstances whether the
instances are close in time. Similarly, in Middletown v. Jones, 167 Ohio App.3d 679,
2006-Ohio-346 (12th Dist.), the Twelfth District stated the trier of fact should consider
the totality of the circumstances of the case when determining whether the incidents
were closely related in time.
{¶32} In this case, the trial court noted incidents in November 2010 and April
2011 and found them to be closely related in time. During that period of time, a
witness also testified Wilborn admitted to following Madison home at least on two
occasions and he wanted to contact Madison’s wife. Based on the totality of the
circumstances of this case, we find no abuse of discretion in determining these
incidents established two or more incidents closely related in time.
{¶33} Wilborn also contends that only the April 2011 incident caused Madison
to fear physical harm. The trial court found the April 2011 incident caused Madison to
believe Wilborn would cause him physical harm and Wilborn’s pattern of conduct
caused Madison to suffer mental distress. We held in Coleridge v. Tomsho, 5th Dist.
No. 2002CA00280, 2003-Ohio-650, that R.C. 2903.211 was written in the disjunctive.
A petitioner can establish a fear of physical harm or mental distress. Madison testified
he suffered mental distress as a result of the culmination of incidents between himself
and Wilborn.
{¶34} Upon review, we find the trial court did not abuse its discretion by issuing
the CSPO. The CSPO was not against the manifest weight of the evidence and it is
supported by sufficient evidence. Madison and witnesses testified to a pattern of
conduct by Wilborn that caused Madison to fear physical harm and caused him mental
distress. Civil stalking protection order cases most often turn on the credibility of the
witnesses and in this case, the magistrate found Madison and the witnesses to be
more credible than Wilborn.
{¶35} Wilborn’s first Assignment of Error is overruled.
II.
{¶36} Wilborn argues in his second Assignment of Error that the trial court
erred in finding Wilborn’s second objection to the CSPO was not timely filed and
therefore denied the same.
{¶37} We find no support for this argument based on the trial court’s
September 30, 2011 judgment entry. On August 24, 2011, the trial court denied
Wilborn’s second objection to the CSPO as being untimely filed. Wilborn filed a third
objection to the CSPO on August 25, 2011 with the assistance of counsel. In its
September 30, 2011 judgment entry, the trial court overruled the objections to the
CSPO based on its previous denial on August 24, 2011, but the trial court also noted it
considered the merits of the most recent objections. The trial court stated, “Moreover,
the Court finds that a review of Respondent’s Objections does not bring to light any
grounds upon which the Court should reverse the original decision made by the
Magistrate.”
{¶38} The trial court considered the merits of Wilborn’s third objection to the
CSPO and it is from this decision that Wilborn appealed.
{¶39} Wilborn’s second Assignment of Error is overruled.
CONCLUSION
{¶40} Based on the foregoing, we find no abuse of discretion by the trial court
to overrule Wilborn’s objections to the CSPO. Wilborn’s first and second Assignments
of Error are overruled.
{¶41} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Delaney, P.J.
Gwin, J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JOHN W. WISE
PAD:kgb
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
:
CARL MADISON :
:
Petitioner - Appellee : JUDGMENT ENTRY
:
:
-vs- :
: Case No. 2011CA00247
JERMAINE WILBORN :
:
Respondent - Appellant :
:
For the reasons stated in our accompanying Opinion on file, the judgment of the
Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JOHN W. WISE
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Filed 1/27/14 P. v. Muratalla CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F063394
Plaintiff and Respondent,
(Super. Ct. No. BF131824A)
v.
OPINION
RICHARD JAMES MURATALLA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John S. Somers,
Judge.
Ann Hopkins, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Eric L. Christoffersen and Jennevee H. deGuzman, Deputy Attorneys General,
for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Richard James Muratalla shot Fernando Delarosa in the buttocks after driving up
to Delarosa in a stolen car. He was convicted of attempted murder, assault with a
firearm, carrying a loaded firearm in a public place while an active gang member, being a
felon in possession of a firearm, and unlawful taking of a vehicle. Gang allegations,
among other sentence enhancement allegations, were found true.
Muratalla correctly argues that under the California Supreme Court’s recent
decision in People v. Rodriguez (2012) 55 Cal.4th 1125 (Rodriguez), the evidence does
not support the conviction of carrying a loaded firearm in a public place while an active
gang member. Rodriguez held that a person cannot be found to be an active gang
member without proof that he committed a crime in concert with another gang member.
Because the facts here did not involve perpetration of an offense with any other gang
member, we reduce the offense to carrying a loaded firearm in a public place, a
misdemeanor, and remand for resentencing on that count.
Muratalla also makes the following arguments: reliance by the prosecution’s gang
expert on hearsay violated Muratalla’s rights under the confrontation clause of the Sixth
Amendment; there was insufficient evidence to support the gang enhancement findings;
and defense counsel rendered ineffective assistance by conducting deficient voir dire
during jury selection, choosing not to make an opening statement, not objecting to
evidence of prior crimes, making an inadequate closing argument, and not objecting to
the prosecutor’s closing argument. We reject these contentions.
FACTUAL AND PROCEDURAL HISTORY
As Fernando Delarosa walked on a street near his home in Bakersfield on the
afternoon of March 31, 2010, an off-white Chevrolet Camaro pulled up beside him.
Muratalla got out and asked if he was Fernando Delarosa from Southside. Delarosa
2.
recognized Muratalla as Oso from Loma Bakers. Southside and Loma Bakers are both
subsets of the Sureño criminal street gang, and are not rivals of one another. Among
members of non-rival subsets there are sometimes conflicts between individuals,
however. Delarosa said he was from Southside. Muratalla announced that he was from
Loma Bakers and that he was going to follow Delarosa. Delarosa understood Muratalla’s
gang-oriented comments as a challenge to fight. He did not want to fight and told
Muratalla to leave. Muratalla said “fuck this,” drew a pistol from his pants and fired four
shots. One hit Delarosa in the buttocks as he fled. The bullet exited his left thigh and
came to rest in his right thigh. He ran into a barbershop and called 911.
Delarosa told officers he knew Muratalla from jail. He described the car and the
gun. A week later, police found the Camaro. It had been reported stolen on the day of
the shooting. Inside was a .22-caliber handgun with four spent shell casings and two live
rounds in the cylinder. The car also contained a green canvas bag with more live
ammunition inside. Muratalla’s palm print was found on the inside of the driver’s door.
DNA on the green bag matched Muratalla’s DNA profile and he was a possible
contributor of DNA found on the gun.
The district attorney filed an information charging Muratalla with five counts: (1)
attempted murder (Pen. Code, §§ 187, 664)1; (2) assault with a firearm (§ 245, subd.
(a)(2)); (3) carrying a loaded firearm in a public place while an active member of a
criminal street gang (former § 12031, subd. (a)(2)(C), now § 25850, subd. (c)(3)); (4)
being a felon in possession of a firearm (former § 12021, subd. (a)(1), now § 29800,
subd. (a)(1)); and (5) unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd.
(a)). For count 1, the information alleged that Muratalla attempted to kill Delarosa with
premeditation and deliberation (§ 189). For counts 1 and 2, it alleged that Muratalla
personally used a firearm and caused great bodily injury. (§§ 12022.53, subd. (d),
1 Subsequent statutory references are to the Penal Code unless otherwise noted.
3.
12022.5, subd. (a), 12022.7.) For counts 1, 2, 3 and 5, it alleged that Muratalla
committed the offenses in association with a criminal street gang (§ 186.22, subd. (b)(1)).
The gang enhancements for counts 3 and 5 were later dismissed at the People’s request.
Muratalla’s defense at trial was that the shooting was not attempted murder
because it was not proved that he was trying to kill Delarosa. He also claimed the
shooting arose from a dispute between him and Delarosa over a woman, so it was not
proved that the shooting was gang-related.
The jury found Muratalla guilty on all counts and found the enhancement
allegations true. On count 1, the court sentenced him to 15 years to life plus 25 years to
life for the firearm enhancement. Sentences for counts 2, 3 and 4 were imposed and
stayed under section 654. The court imposed a concurrent sentence of four years for
count 5.
DISCUSSION
I. CARRYING A LOADED GUN IN A PUBLIC PLACE WHILE AN ACTIVE
PARTICIPANT IN A CRIMINAL STREET GANG
As we will explain, the conviction on count 3 must be reduced to a misdemeanor.
To establish the offense of carrying a loaded firearm in a public place as a felony, the
People were required to prove that Muratalla was a gang member within the meaning of
section 186.22, subdivision (a). The Supreme Court’s holding in Rodriguez shows that
the People did not prove this.
In count 3, Muratalla was found guilty of violating former section 12031.
Subdivision (a)(1) of that section provides that a person is guilty of an offense if “he or
she carries a loaded firearm on his or her person or in a vehicle while in any public
place .…” Under subdivision (a)(2)(C), this offense is a felony if the defendant “is an
active participant in a criminal street gang as defined in subdivision (a) of Section
186.22 .…” A violator of section 186.22, subdivision (a), is “[a]ny person who actively
participates in any criminal street gang with knowledge that its members engage in or
4.
have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers,
or assists in any felonious criminal conduct by members of that gang ….” Where the
defendant is not a gang member and none of the other enumerated conditions are met, a
violation of section 12031 is a misdemeanor. (Former § 12031, subd. (a)(2)(G).)
Rodriguez deals with the meaning of the requirement that, to be a gang member
under section 186.22, subdivision (a), a person must promote, further or assist in criminal
conduct “by members of that gang.” Specifically, the case answers the question whether
this language means the prosecution must prove the defendant committed a predicate
offense, either as a principal or an aider-and-abettor, in concert with another person who
was a gang member. (Rodriguez, supra, 55 Cal.4th at pp. 1128, 1131.) Some courts,
including this one, have held that this was not required, and that a person could be proved
to be a gang member based on a predicate offense in which he or she acted alone. (See
People v. Salcido (2007) 149 Cal.App.4th 356, 368, overruled by Rodriguez, supra, 55
Cal.4th at p. 1137, fn. 8.) Concluding that the predicate offense must be committed in
concert with another, the Supreme Court explained its reasoning as follows:
“Section 186.22(a) speaks of ‘criminal conduct by members of that
gang.’ (Italics added.) ‘[M]embers’ is a plural noun. The word
‘promotes, furthers or assists’ are the verbs describing the
defendant’s acts, which must be performed willfully. The phrase
‘any felonious criminal conduct’ is the direct object of these verbs.
The prepositional phrase ‘by members of that gang’ indicates who
performs the felonious criminal conduct. Therefore, to satisfy the
third element, a defendant must willfully advance, encourage,
contribute to, or help members of his gang commit felonious
criminal conduct. The plain meaning of section 186.22(a) requires
that felonious criminal conduct be committed by at least two gang
members, one of whom can include the defendant if he is a gang
member.” (Rodriguez, supra, 55 Cal 4th at p. 1132)
5.
Since former section 12031, subdivision (a)(2)(C), incorporates the definition of a
gang member from section 186.22, subdivision (a), the Rodriguez holding applies here.2
The People in this case did not attempt to prove that Muratalla possessed the gun in
concert with anyone, or that he committed any other predicate offense in concert with
anyone. It follows that Muratalla cannot be guilty of possessing a loaded firearm in a
public place while a gang member within the meaning of former section 12031,
subdivision (a)(2)(C), and that the possession offense is not a felony in this case.
We have authority under section 1181, subdivision (6),3 to modify the judgment to
a lesser included offense. (People v. Matian (1995) 35 Cal.App.4th 480, 487; People v.
Bechler (1998) 61 Cal.App.4th 373, 378-379.) Here, the error means Muratalla is not
guilty of a felony under former section 12031, subdivision (a)(2)(C), but guilty of a
misdemeanor under former section 12031, subdivision (a)(2)(G). We modify the
judgment accordingly and remand for resentencing on count 3.
II. DID THE TRIAL COURT VIOLATE THE CONFRONTATION CLAUSE OF
THE SIXTH AMENDMENT BY ADMITTING TESTIMONIAL HEARSAY
EVIDENCE?
Muratalla argues that the People’s gang expert relied on hearsay evidence and that
this reliance violated the confrontation clause of the Sixth Amendment. This argument is
based on Crawford v. Washington (2004) 541 U.S. 36, 53-54 (Crawford), in which the
United States Supreme Court held that admission of “testimonial” hearsay violates the
2 The Rodriguez holding does not apply, by contrast, to the gang enhancement
findings under section 186.22, subdivision (b). The Rodriguez court explicitly denied
that its reasoning applied to enhancements imposed under section 186.22, subdivision (b).
(Rodriguez, supra, 55 Cal.4th at pp. 1138-1139.)
3 “When the verdict or finding is contrary to law or evidence, but if the evidence
shows the defendant to be not guilty of the degree of the crime of which he was
convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the
court may modify the verdict, finding or judgment accordingly without granting or
ordering a new trial, and this power shall extend to any court to which the cause may be
appealed .…” (§ 1181, subd. (6).)
6.
confrontation clause unless the declarant is unavailable and the defendant had a prior
opportunity to cross-examine him or her. The court did not provide a definitive statement
of the meaning of “testimonial” hearsay, but one definition it mentioned with approval
was: “‘statements that were made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for use at a later
trial.’” (Id. at p. 52.)
The People contend that this issue has been forfeited because Muratalla did not
object to the gang expert’s testimony on these grounds in the trial court. We agree with
Muratalla, however, that objection was unnecessary because it would have been futile. In
People v. Thomas (2005) 130 Cal.App.4th 1202 (Thomas), which the trial court was
bound to follow, the Court of Appeal held that the admission of similar hearsay did not
contravene Crawford.
In Thomas, a prosecution gang expert testified to establish the elements of the
offense of gang participation under section 186.22, subdivision (a). (Thomas, supra, 130
Cal.App.4th at pp. 1205, 1207.) The expert testified that much of his expertise came
from statements made by other officers and by gang members. (Id. at p. 1207.) His
opinion that the defendant was a gang member was based in part on information he found
in police reports and statements of gang members who said the defendant was a member.
(Id. at p. 1206.) The defendant argued that the admission of the gang expert’s testimony
about the statements of other gang members violated the confrontation clause as
interpreted in Crawford. (Thomas, supra, at p. 1208.)
The Court of Appeal rejected this argument. It cited People v. Gardeley (1996) 14
Cal.4th 605, 618-619, which held that under Evidence Code sections 801 and 802, an
expert’s opinion can be based on otherwise inadmissible evidence and the expert can
testify about that basis if questioned. The Thomas court explained that this holding
survived Crawford:
7.
“Crawford does not undermine the established rule that experts can testify
to their opinions on relevant matters, and relate the information and sources
upon which they rely in forming those opinions. This is so because an
expert is subject to cross-examination about his or her opinions and
additionally, the materials on which the expert bases his or her opinion are
not elicited for the truth of their contents; they are examined to assess the
weight of the expert’s opinion. Crawford itself states that the confrontation
clause ‘does not bar the use of testimonial statements for purposes other
than establishing the truth of the matter asserted.’ [Citation.]” (Thomas,
supra, 130 Cal.App.4th at p. 1210.)
This holding controlled the hearsay issue in this case. A futile objection is not
necessary to preserve an issue for appellate review. (People v. Sandoval (2007) 41
Cal.4th 825, 837, fn. 4.) We proceed to consider the merits of the issue.
Bakersfield Police Officer Travis Harless testified for the prosecution as an expert
on gangs to establish the gang-relatedness of the shooting. To prove the elements of
gang-relatedness under section 186.22, subdivision (b), Harless described to the jury, and
relied upon, all of the following: records of the 16 times Muratalla had been booked into
the county jail; 19 offense reports involving Muratalla, three of which Harless discussed
in detail; police reports and probation reports describing crimes committed by four other
Loma Bakers members; and oral statements by various Loma Bakers and other gang
members about the customs and activities of Sureño gangs in Bakersfield.
In contending that Crawford means the evidence the expert relied on and testified
about should have been excluded, and that we should not follow Thomas, Muratalla cites
Williams v. Illinois (June 18, 2012) 567 U.S. ___ [132 S.Ct. 2221] (Williams). As we
will explain, there was no majority opinion in that case, and Muratalla does not rely on
the case’s outcome (finding no constitutional violation). He relies instead on statements
in Justice Kagan’s dissenting opinion (joined by three other justices) and in Justice
Thomas’s opinion concurring in the judgment.
Williams underwent a bench trial for rape. A technician from a state laboratory
testified that she analyzed a blood sample taken from Williams after his arrest and
developed a DNA profile. (Williams, supra, 132 S.Ct. at p. 2229.) Another prosecution
8.
expert testified that she compared that profile with a profile developed by a commercial
laboratory from semen found on the victim. (Id. at pp. 2229-2230.) The expert testified
that the profile from Williams’s blood and the profile from the semen on the victim’s
body matched. (Id. at p. 2230.) No one from the commercial laboratory testified, and the
expert’s implication that the data received from the commercial laboratory constituted an
accurate profile developed from the semen found on the victim was based on a hearsay
statement, namely, the commercial laboratory’s report. (Id. at pp. 2230, 2235-2236.)
There was also chain-of-custody evidence tending to show that the state laboratory sent
the semen samples taken from the victim’s body to the commercial laboratory. (Id. at p.
2230.)
Williams argued that the expert’s implicit affirmation that the results received
from the commercial laboratory were a profile of the DNA found on the victim was based
on testimonial hearsay and should have been excluded under Crawford. (Williams,
supra, 132 S.Ct. at pp. 2235-2236.) Justice Alito, in a plurality opinion that announced
the judgment of the court but was joined only by Chief Justice Roberts and Justices
Kennedy and Breyer (id. at p. 2227), rejected this argument on the grounds like those
relied on in Thomas, i.e., that the hearsay was not admitted to prove the truth of the
matter it asserted. (Williams, supra, 132 S.Ct. at p. 2236.) That the profile from the
commercial laboratory was developed from the semen on the victim was “a mere premise
of the prosecutor’s question” which the expert “simply assumed … to be true when she
gave her answer indicating that there was a match between the two DNA profiles.” The
import of the expert’s statement was only that the two samples she compared matched
each other. She was not testifying about where the samples came from, a matter that was
established by other evidence. (Ibid.) Since it was a bench trial, there was no danger of
the trier of fact failing to understand this. (Id. at pp. 2236-2237.)
As an alternative theory, Justice Alito’s opinion also stated that the commercial
laboratory’s report, even if statements about it were admitted for the truth of the matter
9.
asserted, was not testimonial because it “was not prepared for the primary purpose of
accusing a targeted individual.” (Williams, supra, 132 S.Ct. at p. 2243.) Instead, when
the state laboratory sent the semen sample to the commercial laboratory, “its primary
purpose was to catch a dangerous rapist who was still at large .…” (Ibid.)
Justice Thomas concurred in the judgment, adding the fifth vote necessary to
affirm the lower courts’ conclusion. (Williams, supra, 132 S.Ct. at p. 2255 (conc. opn. of
Thomas, J.).) He rejected, however, the plurality’s view that statements from the
commercial laboratory’s report were not admitted for the truth of the matter they asserted.
(Id. at p. 2256.) “[S]tatements introduced to explain the basis of an expert’s opinion are
not introduced for a plausible nonhearsay purpose. There is no meaningful distinction
between disclosing an out-of-court statement so that the factfinder may evaluate the
expert’s opinion and disclosing that statement for its truth,” since the factfinder must
decide whether the statement is true before evaluating the expert’s opinion. (Id. at p.
2257.) That other evidence might have established the same fact is not relevant to the
constitutional analysis: “The existence of other evidence corroborating the [facts forming
the basis of the expert’s opinion] may render any Confrontation Clause violation
harmless, but it does not change the purpose of such testimony and thereby place it
outside the reach of the Confrontation Clause.” (Id. at p. 2258.)
Justice Thomas agreed with the plurality’s result for a different reason: the
hearsay was not testimonial, but not for the same reason the plurality thought it was not
testimonial. In Justice Thomas’s view, “the Confrontation Clause reaches ‘“formalized
testimonial materials,”’ such as depositions, affidavits, and prior testimony, or statements
resulting from ‘“formalized dialogue,”’ such as custodial interrogation.” (Williams,
supra, 132 S.Ct. at p. 2260.) The commercial laboratory’s report “lacks the solemnity”
of these types of materials and therefore was not testimonial. (Ibid.)
Justice Kagan wrote a dissenting opinion joined by Justices Scalia, Ginsburg and
Sotomayor. (Williams, supra, 132 S.Ct. at p. 2264 (dis. opn. of Kagan, J.).) Like Justice
10.
Thomas, the dissenters concluded that information from the commercial laboratory’s
report was admitted through the expert for the truth of the matter it asserted. “[W]hen a
witness, expert or otherwise, repeats an out-of-court statement as the basis of a
conclusion … the statement’s utility is then dependent on its truth.” (Id. at p. 2268.)
Further, the hearsay was testimonial because the commercial laboratory’s report was “in
every conceivable respect, a statement meant to serve as evidence in a potential criminal
trial.” (Id. at p. 2275.)
Muratalla argues that we should combine Justice Thomas’s opinion with Justice
Kagan’s opinion to create Supreme Court authority for the view that the evidence here at
issue is testimonial hearsay, the admission of which violated the confrontation clause.
Those opinions, however, do not add up to that view. They might add up to five votes for
the conclusion that the evidence challenged here was admitted for the truth of the matter
asserted, since Justice Thomas and the dissenters agree that the evidence disclosed as the
basis of an expert’s opinion must be true to support that opinion. But there were not five
votes for any view of when statements are testimonial. The plurality thought the
evidence at issue was not testimonial for one reason, Justice Thomas thought it was not
testimonial for a different reason, and the dissenters thought it was testimonial under yet
a third rationale. The five justices withholding their votes from the plurality’s position
might not agree that the evidence on which Officer Harless relied was testimonial
hearsay. In light of this, the various opinions in Williams do not amount to authority for
Muratalla’s position.
In any event, it is not our practice to piece together various non-majority opinions
by Supreme Court justices for the purpose of anticipating what that court’s conclusions
might be in a case it has not considered. All we can say about Williams is that it upheld
the admission of the testimony at issue and that there was no majority rationale. Williams
fails to support Muratalla’s position for this reason as well.
11.
We see no adequate reason to depart from the analysis in Thomas, and the proper
approach, in our view, is to follow Thomas unless and until there is authority to do
otherwise. To hold that the gang expert’s testimony in this case violated the
confrontation clause would imply that section 186.22 prosecutions as currently practiced
are unconstitutional in general, and alternative methods would be hard to find. The
expert here was typical in his reliance on myriad items of hearsay from numerous police
officers, probation officers and gang informants. Presenting all those witnesses at trial
would be an obstacle all but insuperable. We will not impose that obstacle absent clear
authority requiring it.
III. WAS THERE SUFFICIENT EVIDENCE TO SUPPORT THE FINDING THAT
THE SHOOTING WAS GANG-RELATED?
Muratalla argues that the evidence was insufficient to support the jury’s finding on
the gang enhancement allegations pursuant to section 186.22, subdivision (b).4 “When
an appellant asserts there is insufficient evidence to support the judgment, our review is
circumscribed. [Citation.] We review the whole record most favorably to the judgment
to determine whether there is substantial evidence—that is, evidence that is reasonable,
credible and of solid value—from which a reasonable trier of fact could have made the
requisite finding under the governing standard of proof.” (In re Jerry M. (1997) 59
Cal.App.4th 289, 298.)
To prove a section 186.22, subdivision (b) gang enhancement, the prosecution
must show that the defendant committed the charged offense “for the benefit of, at the
direction of, or in association with any criminal street gang with the specific intent to
promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd.
4 Muratalla also contends that the evidence was insufficient for this reason to prove
the gang-membership element of possessing a loaded firearm in public while a gang
member, but we need not address that argument because we are reducing that offense for
the reasons already stated.
12.
(b)(1).) To prove that the group in association with which the defendant committed the
offense is a criminal street gang, the prosecution must establish that it is a group “of three
or more persons, whether formal or informal, having as one of its primary activities the
commission of one or more of the criminal acts enumerated [elsewhere in the statute],
having a common name or common identifying sign or symbol, and whose members
individually or collectively engage in or have engaged in a pattern of criminal gang
activity.” (§ 186.22, subd. (f).)
In People v. Sengpadychith (2001) 26 Cal.4th 316 (Sengpadychith), our Supreme
Court discussed the types of evidence that can establish the primary activities prong.
Expert testimony can be sufficient to prove this prong. As an example, the court
described a case in which a police expert testified that the defendant “had for nine years
been a member … primarily engaged in the sale of narcotics and witness intimidation .…
The gang expert based his opinion on conversations he had with [the defendant] and
fellow gang members, and on ‘his personal investigations of hundreds of crimes
committed by gang members,’ together with information from colleagues in his own
police department and other law enforcement agencies.” (Id. at p. 324.) Specific
instances of past or current enumerated criminal acts by gang members are also relevant
to the primary activities issue. (Id. at p. 323.) If all the evidence presented by the
prosecution establishes only occasional commission of enumerated criminal acts by
members of the defendant’s gang, then the primary activities element is not proven. (Id.
at pp. 323-324.)
Officer Harless testified that he had been a member of the police department’s
gang unit for just over a year and went to the Loma Bakers’ territory almost every day
while on duty. He spoke to gang members daily and often arrested them for gang-related
crimes. From these contacts, he learned the boundaries of the Loma Bakers’ territory,
their rivalries and alliances, and their primary activities. Asked about the Loma Bakers’
primary activities, he testified: “[T]hey commit property crimes, different kinds of thefts.
13.
They commit assaults on rivals. They commit assaults with firearms, illegal firearm
possession, things like that.”
Harless also testified about specific instances of criminal acts by Loma Bakers
members. Rene Cazares possessed methamphetamine for sale in 2003. Mario Gomez
and Michael Soto committed an assault with a deadly weapon (a baseball bat) in 2005.
Andres Ibarra was a felon in possession of a firearm in 2008.
Muratalla first argues that Harless’s testimony was insufficient evidence to support
the primary activities element because some of his remarks showed that he did not have a
proper understanding of the meaning of primary activities. Harless testified that illegal
firearm possession was a primary activity of the Loma Bakers, but he later gave an
affirmative answer when asked if it was “actually rare that you’ll contact with a Loma
Baker who has a gun.” Muratalla argues that because a primary activity cannot be one
that a gang’s members engage in only occasionally, Harless must have misunderstood
what a primary activity is and therefore his testimony about the Loma Bakers’ primary
activities cannot establish that element.
As the People point out, however, other testimony given by Harless explains how
he could consistently say both that firearm possession is a primary activity of the Loma
Bakers and that members of the Loma Bakers are not often found with firearms.
Explaining how Bakersfield gangs manage their stocks of firearms to avoid detection,
Harless said that gangs often “keep them in a central location, maybe a vacant house or at
a person’s house where they know there’s nobody on probation or parole so it’s less
likely law enforcement is going to go to that location .…” Members wanting a gun to
commit a crime then know where to go to obtain one. This testimony shows how illegal
firearm possession can be a primary activity of a gang even though most of the gang’s
members carry a gun only infrequently. Harless therefore did not exhibit any
misunderstanding of the term “primary activities” and there is no reason for us to hold
14.
that his testimony using that term should be disregarded in the sufficiency-of-evidence
analysis.
Muratalla points out Harless never said the Loma Bakers keep guns in a central
location, but that is beside the point. Muratalla’s argument is that Harless’s statements
about the Loma Bakers’ possession of guns were inconsistent, and therefore cannot be
substantial evidence. The fact that a gang—any gang—can have guns in a central
location, available to members at all times even though most members usually are not in
actual possession, shows that Harless’s statements were not inconsistent.
Muratalla next argues that the People did not show a large enough number of
specific criminal acts by Loma Bakers members. The three prior crimes by four
members, plus the current offense, make only four incidents over a period of seven years.
This, Muratalla contends, proves no more than occasional commission of enumerated
offenses by Loma Bakers members.
There is, however, no rule that any particular number of offenses over any
particular time period must be shown to establish that committing enumerated crimes is a
primary activity of a gang. As we have said, expert testimony based on field experience
can be evidence sufficient to prove the primary activities element. Muratalla cites cases
in which small sets of specific instances of criminal conduct were held to be insufficient
to show a gang’s primary activities, but in each of those cases there was no expert
testimony stating that the gang committed enumerated crimes as a primary activity, or
else the expert testimony lacked foundation. (People v. Perez (2004) 118 Cal.App.4th
151, 160; In re Alexander L. (2007) 149 Cal.App.4th 605, 614.)
We conclude that Officer Harless’s opinion testimony and his testimony about
specific offenses committed by Loma Bakers members constituted substantial evidence
that the Loma Bakers’ primary activities included the commission of crimes enumerated
in section 186.22. Muratalla’s arguments that Harless contradicted himself and did not
discuss a sufficient number of specific instances are without merit.
15.
IV. EFFECTIVE ASSISTANCE OF COUNSEL
Muratalla argues that several aspects of his trial counsel’s performance amounted
to a deprivation of the effective assistance of counsel guaranteed by the Sixth
Amendment. To establish ineffective assistance of counsel, a defendant must show that
counsel’s performance “fell below an objective standard of reasonableness,” and that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” (Strickland v. Washington (1984) 466
U.S. 668, 688, 694; see also People v. Hester (2000) 22 Cal.4th 290, 296.) Our review of
trial counsel’s actions is deferential. To establish that counsel’s actions were objectively
unreasonable, the appellate record must affirmatively show that counsel had inadequate
reasons for taking those actions, or else that there simply could not possibly be any good
reason for them. (People v. Kipp (1998) 18 Cal.4th 349, 367.) Further, it is not
necessary to determine whether counsel’s challenged action was professionally
unreasonable in every case. If the reviewing court can resolve the ineffective assistance
claim by proceeding directly to the issue of prejudice—i.e., the issue of whether there is a
reasonable probability that the outcome would have been different absent counsel’s
challenged actions or omissions—it may do so. (Strickland v. Washington, supra, at p.
697.) Muratalla has not established that his counsel’s alleged errors amounted to
ineffective assistance either separately or cumulatively.
A. Voir Dire
Muratalla contends that his counsel acted unreasonably in conducting voir dire
during jury selection. Specifically, he did not challenge for cause or excuse via
peremptory challenge (though he left many of his peremptory challenges unused) two
prospective jurors who were employed in law enforcement. One juror was a juvenile
correctional officer who had received some gang-related training and who had a brother
who was a California Highway Patrol officer. The other wrote reports and petitions at the
Kern County Probation Department and also had received gang-related training. Both
16.
served on the jury. Another prospective juror was a nurse employed by the California
Department of Corrections and Rehabilitation. Muratalla’s counsel did not challenge her
and she became an alternate, and ultimately served as a juror when a seated juror was
excused before opening statements. More generally, Muratalla says counsel
unreasonably failed to question jurors to find indications of bias. He says counsel did not
ask any prospective jurors whether they had an inclination to favor testimony by law
enforcement personnel, did not follow up when a prospective juror, who ultimately
served on the jury, said her daughter had been a victim of a violent crime but her ability
to serve would not be affected, and did not ask the prospective alternates any questions.
The jury foreperson was not asked whether anyone close to her worked in law
enforcement or had been a victim of a violent crime.
The record does not disclose trial counsel’s reasons for allowing the correctional
officer, the probation department employee and the prison nurse to serve. As we have
said, counsel’s actions cannot be found unreasonable based on a silent record unless there
simply could be no valid reason for them. The exercise of peremptory challenges is
“‘“inherently subjective and intuitive [and] an appellate record will rarely disclose
reversible incompetence in this process.”’” (People v. Coffman and Marlow (2004) 34
Cal.4th 1, 48.) There could have been other reasons why counsel found these three jurors
acceptable or even desirable compared with others who might have served had these
three been excused.
Similarly, the record does not show that there were no sound tactical reasons for
counsel’s decision to refrain from asking certain questions about bias in favor of law
enforcement personnel. It has been held that even asking no questions can be a sound
tactical approach. “For example, questioning by other parties may convince counsel that
the juror would be favorable for the defense, and that further questions might only
antagonize the juror or give the prosecution a reason to use a peremptory challenge or
even grounds for a challenge for cause.” (People v. Freeman (1994) 8 Cal.4th 450, 485;
17.
see also People v. Horton (1995) 11 Cal.4th 1068, 1123 [professionally unreasonable
conduct not shown where counsel’s decision not to ask prospective jurors about racial
bias could have been result of sound tactical decision].)
Muratalla also has not shown prejudice arising from counsel’s actions during jury
selection. “Nothing in the record suggests the actual jury was biased, or that it is
reasonably probable a different jury would have been more favorably disposed towards
defendant.” (Freeman, supra, 8 Cal.4th at p. 487.)
For these reasons, we conclude that Muratalla has not established ineffective
assistance of counsel based on his counsel’s conduct during jury selection.5 Cases he
cites do not persuade us otherwise. In Winn v. State (Tex.App. 1993) 871 S.W.2d 756,
763, the appellate court concluded that defense counsel’s performance in not asking
certain questions “demonstrates a lack of preparation.” The record in this case, by
contrast, does not demonstrate ineffective assistance; rather, it simply fails to disclose the
reasons for counsel’s actions, fails to prove that they were not based on sound tactical
considerations, and fails to establish prejudice. In Walker v. State (Tex.App. 2006) 195
S.W.3d 250, 256-257, a prosecution for resisting arrest, six prospective jurors identified
themselves as working or having close relatives who worked in law enforcement. When
the prosecutor asked them whether this background would affect them as jurors, one said
it depended on the situation, and several others told stories about officers being injured or
killed by suspects resisting arrest. Defense counsel asked no questions at all. Three of
the people with law enforcement connections served as jurors. In a hearing on a new trial
motion, defense counsel said it never occurred to him to ask whether the prospective
jurors would be inclined to find law enforcement witnesses more credible and said that
since he had been a law enforcement officer himself, he was certain they would not be
5 Muratalla’s claim of ineffective assistance in conducting voir dire may be more
appropriately raised in a petition for writ of habeas corpus. (People v. Mendoza Tello
(1997) 15 Cal.4th 264, 266-267.)
18.
biased. There is nothing similar in this case. Muratalla’s defense counsel never stated
any reasons for his tactical decisions, let alone obviously inadequate ones like these.
Finally, in People v. Wagner (N.Y.App. 1984) 104 A.D.2d 457, 459, among numerous
other problems (e.g., he “displayed a forgetfulness of basic principles of criminal law and
procedure” and his “opening statement was essentially irrelevant and incoherent”),
defense counsel did not challenge any prospective juror peremptorily or for cause, and
the result was a jury that “resembled ‘a miniature police force,’ in that 9 of the 12 jurors
had friends or relatives on various police forces, and one juror had two sons who were
police officers .…” This case is not similar.
B. Opening Statement
Next, Muratalla contends that his trial counsel rendered ineffective assistance by
not making an opening statement. This argument is without merit. As Muratalla
concedes, trial counsel’s decision “whether to waive opening statement” is a matter “of
trial tactics and strategy which a reviewing court generally may not second-guess.”
(People v. Mitcham (1992) 1 Cal.4th 1027, 1059.) Muratalla contends that his trial
counsel could not have had a strategic reason for presenting no opening statement
because he had already indicated at a prior hearing that his strategy would be to challenge
the prosecution’s proof of intent and gang-relatedness, and there was no reason not to call
the jury’s attention to these points in an opening statement. Even under these
circumstances, however, it could be a sound tactic to wait until after the prosecution
presented its evidence to make a final decision about how best to defend the case. The
record shows neither that it was professionally unreasonable not to make an opening
statement, nor that there is a reasonable probability that making one would have led to a
different outcome.
C. Prior Crimes Evidence
Muratalla argues that several items of evidence revealed prior crimes of which
Muratalla had been suspected or accused, and that this evidence was inadmissible and
19.
prejudicial. He says his trial counsel rendered ineffective assistance by not objecting to
it.
As part of his expert testimony, Officer Harless testified that he reviewed 16
records of Muratalla being booked in to jail. These records supported Harless’s opinion
that Muratalla was a gang member because, in each booking, Muratalla “claimed South,
Southside, Bakers or something to that effect” so that he would be housed away from
Norteños. Muratalla says the booking records were irrelevant, and Harless should not
have been permitted to mention them, because they showed only that Muratalla was a
Sureño—not a Loma Baker—and the prosecution’s theory was specifically that he was a
Loma Baker. We disagree. The Loma Bakers are a subset of the Sureños. Evidence that
someone is a Sureño has a tendency in reason to support the proposition that he is a
member of a particular subset since, logically, he could not be a member of the subset
unless he were also a Sureño. For this reason, each booking record was admissible.
Further, all were probative. A current denial of gang membership is more effectively
undermined by many past instances of membership affirmance, spanning a significant
period of time, than by a few past instances. The fact that evidence tends to strongly
prove a charged allegation, rather than weakly, does not show that it is substantially more
prejudicial than probative under Evidence Code section 352. We do not think that statute
entitled Muratalla to hide most of his many admissions of gang membership in order to
avoid revealing his many arrests to the jury. Trial counsel’s failure to object was not
professionally unreasonable because the evidence was relevant and admissible as a basis
for Harless’s opinion.
A similar analysis applies to Muratalla’s argument that the booking records should
have been objected to as cumulative because Harless testified that he also knew Muratalla
was a Sureño gang member from Bakersfield from his tattoos. The tattoos were
comparable to admissions on Muratalla’s part that he was a gang member. A larger
number of admissions adds weight to the prosecution’s contentions, and does so fairly.
20.
Evidence that a gang member has frequently made a point of declaring to the world that
he is a gang member is not unduly prejudicial evidence in support of gang allegations.
Muratalla discusses seven other points on which he believes his trial counsel
should have raised the objections that evidence was irrelevant, was inadmissible hearsay,
was substantially more prejudicial than probative under Evidence Code section 352, or all
three:
1. Harless mentioned the 19 offense reports he reviewed, but said only four of these
were significant for purposes of his expert testimony. Muratalla maintains that the
existence of the other 15 was irrelevant and prejudicial.
2. Harless discussed Muratalla’s contact with police on August 21, 2009, saying it
was significant because police found Muratalla in the company of a Loma Baker
member. Harless went on, however, to reveal other details of that contact:
Muratalla put something in his mouth which the officers believed was heroin; his
companion was in possession of a counterfeit check; and Muratalla and his
companion were both arrested for parole violations at that time. Muratalla says
that all these details were irrelevant because Harless said the contact was
significant only because Muratalla was found with another gang member; and they
were prejudicial because they were evidence of Muratalla’s bad character.
3. Harless said Muratalla’s April 1, 2005, contact with police was significant for
purposes of his expert opinion because Muratalla was arrested for vehicle theft,
which Harless said was a primary activity of the Loma Bakers. But Harless went
on to say that Muratalla had been disturbing the peace before the officers arrived,
that he discarded a methamphetamine pipe when they arrived and was arrested for
possession of drug paraphernalia, and that he was in possession of counterfeit
money. Again, Muratalla argues that this additional information was irrelevant
and prejudicial.
4. Further, Muratalla was never charged with vehicle theft as a result of the April 1,
2005, contact, so the evidence of that contact was not even relevant to show he
committed a vehicle theft.
5. Even if Muratalla did commit a vehicle theft, he argues, that would not show he is
a member of a gang that commits vehicle thefts. Many people commit vehicle
thefts without being gang members.
6. Harless said the report of Muratalla’s contact with police on April 14, 2004, was
significant for purposes of his expert opinion because Muratalla was found in
possession of a knife and arrested for carrying a concealed weapon, weapon
21.
possession being a primary activity of the Loma Bakers. Again, Muratalla argues
that the evidence did not support Harless’s opinion. Offenses that form the
primary activities of gangs are often committed by people who are not gang
members.
7. In a recorded statement, the victim, Delarosa, said he participated in a beating
administered to Muratalla as gang discipline on the orders of gang leaders who
were dissatisfied with Muratalla’s performance as a gang member. Muratalla had
been “beating people up too much.” The recording was hearsay admissible as a
prior inconsistent statement, because Delarosa testified that he did not remember
the incident. Muratalla argues, however, that the reason for the gang discipline—
that Muratalla was beating people up too much—was not part of the prior
inconsistent statement, and was prejudicial.
Assuming meritorious objections existed on each of these points, we conclude that
Muratalla has not shown he was prejudiced by counsel’s failure to make them. He says
he was prejudiced because evidence that should have been excluded was admitted and
tended to show he had a bad character, making the jury more likely to find him guilty as
charged, more likely to find him to be a gang member and more likely to find the offense
to be gang-related. By arguing for a lesser offense, however, Muratalla effectively
conceded that he shot Delarosa and argued only that he had no intent to kill him. There
was nothing about Muratalla’s prior arrests and offenses that tended to show he was the
kind of person who intended to kill others. As for the gang allegations, there was very
powerful admissible evidence in support of them. Muratalla had gang tattoos, admitted
he was a gang member to booking officers 16 times, was identified by Delarosa as a
Loma Baker, and received gang discipline in jail. He initiated the confrontation with
Delarosa using the language of a gang challenge.6 Harless’s expert testimony supported
6 Muratalla says the evidence of the gang-relatedness of the shooting is “far from
compelling” based on two remarks Delarosa made in his recorded police interview. First,
Delarosa said Muratalla’s comments initiating the confrontation were an attempt “to
make sure I was who I … am.” Second, when asked if the Loma Bakers and Southside
Bakers “have a beef going on or if it’s just between you and him,” Delarosa said, “Yeah.
It was between us.” Muratalla says both of these remarks mean the confrontation
between the two men was personal and not gang-related. In so arguing, Muratalla
overlooks Delarosa’s trial testimony that Muratalla initiated the confrontation by asking
22.
the conclusion that it was a gang-related confrontation. And there was no reasonable
doubt that the Loma Bakers are a criminal street gang. There is no reasonable probability
that Muratalla would have obtained a better outcome if his counsel had made objections
on these issues.
D. Defense Counsel’s Closing Argument
Defense counsel’s closing argument developed two themes: the evidence did not
show that Muratalla had an intent to kill Delarosa and the conflict between the two men
was over a woman and was not gang-related.
Muratalla now argues that this closing argument was constitutionally inadequate
because counsel could have done a better job of developing these themes. He presents a
list of details he feels trial counsel should have focused on:
1. Defense counsel did not emphasize the elements necessary for a finding of
premeditation and deliberation; he should have done so in response to the
prosecutor’s argument that premeditation and deliberation are like deciding
whether to proceed through a yellow light.
2. Defense counsel did not reiterate the jury instruction stating that if Muratalla’s
intent were subject to two reasonable interpretations, the jury was required to
adopt the interpretation under which Muratalla was less culpable.
3. Defense counsel did not point out certain facts arguably undermining the claim
that he intended to kill and supporting the view that he acted thoughtlessly and
impulsively: Muratalla left the scene with bullets left in his gun and Delarosa still
standing; there was no evidence that Muratalla expected to encounter Delarosa
that day and brought a gun with a plan to shoot Delarosa in mind; Muratalla could
have been carrying the gun for protection; Delarosa said Muratalla looked
“tweaked out” this was not suggestive of a cold and calculating mood; Delarosa
told Muratalla to leave and Muratalla responded by saying “fuck this” and drawing
the gun.
what gang Delarosa was from (Southside Bakers) and saying what gang he was from
(Loma Bakers), and that Delarosa understood this, in the gang context, as a challenge to
fight. In our view, this testimony was indeed compelling evidence that the confrontation
was gang-related, while the statements from the police interview that Muratalla relies on
were equivocal and did not seriously undermine Delarosa’s trial testimony.
23.
4. Defense counsel did not emphasize facts that could undermine the theory that the
shooting was gang-related: When Muratalla approached Delarosa and asked if he
was Fernando Delarosa from the south side, he could have simply been trying to
ascertain Delarosa’s identity, not challenging him to engage in a gang conflict;
Delarosa had never had a conflict with a Loma Baker before and while he had
seen Loma Bakers members “trying to gang bang on” Southside Bakers, he
classified these as personal conflicts, not gang conflicts; although Delarosa knew
Muratalla as “Oso from Loma Bakers,” it remained possible that (unknown,
somehow, to Delarosa) Muratalla and Delarosa were actually both members of
Southside Bakers.
Muratalla’s critique of the fine-grained details of counsel’s closing argument does
not establish ineffective assistance of counsel. Our review of the professional
reasonableness of counsel’s tactical choices is deferential, and in the absence of record
evidence of the reasons for counsel’s approach, we do not find reversible error unless
there simply could be no good reason for it. The record does not reveal counsel’s
reasons, and it is not the case that there could be no good reason for presenting the
defense themes in a briefer manner that Muratalla now wishes his counsel had done.
Further, Muratalla’s critique does not demonstrate prejudice. We cannot say it is
reasonably probable that the jury would have reached a different verdict if defense
counsel’s closing argument had focused on the details Muratalla now lists.
E. Failure to Object to Prosecutor’s Closing Argument
An eyewitness, Sergio Merino, testified that he saw Muratalla pointing the gun
“[d]irectly at him,” i.e., at Delarosa. In his summation, defense counsel made remarks
that appeared to be intended to undermine this testimony. He said that because the police
searched for and did not find evidence of bullet strikes on buildings downrange from
Delarosa, the barrel of Muratalla’s gun must not have been pointed “in the direction of
the person running away,” i.e., must not have been pointed toward Delarosa. In his
rebuttal argument, the prosecutor made the following remarks, apparently in response to
these comments by defense counsel:
24.
“Now, in this case, you’re only allowed to rely upon the evidence.
You’re not allowed to rely upon conjecture—oh, he must have [been]
shooting in the air. No.
“Sergio Moreno got on the stand. He was asked where was the gun
pointed. Directly at the person running away. You have an eyewitness to
the event telling you exactly where the gun was pointed.
“Okay. Whether a tiny little .22 shell was found in a wall, that’s—
you can’t get the inference from that that he was shooting wildly into the
air.
“The direct evidence of an eyewitness tells you where Mr. Muratalla
was shooting. That is what you can rely upon.
“There’s no evidence that he was shooting in the air, none
whatsoever. You cannot rely upon that.
“You can rely upon the evidence, the documents, the photos, the
testimony—not conjecture, not stuff that’s just made up.”
Muratalla now argues that these remarks misstated the law by implying that the
jury could not rely upon a lack of evidence in concluding that there was a reasonable
doubt of his guilt. (See People v. Simpson (1954) 43 Cal.2d 553, 566 [“[R]easonable
doubt … may well grow out of the lack of evidence in the case as well as the evidence
adduced.”].) He says his counsel rendered ineffective assistance by not making an
objection to that effect.
We do not see how an objection on this point could have made any difference to
the jury. It is undisputed that a bullet from Muratalla’s gun struck Delarosa. Muratalla
does not suggest that the bullet ricocheted. This means the gun necessarily was fired
directly at Delarosa at least once. If all four shots had missed, Muratalla could rationally
have made an argument that he never pointed the gun directly at Delarosa, and then used
that argument to support a further argument that he had no intent to kill. As it was,
however, the eyewitness’s testimony that the gun was pointed “directly at” Delarosa only
stated what was already obvious from the undisputed facts. An objection to the
prosecutor’s comments about evidence versus conjecture, even if sustained, therefore
25.
could not rationally have had any impact on the jury’s conclusions about whether the gun
was fired directly at Delarosa. It follows that there is no reasonable probability that
Muratalla would have obtained a better outcome if his counsel had objected.
Muratalla also briefly mentions that during his rebuttal argument, the prosecutor
implied that any shooting in which a victim is injured is always attempted murder and
never assault with a firearm. He does not present any arguments or cite any authorities
on this subject. He also does not mention that the prosecutor made similar comments
during his initial closing argument, that defense counsel objected, that the objection was
sustained, or that defense counsel explicitly criticized the prosecutor on this point in his
closing statement. Because Muratalla does not present any arguments or cite any
authorities to support this subject, we conclude that he has forfeited this issue.
(Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21
Cal.4th 352, 366 fn. 2. [Points that are not supported by analysis of the facts and citation
of legal authority are deemed forfeited.].)
DISPOSITION
On count three, the felony of carrying a loaded firearm in public while being an
active gang member (former § 12031, subd. (a)(2)(C)), the judgment is modified to
reduce the offense to the misdemeanor of carrying a loaded firearm in public (former
§ 12031, subd. (a)(2)(G)). The case is remanded to the trial court for resentencing on that
count. The judgment is otherwise affirmed.
26.
_____________________
Franson, J.
WE CONCUR:
_____________________
Levy, Acting P.J.
_____________________
Kane, J.
27.
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12 N.Y.3d 918 (2009)
PEOPLE
v.
NAGEL.
Court of Appeals of New York.
June 10, 2009.
Application in criminal case for leave to appeal denied. (Lippman, Ch.J.).
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668 F.2d 795
Carole Hyman BURSTEIN, Plaintiff-Appellant,v.The STATE BAR OF CALIFORNIA, Defendant-Appellee.
No. 80-4017.
United States Court of Appeals,Fifth Circuit.
Feb. 12, 1982.
Carole Hyman Burstein, pro se.
Robert M. Sweet, Los Angeles, Cal., for defendant-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before REAVLEY and RANDALL, Circuit Judges.*
ON PETITION FOR REHEARING
PER CURIAM:
1
The court has concluded that its consideration of this case would be benefited by oral argument. Accordingly, the panel opinion, 659 F.2d 670, is withdrawn. The Clerk is instructed to set the case on the oral argument calendar and to establish a supplemental briefing schedule addressing the arguments pertaining to the proper test of personal jurisdiction raised in the plaintiff-appellant's petition for rehearing.
*
Due to his death on December 22, 1981, Judge Ainsworth did not participate in this decision
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591 S.E.2d 436 (2003)
264 Ga. App. 526
PORTER
v.
The STATE.
No. A03A1688.
Court of Appeals of Georgia.
December 3, 2003.
*438 Lee W. Fitzpatrick, Alison K. Frutoz, for appellant.
David McDade, Dist. Atty., Paul J. Miovas, Jr., James E. Barker, Asst. Dist. Attys., for appellee.
*437 ANDREWS, Presiding Judge.
A Douglas County jury found Willie Carl Porter guilty of two counts of theft by receiving, seven counts of burglary, and one count of felony obstruction of an officer. On appeal, Porter claims the trial court erred in failing to grant his motions to suppress (1) evidence resulting from the initial stop and subsequent search of a red Jeep Cherokee he was driving on January 6, 2000, (2) evidence seized in the execution of a search warrant for the residence of Talitha Desiree Leever, and (3) his in-custody statement to Investigator James Harrell. Porter also claims the trial court erred in allowing improper similar transaction evidence, in failing to direct a verdict in his favor on the burglary counts, and in failing to charge the jury on theft by receiving as a lesser included charge of burglary. For reasons that follow, we affirm.
*439 1. Porter contends the trial court erred in denying his motion to suppress the results of the search of the red Jeep Cherokee he was driving on January 6, 2000, because the police did not have reasonable, articulable suspicion to stop the Jeep to question him. We disagree.
On review of the grant or denial of a motion to suppress, this Court "construe[s] the evidence most favorably to uphold the findings and judgment of the trial court, and we will not disturb the trial court's findings on disputed facts and credibility unless those findings are clearly erroneous." (Citation omitted.) Vaughn v. State, 247 Ga.App. 368(1), 543 S.E.2d 429 (2000). So viewed, the evidence shows that around 9:20 a.m. on January 6, 2000, Bonita Martin and Susan Arnett were home when they noticed a red Jeep Cherokee pull into their driveway. After the Jeep remained in the driveway without moving for about five minutes, Martin went to the front door to investigate. Martin saw a teenage girl peering into the garage windows. When Martin asked the girl what she was doing, the girl responded that she was looking for someone with her school books. The girl then got into the Jeep with a man that Martin judged to be "a good bit older than her," and the Jeep drove away. Martin noticed a small spare tire in place on the rear of the Jeep. Martin discussed the incident with Arnett and they decided to call the police.
Martin thought the incident was suspicious because school would have been in session, the Jeep had remained in the driveway for a long time without anyone ringing the doorbell, and because of the age difference of the couple in the Jeep. Arnett telephoned the police to report that someone was "casing" their house or the neighborhood. Police were also aware of a postal worker's report the preceding day of a red vehicle with a man and woman inside acting suspiciously in the vicinity of a burglary.
On the morning of January 6, 2000, Maria Leaman was on patrol duty for the Douglas County Sheriff's Department. She received a "lookout" over the police radio. Leaman was informed that two people, a man and woman, had pulled into a lady's driveway in a red Jeep Cherokee and that they had walked around her house, had seemed suspicious, and when confronted gave a "lame" excuse as to why they were there. Leaman was also told that a spare tire was in place on the left rear of the vehicle. About five minutes after receiving the lookout, Leaman saw a red Jeep Cherokee and followed it into a subdivision, where it turned into a residential driveway. Leaman turned into the driveway and parked behind the Jeep. Leaman did not turn on her lights and siren. The windows of the Jeep were tinted dark, and Leaman could not tell who was in the vehicle. Leaman thought the residents of that address could be in the Jeep.
Leaman called in the tag number of the Jeep; she then got out and began walking toward the driver's side of the vehicle. As she walked up, she noticed the spare tire on the back of the Jeep, which was smaller than the other tires. About this time, Deputy Jeff Davis arrived, running his siren and lights, and pulled in behind Leaman's vehicle. Davis had personally worked on two residential burglaries in the area and knew that police had developed a lead on a red vehicle. Davis testified that he responded with lights and sirens activated because weapons had been stolen in the previous burglaries and because Leaman reported she was in contact with the suspect vehicle.
The window on the driver's side of the Jeep was rolled down and Leaman saw a man and woman inside. Leaman asked the driver, later identified as Porter, who he was and what he was doing, but he did not respond and instead began rummaging through the console between the two seats. Leaman then asked Porter to step out of the vehicle, and she intended to handcuff him and check him for weapons. Porter did not respond. Leaman opened the door of the Jeep, and Porter rushed out of the vehicle, knocking Leaman down, then jumped over a fence and ran from the scene. Leaman chased Porter until she heard the sound of gunshots, and then returned to her vehicle. When she got back to the patrol car she learned that the Jeep had been reported stolen. Porter was tracked by K-9 officers and arrested later that day.
*440 While Leaman was asking Porter to exit the Jeep, Davis went to the passenger's side of the vehicle and removed the woman, Leever. After Porter knocked Leaman down, Davis put Leever in a patrol car and went to assist Leaman. Off-duty police officer Roger Jones saw Leaman and Davis chasing Porter through a neighbor's yard, and came outside to help. Jones noticed Leever, who had managed to kick out the windows of the patrol car and was running down the street toward Jones's house. Jones chased Leever, but she pulled out a gun and shot him twice. Davis was able to locate and take Leever into custody approximately ten to fifteen minutes after she shot Jones.
An officer may conduct a brief investigative stop of a vehicle if the stop is justified by "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." (Footnote omitted.) Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A court must consider whether, under the totality of the circumstances, the police officer had "a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Porter claims that the police did not have a reasonable, articulable suspicion to detain him and that therefore evidence stemming from his arrest and the subsequent search of the Jeep and of Leever's home should have been suppressed. In particular, Porter contends that Leaman's actions were taken only because she saw a red Jeep, and not because of any suspicious activity, and because she saw a mixed race couple inside the Jeep after approaching it.
When Leaman pulled up behind the stationary vehicle, she did not have her lights or siren activated, and her first action after approaching the Jeep was to ask for identification. "A police officer may approach a citizen, ask for identification, and freely question a citizen with or without any basis or belief that the citizen is involved in criminal activity, as long as the officer does not detain the citizen or create the impression that the citizen may not leave." Ransom v. State, 239 Ga.App. 501, 503(1), 521 S.E.2d 430 (1999). When Davis arrived with his sirens and lights activated, the occupants of the Jeep may have been under the impression that they were not free to leave. But roughly contemporaneous to Davis's arrival, Leaman had noted the spare tire fitted on the back of the Jeep and found the occupants of the Jeep matched those described in the lookout for the vehicle. At that point, the Jeep and its occupants could be specifically identified as connected to the events at the Martin residence, the Jeep was on residential property, and the occupants refused to explain what they were doing. See Cox v. State, 263 Ga.App. 266, 587 S.E.2d 205 (2003) (totality of circumstances, which included unexplained presence of van in parking lot after hours, constituted reasonable suspicion of criminal activity).
Accordingly, the police officers had reasonable suspicion of criminal activity and were authorized to conduct a brief investigatory detention. Porter was never actually detained because he fled the scene on foot, and his subsequent arrest was for probable cause. See, e.g., Burgeson v. State, 267 Ga. 102, 475 S.E.2d 580 (1996) (flight may be a significant factor in determining probable cause). Because the Jeep was stolen, Porter had no expectation of privacy in its contents. Sanborn v. State, 251 Ga. 169-170(1), 304 S.E.2d 377 (1983). The trial court did not err in denying Porter's motion to suppress the evidence stemming from the alleged "stop" of the red Jeep Cherokee.
2. Porter claims the trial court erred in denying his motion to suppress evidence seized during the search of Leever's residence because there was no probable cause to issue the search warrant. We disagree.
In determining whether an affidavit provided sufficient probable cause, the issuing magistrate or judge must make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a *441 crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for concluding" that probable cause existed.
(Punctuation and footnote omitted.) Shivers v. State, 258 Ga.App. 253, 254, 573 S.E.2d 494 (2002). As a threshold issue, we note that Porter was staying at Leever's residence, and it was implicit in the trial court's ruling on the motion to suppress that Porter had standing to challenge the search.
The information in the affidavit submitted by Lieutenant Bobby Holmes to support the issuance of the search warrant for Leever's residence included a confession made by Leever to police in which she admits to having been involved in recent burglaries and also admits there was stolen property at her residence. But, at the hearing on motion to suppress, the State stipulated that the trial court should not consider the portion of the affidavit recounting Leever's confession in determining whether there was probable cause to issue the search warrant.
In arguing this appeal, the State references Leever's confession in its argument that the affidavit showed probable cause. But, we do not see how the State could ask the trial court to excise that part of the affidavit and then insinuate that this Court should consider it.
There is precedent for considering the remainder of an affidavit after a portion has been excised. For instance, false statements in an affidavit submitted in support of a search warrant may be excised and the remaining content examined to determine if the affidavit was sufficient to establish probable cause. Redding v. State, 192 Ga.App. 87, 383 S.E.2d 640 (1989). We will, as the trial court did, only consider the portion of the affidavit which does not include Leever's confession.
The unexcised portion of the supporting affidavit, standing alone, may not show probable cause for the search of Leever's residence. The affidavit provides that there had been two recent burglaries; a black male and white female had been seen near the scene of one of the burglaries; a black male and white female driving a red Jeep Cherokee were seen acting "suspicious" near a residence; a vehicle matching that description had been stopped by a deputy; and the occupants of the vehicle had fled on foot and the female had been apprehended. However, in determining whether probable cause exists, the issuing magistrate may consider any sworn testimony given to the magistrate as well as facts in the affidavit. See Dobbins v. State, 262 Ga. 161, 163(3), 415 S.E.2d 168 (1992). When asking for the search warrant, Lieutenant Holmes told the judge that Leever shot an officer while in custody and her male companion was currently "on the run." Considering the totality of the circumstances, including the affidavit as excised, and the oral testimony given to the issuing judge, we conclude that probable cause existed to search Leever's residence for evidence of a crime. Leever's companion was then at large, making her residence a logical place to search for him. Leever fled after being stopped by police, and shot an officer in the process, making it reasonable to conclude she did so with a consciousness of guilt connected to her "suspicious" activities around the residence where she was seen earlier. Accordingly, we conclude that the trial court did not err in denying Porter's motion to suppress.
3. Porter claims the trial court erred by failing to suppress his in-custody statement to Investigator Harrell because his statement was improperly induced by hope of benefit. Under OCGA § 24-3-50, "[t]o make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury." Porter claims Harrell promised that if Porter told the truth, Porter would not have to go to a jury trial and that Porter should tell the truth so the police could help him. The transcript does not support this characterization. At the Jackson-Denno hearing, defense counsel asked Harrell whether he told Porter "if he would cooperate with you and just tell the truth that that would make him avoid having to have a jury trial?" Harrell denied suggesting to Porter that Porter's case would not have to go to court, and although Harrell *442 agreed that "something along those lines" may have come up, he did not admit to making the statement to Porter. However, Harrell did admit to saying to Porter, "you better decide right now whether you're going to tell the truth and you're going to let us try to help you or whether you're just going to lie?" Harrell also agreed telling Porter that if Porter lied, "we're going to have to prove it.... You're going to make it go into court in front of twelve people."
After the Jackson-Denno hearing, the trial court concluded that Harrell did not make an improper promise to help Porter. We agree. "[W]e have construed the `slightest hope of benefit' as meaning the hope of a lighter sentence." Cooper v. State, 256 Ga. 234, 235(2), 347 S.E.2d 553 (1986). Accordingly, the offer by Harrell to "help" Porter if he told the truth did not render Porter's statement inadmissible. Griffin v. State, 257 Ga. App. 167, 168, 570 S.E.2d 611 (2002); Stephens v. State, 164 Ga.App. 398, 399(3), 297 S.E.2d 90 (1982). We also conclude Harrell's statement to Porter that he would face a jury trial if he lied was not a promise of an improper benefit.
4. Porter claims the trial court erred by allowing similar transaction evidence. Absent an abuse of discretion, we will not disturb a trial court's determination that similar transaction evidence is admissible. Condra v. State, 238 Ga.App. 174, 175(2), 518 S.E.2d 186 (1999). "[S]imilar transaction evidence may be admitted if it is substantially relevant for some purpose other than to show a likelihood that the defendant committed the crime on trial because he is a person of criminal character." (Citation omitted.) Howard v. State, 262 Ga.App. 198, 200(3), 585 S.E.2d 164 (2003).
After a hearing, the trial court ruled that certain similar transactions could be introduced into evidence, including the four transactions challenged by Porter: July 14, 2000 and June 3, 2001 confrontations between Porter and police officers while Porter was being held in the jail; the theft of the red Jeep Cherokee; and a November 18, 1999 theft of a Ford Expedition. The two jailhouse confrontations involved physically resisting and striking law enforcement officers. We conclude that the trial court properly admitted these transactions to show Porter's course of conduct in resisting law enforcement officers in the performance of their duties. The evidence was relevant to the obstruction of an officer charge in connection with Porter's conduct toward Leaman. The evidence of the theft of the red Jeep Cherokee was directly relevant to the theft by receiving charge in that it showed Porter knew the Jeep was stolen. The evidence also showed that Porter stole the red Jeep Cherokee and a Ford Expedition in a similar manner. Both instances involved Porter entering the vehicle in a parking lot while the owner was near, resulting in physical contact with the owner. We cannot say that the trial court abused its discretion in allowing evidence of the theft of the Ford Expedition because the evidence is probative of whether Porter also stole the Jeep Cherokee and so supports the theft by receiving charge with respect to the Jeep Cherokee. However, if the trial court had erred in allowing evidence concerning Porter's theft of the Ford Expedition, it is highly probable that its admission did not contribute to the judgment. See Tackett v. State, 257 Ga.App. 292, 295(4), 570 S.E.2d 720 (2002) (applying harmless error test to erroneous admission of unrelated crime).
5. Porter claims the trial court erred by not directing a verdict in his favor on the burglary charge. We disagree. In reviewing the denial of a motion for directed verdict, we construe the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Clark v. State, 275 Ga. 220, 221(1), 564 S.E.2d 191 (2002). The evidence shows that property which had been reported stolen from various residences was found at the house where Leever and Porter were staying. Recent unexplained possession of property may be probative evidence of burglary. Gray v. State, 260 Ga.App. 197, 198(1), 581 S.E.2d 279 (2003). Evidence also showed that shoe prints made on the premises of two burglarized residences belonged to shoes owned by Porter. Accordingly, the trial court did not *443 err in denying Porter's motion for a directed verdict.
6. Lastly, Porter claims that the trial court erred by refusing to charge the crime of theft by receiving as a lesser included offense of burglary. He argues that the evidence did not exclude the possibility that Porter was in possession of stolen goods but did not commit the offense of burglary. "[A] written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense." State v. Alvarado, 260 Ga. 563, 564, 397 S.E.2d 550 (1990). However, we have consistently held that theft by receiving is not a lesser included offense of burglary. Faust v. State, 189 Ga. App. 426, 427(2), 375 S.E.2d 889 (1988); State v. Bolton, 144 Ga.App. 797, 798(1), 242 S.E.2d 378 (1978); Wells v. State, 127 Ga.App. 109, 192 S.E.2d 567 (1972). Where the indictment avers that the defendant is the thief by way of burglary, it is not error for the court to refuse to charge theft by receiving as a lesser included offense. Wells, supra, 127 Ga. App. at 110, 192 S.E.2d 567.
Judgment affirmed.
BARNES and ADAMS, JJ., concur.
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31 Cal.2d 254 (1947)
CITY OF LONG BEACH, Petitioner,
v.
H. C. MORSE, as City Treasurer, etc., Respondent.
L. A. No. 19873.
Supreme Court of California. In Bank.
Dec. 30, 1947.
Irving M. Smith, City Attorney, Nowland M. Reid, Assistant City Attorney, and Atlee S. Arnold, Deputy City Attorney, for Petitioner.
Roy J. Brown for Respondent.
TRAYNOR, J.
The city of Long Beach seeks a peremptory writ of mandamus to compel its treasurer to transfer certain revenue from the city's "Harbor Revenue Fund" to its "Public Improvement Fund." The revenue in question was derived from the production of oil and gas from the tidelands and submerged lands within the corporate limits of the city of Long Beach, claimed by the city under legislative grants from the State of California.
Before 1946, under the terms of the charter of the city of Long Beach, the revenue from the production of oil and gas from these lands was devoted to the improvement and maintenance of the harbor of the city of Long Beach and to the payment of principal and interest on bonds issued by the city for harbor purposes. (Long Beach City Charter, 229x, Stats. 1937, p. 2939, as amended by Stats. 1943, p. 3097.) The city charter was amended in 1946 to provide for the transfer of 25 per cent of the fund in question to the "Public Improvement Fund." This amendment provides, however, that the "transfer shall be made only in the event that such moneys may be used and expended for the purposes hereinafter stated without violating the provisions of grants by which the City acquired title to all tide and submerged lands from the State of California, to wit, 1911 Statutes, page 1304, 1925 Statutes, page 235, and 1935 Statutes, page 794 ... the moneys transferred to and placed in the 'Public Improvement Fund' shall be used exclusively for the payment of costs and expenses for construction, reconstruction, repair and maintenance of public improvements, ... as shall have been provided for in the official budget of the City adopted by the City Council." (City Charter of Long Beach, 229x, Stats. 2d Ex. Sess. 1946, Resolutions, ch. 6, pp. 366, 367.)
Respondent refused to make the transfer on the ground that it would be a violation of the charter provision for him to do so, because the revenue transferred to the "Public Improvement Fund" would be used for general municipal improvements unconnected with the purposes and uses provided *256 in the grants of the tidelands and submerged lands to the city. The city of Long Beach concedes that if the transfer is made, the money would be used for general municipal improvements not limited to the purposes specified in the legislative grants under which the city claims title to the lands. It is contended, however, that these grants restrict, not the use of any revenue derived from the lands, but only the physical uses to which the lands may be put. The issue in this case, therefore, is whether the use of money derived from the development of oil and gas on these lands for general municipal improvements would violate the terms of the grants under which the city of Long Beach claims title.
[1] In 1911, the State of California transferred whatever title it may have had to the tidelands and submerged lands within the boundaries of the city of Long Beach [fn. *] to that city in trust for certain uses and purposes connected with the development of Long Beach Harbor. (Stats. 1911, p. 1304.) The terms of the original grant were amended by the Legislature in 1925 (Stats. 1925, p. 235) and in 1935 (Stats. 1935, p. 793; 2 Deering's Gen. Laws, 1944, Act 4401.) The present provisions of the trust are as follows:
"There is hereby granted to the city of Long Beach, a municipal corporation of the State of California, and to its successors, all of the right, title and interest of the State of California, held by said State by virtue of its sovereignty, in and to all of the tide lands and submerged lands, whether filled or unfilled, bordering upon, under and situated below the mean high tide line of the Pacific Ocean, or of any harbor, estuary, bay or inlet, which are within the corporate limits of said city, to be forever held by said city, and by its successors, in trust for the uses and purposes and upon the express conditions following, to wit:"
"(a) That none of said lands shall be used or devoted to any purposes other than public park, parkway, highway, playground, the establishment, improvement and conduct of a harbor and the construction, maintenance and operation thereon of wharves, docks, piers, slips, quays and other utilities, structures and appliances necessary or convenient for the promotion and accommodation of commerce and navigation; *257 and said city, or its successors, shall not, at any time, grant, convey, give or alien said lands, or any part thereof, to any individual, firm or corporation for any purpose whatsoever; provided, however, that nothing herein contained shall be so construed as to prevent the granting or use of easements, franchises or leases for limited periods, or rights of way in, under, over or across said tidelands or submerged lands for power, telephone, telegraph or cable lines or landings, sewage disposal conduits, wharves and other public uses and purposes consistent with the trust upon which said lands are held, or the leasing or use of such tidelands or submerged lands for limited periods for the construction, maintenance, and operation of nonprofit benevolent and charitable institutions organized and conducted for the promotion of the moral and social welfare of seamen, naval officers and enlisted men, and other persons engaged in and about the harbor and commerce, fishery, and navigation." (Italics added.)
(b) That the lands shall always be devoted to the conduct of a public harbor, without expense to the state.
(c) That there shall be no discrimination in connection with the operation of the harbor.
(d) The right to fish in the harbor is "expressly reserved to the people of the State of California."
This statute clearly provides that the state's interest in the lands is transferred in trust for certain uses and purposes. The city is a trustee and as such "assumes the same burdens and is subject to the same regulations that appertain to other trustees of such trusts." (3 McQuillin, Municipal Corporations, 2d ed., 1230, referring to charitable trusts.) The city of Long Beach contends that the proceeds from the production of oil and gas is merely income from the land and as such is not covered by any provisions of the trust, on the ground that the trust expressly applies only to the physical uses of the land. Whether the fund should be regarded as part of the corpus of the trust or merely as a part of the rents and profits of the land, the city as trustee has no right to devote the proceeds to general municipal improvements unconnected with the trust purposes. [2] If the proceeds from the sale of oil and gas are regarded as corpus (see Rest. Trusts, 238; Bogert, Trusts and Trustees, 789, 828), they must be used for the purposes set forth in the legislative grants in trust, for the city, as trustee, clearly has no *258 authority to appropriate the corpus to its own uses contrary to the terms of the trust. If the proceeds are regarded as income from trust property, the trustee, in the absence of a legislative provision to the contrary, has no more right to them than it has to the corpus. (Civ. Code, 2229; Provident Land Corp. v. Zumwalt, 12 Cal.2d 365, 375 [85 P.2d 116]; Lamb v. Lamb, 171 Cal. 577, 580-582 [153 P. 913]; Purdy v. Johnson, 174 Cal. 521, 529 [163 P. 893]; see Methodist Benev. Assn. v. Bank of Sweet Spring, 227 Mo.App. 566, 573 [54 S.W.2d 474, 478].)
Thus, in Provident Land Corp. v. Zumwalt, supra, this court held that an irrigation district acquired certain land in trust for the purposes of the California Irrigation District Act (Stats. 1897, p. 263, 29) and that the rents and profits from such property were likewise subject to the trust. The act provided that such property was held "in trust for and is hereby dedicated and set apart to the uses and purposes set forth in this act." Although there was no express provision for the disposition of the rents from such land, the opinion stated that, "Once it is made clear that the lands are held in trust, it necessarily follows that their proceeds, whether by sale or lease, are likewise subject to the trust. It would be manifestly absurd to say that although the property is held in trust, none of the benefits of the trust accrue to the beneficiaries, and that none of the rents or profits of the trust property need be used in furtherance of the trust purposes. On this point, namely, that the land is trust property, held for the 'uses and purposes' of the act, and that the proceeds are stamped with the character of the property from which they flow, the statute read in the light of elementary principles, leaves no room for debate."
Similarly, since the "right, title and interest" of the State of California in the lands involved in the present case was granted to the city of Long Beach "in trust for the uses and purposes" set forth in the grants, it necessarily follows that the proceeds from the oil drilled from these lands can be used only in furtherance of the trust purpose. The city cites no authority contrary to this principle. It relies on the case of City of Long Beach v. Marshall, 11 Cal.2d 609, 620 [82 P.2d 362], in which this court held that the city had a right to drill oil from the lands so long as such drilling did not interfere with the trust purposes. The court there stated: "Nothing in the grant purports to reserve to the state or to *259 deny to the municipality the minerals or the right to extract them. ... It is, of course, true that the operations must not be conducted in such manner as to impede the use of the harbor, but there is nothing before us to suggest that drilling will have any such effect." The city interprets this statement to mean that the only restriction on the city's right to oil is that the extraction thereof must not interfere with the harbor. In that case, however, this court was not concerned with the disposition of the proceeds from such operations, for at that time the proceeds were allocated entirely to "[I]mprovement and maintenance of the harbor and servicing and redemption of outstanding harbor improvement bonds." (Supra at 612.) There was therefore no reason for the court to assume that the city would attempt to appropriate the proceeds for general municipal improvements, and it was unnecessary to consider a limitation implicit in the grant.
There is nothing in the case of City of Long Beach v. Marshall to indicate that the city owns these lands clear of any trust. The court held that the city took title to the lands in fee, but it impliedly recognized, in recognizing the limitation on the right of the city to drill, that the title was held subject to the express trust imposed in the legislative acts of conveyance. Moreover, the court did not purport to overrule City of Long Beach v. Lisenby, 175 Cal. 575, 579 [166 P. 333], which held that the city acquired title to these lands in trust. That case is cited with approval in the Marshall case, supra at 619.
In the Marshall case, the court referred to the fact that the Legislature had approved the charter amendment under which the city was authorized to conduct drilling operations on this land.
It is notable that subsequent to that case, the Legislature has again referred to the fact that the lands in question were "conveyed in trust to the City of Long Beach." (Stats. 1943, p. 2577.)
Legislative approval of the present charter amendment cannot be relied on as indicative of a legislative purpose to enlarge the grant or as a legislative construction of its former grants. The amendment was approved in a joint resolution of the Legislature as required by article XI section 8 of the California Constitution, but the resolution and the charter amendment expressly provide that "said transfer shall be made only in the event that such moneys *260 may be used and expended for the purposes ... stated without violating the provisions of grants by which the City acquired title to all tide and submerged lands from the State of California ..." (Stats. 2d Ex. Sess. 1946, Resolutions ch. 6, pp. 366, 367.)
If a legislative interpretation of the meaning of this and similar grants is necessary, it may be found in section 6875 of the Public Resources Code with respect to agreements between the State Lands Commission and cities holding title to tidelands under such grants. This section provides that "If the Legislature has transferred to any city or county the administration of the trust, whether or not limited, under which tide or submerged lands are held by the State, the commission, ... may enter into agreements upon behalf of the State to compensate any such city or county for the use of surface drilling and operating sites upon such lands from the royalty or revenue to be derived by the State from oil and gas taken from such lands by lessees of the State ... All money paid to any city or county under this section shall be used by it solely in furtherance of the trust under which the administration of tide and submerged lands has been transferred to such city or county and for the purposes expressed in the act so transferring administration of such lands."
[3] It is contended that even if the grant as amended in 1925 and 1935 does not authorize the use of revenue from the land for local municipal purposes, the original terms of the grant contain such authorization and the Legislature was without power to deprive the city of this right by subsequent legislation. By the terms of the original grant the city was granted the land in question for the following uses and purposes:
"That said lands shall be used by said city and by its successors, solely for the establishment, improvement and conduct of a harbor, and for the construction, maintenance and operation thereon of wharves, docks, piers, slips, quays, and other utilities, structures and appliances necessary or convenient for the promotion and accommodation of commerce and navigation, and said city ... shall not, at any time, grant, convey, give or alien said lands, or any part thereof, to any individual, firm or corporation for any purpose whatsoever; provided, that said city ... may grant franchises thereon, for limited periods, for wharves and other public uses and purposes, and may lease said lands, or any *261 part thereof, for limited periods, for purposes consistent with the trusts upon which said lands are held by the State of California and with the requirements of commerce or navigation at said harbor. ..." (Italics added, Stats. 1911 p. 1304.)
It is suggested that the italicized clause authorized the city to enter into oil leases and to dispose of the proceeds thereof for municipal purposes unconnected with the general purposes of the trust. This clause was amended in 1925 and 1935 so that it now provides "that nothing herein contained shall be so construed as to prevent the granting or use of easements, franchises or leases for limited periods, or rights of way in, under, over or across said tidelands or submerged lands for power, telephone, telegraph or cable lines or landings, sewage disposal conduits, wharves and other public uses and purposes consistent with the trusts upon which said lands are held. ..." (Italics added.)
The 1925 and 1935 amendments have heretofore been regarded as enlargements rather than as restrictions on the terms of the original grant. (See City of Long Beach v. Marshall, supra, 11 Cal.2d at p. 618.) The only express change in the lease provision that might be regarded as a limitation not previously contained in the grant is the express requirement that the lease be for "public uses and purposes consistent with the trusts upon which said lands are held."
The original grant has been interpreted as providing for a trust for public purposes and as not creating a "trust to carry on a commercial enterprise unaffected by a public use." (City of Long Beach v. Lisenby, supra, 175 Cal. at 579; see, also, City of Oakland v. Williams, 206 Cal. 315, 322-328 [274 P. 328], construing an identical provision of a contemporary trust. [Stats. 1911, p. 1258].) By these amendments the Legislature may have sought merely to clarify the meaning of this clause of the grant. Even if it be assumed, however, that the proviso in the original grant authorized the city to enter into commercial leases and that this authorization extended to oil and gas leases, it does not follow that the city of Long Beach may use the proceeds from the production of oil and gas from these lands for general municipal purposes unconnected with the expressed purposes of the trust.
Under the terms of the original grant, the extent of the right of the city to enter into any type of lease is clearly limited by the "trusts upon which said lands are held by the *262 State of California." The State of California has claimed title to these lands in trust for all the people of the state and whatever right the state may have to enter into oil and gas leases with respect to the production of oil and gas from these lands is subject to this trust. (Boone v. Kingsbury, 206 Cal. 148, 187-188 [273 P. 797], relying on Illinois Cent. R. R. v. Illinois, 146 U.S. 387, 452 [13 S.Ct. 110, 36 L.Ed. 1018]; cf. United States v. California, 332 U.S. 19 [67 S.Ct. 1658, 1664, 91 L.Ed. 1889].) Since the lands were held by the state in trust for all the people, and the city holds the lands subject at least to the same trusts, it may not use the proceeds for the local purposes contemplated by the charter amendment.
The development of the harbor, on the other hand, is expressly authorized by the grants as a public purpose in the interest of all the people of the state. (See, City of Oakland v. Williams, supra, 206 Cal. at p. 328.)
It follows that the proceeds from the sale of oil and gas from the lands in question may not be used for any purposes other than those specified in the trust conveyances under which the city claims title to the lands. The Legislature specified purposes relating to the harbor that it deemed beneficial to the state as a whole and did not authorize the city of Long Beach to use the corpus or the income of the trust for strictly local improvements.
The alternative writ is discharged and the petition for a peremptory writ is denied.
Gibson, C.J., Shenk, J., and Carter, J., concurred.
EDMONDS, J.
I concur in the conclusion that the revenue which is here in controversy may not be used for general municipal purposes. But I again call attention to the impropriety of a "friendly suit" by which only the city and one of its officers litigate a question of great public interest. (Paso Robles etc. Hospital Dist. v. Negley, 29 Cal.2d 203 [173 P.2d 813]; City of Whittier v. Dixon, 24 Cal.2d 664, 668 [151 P.2d 5, 153 A.L.R. 956]; City and County of San Francisco v. Boyd, 22 Cal.2d 685, 707 [140 P.2d 666]; City and County of San Francisco v. Linares, 16 Cal.2d 441, 448 [106 P.2d 369].)
SCHAUER, J.
I dissent. Two questions are presented for decision: (1) Does the proposed use by the city of Long Beach of revenue from oil production on the tidelands granted it *263 by the state violate the "trusts upon which said lands are held by the State of California?" (2) Does such proposed use violate any other trust or condition imposed by the grant from the state?
The original grant from the state to the city of Long Beach (Stats. 1911, p. 1304) conveyed "all the right, title and interest of the State ... in and to all the tide lands and submerged lands ... within the present boundaries of said city, ... to be forever held by said city, and by its successors, in trust for the uses and purposes, and upon the express conditions following, to wit:"
"(a) That said lands shall be used by said city and by its successors, solely for the establishment, improvement and conduct of a harbor, and for the construction, maintenance and operation thereon of wharves ... and other utilities, structures and appliances necessary or convenient for the promotion and accommodation of commerce and navigation, and said city ... shall not ... grant, convey, give or alien said lands ... to any individual, firm or corporation for any purpose whatsoever; provided, that said city, or its successors, ... may lease said lands, or any part thereof, for limited periods, for purposes consistent with the trusts upon which said lands are held by the State of California and with the requirements of commerce or navigation at said harbor; ... Reserving, however, in the people of the State of California the absolute right to fish in the waters of said harbor, with the right of convenient access to said waters over said lands for said purpose." (Italics added.)
1. The trusts upon which the involved lands are or were held by the State do not preclude the city of Long Beach from arranging for the extraction of oil from such lands or from devoting the revenues of such lands to general municipal purposes.
It has already been decisively established in this state that the drilling for oil on state tidelands, pursuant to permit from the state, is a purpose "consistent with the trusts upon which said lands are held by the State of California and with the requirements of commerce or navigation," provided only that no substantial interference with navigation, fishing or commerce results. The specialized nature and limits of the trusts involved were extensively examined and explained in Boone v. Kingsbury (1928), 206 Cal. 148 [273 P. 797]. In considering the power of the state to permit drilling operations on *264 portions of its tidelands, this court declared (p. 186 of 206 Cal.), "It may be said of the situation that the coast line at the point in question is an unnavigable portion of a vast body of navigable water, and the use to which the state proposes to devote the soil, from a practical point of view, would not be incompatible with, or in 'derogation of the government's trust to preserve needed navigable waters for the benefit of the people.' [Citation.] ..."
"No uncertainty can exist as to the rights of the state to absolutely alienate its tide and submerged lands when they are unfit for navigation, are useless as aids of commerce and possess no substantial value as fishing grounds. The policy of this state is and has always been to encourage its citizens to devote waste and unused lands to some useful purpose. The power of the state to absolutely alienate lands perpetually covered by water has been upheld by all courts of the nation, state and federal, where the land so covered was severed from the main body by harbor and other improvements in such manner as to leave the remaining waters of no substantial use to navigation or commerce. It is only in those cases where the reduction of the water area amounts to a substantial interference with navigation and commerce or the fisheries that the absolute power of alienation by the sovereign and its control and dominion over said lands can be questioned. ..."
"[p. 187] The rule to be kept in mind and which is recognized by every case bearing on the subject ... is that the state has the unquestionable right to alienate its tide and submerged lands subject to the 'trust in which they are held for the people of the state that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein free from the obstruction or interference of private parties.' ..."
"[p. 189] The state cannot abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties, except in the case of parcels used in promoting the interest of the public therein, or when parcels can be disposed of without impairment of the public interest in what remains. ..."
"The trust in which tide and submerged lands are held does not prevent the state from reclaiming tide and submerged lands from the sea where it can be done without prejudice to the public right of navigation and applying them to other *265 purposes and uses. As said in Ward v. Mulford, 32 Cal. 365:"
" 'There are large tracts of salt marsh lands, of which the land in suit is an example, which are covered and uncovered by the flow and ebb of the neap tides, and therefore belong to the state by virtue of her sovereignty, which are of no possible use for the purposes of navigation, but may be valuable for agricultural or other purposes if reclaimed from the tides. Such lands the state may undoubtedly grant in private ownership for the purposes of reclamation and use, for by such a course no right of the public to their use for the purposes of navigation would be prejudiced. On the contrary, the right of navigation, in many cases, might be subserved by such reclamation.' " The court further pointed out that (p. 184) "should said permittees [in drilling operations] offer any substantial interference incompatible with navigation, fishing or commerce, the state and federal government would have the unquestionable right to abate it." (Italics added.)
Among the definitions given by Webster for consistent is "compatible," and among those for compatible is "consistent." Since the means of producing the funds here in question is consistent with "the trusts upon which said lands are held by the State" (as expressly held in City of Long Beach v. Marshall (1938), 11 Cal.2d 609, 620 [82 P.2d 362]) then it follows that the use of the funds for any purpose other than such as would cause positive physical interference with such trusts is also consistent therewith. The opinion of Justice Traynor cites City of Long Beach v. Lisenby (1917), 175 Cal. 575, 579 [166 P. 333], as authority for the statement that "The original grant has been interpreted as providing for a trust for public purposes and as not creating a 'trust to carry on a commercial enterprise unaffected by a public use.' " The discussion in the Lisenby case is directed to the point that since a "trust" in tidelands is for a public purpose rather than a private commercial purpose, the city may accept and administer it. The case contains nothing contrary to my views here. Certainly the production of oil and gas from tidelands and the use of proceeds therefrom for general municipal purposes is "affected by a public use."
It should be noted that from a holding that the city must devote the proceeds from the oil and gas production solely to purposes of navigation and commerce or be held to be acting in violation of "the trusts upon which" the state holds the lands for the people it would also inescapably follow that the *266 state (and presumably the federal government) must likewise devote its entire income from tidelands oil and gas production as well as from other uses or dispositions which might be made of tidelands not needed for navigation, commerce, or fishing, to the same limited purposes or itself violate such trusts. Is a majority of this court prepared to so hold? In that case, any excess of oil and gas income over expenditures for navigation purposes will seemingly be required to be held unused in the respective governmental treasuries. It is unequivocally held in City of Long Beach v. Marshall (1938), supra, 11 Cal.2d 609, 612, 620, and Miller v. Stockburger (1938), 12 Cal.2d 440, 444 [85 P.2d 132], that as between city and state the proceeds of oil production here involved belong to the city.
2. The grant from the state to the city, reasonably construed, does not preclude the allocation which the city proposes to make of revenue from the conveyed lands.
Firstly, in granting lands to the city "in trust for the uses and purposes, and upon the express conditions" that they be used solely for harbor and navigation purposes and reserving fishing rights to the people of the state, it seems apparent that the state employed the word "trust" in the same specialized sense which the word carries when the "trusts" upon which the state itself holds tidelands are considered; i.e., that navigation, commerce and fishing purposes are of paramount concern, but that other uses may be made of the lands if such paramount purposes remain substantially unimpaired. Therefore, cases having to do with the power and duties of trustees of privately owned property are not controlling here. Nor are the grounds for the decision in Provident Land Corp. v. Zumwalt (1938), 12 Cal.2d 365 [85 P.2d 116] present here. Both the nature of the trust upon which the lands there concerned were granted for irrigation purposes and the rights of the bondholder "beneficiaries" differ from those involved in this action. Under the terms of the grant here it appears that the city is limited only by the limitations applicable to the state in the use to be made of income from tidelands.
Secondly, the proviso that the city "may lease said lands ... for purposes consistent with the trusts upon which said lands are held by the State of California and with the requirements of commerce or navigation at said harbor" certainly is a broad enough exception to the limitations otherwise imposed to authorize the leasing of the lands for oil extraction; surely the word "lease" imports a consideration to be paid to the lessor; and, equally surely, the omission of any limitation *267 upon application of the revenues to be received by the lessor leaves it free to devote such revenues to the best public use as it may determine from time to time. As seen above, nothing in "the trusts upon which said lands are held by the State of California" or in "the requirements of commerce or navigation at said harbor" precludes the leasing of the lands for oil development and operation so long as the fishing rights of the people and the harbor uses are not interfered with. The leasing of such lands for oil operations, under conditions protecting the harbor usages and "the absolute right [of the people] to fish in the waters of said harbor, with the right of convenient access to said waters over said lands for said purpose" (Stats. 1911, p. 1305) is entirely consistent "with the trusts upon which said lands are held by the State of California and with the requirements of commerce or navigation at said harbor." Consequently, oil production on the lands under lease with use of the proceeds thereof for general municipal purposes does not violate the terms of the grant from the state. It would seem that, except as limited by the city charter, even revenues from harbor operation could be devoted by the city to such purposes as it chooses. It must use the land solely for the purposes specified in the grant, subject to the exceptions provided therein, but there is no direction in the grant as to the source of revenue to be devoted to carrying out such purposes and no limitation upon the use of revenues derived from the lands. On the contrary the grant provides that "said harbor shall be improved by said city without expense to the state ... and the State ... shall have, at all times, the right to use, without charge" all facilities thereof. The subsequent amendments to the grant of 1911, whatever their purpose, certainly cannot have the effect of divesting rights conveyed by the original grant.
Furthermore, if any doubt might otherwise exist as to the right of the city to effect the interfund transfer of moneys in question, it seems to me that it is dispelled by the act of the state in consenting to the Long Beach City Charter amendment of 1946. (Stats. 2d Ex. Sess. 1946, ch. 6, p. 366.) Section 229x of the charter, as amended, provides: "In addition to all other powers with which the Board of Harbor Commissioners is now or may hereafter be invested, and notwithstanding anything in this Charter to the contrary, said Board shall have the power to drill for, develop, extract ... and dispose of, oil ... from ... any and all lands, including *268 all tidelands, submerged and overflowed lands. ... Provided ... that before such power may be exercised as to tidelands, submerged and overflowed lands ... said Board shall first determine, by resolution, that such lands ... intended to be so used are not required ... for the promotion or development of commerce, navigation or fishery. ... Any and all moneys derived by the City ... from the development of oil ... shall be apportioned as follows: ... The City Treasurer shall ... at least once each calendar month transfer twenty-five per centum (25%) of all moneys hereafter derived by the City ... from the development of oil ... from beneath the lands constituting the Harbor District ... which by the provisions of this subdivision are required to be paid into the 'Harbor Revenue Fund,' from said 'Harbor Revenue Fund' to the 'Public Improvement Fund,' which said fund is hereby created and established; provided said transfer shall be made only in the event that such moneys may be used and expended for the purposes hereinafter stated without violating the provisions of grants by which the City acquired title to all tide and submerged lands from the State of California. ... The moneys ... in the 'Public Improvement Fund' shall be used exclusively for the payment of costs and expenses for construction, reconstruction, repair and maintenance of public improvements, including the purchase of such land, rights and properties as may be necessary therefor, as shall have been provided for in the official budget of the City. ..."
As shown above there is nothing in the authorized uses of funds above provided for which is inconsistent with "the trusts upon which said lands are held by the State of California and with the requirements of commerce or navigation at said harbor." It is already established by City of Long Beach v. Marshall (1938), supra, 11 Cal.2d 609, 620, that "the city has the right to drill for and extract the oil from these lands which it owns," and that, as noted above (p. 612, 616), "the mineral rights" as between state and city "are owned by the municipality." Furthermore, the defendant city treasurer is in no position to claim a breach (either actual or potential) of the grant from the state. The state, by approving the charter provisions above quoted, must be understood to have consented to the specified uses of the money provided that such uses would not, even though approved by the state, violate "the provisions of grants by which the City acquired title to *269 all tide and submerged lands from the State." That the Legislature so qualified its approval of the designated uses of the funds is but consistent with the request of the city and with the terms of the original grant (Stats. 1911, p. 1304), which required that any leasing of the lands be "for purposes consistent with the trusts upon which said lands are held by the State of California and with the requirements of commerce or navigation at said harbor." (Italics added.) It appears to me that, subject to those trusts and priorities, the state, by approving the charter provisions above quoted, must be understood to have consented to the allocation and use of the moneys as specified. No other purpose was served by its action, which is not to be deemed meaningless. Having so consented it should not be permitted, in the absence of a showing of actual or potential breach of those conditions, to prevent the use of the moneys for the very purpose authorized. Certainly a Public Resources Code section ( 6875) adopted in 1941 (based on Stats. of 1938) and quoted in the majority opinion cannot supply an interpretation of a 1946 legislative approval of a city charter amendment--and, surely, in the face of the Marshall and the Stockburger cases, supra (11 Cal.2d 609 and 12 Cal.2d 440), the Legislature may not (as seems to be suggested by the opinion of Justice Traynor, it intends to do) "interpret" to itself or its agents the right to drill on Long Beach tidelands. Of course no such attempt appears to have been made by the Legislature; in section 6875 of the Public Resources Code, it is doubtless referring to such tidelands grants as that to Santa Barbara, mentioned at page 618 of the Marshall case, in which the state reserved the mineral rights in the lands. The state cannot and does not here attack the purpose for which the funds are proposed to be used and the defendant city treasurer manifestly is in no better position than the state to resist the city's action.
It is regrettable that the majority opinion by strained legalisms attains the ends of a wastage of public property and the wholly unnecessary imposition of additional taxes upon long suffering taxpayers.
Under the circumstances shown, the plaintiff city is entitled to the writ.
Spence, J., concurred.
NOTES
[fn. *] *. The United States is not a party to this proceeding and the extent to which the State of California could validly grant to the City of Long Beach any right in the lands in question under the decision of the United States Supreme Court in United States v. California, 332 U.S. 19 [67 S.Ct. 1658, 1664, 91 L.Ed. 1889], is not in issue.
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Case: 18-60744 Document: 00515112332 Page: 1 Date Filed: 09/10/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 18-60744
Fifth Circuit
FILED
September 10, 2019
Lyle W. Cayce
Clerk
VALERIE DENECE HARRIS,
Plaintiff−Appellant,
versus
NOXUBEE COUNTY, MISSISSIPPI; BETTY S. ROBINSON,
Defendants−Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
No. 3-17-CV-291
Before SMITH, DENNIS, and OWEN, Circuit Judges.
PER CURIAM: *
Valerie Harris sued her former employer, Noxubee County, and its Tax
Assessor and Collector after being fired for refusing to sign a nondisclosure
agreement. Using 42 U.S.C. § 1983, Harris claimed violation of her First
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
Case: 18-60744 Document: 00515112332 Page: 2 Date Filed: 09/10/2019
No. 18-60744
Amendment rights, alleging that the nondisclosure agreement infringed on
free speech. The district court granted summary judgment in favor of the
defendants and denied Harris’s motion for summary judgment.
We have reviewed the briefs, the applicable law, and pertinent parts of
the record. We have heard the oral arguments of counsel. Summary judgment
was properly awarded to the defendants and denied to Harris.
AFFIRMED.
2
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207 U.S. 205 (1907)
BITTERMAN
v.
LOUISVILLE AND NASHVILLE RAILROAD COMPANY.
No. 34.
Supreme Court of United States.
Argued November 4, 1907.
Decided December 2, 1907.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.
*214 Mr. Louis Marshall, with whom Mr. Henry L. Lazarus and Mr. Moritz Rosenthal were on the brief, for petitioners.
Mr. Joseph Paxton Blair and Mr. Brode B. Davis, with whom Mr. George Denegre was on the brief, for respondent.
*219 MR. JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court.
The points urged at bar on behalf of the petitioners as establishing that the decrees below should be reversed and the bill of complaint dismissed, and in any event the injunction be modified and restricted, are the following:
"1. The bill of complaint does not state a cause of action, either at law or in equity, against any of the defendants, even though the tickets in which they dealt are in form non-transferable, when the original purchasers disposed of them in breach of their contract with the complainant."
"2. The complainant has shown no sufficient ground for equitable intervention, since, assuming, but not admitting, that the acts charged against the defendants are wrongful, tortious or even fraudulent, it has a plain, adequate and complete remedy at law to redress such wrongs."
*220 "3. There was an improper joinder of defendants and of independent causes of action. The bill is multifarious and the case does not fall within the rule concerning the avoidance of a multiplicity of suits."
"4. The Circuit Court was without jurisdiction, notwithstanding the colorable averments contained in the bill that the injury sustained in consequence of the defendants' act exceeded two thousand dollars, there being no foundation in fact in support of such averment."
"5. The decree of injunction awarded by the Circuit Court of Appeals, so far as it relates to non-transferable tickets, that may be hereafter issued, is in effect the exercise of legislative as distinct from judicial power, since it undertakes to promulgate a rule applicable to conditions and circumstances which have not yet arisen, and to prohibit the petitioners from dealing in tickets not in esse, and not even in contemplation, and is, therefore, violative of the most fundamental principle of our Government."
Stated in logical sequence and reduced to their essence, these propositions assert:
First, want of jurisdiction from the insufficiency of the amount involved, want of power in a court of equity to grant relief because on the face of the bill relief at law was adequate, and because equitable relief was improper on account of misjoinder of parties and causes of action.
Second, because the case as made did not entitle to relief, since it did not show the commission of any legal wrong by the defendants.
Third, because conceding the right to relief the remedy by injunction which the court accorded was so broad as in effect to amount to the exertion of legislative as distinct from judicial power, and hence was equivalent to the denial of due process of law.
As, for reasons hereafter to be stated, we think the contentions embodied in the first proposition as to want of jurisdiction, etc., are without merit, we come at once to the fundamental *221 question involved in the second proposition, that is, the absence of averment or proof as to the commission of a legal wrong by the defendant.
That the complainant had the lawful right to sell non-transferable tickets of the character alleged in the bill at reduced rates we think is not open to controversy, and that the condition of non-transferability and forfeiture embodied in such tickets was not only binding upon the original purchaser but upon any one who acquired such a ticket and attempted to use the same in violation of its terms is also settled. Mosher v. Railroad Co., 127 U.S. 390. See, also, Boylan v. Hot Springs Co., 132 U.S. 146.
True these cases were decided before the passage of the act to regulate commerce, but the power of carriers engaged in interstate commerce to issue non-transferable reduced rate excursion tickets was expressly recognized by that act, and the operation and binding effect of the non-transferable clause in such tickets upon all third persons acquiring the same and attempting to use them, and the duty of the carrier in such case to use due diligence to enforce a forfeiture results from the context of the act. Thus by § 22 (24 Stat. 387; 25 Stat. 862) it was provided "that nothing in this act shall prevent . . . the issuance of mileage, excursion, or commutation tickets." And it is to be observed that despite the frequent changes in the act including the comprehensive amendments embodied in the act of June 29, 1906, 34 Stat. 584, the provision in question remains in force, although the Interstate Commerce Commission, charged with the administrative enforcement of the act, has directed the attention of Congress to the importance of defining the scope of such tickets in view of the abuses which might arise from the exercise of the right to issue them. 2 Int. Com. Comm. Rep. 529, 539. And when the restrictions embodied in the act concerning equality of rates and the prohibitions against preferences are borne in mind the conclusion cannot be escaped that the right to issue tickets of the class referred to carried with it the duty on the *222 carrier of exercising due diligence to prevent the use of such tickets by other than the original purchasers, and therefore caused the non-transferable clause to be operative and effective against anyone who wrongfully might attempt to use such tickets. Any other view would cause the act to destroy itself, since it would necessarily imply that the recognition of the power to issue reduced rate excursion tickets conveyed with it the right to disregard the prohibitions against preferences which it was one of the great purposes of the act to render efficacious. This must follow, since, if the return portion of the round trip ticket be used by one not entitled to the ticket, and who otherwise would have had to pay the full one way fare, the person so successfully traveling on the ticket would not only defraud the carrier but effectually enjoy a preference over similar one way travelers who had paid their full fare and who were unwilling to be participants in a fraud upon the railroad company.
Any third person acquiring a non-transferable reduced rate railroad ticket from the original purchaser, being therefore bound by the clause forbidding transfer, and the ticket in the hands of all such persons being subject to forfeiture on an attempt being made to use the same for passage, it may well be questioned whether the purchaser of such ticket acquired anything more than a limited and qualified ownership thereof, and whether the carrier did not, for the purpose of enforcing the forfeiture, retain a subordinate interest in the ticket amounting to a right of property therein which a court of equity would protect. Board of Trade v. Christie Grain & Stock Co., 198 U.S. 236, and authorities there cited. See also, Sperry & Hutchinson Co. v. Mechanics' Clothing Co., 128 Fed. Rep. 800. We pass this question, however, because the want of merit in the contention that the case as made did not disclose the commission of a legal wrong conclusively results from a previous decision of this court. The case is Angle v. Chicago, St. Paul &c. Ry. Co., 151 U.S. 1, where it was held that an actionable wrong is committed by one who "maliciously *223 interferes in a contract between two parties and induces one of them to break that contract to the injury of the other." That this principle embraces a case like the present, that is, the carrying on of the business of purchasing and selling non-transferable reduced rate railroad tickets for profit to the injury of the railroad company issuing such tickets is, we think, clear. It is not necessary that the ingredient of actual malice in the sense of personal ill will should exist to bring this controversy within the doctrine of the Angle case. The wanton disregard of the rights of a carrier causing injury to it, which the business of purchasing and selling non-transferable reduced rate tickets of necessity involved, constitute legal malice within the doctrine of the Angle case. We deem it unnecessary to restate the grounds upon which the ruling in the Angle case was rested or to trace the evolution of the principle in that case announced, because of the consideration given to the subject in the Angle case and the full reference to the authorities which was made in the opinion in that case.
Certain is it that the doctrine of the Angle case has been frequently applied in cases which involved the identical question here at issue that is, whether a legal wrong was committed by the dealing in non-transferable reduced rate railroad excursion tickets. Pennsylvania Railroad Co. v. Beekman, 30 Wash. (D.C.) Law Rep. 715; Ill. Central R.R. Co. v. Caffrey, 128 Fed. Rep. 770; Delaware, Lack. & West. R.R. Co. v. Frank, 110 Fed. Rep. 689; Nashville, C. & St. L. Ry. Co. v. McConnell, 82 Fed. Rep. 65.
Indeed, it is shown by decisions of various state courts of last resort that the wrong occasioned by the dealing in non-transferable reduced rate railroad tickets has been deemed to be so serious as to call for express legislative prohibition correcting the evil. Kinner v. Lake Shore & Mich. Southern Ry. Co., 69 Ohio St. 339; Schubach v. McDonald, 179 Missouri, 163, and cases cited; Samuelson v. State, 95 S.W. Rep. 1012. In the case last referred to, where the subject is elaborately reviewed, the Supreme Court of Tennessee, in holding that the *224 prohibitive statute was not unconstitutional as forbidding a lawful business and in affirming a criminal conviction for violating the statute observed (p. 1016):
"That the sale as well as the purchase of non-transferable passage tickets is a fraud upon the carrier and the public, the tendency of which is the demoralization of rates, has been settled by the general consensus of opinion amongst the courts."
Concluding, as we do, that the commission of a legal wrong by the defendants was disclosed by the case as made, we are brought to consider the several contentions concerning the jurisdiction of the court and its right to afford relief. The bill contained an express averment that the amount involved in the controversy exceeded, exclusive of interest and costs, the sum of five thousand dollars as to each defendant. The defendants not having formally pleaded to the jurisdiction, it was not incumbent upon the complainant to offer proof in support of the averment. Nevertheless the complainant introduced testimony tending to show that on the New Orleans division of its road a loss of from fifteen to eighteen thousand dollars a year was sustained through the practice by dealers of wrongfully purchasing and selling non-transferable tickets. That hundreds of the tickets annually issued for the Mardi Gras festivals in New Orleans were wrongfully bought and sold; that other non-transferable reduced rate tickets were in a like manner illegally trafficked in to the great damage of the corporation, and that the defendants were the persons principally engaged in conducting such wrongful dealings. But even if this proof be put out of view we think the contention that a consideration of the whole bill establishes that the jurisdictional amount alleged was merely colorable and fictitious, is without merit. We say this because the averments of the bill as to the number of such tickets issued, the recurring occasions for their issue, the magnitude of the wrongful dealings in the non-transferable tickets by the defendants, the cost and the risk incurred by the steps necessary to prevent their wrongful use, the injurious effect upon the revenue of the complainant, the *225 operation of the illegal dealing in such tickets upon the right of the complainant to issue them in the future, coupled with the admissions of the answer, sustain the express averment as to the requisite jurisdictional amount. Besides the substantial character of the jurisdictional averment in the bill is to be tested, not by the mere immediate pecuniary damage resulting from the acts complained of, but by the value of the business to be protected and the rights of property which the complainant sought to have recognized and enforced. Hunt v. N.Y. Cotton Exchange, 205 U.S. 322, 336.
The contention that, though it be admitted, for the sake of the argument, that the acts charged against the defendant "were wrongful, tortious, or even fraudulent," there was no right to resort to equity because there was a complete and adequate remedy at law to redress the threatened wrongs when committed is, we think, also devoid of merit. From the nature and character of the non-transferable tickets, the number of people to whom they were issued, the dealings of the defendants therein and their avowed purpose to continue such dealings in the future, the risk to result from mistakes in enforcing the forfeiture provision and the multiplicity of suits necessarily to be engendered if redress was sought at law, all establish the inadequacy of a legal remedy and the necessity for the intervention of equity. Indeed the want of foundation for the contention to the contrary is shown by the opinions in the cases which we have previously cited in considering whether a legal wrong resulted from acts of the character complained of, since in those cases it was expressly held that the consequences of the legal wrong flowing from the dealing in non-transferable tickets were of such a character as to entitle an injured complainant to redress in a court of equity.
There is an opinion of the Supreme Court of New York (not the court of last resort) which would seem to express contrary views, New York Central & H.R.R.R. Co. v. Reeves, 85 N.Y. Supp. 28, but the reasoning there relied on, in our opinion, is inconclusive.
*226 The proposition that the bill was multifarious because of the misjoinder of parties and causes of action was not assigned as error in the Circuit Court of Appeals, and, therefore, might well be held not to be open. But passing that view, we hold the objection to be untenable. The acts complained of as to each defendant were of a like character, their operation and effect upon the rights of the complainant were identical, the relief sought against each defendant was the same, and the defenses which might be interposed were common to each defendant and involved like legal questions. Under these conditions the case is brought within the principle laid down in Hale v. Allinson, 188 U.S. 56, 77.
As we have stated, the Circuit Court granted a preliminary injunction restraining the defendants from illegally dealing in tickets issued on account of the United Confederate Veterans' Reunion, and before final hearing granted a second injunction restraining such dealing in like tickets issued for the approaching Mardi Gras festival. By the final decree these injunctions were perpetuated, the court declining to grant the relief sought by the complainant in relation to non-transferable tickets to be issued for the future, without prejudice, however, to the right of the complainant to seek relief by independent proceedings on each occasion when it might issue such non-transferable tickets. The Circuit Court of Appeals decided that error had been committed in refusing to grant an injunction against dealing in non-transferable tickets to be issued in the future, and directed that the decree below be enlarged in that particular. It is insisted that the Circuit Court of Appeals erred in awarding an injunction as to dealings "in non-transferable tickets that may be hereafter issued . . . since it thereby undertook to promulgate" a rule applicable to conditions and circumstances which have not yet arisen, and to prohibit "the petitioners from dealing in tickets not in esse .. . and is, therefore, violative of the most fundamental principles of our government." But when the broad nature of this proposition is considered it but denies that there is power in *227 a court of equity in any case to afford effective relief by injunction. Certain is it that every injunction in the nature of things contemplates the enforcement as against the party enjoined of a rule of conduct for the future as to the wrong to which the injunction relates. Take the case of trespasses upon land where the elements entitling to equitable relief exist. See Slater v. Gunn, 170 Massachusetts, 509, and cases cited. It may not be doubted that the authority of a court would extend, not only to restraining a particular imminent trespass, but also to prohibiting like acts for all future time. The power exerted by the court below which is complained of was in no wise different. The bill averred the custom of the complainant at frequently occurring periods to issue reduced rate non-transferable tickets for fairs, conventions, etc., charged a course of illegal dealing in such non-transferable tickets by the defendants, and sought to protect its right to issue such tickets by preventing unlawful dealings in them. The defendants in effect not only admitted the unlawful course of dealing as to particular tickets then outstanding, but expressly avowed that they possessed the right, and that it was their intention to carry on the business as to all future issues of a similar character of tickets. The action of the Circuit Court of Appeals, therefore, in causing the injunction to apply not only to the illegal dealings as to the then outstanding tickets, but to like dealings as to similar tickets which might be issued in the future, was but the exertion by the court of its power to restrain the continued commission against the rights of the complainant in the future of a definite character of acts adjudged to be wrongful. Indeed, in view of the state of the record, the inadequacy of the relief afforded by the decree as entered in the Circuit Court is, we think, manifest on its face. The necessary predicate of the decree was the illegal nature of the dealings by the defendants in the outstanding tickets, and the fact that such dealings if allowed would seriously impair the right of the complainant in the future to issue the tickets. Doubtless, for this reason the decree was made without *228 prejudice to the right of the complainant to apply for relief as to future issues of tickets by independent proceedings whenever on other occasions it was determined to issue non-transferable tickets. But this was to deny adequate relief, since it subjected the complainant to the necessity, as a preliminary to the exercise of the right to issue tickets, to begin a new suit with the object of restraining the defendants from the commission in the future of acts identical with those which the court had already adjudged to be wrongful and violative of the rights of the complainant.
In Scott v. Donald, 165 U.S. 107, on holding a particular seizure of liquor under the South Carolina dispensary law to be invalid, an injunction was sustained, not only addressed to the seizure in controversy, but which also operated to restrain like seizures of liquors in the future, and the exertion of the same character of power by a court of equity was upheld in the cases of Donovan v. Pennsylvania Company, 199 U.S. 279, and Swift v. United States, 196 U.S. 375.
Nor is there merit in the contention that the decision in New Haven Railroad v. Interstate Commerce Commission, 200 U.S. 361, 404, supports the view here relied upon as to the limited authority of a court of equity to enjoin the continued commission of the same character of acts as those adjudged to be wrongful. On the contrary, the ruling in that case directly refutes the claim based on it. There certain acts of the carrier were held to have violated the act to regulate commerce. The contention of the Government was that because wrongful acts of a particular character had been committed, therefore an injunction should be awarded against any and all violations in the future of the act to regulate commerce. Whilst this broad request was denied, it was carefully pointed out that the power existed to enjoin the future commission of like acts to those found to be illegal, and the injunction was so awarded. The whole argument here made results from a failure to distinguish between an injunction generally restraining the commission of illegal acts in the *229 future and one which simply restrains for the future the commission of acts identical in character with those which have been the subject of controversy and which have been adjudged to be illegal.
Affirmed.
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384 Pa. Superior Ct. 619 (1989)
559 A.2d 939
COMMONWEALTH of Pennsylvania
v.
David HIGBY, Appellant.
Supreme Court of Pennsylvania.
Submitted November 30, 1988.
Filed May 31, 1989.
*620 John H. Moore, Erie, for appellant.
Brad Fowlk, Assistant District Attorney, Erie, for Com., appellee.
Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
DEL SOLE, Judge:
Appellant appeals a Judgment of Sentence imposed following his conviction on numerous charges stemming from *621 the sexual assault of two young girls. After a review of Appellant's claims, we find it necessary to vacate the sentence imposed and award Appellant a new trial. Based upon our disposition, we will not address Appellant's allegations of error pertaining to the trial court's evidentiary rulings and Appellant's request for a mistrial. However, we do find, contrary to Appellant's claim, that the trial court properly denied Appellant's motion to suppress and we rely upon the thorough discussion provided in the trial court opinion on this matter.
Initially Appellant asserts that the trial court erred in refusing his pre-trial request for discovery. Appellant filed motions for inspection of both Children's Services Records and Rape Crisis Records. Following the dictates of the United States Supreme Court's pronouncement in Commonwealth v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), the trial court conducted an in camera inspection of the Children's Services Records. The trial court refused to grant Appellant access to these records based upon its finding that the records contained "no material evidence of an exculpatory nature which would be subject to disclosure." Trial Court Opinion at 3. Since the Supreme Court required "divulgence when a court of competent jurisdiction determines that the material for which production is sought is essential to the accused's defense," Commonwealth v. Carillion, 552 A.2d 279 (1988), we conclude the trial court complied with the law with respect to the Children's Services Records.
The trial court was also presented with a motion for Inspection of Rape Crisis Records. The court denied Appellant access to these records citing the confidential privilege provided under 42 Pa.C.S.A. § 5945.1(b). In his motion Appellant averred that statements made by the alleged victims to the rape crisis center were in the Commonwealth's possession. He stated that these items are discoverable pursuant to Pa.R.Crim.P. 305 and the Superior Court's decision in Commonwealth v. Cacek, 358 Pa.Super. *622 381, 517 A.2d 992 (1986). Appellant was correct. In Cacek this court stated:
The statute [42 Pa.C.S.A. § 5945.1(b)] is simply inapplicable in this matter. `It grants sexual assault counselors a privilege . . .' Commonwealth v. Samuels, 354 Pa.Super. [128] at 147, 511 A.2d [221] at 231 [(1986)]. . . . Here, pursuant to Pa.R.Crim.P. 305, Appellant filed pre-trial Motion for discovery of information within the Commonwealth's possession. 42 Pa.C.S.A. § 5945.1(b) does not grant the Commonwealth a privilege to prevent disclosure of discoverable items and information requested by a defendant pursuant to Pa.R.Crim.P. 305. In denying Appellant's Motion, the trial court erred.
Id., 358 Pa.Superior Ct. at 384, 517 A.2d at 994.
As in Cacek, the Appellant in this case has averred certain statements were made to individuals at the Rape Crisis center by the alleged victims. He also maintained that these statements are in the Commonwealth's possession. This is not a case where we must consider the trial court's ruling with regard to the issuance of a subpoena duces tecum upon a rape crisis center. See: Commonwealth v. Wilson, 375 Pa.Super. 580, 544 A.2d 1381 (1988). Rather, we must only determine whether Appellant has a right to examine certain statements which are within the Commonwealth's possession. Since the Commonwealth disputes Appellant's contention that the victims' statements are in its possession, we must remand this matter to the trial court to determine whether, in fact, these statements are in possession of the Commonwealth. If it is so found, then under the authority of Commonwealth v. Cacek, the trial court must grant Appellant's discovery request.
Appellant has also asked us to review the testimony of Dr. Linda Fagenholz who was offered as an expert in the area of child sexual abuse. This witness was first asked "some questions about some general characteristics that are found among children who have been sexually abused." N.T. at 150. When the doctor testified that her examination of the children revealed that they had trouble with time *623 sequencing, but that their stories were "very consistent and definite," defense counsel made a motion for a mistrial. N.T. at 157. The trial court instructed the jury to disregard the statement. N.T. at 159. Thereafter, the prosecutor asked hypothetical questions based upon testimony elicited by other witnesses which described the young girls specific character traits. The doctor was then asked if she had an opinion as to "whether those characteristics would be consistent with a child who has been sexually abused." Dr. Fagenholz responded affirmatively and went on to explain her reasoning. N.T. 160-164.
Appellant objects to the admission of this testimony by asserting that it constitutes an improper invasion of the province of the jury. We find that recent caselaw supports Appellant's position.
In Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988) the Court had an opportunity to consider whether an expert's testimony regarding the victim's affliction with "rape trauma syndrome" was admissible. The expert testified about a phenomenon of a "flashback" which occurs in persons who have suffered traumatic events. She further testified that she found the flashback symptom in the victim. The court remarked:
The crux of the testimony appears to be that the victim's failure to identify the appellant two weeks after the rape is unremarkable, as she was in the acute phase of RTS [Rape Trauma Syndrome] in which a victim has difficulty performing even normal functions, and the in-court identification five years later is particularly credible, as it results from a flashback, with the mind operating like a computer. It is clear that the only purpose of the expert testimony was to enhance the credibility of the victim.
547 A.2d at 358.
The Supreme Court's decision in Commonwealth v. Gallagher, Id. was cited recently by this court in Commonwealth v. Emge, 381 Pa.Super. 139, 553 A.2d 74 (1988). There a psychologist was called as a witness for the Commonwealth. He testified, "in effect . . . that the behavior of the *624 alleged victim was precisely like the behavior of a victim of child sexual abuse." Id. 553 A.2d at 77. Citing Gallagher the court found that the expert testimony denied the appellant a fair trial. Regarding the psychologist's testimony, the court commented:
[T]he dynamics of child sexual abuse in terms of consistent patterns of behavior by children generally was never an issue in this case. Whether the changes in the child's behavior in this case were "consistent with, generally speaking, a victim of child sexual abuse" would have little probative value, on the issue of whether Robert Emge, Sr. did, in fact, commit the specific offenses for which he was charged.
Commonwealth v. Emge, 553 A.2d at 76.
The rationale for the exclusion of such evidence was again recognized in Commonwealth v. Zamarripa, 379 Pa.Super. 208, 549 A.2d 980 (1988). The court explained:
[W]here an expert testifies that a complainant exhibits some of the symptoms of the syndrome, the suggestion is planted within the jurors minds that the complainant's testimony is reliable and trustworthy. Thus, the jury would ultimately permit its fact finding and credibility weighing-functions to become supplemented by the observations of an expert witness.
549 A.2d at 981.
As in these cases, we find the expert's testimony in the instant case to be inadmissible. The general patterns of behavior exhibited by children who have been sexually abused was not at issue in this case. The doctor's testimony that certain personality and behavior characteristics, which other witnesses said they observed in these complainants, are found in sexually abused children served only to bolster the credibility of the alleged victims. Accordingly, we conclude that it was error for the court to permit this testimony and that Appellant is entitled to a new trial.
Judgment of Sentence reversed. Case remanded for a new trial. Jurisdiction relinquished.
| {
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788 F.Supp.2d 902 (2011)
UNION COUNTY, IOWA, Plaintiff,
v.
PIPER JAFFRAY & CO., INC., Defendant.
No. 4:06-cv-374.
United States District Court, S.D. Iowa, Central Division.
May 27, 2011.
*905 Kimberly Holst Blankenship, Timothy J. Hill, Bradley & Riley, Cedar Rapids, IA, Natalie K. Ditmars, Adam S. Tarr, Bradley & Riley PC, Iowa City, IA, for Plaintiff.
Terri L. Combs, Michael A. Giudicessi, Jesse Linebaugh, Faegre & Benson LLP, Des Moines, IA, Jerome A. Miranowski, Nicole N. Nayima, Faegre & Benson LLP, Minneapolis, MN, for Defendant.
ORDER
ROBERT W. PRATT, Chief Judge.
Union County, Iowa ("Plaintiff" or the "County") filed an Amended Complaint against Piper Jaffray & Co., Inc. ("Defendant" or "Piper") on January 30, 2008, asserting the following claims: 1) breach of fiduciary duty; 2) breach of contract; 3) negligent misrepresentation; 4) negligence; and 5) fraud. Clerk's No. 47. On September 29, 2010, the Court entered summary judgment in favor of Defendant on Plaintiff's breach of contract claim. Clerk's No. 240, 741 F.Supp.2d 1064 (S.D.Iowa 2010). A jury trial was, held on the remaining counts from December 6-16, 2010. See Clerk's Nos. 298, 300, 303, 305, 307, 312-13, 317. At trial, the "fraud" count was presented to the jury as two separate claims: one for fraudulent misrepresentation and one for fraudulent nondisclosure. See Clerk's No. 314.
On December 17, 2010, the jury returned its verdicts. Clerk's No. 318. The jury found in favor of Defendant on Plaintiff's claims for breach of fiduciary duty, negligence, negligent misrepresentation, and fraudulent misrepresentation. Id. The jury, however, found in favor of the County on the fraudulent nondisclosure claim, and awarded the County $1.00 in damages.[1]Id. Presently before the Court are two post-trial motions filed by the parties.
On January 20, 2011, the County filed a "Motion for New Trial on Damages," contending that it is entitled to a new trial on damages because of prejudice resulting from "errors committed at trial concerning the introduction and exclusion of evidence bearing on the question of the County's damages [and] incorrect jury and curative instructions (submitted over the County's objection)." Clerk's No. 334. The County further argues that the "jury's verdict, in assessing $1 in damages, completely disregarded the overwhelming damages testimony at trial." Id. at 1. Piper filed a resistance to the County's Motion on February 7, 2011. Clerk's No. 339. The County filed a Reply on February 17, 2011. Clerk's No. 340.
On January 20, 2011, Piper filed a Renewed Motion for Judgment as a Matter of Law (Clerk's No. 335), asserting that "the *906 evidence at trial was insufficient to support a finding that the County had met its burden of proving its fraudulent nondisclosure claim."[2] Clerk's No. 335 at 2. The County filed a resistance to Piper's Motion on February 7, 2011. Clerk's No. 338. Piper filed a Reply on February 22, 2011. Clerk's No. 345. The County filed a Supplement to its resistance to Piper's Motion on February 24, 2011. Clerk's No. 347. Piper filed a response to the County's supplemental resistance on March 1, 2011. Clerk's No. 350. The matters are fully submitted.
The factual background of this case was set forth extensively in the Court's Order on Piper's Motion for Summary Judgment. See Clerk's No. 240, 741 F.Supp.2d at 1070-86. Because the evidence provided to the Court at the summary judgment stage was fundamentally the same as that presented at trial, the Court will not recount the factual background in this Order, except where relevant and necessary for consideration of the pending motions.
I. PIPER'S RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW
A. Legal Standard
Federal Rule of Civil Procedure 50(a) provides that at any time before a case is submitted to a jury, either party may move for judgment as a matter of law. "If the court does not grant a motion for judgment as a matter of law made under subdivision (a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion." Fed. R.Civ.P. 50(b). In ruling on a renewed motion for judgment as a matter of law, the Court may "(1) allow judgment on the verdict, if the jury returned a verdict; (2) order a new trial, or (3) direct the entry of judgment as a matter of law." Fed. R.Civ.P. 50(b)(1). Further, in considering the post-verdict renewed motion for judgment as a matter of law, the trial court is:
(1) to consider the evidence in the light most favorable to the ... parties prevailing with the jury; (2) to assume that all conflicts in the evidence were resolved... in favor of the prevailing parties; (3) to assume as proved all facts which the prevailing parties' evidence tends to prove; (4) to give the prevailing parties the benefit of all favorable inferences which may reasonably be drawn from the facts proved; and (5) to deny the motion if, reviewing the evidence in this light, reasonable men could differ as to the conclusion to be drawn from it.
Voegeli v. Lewis, 568 F.2d 89, 92 (8th Cir.1977) (quoting Griggs v. Firestone Tire & Rubber Co., 513 F.2d 851, 857 (8th Cir. 1975)). Accordingly, the Court must focus its analysis on "whether or not the record contains evidence sufficient to support the jury's verdict." Children's Broad. Corp. v. Walt Disney Co., 357 F.3d 860, 863 (8th Cir.2004).
B. Elements of the Claim
As noted, the jury returned a verdict in favor of the County only on the County's claim against Piper for fraudulent nondisclosure. At trial, the Court instructed the jury on this claim as follows:
Union County asserts a claim of fraudulent nondisclosure against Piper. Union County must prove the following propositions by a preponderance of clear, satisfactory, and convincing evidence:
*907 1. Special circumstances existed which gave rise to a duty of disclosure between the plaintiff and the defendant.
2. While such relationship existed, the defendant was aware of one or more of the matters listed in the Instruction titled "Alleged Nondisclosures" (note that you must unanimously agree upon which item(s) was not disclosed).
3. While such relationship existed, the defendant concealed or failed to disclose the identified matter.
4. The undisclosed information was material to the transaction.
5. The defendant knowingly failed to make the disclosure.
6. The defendant intended to deceive the plaintiff by withholding such information.
7. The plaintiff acted in reliance upon the defendant's failure to disclose and was justified in such reliance.
8. The failure to disclose was a cause of the plaintiff's damage.
9. The nature and extent of the plaintiff's damage.
If Union County has failed to prove any of these propositions, Union County cannot recover damages. If Union County has proved all of these propositions, Union County may be entitled to recover damages in some amount.
Final Jury Instr. No. 40 (Clerk's No. 314 at 44).
The instruction on "Alleged Nondisclosures" referenced in the second element provided:
In its negligence and fraudulent misrepresentation claims, Union County alleges that Piper owed duties to Union County, and that Piper breached its duties by failing to disclose certain information. Specifically, Union County contends that Piper failed to disclose the following:
1. Feasibility and engineering studies on the Project.
2. An appraisal showing that Crestland's real estate located in Creston, Iowa was worth $5,945,000.
3. Piper's belief that the $19 million minimum assessment was high in relation to the capital expenditures on the project.
4. Investigative steps Union County could have taken, such as obtaining an independent feasibility study and appraisal for the CF Project.
5. Alternative approaches that Union County could have considered in connection with entering into the Development Agreement that would have offered Union County greater protection, such as obtaining a Letter of Credit or not proceeding at all with the Development Agreement.
6. The City's participation in the CF financing through the issuance of IDR bonds.
7. Piper's work with Crestland and CF to finance the Project, and Piper's representation of the City in unrelated bond issuances.
8. Union County's financing was the sole "equity" in the Project.
9. Piper did not inquire as to whether a Letter of Credit was available.
10. That Crestland had losses in some years before Union County's participation in the CF project and execution of the Development Agreement.
11. The risks posed by the CF project, as set forth in the official statement for the City IDR bond issuance, including that the CF equipment was leased and not subject to taxation *908 under the Development Agreement; that the cost of the CF "building and structures" was $8 million.
Final Inst. No. 28.
C. Analysis
Defendant argues that judgment as a matter of law must be granted in its favor because insufficient evidence was presented at trial as to the first, fourth, sixth, seventh, and eighth elements necessary to prove a claim for fraudulent nondisclosure. The Court will examine the sufficiency of the evidence as to the elements of the claim, recognizing that "[f]raud must be established by clear, satisfactory, and convincing evidence." McGough v. Gabus, 526 N.W.2d 328, 331 (Iowa 1995).
1. First element duty of disclosure.
Iowa case law holds that a fraud claim can be actionable based on one party's failure to disclose material information to another party. In order to be actionable, however, the party sued must have been under "`a legal duty to communicate'" the information that was not disclosed. Sinnard v. Roach, 414 N.W.2d 100, 105 (Iowa 1987) (quoting Wilden Clinic Inc. v. City of Des Moines, 229 N.W.2d 286, 293 (Iowa 1975)). This legal duty typically arises from a fiduciary relationship between the parties; however, it may also be created by "special circumstances," i.e., it may "`arise[] from a relation of trust, from confidence, from inequality of condition and knowledge, or other attendant circumstances.'"[3]Id. (quoting Wilden, 229 N.W.2d at 293).
*909 Piper argues that the only evidence submitted to the jury in support of the County's assertion of a "legal duty to disclose" was evidence that Piper made an oral statement, "I work for you," at a December 9, 1996 Union County Board of Supervisors ("Board") meeting, and that Piper wrote a follow-up letter three days later to "confirm" this representation. Def.'s Mot. Br. at 8. The County contends that this same evidence shows that Piper "went vastly beyond acting as underwriter for the County." Pl.'s Resistance Br. at 9. The County then claims that, "in line with" Piper's duty, it undertook several additional tasks, including acting on the County's behalf in sending a letter the next day setting out the terms of the Development Agreement, providing comments on drafts of the Development Agreement, and advising the County to move forward with financing. Id.
"Whether the special circumstances are such as to give rise to a duty of disclosure is generally a question of law for the Court...." Iowa Civil Jury Inst. 810.2 cmt. (citing Restatement (Second) of Torts § 551 cmt. m (1977) ("Whether there is a duty to the other to disclose the fact in question is always a matter for the determination of the court. If there are disputed facts bearing upon the existence of the duty, as for example the defendant's knowledge of the fact, the other's ignorance of it or his opportunity to ascertain it, the customs of the particular trade, or the defendant's knowledge that the plaintiff reasonably expects him to make the disclosure, they are to be determined by the jury under appropriate instructions as to the existence of the duty.")). Plaintiff bore the burden at trial to prove the existence of a duty based upon special circumstances "by a preponderance of clear, satisfactory, and convincing evidence." McGough, 526 N.W.2d at 331. After careful consideration and extensive review of the record, the Court cannot conclude that the circumstances presented by Plaintiff in this case are legally sufficient to give rise to a duty on behalf of Piper.
a. Evidence in support of duty: December 9, 1996 meeting and December 12, 1996 letter.
Though Union County contends that Piper performed numerous tasks throughout the course of the parties' dealings that were "in line with" the duty it claims Piper undertook, it is clear that Piper is alleged to have owed the County a duty as a result of exchanges between the parties at a County Board meeting on December 9, 1996. Throughout all phases of this case, County officials have maintained that they "hired" Piper representative Tim Oswald ("Oswald") to be their financial advisor in relation to the CF Processing Development Project (hereinafter "Development Project") at their December 9, 1996 Board meeting. The County has further maintained that this hiring was confirmed by a letter from Oswald to the County on December 12, 1996.
At trial, three members of the Board testified about meeting Oswald at a Board meeting on December 9, 1996. Michael Reasoner ("Reasoner") testified:
Reasoner: This would be the meeting with discussion to decide should we do this, should we not do this as a board, and ultimately the question was asked, because we were asking different people different questions, Mr. Oswald we had asked, you know, in terms of Piper Jaffray, because of his financial expertise, you know, how can we make this happen, or should we make this happen? And I think at one point Supervisor King asked the question, because who-he was there, "But who do you work for?" And he *910 replied he works for the county, that he would work for us.
Pl.'s Att'y.: When the meeting ended, what was your understanding of Piper Jaffray's role in relation to the county?
Reasoner: They would advise us as to the financial soundness of what we would do. Did this make sense for a county our size.
Dec. 7 Trial Tr. at 5.[4] On cross-examination, Reasoner admitted that neither the December 9, 1996 Board meeting minutes nor any other document reflected that the County hired Piper to be its financial advisor. See id. at 43-44 ("Formally, formally there's not, our conversation, his reply was yes, I work for you."). Reasoner further admitted that he was aware at the time he met Oswald on December 9, 1996 that the "supervisors [knew Oswald had] had been working with the City of Creston and the co-op on the financing package that they have, [with] the developer for some time." Id. at 101.
Board member Michael King ("King") also testified about his belief that the Board had "hired Piper Jaffray" to be its financial advisor with respect to the Development Project. Dec. 8 a.m. Trial Tr. at 26.[5] According to King, the December 9, 1996 meeting was a public hearing to discuss how to set up a taxing area in which a Tax Increment Financing ("TIF") plan would work. Id. at 45. King testified:
Pl.'s Att'y.: What did [Oswald] say to you and what can you say to him, as best you can recall?
King: One of the instances we talked, one of the point-blank questions I asked him in the discussion was, "I don't understand. We've got Crestland, we've got the City of Creston, we've got the college. Who do you work for?"
Pl.'s Att'y.: And what did he say to you.
King: He said "I work for you, Union County," eyeball to eyeball that's what the man told me.
Pl.'s Att'y: What did he say he was going to do for you, if you recall?
King: He said he would take care of all financial aspects of the county and make sure the county's financial end would be covered because our board, along with myself, had very big concern. We have a county attorney, but past attorneys don't do financial work. We are the fiscal agents for the county. We had no expertise in doing something like this.
Pl.'s Att'y.: Who had the expertise in that room to do the public financing?
King: Mr. Oswald.
. . .
Pl.'s Att'y.: Did Mr. Oswald tell you anything about his Piper's expertise at this meeting?
King: He said he was the very best, and I didn't have anything to worry about.
Pl.'s Att'y.: The very best at what?
King: As a financial consultant, and he would lead us through this whole he was our financial advisor and would lead us through this whole project.
Pl.'s Att'y.: Mr. King, did Mr. Oswald tell you he was just going to be an underwriter for the county, that his services was going to be limited to just buying and selling county debt?
*911 King: No.
Pl.'s Att'y.: Did he tell you that his services was going to be limited for Union County [unclear from transcript]?
King: No. He said he was our financial advisor, and he would be doing the underwriting, too, but he was our financial advisor.
Pl.'s Att'y.: Did he tell you that he was going to be working for CF Processing?
King: No. Never.
Pl.'s Att'y: Did he tell you he was going to be working for Crestland Cooperative?
King: Never.[6]
Pl.'s Att'y.: Did he tell you he was the financial consultant for the City of Creston?
King: No.
Pl.'s Att'y.: Did he tell you that the city was issuing industrial revenue bonds and he was underwriting those for this financing?
King: No.
Id. at 48-51.
Finally, Gerald McLain testified about his belief that Oswald was hired as the County's "financial advisor":
McLain.: What I thought [was that Oswald] was our financial advisor.
Pl.'s Att'y.: How did you come to that understanding?
McLain: Well, when we were we had a different meetings, as the meeting went along, he was asked through various conversations that we had, and finally it was said "Who do you work for?" I think Mr. King said that. He said "Well, I work for you."
Pl.'s Att'y.: What did you understand that statement to mean Mr. McLain?
McLain: As we went along on that, he would be the man who we would go to for our financial advice.
. . .
Pl.'s Att'y.: Who was assisting you, the board, in connection with the Urban Renewal Plan and the roads and sewer work?
McLain: Well, I was assuming Piper Jaffray would be helping us with that.
Pl.'s Att'y.: How did you come to that assumption? How did you come to that realization?
McLain: Well, we had Mr. Oswald, you know, advising us.
Dec. 10 Trial Tr. at 145-46.
On December 12, 1996, Oswald wrote a follow-up letter that had been requested at the provided:
This letter is to outline our services to the county regarding the proposed issuance of TIF general obligation bonds. We will be assisting the County as the underwriter of the proposed debt.
* We will attend meetings and represent the county as requested, in all aspects of completion of the financing.
* We will assist the County in the creation and completion of a development agreement.
* We will review the development agreement and recommend areas of concern and suggested strategy.
* We will draft and prepare the offering documents for the securities to be offered.
*912 * We will advise and assist in securing a municipal credit rating or credit enhancement insurance, if appropriate.
* We will make contact with Piper Jaffray's investment executives to describe the securities offering.
* We will assist the County in investing the proceeds of any securities to be offered.
Our fees will be not greater than 2% of the issue amount, and will be payable only upon completion of the sale of securities.
As you are aware, we have been retained by the Developer to provide financing of the proposed project. We do not believe that this causes us a conflict of interest in assisting the county, however, because the only area of possible conflict is in the actual development agreement and the agreement is drafted and negotiated between the County's attorney and the developer's attorney. The underwriting of debt securities is a special and small portion of the overall project, and our services are to be limited to the structuring and sale of securities.
The Supervisors have requested that we assist in the development agreement to provide analysis of the proposed minimum assessment and timing of the minimum assessment, and in calculating the amount to be offered the developer.
We are comfortable with this responsibility and will covenant not to participate in assisting the developer in negotiating the agreement. As the above noted items are the major points of financial interest to the county or any municipality doing a similar type of agreement, these are the only items we would generally advise an issuer regarding. We are comfortable that the County will be adequately represented regarding financial matters.
Pl.'s Trial Ex. 1.
Regarding this letter, Reasoner testified that letter was requested by the Board at the December 9, 1996 meeting:
This was the result of nearly the hour-long public hearing when we were asking a variety of questions, and the question, "Who do you work for?" We had asked, "Can you put that in writing, put that in the form of a letter," something to that effect. And this resulted [in the December 12, 1996 letter].... Basically this is what we wanted.
We were people who were small business owners, we were farmers, we were retired, and we were not financial experts. The fact that we had a firm, such as Piper Jaffray, they're experts, at least that's how it's advertised in world finance, and I know we felt better that we had them agreeing to help us put this project together, whether we should move forward or not, and bullet items were items that we discussed, and I felt that brought a lot of comfort level to the supervisors. Again, we're not experts, but we had someone who was.
Dec. 7 Trial Tr. at 7.
On cross-examination, Reasoner testified that, "[w]hen [he] read the document in totality," he read the bullet points as "highlighting" what Piper's role would be, i.e., that Piper "would help us give us the expertise to make the decision." Id. at 103. Reasoner further admitted, however, that Piper's letter never used the phrase "financial advisor" and expressly stated Piper would be the underwriter of the transaction, that Piper's services would be limited to the sale of securities, that Piper was not going to participate in the drafting of the Development Agreement, and that Piper would only "assist in the Development Agreement to provide analysis of the *913 proposed minimum assessment and timing of the minimum assessment, and in calculating the amount to be offered to the developer." Id. at 103-05, 108. Despite these considerations, however, Reasoner maintained that he "recall[ed] feeling that we had a financial advisor, and that [Oswald] put in writing that he would help us through the process, and that's why I felt we were in good hands." Id. at 106.
King also testified about the December 12, 1996 letter, stating that he "was pretty much assured that everything we had asked for was covered [in the letter]." Dec. 8 a.m. Trial Tr. at 59. King testified that he read the bullet points in the letter as indicating that Oswald would "be involved in the creation and completion of working with the attorneys to put the Development Agreement together," and that Oswald "would review all the documents and recommend areas of concern that he had from A to Z, throw up a red flag if there was a problem," and that Oswald "would be our financial advisor, and he would take care of our financial and overall project to make sure that it worked." Id. at 60-62.
On cross-examination, King admitted that he spent "very little time" evaluating the prudence of the County entering into the project because, in King's view, "I had Tim Oswald involved in this as a financial agent, and that's who we hired. In county government we don't second-guess or go around and double-check our experts." Dec. 8 p.m. Trial Tr. at 36. King further testified that he saw no need to ask for any information because "[n]one was offered. To me that was things were going well, it was a green light. There was no red flags thrown up." Id. at 37.
Finally, McLain testified that he read the last line of the letter, "we are comfortable that we can adequately represent the county" as meaning that Oswald had agreed to act as the County's financial officer. Dec. 10 Trial Tr. at 146-47. McLain read this line as indicating that he "could relax a little and go about my other businesses that I had, and things would be handled in a proper manner." Id. at 147. McLain further testified that he believed Oswald was advising the County in connection with the Development Agreement, and that the County hired Piper because if its good reputation and because Oswald "said that he was the best guy to do the job." Id. at 148.
b. Sufficiency of the evidence.
Based on this testimony and taking the evidence in the light most favorable to the County, as it must, the Court accepts that at all times after receiving Oswald's December 12, 1996 letter, Board members were under the impression that they had hired a financial advisor in Tim Oswald. Indeed, Board members readily admitted at trial that they did virtually nothing to investigate the propriety of committing County resources to the Development Project because they believed that Oswald was watching out for the County's interests alone and would have "thrown up a red flag" if there was something that the County should have been concerned about. See Dec. 7 Trial Tr. at 82 (Q: "Between December 9, when you retain, per your testimony, Piper Jaffray, and when you signed the Development Agreement, what due diligence did you do as a county official to try to determine whether this was a good deal for the County?" Reasoner: "I was taking a person's word. I took their word that they were going to advise us and provide us information so we could make a decision.... That's what I did, I took that person, that individual, their reputation at their word."); Dec. 8 p.m. Trial Tr. at 37 (Q: "You didn't ask for any information. We've gone through that before; correct?" *914 King: "None was offered. To me that was things were going well, it was a green light. There was no red flags thrown up.").
To evaluate the overall sufficiency of the County's offered testimony on the duty element, it must be viewed in context. The Union County Board of Supervisors never met Oswald or had any conversations or interactions with him prior to the December 9, 1996 Board meeting. Prior to that time, however, County officials had already participated in numerous meetings related to the County becoming involved in the Development Project and had already begun the process of formalizing the County's involvement. Indeed, by November 8, 1996, the outline of the project was sufficiently concrete that Tim Oswald sent a letter to Larry Crosser, the developer of the project, Don Krings, a Union County official, and Joe Parker, a City of Creston official, with a "draft description of the process to complete this project, as well as a time schedule and an updated bond retirement schedule." Trial Ex. 88. At a November 18, 1996 Board meeting, the County formally adopted the preliminary finance plan enclosed in Oswald's letter, which contemplated the County "sign[ing] on to $6.9 million in debt," and assumed a minimum assessment on the plant of $12 million. See Dec. 7 Trial Tr. at 95-96, 98; Trial Ex. 756. The Board further agreed at that meeting to have Simmering-Cory draft a development agreement and, in fact, sent a letter to Tom Simmering authorizing him to "go forward to draft a TIF plan [that had] been authorized by the board." Dec. 7 Trial Tr. at 116 (Reasoner); Dec. 8 p.m. Trial Tr. at 20 (King); Trial Ex. 549. Moreover, on August 21, 1996 and on September 11, 1996, an attorney from Ahlers Law Firm attended County Board meetings in relation to the Development Project and billed the County for his time. See Dec. 8 p.m. Trial Tr. at 16-17 (King).
Given that Union County had already approved a preliminary plan of finance, and engaged outside entities to render advice and perform tasks intended to move the project forward, Oswald's "I work for you" statement at the December 9, 1996 Board meeting is not so direct a commitment to act as the County's financial advisor as the County would assert. The County's witnesses recall virtually nothing that Oswald said to them at the December 9, 1996 meeting, other than, "I work for you." There was absolutely no testimony that Oswald asked the County questions about its finances, or that the County provided Oswald with information about its income, debt limitations, or outstanding obligations, as would be expected if Oswald was going to "advise" the County about the propriety of entering into the Development Project. Likewise, there was no testimony that the County and Oswald discussed the scope or extent of Piper's "advisory" duties to the County, that the County told Piper it expected him to inform the County if it was unwise or imprudent to enter into the Development Project, or even that the parties discussed how Piper would be paid for its "advisory" services. When viewed outside of the vacuum in which the County presents it, the County is ultimately asking the Court to permit a legal duty to be imposed upon Piper based merely on the words, "I work for you," coupled with the fact that the County Board members inferred from those words that they had employed a financial advisor. To do so would be patently unreasonable and contrary to Iowa law.
To the extent that Oswald's "I work for you" statement is insufficient standing alone, the County relies on Oswald's December 12, 1996 follow-up letter. In particular, *915 the County repeatedly emphasized at trial the bullet points in the letter, articulating that Piper would "assist the County" and "recommend areas of concern and suggested strategy." The letter, however, never uses the term "financial consultant" or "financial advisor." It also never states that Piper will advise the County about the propriety of entering into the transaction. Rather, the letter states that Piper "will be assisting the County as the underwriter of the proposed debt," that "[t]he underwriting of debt securities is a special and small portion of the overall project, and our services are to be limited to the structuring and sale of securities," that Piper will "represent the county as requested, in aspects of completion of the financing," and that Piper will "assist the County in the creation and completion of a development agreement," including "recommend[ing] areas of concern and suggested strategy." After careful review of the letter,[7] the Court does not believe that even coupled with Oswald's "I work for you" statement and Piper's superior financial knowledge, it demonstrates by a preponderance of clear, satisfactory, and convincing evidence, that Piper undertook a duty to "throw up red flags" about the wisdom of the County's involvement in the Development Project.[8]
c. The County's additional evidence of duty.
Union County claimed at trial that several additional pieces of evidence further support a conclusion that Piper's actions *916 throughout the parties' relationship were "in line with" the duty that the County claims Piper owed it. That is, the County contends that actions taken by Piper after the December 9, 1996 Board meeting affirm that Piper agreed to be the County's advisor in relation to the Development Project. The Court disagrees that any of this evidence is sufficient, even when considered in light of the December 9, 1996 "I work for you" statement and the December 12, 1996 letter, to meet Plaintiffs burden of proof in this case.
First, the County points out that on December 10, 1996, Piper wrote a letter to John McKinney of Ahlers Law Firm stating, "The Board of Supervisors have instructed us to begin working with you on the process to complete a development agreement and sell G.O. notes." Trial Ex. 553. Nothing about this statement, however, indicates that Piper is "advising" the County. Indeed, the letter does little more than recount the terms that the County had already preliminarily approved and reference that various public hearings will need to be held. Id. Second, Piper was asked by Ahlers in a letter dated January 24, 1997 to review a copy of the development agreement and provide its thoughts. Trial Ex. 112A. This letter to Piper, however, does nothing to prove that Piper agreed to advise the County. Third, the County points out that Oswald "advised" it to "approve and execute the development agreement" in a letter dated February 28, 1997. Trial Ex. 12. This letter, however, was written by Oswald to Ahlers, not to the Board of Supervisors. Moreover, while the letter states once the next required step, a public hearing, is completed, it "would be appropriate to approve and execute the development agreement," the letter also clearly states that Oswald was not aware of certain comments that had circulated regarding the Development Agreement a fact inconsistent with the County's claim that Piper was doing more than acting as an underwriter. See id. ("It is my understanding that you have been provided comments on the above development agreement by the developer's attorney, Amy Beattie. I have not heard of those comments, however, I am assuming at this point that they are not substantive with respect to the security offered by the Coop or the County's obligations."). The County also points out that in a July 17, 1997 letter from Oswald to Reasoner, Oswald states that Larry Crosser received some necessary approvals from his bank and told the County "it is time to pick up your process and move it forward." Trial Ex. 16. Though the County presents this statement as "advising" it to move forward, the County's position ignores the context and tenor of the letter overall, which mostly discusses completing the financing project in a timely fashion, with no commentary whatsoever on whether the project is a wise or valuable investment for the County. Moreover, this letter also states that Piper had asked the County "to hold up moving forward with the $4 million cash grant" because Larry Crosser was waiting on some additional approvals. Id. According to the letter, "Larry Crosser received word from his bank, First Bank Systems, that they would guaranty an issue of industrial revenue bonds that will be used to fund the construction of the new soybean plant." Id. Since the County was never going to issue industrial development revenue bonds, this letter directly undermines the County's assertion that it never had any information that would lead it to believe that entities other than the County were providing funding for the Development Project.
Next, the County points out that a letter dated May 7, 1997 from Ahlers Law Firm to Tim Kenyon states, "At Tim Oswald's *917 request, we have prepared a second draft of the Agreement between Union County and CF Processing." Trial Ex. 14. The "change" apparently requested by Oswald, however, was that "the City of Creston has now been added as an additional party." Id. Moreover, the letter also goes on to request additional information from Kenyon that is necessary to complete the Development Agreement. The Court does not find that this letter evidences any advisory duties by Piper. The County also highlights the fact that Oswald organized the activities of various persons involved in the process. See Trial Ex. 13 (May 5, 1997 letter from Oswald to Ahlers stating that the Board of Supervisors had "instructed us to begin the process of authorizing an additional cash grant," noting that hearings would need to be scheduled for certain dates, and requesting that copies of documents be provided to Oswald so that he could "get them into the folder I am creating for the County in time to give them one week's review" of documents); Trial Ex. 15 (May 7, 1997 letter from Oswald to Reasoner enclosing a "notebook showing each action item that has been taken so far, and providing room for action items yet to be taken"); Trial Ex. 143 (June 2, 1997 letter from Oswald to Ahlers, providing a copy of a time schedule Oswald provided to the Board of Supervisors); Trial Ex. 152A (August 22, 1997 letter from Ahlers to Oswald thanking him for coordinating the return of executed documents and requesting additional documents). Organizing the project and the players in it, however, cannot be reasonably construed as providing "advisory" services to the County. The County next points to the fact that Oswald appeared at various County Board meetings related to the Development Project. See Tr. Exs. 90, 97, 153, 157, 188. The County does not reference, however, the fact that Oswald always appeared at these meetings with Larry Crosser, an agent of the developer. See Dec. 7 Trial Tr. at 121. Finally, Piper is listed as "Financial Consultant" in Appendix A of the October 1, 1997 General Obligation Loan Note issuance. Trial Ex. 3 at 9. The category descriptions within the document, however, do not list a financial consultant, and indeed, articulate that Piper is the underwriter on the transaction, with a description of Piper's duties in this regard. Id. Moreover, there is no evidence in the record that any County Board member ever saw this reference to Piper as "Financial Consultant," let alone relied on it.
Having reviewed all of the evidence placed before the jury in this case, and resolving all factual disputes in the light most favorable to Union County, the Court is still left with the firm conviction that Iowa courts would not find the "special circumstances" of this case sufficient to support the "duty" element of Plaintiff's fraudulent nondisclosure claim. Plaintiff's evidence, even taken in toto, demonstrates nothing more than that Piper said "I work for you," wrote the December 12, 1996 letter, and that Board members inferred that Piper had somehow agreed to advise the County.[9] Accordingly, the Court concludes *918 as a matter of law that the County's evidence is insufficient to support a conclusion that special circumstances gave rise to a duty of disclosure between Piper and the County.
2. Seventh element justifiable reliance.
Union County's claim of fraudulent nondisclosure required it to demonstrate that the County actually relied to its detriment on Piper's nondisclosures, and that any such reliance was "justifiable." See Midwest Home Distributor, Inc. v. Domco Indus., 585 N.W.2d 735, 743 (Iowa 1998) ("[J]ustifiable reliance is an essential element of fraudulent misrepresentation."). "`Reliance upon [a defendant's representation] is justifiable if a person acting with reasonable and ordinary prudence and caution would have a right to rely on the representations.'" Pollmann v. Belle Plaine Livestock Auction, Inc., 567 N.W.2d 405, 410 (Iowa 1997) (quoting Kaiser Agric. Chems. v. Ottumwa Prod. Credit Ass'n, 428 N.W.2d 681, 683 (Iowa Ct. App.1988)). "Reliance is not justified if the person receiving the information knows or in the exercise of ordinary care should know that the information is false." Pollmann, 567 N.W.2d at 410.
"The justifiable-reliance standard does not mean a plaintiff can blindly rely on a representation." Spreitzer v. Hawkeye State Bank, 779 N.W.2d 726, 737 (Iowa 2009) (citing Lockard v. Carson, 287 N.W.2d 871, 878 (Iowa 1980)). "Instead, the standard requires plaintiffs to utilize their abilities to observe the obvious, and the entire context of the transaction is considered to determine if the justifiable-reliance element is met." Id. (citations omitted). Relevant factors in the consideration include:
"(1) the sophistication and expertise of the plaintiff in financial ... matters; (2) the existence of long-standing business or personal relationships; (3) access to the relevant information; (4) the existence of a fiduciary relationship; (5) concealment of the fraud; (6) the opportunity to detect the fraud; (7) whether the plaintiff initiated the ... transaction or sought to expedite the transaction; and (8) the generality or specificity of the misrepresentations."
Id. (quoting Davidson v. Wilson, 973 F.2d 1391, 1400 (8th Cir.1992)). Another relevant consideration is whether the "oral representation clearly contradicts a written agreement. In such instances, reliance on the oral representation by a plaintiff can be utterly unjustified in the face of a clear written contradiction." Id. (citations *919 omitted); see also Hammes v. JCLB Props., LLC, 764 N.W.2d 552, 556 (Iowa Ct.App.2008) ("Under Iowa's subjective test, the issue is whether the plaintiffs, in view of their own information and intelligence, had a right to rely on the representations." (citing Lockard v. Carson, 287 N.W.2d 871, 878 (Iowa 1980))).
The Court finds that the evidence presented in this case was insufficient to support the jury's finding that the County justifiably relied on Piper to disclose to it the "alleged nondisclosures" in Final Instruction Number 28. At best, the basis for the County's reliance on Piper to advise it on the propriety of entering into the Development Project was Oswald's "I work for you" statement combined with the December 12, 1996 letter. As discussed previously, however, there is no evidence in the record, save for the December 12, 1996 letter, delineating in precisely what capacity Oswald was going to be working for the County. Moreover, the December 12, 1996 letter itself contains language that should have raised doubts about the County's claimed belief that Piper was acting as a financial advisor. For instance, the December 12, 1996 letter specifically states that Piper will be the "underwriter of the proposed debt" and that its "services are to be limited to the structuring and sale of securities." Trial Ex. 1. Rather than ask for clarification, however, the County ignored this language and forged ahead with its reliance on Piper to "throw up red flags."
The Spreitzer factors do nothing but reinforce a conclusion that the County was unjustified in its reliance on Piper. Piper and the County had no prior personal or business relationship, and there was no prior or existing fiduciary relationship between them. While certainly Piper was more experienced than was the County in financial matters, the County Board members tasked with determining whether the Development Project would ultimately move forward were elected governmental officials, most with fairly extensive backgrounds in County governance and with experience in bonding and municipal financing transactions generally, if not in transactions as large as the Development Project.
Moreover, and perhaps most significantly, the County had access, in one form or another, to virtually all of the information they claim Piper failed to disclose.[10] County Board members attended various community meetings about the project and held various meetings of their own, but never asked anyone, including Piper, for additional documentation or information about the project. Further, much of the information that Piper allegedly withheld, including the City's involvement in the project, Piper's representation of other entities in other projects, and information about Crestland's finances, was routinely published in legal notices and other articles in local newspapers. Additionally, information about risks of the operation were either already known to the Board members by virtue of the bean processing plant's start-up nature, or were detailed in non-confidential documents in the possession of the County's bond counsel. See Final Inst. No. 20 (knowledge of agent-attorney imputed to Principal).
Although the County has attempted to give the impression that County Board members were little more than simple farmers and small business owners, the fact remains that these individuals were publically elected officials, charged with protecting the interests of the County's *920 taxpayers. Even if the evidence in this case could reasonably be said to support an inference that Piper undertook some grand scheme to prevent the County from knowing information that might cause it to decline participation in Development Project a project that the County and its constituents at all times viewed favorably, and that the County (before ever meeting Oswald) had already tentatively agreed to participate in by its formal adoption of a preliminary finance plan the County Board members need only have asked a few questions or paid even a bit of attention to the wealth of information available around them to have uncovered the scheme. Instead, there was not one iota of evidence presented at trial that the County officials ever asked a single question about risks of the project, Crestland's finances, or whether security the County had allegedly requested had been obtained. See Dec. 7 Trial Tr. at 32 (Reasoner testifying that the Board "took it for granted" that insurance to protect the taxpayers would be obtained), id. at 40 (Reasoner testifying: "[W]e made the assumption that we were the major player, we were the players that were helping CF and Crestland make this work."); id. at 82 (Reasoner testifying he never asked Crosser how the co-op was doing financially); id. at 146 (Reasoner acknowledging that the Board "knew [the project] was a new company and every new company has problems the first struggles the first few years of existence"); Dec. 8 p.m. Trial Tr. at 36 (King acknowledging that he "did nothing [him]self to assure [him]self that this was a wise decision on [his] part, for the county to enter into this and extend itself on these notes"); id. at 37 (King acknowledging that he did not "ask for any information" in relation to the project); id. at 41 (King admitting he did not inquire whether insurance had been obtained to protect the taxpayers); Dec. 10 Trial Tr. at 151 (McLain testifying that he "assumed" Piper would get insurance for the taxpayers). Rather, the record reveals that the County did not ask anyone any questions about anything, and instead relied solely on Piper to "advise" it based merely on Piper's "I work for you" comment and on a letter that contained express language indicating that Piper's role would be limited.
The County cites case law supporting a proposition that "`ordinary business care and prudence' do not require a party relying on professional advice to second guess the advice given. This would `nullify the very purpose of seeking the advise of a presumed expert in the first place.'" Pl.'s Resistance Br. at 17 (quoting United States v. Boyle, 469 U.S. 241, 251, 105 S.Ct. 687, 83 L.Ed.2d 622 (1985)). The case law cited, however, arose in the context of professional rendering affirmative advice, such as when "an accountant or attorney advises a taxpayer on a matter of tax law, such as whether a liability exists." See Boyle, 469 U.S. at 251, 105 S.Ct. 687 (emphasis in original). No such affirmative advice was given in this case. Piper never told the County that investment in the project was a wise decision or that it would be fiscally prudent to proceed with committing funds to the project. Rather, Piper is accused of failing to disclose information that might have caused the County to refuse to participate. In this factual context, it would be improper to examine only what Piper allegedly failed to disclose. Indeed, to determine whether the County's reliance on Piper to disclose the allegedly nondisclosed information was justified, it is necessary to examine the entire context of the parties' relationship. Thus, it is highly significant and relevant to the justifiable reliance element that the County and Piper never met one-on-one, never contacted each other with questions or requests for information, never discussed *921 strategy or the propriety of the investment, and indeed, never really discussed anything at all except what items were legally and practically required to move the project forward.
Viewing the entire context of the parties' dealings, it is clear from the record that the County utterly failed to utilize its ability to observe the obvious, blindly expecting Piper to "throw up red flags," despite that fact that there is no evidence supporting a conclusion that the County ever communicated this expectation to Piper. The Court finds the evidence presented at trial insufficient as a matter of law to demonstrate by a preponderance of clear, convincing, and satisfactory evidence, that the County was justified in relying on Piper to advise it in connection with the Development Project.
3. Eighth element causation.
Under Iowa law, causation has two components: 1) "`the defendant's conduct must have in fact caused the plaintiffs damages (generally a factual inquiry)'" and 2) "`the policy of the law must require the defendant to be legally responsible for the injury (generally a legal question).'" Scoggins v. Wal-Mart Stores, Inc., 560 N.W.2d 564, 567 (Iowa 1997) (quoting Gerst v. Marshall, 549 N.W.2d 810, 815 (Iowa 1996)). In conducting the factual inquiry, a court must look to two components: 1) "whether the harm would not have occurred but for the negligence of the defendant, and 2) whether the negligence of the defendant was a substantial factor in bringing about the harm." Id. (citing Gerst, 549 N.W.2d at 817). In evaluating whether a defendant's conduct is a "substantial factor" in bringing about the harm sustained, courts must look to the "`proximity and foreseeability of the harm flowing from the actor's conduct, although it is not necessary that the actual consequences of a defendant's negligence should have been foreseen.'" Id. (quoting Kelly v. Sinclair Oil Corp., 476 N.W.2d 341, 349 (Iowa 1991)).
In conducting the legal inquiry, the court must determine if "`the policy of the law will extend responsibility to those consequences which have in fact been produced by an actor's conduct.'" Id. (quoting Kelly, 476 N.W.2d at 349). Ordinarily, this question can be answered affirmatively where it can be shown that there is "no other rule of law relieving the actor of liability because of the manner in which his negligence resulted in the harm," id. (quoting Kelly, 476 N.W.2d at 349), and where the resultant harm "result from the risks that made the actor's conduct tortious." Thompson v. Kaczinski, 774 N.W.2d 829, 837 (Iowa 2009).[11] The legal inquiry, also known as the "scope of liability" inquiry, is "fact-intensive as it requires consideration of the risks that made the actor's conduct tortious and a determination of whether the harm at issue is a result of any of those risks." Id.
Piper contends that the County failed to present clear, convincing, and satisfactory evidence of causation. Indeed, Piper asserts that the "County introduced no evidence indicating that it would have done anything differently had it been aware of any of Piper's alleged nondisclosures." *922 Def.'s Mot. Br. at 16. Moreover, Piper argues that the County additionally "failed to prove that alternative approaches that would have given the County greater protection, such as a Letter of Credit, were not disclosed, would have been pursued by the County if disclosed, or would have been available if pursued." Id.
The County argues in response that County officials "uniformly testified that they would have wanted to know [the allegedly nondisclosed information] in making the decision whether to participate in the CF project, and on what terms." Pl.'s Resistance Br. at 18. As examples, the County contends that Reasoner, King, and McLain each testified as to: 1) a willingness to proceed only if there was no risk to the County taxpayers; 2) a belief that after financing was paid off, the County would have a $19 million commercial venture on its tax rolls; and 3) a belief that Crestland's guarantee was solid.[12] According to the County, "Piper knew otherwise," failed to disclose its knowledge, and the County was harmed as a result.[13] The *923 County further argues that it was under no obligation to offer testimony explaining precisely how the nondisclosed information, if disclosed, would have altered its decision-making; rather, it was within the jury's province to determine whether to believe the supervisors' testimony that Piper deprived them of the opportunity to make a fully-informed decision on whether to proceed with financing. Id. at 18-19.
The Court does not agree that the County did not need to present any evidence that the County would have done something differently had it known of the "alleged nondisclosures." Under the County's causation formulation, Piper would be liable to pay for all damages incurred by the County even if County Board members had testified that they would have financed the Development Project regardless of whether they knew of the allegedly nondisclosed information. Such a novel concept is utterly unsupported by case law and would eviscerate the requirements of both factual and legal causation, effectively transforming a fraudulent nondisclosure claim into a strict liability tort.[14]See, e.g., Reynolds v. Solon State Bank, No. 07-0085, 2007 WL 4553648, at *5 (Iowa Ct.App. Dec. 28, 2007) (noting in fraudulent nondisclosure claim that plaintiffs had "stated that if they had known the true facts they would not have borrowed money in 1999 or 2002, and would not have purchased the building"); Determan v. Johnson, 1999 WL 1072728, at *2 (Iowa Ct.App. Nov. 23, 1999) (stating that the failure of a homeowner to reveal alleged defects to a buyer could constitute fraudulent nondisclosure if "the Defendants were aware of the defects and knew that the Plaintiff was unaware of the defects and could not discover them by ordinary inspection and would not make the purchase if she knew of the defects" (emphasis added)).
The Court agrees with Piper that the County has failed to establish that the alleged nondisclosures caused the County's claimed damages. At trial, the County alleged eleven types or categories of information that Piper failed to disclose. See Final Inst. No. 28. County Board members, to varying degrees, testified that Piper did not make them aware of the information in those "alleged nondisclosures." The Board members did not, however, testify that any of the alleged nondisclosures, if known, would have caused them to take different action, to seek out different security, or to decline participation in the Development Project. And, there is no evidence in the record that would support an inference that the County actually could have obtained any more security on the project that what it actually got.[15] Moreover, on eight categories, *924 of alleged nondisclosures (the first, second, and fourth through ninth), the County offered no testimony that the County Board members considered such information significant or material, let alone testimony that knowledge of the information would have impacted the County's decision-making process in any way. On those eight categories, evidence of both materiality and causation is entirely lacking.
The very little testimony Board members gave indicating that the "alleged nondisclosures" would have been relevant to their decision-making process pertained at best, to only the third, tenth and eleventh categories of alleged nondisclosures (the minimum assessment was "high," Crestland's financial losses, and the risks of the project). See Final Inst. No. 28. Even on these three categories, however, the testimony was far too speculative to support a finding that the County would not have incurred damage but for Piper's alleged nondisclosures or that Piper's failure to disclose information was a substantial factor in causing damage to the County.
For instance, Reasoner only testified that he would liked to have known about risk factors of the project and Crestland's financial condition, but did not state that the County's decision to participate would have changed in any way:
Q. I'm asking you if you know what are the risk factors, what are the things that you wish, as a county board official, you would have known that you didn't know when you voted to issue these bonds and borrow the money?
A: I wish that someone who had that information had made that aware-had made us aware of that information.
Q. What information?
A. Information as to the financial condition of the firm they're working with.
Q. Anything else?
A. I can't think so right now.
Dec. 7 Trial Tr. at 144.
Likewise, King testified only that: 1) if given figures about the valuation of the plant, he would have asked Oswald to provide further explanation, and 2) if he had known about Crestland's losses in prior years, he would have taken a closer look at whether the County should be involved in the project:
Q: Would the building and structures figures set forth here have been useful to you in deciding whether or not to enter into the Development Agreement, Mr. King?
A: Yes.
Q. And how so?
A. It would have helped me, if we would have been provided this information by Mr. Oswald, we would have been able to have a more-a view of the things that were going on with the actual setting of the contract and the agreement.
Q. Does seeing this today cause you concern?
A. Yes, it does. I felt that we should have seen this document.
Q. And what would you have done if you had seen this document, Mr. King?
A. Probably asked Mr. Oswald to come in, at that point, come in and go *925 over it with us and explain the details of it since he was our financial advisor.
. . .
Q. What would you have done with this information [regarding Crestland's financial statements] had Piper shared this with you, Mr. King?
A. Well, if you have a company that was having this kind of trouble, and Piper would have gave us those numbers, we would have had to take a very hard look if we wanted to be involved with this at all.
Dec. 8 a.m. Trial Tr. at 87-88.
Finally, McLain's only testimony on the subject was when he was asked what he would have done if he had been shown records about Crestland's financial losses. McLain stated, "Seeing this loss here on this, I would probably start questioning what was going on, why were we doing proceeding." Dec. 10 Trial Tr. at 150-51.
Absent any non-speculative evidence that the County could or would have done anything differently had it known the information that Piper allegedly failed to disclose, the Court finds that the evidence presented at trial was insufficient to support a conclusion that Piper's alleged actions caused the County's damages. See Clark v. Kansas City Missouri School Dist., 375 F.3d 698, 701 (8th Cir.2004) (finding that "judgment as a matter of law is proper when the record contains no proof beyond speculation to support the verdict" (citations omitted)).
4. Sixth element intent to deceive.
Piper argues that the county presented no actual evidence, let alone clear and convincing evidence, that Piper intended to deceive the County by purposefully concealing information. Def.'s Mot. Br. at 12. According to Piper, there is no evidence in the record that Piper ever knew the County lacked any information. Id. Indeed, Tim Oswald testified that, as to each allegedly undisclosed item, he either believed the County already had the information, believed it was not material to the transaction, or was never asked about it. Id. Moreover, Piper contends that it is "impossible to reasonably infer, as the County does, that Piper would even believe it possible to conceal such publicly available information, when the entire process was being conducted in a public fish-bowl and was the talk of the town." Id. at 13.
Plaintiff counters that the jury verdict is amply supported because the "County presented the jury with compelling evidence that Piper intentionally withheld vital information from the County evidence supporting an inference that these nondisclosures were intentional to secure the County's participation in the project." Pl.'s Resistance Br. at 13. According to Plaintiff, Piper's "omissions and misrepresentations, taken together, comprise a constellation of concealment from which the jury reasonably inferred a design to induce the County to unwittingly serve as the needed source of unsecured `equity' for the entire CF financing." Id. (citing Atlas Pile Driving Co. v. DiCon Financial Co., 886 F.2d 986 (8th Cir.1989)).
In 1975, the Iowa Supreme Court discussed the difference between non-actionable silence and a fraudulent failure to disclose:
"The law distinguishes between passive concealment and active concealment, or in other words, between mere silence and the suppression or concealment of a fact, the difference consisting in the fact that concealment implies a purpose or design, while the simple failure to disclose a fact does not. Mere silence is not representation, and a mere failure to volunteer information does not constitute *926 fraud. Thus, as a general rule, to constitute fraud by concealment or suppression of the truth there must be something more than mere silence or a mere failure to disclose known facts. Where there is no obligation to speak, silence cannot be termed `suppression,' and therefore is not a fraud. Either party may, therefore, be innocently silent as to matters upon which each may openly exercise his judgment.
"Silence, in order to be an actionable fraud, must relate to a material matter known to the party and which it is his legal duty to communicate to the other contracting party, whether the duty arises from a relation of trust, from confidence, from inequality of condition and knowledge, or other attendant circumstances. In other words, there must be a concealment that is, the party sought to be charged must have had knowledge of the facts which, it is asserted, he allowed to remain undisclosed and the silence must, under the conditions existing, amount to fraud, because it is an affirmation that a state of things exists which does not, and because the uninformed party is deprived to the same extent that he would have been by positive assertion. Concealment or nondisclosure becomes fraudulent only when there is an existing fact or condition, as distinguished from mere opinion, which the party charged is under a duty to disclose.
"Concealment in the sense opposed to mere nonactionable silence may consist of withholding information asked for, or of making use of some device to mislead, thus involving act and intention, or of concealing special knowledge where there is a duty to speak. The term generally implies that the person is in some way called upon to make a disclosure. It may be said, therefore, that in addition to a failure to disclose known facts, there must be some trick or contrivance intended to exclude suspicion and prevent inquiry, or else that there must be a legal or equitable duty resting on the party knowing such facts to disclose them."
Wilden, 229 N.W.2d at 292-93 (quoting 37 Am. Jur. 2d, Fraud & Deceit, § 145).
The Court agrees with Piper that the record does not contain a preponderance of clear, satisfactory, and convincing evidence that Piper intentionally withheld information from the County in order to deceive it into entering into the Development Agreement. While it is true that Wilden supports the proposition that intent may be inferred from an individual's failure to disclose material information when that individual is charged with a legal or equitable duty to disclose that information, Wilden also requires that the "silence must, under the conditions existing, amount to fraud." In this case, the record simply does not support a conclusion, by a preponderance of clear, satisfactory, and convincing evidence, that Oswald's silence on any of the alleged nondisclosures is sufficient to amount to fraud.
D. Conclusion
The Court does not set aside a jury verdict lightly. However, in this case, the Court is convinced that the evidence is not susceptible to reasonable inferences sustaining the County's position that Piper is liable for fraudulent nondisclosure. Indeed, the Court cannot find a single case, either under Iowa law or under the law of any other jurisdiction, that would support a conclusion that Piper committed the tort of fraudulent nondisclosure on the facts presented in this case. The County's main "evidence" is comprised of little more than the Board members' personal beliefs (unsupported by any real testimony about the *927 substance of the conversation in which they developed these beliefs) that they had hired a financial advisor, and unsupported speculation that the County might have done something differently if Piper had disclosed various items of information to it. When viewed in the context of everything that occurred both before and after Piper allegedly became the County's advisor, and considering the wealth of information demonstrating that the County essentially ignored everything going on around it in relation to the Development Project, the jury's verdict cannot be permitted to stand.[16]
II. UNION COUNTY'S MOTION FOR NEW TRIAL ON DAMAGES
The County's Motion asserts that a new trial on damages is proper because the Court improperly permitted or excluded various items of evidence, and because the Court improperly instructed the jury.[17] Given the Court's conclusion supra, however, that the jury verdict cannot be sustained on the County's fraudulent nondisclosure claim, the County's Motion for New Trial on Damages must be denied as moot.
Nonetheless, the Court notes that it has carefully reviewed the arguments by both parties on the issue and would deny the motion even if it had not granted Piper's request for judgment as a matter of law. The Court does not agree with Plaintiff that either its evidentiary rulings on expert testimony or its jury instructions were erroneous or unfairly prejudicial, for reasons stated both in the Court's pretrial orders and in its trial rulings on the parties' evidentiary objections and proposed jury instructions.
III. CONCLUSION
For the reasons stated herein, Defendant's Renewed Motion for Judgment as a *928 Matter of Law (Clerk's No. 335) is GRANTED. The jury verdict in favor of Union County on its claim of fraudulent nondisclosure is hereby vacated and the Clerk of Court is directed to enter judgment in favor of Piper Jaffray & Co., Inc. on the claim. Union County's Motion for New Trial on Damages (Clerk's No. 334) is DENIED.
IT IS SO ORDERED.
NOTES
[1] Though Piper proffered several affirmative defenses at trial, the jury found Piper had failed to prove the defenses by a preponderance of the evidence. See Clerk's No. 318.
[2] Though Piper has requested that the Court schedule oral argument on its Motion, the Court does not believe oral argument will substantially aid it in resolving the matter. Accordingly, Piper's request for oral argument is denied.
[3] In ruling on Piper's Motion for Summary Judgment at an earlier stage in the litigation, the Court dealt with elements of the claim directly pled in Plaintiff's Complaint, which was for fraud. Though Plaintiff claimed that Defendant was liable for fraud based both on misrepresentations and based on nondisclosures, the Court did not delve into the distinctions between the elements of the two types of fraud claims. At this stage of the proceedings, however, the distinction is significant. That is, fraudulent nondisclosure, unlike fraudulent misrepresentation, requires that the defendant owe a duty to the plaintiff to disclose the information at issue. Compare Final Inst. Nos, 39 and 40. At all times during this litigation, Plaintiff has maintained that the "duty" Piper owed was either a fiduciary duty or some similar duty arising out of Piper's alleged status as the County's "financial advisor." The jury, however, rejected the County's claims that Piper undertook to act as either a fiduciary or as a financial advisor when it found in Piper's favor on Plaintiff's breach of fiduciary duty and negligence claims. Indeed, all of the essential elements of both breach of fiduciary duty and negligence are essential elements for a claim of fraudulent nondisclosure, with the only real distinction being the duty component and the higher standard of proof applicable to a fraud claim. Compare Final Inst. No. 24 (stating elements for claim of breach of fiduciary duty are: 1) existence of fiduciary relationship; 2) breach of duty; 3) causation; 4) damage) and Final Inst. No. 30 (stating elements for claim of negligence are: 1) Piper owed a duty to act as a financial advisor; 2) breach of duty; 3) causation; 4) damages) with Final Inst. No. 40 (stating elements of fraudulent nondisclosure as including, among others: 1) special circumstances giving rise to a duty to disclose; 2) breach of duty; 3) causation; 4) damage).
Despite the Court's concern as to how the jury reached a conclusion that Piper owed a duty of disclosure based on "special circumstances," when it rejected the notion that Piper had a duty as a financial advisor or as a fiduciary, the Court is nonetheless mindful that Rule 50(b) requires it to consider the evidence in the light most favorable to the jury's verdict. Accordingly, the Court will examine whether the verdict should be allowed to stand without regard to the jury's verdicts on other counts. In considering whether Piper owed a duty arising out of "special circumstances," however, the Court will interchangeably refer to this alleged duty as either a financial advisory duty or as a duty arising out of special circumstances.
[4] The parties provided the Court with only small portions of the trial transcript. Accordingly, the Court's citations to the trial transcript are to the unedited Real Time version provided to the Court by the reporter.
[5] The December 8 trial transcript is divided into two portions, one for the morning session (the "a.m." portion), and one for the afternoon session (the "p.m." portion).
[6] On cross examination, King admitted that Oswald told the County in a December 12, 1996 letter that "Piper Jaffray had been retained by the developer, which was Crestland Co-op, also in this project." Dec. 8 p.m. Trial Tr. at 27.
[7] The Court's concerns about the ambiguity of the December 12, 1996 letter in its Order on Defendant's Motion for Summary Judgment were made in the context of the ordinary preponderance of the evidence standard applicable to Plaintiff's negligence and breach of fiduciary duty claims. Under the higher level of proof applicable to a fraud claim, and given that the Court now has the benefit of having heard all the evidence over the course of a two-week trial, the Court does not maintain concern in this regard.
[8] The Court finds two other factors particularly worthy of note as further undermining the County's claim of duty in this case. First, by the time the County Board even met Oswald, it was unquestionably aware that Oswald was already in a role that was potentially adverse to the County's interests, i.e., that Piper was playing a significant role in orchestrating and planning the Development Project. See Dec. 7 Trial Tr. at 101 (Q: "Now, by the time Mr. Oswald comes in [to the December 9, 1996 meeting], the county supervisors know that he's been working with the City of Creston and the co-op on the financing package that they have, the developer for some time; isn't that right?" Reasoner: "Yes."). However, even if the County was not aware of this fact on December 9, 1996, it certainly must have been aware of some potential conflict of interest when Oswald wrote in the December 12, 1996 letter: "As you are aware, we have been retained by the Developer to provide financing of the proposed project." Trial Ex. 1.
Second, County officials uniformly testified that their constituents wanted this project and that everyone agreed it would be a great opportunity for Union County. See Dec. 7 Trial Tr. at 8 (Reasoner testifying: "That's why we got involved because it would help create good jobs in the area, it would also enhance the average price per bushel that the farmer would get for his grain which would be taken to the bean crush plant."); Dec. 8 p.m. Trial Tr. at 16 (Q: "Did any of your constituents come up to you and say, "we don't want you to do that"? King: "Not that I remember." Q: "In fact, they were all in favor of it, and you were under the impression at that time that you were doing something to further something that your constituents wanted to see happen, weren't you"? King: "In a guarded position, yes."). Indeed, Reasoner testified that the purpose of the December 9, 1996 meeting was to engage in "discussion to decide should we do this, should we not do this as a board." Dec. 7 Trial Tr. at 5. The Court is perplexed as to why Piper should have been aware that the County was seeking a "financial advisor" when it appears, by all accounts, to have already been planning to proceed with participation in the Development Project.
[9] At summary judgment, the Court noted with respect to Plaintiff's breach of fiduciary duty claim that "[C]ourts have repeatedly cautioned... that `the plaintiff alone, by reposing trust and confidence in the defendant, cannot thereby transform a business relationship into one which is fiduciary in nature.'" Clerk's No. 240, 741 F.Supp.2d at 1104 (quoting Gemini Investors, Inc. v. Ches-Mont Disposal, LLC, 629 F.Supp.2d 163, 168 (D.Mass. 2009)). "Though Iowa courts have not directly stated that there must be "acceptance" of the confidence reposed, they have clearly indicated that the party alleged to owe fiduciary duties must have some awareness or knowledge of the existence of a fiduciary relationship, or otherwise do something to demonstrate assent thereto." Id. at 1105 (citing Kurth v. Van Horn, 380 N.W.2d 693, 698 (Iowa 1986) ("We believe in this case that the record fails to show substantial evidence that the customer relied upon the bank for advice in connection with this transaction or that, even if such reliance was placed in the bank, the bank was aware of it.")).
Though the duty at issue in this fraudulent nondisclosure claim is not necessarily a fiduciary one, the Court nonetheless believes that a person charged with a duty to disclose information must have some basis to believe that such a duty is owed. In this case, the record is devoid of any evidence whatsoever that Piper knew that the County was looking to it for financial advice or that the County expected Piper to "raise red flags." Indeed, the record supports a conclusion that the County's expectations of Piper were unilaterally imposed and that the County never gave Piper any particular reason to believe that the County was looking for advice about the propriety of the transaction. As noted, not one member of the County Board ever asked Piper a question about whether the Development Project was a good idea for the County, whether there was anything to be concerned about in proceeding with the project, whether the County could take additional steps to protect itself or the County taxpayers, or about anything at all.
[10] Piper's brief recites several pieces of evidence that bolster a conclusion that the County's reliance on Piper was not justified. See Def.'s Mot. Br. at 14-16.
[11] Iowa courts historically considered whether a defendant's conduct was a "substantial factor" in bringing about a plaintiff's harm under both the factual and legal inquiries of the proximate cause analysis. See, e.g., Gerst, 549 N.W.2d at 815-16. In 2009, however, the Iowa Supreme Court adopted the modified proximate cause analysis advocated by the Restatement (Third) of Torts, which clearly places the "substantial factor" element in the factual inquiry, and which recharacterizes the legal inquiry as an "assessment of scope of liability." See Thompson, 774 N.W.2d at 837.
[12] The County does not offer citations to the trial record in support of its assertions that the Board members so testified. Although the Court is not required to scour the record to find support for parties' claims, even a cursory review of the trial transcript reveals that the County vastly overstates the testimony given by the Reasoner, King and McLain. None of the three ever testified that they would be willing to proceed only if there was no risk to the taxpayers. Rather, Reasoner testified simply that "we wanted to create this project but in the back of our mind we were saying we want to make sure the taxpayer is not left holding the bag on this." Dec. 7 Trial Tr. at 12; see also id. at 31 ("We wanted to make sure that the taxpayer did not get left holding the bag for a project that others who came before us said was a great project, that you should get involved, it will help the area overall. But we wanted to make sure that those folks who were wanting to bring the project would be the ones who would pay for the project."). King testified that he "would feel more comfortable with insurance to protect the taxpayer.... I did not want the county taxpayers to be on the hook for this." Dec. 8 a.m. Trial Tr. at 54. McLain simply testified that King had explained that "we should have insurance on these bonds to protect the taxpayers of Union County." Dec. 10 Trial Tr. at 151.
Regarding the County's claim that all of the Board members testified that they thought they would have a $19 million commercial venture on the tax rolls after the financing was paid off, Reasoner did testify that he believed that after the termination of the minimum assessment agreement, the property would be "valued at 19 million dollars, that's what the assessor had determined." Dec. 7 Trial Tr. at 30. The Court can find no similar testimony by either King or McLain. Contrary to Reasoner's cited testimony, however, substantial testimony at trial, including testimony by Reasoner, revealed that everyone involved in the project knew that the $19 million minimum assessment was not reflective of the actual value of the assessed property; rather it was simply the amount that needed to be assessed to ensure tax payments would cover the note issuances. See, e.g., Dec. 7 Trial Tr. at 19 (Reasoner testifying that "we were originally at a lower level as to the amount of value of the plant that would be necessary to make this work. I think it was initially around 10, 12 million dollars, and there's a discussion now that it would be necessary to increase that for this to be viable"); Dec. 10 Trial Tr. at 153-54 (McLain testifying that "It was going to take a $19 million assessment to make the payment of the bonds viable, and if that's what it took, then the minimum assessment would have to be 19 million dollars.");
Finally, regarding Crestland's stability, Reasoner simply testified that "[t]heir reputation in the community was great." Dec. 7 Trial Tr. at 12. King testified that Crestland was perceived at the time as "a pretty viable business" that was "flourishing, that was doing better every day." Dec. 8 a.m. Trial Tr. at 40-41. McLain testified only that he was surprised when Crestland went bankrupt because "I just didn't think that that company was in that kind of shape." Dec. 10 Trial Tr. at 144.
[13] The mere fact that Crestland had losses in prior years does not, as the County asserted at trial, translate into an automatic conclusion, or even give rise to an inference, that Oswald must have known from this fact that Crestland was likely to go bankrupt. In fact, the County never presented any evidence that these losses by Crestland, as opposed to other factors, tipped the balance or even made a substantial impact on Crestland's ultimate bankruptcy filing.
[14] The causation element is substantially intertwined with the materiality element of a fraudulent nondisclosure claim. Indeed, the County's lack of testimony indicating that it would have done anything differently in regard to the Development Project also undermines its assertions that the undisclosed information was material.
[15] The County contends that Piper deprived it of the opportunity to structure the transaction in a different way, or to get different security, such as a mortgage or a Letter of Credit. The County did not, however, present evidence at trial sufficient to demonstrate that any other structure would have been possible or that any other form of security would have been available. In fact, the evidence at trial does not come close to supporting a conclusion that the financing structure for the project could have been arranged in any other way, that the County could have obtained a Letter of Credit, that Crestland had any property that could have been mortgaged, or that Crestland would have granted a mortgage to the County in any event.
[16] There was a plethora of other information at trial that further undermines any possible validity of the jury's verdict in favor of the County on its claim of fraudulent nondisclosure. Rather than discuss it extensively here, the Court references arguments repeatedly asserted by Piper regarding: 1) the County's disclaimer of a financial advisory relationship in the Loan Agreement it signed authorizing Piper to underwrite the bond sale; 2) the fact that the Development Agreement did not discuss insurance, but did contain a merger clause providing that the agreement was the complete agreement between the parties; 3) the fact that agents of the County were aware of and had in their possession numerous allegedly nondisclosed items; 4) the fact that CF Processing operated and paid its taxes pursuant to the Development Agreement for several years before eventually going bankrupt; and 5) the fact that there is no evidence that Piper knew or even had reason to know that the County was not aware of information the County claims Piper failed to disclose.
[17] Federal Rule of Civil Procedure 59(a)(1) provides: "The court may, on motion, grant a new trial on all or some of the issues and to any party ... (A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court." The power to grant a new trial "is confided almost entirely to the exercise of discretion on the part of the trial court." Allied Chem. Corp. v. Daiflon, 449 U.S. 33, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980). While a trial court unquestionably has the discretionary power to grant a new trial, the role and function of the jury is not to be trivialized. "The district court can only disturb a jury verdict to prevent a miscarriage of justice." Beckman v. Mayo Found., 804 F.2d 435, 439 (8th Cir.1986) (citing McGee v. S. Pemiscot Sch. Dist. R-V, 712 F.2d 339, 344 (8th Cir.1983)).
Erroneous evidentiary rulings warrant a new trial only where they affect "the substantial rights of the parties." Fed.R.Civ.P. 61; Anderson v. Genuine Parts Co., 128 F.3d 1267, 1270 (8th Cir.1997). Erroneous jury instructions warrant a new trial only where the objecting party can show that it was materially prejudiced by the erroneous instruction. See Fink v. Foley-Belsaw Co., 983 F.2d 111, 114 (8th Cir.1993).
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463 F.3d 1338
Gayle J. SNYDER, Petitioner,v.OFFICE OF PERSONNEL MANAGEMENT, Respondent.
No. 05-3347.
United States Court of Appeals, Federal Circuit.
September 13, 2006.
Randall J. Andersen, Kay & Andersen, S.C., of Madison, Wisconsin, argued for petitioner.
Thomas D. Dinackus, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With him on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Bryant G. Snee, Assistant Director. Of counsel on the brief was Wade Plunkett, Attorney, Office of Personnel Management, of Washington, DC.
Before RADER, Circuit Judge, PLAGER, Senior Circuit Judge, and PROST, Circuit Judge.
Opinion for the court filed by Circuit Judge PROST.
Concurring opinion filed by Senior Circuit Judge PLAGER.
PROST, Circuit Judge.
1
Gayle J. Snyder petitions for review of the final order of the Merit Systems Protection Board ("Board"). The Board affirmed the decision of the Office of Personnel Management ("OPM") denying the petitioner's claim for survivor annuity benefits under the Civil Service Retirement System ("CSRS") as the former spouse of Robert L. Ruff. Snyder v. Office of Pers. Mgmt., No. CH0842040399-I-1, 99 M.S.P.R. 215 (M.S.P.B. July 27, 2005). We vacate and remand.
BACKGROUND
2
Gayle Snyder and Robert Ruff divorced in 1993 after over thirty years of marriage. The Wisconsin divorce court entered an order entitled "Addendum to Marital Settlement Agreement for Qualified Domestic Relations Order-Federal (CSRS) Plan" ("Court Order"). The Court Order was submitted to OPM which notified Snyder that the order was suitable for processing and would provide her with (1) an apportionment benefit payable on Ruff's retirement, and (2) a survivor annuity payable upon his death.
3
Ruff was an employee of both federal and state governments during the entire marriage. Several years after the divorce, in July 2001, he retired from federal government service. Although OPM had previously notified Snyder that the Court Order was sufficient to provide her with a survivor annuity, it changed its determination. Between 2001 and 2004, Snyder and OPM exchanged several letters in which OPM made various determinations about the order's suitability. Finally, in a letter she received March 15, 2004, OPM stated that the order did not comply with OPM's regulations for the awarding of a former spouse survivor annuity. Snyder appealed OPM's finding to the Board.
4
While Ruff lives, the Court Order provides no payments to Snyder prior to Ruff's retirement. After his retirement, the Court Order provides Snyder with 43.11% of the actuarial equivalent value of Ruff's pension benefit which accrued during the period of their marriage.
5
In providing for Snyder after Ruff's death, the Court Order contains the following provision:
6
VI. DEATH OF PARTICIPANT AND SURVIVOR BENEFITS — PROVISIONS FOR TREATMENT OF FORMER SPOUSE OF PARTICIPANT AS SURVIVING SPOUSE OF PARTICIPANT FOR PURPOSES OF PRE-RETIREMENT SURVIVING SPOUSE PENSION BENEFIT, (AND/OR) OTHER SURVIVOR BENEFITS.
7
The assignment of benefits to the Alternate Payee shall not be reduced, abated or terminated as a result of the death of the participant. Pursuant to Section 414(p)(5) of the Code, the former spouse of the Participant, namely Gayle S. Ruff, shall be treated as the surviving spouse of the Participant for purposes of Pre-retirement Survivor benefits accrued during the period described in Section II C about [sic] 4 in accordance with Sections 401(a) (ii) and 417 of the Code.
8
Snyder argued to the Board that this provision provides her with a post-retirement survivor annuity.
9
The Board's administrative judge found that "[t]he only permissible interpretation of the agreement is . . . that Appellant is to be treated as surviving spouse only for Pre-retirement survivor benefits." Snyder v. Office of Pers. Mgmt., No. CH0842040399-I-1, slip op. at 4 (M.S.P.B. Sept.7, 2004). The administrative judge rejected Snyder's argument that the first sentence of Section VI must provide for post-retirement survivor benefits. Rather, he found that it meant that "any Pre-retirement lump sum payment shall not be reduced, abated or terminated as a result of the death of the Participant." Id., slip op. at 5.
10
The administrative judge also noted that Snyder argued that it was the parties' intent to provide her with a lifetime benefit, but held that because the Court Order is clear and unambiguous on its face, the use of parol evidence would be inappropriate. Id. Nevertheless, the administrative judge noted that Ruff's testimony was credible and consistent with his interpretation of the order. Id.
11
The administrative judge's initial decision became the final decision of the Board after the Board denied the petition for review. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
12
Board decisions may be set of aside if they are "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence . . . ." 5 U.S.C. § 7703(c) (2000).
13
Within the CSRS, a post-retirement survivor annuity provides the survivors of an employee with recurring payments. A former spouse may participate as a survivor to an employee's survivor annuity pursuant to statute:
14
a former spouse of a deceased employee. . . is entitled to a survivor annuity . . . if and to the extent expressly provided for . . . in terms of any decree of divorce or annulment or any court order or court-approved property settlement agreement incident to such decree.
15
5 U.S.C. § 8341(h)(1) (2000) (emphasis added). OPM's regulations provide further guidance regarding how a survivor annuity must be described in a court order in order to properly provide the former spouse with a survivor annuity. 5 C.F.R. §§ 838.801-807.
16
On appeal, Snyder argues, as she did to the Board, that Section VI of the Court Order entered at her divorce provides her with a post-retirement survivor annuity. She asserts that the Board erred in its determination that the first sentence of the section provided only a pre-retirement benefit. Rather, she argues that the intent of the parties and the clear language of the agreement evince the meaning of the order — to provide her with a lifetime benefit. She argues that the administrative judge erred in permitting Ruff's testimony regarding the intent of the agreement while excluding hers. She also argues that because OPM waited until after her former spouse's retirement to rescind its initial decision, it should be estopped from doing so.
A.
17
First, we address the administrative judge's finding regarding the meaning of Section VI of the Court Order. Snyder concedes that the second sentence of Section VI means only that she will be treated as the survivor for purposes of a pre-retirement survivor benefit. However, she disagrees with the administrative judge's finding that the first sentence of the section also refers to a pre-retirement survivor benefit. The first sentence states, "The assignment of benefits to the Alternate Payee shall not be reduced, abated or terminated as a result of the death of the participant." Since the only benefits to which she was entitled under the agreement were a portion of Ruff's pension, Snyder argues that this was the benefit that should not be reduced as a result of his death. Snyder also states that the administrative judge may have reached an erroneous conclusion based on a finding that Snyder's benefits would necessarily decrease if they were converted from being a portion of Ruff's pension to a post-retirement survivor annuity. She states that this was erroneous because a post-retirement survivor annuity is not necessarily less than her apportionment of Ruff's pension.
18
OPM agrees with Snyder that the administrative judge erred in finding that the first sentence of Section VI refers to a pre-retirement survivor benefit. Agreeing with Snyder's contentions, OPM states, "[i]t would make no sense to state that survivor benefits cannot be reduced or terminated by the very event that would trigger entitlement to those benefits." Therefore, OPM agrees with Snyder that "the first sentence of Section VI must address benefits that Snyder was already receiving at the time of Mr. Ruff's death." That is, the first sentence must be referring to the "portion of Mr. Ruff's retirement benefits [Snyder would be receiving post-retirement] pursuant to Section II.C . . . ."
19
OPM therefore repudiates the administrative judge's analysis and both parties agree that the administrative judge erred in his rationale for finding that the first sentence of Section VI did not provide for a post-retirement survivor annuity. We therefore proceed to the alternative basis that OPM presents on appeal as to why the first sentence of Section VI is deficient to provide the benefit.
B.
20
OPM argues that Section VI of the Court Order is deficient for purposes of providing Snyder with a post-retirement survivor annuity because it does not satisfy 5 C.F.R. § 838.803(b). The regulation cited by OPM contains two requirements:
21
Any court order that provides [1] that the former spouse's portion of the employee annuity shall continue after the death of the employee or retiree, by using language such as "will continue to receive benefits after the death of" the employee, that the former spouse "will continue to receive benefits for his (or her) lifetime," or "that benefits will continue after the death of" the employee, but does not [2] use terms such as "survivor annuity," "death benefits," "former spouse annuity," or similar terms is not a court order acceptable for processing.
22
5 C.F.R. § 838.803(b) (2006).
23
Here, Section VI of the Court Order includes the sentence, "The assignment of benefits to the Alternate Payee shall not be reduced, abated or terminated as a result of the death of the participant." OPM states that this language is "equivalent to the insufficient language described in the first part of [the OPM regulation]," so that the second condition must be met in order for the clause to be sufficient under the regulation. But, OPM argues, the second condition of its regulation is not met—that is, the court order does not "use terms such as `survivor annuity,' `death benefits,' `former spouse annuity,' or similar terms." 5 C.F.R. § 838.803(b) (2006).
24
Snyder responds that several sections of the Court Order refer to a survivor annuity. First, the title of Section VI states that the section covers "PRE-RETIREMENT SURVIVING SPOUSE PENSION BENEFIT, (AND/OR) OTHER SURVIVOR BENEFITS." The regulation permits use of the term "death benefits" to satisfy its second requirement and the court order uses the term "survivor benefits" in the title to the very section which meets the first prong of the regulation's test. The government does not argue that the language "other survivor benefits" is not sufficient to satisfy the regulation's second condition. Rather, during oral argument, OPM argued solely that this section's reference to "OTHER SURVIVOR BENEFITS" did not meet the requirements of the regulation because it is preceded by the conjunctive term "and/or." It argued that if benefits other than pre-retirement benefits were expressly intended in the title, the title would not have used the term "and/or." This court cannot agree that a reference to "survivor benefits" that would otherwise satisfy the OPM regulation becomes insufficient because it is preceded by the term "and/or."1 We therefore turn to this court's precedent as to the requirements for "expressly providing" for a survivor annuity.
C.
25
This court has previously discussed the requirements of how a court order must expressly provide for the award of a survivor annuity as required by 5 U.S.C. § 8341(h)(1). When words such as "CSRS survivor annuity" are used, obviously, a court order will provide for the benefit. However, such "`magic words' are not required to assign a CSRS survivor annuity in favor of a former spouse." Fox v. Office of Pers. Mgmt., 100 F.3d 141, 146 (Fed.Cir. 1996). When the magic words are not used, Fox provides the analysis a tribunal must undertake to determine whether a court order provides for the survivor benefit. Id.
26
Specifically, to determine that a court order without any magic words does provide the survivor annuity benefit, the tribunal must first determine whether the order contains a pertinent clause regarding a survivor annuity. Id. If so, then it must inquire whether the operative terms in that clause can "fairly be read as awarding" the annuity. Id. If so, then it must "examine any evidence introduced concerning the marriage parties' intent and the circumstances surrounding the execution of the document" to interpret the clause. Id. If the evidence only dictates that the "clause refers to a CSRS survivor annuity—then it is legal error to conclude that the document has not `expressly provided for' the award of a survivor annuity" as required by 5 U.S.C. § 8341(h)(1). Id.
27
Here, there is no dispute that Section VI of the Court Order is a pertinent clause which can fairly be read as providing for a post-retirement survivor annuity. Indeed, the government concedes that the first sentence can only be read to mean that Snyder's post-retirement benefits would not be reduced due to Ruff's death. This is clearly contemplated by resort to a post-retirement survivor annuity. Under Fox, the Board is thus required to examine evidence, to the extent such evidence exists, to determine whether it dictates another possible meaning for the clause.
CONCLUSION
28
Because the first sentence of Section VI of the Court Order can fairly be read to refer to a post-retirement survivor annuity, we vacate the Board's decision and remand for a determination of the meaning of the clause.
VACATE AND REMAND.
Notes:
1
Furthermore, we see no problem with the "and/or" language. The title may provide for pre-retirement "and" post-retirement benefits. However, obviously, Snyder would only actually receive pre-retirement "or" post-retirement survivor benefits
29
PLAGER, Senior Circuit Judge, concurring.
30
I concur in the decision to remand this case to the Board for further consideration, as that at least is a first step to correcting what I perceive to be an egregious error by the Government. I would have gone further and decided the case in Ms. Snyder's favor without a remand.
31
In the first place, I think the Wisconsin court order, filed with OPM in 1993, can be read as it obviously was intended—to grant Ms. Snyder, in addition to a percentage of her ex-husband's retirement allocation, two types of death benefits: a relatively insignificant benefit (the lump sum) should her ex-spouse predecease her before he retires, and a lifetime benefit should her ex-spouse predecease her after he retires (when her share of his retirement allocation would terminate as a result of his death). The two-part heading and the two distinctive sentences contained in paragraph VI of the court order can readily be understood to so provide. And indeed that is the way the Government expressly read the order for the eight years between its filing with OPM and the ex-husband's retirement from federal service in 2001. The Government's argument in this court, that the only death benefit the Wisconsin court order was intended to grant her was the de minimis lump sum benefit if he died between the divorce and retirement, is wholly unpersuasive and indeed, in light of the record before us, borders on the frivolous.
32
That record shows that OPM advised Ms. Snyder in writing in 1994 that the court order was acceptable under its regulations for former spouse benefits, and that "[b]enefits are not payable until the employee separates from the Federal service and applies for benefits." Though this letter did not specifically address the lifetime benefit following the employee's death, it clearly did not consider a pre-retirement death benefit to be the only survivor benefit available. Furthermore, in a subsequent letter that same year, intended to be a "clarification of the benefits awarded to you by the court," Ms. Snyder was advised that "the court awarded you two types of benefits—apportionment and survivor annuity.. . . In survivor annuity, the benefit become [sic] payable after day after [sic] Mr. Ruff's death." This letter left little doubt about OPM's understanding that the court order included a survivor benefit applicable after the ex-husband's death.
33
That understanding was confirmed in August 2001, now seven years after the earlier letters, and following the ex-husband's (Mr. Ruff's) retirement from federal service that July. At that time OPM wrote a letter to Ms. Snyder stating that OPM "will honor a court order we have received awarding you a survivor annuity as the former spouse of Robert L. Ruff." Since her ex-husband was now retired, that letter could only refer to the post-retirement lifetime survivor annuity and not the pre-retirement lump-sum benefit. This letter was followed a week later with another letter. This second letter acknowledged Ms. Ruff's application for her apportioned share of Mr. Ruff's current retirement allocation, and specifically reconfirmed her entitlement to the survivor annuity as well.
34
Suddenly, within weeks of these two letters, OPM advised Ms. Snyder that, based on a new reading of the language of the court order, "we have determined that your [sic] are not entitled to a former spouse survivor annuity." Adding insult to injury, because Mr. Ruff had now retired it was the case that, pursuant to OPM regulations, Ms. Snyder was barred from obtaining any correction to or amendment of the original Wisconsin court order.
35
For policy reasons, estoppel against the United States Government generally requires something more than the circumstances which would support estoppel against a private party. See Heckler v. Cmty. Health Servs., 467 U.S. 51, 60, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984). Although the Supreme Court has not been precise as to what it is, `something more' has been described by this court as "some form of affirmative misconduct." Zacharin v. United States, 213 F.3d 1366, 1371 (Fed.Cir.2000); see also United Pac. Ins. Co. v. Roche, 401 F.3d 1362, 1366 (Fed.Cir. 2005).1 In Zacharin, finding no affirmative misconduct by the Government, we noted that "[t]here is no evidence that any representative of the government gave Mr. Zacharin incorrect legal advice . . ., [and] there is no evidence that [government representatives] made any misrepresentations to Mr. Zacharin with regard to [the contract in dispute]." 213 F.3d at 1371.
36
In the case before us, the record is replete with legal representations by government representatives with regard to the scope and meaning of the Wisconsin court order. For more than seven years, until after no correction was possible, OPM represented that Ms. Snyder was entitled to a post-retirement survivor benefit; only then did OPM without warning rescind its previous assurances that the Wisconsin court order was in full compliance. These representations when first issued and later confirmed were either correct, and their subsequent rescission was in error, or they were clear misrepresentations on their face.
37
The statute of limitations for many civil wrongs is three years, and even civil actions involving the Government itself are barred after six years. Basic fairness dictates that the Government, after giving repeated assurances that all is well, cannot wait years, until after no remedy is possible, before suddenly perceiving a documentary glitch that could have been seen, and corrected, anytime during those years.
38
At a minimum the Government owes Ms. Snyder the value of the opportunity costs foregone during those eight years when she could have been making other arrangements for her well-being should Mr. Ruff predecease her. The simplest measure of those opportunity costs is the survivor annuity the Government had already promised. On the egregious facts of this case, I would estop OPM from decreeing that the court order is somehow deficient, and I would mandate that Ms. Snyder is entitled to the survivor benefit ordered by the Wisconsin court and originally promised by OPM.
Notes:
1
Further, an estoppel against the Government cannot result in the payment of money not otherwise provided for by law, an issue not relevant here since survivor annuities are specifically authorizedSee Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 423-24, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990).
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105 U.S. 408 (____)
HANNIBAL
v.
FAUNTLEROY.
Supreme Court of United States.
Mr. Chester H. Krum, with whom was Mr. J.M. Krum, for the plaintiff in error.
Mr. James Grant for the defendant in error.
MR. JUSTICE MATTHEWS delivered the opinion of the court.
This was an action brought by Fauntleroy, the defendant in error, a citizen of Virginia, against the city of Hannibal, a *409 municipal corporation of Missouri, to recover the amount of principal and interest alleged to be due on certain bonds and coupons. The bonds are dated April 1, 1858, for $1,000 each, and are payable twenty years after date to A.O. Nash, auditor of said city, or bearer, at the American Exchange Bank, New York, for value received, without defalcation, with interest at the rate of ten per cent per annum, payable semi-annually, on the first day of October and April in each year, upon presentation of the annexed coupons severally, until the payment of the principal sum. They purport on their face to have been issued by the city to pay calls on subscription for stock in the Pike County Railroad, Illinois. They contain no other recitals. They were issued, it is claimed, under the authority of an act of the legislature of Missouri, passed Feb. 27, 1857, to amend the charter of the city, the third section of which reads as follows:
"SECT. 3. Said city council shall have power to subscribe for and take stock in any railroad terminating at the city of Hannibal or upon the bank of the Mississippi River opposite to said city in the State of Illinois. But before such subscription shall be valid, it shall be ratified by a majority of the taxpayers, at a poll to be opened for that purpose."
The second section of the same act provides that "said council shall also have power to borrow on the credit of the city and to pledge the revenues and public property for the payment thereof; but a greater rate of interest than ten per cent shall not be paid on any sum borrowed, unless two-thirds of the qualified voters of said city, at polls to be opened for that purpose, shall instruct the payment of a greater rate."
It is, therefore, not denied that the bonds are binding obligations upon the municipal corporation, provided the subscription to the stock of the Pike County Railroad, in payment of which they were issued, was lawfully made; and no question is made as to the validity of this subscription, except that it was not ratified, as is claimed, by a majority of the taxpayers, in accordance with the provisions of the third section of the amended charter.
It appears that, at a called meeting of the city council *410 of the city of Hannibal, held on Oct. 22, 1857, an ordinance was duly passed authorizing and directing the subscription of $100,000 stock in the Pike County Railroad, as follows:
"Be it ordained by the city council of the city of Hannibal, as follows:
"SECT. 1. That the mayor of the city of Hannibal be, and is hereby, authorized and directed to subscribe for and take for the city of Hannibal, one hundred thousand dollars stock in the Pike County Railroad, having its western terminus on the bank of the Mississippi River, at a point in the State of Illinois opposite the city of Hannibal, within a one-half mile of the western terminus of Suy Carty Plank Road; said stock to be paid for in the bonds of the city of Hannibal at their par value, which bonds are to be made payable not exceeding twenty years from the date of their issue, and are to bear ten per cent interest per annum, payable semi-annually.
"SECT. 2. That the mayor be, and is hereby, directed to cause a poll to be opened in said city of Hannibal for the purpose of obtaining the ratification of the foregoing said subscription of one hundred thousand dollars stock in said Pike County Railroad by the taxpayers of said city of Hannibal, in accordance with the provisions contained in the third section of an act passed by the General Assembly of the State of Missouri, entitled `An Act to amend the charter of the city of Hannibal,' approved February 27th, 1857.
"SECT. 3. This ordinance to take effect from and after its passage."
On the trial of the cause in the Circuit Court, the plaintiff, recognizing his obligation to prove affirmatively that the bonds in question had been issued under the authority of the law, introduced in evidence the poll-books of an election held at voting places in the three wards of the city, on the first Monday (the second day) of November, 1857, for the purpose of electing a mayor, marshal, recorder, and attorney for said city, three councilmen for each ward, and for the ratification of the subscription of $100,000 of stock in the Pike County Railroad. These poll-books contain the name of every voter, with a record of his vote, whether for or against ratification, and are authenticated by the certificate of the *411 judges and clerks of the election, stating the result, and specifying in their return, under the head "for ratifying the subscription of $100,000 stock in Pike Co. Railroad," the number of votes cast in favor of and against the ratification. The result as shown by these poll-books, in the aggregate, was that three hundred and sixteen votes were cast in favor of, and thirty-two against, the ratification. At a called meeting of the city council of the city, on Nov. 4, 1857, it is recorded, that the clerk read to the city council the certificate of the mayor and one judge of the election from each ward in the city, whereby it was shown to the satisfaction of the council that at the municipal election held in the several wards on Monday, Nov. 2, 1857, certain persons named therein had been duly elected to the several offices therein specified, and thereupon it was resolved that certificates be made out and delivered to the officers elect, and at the conclusion of the entry upon the record there is the statement, "for ratification, three hundred and sixteen votes; against, thirty-two votes."
At a regular meeting of the city council on Dec. 7, 1857, it is recorded, that, "on motion of Mr. Dowling, resolved, that the mayor be, and he is hereby, authorized and instructed to issue the bonds of the city to the Pike County Railroad, in accordance with calls on the capital stock made by order of the board of directors, and in pursuance of an ordinance approved October 22d, 1857."
The stock subscribed for was duly issued to the city, and is still held by it; and the corporation has continuously exercised the privileges of a stockholder, though it is admitted that the stock has no pecuniary value.
It was also proven that, in various ways, prior to the institution of this suit, the city had admitted her liability upon these bonds by making arrangements for the payment of coupons as they fell due, receiving them in payment of taxes, permitting judgment to be rendered on account of unpaid coupons, once by consent and once by default; but the city objected to the whole evidence on the ground that it was insufficient to establish such liability, because it failed to show a ratification of the subscription by a vote of a majority of taxpayers at an election called and held for that purpose.
*412 The answer to this objection, however, is found in the provisions of art. 1, sect. 10, of the charter of 1851, of the city (Laws of Missouri, 1851, p. 327), admitted to have been in force at the time, which defined the qualification of voters as follows:
"SECT. 10. All free white male citizens, who have arrived at the full age of twenty-one years, and who shall be entitled to vote for State officers, and who shall have resided within the city limits at least six months next preceding any election, and, moreover, who shall have paid a city tax or any city license according to ordinance, shall be eligible, and entitled to vote at any ward or city election for officers of the city."
It thus appears that no person could lawfully vote at the election held Nov. 2, 1857, for city officers, except taxpayers; and assuming that the list of names contained in the poll-books as having voted for or against the ratification of the subscription to the stock in the Pike County Railroad are those of the same persons who voted for city officers, it follows that they must all have been taxpayers, on the presumption, which certainly must be applied, that they were all legally entitled to vote.
It is argued that the legislature used the word "taxpayers," in the third section of the act of 1857, in a sense designedly differing from that of "qualified voters," in the second section, who are to decide upon the question of the rate of interest on money borrowed in excess of the ten per cent per annum. We see no evidence, however, of such an intention. On the contrary, that supposition would necessitate the conclusion that by the word "taxpayers" the legislature meant to include persons not otherwise qualified to vote; for example, not free white male citizens, minors, women, married and unmarried, and non-residents. The reasonable interpretation is, that the question of ratifying the subscription should be submitted to the vote of the taxpayers of the city, having the qualification otherwise of lawful voters; and this included, as we have seen, all the qualified voters of the city.
To allow the present objection to prevail would require the plaintiff, not only to show that the persons voting to ratify the *413 stock subscription were all taxpayers, but also that they had all the other requisite qualifications of persons entitled by law to vote. In our opinion, the law imposes no such unreasonable burden upon the owner of such bonds. He is bound to show, in the absence of recitals that prevent its denial, that the corporation issued them, in the exercise of a power conferred by law; and where that can arise only in consequence of the performance of a condition precedent, such as the result of an election by a public vote, he has the burden of proof to show the fact. That fact, as in the present case, is fully proven by an exhibition of the record, which shows on its face the result claimed. He is not bound to sustain the truth of the record, as if it were the case of a contested election, and prove that the majority, on the existence of which his rights rest, consisted of persons, all of whom possessed the qualification of voters. Whether each voter was lawfully such, was a question in the first place, in the present case, for the judges of the election, who were appointed under the law, for the express purpose of receiving and deciding upon their votes; and, in the second place, for the city council, to whom the official return of the election and of its result was made, as required, and who were authorized to act upon that result as certified to and verified by themselves, in the very matter of consummating the subscription, which was the subject of the vote. It would be impracticable for any purchaser of the bond, put on inquiry, as to the authority of the city council to make the issue of the bonds in question, to make inquisition into the facts of the election, beyond these returns and records; and it is but reasonable to permit him safely to rest his rights upon them, as they appear. They show the fact, that the subscription to the railroad stock was ratified by a majority of the voters, presumed to be qualified to vote, because permitted by the authorities controlling the election to do so, at an election held for the purpose, among other things, of deciding that question; and that fact constitutes the condition on which the authority to issue the bonds, by law, depends, and is the guarantee of their validity.
Judgment affirmed.
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October 7, 2014
JUDGMENT
The Fourteenth Court of Appeals
ASHLEY NICOLE RICHARDS, Appellant
NO. 14-14-00742-CR V.
THE STATE OF TEXAS, Appellee
________________________________
This cause was heard on the transcript of the record of the court below. The
record indicates that the appeal should be DISMISSED. The Court orders the
appeal DISMISSED in accordance with its opinion, appellant pay all costs
incurred by this appeal, and this decision be certified below for observance.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60045
DAVID BALDERRAMA-GUERRERO,
Petitioner,
versus
JOHN ASHCROFT,
ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A10-546-135
--------------------
March 6, 2002
Before REAVLEY, WIENER, and PARKER, Circuit Judges.
PER CURIAM:*
David Balderrama-Guerrero petitions for review of an order
of the Board of Immigration Appeals (BIA) holding that
Balderrama-Guerrero’s state conviction for felony driving while
intoxicated was an aggravated felony warranting his removal from
this country. The respondent has moved to dismiss the petition
for review and to remand the case to the BIA for reconsideration
in light of United States v. Chapa-Garza, 243 F.3d 921, 927 (5th
Cir. 2001). Balderrama-Guerrero has not replied to the
respondent’s motion to remand.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-60045
-2-
Balderrama-Guerrero’s petition for review is GRANTED. The
order of the BIA is VACATED, and this case is REMANDED to the BIA
for disposition consistent with Chapa-Garza, 243 F.3d at 927.
All other outstanding motions are DENIED.
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Case: 13-30527 Document: 00512708415 Page: 1 Date Filed: 07/23/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-30527 July 23, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA Clerk
Plaintiff - Appellee
v.
KAVIS J. OCTAVE, also known as, Kavis Octave; TONTA J. OCTAVE, also
known as, Tonte Octave,
Defendants - Appellants
Appeals from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:12-CR-205-2
Before JOLLY, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
After a jury trial, Kavis Octave was convicted on one count of conspiracy
to distribute cocaine base and on three counts of distribution of cocaine base.
Tonta Octave, Kavis’s brother, was also convicted of conspiracy to distribute
and on one count of distribution of cocaine base. On appeal, the Octaves
contend that their Sixth Amendment right to confront witnesses against them
was violated by the admission of statements of the Government’s then-
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 13-30527 Document: 00512708415 Page: 2 Date Filed: 07/23/2014
No. 13-30527
deceased confidential informant. Tonta alleges error in the admission at trial
of his prior conviction under Federal Rule of Evidence 404(b). Both Tonta and
Kavis appeal the denial of their motions for acquittal, arguing the evidence
was insufficient to establish they conspired to distribute cocaine base. Tonta
also challenges the sufficiency of the evidence for his conviction on the single
count of distribution. We AFFIRM the convictions.
FACTUAL & PROCEDURAL BACKGROUND
In early 2012, the Drug Enforcement Agency (“DEA”) began the use of a
confidential informant, Aaron Jones, to conduct controlled purchases of
narcotics from suspected drug dealers in the St. James Parish, Louisiana area.
Relevant here, Jones was used in a series of controlled purchases of cocaine
base, or crack, from Kavis Octave. Immediately before every controlled
purchase, DEA Special Agent Johnson searched Jones and his vehicle for
contraband. Johnson then secured on Jones a hidden audio-video recording
device and provided him with government money to make the purchase.
Johnson and a team of local officers conducted surveillance of the controlled
purchases. Johnson met with Jones immediately after each purchase to
receive the contraband and recording device.
The first transaction occurred on March 9, 2012. Jones had been
instructed to coordinate with Kavis Octave for a time and place to purchase
one ounce of crack. The video recording from the March 9 transaction does not
show Kavis’s face, but the voice from the audio recording was identified at trial
as being Kavis’s. The second controlled purchase took place on March 21;
Jones was again instructed to purchase one ounce of crack from Kavis. The
video recording taken from this controlled purchase does show Kavis’s face.
The third controlled purchase took place on March 29. This time Jones was
instructed to purchase two ounces of crack from Kavis. When Jones drove to
the appointed place to purchase the crack from Kavis, however, Tonta arrived
2
Case: 13-30527 Document: 00512708415 Page: 3 Date Filed: 07/23/2014
No. 13-30527
and directed Jones to follow him to a nearby bar. Jones followed Tonta to the
bar. The video recording shows Jones following Tonta into the bathroom of the
bar. From the audio-video recording footage the jury could see Tonta’s face and
hear Tonta stating, “that’s the two.” No actual exchange of drugs can be seen
on the video, but the DEA retrieved two ounces of crack from Jones
immediately following the interaction at the bar.
Shortly after the third purchase, the DEA became concerned that its
investigation may have been compromised. The DEA suspended the
investigation and used Jones for controlled purchases from another individual,
Quinton Dumas. The DEA’s investigation of Dumas later led to Dumas’s guilty
plea in United States District Court. Dumas then testified at the trial of Tonta
and Kavis. Jones was instructed to purchase crack from Dumas on two
separate occasions. Dumas testified at the Octaves’ trial that for his second
sale of crack to Jones, he had first purchased the drugs from Tonta.
At some point, the DEA resumed its investigation of the Octaves. Jones
made a fourth controlled purchase. Jones arranged with Kavis to buy two
ounces of crack. As Jones drove to meet Kavis at the arranged location, local
law enforcement spotted Tonta driving a black BMW in the area, conducting
what appeared to be counter-surveillance maneuvers. During this purchase,
the audio-video surveillance device Jones wore malfunctioned, leaving no audio
or video of the transaction. Jones returned to DEA Agent Johnson after the
transaction with two ounces of crack. The DEA had instructed Jones to set up
another purchase from Kavis approximately a week later. The transaction was
to take place on May 11, but early that morning, Jones died.
As a result of Jones’ death, the DEA ended its investigation and obtained
a series of search and arrest warrants, including arrest warrants for Dumas,
Kavis, and Tonta Octave. Tonta Octave’s arrest took place when the DEA
executed a search warrant at his residence. When they arrived, Tonta was
3
Case: 13-30527 Document: 00512708415 Page: 4 Date Filed: 07/23/2014
No. 13-30527
attempting to leave in his black BMW with a bag of cash covered in ice from
having been in his freezer. He was arrested in his driveway. Kavis and Dumas
were also arrested within two days of Jones’ death.
A grand jury returned a final, third superseding indictment against
Kavis and Tonta on September 28, 2012. Count 1 charged both Kavis and
Tonta with conspiracy to distribute and to possess with the intent to distribute
28 grams or more of crack in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(B)(iii)
and 21 U.S.C. § 846. Counts 2 and 3 charged Kavis only with distribution of a
quantity of crack in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(C) for the first
and second controlled purchases occurring on March 9 and March 21, 2012.
Counts 4 and 5 charged both Kavis and Tonta with distributing 28 or more
grams of crack in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(B)(iii) and 18
U.S.C. § 2 for the third and fourth controlled purchases occurring on March 29,
2012 and May 3, 2012, respectively.
Prior to trial, Kavis filed a motion in limine seeking to prevent the
Government from introducing at trial any statements of the then-deceased
Jones. Kavis asserted that admitting the statements would violate his Sixth
Amendment right to confront the witnesses against him. The district court
denied the motion, holding that the admissibility of any statement made by
Jones would be determined at trial. Also prior to trial, the Government filed a
notice of intent to use evidence, pursuant to Federal Rule of Evidence 404(b),
of Tonta Octave’s conviction in 2002 in St. James Parish for distribution of
crack. Tonta filed a motion to exclude the prior conviction; the district court
held that the evidence would be admissible.
At trial, DEA Special Agent Johnson testified about the investigation of
the Octaves and the use of Jones for the controlled purchases. He described
exactly how the controlled transactions transpired and his role in supervising
Jones. During Johnson’s testimony, the Government entered into evidence
4
Case: 13-30527 Document: 00512708415 Page: 5 Date Filed: 07/23/2014
No. 13-30527
CDs and transcripts of the audio-video surveillance of the controlled
purchases. Quinton Dumas testified about his interactions with the Octaves.
In particular, Dumas testified that while incarcerated in the same jail with
Kavis and Tonta, Dumas asked Kavis if he had sold crack to Jones. Kavis
answered “no.” Dumas later asked Tonta the same question, but before Tonta
answered, Kavis shook his head back and forth as a sign for Tonta to say “no.”
Tonta ignored the signal and answered “yeah” to Dumas’s question. Several
days later, all three individuals were transferred to another facility. While
there, Dumas was on the phone and started crying. Tonta saw this and said,
“Man up . . . be quiet and we’ll walk. A dead man can’t talk.”
At the close of the Government’s case, the defense moved for acquittal.
The district court reserved decision. Neither defendant testified nor offered
any evidence. The jury convicted Kavis and Tonta of the conspiracy charge in
Count 1. Kavis Octave was convicted on Counts 2-4 for distribution of crack.
Tonta was convicted on a single distribution charge, Count 4, for the
transaction taking place at the bar. The jury found both Kavis and Tonta not
guilty of the final distribution charge in Count 5 for the controlled purchase in
which the audio-video surveillance device malfunctioned.
Kavis and Tonta filed timely notices of appeal, challenging the denial of
their motions for acquittal and alleging violations of the Confrontation Clause.
Tonta also alleges error in the admission under Federal Rule of Evidence
404(b) of his prior conviction for distribution of crack.
DISCUSSION
I. Confrontation Clause
“We review, for plain error only, any Confrontation Clause issues that
were not contemporaneously raised at trial.” United States v. Acosta, 475 F.3d
677, 680 (5th Cir. 2007). “Confrontation Clause objections that were properly
raised at trial are reviewed de novo, subject to harmless error analysis.” Id.
5
Case: 13-30527 Document: 00512708415 Page: 6 Date Filed: 07/23/2014
No. 13-30527
The Confrontation Clause of the Sixth Amendment provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” U.S. CONST. amend. VI. The Supreme Court
has explained that the clause bars the admission of “testimonial statements of
a witness who did not appear at trial unless he was unavailable to testify, and
the defendant had [] a prior opportunity for cross-examination.” Crawford v.
Washington, 541 U.S. 36, 53-54 (2004). The court defined “testimony” as “[a]
solemn declaration or affirmation made for the purpose of establishing or
proving some fact.” Id. at 51 (alteration in original). If a statement’s “primary
purpose . . . is to establish or prove past events potentially relevant to later
criminal prosecution,” the statement is testimonial. United States v. Duron-
Caldera, 737 F.3d 988, 992-93 (5th Cir. 2013). The Government bears the
burden of defeating a Confrontation Clause objection by establishing the
evidence is non-testimonial. Id. at 993.
We consider two different alleged violations of the Confrontation Clause.
Both dealt with the admission of certain statements made by Jones. The first
is the admission of Jones’ statements on the audio recording device which
Jones wore during the controlled purchases. The defendants’ side of the
recorded conversations with Jones were admitted as an admission by party
opponent under Federal Rule of Evidence 801(d)(2)(A). The statements of
Jones were admitted, allegedly not for their truth but for the limited purpose
of providing context for the defendants’ statements. The judge provided a
limiting instruction to the jury. Counsel for the Octaves did not object at trial
to the admission of the recorded conversations between the defendants and
Jones. That makes our review only for plain error. See Acosta, 475 F.3d at
680-81.
We have previously held that the admission of an unavailable
informant’s recorded conversations with defendants did not offend the Sixth
6
Case: 13-30527 Document: 00512708415 Page: 7 Date Filed: 07/23/2014
No. 13-30527
Amendment if the informant’s “statements were part of a reciprocal and
integrated conversation the agent had with the defendant” and the jury was
instructed “to consider the statements of [the informant] only to provide a
context for the statements of the defendant and not for the truth of the matters
[he] asserted.” United States v. Cheramie, 51 F.3d 538, 541 (5th Cir. 1995).
We have since relied on Cheramie to reaffirm the proposition that statements
of an informant in a recorded conversation with the defendants may be
admitted for the limited purpose of providing context. See United States v.
Rios, 298 F. App’x 312, 313-14 (5th Cir. 2008). Here, the Government redacted
the recordings at issue to admit only the statements by Jones necessary for
providing context to the defendants’ own statements in the recorded
conversations. Moreover, the court provided the jury with a limiting
instruction that Jones’ statements were not being offered for their truth. The
defendants point to no particular statements that Jones made that may have
been unduly prejudicial and not simply providing context. We find no plain
error as to the introduction of Jones’ recorded comments.
The second basis for the defendants’ Confrontation Clause arguments is
the testimony of DEA Agent Johnson and his reference to statements Jones
made to him in the course of this investigation. In its response to the motion
in limine to exclude the use of any statements of Jones, the Government
conceded that admission of Jones’ statements to law enforcement, if
incriminating, would violate the defendants’ right to confront Jones.
Nevertheless, during the cross-examination of Agent Johnson, Johnson was
asked why he did not conduct fingerprint and DNA analysis on the drugs he
received from Jones after the controlled purchases to establish they came from
the defendants. Johnson responded that he did not think it was necessary
because he knew where the drugs came from. On redirect examination, the
Government asked Agent Johnson to clarify why he believed it was not
7
Case: 13-30527 Document: 00512708415 Page: 8 Date Filed: 07/23/2014
No. 13-30527
necessary to conduct the DNA testing on the drugs. Agent Johnson responded,
“I was sure of where the drugs came from based in part on my conversations I
had with” Jones. The Octaves did not object to this testimony at trial, and thus
we review for plain error. Acosta, 475 F.3d at 681.
The Government contends that the testimony was elicited for the non-
hearsay purpose of explaining why Johnson did not order DNA testing on the
drugs, and that defense counsel opened the door for the testimony by cross-
examining Johnson on the matter and attacking Johnson’s investigation. We
conclude that this testimony did not violate the defendants’ Sixth Amendment
right to confront. The Confrontation Clause “has no application to out-of-court
statements that are not offered to prove the truth of the matter asserted.”
Williams v. Illinois, 132 S. Ct. 2221, 2228 (2012). The testimony here was only
elicited on redirect examination after Johnson’s investigation had been
attacked and for the limited purpose of showing why Johnson conducted his
investigation in a certain manner. No more information was given than was
necessary for the purpose of showing why Johnson took the actions he did in
the course of his investigation. See Gochicoa v. Johnson, 118 F.3d 440, 445-46
(5th Cir. 1997). Evidence is only testimonial in nature if it is a declaration
made for the purpose of establishing a fact. Crawford, 541 U.S. at 51. Contrary
to the defendants’ assertions, the statement that Johnson did not conduct DNA
testing based on conversations with Jones was not being offered for the purpose
of establishing the fact that the drugs came from the defendants. No violation
of the Confrontation Clause occurred.
II. Tonta Octave’s prior conviction
“This court reviews the admission of evidence under Rule 404(b) for
abuse of discretion.” United States v. Cockrell, 587 F.3d 674, 678 (5th Cir.
2009). Our review is heightened in criminal cases, but abuse of discretion is
only reversible if a defendant can demonstrate prejudice. Id.
8
Case: 13-30527 Document: 00512708415 Page: 9 Date Filed: 07/23/2014
No. 13-30527
Rule 404(b) provides in relevant part:
Evidence of a crime, wrong, or other act is not admissible to prove
a person’s character in order to show that on a particular occasion
the person acted in accordance with the character. . . . This
evidence may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.
FED. R. EVID. 404(b)(1), (2). This circuit applies a two-step analysis for the
admissibility of evidence under Rule 404(b). See United States v. Beechum, 582
F.2d 898, 911 (5th Cir. 1978). “First, it must be determined that the extrinsic
offense evidence is relevant to an issue other than the defendant’s character.”
Id. “Second, the evidence must possess probative value that is not
substantially outweighed by its undue prejudice and must meet the other
requirements of [R]ule 403.” Id.
The Government introduced in evidence of Tonta’s conviction in 2002 on
four counts of distribution of crack. The district court allowed the evidence,
concluding that because the prior conviction involved the same drug Tonta was
now charged with conspiracy to distribute, the prior conviction was relevant
for the purpose of proving knowledge, state of mind, and intent. The court then
determined the probative value of the evidence outweighed the danger of
unfair prejudice. The jury was given a limiting instruction that the evidence
was not to be considered in deciding whether Tonta committed the acts charged
in the current matter, but only for the limited purpose of determining whether
Tonta had the state of mind or intent necessary to commit the crime charged.
Tonta challenges the court’s admission of the evidence, arguing the prior
conviction served as the only substantive evidence supporting his convictions
for both conspiracy and distribution of crack.
Tonta pled not guilty to the conspiracy charge. His defense was
primarily that the Government lacked any evidence of his involvement beyond
9
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No. 13-30527
his mere presence at the bar and driving around the location where Kavis met
Jones for the controlled purchases. Tonta’s plea and defense placed in issue
his knowledge and intent to conspire to distribute crack. See United States v.
Gadison, 8 F.3d 186, 192 (5th Cir. 1993). “The mere entry of a not guilty plea
in a conspiracy case raises the issue of intent sufficiently to justify the
admissibility of extrinsic offense evidence.” Cockrell, 587 F.3d at 679. The first
Beechum factor is thus satisfied because the evidence is relevant for the non-
character purpose of proving Tonta’s knowledge and intent to conspire to
distribute crack.
In consideration of the second Beechum factor, Rule 403 requires
exclusion only if the trial judge “believes that there is a genuine risk that the
emotions of the jury will be excited to irrational behavior, and that this risk is
disproportionate to the probative value of the offered evidence.” Beechum, 582
F.2d at 915 n.20. This court has repeatedly concluded that the probative value
of prior drug convictions is not substantially outweighed by unfair prejudice.
Cockrell, 587 F.3d at 680 (collecting cases). The district court did not abuse its
discretion in admitting the evidence of Tonta’s prior conviction for the limited,
non-character purpose of demonstrating Tonta’s knowledge or intent to
conspire to distribute crack. Id.
III. Sufficiency of the evidence
“We review a district court’s denial of a motion for judgment of acquittal
de novo.” United States v. Girod, 646 F.3d 304, 313 (5th Cir. 2011); FED. R.
CRIM. P. 29(a). “The jury’s verdict will be affirmed if a reasonable trier of fact
could conclude from the evidence that the elements of the offense were
established beyond a reasonable doubt.” Girod, 646 F.3d at 313 (quotation
marks omitted). “In assessing the sufficiency of the evidence, we do not
evaluate the weight of the evidence or the credibility of the witnesses, but view
10
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No. 13-30527
the evidence in the light most favorable to the verdict, drawing all reasonable
inferences to support the verdict.” Id.
A. Conspiracy to distribute crack — Tonta & Kavis, Count 1
“To establish a conspiracy, the government must prove that: (1) an
agreement existed between two or more persons to violate federal narcotics
law, (2) the defendant knew of the existence of the agreement, and (3) the
defendant voluntarily participated in the conspiracy.” United States v. Ochoa,
667 F.3d 643, 648 (5th Cir. 2012). “The jury may infer any element of this
offense from circumstantial evidence.” United States v. Lechuga, 888 F.2d
1472, 1476 (5th Cir. 1989). “For example, an agreement may be inferred from
concert of action, voluntary participation may be inferred from a collocation of
circumstances, and knowledge may be inferred from surrounding
circumstances.” Id. at 1476-77 (quotation marks omitted).
Tonta urges that mere presence is not enough to convict him of
conspiracy and that the Government proved, at most, that he sold crack to
Jones on one occasion and that he knew Kavis — not that they participated in
any conspiracy. Kavis likewise argues that presence is not enough to show an
agreement and that the Government’s only evidence was several interactions
between the brothers that do not demonstrate any conspiracy to distribute
narcotics.
The totality of the evidence at trial was sufficient for a reasonable trier
of fact to conclude Tonta and Kavis conspired to distribute crack. This evidence
included the following: (1) Tonta arrived at the time and place of the third
scheduled purchase when Jones had arranged to buy crack from Kavis, not
Tonta; (2) audio of the third transaction revealed Jones telling Tonta that he
thought “V” — Kavis’s nickname — was supposed to be meeting him; (3) Jones
followed Tonta to a bar where he purchased two ounces of crack, the amount
Jones had pre-arranged with Kavis to purchase; (4) officers testified Tonta was
11
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No. 13-30527
seen driving around conducting counter-surveillance maneuvers at the scene
of the fourth scheduled purchase between Jones and Kavis; and (5) Dumas’s
testimony of the jailhouse conversation where Kavis signaled Tonta to deny
having sold crack to Jones. Taken together and viewed in the light most
favorable to the verdict, the totality of the evidence was sufficient for a rational
juror to conclude Tonta and Kavis conspired to distribute crack. See id.
B. Distribution of crack — Tonta, Count 4
In order to prove the distribution charge, there must be evidence Tonta
“(1) knowingly (2) distributed (3) the controlled substance.” United States v.
Sotelo, 97 F.3d 782, 789 (5th Cir. 1996). Tonta was convicted of distribution of
crack based on the third controlled purchase where Tonta, instead of Kavis,
met Jones at the arranged location for the transaction and directed Jones to
follow him to a bar and into the bathroom. Tonta argues the Government
presented no evidence he was in possession of narcotics or that an exchange of
narcotics occurred between Tonta and Jones. Because the audio-video
recording did not show the actual exchange of drugs, Tonta argues Jones could
have procured the drugs from anyone at the bar and that the Government did
not put on any evidence the drugs in fact were transferred to Jones from Tonta.
At trial, the Government played the audio-video recording made during
the third controlled purchase. The jury saw Tonta direct Jones to a bar after
meeting Jones at the location where Kavis was to have sold two ounces of crack
to Jones. The video shows Jones and Kavis entering the bathroom of the bar
and Tonta is heard saying, “that’s the two.” Special Agent Johnson
immediately recovered two ounces of crack from Jones’ vehicle after Jones left
the bar. The jury heard extensive testimony detailing the care the DEA took
in monitoring Jones and searching his person and vehicle for any contraband
prior to the controlled purchases. While it may be conceivable that Jones could
have gotten the crack from another individual in the bar, “the jury is free to
12
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No. 13-30527
choose among reasonable constructions of the evidence.” United States v.
Mudekunye, 646 F.3d 281, 285 (5th Cir. 2011) (quotation marks omitted). The
evidence was sufficient for a rational juror to infer that Tonta distributed crack
to Jones at the bar during the third controlled purchase.
The convictions are AFFIRMED.
13
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634 F.2d 627
U. S.v.Pope
79-6732
UNITED STATES COURT OF APPEALS Fourth Circuit
9/17/80
1
E.D.Va.
AFFIRMED
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 15, 2008
No. 07-51027
Summary Calendar Charles R. Fulbruge III
Clerk
ROBERT ESCALANTE
Plaintiff-Appellant
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:06-CV-244
Before JONES, Chief Judge, and CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Appellant Robert Escalante challenges the decision of the district court,
which adopted the magistrate judge’s report and recommendation and affirmed
the denial of disability benefits for Escalante’s back problems and non-exertional
impairments. We affirm for essentially the reasons stated in the magistrate
judge’s report and add the following observations.
1. Although the ALJ did not specifically analyze the impact of
appellant’s “severe depression” and academic limitations, it is clear from the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-51027
hearing record and the ALJ decision that these conditions factored in the overall
RFC determination. The magistrate judge’s report explains how this occurred
at page 12 of his decision. R.O.A. 57. It is also noteworthy that the depression
was listed by the ALJ as one among all of the appellant’s health problems; the
Appellant acknowledged in the hearing that he is taking no medication other
than to help him sleep; and Dr. Benbow, who evaluated him in January 2004,
found no clinically depressive symptomatology. We conclude from the record
that substantial evidence supports the ALJ’s evaluation of the work-related
consequences of appellant’s depressed mood.
2. The ALJ properly explained his weighing of the opinions of the
examining orthopedist Dr. Beal and the treating physician Dr. Vo. He was not
required to attribute greater credibility to Dr. Vo. Griego v. Sullivan, 940 F.2d
942,945 (5th Cir. 1991) (recent medical evidence more probative); Moore v.
Sullivan, 919 F.2d 901, 905 (5th Cir. 1990) (ALJ must decide between conflicting
medical reports).
3. The ALJ’s determination of residual functional capacity is
adequately supported in law and fact because it specifically takes into account
appellant’s mental inability to perform more than “simple unskilled work” and
uses a physical subset of light duty work based on his back problems and mental
condition. Appellant has waived the arguments he now makes, but failed to
raise in the district court, to challenge the jobs that the vocational expert found
he could perform. Chaparro v. Bowen, 815 F.2d 1008, 1011 (5th Cir. 1987).
4. Appellant’s assertions of illiteracy considerably exaggerate the
evidence in the record. Further, the ALJ found appellant’s subjective complaints
“not totally credible.” These circumstances additionally support our determina-
tion to AFFIRM the judgment of the district court.
AFFIRMED.
2
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578 F.2d 1386
Thomasv.Raines
No. 75-2333
United States Court of Appeals, Ninth Circuit
7/21/78
1
W.D.Wash.
HABEAS CORPUS DENIED
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311 F.Supp.2d 1147 (2004)
DIRECTV, INC., Plaintiff,
v.
Perry LOCKWOOD, et al., Defendants.
No. 03-2279-GTV.
United States District Court, D. Kansas.
March 18, 2004.
*1148 Robert P. Numrich, Todd M. Johnson, Baty, John J. Gates, Baty, Holm & Numrich, PC, Kansas City, MO, for Plaintiff.
Kurt S. Brack, Holbrook & Osborn, PA, Merriam, KS, for Defendant.
MEMORANDUM AND ORDER
VanBEBBER, Senior District Judge.
Plaintiff DIRECTV alleges that Defendants surreptitiously intercepted and decrypted DIRECTV's satellite signals using devices intended for that purpose, ultimately to gain free viewing of satellite television programming. The case arises out of Plaintiff's acquisition of shipping records of distributors of devices intended for satellite television signal interception and decryption. Plaintiff brings five Counts against each Defendant in its Complaint. Counts One and Four of Plaintiff's Complaint concern violations of the Cable Communications Policy Act. Count Two alleges interception and disclosure of DIRECTV's electronic communications in violation of 18 U.S.C. § 2511. Count Three alleges possession, manufacture, and/or assembly of devices used for surreptitious interception of electronic communications in violation of 18 U.S.C. § 2512, and Count Five alleges civil conversion.
The case is before the court on Defendants Michael Mielke's and Richard Prentiss's motions to dismiss (Docs. 27 and 29). Both Defendants ask the court to dismiss Counts Three and Five of Plaintiff's Complaint. For the following reasons, the court grants Defendants' motions.
I. Standard of Review
Defendants move to dismiss certain Counts of Plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted.
A Rule 12(b)(6) motion to dismiss will be granted only if it appears beyond a doubt that the plaintiff is unable to prove any set of facts entitling him to relief under his theory of recovery. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). "All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true." Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984). The court must view all reasonable inferences in favor of the plaintiff, and the pleadings must be liberally construed. Id.; Fed.R.Civ.P. 8(f). The issue in reviewing the sufficiency of a complaint is not whether the plaintiff will prevail, but whether the plaintiff is *1149 entitled to offer evidence to support his claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
II. Factual Background
Plaintiff has filed numerous cases in this court and around the nation, alleging similar facts against each defendant in each case. The specific facts of this case are not important to the resolution of the motions before the court, but the court will recount the general background of Plaintiff's claims against the defendants in this case and in other cases. The facts as relayed here should not be relied upon for any particular case; they are only intended as general background information.
Plaintiff is in the business of distributing satellite television broadcasts to customers throughout the United States who have paid a subscription fee. Subscribers use a satellite dish to receive Plaintiff's satellite signals and an access card to unscramble the signals. The access cards are electronically programmed by Plaintiff to block or unblock television channels and specific programs depending on the customers' subscription level and individual pay-per-view programming choices. While Plaintiff's scrambled satellite signals can be received by any satellite dish, Plaintiff controls the use of these signals through the access cards.
On various dates, Plaintiff obtained the shipping records, email communications, credit card receipts, and other records of several distributors of devices used to receive and decode satellite signals. Plaintiff then filed suit against the persons identified by the distributors' records, alleging that the only use of the devices is to illicitly decrypt satellite programming, and that the defendants used these devices to display Plaintiff's programming without authorization from Plaintiff.
III. Discussion
A. Count Three 18 U.S.C. § 2512
Defendants first argue that, as a matter of law, no civil cause of action exists for violations of 18 U.S.C. § 2512. This court has already addressed the issue in DIRECTV, Inc. v. Hosey, 289 F.Supp.2d 1259 (D.Kan.2003). For the reasons fully discussed in Hosey, the court grants Defendants' motions with respect to Count Three.
B. Count Five Conversion
Defendants next request that the court dismiss Count Five against them because Plaintiff has not alleged that Defendants used the property at issue to the exclusion of Plaintiff's rights, as required by Kansas law. The court will dismiss Count Five on such basis.
Under Kansas law, conversion is the "unauthorized assumption or exercise of the right of ownership over goods or personal chattels belonging to another to the exclusion of the other's rights." Gillespie v. Seymour, 14 Kan.App.2d 563, 796 P.2d 1060, 1066 (1990) (citing Moore v. State Bank of Burden, 240 Kan. 382, 729 P.2d 1205, 1210 (1986)). To state a claim for conversion under Kansas law, a plaintiff must allege that he has been deprived of the use of his property. See United Phosphorus Ltd. v. Midland Fumigant, Inc., No. 91-2133-EEO, 1995 WL 646818, at *2 (D.Kan. Oct.13, 1995); Indep. Drug Wholesalers Group, Inc. v. Denton, 833 F.Supp. 1507, 1522 (D.Kan.1993).
The key issue before the court is whether Plaintiff's satellite signals can be converted when any unauthorized use is not to the exclusion of Plaintiff. Judge Vratil of this District recently discussed a parallel *1150 issue whether a patent could be converted under Kansas law. She distinguished an intangible patent from a security interest, which may be converted under Kansas law, and stated:
Defendant next argues that plaintiff's patent is distinguishable from a security interest and that [Kansas law] does not dictate that a patent is property which can be converted. Kansas law requires that for a conversion claim, defendant must use the property to the exclusion of plaintiff's rights. A patent, on the other hand, is not subject to the same risk of loss. As shown by this case, even if defendant infringes upon plaintiff's patent, plaintiff's patent is still valid plaintiff retains the right to rely on the patent and seek enforcement of it and plaintiff also retains the right to make his patented product. Because plaintiff's design idea is intangible, it is possible for both plaintiff and defendant to use it. While defendant's use might be improper, defendant has not taken plaintiff's property to the exclusion of plaintiff. Plaintiff has a right to his intangible property, but it is not a right that allows him to bring a conversion claim in Kansas under the present facts. As another court has noted, "it is not uncommon for a person to have an intangible property right without a cause of action in conversion to protect that right." Miles, Inc. v. Scripps Clinic & Research Found., 810 F.Supp. 1091, 1096 (S.D.Cal.1993). Plaintiff's present conversion claim presents just such a right and must be dismissed.
Malik v. Lynk, Inc., No. 99-2015-KHV, 1999 WL 760217, at *2 (D.Kan. Aug.18, 1999) (citations omitted). Judge Vratil also noted that she was not "suggest[ing] that a patent right could never be a proper basis for a conversion claim." Id. at *2 n. 1. She stated that she could "envision scenarios where defendant uses plaintiff's patent and also prevents plaintiff from using the patent." Id.
The court finds Judge Vratil's reasoning persuasive. Plaintiff does not allege that Defendants used its property to Plaintiff's exclusion. Plaintiff fails to allege, and rationally is incapable of alleging in good faith, that Plaintiff is deprived of its signal any time there is unauthorized use of its signal. Because Plaintiff's signal is intangible, it is possible for Plaintiff, its customers, and unauthorized users to use the signal simultaneously. Because Plaintiff is unable to allege that Defendants used its intangible property to Plaintiff's exclusion, Plaintiff alleges in a conclusory manner that Defendants unlawfully converted its property for their own commercial use and benefit. Such an allegation is insufficient to survive a motion to dismiss.
The court recognizes that several cases have defined conversion under Kansas law without mentioning the word "exclusion." See, e.g., Rajala v. Allied Corp., 919 F.2d 610, 633 (10th Cir.1990) (requiring some "actual interference with" the owner's possession of the property for a conversion claim) (citation omitted); Indep. Drug Wholesalers Group, Inc., 833 F.Supp. at 1522 (defining conversion as the "unauthorized assumption and exercise of a right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of the owner's rights") (emphasis added) (citations omitted); Temmen v. Kent-Brown Chevrolet, 227 Kan. 45, 605 P.2d 95, 99 (1980) (defining conversion as the unauthorized exercise of the right of ownership over property by another). The court has reviewed those cases, and concludes that whether the property was taken to the exclusion of the plaintiff in those cases was not at issue. The cases are not instructive on the issue at hand.
*1151 The court is also reluctant to recognize a cause of action for conversion in the instant case because the property at issue is intangible. Plaintiff has cited several district court cases holding that an action for conversion may lie when the subject is intangible personal property. See, e.g., DIRECTV, Inc. v. DiSalvatore, No. 02-00706, 2003 U.S. Dist. LEXIS 23822, at *18 (N.D.Ohio May 21, 2003); Don King Prods./Kingvision v. Lovato, 911 F.Supp. 419, 423 (N.D.Cal.1995); Quincy Cablesystems, Inc. v. Sully's Bar, Inc., 650 F.Supp. 838, 848 (D.Mass.1986). The court does not dispute that in some instances, intangible property may be converted, see, e.g., Resolution Trust Corp. v. Heights of Tex., FSB, No. 89-2099-O, 1991 WL 205040, at *4 (D.Kan. Sept. 17, 1991), 1991 U.S. Dist. LEXIS 14255, at *12-13, but none of the cases Plaintiff cites provide the support Plaintiff needs to save its claim.
The DiSalvatore district court held that while "[i]t is not immediately obvious that the common law conversion claim for taking of personal property has been expanded to the point of allowing a claim for the taking of an interest that is neither tangible nor exclusive," finding the defendants liable for conversion under the unique circumstances of the case was appropriate. 2003 U.S. Dist. LEXIS 23822, at *18. In DiSalvatore, the summary judgment motions were unopposed. Id. at *2.
In Don King, the court held that broadcast television signals were intangible property that were nevertheless capable of being converted. 911 F.Supp. at 423. The court made the determination under California law, which does not require unauthorized use of property to the exclusion of the owner's rights. Id. ("In California, conversion has three elements: (1) ownership or right to possession of property, (2) wrongful disposition of the property right of another, and (3) damages.") (citations omitted). The Quincy Cablesystems court made a similar determination, based on Massachusetts law that does not require that the owner be excluded from using the property. 650 F.Supp. at 848. Both cases are distinguishable for this reason.
As a final note, Plaintiff alternatively asks the court to grant Plaintiff leave to amend to properly plead Counts Three and Five if the court determines that they do not state a cause of action. Such relief is denied, as the court fails to see how good faith amendment of either of the claims could rectify the deficiencies identified in this Memorandum and Order.
IT IS, THEREFORE, BY THE COURT ORDERED that Defendants Michael Mielke's and Richard Prentiss's motions to dismiss (Docs. 27 and 29) are granted. The court dismisses Counts Three and Five of Plaintiff's Complaint against these Defendants.
IT IS SO ORDERED.
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790 F.Supp. 753 (1991)
Lillie THOMPSON, SSN: XXX-XX-XXXX, Plaintiff,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
No. C-1-89-257.
United States District Court, S.D. Ohio, W.D.
January 23, 1991.
*754 James Roy Williams, Young, Reverman & Napier Co., Cincinnati, Ohio, for plaintiff.
Joseph E. Kane, U.S. Atty., Columbus, Ohio, Barbara F. Altman, Asst. Regional Counsel, Office of Gen. Counsel, U.S. Dept. of Health & Human Services, Chicago, Ill., for defendant.
ORDER GRANTING MOTION FOR ATTORNEY'S FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT
SPIEGEL, District Judge.
This matter is before the Court on the motion by the plaintiff's counsel, James Roy Williams, Esq., for attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d) in the amount of $2728.50 (doc. 21). The Secretary has filed a memorandum in opposition to the plaintiff's motion for attorney's fees under the Equal Access to Justice Act (doc. 22), to which the plaintiff has replied (doc. 23).
The EAJA provides for an award of reasonable attorney fees and other expenses to a prevailing party in litigation against the United States, "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). The proper test for determining whether the government's position was substantially justified is whether the "position was justified, both in fact and in law, to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988); Jankovich v. Bowen, 868 F.2d 867, 869 (6th Cir.1989). We must consider both the government's litigation and agency positions in determining whether there was substantial justification for its stance. 28 U.S.C. § 2412(d)(2)(D).
After reviewing the record in this case, we conclude that the government's position was not substantially justified. Administrative Law Judge Edward H. Tiley found that the plaintiff suffers from a severe mental impairment due to depression, which impairs her ability to tolerate stress. The ALJ found that the plaintiff has also suffered from suicidal ideation. However, the ALJ concluded that the plaintiff is capable of performing her past relevant work as a packer at a grocery warehouse, which the ALJ found to be not unusually stressful. The United States Magistrate, the Honorable Robert A. Steinberg, concluded that the decision of the ALJ was not supported by substantial evidence, and recommended that judgment be granted for the plaintiff. This Court accepted the Magistrate's Report and Recommendation. In doing so, this Court noted that the plaintiff was unrepresented at the hearing before the ALJ and that "[t]he medical evidence overwhelmingly indicates that the plaintiff lacks the ability to deal with any level of work stress...." (emphasis in original).
The plaintiff's attorney then filed for an award of attorney's fees under the Equal Access to Justice Act (EAJA). The defendant contends that the Secretary's position in this case was substantially justified. Alternatively, the defendant asserts that if EAJA fees are awarded, this Court should reduce the amount requested by plaintiff's counsel. Because the evidence demonstrated that the plaintiff lacked the capability to deal with any work stress, yet the Secretary denied benefits, we find that the plaintiff is entitled to attorney's fees under the EAJA.
Having concluded that the plaintiff is entitled to recover reasonable attorney's fees and expenses under the EAJA, we must now determine the amount of a reasonable award. The EAJA provides that *755 "attorney fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee." 28 U.S.C. § 2412(d)(2)(A). The plaintiff's attorney is seeking a cost of living increase from $75 per hour to $102 per hour.
The Secretary argues that this Court should reject the plaintiff's request for a cost of living increase in light of the decision of the Sixth Circuit Court of Appeals in Chipman v. Secretary of Health and Human Services, 781 F.2d 545 (6th Cir. 1986). In Chipman, the Sixth Circuit held that the district court had not abused its discretion by refusing to augment an award of attorney's fees under the EAJA to compensate for the rise in the cost of living since its enactment. The Sixth Circuit ruled, in part, as follows:
[W]e think it important that the $75 statutory rate is a ceiling and not a floor. Moreover, we note that Congress, in reenacting 28 U.S.C. § 2412(d) on August 5, 1985, did not raise the $75 maximum hourly rate despite the rise in the cost of living since its original enactment in 1980. See Pub.L. No. 99-80, § 6, 99 Stat. 186 (1985). Accordingly, we do not believe the district court abused its discretion in determining that the fees awarded should not exceed $75 per hour even though the cost of living may have indeed risen since the enactment of the EAJA.
Chipman, 781 F.2d at 547.
The Chipman decision leaves open the question of when it would be an abuse of discretion to grant a cost of living increase to the statutory ceiling of $75 per hour under the EAJA. The district courts have reached a variety of conclusions to this question. Compare Johnson v. Meese, 654 F.Supp. 270, 272 n. 2 (E.D.Mich.1987) (denying cost of living increase because Chipman strongly suggests that trial courts should refrain from upward adjustments due to inflation) with Willis v. Sullivan, 730 F.Supp. 785, 788-89 (M.D.Tenn. 1990) (awarding cost of living increase to attorneys who were very experienced in the area where the adjusted hourly rate was just under the top prevailing market rates) and Holden v. Bowen, 668 F.Supp. 1042, 1047-48 (N.D.Ohio 1986) (awarding a cost of living increase which resulted in a $94.09 hourly rate where the prevailing market rate was $115 per hour).
We recently concluded that the Chipman decision prevents the Court from enhancing EAJA awards to compensate for inflation. See United States v. Dorothy Coal Sales, Inc., Case No. C-1-87-287 (S.D.Ohio August 9, 1990). Upon reconsideration of this matter, however, we conclude that Chipman does not preclude this Court from augmenting the award of attorney's fees under the EAJA with cost of living increases. Instead, we believe that the Sixth Circuit's decision indicates that the Court should not automatically award a cost of living adjustment. Therefore, we find that Chipman has left the issue of cost of living adjustments to the sound discretion of the trial courts.
In exercising our discretion to award a cost of living adjustment, we must consider Congress' purpose in enacting the EAJA. Congress' primary purpose was to ensure that individuals who have been subjected to unreasonable governmental action are not deterred from vindicating their rights by the costs of litigation. See Immigration and Naturalization Service v. Jean, 496 U.S. 154, n. 14, 110 S.Ct. 2316, 2322 n. 14, 110 L.Ed.2d 134 (1990); Trichilo v. Secretary of Health and Human Services, 823 F.2d 702, 704 (2d Cir.1987). The $75 per hour ceiling on attorney's fees represents the subordinate interest of minimizing the cost to the taxpayers of providing representation for these individuals. In expressly providing for cost of living increases, however, Congress recognized that the ceiling on attorney's fees combined with inflation could defeat the primary purpose of the EAJA. See Action on Smoking and Health v. Civil Aeronautics Board, 724 F.2d 211, 217 (D.C.Cir.1984). Therefore, we should award cost of living increases to the extent necessary to ensure *756 adequate representation to aggrieved individuals. However, at the same time, we should remember that the $75 per hour limit is a ceiling and not a floor. See Chipman, 781 F.2d at 547.
Accordingly, we must conduct two separate inquiries before awarding a cost of living increase. First, we must determine the prevailing market rate for services of the kind and quality provided. Second, we must determine that an increase in the cost of living justifies raising the statutory ceiling on hourly rates. If the Court concludes that a cost of living increase is warranted, the Court may not raise the hourly rate above the prevailing market rate. This would defeat Congress' intent to provide adequate representation while minimizing the cost to taxpayers.
Having set forth the circumstances that justify the award of a cost of living increase under the EAJA, we are confronted by a second question raised by the Sixth Circuit's decision in Chipman. We must determine whether a cost of living increase should be based on inflation since October of 1981 when the EAJA was enacted or on inflation since August of 1985 when the EAJA was "reenacted." The district courts have also split on this issue. Compare Holden v. Bowman, 668 F.Supp. 1042, 1047 (N.D.Ohio 1986) (adjusting award for inflation since 1981) with Willis v. Sullivan, 730 F.Supp. 785, 789 (M.D.Tenn.1990) (adjusting award for inflation since 1985). In Willis v. Sullivan, the court read the Sixth Circuit's statement in Chipman that the EAJA had been "reenacted" in 1985 without raising the $75 ceiling to indicate that the 1985 reenactment date was "an acceptable reference point for computing adjustments for inflation." Willis, 730 F.Supp. at 788. The court in Holden v. Bowen, however, found that the Sixth Circuit's statement that the EAJA had been "reenacted" in 1985 was incorrect dicta, and that the proper reference point for calculating cost of living increases was the original enactment date in 1981. While we are not prepared to rule that the Sixth Circuit's finding that the EAJA was "reenacted" was incorrect dicta, we do not believe that we should assign "talismanic significance" to the term "reenacted" in determining the proper date of reference for computing cost of living increases. See Sierra Club v. Secretary of the Army, 820 F.2d 513, 521 n. 7 (1st Cir.1987); Trichilo, 823 F.2d at 705, 707. Instead, we must focus on the intent of Congress when it "reenacted" the EAJA in 1985 to determine whether it intended to "reset the clock" on the calculation of cost of living increases.
When the EAJA was originally enacted it contained a "sunset provision" that repealed 28 U.S.C. § 2412(d) after a three year trial period on October 1, 1984. Pub.L. No. 96-481, § 204(c), 94 Stat. 2321, 2329 (1980). As the end of the trial period approached, Congress reviewed the results of the EAJA and approved its continuation. However, President Reagan vetoed the bill, and the Congress was not able to continue the EAJA before it expired on October 1, 1984. See Trichilo, 823 F.2d at 705. Therefore, Congress "reenacted" the EAJA as a permanent measure, along with a number of clarifying amendments on August 5, 1985. Pub.L. No. 99-80, 99 Stat. 183 (1985). The reenactment provided that § 2412(d) "shall be effective on or after the date of the enactment of this Act as if [it] had not been repealed" by the sunset provisions of the original EAJA. Pub.L. No. 99-80, § 6, 99 Stat. 183, 186 (1985). Neither the 1985 Act nor its legislative history reflect that Congress ever contemplated the dollar amount of the ceiling on attorney's fees when reenacting the EAJA.
Although Congress could have raised the $75 rate to compensate attorneys for the rise in the cost of living between 1981 and 1985 when reenacting the EAJA, its failure to do so does not indicate that Congress intended to preclude attorneys from recovering an adjustment for those years. Instead, it suggests that Congress intended to provide cost of living increases for those years through the adjustment mechanism already contained in the statute by directing that § 2412(d) be effective "as if [it] had not been repealed." Therefore, lacking clearer guidance from the Sixth Circuit Court of Appeals, we will follow the wellreasoned opinions of the majority of Circuit *757 Courts that have concluded that cost of living increases under the EAJA should be calculated from October 1, 1981. See Jean v. Nelson, 863 F.2d 759, 774 (11th Cir.1988), aff'd, 496 U.S. 154, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990); Ramon-Sepulveda v. Immigration and Naturalization Service, 863 F.2d 1458, 1464 (9th Cir.1988); Baker v. Bowen, 839 F.2d 1075, 1084 (5th Cir. 1988); Trichilo v. Secretary of Health and Human Services, 823 F.2d 702, 707 (2d Cir.1987); Allen v. Bowen, 821 F.2d 963, 967 (3rd Cir.1987); Sierra Club v. Secretary of the Army, 820 F.2d 513, 523 (1st Cir.1987); Hirschey v. Federal Energy Regulatory Commission, 777 F.2d 1, 5 (D.C.Cir.1985).
We now turn our attention to the plaintiff's request for a cost of living increase that would raise the hourly rate to $102.00. The burden of satisfying the Court that the fees claimed are in fact reasonable is on the fee applicant. Ashton v. Pierce, 580 F.Supp. 440, 441 (D.D.C. 1984). In support of his fee request, the plaintiff's counsel attached data from the Consumer Price Index prepared by the Bureau of Labor Statistics of the United States Department of Labor for the Cincinnati area. Also, the plaintiff's counsel has cited one case, Lanter v. Heckler, 656 F.Supp. 19 (S.D.Ohio 1986), in which The Honorable Carl B. Rubin recognized that $100.00 per hour was not an unreasonable fee for social security cases in the Cincinnati area. This Court agrees with Judge B. Rubin that $100.00 per hour is not an unreasonable fee. However, Lanter involved the Social Security Act, 42 U.S.C. § 406(b)(1) rather than the EAJA. Further, there is a difference between a fee that is not unreasonable and the prevailing market rate. Thus, although the data provided by the plaintiff is useful in determining whether an increase in the cost of living justifies raising the statutory ceiling, the plaintiff failed to provide any evidence regarding the prevailing market rate for services of the kind and quality provided in this case. As we have previously stated, the award of a cost of living increase is not automatic and one should only be granted in order to ensure adequate representation. Therefore, absent any evidence regarding the prevailing market rate for the services provided in this case, we are unable to find that a cost of living increase in the $75 ceiling is necessary to provide adequate representation to the plaintiff. Accordingly, we will award attorney's fees at a rate of $75 per hour.
In order to determine the amount of a reasonable award of attorney's fees, we must now multiply the $75 hourly rate by the number of hours the plaintiff's counsel reasonably expended in the course of this litigation. The plaintiff has attached an itemized list of the 26.75 hours expended in this litigation. The plaintiff has supplemented that list to include a fee for the 2 hours spent in preparing the response to defendant's objections to the fee application. The United States Supreme Court has recently ruled that a party may recover a fee for time spent in preparing an EAJA fee application, without a finding that the government's opposition to the fee application itself was not substantially justified. Immigration and Naturalization Service v. Jean, 496 U.S. 154, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990). Having reviewed the plaintiff's fee application, we conclude that the 28.75 hours the plaintiff's counsel expended in the successful representation of the plaintiff was reasonable.
Therefore, we find that $2156.25 is the amount of a reasonable award of attorney's fees under the EAJA in this case. We arrived at this figure by multiplying the 28.75 hours expended in this case by a rate of $75 per hour. Accordingly, the plaintiff is hereby awarded attorney's fees in the amount of $2156.25 pursuant to the EAJA.
SO ORDERED.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4232
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER DEWONE GRAY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:03-cr-00043-MR-1)
Submitted: January 12, 2011 Decided: April 1, 2011
Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ann L. Hester, Assistant
Federal Defender, Erin K. Taylor, Research and Writing Attorney,
Charlotte, North Carolina, for Appellant. Anne M. Tompkins,
United States Attorney, Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Dewone Gray appeals the district court’s
judgment revoking his supervised release and imposing a thirty-
month prison term. For the reasons that follow, we affirm.
Gray first contends that the district court erred by
finding that he committed a Grade A supervised release violation
by possessing cocaine with intent to distribute. A decision to
revoke a defendant’s supervised release is reviewed for abuse of
discretion. United States v. Pregent, 190 F.3d 279, 282 (4th
Cir. 1999). The district court need only find a violation of a
condition of supervised release by a preponderance of the
evidence. 18 U.S.C. § 3583(e)(3) (2006); United States v.
Copley, 978 F.2d 829, 831 (4th Cir. 1992). We review for clear
error factual determinations underlying the conclusion that a
violation occurred. United States v. Carothers, 337 F.3d 1017,
1019 (8th Cir. 2003).
The district court revoked Gray’s supervised release
based on Grade C violations that he does not dispute and a Grade
A violation that he disputes: possession of cocaine with intent
to sell and deliver. Gray concedes that he possessed cocaine,
but argues that the district court clearly erred in finding that
the possession was with intent to sell and deliver.
Intent to distribute a controlled substance may be
inferred from a variety of circumstantial factors, including the
2
method of packaging. United States v. Fisher, 912 F.2d 728,
730-31 (4th Cir. 1990); State v. Morgan, 406 S.E.2d 833, 835
(N.C. 1991). “Even when the amount of drugs involved is small,
the surrounding circumstances may allow the [factfinder] to find
an intent to distribute.” State v. James, 344 S.E.2d 77, 80
(N.C. Ct. App. 1986).
Here, Gray was found in possession of fourteen rocks
of crack totaling 3.1 grams that were individually packaged.
The arresting officer testified that such packaging was
consistent with intent to distribute. Gray was a known
substance abuser and, as a condition of supervised release, had
undergone numerous tests for drug use and had tested positive
for marijuana on several occasions. However, there was no
evidence that he ever had a positive test for cocaine or crack
or was a user of these substances. In light of this evidence,
we conclude that the district court did not clearly err by
finding that Gray possessed the crack with intent to distribute.
Gray also argues that his sentence is procedurally
unreasonable because the district court improperly calculated
his policy statement range, failed to provide a sufficient
explanation for the sentence imposed, and treated the policy
statements as mandatory. We will not disturb a sentence imposed
after revocation of supervised release if it is within the
prescribed statutory range and is not plainly unreasonable.
3
United States v. Crudup, 461 F.3d 433, 437-39 (4th Cir. 2006). ∗
In making this determination, we first consider whether the
sentence is unreasonable. Id. at 438. “This initial inquiry
takes a more deferential appellate posture concerning issues of
fact and the exercise of discretion than reasonableness review
for guidelines sentences.” United States v. Moulden, 478 F.3d
652, 656 (4th Cir. 2007) (internal quotation marks and citation
omitted).
The district court’s discretion is not unlimited,
however. United States v. Thompson, 595 F.3d 544, 547 (4th Cir.
2010). For instance, the district court commits procedural
error by failing to adequately explain the chosen sentence or by
not providing an individualized assessment based on the facts.
Gall v. United States, 552 U.S. 38, 51 (2007). Although “[a]
court need not be as detailed or specific when imposing a
revocation sentence as it must be when imposing a post-
conviction sentence, . . . it still must provide a statement of
reasons for the sentence imposed.” Thompson, 595 F.3d at 547
(internal quotation marks and citation omitted). The judge also
must “set forth enough to satisfy the appellate court that he
∗
Gray questions this court’s use of the plainly
unreasonable standard as provided in Crudup. However, a panel
of this court cannot overrule the precedent set by another
panel. United States v. Foster, 507 F.3d 233, 251 n.12 (4th
Cir. 2007).
4
has considered the parties’ arguments and has a reasoned basis
for exercising his own legal decisionmaking authority.” United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).
Gray contends that the district court improperly
calculated his policy statement range based on a Grade A
violation, because the court’s finding that he possessed cocaine
with intent to distribute was clearly erroneous. As discussed
above, this claim is without merit.
Next, Gray challenges the adequacy of the district
court’s explanation of his sentence. Gray had requested a
sentence below the policy statement range of thirty to thirty-
seven months’ imprisonment, based on his substance abuse
problem. Initially, the court did not explain its decision to
impose a sentence at the bottom of the policy statement range.
However, when Gray requested to have his federal revocation
sentence run concurrently with the state sentence imposed on his
underlying controlled substance conviction, the court declined,
explaining that, although both sentences arose from the same
conduct, the state sentence punished a violation of state law
and the federal sentence punished Gray’s failure to comply with
the conditions of supervised release. The court explained that
serving his full federal sentence in a federal facility would
enable Gray to get the full benefit of the substance abuse
treatment available in a federal facility, emphasizing the
5
importance of such treatment for Gray. We conclude that the
court’s explanation was sufficient for this court to conclude
that the judge considered Gray’s arguments for a sentence below
the policy statement range and provided reasons for the sentence
imposed. See Carter, 564 F.3d at 328.
Finally, Gray claims that the district court committed
procedural error because it misunderstood U.S. Sentencing
Guidelines Manual § 7B1.3(f), p.s. (2009), to require the court
to impose the revocation sentence consecutively to Gray’s North
Carolina sentence on the underlying controlled substance
offense. The Chapter Seven policy statements concerning
revocation of supervised release are not mandatory. United
States v. Davis, 53 F.3d 638, 640-41 n.9 (4th Cir. 1995); see
also United States v. Contreras-Martinez, 409 F.3d 1236, 1241
(10th Cir. 2005) (despite “seemingly mandatory language . . .
[USSG] § 7B1.3(f) . . . is merely an advisory policy
statement”). The district court acknowledged that the policy
statements were advisory despite noting the seeming mandatory
language in § 7B1.3(f) and offered reasons independent of
§ 7B1.3(f) for imposing a consecutive sentence. We conclude
that the court understood that it had the discretion to
determine whether to run the revocation sentence concurrently or
consecutively to Gray’s North Carolina state sentence on the
underlying drug offense.
6
Accordingly, we affirm the judgment. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
7
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86 F.3d 1163
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Zoila Rosa RUIZ; Erick Jose Rosales-Ruiz; Yader AlezanderRosales-Ruiz, Petitioners,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 94-70826.
United States Court of Appeals, Ninth Circuit.
Submitted April 10, 1996.*Decided May 17, 1996.
1
Before: NORRIS and WIGGINS, Circuit Judges, JONES,** District Judge.
2
MEMORANDUM***
3
Zoila Rosa Ruiz ("petitioner") and her two minor-age sons, Yader Alezander Rosales-Ruiz and Erick Jose Rosales-Ruiz, are natives and citizens of Nicaragua.1 She petitions for review of the Board of Immigration Appeals' ("BIA") dismissal of her appeal of the Immigration Judge's ("IJ") denial of her application for asylum and withholding of deportation. We have jurisdiction pursuant to 8 U.S.C. § 1105a(a), and we deny the petition.
DISCUSSION
I. STANDARD OF REVIEW
4
We review the BIA's denial of asylum for abuse of discretion. Ramos-Vasquez v. INS, 57 F.3d 857, 861 (9th Cir.1995). The BIA's denial of asylum must be upheld if "supported by reasonable, substantial, and probative evidence on the record considered as a whole." 8 U.S.C. § 1105a(a)(4); INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815 (1992). Factual findings underlying the decision are reviewed for substantial evidence. Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir.1995). This review is extremely deferential, and petitioner "must demonstrate 'that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.' " Id. (quoting Elias-Zacarias, 502 U.S. at 483, 112 S.Ct. at 816). We also review the BIA's decision to deny the withholding of deportation for substantial evidence. Berroteran-Melendez v. INS, 955 F.2d 1251, 1255 (9th Cir.1992).
II. SCOPE OF REVIEW
5
The BIA reviewed the IJ's decision de novo, and affirmed that decision "based upon and for the reasons set forth therein." We therefore "treat the IJ's statement of reasons as the BIA's and review the IJ's decision for abuse of discretion." Alaelua v. INS, 45 F.3d 1379, 1382 (9th Cir.1995).2
III. DENIAL OF APPLICATION FOR ASYLUM
6
Under 8 U.S.C. § 1158(a), the Attorney General has discretion to grant political asylum to any alien she determines to be a "refugee" under 8 U.S.C. § 1101(a)(42)(A). A "refugee" is defined as any alien "who is unable or unwilling to return to ... [her native] 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) (emphasis added).
7
Petitioner testified in support of her family's application. Neither the IJ nor the BIA questioned petitioner's credibility. Thus, we accept the truth of her testimony and examine only whether it is sufficient to establish statutory grounds for asylum. Prasad v. INS, 47 F.3d 336, 339 (9th Cir.1995). We conclude that petitioner's allegations, considered together, do not demonstrate past persecution or a well-founded fear of future persecution to warrant asylum relief. We will discuss petitioner's allegations in turn.
8
First, petitioner's refusal to work at the Nicaraguan/Honduran border was based on her desire not to be separated from her children, rather than a disagreement with the Sandinistas' politics. Her belief that she was given this assignment because of her refusal to join the Sandinista union is unsubstantiated speculation in light of the hospital's policy of routinely assigning nurses to work in different locations depending on the need for medical care. See Ubau-Marenco v. INS, 67 F.3d 750, 755 (9th Cir.1995) (undesirable and demeaning assignments do not constitute persecution), vacated on other grounds, Fisher v. INS, 79 F.3d 955, 963 (9th Cir.1996).
9
Second, petitioner's loss of her food ration coupon or alleged inability to obtain a business license do not substantiate her claim of persecution. See Sballo-Cortez v. INS, 761 F.2d 1259, 1264 (9th Cir.1985) (denial of "such perquisites as discounts on food and a special work permit" is not persecution); Raass v. INS, 692 F.2d 596 (9th Cir.1982) (asylum relief requires a showing of more than generalized economic disadvantage). Moreover, there is no evidence that petitioner was unable to find any other nursing position or obtain a business license because she never applied for another nursing position or a business license. Even if she could not have obtained another nursing job or a business license, petitioner has not shown that she was unable to obtain any reasonably comparable employment. We conclude that she has not established that she suffered substantial economic disadvantage. See Kovac v. INS, 407 F.2d 102, 107 (9th Cir.1969). Cf. Desir v. Ilchert, 840 F.2d 723, 727 (9th Cir.1988) (persecution shown where alien's ability to earn livelihood was severely impaired by threats and attempts on his life).
10
Third, petitioner has not shown how the surveillance and search of her home for her husband in 1983 and 1988, and the disappearance and death of her nephew after he came to live with her in 1986, constitute a pattern of persecution tied to her. See Prasad, 47 F.3d at 340 ("[A]ttacks on family members do not necessarily establish a well-founded fear of persecution absent a pattern of persecution tied to the petitioner[ ]."); Arriaga-Barrientos v. INS, 937 F.2d 411, 414 (9th Cir.1991) (allegations of isolated violence are not enough to establish persecution) (citation omitted). Cf. Ramirez Rivas v. INS, 899 F.2d 864, 865-66 (9th Cir.1990) (sizeable family whose extraordinary level of anti-Sandinista activity subjected politically inactive kindred to a likelihood of persecution).
11
Fourth, because the "death threat" regarding her anti-Sandinista activities was anonymous, it cannot be the basis of a finding of past persecution or a well-founded fear of future persecution. See Diaz-Escobar v. INS, 782 F.2d 1488, 1493 (9th Cir.1986) ("The source of the threat was left wholly to speculation" ... [and therefore] "does not establish a reasonable expectation of persecution.").
12
Lastly, the two instances where counter-revolutionary slogans were painted on petitioner's house do not amount to evidence of past persecution that is " 'so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.' " Ghaly, 58 F.3d at 1431. Aside from the anonymous note that the petitioner received in early 1989, she did not experience any harassment, let alone persecution, after the vandalism to her house in November 1988. See Rodriguez-Rivera v. INS, 848 F.2d 998, 1006 (9th Cir.1988) (insufficient objective indication of well-founded fear where applicant had lived undisturbed for two months before leaving country). Although a reasonable factfinder could have found these incidents of vandalism combined with petitioner's Confederation for Trade Union Unification activities and search of her house sufficient to establish past persecution or a well-founded fear, we cannot conclude that a reasonable factfinder would be compelled to do so. Prasad, 47 F.3d at 340.
13
Petitioner's well-founded fear argument is further undermined by the democratic election of a new government in April 1990. See Kazlauskas v. INS, 46 F.3d 902, 906 n. 3 (9th Cir.1995) (fundamental political changes are highly relevant to the likelihood of future persecution). Petitioner's assertion that the Sandinistas still control Nicaragua is insufficient to show that she would be subject to a "particularized threat of persecution" apart from the general population. See Kotasz v. INS, 31 F.3d 847, 854 (9th Cir.1994). Petitioner's ability to obtain a passport to leave Nicaragua "cuts against [her] argument that [s]he will be individually persecuted upon return." See Espinoza-Martinez v. INS, 754 F.2d 1536, 1540 (9th Cir.1985); Rodriguez-Rivera, 848 F.2d 998 at 1006; Sballo-Cortez, 761 F.2d at 1264. Furthermore, petitioner's fear of retaliation for leaving Nicaragua and, more particularly, fear that she would be killed like her nephew upon her return are based on speculation. Her testimony does not contain any specific facts regarding her fear and therefore does not constitute objective evidence in support of a well-founded fear. See Ghaly, 58 F.3d at 1428 (objective element of a well-founded fear "requires a showing by credible, direct, and specific evidence in the record, of facts that would support a reasonable fear of persecution").
14
IV. DENIAL OF APPLICATION FOR WITHHOLDING OF DEPORTATION
15
Because petitioner does not meet the lower standard under 8 U.S.C. § 1158(a), she necessarily has failed to show a clear probability of persecution to warrant relief under section 1253(h). Ghaly, 58 F.3d at 1429.
CONCLUSION
16
For the foregoing reasons, we DENY the petition for review of the BIA's decision.
*
The panel finds this case appropriate for submission without argument pursuant to Fed.R.App.P. 34(a) and 9th Cir.R. 34-4
**
Hon. Napoleon A. Jones, Jr., United States District Judge for the Southern District of California, sitting by designation
***
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
1
Petitioner's sons request relief under section 208(c) of the Immigration and Naturalization Act, 8 U.S.C. § 1185(c), which provides that children of an alien eligible for asylum may be granted the same relief as the alien. Therefore, our discussion of the merits of petitioner's arguments applies also to her sons
2
Petitioner did not raise on appeal to this court the BIA's rejection of her argument that the IJ improperly took administrative notice of the change in government in Nicaragua
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Court of Appeals
of the State of Georgia
ATLANTA, January 24, 2019
The Court of Appeals hereby passes the following order
A19I0156. RICHARD MELTON et al. v. JOHNNIE MCCARTHAN.
Upon consideration of the Application for Interlocutory Appeal, it is ordered that it be
hereby GRANTED. The Appellant may file a Notice of Appeal within 10 days of the date of
this order. The Clerk of State Court is directed to include a copy of this order in the record
transmitted to the Court of Appeals.
LC NUMBERS:
15EV000513
Court of Appeals of the State of Georgia
Clerk's Office, Atlanta, January 24, 2019.
I certify that the above is a true extract from the minutes
of the Court of Appeals of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk.
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ACCEPTED
S 10Z-80-60
12-15-00075-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
9/8/2015 6:07:20 PM
Pam Estes
CLERK
CAUSE NUMBER 12-15-00075-CR
RECEIVED IN
12th COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE TYLER, TEXAS
9/8/2015 6:07:20 PM
TWELFTH APPELLATE DISTRICT OF TEXAS PAM ESTES
Clerk
AT TYLER
9/8/2015
CHARLES BLAKE DEFORE
VS.
THE STATE OF TEXAS
CAUSE NUMBER 31,077
IN THE 3RD JUDICIAL DISTRICT COURT
ANDERSON COUNTY, TEXAS
APPELLANT'S BRIEF
Colin D. McFall
Attorney at Law
513 North Church Street
Palestine, Texas 75801-2962
Telephone: 903-723-1923
Facsimile: 903-723-0269
Email: [email protected]
Counsel for Appellant
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Rule 38.1 (a), Texas Rules of Appellate Procedure, Appellint
provides a complete list of all parties and the names and addresses of Counsel:
Trial Defendant: Charles Blake DeFore
1200 East Lacy Street
Palestine, Texas 75801
Trial Defendant's Counsel: Jeffrey D. Herrington
Attorney at Law
509 North Church Street
Palestine, Texas 75801
Telephone: 903-723-1212
Facsimile: 903-723-3434
Trial State's Counsel: Scott Holden
Assistant Criminal District Attorney
Anderson County Courthouse
500 North Church Street
Palestine, Texas 75801
Telephone: 903-723-7400
Facsimile: 903-723-7818
SIOZ-80-60
Appellant: Charles Blake DeFore
Hutchins Unit
1500 East Langdon Road
Dallas, Texas 75241
Appellant's Counsel: Colin D. McFall
Attorney at Law
513 North Church Street
Palestine, Texas 75801-2962
Telephone: 903-723-1923
Facsimile: 903-723-0269
Appellee's Counsel: Scott Holden
Assistant Criminal District Attorney
Anderson County Courthouse
500 North Church Street
Palestine, Texas 75801
Telephone: 903-723-7400
Facsimile: 903-723-7818
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 2
TABLE OF CONTENTS 4
INDEX OF AUTHORITIES 5
STATEMENT OF THE CASE 6
STATEMENT REGARDING ORAL ARGUMENT 7
ISSUES PRESENTED
I. THE TRIAL COURT FAILED TO ADJUDICATE APPELLATE
GUILTY OF COUNT II, PRIOR TO SENTENCING, RENDERING
A VOID JUDGMENT, AND DEPRIVING THE APPELLATE
COURT OF JURISDICTION 8
STATEMENT OF FACTS 9
SUMMARY OF THE ARGUMENT 10
ARGUMENT 11
PRAYER 13
CERTIFICATE OF COMPLIANCE 14
CERTIFICATE OF SERVICE 15
INDEX OF AUTHORITIES
CASES PAGE
TEXAS
Breazeale v. State, 683 S.W.2d 446 (Tex. Crim. App. 1984) 11
Villela v. State, 564 S.W.2d 750 (Tex. Crim. App. 1978) 11
Warren v. State, 784 S.W.2d 56 (Tex. App.— Houston [1St Dist.]
1989), rev'd on other grounds.... 12
RULES AND STATUTES PAGE
TEXAS CODE OF CRIMINAL PROCEDURE
Article 42.12, § 5(b), Texas Code of Criminal Procedure 12
TEXAS RULES OF APPELLATE PROCEDURE
Rule 9.4(i)(3), Texas Rules of Appellate Procedure 14
Rule 38.1(a), Texas Rules ofAppellate Procedure 2
Rule 3 8.1(e), Texas Rules of Appellate Procedure 7
STATEMENT OF THE CASE
On the 27th day of September 2012, an Anderson County Grand Jury returned
a two count Indictment, charging Appellant withManufacture or Delivery of
Substance in Penalty Group 1, four (4) grams or more, but less than two hundred
(200) grams, in Count I, and Tampering with or Fabricating Physical Evidence
(with intent to impair), in Count II. (C.R., Vol. 1, Pg. 6). On the 22hd day of
February 2013, Appellant plead guilty toManufacture or Delivery of Substance in
Penalty Group 1, four (4) grams or more, but less than two hundred (200) grams in
County I, and Tampering with or Fabricating Physical Evidence (with intent to
impair), in Count II. (C.R., Vol. 1, Pg. 57), (C.R., Vol. 1, Pg. 59). The Trial Court
deferred a finding of Guilt and placed Appellant onCommunity Supervision forten
(10) years, in each count (C.R., Vol. 1, Pg. 57), (C.R., Vol. 1, Pg. 59).
On the 7th day of January 2015, Appellee filed a Motion to Proceed with
Adjudication of Guilt and Sentence (C.R., Vol. 1, Pg. 95). On the 13th day of
February 2015, the Court conducted a hearing, consolidatedwith a Motion to
Proceed with Adjudication of Guilt and Sentence in causenumber 31,070.
At the conclusion of the hearing, theCourt sentenced Appellantto thirty (30)
years confinement in the Texas Department of Criminal Justice, Institutional
Division (R.R., Vol. 1, Pg. 36, L. 6).
SIOZ-80-60
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Rule 38.1 (e), Texas Rules of Appellate Procedure, Appellant
provides the following Statement Regarding Oral Argument
Appellant does not requestOral Argument
2
SIOZ-80-60
ISSUE PRESENTED
The Trial Court failed to adjudicate Appellant guiltyin
County II, prior to sentencing, rendering a void judgment
and depriving the Appellate Court of jurisdiction.
STATEMENT OF FACTS
On the 13th day of February 2015, the Trial Court called Cause Number
31,070, the State of Texas vs. Charles Blake DeFore, and Cause Number 31,077,
State of Texas vs. Charles Blake DeFore, for announcements (R.R., Vol. 1, Pg. 1,
L. 5). Appellant plead "Not True" to the allegations contained withinboth Motions
to Proceed with Adjudication of Guilt and Sentence (R.R., Vol. 1, Pg. 6, L. 7),
(R.R., Vol. 1, Pg. 6, L. 13). The Court proceeded with a consolidated hearing in
Cause Numbers 31,070 and 31,077.
Appellee called Anderson County Adult Community Supervision Officer
David Purcell as its first witness (R.R., Vol. 1, Pg. 6, L. 16), Angela Sheely as its
second witness (R.R., Vol. 1, Pg. 22, L. 16), and T.J. Choate as its third witness
(R.R., Vol. 1, Pg. 25, L. 14).
At the conclusion of the testimony, the court heardclosing arguments and
announced its ruling. (R.R., Vol. 1, Pg. 28, L. 16). The Court found the allegations
true (R.R., Vol. 1, Pg. 28, L. 17), and adjudicated Appellant guiltyon Count I
(R.R., Vol. 1, Pg. 28, L. 21) (R.R., Vol. 1, Pg. 28, L. 23). The Court then sentenced
Appellant to thirty (30) years in cause numbers31,070 and 31,077. (R.R., Vol. 1,
Pg. 36, L. 7).
SUMMARY OF THE ARGUMENT
The Trial Court failed to adjudicate Appellant guiltyin
County II, prior to sentencing, rendering a void judgment
and depriving the Appellate Court of jurisdiction.
In the absence of an express, oral pronouncement of adjudication, followed
by the Trial Court's sentencing, the Appellate Court necessarily implies the Trial
Court found Appellant guilty. Recitals in the Judgment create a presumption of
regularity. Such presumption attains until the contrary appear. Appellant can
overcome this presumption when the record affirmatively reflects error.
The Reporter's Record affirmativelyreflects error. The Court adjudicated
Appellant's guilt in Count I. However, contrary to the Judgment in Cause Number
31,077 reciting Adjudication of guilt,the Court failed to orally pronounce
Appellant's adjudication of guiltin Count II.
Despite the Court's failure toorally pronounce an adjudication ofAppellant's
guilt in Count II, the Court sentenced Appellant, in cause number 31,077, to thirty
(30) years confinement.
Because the Trial Court sentenced Appellant without first finding him guilty
in Count II, the Judgment in Count II is not final. Because the Judgment in Count
II is not final, the Appellate Court lacksjurisdiction. Without jurisdiction, the
Appellate Court must dismiss theappeal in Count II, for want of jurisdiction.
IC
ARGUMENT
The Trial Court failed to adjudicateAppellant guilty in
Count II, prior to sentencing, rendering a void judgment
and depriving the Appellate Court of jurisdiction.
In the absence of an express, oral pronouncementof a finding of guilt,
followed by sentencing, the Appellate Court necessarily implies the Trial Court
found Appellant guilty. See Villela v. State, 564 S.W.2d 750 (Tex. Crim. App.
1978). Recitals in the Judgment create apresumption of regularity See Breazeale
v. State, 683 S.W.2d 446 (Tex. Crim. App. 1984). Thus, recitals in the records of
the Trial Court, such as formal Judgments, are binding, in the absence of direct
proof of their falsity. Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App.
1984). Such a presumption attains until and uness the contrary is made to appear.
However, Appellant can overcome the presumption of regularitywhen the
record affirmatively reflects error. Breazeale v. State, 683 S.W.2d 446, 450 (Tex.
Crim. App. 1984).
The Reporter's Record affirmatively demonstraes error. The Court
adjudicated Appellant's guilt inCount I (R.R., Vol. 1, Pg. 28, L. 21), (R.R., Vol. 1,
Pg. 28, L. 23). However, contrary to the Judgment in Cause Number 31,07
reciting Adjudication of guiltin Count II, the Court failed to orally pronounce
Appellant's adjudication of guiltin Count II. (R.R., Vol. 1, Pg. 29, L. 2). The Court
found the allegations contained within both Motions to Proceed with Adjudication
of Guilt and Sentence to be true(R.R., Vol. 1, Pg. 28, L. 17). However, finding an
allegation true is not an adjudication of guilt. Regarding Count II, the Court made
the following statement:
"Now, folks, what about Count 2? I didn't — I didn't
address Count 2. I grant the motion as to Count 2. The
evidence was sufficient to support i, as well."
Despite the Court's failure to pronounce an adjudication of guiltin Count II,
the Court sentence Appellant, in cause number 31,07, to thirty (30) years
confinement (R.R., Vol. 1, Pg. 36, L. 6).
After an adjudication of guilt, all proceedings, including asessment of
punishment, pronouncement of sentence, granting of community supervision, and
the Defendant's appeal, continue as if the adjudication of guilt had not been
deferred. Article 42.12, Section 5(b), Texas Code of Criminal Procedure.
The Court failed to adjudicate Appellant's guiltin Count II. Because the
Trial Court sentenced Appellant, without first finding him guilty in Count II, the
Judgment is not final, in Count II. Because the Judgment in Count II is not final,
the Appellate Court lacks jurisdiction, in Count II. Without jurisdictionin Count II,
the Appellate Court must dismissthe appeal in Count II. Warren v. State, 784
S.W.2d 56 (Tex. App.-Houston [1st Dist.] 1989), rev'd on other grounds.
SIOZ-80-60
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays the Appellate
Court find the Trial Court failed to adjudicate Appellant guilty in Count II, find the
Judgment in Count II is not final, and dismiss the appeal in Count II for want of
jurisdiction.
CERTIFICATE OF COMPLIANCE
I, Colin D. McFall, Attorney of Record for the above styled Appellant,
pursuant to Rule 9.4(0(3), Texas Rules of Appellate Procedure, hereby certify the
number of words within Appellant's Brief atone thousand, seven hundred, two
(1,702).
RESPECTFULLY SUBMITTED,
"
14V
COLIN D. M ALL
Attorney at Law
rifigi r
513 North Church Street
Palestine, Texas 75801-2962
Telephone: 903-723-1923
Facsimile: 903-723-0269
Texas Bar Number: 24027498 Email: [email protected]
i14,
S 10Z-80-60
CERTIFICATE OF SERVICE
I, Colin D. McFall, Attorney of Record for the above styled Appellant,
hereby certify service of a true and correct copy of the above and foregoing
document upon Anderson County Assistant Criminal District AttomeyScott
Holden, at [email protected] by email transmission, on thee day of
September 2015.
RESPECTFULLY SUBMITTED,
513 North Church Street
Palestine, Texas 75801-2962
COLIN D. MCFALL Telephone: 903-723-1923
Attorney at Law Facsimile: 903-723-0269
Texas Bar Number: 24027498 Email: [email protected]
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37 So.3d 862 (2010)
NELOMES
v.
STATE.
No. 2D10-1786.
District Court of Appeal of Florida, Second District.
May 27, 2010.
Decision Without Published Opinion Mandamus denied.
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961 F.2d 219
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Michael Wayne FINLEY, Plaintiff-Appellant,v.STATE OF KANSAS, and "all" conspirators, i.e.,Municipalities & Government, Defendants-Appellees.
No. 91-3296.
United States Court of Appeals, Tenth Circuit.
April 14, 1992.
Before SEYMOUR, STEPHEN H. ANDERSON and BALDOCK, Circuit Judges.
ORDER AND JUDGMENT*
STEPHEN H. ANDERSON, Circuit Judge.
1
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 is therefore ordered submitted without oral argument.
2
Michael Wayne Finley appeals the dismissal, pursuant to 28 U.S.C. § 1915(d), of his civil rights complaint filed under 42 U.S.C. § 1983. The district court correctly described Finley's complaint and contentions as "rambling and incoherent" as well as "conclusory, [and] frivolous." See District Court "Order" filed September 6, 1991. Finley's contentions on appeal are equally rambling, incoherent, conclusory and frivolous. We conclude from the record that Finley can make no rational argument on the law or facts in support of the issues raised on appeal. Coppedge v. United States, 369 U.S. 438 (1962); Neitzke v. Williams, 490 U.S. 319 (1989). We therefore deny Finley's motion for leave to proceed without payment of costs or fees.
3
The filing fee is waived; the appeal is DISMISSED and the mandate shall issue forthwith.
*
This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3
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581 S.W.2d 704 (1979)
METROFLIGHT, INC., Appellant,
v.
Surry SHAFFER and the Shaffer Insurance Agency, Appellee.
No. 19636.
Court of Civil Appeals of Texas, Dallas.
March 16, 1979.
Rehearing Denied April 12, 1979.
Randall A. Hopkins, Baker & Botts, Houston, for appellant.
William N. Hamilton, Stephen L. Baskind, Vial, Hamilton, Koch, Tubb, Knox & Stradley, Dallas, for appellee.
Before GUITTARD, C. J., and AKIN and ROBERTSON, JJ.
AKIN, Justice.
On this appeal from a summary judgment, the principal question is whether the appellant's cause of action is barred because appellant asserted facts in this suit which were inconsistent with facts asserted against another party in a prior suit, and appellant accepted benefits in settlement of that prior suit. Appellant Metroflight previously sued its insurance carriers in federal court claiming insurance coverage. Metroflight dismissed the federal suit after it accepted an out of court settlement. Metroflight then brought the present suit against its insurance agent, appellee Shaffer, in state court for failure to obtain adequate insurance. Shaffer was granted a summary judgment against Metroflight based upon the election of remedies doctrine. We hold that the trial court properly granted summary judgment in favor of Shaffer because *705 Metroflight is barred by the doctrine enunciated in Lomas & Nettleton Co. v. Huckabee, 558 S.W.2d 863 (Tex.1977) (per curiam). Accordingly, we affirm.
I. Metroflight v. Southern Marine and Argonaut The Federal Suit.
In 1974, an airplane crashed which was owned by appellant Metroflight, a common carrier airline. Metroflight instituted a declaratory judgment action in federal court in 1974 against Southern Marine and Aviation Underwriters, Inc. and Argonaut Insurance Company, the companies from which Metroflight's insurance agent had secured insurance for Metroflight. Appellee Shaffer, Metroflight's insurance agent, had the responsibility of counseling Metroflight with respect to its insurance requirements and for securing Metroflight's insurance policies. In 1972, Shaffer advised Metroflight that new insurance policies would be financially desirable, and he chose Southern Marine and Argonaut to be the insurance underwriters after he had prepared specifications and had obtained competitive bids. In contrast to the insurance coverage held by Metroflight prior to 1972, the new insurance policies recommended by Shaffer rendered part of Metroflight's air operations uninsured because of a certain pilot endorsement. This pilot endorsement, which was not contained in the specifications prepared by Shaffer, excluded from coverage any loss unless the pilot had attended specific flight training schools within the preceding ninety (90) days and was so listed with the insurer. This insurance policy was renewed in 1973, but Shaffer never informed Metroflight that the pilot endorsement exclusion would leave part of their operations uninsured, and Metroflight did not learn of the lack of coverage until after the crash. A few days after the crash in 1974, Metroflight hired a law firm to investigate whether the insurance procured by Shaffer provided coverage for the crash, and within six weeks after the crash, Metroflight brought a declaratory judgment action in federal court against its insurance carriers, Southern Marine and Argonaut. This federal suit was brought as a result of Shaffer's representations to Metroflight that the insurers had assured Shaffer that the insurers would not deny coverage by asserting the pilot endorsement.
In its pleading in the federal suit, Metroflight claimed that the insurance policy covered the losses sustained by the crash. Metroflight also alleged that the insurers should be estopped from asserting the pilot endorsement as a defense because the insurers had waived the exclusion due to factual knowledge possessed by the insurers prior to the loss. Essentially, Metroflight pleaded insurance coverage. In response, the insurance carriers denied that Metroflight was entitled to any relief under the insurance policy. The insurance carriers argued that coverage was excluded by the pilot endorsement because the pilot involved in the crash had not met the requirements of the endorsement.
In 1976, Metroflight and the insurance companies executed a settlement agreement, and the federal suit was dismissed with prejudice. This settlement was accomplished after lengthy and detailed pretrial discovery which indicated: (1) that Metroflight was indeed operating outside the scope of the pilot endorsement; (2) that the insurers had not waived this endorsement; and (3) that they were not estopped from asserting it. The settlement agreement provided that Southern Marine and Argonaut would pay eighty percent of all claims against Metroflight arising from the crash. The payments by the insurance companies were termed "loans" to Metroflight; however, Metroflight was obligated to pay back these loans only if it recovered a judgment against Shaffer in a subsequent suit. The settlement agreement stipulated, therefore, that Metroflight would sue Shaffer for Shaffer's alleged failure to secure appropriate insurance coverage, and if it recovered damages from Shaffer, Metroflight would then use the proceeds to repay the loans from Southern Marine and Argonaut. In effect, the insurance companies partially paid the claims and were subrogated to Metroflight's claim against Shaffer.
*706 II. Metroflight v. ShafferThe State Suit.
In February of 1977, Metroflight filed this action against Shaffer in state court. Metroflight based its lawsuit upon the following causes of action: (1) breach of duty by an agent for various omissions and errors; (2) breach of contract; (3) negligence; (4) breach of fiduciary duty; and (5) violation of the Texas Deceptive Trade Practices-Consumer Protection Act. Shaffer's three defenses on which the trial judge granted summary judgment included: (1) the election of remedies doctrine; (2) the two-year statute of limitations; and (3) Metroflight's lack of consumer status under the Deceptive Trade Practices Act. We address only the election of remedies question since that issue is dispositive of this case.
Metroflight asserts five arguments in support of its claim that the trial judge erred in holding that this suit was barred by the settlement in the federal suit: (1) the alleged inconsistent remedies in the federal and state suits do not arise from the same state of facts, and thus, the election of remedies doctrine is inapplicable; (2) Shaffer was not a party to the federal declaratory judgment action nor was he a party to the contract sought to be enforced therein; (3) the state suit, in contrast to the federal action, concerned the assertion of distinct causes of action against different persons arising out of different transactions; (4) Metroflight's election was not an informed election in view of Shaffer's misrepresentations; and (5) the election of remedies doctrine is an equitable doctrine which cannot be used to aid wrongdoers, such as Shaffer. We conclude, however, that the per curiam opinion of the supreme court in Lomas & Nettleton Co. v. Huckabee, 558 S.W.2d 863 (Tex.1977), is controlling here and necessitates an affirmance of the summary judgment on the ground that Metroflight's suit is barred by the settlement of the federal suit.
III. Lomas and Nettleton v. Huckabee.
The facts in Lomas & Nettleton v. Huckabee are analogous to the facts here, and since this case rests upon the Huckabee opinion, a discussion of Huckabee is necessary. Plaintiff Huckabee purchased a fire insurance policy from American States Insurance that covered loss to his realty as well as loss to his personal possessions. This policy was sent to Lomas & Nettleton, but they refused to accept the policy although funds were available in Huckabee's escrow account to pay the premium. Lomas & Nettleton returned the policy to American States for cancellation and then, through its own agent, purchased a fire insurance policy with Republic Insurance covering the realty but not Huckabee's personalty. Thereafter, a loss was sustained by fire; the insurance companies denied coverage, and Huckabee sued them. American States filed a third-party action against Lomas & Nettleton asserting that its policy was not in effect because Lomas & Nettleton had refused to accept it and that if it had any liability to Huckabee, it was entitled to be indemnified by Lomas & Nettleton. Huckabee settled with Republic Insurance for one-half of the loss sustained to the realty and dismissed Republic. Next, Huckabee settled with American States for another one-half of the loss to his realty, and for eighty percent of the loss to his personalty. The latter settlement was in the nature of a "loan" to Huckabee to be repaid only if Huckabee was successful in recovering against Lomas & Nettleton. After settlement, Huckabee dismissed American States with prejudice and then amended his petition to include Lomas & Nettleton, alleging that Lomas & Nettleton wrongfully refused to accept the tendered American States policy, and thus, was liable to Huckabee for the loss of his personalty. The trial court sustained a motion for summary judgment in favor of Lomas & Nettleton on the ground that by suing the insurance companies and accepting settlements, Huckabee had elected his remedy and was barred by the election of remedies doctrine from asserting a claim against Lomas & Nettleton for loss of his personalty. The Waco Court of Civil Appeals, Huckabee v. Lomas & Nettleton Co., 550 S.W.2d 371 *707 (Tex.Civ.App.Waco 1977), reversed on the ground that the election of remedies doctrine did not apply because the causes of action asserted against Lomas & Nettleton and American States were distinct causes of action arising out of independent transactions with different entities. 550 S.W.2d at 373.
The supreme court reversed the Waco Court of Civil Appeals and affirmed the trial court on the ground that the election of remedies doctrine applied. Lomas & Nettleton Co. v. Huckabee, 558 S.W.2d 863 (Tex.1977). The supreme court reasoned that the transactions were "interconnected as a part of the same effort by the Huckabees to secure insurance on their household personalty", and thus, the transactions between Huckabee and American States on the one hand, and between Huckabee and Lomas & Nettleton on the other, were not independent. 558 S.W.2d at 865. It was upon this analysis that the supreme court distinguished its opinion in Custom Leasing, Inc. v. Texas Bank & Trust Co., 491 S.W.2d 869 (Tex.1973). The supreme court's per curiam opinion in Huckabee concluded that Huckabee had pursued inconsistent and repugnant remedies; the suit and settlement with American States affirmed coverage, whereas, the suit against Lomas & Nettleton admitted non-coverage. In the present case, Metroflight asserted coverage in the federal court suit and obtained a substantial settlement in that suit. Under the Huckabee rationale, that assertion was inconsistent with this action against Shaffer for breach of his fiduciary duty and contract in failing to obtain the coverage requested by Metroflight. The same fact, insurance coverage, was both affirmed and denied by Metroflight. Consequently, under the rule in Huckabee, we must reluctantly characterize the two allegations as being inconsistent. Since the facts asserted in federal and state court were inconsistent, and since Metroflight received valuable consideration from their settlement agreement of the federal suit, we are constrained to hold that appellant is barred from suing Shaffer for failing to obtain the required insurance coverage. Lomas & Nettleton Co. v. Huckabee, 558 S.W.2d 863 (Tex.1977) (per curiam).
IV. Election of Remedies.
Our reluctance to follow Huckabee has prompted us to take a careful look at that decision and the election of remedies doctrine. Metroflight first points out that prior to Huckabee, the Texas Supreme Court emphasized that the scope of the election of remedies doctrine should not be broadened. In Custom Leasing, Inc. v. Texas Bank & Trust Co., 491 S.W.2d 869, 871 (Tex.1973), the court stated that "the doctrine of election of remedies is not a favorite of equity and that its scope should not be extended." The court has also referred to the election of remedies doctrine as "`a harsh, and now largely obsolete rule....'" Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377, 393 (1945), quoting Friederichsen v. Renard, 247 U.S. 207, 312, 38 S.Ct. 450, 452, 62 L.Ed.2d 1075, 1083 (1918). [Emphasis added].
Metroflight makes a strong argument that the traditional election of remedies doctrine should have no application to the present suit and asserts that neither the facts in this case nor the facts in Huckabee called for an application of that doctrine. It points out that an application of the election of remedies doctrine requires that there must actually exist two valid but inconsistent remedies, and the remedy in question must be inconsistent with the other previously invoked. White v. Bell, 290 S.W. 849, 851 (Tex.Civ.App.Waco 1927, writ ref'd); United States v. Oregon Lumber Co., 260 U.S. 290, 43 S.Ct. 100, 67 L.Ed. 261 (1922) (Brandeis, J., dissenting). It relies on Texas cases holding that the election of remedies doctrine "does not apply unless the claimant actually has two valid and available remedies at the time he makes his election." Poe v. Continental Oil & Cotton Co., 231 S.W. 717, 719 (Tex.Comm'n.App. 1921, jdgmt. adopted). Thus it is said that the claimant's "supposition that he had a particular remedy and his effort to enforce it is immaterial, and does not constitute an election, unless the remedy in fact existed." *708 Bandy v. Cates, 97 S.W. 710, 711 (Tex. Civ.App.1906, writ ref'd); see Schenck v. State Line Telephone Co., 238 N.Y. 308, 144 N.E. 592, 593 (1924) (per Cardozo, J.). The fact that a plaintiff may sue thinking that he has a remedy which in fact or in law does not exist, and therefore his suit fails, has been held not to be an election under the election of remedies doctrine. Linz v. Eastland County, 39 S.W.2d 599, 606 (Tex.Comm'n.App.1931, holding approved); Snow v. Alley, 156 Mass. 193, 30 N.E. 691, 692 (1892) (per Holmes, J.).
We recognize the force of the argument that if a plaintiff realizes in his first suit that he has no remedy, but accepts from a defendant a settlement based upon business considerations, as the insurance companies obviously did with Metroflight here, then the above rules should prevent the application of the election of remedies doctrine. From this point of view, it is immaterial that the plaintiff alleged inconsistent facts in his first suit if two inconsistent remedies did not actually exist. Schenck v. State Line Telephone Co., 238 N.Y. 308, 144 N.E. 592, 593 (1924) (per Cardozo, J.). For example, here it became apparent to Metroflight after pre-trial discovery in federal court that Shaffer's representations that the insurers had waived the pilot endorsement were untrue, and thus, there was no coverage under its policies. Consequently, no remedy actually existed under the policy, even though Metroflight received the benefit of the settlement. Likewise, we recognize that in Huckabee, the plaintiff mistakenly thought his policy covering his personalty was in effect and apparently discovered that this was not true after suit was filed and settled on the basis that both the plaintiff and the insurance company would pursue the real culprit.
From a policy viewpoint, Metroflight argues that the Huckabee decision is contrary to the general policy that the law should encourage settlement of disputes, and insists that the policy of encouraging settlements outweighs the policy considerations behind the procedural estoppel applied in Huckabee. Due to the uncertainty of litigation, we recognize the force of the argument that a party asserting inconsistent factual positions with respect to different parties should be permitted to effect a compromise of one of his claims, pursue the other to the extent of the difference, and then permit the settling defendant to be subrogated to the extent paid plaintiff. That course is not permitted by Huckabee as we understand it.
At the root of most cases applying the doctrine of the election of remedies is some element either of equitable estoppel or ratification. See generally Note, 11 Texas L.Rev. 218, 225 (1933); see also Hine, Election of Remedies, a Criticism, 26 Harv.L. Rev. 707, 708 (1913).[1] For an equitable estoppel to exist, of course, there must be detrimental reliance on the part of the party asserting it. See Seaman's Oil Co. v. Guy, 115 Tex. 93, 276 S.W. 424, 426 (1925). Ratification, in and of itself, is not the choice of a remedy although the choice of a remedy may be ratification. For example, a party may affirm a contract voidable for lack of capacity, without invoking any remedy whatever by ratifying the voidable contract. As Justice Cardozo observed, "Often what is spoken of in opinions as to a choice between remedies is in reality a choice of `an alternative substantive right.'" Schenck v. State Line Telephone Co., 238 N.Y. 308, 144 N.E. 592, 593 (1924), quoting U. S. v. Oregon Lumber Co., 260 U.S. 290, 307, 43 S.Ct. 100, 67 L.Ed. 261 (1922) (Brandeis, J., dissenting); see Annot., 6 A.L.R.2d 11, 23 (1949). Metroflight did not have two remedies available to it because there was no insurance coverage in view of the pilot endorsement. Thus, the traditional election *709 of remedies doctrine as recognized by the above authorities does not apply here or in Huckabee.
It should be pointed out that Huckabee is not based on the satisfaction rule enunciated in Bradshaw v. Baylor University, 126 Tex. 99, 84 S.W.2d 703, 705 (1935), and restated in Slay v. Burnett Trust, 187 S.W.2d at 393. The satisfaction doctrine is predicated upon the theory that it would be manifestly unjust to permit a plaintiff double recovery for a single loss. See Deal v. Madison, 576 S.W.2d 409, 419-20 (Tex.Civ. App.Dallas 1978, writ ref'd n. r. e.). In Huckabee, the supreme court did not even permit plaintiffs to recover the excess of their loss over the settlement they had received although the court of civil appeals had indicated that they could recover at least that amount.
V. Judicial Estoppel.
Neither can the Huckabee case be classified under the doctrine of judicial estoppel as ordinarily understood because the pleadings in the former suit were not under oath. The supreme court in Long v. Knox, 155 Tex. 581, 291 S.W.2d 292, 295 (1956) stated this doctrine as follows:
The doctrine of judicial estoppel is not strictly speaking estoppel at all but arises from positive rules of procedure based on justice and sound public policy. It is to be distinguished from equitable estoppel based on inconsistency in judicial proceedings because the elements of reliance and injury essential to equitable estoppel need not be present. "Under the doctrine of judicial estoppel ... a party is estopped merely by the fact of having alleged or admitted in his pleadings in a former proceeding under oath the contrary to the assertion sought to be made." [citations omitted; emphasis added.]
It has likewise been held that it is not necessary that the party invoking this doctrine have been a party to the former proceeding. This doctrine was developed in the nineteenth century in Tennessee and was predicated upon the rationale that parties should not misuse the judicial system by taking inconsistent positions under oath in different proceedings. It has also been referred to as estoppel by oath. See Note, 11 S.W.L.J. 96 (1957); see also Sartain v. Dixie Coal & Iron Co., 150 Tenn. 633, 266 S.W. 313, 316-18 (1924). Since the doctrine is based upon these considerations, a defense to the application of the doctrine is to show that the prior sworn pleadings were based upon mistake or fraud. Johnson Service Co. v. Transamerica Insurance Co., 485 F.2d 164, 174-75 (5th Cir. 1973). This basis for the doctrine of judicial estoppel is not present here since Metroflight did not allege coverage in the federal suit under oath, but made the assertions of coverage mistakenly under belief that the insurers were estopped from asserting the pilot endorsement.
VI. The Huckabee Rationale.
The apparent rationale of Huckabee is not election of remedies in the traditional sense of a choice between two inconsistent remedies arising from the same state of facts. Rather it seems to be a species of judicial estoppel based on the principle that a party should not be permitted to abuse the judicial process by obtaining one recovery based first on affirming a certain state of facts, and then another recovery based on denying the same state of facts. See generally Johnson v. Bingham, 251 S.W. 529, 535 (Tex.Civ.App.Galveston 1923), aff'd on other grounds, 265 S.W. 130 (Tex. Comm'n.App.1924, opinion adopted); Sartain v. Dixie Coal & Iron Co., 150 Tenn. 633, 266 S.W. 313, 318 (1924). According to Huckabee, since the purpose of the rule is not primarily to prevent unjust enrichment, it applies even though the sum of the two recoveries would not exceed the amount of the plaintiff's loss. Its purpose is to make sure that judgments are rendered upon an accurate determination of the facts, an objective that is thought to be frustrated if a litigant is encouraged to change his view of the facts from one lawsuit to the next. According to this rationale, if a plaintiff is permitted to recover judgment against one party on the basis of an affirmative finding *710 on a crucial fact issue and then reverses his position in order to recover another judgment based on a negative finding on the same issue, injustice has been done because one of the two fact findings must be wrong.
Huckabee also stands for the proposition that a settlement of the first claim is equivalent to a judgment. It assumes that just as a party ought not to be able to reverse his position on the facts after obtaining a judgment based on a particular allegation, neither should he be able to do so after he has obtained a settlement based on such an allegation. In each instance, he has obtained a benefit by using the judicial process to assert a particular factual premise, and if he subsequently obtains a judgment based on the opposite premise, that judgment would establish that the benefit first received was not one to which he was properly entitled. Acceptance of such a benefit seems to be regarded as equivalent to the oath ordinarily required for judicial estoppel.
Application of the Huckabee rule is illustrated by Aetna Life Ins. Co. v. Bocanegra, 572 S.W.2d 355 (Tex.Civ.App.San Antonio 1978, writ granted). Plaintiff in that case first filed a worker's compensation claim alleging a job related injury. She received compensation for this claim. She then sued under a group health insurance policy which only covered non-occupational injuries. The court ruled that the plaintiff was estopped to bring the second suit citing Huckabee. The court explained that the Huckabee rule lacked the elements of reliance and injury required for an equitable estoppel and was "more a matter in the nature of a positive rule of procedure based on manifest justice." 572 S.W.2d at 356.
Huckabee would not leave a party without remedy if he is genuinely uncertain about the existence of a crucial fact on which his rights depend. He may plead in the alternative under Rule 48 of the Texas Rules of Civil Procedure. Also, under Tex. R.Civ.P. 51, he may pray in the alternative for recovery against a second defendant in the event a crucial fact alleged in his claim against the first defendant is not true. He may then testify honestly concerning the facts as he understands them and accept whatever recovery the court allows after determining the true facts. In such a situation, unlike Huckabee and the present case, neither defendant is required to pay what a court ultimately determines he should not have been required to pay.
These considerations demonstrate that the election recognized in Huckabee is not an election between two inconsistent remedies available as a result of the same wrong (as an election between damages and restitution) or an election between two inconsistent rights arising simultaneously from different facts (as an election to take under a will property to which the devisee has an independent right). The inconsistency lies not in the remedy or in the right but in the allegation of facts on which both right and remedy depend. Consequently, under Huckabee, the parties to the successive suits may be different and the causes of action distinct, but the second suit is barred if the plaintiff must deny in the second suit a fact that he has affirmed in the first and has obtained a benefit from affirming. That fact here, as in Huckabee, is coverage of certain losses by certain policies of insurance.
This rationale for Huckabee may not be stated in detail in the per curiam opinion, but it must be considered in any proper evaluation of the decision in the light of authorities dealing with election of remedies. The soundness of the rule may be doubtful, and opposing policy arguments may be persuasive, but the decision must be taken as resolving the matter authoritatively for the purpose of this present case.
Affirmed.
NOTES
[1] The author made the following observation at the conclusion of his research on the election of remedies doctrine:
The result of this review of the operation and history of the doctrine may be summed up in this way: The modern rule of election of remedies is a weed which has recently sprung up in the garden of the common law, its roots stretching along the surface of obiter dicta but not reaching the subsoil of principle. The judicial gardeners through whose carelessness it has crept in should be able to eliminate it, or at least to prevent its further growth. 26 Harv.L.Rev. at 719.
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553 F.2d 97
Moorev.U. S.
No. 75-2343
United States Court of Appeals, Fourth Circuit
4/11/77
1
W.D.N.C.
AFFIRMED
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597 S.W.2d 589 (1980)
Gary HAMBLIN, Appellant,
v.
STATE of Arkansas, Appellee.
No. CR 80-33.
Supreme Court of Arkansas.
April 28, 1980.
*590 Barry J. Watkins, Springdale, for appellant.
Dennis R. Molock, Asst. Atty. Gen., Little Rock, for appellee.
FOGLEMAN, Chief Justice.
Appellant Gary Hamblin was found guilty of carnal abuse in the first degree, sentenced to five years' imprisonment and fined $1,000. His appeal is based upon three grounds: (I) The alleged victim, Rosanna Marie Richardson (sometimes called Rosie and sometimes Marie) was incompetent to testify; (II) The trial court erred in admitting a record of a motel registration into evidence; and (III) The court erred in denying appellant's motion to strike the testimony of Gordon Ostberg, the owner of the motel at which the offense allegedly occurred. We find no reversible error and affirm.
I
The alleged victim was Marie Richardson, who was 13 years of age at the time of the trial, which was about three months after the alleged offense. She had only completed the sixth grade in school.
Appellant's argument that this little girl was incompetent to testify is not based upon her capacity to understand the solemnity of an oath or to comprehend the obligation it imposes. Her qualifications in this respect were well established. Appellant does contend, however, that the trial judge abused his discretion in holding that Marie was qualified in the sense that she was able to receive and retain accurate impressions to the extent that, when testifying, she had the capacity to transmit to the jury a reasonable statement of what she had seen, felt or heard. Appellant bases his argument upon these facts: In response to a question by the trial judge, after having said that she lived with her mother in Springdale, she said that she did not know the address and later, on cross-examination, her admission that she was not living with her mother conflicted with her earlier answer. She answered that she did not know how long she had lived in Springdale. Although she testified that she knew what sexual intercourse was, she was unable to tell the court what it was until the key phrase, "penis in your vagina," was implanted in her mind by a question asked by a deputy prosecuting attorney during an in camera hearing on the question of the competency of the witness; but, even though she was able to give the trial judge a statement about the alleged offense using the prosecutor's words, when she returned to the courtroom, she failed to respond to a question about the event in the same words, having said, "Well-uh, he stuck his penis in my___gavina, or whatever." There were 57 instances in which she failed to answer questions propounded to her, most of which concerned questions pertaining to what allegedly happened between her and appellant in a motel room and some of them were asked after the trial judge had questioned the witness in camera in the absence of the attorneys for both sides.
If the facts relied upon by appellant were all the record disclosed, we might well agree with appellant that the trial judge had abused his discretion in holding that the witness was competent.
*591 After Marie had failed to answer questions by a deputy prosecuting attorney, most of which called upon her to identify appellant or to tell what had happened after she had gone to a motel room with appellant, the trial judge questioned her. After she had failed to respond to inquiries by the trial judge about the meaning of the words sexual intercourse and about her being nervous or scared, the judge held the hearing in camera. At first, Marie either nodded her head affirmatively or failed to respond to questions by the trial judge, but she gave affirmative answers to questions by a deputy prosecuting attorney whether she knew what a penis was and what a vagina was and stated that "guys" had the former and "women" the latter. Thereafter, she again failed to give any response to the judge's questions as to what had happened, told the judge she could not answer the questions, and acknowledged that she remembered talking to the deputy prosecuting attorney and telling him the whole story and all details. She would not respond when asked why she could not again tell the details and whether she was afraid of appellant. She finally answered leading questions by saying that she was not answering questions because she was afraid of appellant, but that this was not the only reason; she was also embarrassed and shy. She then said that she could and would go back into the courtroom and answer the questions from the stand, but when she was asked by the trial judge to tell what happened in the motel room, after saying that she and appellant took off their clothes and got in bed, she hesitated until the judge persisted with the question and received the response that they had had intercourse, but she would not be more specific. After persistent questioning by a deputy prosecuting attorney, she gave an affirmative answer to the leading question, "Did he place his penis in your vagina?" Upon further inquiry by the trial judge, she again answered that she was afraid and that she did not want to testify. When the judge asked if she was bothered by too many people and she responded by nodding her head affirmatively, she agreed to tell the judge what happened, if everyone else except the court reporter left the room. When they did, she promptly told the judge that "he" stuck his penis in her vagina. When the judge inquired whether anyone had threatened her, she first failed to respond, but answered when the judge asked whether it was appellant or any of his friends, saying that appellant and two others had told her on the night "this all happened" that they were going to kill her if she told anyone. She then promised that she would answer questions truthfully when they returned to the courtroom. The judge then called the attorneys back into his chambers, advised them what had occurred during their absence, ruled that the witness was competent and advised the attorneys that he felt that the witness was in fear but that she freely loosened up when not crowded by too many people. Thereafter, the witness responded rather readily to questions, although the trial court permitted several leading questions on direct examination. On cross-examination, Marie answered that she was living in a foster home in Alma and not really living with her mother in Springdale.
The trial court has broad discretionary powers in determining the competency of a witness and we do not reverse its ruling in the exercise of that discretion unless there is manifest error or a clear abuse has been demonstrated. Williams v. State, 257 Ark. 8, 513 S.W.2d 793; Allen v. State, 253 Ark. 732, 488 S.W.2d 712; Ray v. State, 251 Ark. 508, 473 S.W.2d 161. We find no manifest error. In view of the immaturity of the witness, her shyness, the natural embarrassment of a young female to discuss an event of this nature in the presence of a number of people, most of whom were male, and her testimony about her fear because of threats she said had been made, we are unable to say that there was any abuse of discretion. In view of the seriousness of the crime and the necessity for testimony of the victim in order to avoid the possibility that an accused might escape punishment for a serious offense simply because of the victim's having been put in fear, the trial judge is to be commended for *592 his patience and searching inquiry in making his determination.
The use of leading questions was permissible in this case, in the discretion of the trial judge. It is always in the sound discretion of the trial judge to permit a witness to be asked leading questions on direct examination. Bullen v. State, 156 Ark. 148, 245 S.W. 493. In cases involving very young females, who are alleged to have been victims of crimes of this nature, this court will not disturb the action of the trial judge in permitting leading questions to be asked by the prosecution, if it appeared to him to be necessary to elicit the truth, unless his discretion has been abused. Crank v. State, 165 Ark. 417, 264 S.W. 936. See also, West v. State, 209 Ark. 691, 192 S.W.2d 135. The youth, timidity and ignorance of the witness are important factors militating against the finding of an abuse of discretion. Murray v. State, 151 Ark. 331, 236 S.W. 617.
II
Appellant says that there was error in the admission of a Flamingo Motel registration card for Room 40 dated February 21, 1979, the date of the alleged offense, emphasizing the fact that this was the only evidence, other than that of the alleged victim, tending to connect him with the Flamingo Motel on that date. On appeal, appellant asserts these deficiencies: insufficiency of the foundation laid for the introduction of this exhibit; absence of any evidence that he had signed the card; absence of any testimony that either he or the victim were in the room for which the registration form was executed; lack of evidence of the identity of the person who gave the information shown on the exhibit; the handwriting on the exhibit being garbled as to prevent accurate reading of the surname of the purported registrant.
There is no contention here, and there was none in the trial court, that the exhibit itself was hearsay. There was no objection in the trial court based upon the failure of the state to identify the person furnishing the information on the card. We will not consider objections made for the first time on appeal. Parker v. State, 266 Ark. (1979), 582 S.W.2d 34. The objection made in the trial court was lack of relevancy. There is no merit in that objection unless there is merit in the further objection made in the trial court that there was no indication that appellant signed the exhibit.
At the outset, we should say that we do not agree with appellant as to the legibility of the handwritten name on the exhibit. The first name is plainly Gary. The surname could easily be read as Hamblin. It could possibly be read as Hanblin, but we do not think that this fact renders the trial judge's ruling on relevancy erroneous. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence more or less probable than it would be without the evidence. Ark.Stat.Ann. § 28-1001, Rule 401 (Repl.1979). We do not reverse a ruling on relevancy unless we find an abuse of the trial court's discretion in the matter. Arkansas Power & Light Co. v. Johnson, 260 Ark. 237, 538 S.W.2d 541; Fulwider v. Woods, 249 Ark. 776, 461 S.W.2d 581; Higdon v. State, 213 Ark. 881, 213 S.W.2d 621; Turner v. State, 192 Ark. 937, 96 S.W.2d 455.
The alleged victim testified that she and appellant went to a room in the Flamingo Motel in Springdale and spent the night there. She said that there was one bed in the room and that the walls were green. Gordon Ostberg, the owner and manager of the motel, identified the exhibit as a registration slip from his motel. It bore the name Flamingo Motel in capital letters across the top. He stated that such a registration slip is filled out whenever a room is rented at the motel and that the procedure is for the party renting the room to fill out the upper part of the registration card, which includes the name and address of the registrant. He said that, when he found that it showed only one occupant, he went to the room and asked the occupant to pay an additional $2, plus tax, for the additional occupant, whom he described as a young lady with stringy hair and a speech impediment, *593 which he described as a slurring of the speech. Ostberg said that a red fourdoor automobile was parked in front of the room. The registration card shows an alteration in that the figures $14.42 are superimposed over $12.36 as the total paid for the room.
The foundation for the admission of this exhibit was not deficient in the respects covered by appellant's objection. We are unable to say that the exhibit had no relevance.
III
Relying upon Ark.Stat.Ann. § 28-1001, Rule 602 (Repl.1979), appellant contends that Ostberg was incompetent because he was never shown to have personal knowledge of the matter about which he testified. Appellant says that Ostberg could not identify him or Miss Richardson and was not even asked to do so, and that Ostberg never identified the room to which he went to collect the additional rent. Ostberg did not undertake to testify to facts about which he had no knowledge. His entire testimony purported to be the relation of facts that he knew, and there is no indication that he attempted to relate anything he did not know. While he did not say he went to Room 40, he did say that he went to the room when he noted that only one occupant was registered and he related actions there which had been related by Marie Richardson. There was sufficient circumstantial evidence for the jury to find that the room was Room 40.
Appellant did not abstract any motion to strike the testimony of this witness. The only motion we find is one made at the conclusion of the state's evidence and after appellant's motion for a directed verdict had been denied. The arguments made in support of this motion would certainly be inappropriate considerations in weighing the evidence but would not make it inadmissible.
The motion to strike came late, having been made after the witness had left the stand and had been excused from the trial, without any objection having been made by appellant to this action. In those circumstances, the granting or denial of the motion lies entirely within the discretion of the trial judge. Arkansas State Highway Com'n. v. Stallings, 248 Ark. 1207, 455 S.W.2d 874; Phelan v. Bonham, 9 Ark. 389. There could be no abuse of discretion under these circumstances, particularly when we find objections, earlier made by appellant, to be without merit.
The judgment is affirmed.
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76 U.S. 387 (____)
9 Wall. 387
BUSHNELL
v.
KENNEDY.
Supreme Court of United States.
*389 Mr. Durant, in support of the order below.
Mr. Ashton, contra.
*390 The CHIEF JUSTICE delivered the opinion of the court.
That the indebtedness of Bushnell to Mills & Frisby was a chose in action cannot be doubted; for under that comprehensive description are included all debts and all claims for damages for breach of contract, or for torts connected with contract. Nor can it be denied that every suitor who brings an action in a court of the United States must aver in his pleadings a state of facts which, under the National Constitution and laws, gives to the court jurisdiction of his suit.[*]
In the case before us the suit was brought in the State court, where no question of jurisdiction, founded upon citizenship, could arise. In that court, therefore, there was no necessity for any averment in respect to citizenship. But under the 12th section of the Judiciary Act, any defendant, being a citizen of another State than the plaintiff or petitioner, is entitled, upon application at the proper time, to have his cause removed to a Circuit Court of the United States; and in the case under consideration, the defendant filed his petition, averring the requisite facts as to his own citizenship and the citizenship of the petitioners, and, thereupon, obtained an order for removal.
*391 The order was, doubtless, rightly made. The jurisdiction of the cause was regularly transferred to the Circuit Court, and the cause stood in that court as if brought there by original process. The jurisdiction thus acquired by the Circuit Court was in no sense appellate. Removal, under our peculiar system of State and National jurisdictions, is simply a mode in which the right to resort under certain circumstances to the latter rather than the former is secured to defendants as well as plaintiffs.
Two questions, then, arise in this cause:
(1st.) Whether the 11th section of the Judiciary Act applies to a suit instituted by the assignees of such a chose in action as is shown in the pleadings? and
(2d.) Whether valid objection can be taken to jurisdiction of such a suit when removed to the Circuit Court by the defendant under the 12th section.
Upon the first question, it may be observed that the denial of jurisdiction of suits by assignees has never been taken in an absolutely literal sense. It has been held that suits upon notes payable to a particular individual or to bearer may be maintained by the holder, without any allegation of citizenship of the original payee; though it is not to be doubted that the holder's title to the note could only be derived through transfer or assignment.[*] So, too, it has been decided, where the assignment was by will, that the restriction is not applicable to the representative of the decedent.[] And it has also been determined that the assignee of a chose in action may maintain a suit in the Circuit Court to recover possession of the specific thing, or damages for its wrongful caption or detention, though the court would have no jurisdiction of the suit if brought by the assignors.[] And it has recently[§] been very strongly argued that the restriction applies only to contracts "which may be properly said to have *392 contents;" "not mere naked rights of action founded on some wrongful act, some neglect of duty to which the law attaches damages, but rights of action founded on contracts which contain within themselves some promise or duty to be performed."
And this view of the restriction seems to be warranted by the consideration of the mischief which it was intended to prevent. Not a little apprehension was excited at the time of the adoption of the Constitution in respect to the extent of the jurisdiction vested in the National courts; and that apprehension was respected in the Judiciary Act, which soon afterwards received the sanction of Congress. It was obvious that numerous suits, by assignees, under assignments made for the express purpose of giving jurisdiction, would be brought in those courts if the right of assignees to sue was left unrestricted. It was to prevent that evil and to keep the jurisdiction of the National courts within just limits that the restriction was put into the act.
This view has the sanction of Chief Justice Marshall, who, in the case of the Bank of the United States v. The Planters' Bank of Georgia,[*] used this language: "It was apprehended that bonds and notes given in the usual course of business, by citizens of the same State to each other, might be assigned to the citizens of another State, and thus render the maker liable to a suit in a Federal court."
And when it is remembered what class of actions it is, which, upon the principles of the common law, can be maintained by an assignee in his own name, it may well be admitted that it would not have been an unreasonable construction of the restriction if it had been applied only to notes, bonds, and other written contracts, containing promises to pay money, upon which an assignee could sue without using the name of the assignor. Of such contracts, certainly, it may with more propriety be said that they have "contents," than of claims for damages arising either from torts or from breaches of contracts.
*393 It is true that at an earlier day a different construction was given to it. In Sere v. Pitot,[*] it was held that an assignee, by act of the law, as the general assignee of the effects of an insolvent, could not sue in the Circuit Court unless the insolvent himself might sue. It is not easy to reconcile this opinion with the later judgments; but it is not necessary now to determine definitely the true construction of the restriction, as we think that the jurisdiction of the Circuit Court over the cause before us can be well supported on the 12th section. That section, as we have already stated, provides for the removal of suits by defendants. The restriction in the 11th section is not found in the 12th. Nor does the reason for the restriction exist. In the 11th section its office was to prevent frauds upon the jurisdiction, and vexation of defendants, by assignments made for the purpose of having suits brought in the name of assignees, but in reality for the benefit of assignors. In the 12th it would have no office, for the removal of suits could not operate as a fraud on jurisdiction, and was a privilege of defendants, not a hardship upon them.
It is true, indeed, as was said in argument, that the section provides that after removal "the cause shall then proceed in the same manner as if it had been brought by original process;" but we cannot recognize the validity of the inference that the defendant, before pleading in the Circuit Court, may move to dismiss the suit for want of jurisdiction. This construction would enable the non-resident defendant in a State court to remove the suit against him into a Circuit Court, and then, by a simple motion to dismiss, defeat the jurisdiction of both courts. Such a construction, unless imperatively required by the plain language of the act, is wholly inadmissible. And it is clear that the language of the act does not require it. Its plain meaning is that the suit shall proceed, not that it shall proceed unless the defendant moves to dismiss. The defendant is not in court against his consent, but by his own act, and the suit is to proceed as if brought *394 by original process, and the defendant had waived all exception to jurisdiction, and pleaded to the merits. Under the 11th section the exception to jurisdiction is the privilege of the defendant, and may be waived; for the suit is still between citizens of different States, and the jurisdiction still appears in the record. The first act of the defendant, indeed, under the 12th section, is something more than consent, something more than a waiver of objection to jurisdiction, it is a prayer for the privilege of resorting to Federal jurisdiction, and he cannot be permitted afterwards to question it.[*]
We cannot doubt, therefore, that the Circuit Court had jurisdiction of the case under consideration. We are all of opinion that the court erred in remanding the cause to the jurisdiction of the State court, and the order to that effect must be
REVERSED.
NOTES
[*] Turner v. Bank of North America, 4 Dallas, 8.
[*] Bullard v. Bell, 1 Mason, 259 (1817); Bank of Kentucky v. Wister, 2 Peters, 321 (1829).
[] Chappedelaine v. Dechenaux, 4 Cranch, 308 (1808).
[] Deshler v. Dodge, 16 Howard, 631 (1853).
[§] Barney v. Globe Bank, 2 American Law Register, N.S., 229 (1862).
[*] 9 Wheaton, 904 (1824).
[*] 6 Cranch, 332.
[*] Sayles v. Northwestern Insurance Co., 2 Curtis, 212.
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Garza
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-90-281-CR
RUBEN GARZA,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. 105,385, HONORABLE TOM BLACKWELL, JUDGE PRESIDING
Ruben Garza appeals his conviction on two counts of aggravated sexual assault of
a child, Tex. Penal Code Ann. § 22.021 (1989), charges to which he pled not guilty. He brings
forward two points of error: (1) that the admission into evidence of the child's "outcry" statement
violated appellant's constitutional rights of confrontation and due process of law; and (2) that the
child's "outcry" statement pertained to an inadmissible extraneous offense and was thus
improperly admitted into evidence. We will affirm the judgment of the trial court.
BACKGROUND
Appellant was convicted of the aggravated sexual assault of the victim, a child of
two to three years. Appellant resided with Martha Guzman and her three children, of whom the
victim was the youngest. The evidence adduced at trial was that, on two separate occasions,
appellant sexually assaulted the child. On the first occasion, the appellant was seen lying naked
on a bed with the child, also naked, straddling his midsection. Testimony was that appellant was
in a sexually aroused state and that he was using the genital area of the child to masturbate
himself. The second sexual assault occurred at a swimming pool where appellant was observed
seated in a baby pool with his finger inserted into the child's vagina.
John Sanchez, the victim's eighteen-year-old cousin, provided eyewitness testimony
as to both assaults. Ociel Carrillo, the victim's uncle, also testified at trial. In addition, Kimberly
Harmon, an employee of the Department of Human Services ("DHS"), recounted her interview
with the victim, during which the child made the outcry statement. Before Harmon testified,
appellant's counsel requested that the jury be excused while he took the witness on voir dire. At
the conclusion of this examination, the trial court found Harmon's account of the victim's outcry
statement admissible. Appellant's counsel then objected to the introduction of the outcry statement
on the basis that it was hearsay and that it lacked the traditional indicia of reliability. Further, his
objection alleged that the appellant's constitutional rights of confrontation and due process would
be abridged by admission of the statement. Finally, defense counsel's objection asserted that the
outcry statement referred to extraneous offenses. The trial court overruled appellant's objection
in its entirety. When the jury returned, Harmon's testimony resumed and the victim's outcry
statement was introduced into evidence. The jury eventually found the appellant guilty of
aggravated sexual assault of a child and the trial court sentenced him to twenty-five years in prison
for each count.
ADMISSION OF THE VICTIM'S OUTCRY STATEMENT
In his first point of error, appellant takes issue with the trial court's decision to
admit into evidence the victim's outcry statement. He argues that by admitting the hearsay
statement, the court denied him his constitutional (1) right to confront the witness. The appellant
argues that because the State chose not to call the child as a witness, he faced a "Hobson's choice"
of invoking the jury's wrath for putting the extremely young child through the rigors of
examination, or foregoing any confrontation. He asserts that this "choice" violates the due
process of law.
The trial court's decision to admit the outcry statement was not arbitrary. The
court specifically referred to article 38.072 of the Code of Criminal Procedure in which the
legislature has outlined the requirements for the introduction of outcry statements made by child
victims of sexual abuse, statements that might otherwise be inadmissible hearsay. See Tex. Code
Crim. Proc. Ann. § 38.072 (Supp. 1992). Our determination of whether the trial court properly
admitted the statement begins with an examination of the statute, which provides in part that
(b) A statement . . . is not inadmissible because of the hearsay rule if:
(1) on or before the 14th day before the date the proceeding begins, the party
intending to offer the statement:
(A) notifies the adverse party of its intention to do so;
(B) provides the adverse party with the name of the witness through whom it
intends to offer the statement; and
(C) provides the adverse party with a written summary of the statement;
(2) the trial court finds, in a hearing conducted outside the presence of the jury,
that the statement is reliable based on the time, content, and circumstances of the
statement; and
(3) the child testifies or is available to testify at the proceeding in court or in any
other manner provided by law.
Id. This statute has been found to be constitutional on its face. See Buckley v. State, 786 S.W.2d
357, 359-60 (Tex. Crim. App. 1990). In light of this decision, any successful constitutional
challenge to the statute must focus upon its application to the time, circumstances, and contents
of this particular statement. Thus our immediate task is to determine whether the child's outcry
statement was admitted at the expense of the appellant's constitutional rights.
In making this determination, we are aided by the court of criminal appeals'
specific guidance in evaluating the constitutionality of outcry statements admitted pursuant to
article 38.072. In Holland v. State, 802 S.W.2d 696 (Tex. Crim. App. 1991), the defendant
contended that article 38.072 was unconstitutional because it allowed the admission of a child's
out-of-court declaration without requiring the State to call the child to the stand, denying him his
Sixth Amendment right to confront the witness, the "Hobson's choice" argument that Ruben Garza
is now advancing.
The court of criminal appeals acknowledged that
in some instances such a statute can in fact operate either to deprive an accused of
his constitutional right to confront the out-of-court child declarant, or to compel
him to call the child to the stand himself in order to attain that right, in violation
of due process and due course of law. In this event the statute would be
unconstitutional in application.
Holland, 802 S.W.2d at 699 (citations omitted). Nevertheless, the court affirmed Holland's
conviction because the defendant had not objected to the outcry statement on either confrontation
or due process grounds. Thus no error was preserved for the appellate court's review.
In Holland, the court of criminal appeals carefully set forth the proper procedure
for admitting a child's out-of-court statement without offending the constitutional rights of the
accused:
When the State proffers an out-of-court statement of a child witness pursuant to
Article 38.072, supra, it is incumbent upon the accused to object on the basis of
confrontation and/or due process and due course of law. At that point the State can
respond by following either one of two courses. First the State can announce its
intention to call the child declarant to the stand to allow confrontation without the
accused having to call the child to the stand himself. Alternatively the State can
make a showing both that 1) the out-of-court statement is one that is reliable under
the totality of the circumstances in which it was made, which Article 38.072
§ 2(b)(2) already requires; and 2) use of the out-of-court statement in lieu of the
child's testimony at trial "is necessary to protect the welfare of the particular child
witness" in that particular case. If the State follows either of these two courses,
the accused's objection on confrontation grounds should be overruled. Otherwise,
the confrontation objection is a valid one and should be sustained, irrespective of
whether the State has satisfied all of the statutory predicate for admissibility of
hearsay under Article 38.072, supra.
Id. at 699-700 (citations omitted). This language provides the necessary guidance for detecting
an improper application of article 38.072 in the instant cause.
The record indicates that appellant objected during the voir-dire examination to the
introduction of the victim's outcry statement and that his objection specifically addressed
perceived denials of due process as well as the denial of the right to confront and cross-examine
the witness.
After the appellant properly objected, the State had only two constitutionally
permissible courses of action: (1) to call the witness to the stand, or (2) to show that the statement
was reliable and that its use was necessary to protect the welfare of this particular child witness.
The record reveals that the State did not call the child to the witness stand. Therefore, the State
was required to show that the victim's statement was reliable under the totality of circumstances
and that use of the out-of-court statement in lieu of the child's testimony at trial was necessary to
protect this particular child's welfare. (2) At the conclusion of the voir dire examination, the trial
court explicitly found the outcry statement was reliable, but the record is devoid of any showing
that use of the outcry statement was necessary to protect the child's welfare. The trial court erred
by not following the constitutionally mandated procedure set forth in Holland for admitting an out-of-court statement pursuant to article 38.072 over appellant's objection that it violated his right
to confrontation and due process of law.
HARM ANALYSIS
To the extent that the outcry statement was admitted without the requisite showing
of necessity, error was committed. The appellant's constitutional right to confront the witness was
adversely affected. This is not to say, however, that this error, admittedly of constitutional
proportion, necessarily compels reversal. Not all constitutional violations amount to reversible
error. Satterwhite v. Texas, 486 U.S. 249, 256 (1988); Boulware v. State, 542 S.W.2d 677, 679
(Tex. Crim. App. 1976), cert. denied, 430 U.S. 959 (1977). To determine whether reversal is
required, it is necessary for a reviewing court to apply a harm analysis.
This process begins with Texas Rule of Appellate Procedure 81(b)(2). (3) The court
of criminal appeals has enunciated particular factors to be used in assessing the effect of error so
as to maintain the integrity of the judicial process leading to a conviction: (1) the source and
nature of the error, (2) the extent to which the State emphasized the error; (3) the probable
collateral implications of the error; (4) the weight that a juror would probably place on such an
error; and (5) the likelihood that the State would repeat the error should it be declared harmless.
Harris v. State, 790 S.W.2d 568, 587-88 (Tex. Crim. App. 1989). When using the Harris
analysis to measure the effect of the error in this case, we conclude that its effect does not require
reversal.
We begin by first identifying the source and nature of the error at issue. The
improper admittance of the outcry statement, absent a showing of necessity to protect the child's
welfare, served to infringe upon appellant's right of confrontation. But the existence of
constitutional error does not in and of itself necessitate characterizing such error as harmful.
"Some constitutional violations, by their very nature cast so much doubt on the fairness of the trial
process that, as a matter of law, they can never be considered harmless. Sixth Amendment
violations that pervade the entire proceeding fall within this category." Satterwhite, 486 U.S. at
256 (emphasis added). It stands to reason, therefore, that those Sixth Amendment violations
which do not pervade the entire trial may not rise to the level of reversible error. At the time of
trial, the State did not have the benefit of Holland's directive to make an explicit finding that the
use of the child's outcry statement was necessary to protect this particular child, who was two and
a-half years old at the time of the alleged assaults, three and a-half at the time of the outcry
statement, and four years old at the time of trial. The exceedingly young age of the child weighs
heavily in favor of such a finding had the court addressed this issue. Because the outcry statement
was only a small component of the State's case-in-chief, we conclude that the confrontation
violation did not pervade the entire trial and did not cast doubt on the fairness of the trial process.
Nor does the record reveal the State's heavy emphasis upon this outcry statement.
John Sanchez, the victim's cousin, provided eyewitness testimony as to both assaults. In addition,
the victim's uncle, Ociel Carrillo, provided additional testimony concerning the child's
reenactment of the sexual assaults. In determining whether error is harmless, we are not to focus
exclusively upon the weight of the other evidence of guilt, but we are not to overlook it
completely because "overwhelming evidence can be a factor to be considered." Harris, 790 at
S.W.2d 587-88; see also Idaho v. Wright, 110 S. Ct. at 3150-51 (in which the Court suggests that
corroborating evidence of the truth of an improperly admitted hearsay statement may be
considered in determining if the error was harmless). In final argument, even appellant's counsel
stated. "[I]t kind of all comes down to John Sanchez and whether or not what he said is
believable, whether it is consistent, whether it ties in with other evidence that we have, such as
it is." In applying the second prong of the Harris test to the record as a whole, we cannot say that
the State emphasized the evidence admitted in error.
Harris requires that we next consider the probable collateral implications arising
from the error. The immediate implication is simply that, when interviewed, the child provided
a DHS employee with an account of events suggesting that a sexual assault took place and
identified appellant as the perpetrator. Neither the child's outcry statement nor Harmon's
testimony adds unique or novel incriminations of the appellant; John Sanchez' testimony had
already "set the stage" in that regard. Furthermore, testimony echoing the "in-and-out"
demonstrative testimony using dolls was admitted without objection when the victim's uncle, Ociel
Carrillo, testified that in his presence the child had repeatedly stabbed her doll in the vagina with
a pencil, simultaneously calling out the name "Ruben":
And I was laying there watching TV with the kids, but I could kind
of see her in the corner of my eye. And then something caught my
attention and she said the name Ruben and I kind of -- you know,
it caught my attention.
And I raised my head up and I looked back toward her, but she was
slightly turned where she couldn't see me looking at her. And then
she had a Barbie doll in her hand and she was holding it by one leg,
and she had a pencil in the other and she started to stab it in the
vagina area.
And at the same time, she was saying "Ruben, Ruben, Ruben." She
said that three times.
Compare Carrillo's testimony with the most offensive part of the outcry statement
related by Harmon:
And she had taken the index finger of the doll and put it inside the
vagina. And I remember asking her,"Are you putting it inside or
outside?" and all she kept doing was taking it in and out, in and out,
in and out.
Because Carrillo's testimony was admitted without objection, appellant cannot complain that
admission of the child's outcry statement to Harmon compels reversal in this cause. See Banks
v. State, 643 S.W.2d 129, 134 (Tex. Crim. App. 1983); Sierra v. State, 482 S.W.2d 259, 262
(Tex. Crim. App. 1972). The jury had already heard testimony that Rosemary reenacted a sexual
assault using a doll and that she identified Ruben Garza with the act.
At most, the erroneously-admitted testimony confirmed the uncle's testimony and
John Sanchez's eyewitness accounts of two sexual assaults. In Idaho v. Wright, after holding that
corroborating evidence of the truth of a hearsay statement may not be considered in determining
whether the statement possesses sufficient trustworthiness to satisfy the Confrontation Clause, the
Supreme Court suggested that such evidence may properly be considered in a harmless-error
analysis: "[W]e think the presence of corroborating evidence more appropriately indicates that any
error in admitting the statement might be harmless, rather than that any basis exists for presuming
the declarant to be trustworthy." 110 S. Ct. at 3150, citing Dutton v. Evans, 400 U.S. 88, 90
(1970) (plurality opinion). (4)
A far different implication might arise where a child's outcry statement is the sole
vehicle by which the State brings charges against an accused. In that event, the erroneously-admitted testimony would constitute the sole damning evidence and the implications arising from
its admission would assume far greater significance. This is not the situation today, however,
where such similar testimony has been admitted without objection. We cannot say that the
collateral implications in this cause compel reversal.
Our next concern is determining how much weight a juror would place on the
erroneously-admitted testimony. By virtue of the error, the State conceivably benefitted from the
jury's exposure to the outcry statement. But in light of the incriminating testimony of John
Sanchez, who observed appellant sexually assaulting the child on two separate occasions, and the
reenactment testimony of Ociel Carrillo, our belief is that the influence, if any, which the jury
may have attached to the erroneously-admitted outcry statement does not weigh so heavily as to
compel reversal.
Lastly, Harris requires us to ask whether declaring the error harmless would
encourage the State to repeat the error with impunity. We answer that question in the negative.
This is not a situation in which either the State or the trial court consciously ignored the plain
dictates of the law. At the time of trial the State did not have the benefit of the guidelines set forth
in Holland. (5) The court of criminal appeals has now provided clear and succinct guidance
concerning the proper procedures to be employed when introducing outcry statements of victims
of sexual assaults. We are confident that the State will heed these guidelines in the future.
Having acknowledged the presence of error and having utilized the Harris analysis
to detect no harm emanating from that error, we conclude beyond a reasonable doubt that the
error did not contribute to the conviction. Appellant's first point of error is overruled.
ADMISSIBILITY OF EXTRANEOUS OFFENSES
In his second point of error, the appellant complains that the admission of the
victim's outcry statement was error because it contained references to extraneous offenses. We
disagree. Assuming that the statement did contain references to such offenses, we believe that it
would still be admissible under an exception to the general bar against evidence of extraneous
offenses.
The general rule is that an accused may not be tried for a collateral crime or for
being a criminal generally. Williams v. State, 662 S.W.2d 344, 346 (Tex. Crim. App. 1983).
This rule prevents the admission of evidence of an extraneous offense unless an exception to the
rule applies. Meyers v. State, 737 S.W.2d 6, 9 (Tex. App. 1987, no pet.). For years Texas has
recognized such an exception for cases "involving abnormal sexual conduct by a father, or one
in a position of locus parenti toward a young daughter." Williams v. State, 490 S.W.2d 604 (Tex.
Crim. App. 1973). The continuing vitality of this exception was again demonstrated in Boutwell
v. State, 719 S.W.2d 164, 178 (Tex. Crim. App. 1985) ("[W]e continue to recognize a narrow
exception for sex offenses to permit admission of similar extraneous sex offenses which occurred
between the minor complainant and the accused.") (emphasis in original). Thus the introduction
of the outcry statement, to the extent that it may have injected evidence of extraneous offenses,
was not error. Appellant's second point is overruled.
CONCLUSION
It was error to admit the outcry statement without the procedures required to
guarantee appellant's constitutional rights to confrontation and due process. However, this error
did not rise to a level of harm sufficient to compel reversal in this case. The judgment of the trial
court is affirmed.
Bea Ann Smith, Justice
[Before Justices Powers, Jones, and Smith, B.A.]
Affirmed
Filed: January 15, 1992
[Publish]
1. Though appellant's first point of error speaks in terms of "Constitutional" rights, it does
not specify the particular source(s) of those rights. When briefing constitutional issues,
attorneys should separate federal and state issues into separate points of error and provide
argument or analysis upon each ground. See McCambridge v. State, 712 S.W.2d 499, 501
n.9. (Tex. Crim. App. 1986). Failure to do so risks having the appellate court treat the
ambiguous point as multifarious, thus offering nothing for review. Id.
Appellant's trial objection referenced both the federal and state constitutions, but
appellant has not argued that the protections afforded under the Texas constitution are more
expansive. Thus we decline to address that issue. Instead, our analysis proceeds upon the
assumption that it is a violation of appellant's right under the Sixth Amendment of the federal
constitution that is at issue.
2. The two prongs of the procedure mandated in Holland, a showing of reliability and a
showing of necessity, can be traced to two companion cases in which the Supreme Court
addressed the requirements of satisfying the Confrontation Clause in cases involving the child
victims of sexual assault. In Maryland v. Craig, 110 S. Ct. 3157, 3169 (1990), a case
involving testimony of the child via one-way closed circuit television, the Court recognized the
State's interest in protecting child witnesses from the trauma of testifying in a child abuse case
as sufficiently important to justify the use of this special procedure. The Court went on to find
that a child accuser could be shielded from confrontation with the defendant, without violating
the Sixth Amendment, but only if the State made a specific showing that such a procedure was
necessary to protect this particular witness, not from the general trauma of the courtroom but
from the trauma of facing the defendant. Id. at 3167.
In Idaho v. Wright, 110 S. Ct. 3139, 3149-50 (1990), the Court held that the admission
of hearsay statements of a child abuse victim of virtually the same age as the victim in the
present case violated the Confrontation Clause. We note that in Wright the defense and the
prosecution agreed that the child was so young as to be "unavailable," and therefore the Court
assumed without deciding that the child's age made her an unavailable witness within the
meaning of the Confrontation Clause. Id. at 3147. In finding constitutional error in the
admission of the hearsay statement, the Court focused solely on the lack of trustworthiness of
that statement.
3. "[B]efore a federal constitutional error can be held harmless, the court must be able to
declare a belief that it was harmless beyond a reasonable doubt." Chapman v. California, 386
U.S. 18, 21 (1967). Tex. R. App. P. Ann. 81(b)(2) embodies the same analysis used by
federal courts when determining harmless error. See Beathard v. State, 767 S.W.2d 423, 432
(Tex. Crim. App. 1989).
4. In Wright, because the state of Idaho did not argue that the error was harmless, the
Supreme Court specifically declined to engage in a harm analysis.
5. Holland was handed down January 30, 1991, approximately three months after this case
was tried.
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378 A.2d 1092 (1977)
Charles Clifford FINCH, Appellant,
v.
Sara Lee FINCH, Appellee.
Sara Lee FINCH, Appellant,
v.
Charles Clifford FINCH, Appellee.
Nos. 11460 and 11475.
District of Columbia Court of Appeals.
Argued June 7, 1977.
Decided October 6, 1977.
A. Slater Clarke, Washington, D.C., with whom Robert W. Rifkin, Washington, D.C., was on the brief, for appellant in No. 11460 and for appellee in No. 11475.
Patricia J. Barry, Washington, D.C., for appellee in No. 11460 and for appellant in *1093 No. 11475. Sara Deane (Finch) filed a brief pro se.
Margaret Gates and Lea Giarrusso filed a brief on behalf of the Women's Equity Action League Educational and Legal Defense Fund as amicus curiae.
Before KELLY and NEBEKER, Associate Judges, and PAIR, Associate Judge, Retired.
PAIR, Associate Judge, Retired:
By an Order and Judgment entered in the Family Division of the Superior Court, Sara Lee Finch (the wife) was awarded an absolute divorce from Charles Clifford Finch (the husband). Challenging provisions of the Order that affected adversely their respective interests, both parties appealed.
In pertinent part, the Order (1) required the husband to pay the wife, as alimony, $338.00 monthly; (2) denied the wife a share of the husband's Foreign Service Annuity as her separate property; (3) awarded the parties an "equal 50 percent interest" in jointly owned real property at 4614 Reno Road, N.W. in the District of Columbia, but reserved to the wife for a period of three years from the date of the Order, the exclusive right of possession and use; (4) declared a 50 percent interest in jointly owned real property in Morgan County, West Virginia; and (5) required the husband to pay the wife ". . . as and for his contribution for the professional services of her counsel, Patricia J. Barry, the sum of $1,750.00 for which [the wife] shall have judgment. . . ."
The Husband's Appeal
On this appeal, it is contended first that the award of $338.00 monthly as alimony was an abuse of discretion. The husband urges in this connection that, pursuant to an existing support order, he was required to pay the wife $300.00 monthly for her separate maintenance and that she had made no showing of a material change in conditions and circumstances sufficient to warrant the payment of an additional $38.00 a month.
In our view, it is immaterial whether the award of $338.00 monthly be treated as an original award of alimony or as an enlargement of the support Order since, in either event, the award is supported by the record. The trial court found from substantial evidence that the wife's need for support was $338.00 per month, representing the difference between her monthly expenses of $1,076.36 and her monthly income, including the separate maintenance award of $300.00.
It is settled law in this jurisdiction that the award of alimony is a matter committed to the sound discretion of the trial court. See Smith v. Smith, D.C.App., 344 A.2d 221 (1975); Bradt v. Bradt, D.C.App., 300 A.2d 445 (1973); Mumma v. Mumma, D.C.App., 280 A.2d 73 (1971), aff'd on remand, 295 A.2d 898 (1972); Lyons v. Lyons, D.C.App., 295 A.2d 903 (1972); Leibel v. Leibel, D.C. App., 190 A.2d 821 (1963). See also D.C. Code 1973, § 17-305(a). This court, therefore, may disturb the award only upon the showing of an abuse of discretion, and we have found none.
Turning to the disposition of the Reno Road property, we note that the husband does not contest the trial court's award of a 50 percent interest to each of the parties.[1] He insists, however, that having made such an award, the trial court was without jurisdiction to postpone for a period of three years his enjoyment of his property right. As authority for this proposition, reliance is placed upon Wheeler v. Wheeler, 88 U.S.App.D.C. 193, 188 F.2d 31 (1951). But that case is inapposite. It holds simply that absent a showing of some right of ownership, legal or equitable, one spouse may not be awarded an interest in property owned exclusively by the other spouse.
The Wheeler court recognized, id. at 194, 188 F.2d at 32, as has this court in many decisions, that in divorce cases the trial court has broad discretion to award or apportion *1094 property held during the marriage as tenants by the entirety ". . . in such manner as shall seem equitable, just, and reasonable." See D.C.Code 1973, § 16-910. See also Mumma v. Mumma, supra; Lyons v. Lyons, supra. Lee v. Lee, D.C. App., 290 A.2d 388 (1972), is clearly distinguishable because there the court's unequal distribution of jointly owned real property was inconsistent with the express agreement of the parties to pool all their resources and share them equally.
We conclude that the apportionment in this case was "equitable, just, and reasonable." While it was the wife who benefited by the award of a three-year tenancy, she was required to assume sole responsibility for the payment of "incumbrances, taxes, insurance, and maintenance" of the propertyfinancial obligations which, but for the court's order, the husband would have been required to share with the wife during the three-year period.
Moreover, we have held in analogous factual situations that it was not an abuse of discretion to award the divorced wife sole title to jointly owned real property when the record shows that she ". . . contributed to the purchase of their house out of her funds . . ." even though she was not the major contributor. See Campbell v. Campbell, D.C.App., 353 A.2d 276, 279 (1976); Grasty v. Grasty, D.C.App., 302 A.2d 218, 219 (1973).
The husband's final contention is that the trial court's award of $1,750.00 as attorney's fees was excessive. Generally, the award of attorney's fees, like the award of alimony, is committed to the sound discretion of the trial court and will not be disturbed by this court unless that discretion has been abused. Mumma v. Mumma, supra; Lyons v. Lyons, supra, and Ritz v. Ritz, D.C.App., 197 A.2d 155 (1964).
Here, however, the attorney's fees awarded were almost two times the amount requested by the wife. See and compare Wood v. Wood, D.C.App., 360 A.2d 488, 492 (1976). No doubt the trial court was influenced by the itemized statement of legal services set forth in counsel's supporting affidavit. Nevertheless, we find it unnecessary at this time to make a judgment as to whether the trial court did or did not abuse its discretion in making the award.
It appears from counsel's verified, itemized statement that some of the legal services for which she was awarded compensation were rendered prior to her admission to practice law in this jurisdiction.[2]See D.C. App.R. 46 II(b)(1). Under the circumstances, we must vacate so much of the trial court's Order as awarded the wife attorney's fees, and remand for reconsideration in light of this part of the opinion. Wood v. Wood, supra at 492.
The Wife's Appeal
The wife claims that the trial court erred in denying her a share of the husband's Foreign Service Annuity as her separate property. She urges that the court ignored ". . . prevailing trends in non-community property as well as community property states . . ." and ignored also the "natural and legal obligation of a husband to support a wife as continuing beyond divorce." We notice at the outset that any right to a Foreign Service Annuity is controlled by the Foreign Service Act of 1946, as amended, 22 U.S.C.A. § 1076, which reads in pertinent part:
(b)(1) Unless elected in writing to the contrary at the time of retirement, any married participant shall receive a reduced annuity and provide a maximum survivor annuity for his or her spouse. Such a participant's annuity or any portion thereof designated in writing by the participant as the base for the survivor benefit shall be reduced by 2½ per centum of the first $3,600 plus 10 per centum of any amount over $3,600. If an annuitant entitled to receive a reduced annuity under this subsection dies and is survived *1095 by a spouse, a survivor annuity shall be paid to the surviving spouse equal to 55 per centum of the full amount of the participant's annuity computed under subsection (a) of this section, or by 55 per centum of any lesser amount the annuitant designated at the time of retirement as the base for the survivor benefit.
(2) An annuity payable from the Fund to a surviving spouse shall commence on the day after the annuitant dies and shall terminate on the last day of the month before the survivor's (A) remarriage prior to attaining age sixty, or (B) death. If a survivor annuity is terminated because of remarriage under clause (A) above, it shall be restored at the same rate commencing on the date such remarriage is terminated provided any lump sum paid upon termination of the annuity is returned to the Fund. [As amended July 12, 1976, Pub.L. 94-350, Title V, § 505, 90 Stat. 837.]
In Warner v. United States, 301 F.2d 327, 157 Ct.Cl. 1 (1962), a case involving the construction of the provisions of the Foreign Service Act quoted above, the question presented was whether the termination of a marriage by divorce could be equated with the termination of a marriage by death. In answering the question in the affirmative, the court pointed out that after the divorce in that case there was no longer a wife and therefore upon the death of the annuitant, there could not be a surviving spouse for purposes of the survivorship portion of the Foreign Service Act. 22 U.S.C.A. § 1076(b)(2).
So it is in the case at bar. A court of competent jurisdiction has determined that the marriage of the parties no longer exists. It is, therefore, too clear for further discussion that the husband did not have, subsequent to the divorce, a wife who, upon his death, would be an eligible recipient of the survivorship portion of his Foreign Service Annuity.[3]
We have examined Audubon v. Shufeldt, 181 U.S. 575, 577, 21 S.Ct. 735, 45 L.Ed. 1009 (1901), upon which the wife bases her claim, and find it distinguishable. All that it held was that a discharge in bankruptcy did not bar the claim of a divorced wife for alimony in arrears. Here, we have no such claim.
Finally, and in further support of the result which must follow, we note in passing that a constitutional attack against the different treatment afforded married and divorced spouses under another federal statute was recently resolved by a unanimous decision of the United States Supreme Court in Mathews v. de Castro, 429 U.S. 181, 97 S.Ct. 431, 50 L.Ed.2d 389 (1976). There, the Court found no Fifth Amendment due process or equal protection infirmity in the statutory classifications of the Social Security Act, 42 U.S.C. § 402(b)(1) (1970 ed. and Supp. V), which disentitled certain categories of divorced spouses from the insurance benefits they could have claimed before divorce.
For the foregoing reasons, we conclude that the trial court did not err in denying the wife's claim to a share in the annuity. Accordingly, we affirm the trial court's award of alimony, its apportionment of the Reno Road residence, and its denial of the wife's claim to a share in the husband's annuity. We vacate the trial court's award of attorney's fees and remand for a determination of the appropriate fee in a manner consistent with this opinion.
Affirmed in part and remanded with directions.
NOTES
[1] D.C.Code 1973, § 16-910.
[2] The court will, of course, notice its own records which show that counsel was admitted to practice April 21, 1976, more than three months after she filed the complaint and rendered other services in connection therewith.
[3] Although no prior decisions of this court disposing of claims under the Foreign Service Act have been brought to our attention, see generally District of Columbia v. Von Schrader, D.C. App., 345 A.2d 475 (1975), where this court determined a property interest in an unpaid survivor annuity under the federal Civil Service Retirement Act, 5 U.S.C. § 8331 et seq.
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187 B.R. 826 (1995)
In re Walter J. WRIGHT, Debtor.
FEDERAL TRADE COMMISSION, Plaintiff,
v.
Walter J. WRIGHT, Defendant.
Bankruptcy No. 93-50561. Adv. No. 93-5119.
United States Bankruptcy Court, D. Connecticut.
October 25, 1995.
*827 *828 Mary S. Feinstein, Federal Trade Commission, Division of Marketing Practices, Washington, DC, for plaintiff.
Victoria T. Ferrara, Sherwood, Garlick, Cowell, Diviney & Atwood, Westport, CT, for defendant.
MEMORANDUM OF DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT
ALBERT S. DABROWSKI, Bankruptcy Judge.
I. INTRODUCTION
In this adversary proceeding (hereinafter referred to as the "Dischargeability Action") the Plaintiff, Federal Trade Commission (hereinafter referred to as the "FTC"), seeks to have a certain debt allegedly owed to it by the Debtor, Walter J. Wright (hereinafter referred to as "Wright"), declared to be nondischargeable in Wright's pending Chapter 7 bankruptcy case under the authority of 11 U.S.C. § 523(a)(7). FTC has moved for summary judgment in the Dischargeability Action based upon the alleged preclusive effect of a prior judgment of the federal District Court. In response, Wright filed, inter alia, a Memorandum in Opposition to Motion for Summary Judgment which invites this Court to grant summary judgment in his favor. The Court treats this invitation as a cross-motion for summary judgment, and will dispose of the same in the course of this Memorandum of Decision.
II. JURISDICTION
The United States District Court for the District of Connecticut has jurisdiction over the instant matter by virtue of 28 U.S.C. § 1334(b); and this Court derives its authority to hear and determine this matter on reference from the District Court pursuant to 28 U.S.C. §§ 157(a), (b)(1). This is a "core proceeding" pursuant to 28 U.S.C. § 157(b)(2)(l).
*829 III. SUMMARY JUDGMENT STANDARDS
Federal Rule of Civil Procedure 56(c), made applicable to these proceedings by Federal Rule of Bankruptcy Procedure 7056, directs that summary judgment enter when "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."
Rule 9(c) of the Local Rules of Civil Procedure of the United States District Court for the District of Connecticut (hereinafter referred to as the "Local District Court Rules") supplements Fed.R.Civ.P. 56(c) by requiring statements of material fact from each party to a summary judgment motion. The material facts set forth in a movant's statement "will be deemed to be admitted unless controverted by the statement required to be served by the opposing party . . ." Local District Court Rule 9(c)1.
When ruling on motions for summary judgment "the judge's function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The moving party has the burden of showing that there are no material facts in dispute and all reasonable inferences are to be drawn, and all ambiguities resolved in favor of the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).
However, to defeat a properly supported motion for summary judgment the nonmoving party "may not rest upon the mere allegations or denials of its pleadings"; its response "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party must show more than "some metaphysical doubt as to the material facts." Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
IV. UNCONTESTED FACTS
The FTC's summary judgment motion is supported by, inter alia, a Statement of Facts pursuant to Local District Court Rule 9(c)1. In opposition thereto, and in support of his own summary judgment request, Wright has filed his Affidavit and a Statement of Material Facts pursuant to Local District Court Rule 9(c)2. Based upon (1) the Affidavit of Walter J. Wright, (2) the parties' respective Statements of Facts, (3) this Court's independent review and judicial notice of the contents of the court file in the District Court Action (as hereinafter defined), and (4) the representations of counsel made at the hearing on this matter held January 11, 1994, the following facts are incontestable and/or not in dispute between the parties.
A. The District Court Action.
On August 10, 1992, FTC filed a complaint against Walter J. Wright, et al. (hereinafter referred to as the "District Court Complaint") in the United States District Court for the District of Connecticut, seeking civil penalties, injunctive and other relief for alleged violations of FTC's "Franchise Rule", 16 C.F.R. Part 436 (hereinafter referred to as the "District Court Action").
In its District Court Complaint FTC alleged that since at least 1987, Wright sold franchises for a chain of retail stores known as "Consignment Galleries" but failed to furnish a disclosure statement to all prospective franchisees as required by the Franchise Rule. FTC further alleged that even those prospective franchisees who did receive a disclosure statement were (1) given unsubstantiated earnings claims about the franchise, (2) furnished with inaccurate financial information about a corporate franchisor, and (3) not told that Wright and another individual had been held liable for fraud in connection with the sale of an unrelated franchise. Notably, the District Court Complaint did not seek monetary redress for the alleged franchisee injury. Rather, only civil penalties and equitable relief were pursued.
A Process Receipt and Return sworn out by a United States Marshal indicates that Wright was served with a Summons and the *830 District Court Complaint on August 18, 1992. No appearance was made by or on behalf of Wright in the District Court Action, and Wright failed to file or serve an Answer or other responsive pleading therein. Accordingly, on October 30, 1992, the District Court Clerk entered a default against Wright pursuant to Fed.R.Civ.P. 55(a). On January 14, 1993, FTC moved for a judgment by default against Wright pursuant to Fed.R.Civ.P. 55(b), and counsel for FTC certified timely mail service of the same upon Wright.
On February 18, 1993 while FTC's motion for judgment by default was pending with the District Court Wright filed a voluntary Chapter 7 petition in this Court. Pursuant to 11 U.S.C. § 301, an Order for Relief was simultaneously entered thereon. Wright did not file a Notice of Stay or similar pleading with the District Court to inform that Court of his alleged belief that the District Court Action was automatically stayed under 11 U.S.C. § 362(a). Wright's counsel did notify FTC's counsel on or about March 15, 1993 nearly one month post-petition of Wright's assertion of the applicability of the automatic stay to the District Court Action. By return letter, FTC's counsel informed Wright's counsel of FTC's belief that the District Court Action was excepted from the automatic stay pursuant to 11 U.S.C. §§ 362(b)(4) and (5), and that it would continue to prosecute said action on the strength of that belief.
On March 24, 1993, the Hon. José A. Cabranes, then Chief United States District Judge for the District of Connecticut, granted FTC's motion for default judgment by endorsement of the face of such motion as follows: "GRANTED absent timely objection or response or any kind. It is so ordered". That same day the District Court entered a Final Judgment and Order on a form supplied by FTC, without apparent alteration, granting FTC, inter alia, a monetary judgment against Wright for civil penalties in the amount of $290,000.00 (hereinafter referred to as the "District Court Judgment"). The District Court Judgment specified that the civil penalties were payable to the "Treasurer of the United States".
On or about March 26, 1993, a letter was submitted to the District Court from Wright's counsel seeking vacatur of the District Court Judgment on the strength of the automatic bankruptcy stay. On or about April 22, 1993, Wright and FTC were notified of a May 5, 1993 status hearing in the District Court Action. No specific mention of Wright's vacatur motion was made in the hearing notice, although the issue of the automatic stay's applicability was taken up and decided by Chief Judge Cabranes at the hearing. Despite the opportunity for argument at that time, Wright's bankruptcy counsel offered little or none, and the FTC's position of stay inapplicability was sustained by the District Court. Neither that decision nor the default judgment itself has been appealed, and the time for such appeal has expired. The District Court Judgment remains wholly unsatisfied.
B. The Dischargeability Action.
On or about May 19, 1993, FTC filed a Complaint in this Court objecting to the dischargeability of the civil penalty aspects of the District Court Judgment pursuant to 11 U.S.C. § 523(a)(7) (hereinafter referred to as the "Dischargeability Complaint"). On August 31, 1993, Wright filed an untimely Answer to the Dischargeability Complaint by leave of this Court.
The present contested matter within this adversary proceeding was initiated by the FTC's filing of its Motion for Summary Judgment and supporting material on October 27, 1993. Said motion asserts that under the principles of collateral estoppel the factual issues determined in the District Court Action are sufficient to fully adjudicate the nondischargeability of the District Court Judgment under 11 U.S.C. § 523(a)(7). Thus, the argument proceeds, there are no material facts in dispute, and FTC is entitled to judgment as a matter of law within the meaning of Fed.R.Bank.P. 7056(b).
In opposing summary judgment, Wright challenges the propriety of utilizing collateral estoppel to eliminate otherwise disputed material facts. He argues that because the facts material to the Dischargeability Action were not "fully" and "actually" litigated in *831 the District Court Action, litigation of such facts on the merits cannot be precluded in the context of this dischargeability action. Further, Wright deems relevant his belief that the District Court Action was stayed by his bankruptcy petition, thus eliminating, he thought, the need to formally respond to FTC's default judgment motion.
Wright also believes that summary judgment is appropriate in his favor based on his belief that the entry of the District Court Judgment is void due to the pendency of the automatic stay at the time of the judgment's entry, thereby negating a "debt", which is an essential element under 11 U.S.C. § 523(a)(7).[1]
Therefore, the primary and dispositive issue raised in this contested matter is whether, under the circumstances at bar, the default judgment in the District Court Action can collaterally estop Wright from contesting the dischargeability of the underlying debt on the merits.
V. DISCUSSION
A. Collateral Estoppel.
In the matter sub judice the applicability of the doctrine of collateral estoppel is determinative of the FTC's motion for summary judgment. Because the facts underlying Wright's liability for civil penalties have never been admitted by Wright, and are specifically denied in his Affidavit in opposition to the FTC's summary judgment motion, this Court might well conclude that there are genuine issues of material fact as to the dischargeability of Wright's alleged obligation for civil penalties, unless the District Court Judgment possesses preclusive effect. Conversely, the Court is convinced that if the District Court Judgment is to be given preclusive effect, it is dispositive of all material factual issues, and would entitle FTC to judgment in its favor as a matter of law. This is because under Section 523(a)(7) the existence of a true civil penalty debt to and for the benefit of a governmental unit is alone sufficient to establish nondischargeability.
As applied to prior federal court adjudications[2], the doctrine of collateral estoppel is an embodiment of the precept of federal common-law that a "right, question, or fact distinctly put in issue and directly determined by a court of competent jurisdiction . . . cannot be disputed in a subsequent suit between the same parties or their privies . . ." Southern Pacific R. Co. v. United States, 168 U.S. 1, 48-49, 18 S.Ct. 18, 27, 42 L.Ed. 355 (1897). The purposes served by the doctrine are to relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication. Montana v. United States, 440 U.S. 147, 153-154, 99 S.Ct. 970, 973-74, 59 L.Ed.2d 210 (1979).
Since at least the time of the 1970 amendments to the Bankruptcy Act remanding dischargeability questions to the bankruptcy courts the issue of the preclusive effect of pre-bankruptcy judgments has been debated. In Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979), the United States Supreme Court all but foreclosed the use of res judicata in dischargeability *832 actions.[3] The Court in Felsen left open the question of whether collateral estoppel might operate to preclude litigation of specific issues actually determined in the prior adjudication. Id. at 139 n. 10, 99 S.Ct. at 2213 n. 10.
It is now clear that collateral estoppel is available to litigants in Bankruptcy Code disputes, and specifically in the context of dischargeability proceedings under 11 U.S.C. § 523(a). Grogan v. Garner, 498 U.S. 279, 285 n. 11, 111 S.Ct. 654, 658, 112 L.Ed.2d 755 (1991). However, a consistent delineation of the elements of the doctrine does not emerge from the pre-Grogan authorities. Some of that inconsistency can be traced to a confusion of the standard to be applied when preclusive effect is sought for an issue determined by a prior state court adjudication with the standard applicable to a prior federal court judgment.
Under 28 U.S.C. § 1738 a federal court is required to give a state court judgment the same preclusive effect as would a sister court of the same state. See Kelleran v. Andrijevic, 825 F.2d 692 (2d Cir.1987), cert. denied 484 U.S. 1007, 108 S.Ct. 701, 98 L.Ed.2d 652 (1988). Presumably then, bankruptcy courts weighing the preclusive effect of a prior state court adjudications, could be compelled to undertake analysis under any of fifty different articulations of the collateral estoppel doctrine.[4]
By contrast, when the issues sought to be precluded were decided by a federal court, as in the case at bar, the Bankruptcy Court must apply the theoretically uniform federal common law of collateral estoppel. See Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 324 n. 12, 91 S.Ct. 1434, 1440 n. 12, 28 L.Ed.2d 788 (1971). The task remains, however, of discerning the precise limits of the federal common law doctrine. We are not without definitive authority in this area since in Grogan the Supreme Court gave its imprimatur to the formulation of the doctrine expressed by the Second Restatement of Judgments. Grogan v. Garner, supra, 498 U.S. at 284, 111 S.Ct. at 658.
The Restatement (Second) of Judgments articulates the general rule of collateral estoppel as follows: "When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." Restatement (Second) of Judgments § 27. This general statement has been reduced to a multi-part "test" by various courts. E.g., Graham v. Billings (In re Billings), 94 B.R. 803, 808 (Bankr.E.D.N.Y.1989). A typical formulation of this test states that claim preclusion will be available when:
1. the issues sought to be precluded are identical to those involved in the prior action;
2. the issues' determination in the prior action was essential to the prior judgment;
3. the issues were determined by a valid and final judgment; and
4. the issues were actually litigated in the prior action;
Id.
FTC seeks to except itself from Wright's anticipated bankruptcy discharge solely under *833 the terms of 11 U.S.C. § 523(a)(7). That Section requires (1) that there be a "debt . . . for a fine, penalty or forfeiture"; (2) that such debt be "payable to and for the benefit of a government unit"; and (3) that such debt "is not compensation for actual pecuniary loss". The third element is not in dispute and therefore need not be considered as an issue to be precluded via collateral estoppel. Consequently, only the first two elements (hereinafter, the "Disputed Facts") necessitate the following collateral estoppel analysis under the four-part federal, i.e. Restatement, standard.
1. Identity of Issues.
Paragraph 8 of the "Findings" section of the District Court Judgment states that Wright is ". . . liable for civil penalties up to $10,000 per violation of the Franchise Rule, 16 C.F.R. § 436." Paragraph I(b) of the District Court Judgment decrees that ". . . Wright shall pay . . . to the Federal Trade Commission two hundred ninety thousand dollars ($290,000.00) in civil penalties with the money to be deposited by the Commission into the United States Treasury." Specifically, Paragraph I(d) requires ". . . payment for civil penalties . . . within 30 days of entry of [the] order by certified or cashier's check made payable to the Treasurer of the United States . . ." Therefore, there can be no doubt that facts identical to the Disputed Facts the existence of a civil penalty debt payable to and for the benefit of a governmental unit were determined in the District Court Action.
2. Necessity of Prior Determination.
There also can be no doubt that determination of the Disputed Facts was necessary to the District Court Judgment. These facts the existence of a penalty debt and the party to which it was payable were two of the ultimate issues in the District Court Action. They were not superfluous facts gratuitously determined by the District Court in the course of rendering its ultimate ruling.
3. Validity and Finality of Prior Judgment.
Wright's pleadings articulate a challenge to the validity of the District Court Judgment based upon a belief that the automatic stay of 11 U.S.C. § 362(a) in effect at the time of the District Court Judgment rendered that judgment void ab initio. Unfortunately for Wright, his argument in this regard is presently foreclosed. At its May 5, 1993 status hearing the District Court rejected this very argument, finding that entry of the District Court Judgment was excepted from the automatic stay by 11 U.S.C. §§ 362(b)(4) and (5). This Court concurs with the ruling of the District Court.
Even if this Court disagreed with the prior ruling of the District Court with respect to the applicability of the automatic stay, it would be of no consequence since this Court, which derives its jurisdiction on reference from the District Court, 28 U.S.C. § 157(a), possesses no authority to vacate an order of the District Court. See footnote 1, supra. Consequently, the Disputed Facts were determined by a valid and final judgment.
4. Actual Litigation.
Even though the first three prongs of the collateral estoppel formula are met in this case, the critical contest centers on whether the Disputed Facts were the subject of "actual litigation".
The requirement that an issue be "actually litigated" to qualify for collateral estoppel does not imply that preclusion is available only for those issues established after a full evidentiary and adversarial trial. Such a rule would undermine the efficacy of the doctrine since only a relatively small percentage of judicial matters are resolved by full trial process. By the same token, there are certain types of dispositions short of full adversarial trial which should not produce preclusive effect in subsequent litigation, either because such effect would not serve the fundamental purposes of the collateral estoppel doctrine or produce an inequitable result. "The interests of conserving judicial resources, of maintaining consistency, and of avoiding oppression or harassment of *834 the adverse party are less compelling when the issue on which preclusion is sought has not actually been litigated before." Restatement (Second) of Judgments § 27, cmt. e.
The possible disposition permutations in a given case are numerous, and each such disposition is attended by a different level of adversarial "litigation". As a result, a court must resist simply applying a blanket rule based on the appellation assigned the disposition e.g. default judgment, summary judgment, etc. by the prior court. Rather, each disposition should be addressed on a case-by-case basis. This requires a review of the full record of the prior proceeding, not just the judgment itself. E.g., Spilman v. Harley, 656 F.2d 224, 228 (6th Cir.1981); National Homes Corp. v. Lester Industries, Inc., 336 F.Supp. 644, 648 (W.D.Va.1972); In re Supple, 14 B.R. 898, 904 (Bankr.D.Conn. 1981); see also Combs v. Richardson, 838 F.2d. 112, 113 (4th Cir.1988) (holding that review must be undertaken with "particular care"). This Court has performed such a review of the record of the District Court Action.
As Official Comment e to Restatement (Second) of Judgments § 27 recognizes, the entry of a default judgment against a party is not necessarily indicative of that party's state of mind. True, a party's acquiescence to a judgment by default might be tantamount to that party's admission of all material facts necessary to the judgment. But the entry of a default judgment may also evidence lack of actual notice, attorney error, or conscious disregard due to an impending bankruptcy filing. In the latter case, there is often little incentive for a party to contest a civil action if (s)he believes mistakenly or not that a bankruptcy discharge will eliminate the need for a contest on the merits. It is these considerations which the Restatement captures in taking the general position that "[i]n the case of a judgment entered by . . . default, none of the issues is actually litigated." Restatement (Second) of Judgments § 27, cmt. e.
The Supreme Court's embrace of the Restatement formula in Grogan constitutes an endorsement of the Restatement's approach to default judgments, and is consistent with prior Supreme Court discussion of the topic. E.g., Kennedy v. Mendoza-Martinez, 372 U.S. 144, 158 n. 8, 83 S.Ct. 554, 562 n. 8, 9 L.Ed.2d 644 (1963). Further, the presumption of lack of "actual litigation" in a default judgment context is a concept that has been embraced by several Courts of Appeal. M & M Transmissions, Inc. v. Raynor, 922 F.2d 1146, 1150 (4th Cir.1991); Spilman v. Harley, supra at 228[5]; Matter of McMillan, 579 F.2d 289, 292-93 (3d Cir.1978); see also Harold V. Simpson & Company v. Shuler (In re Shuler), 722 F.2d 1253 (5th Cir.1984). The law is similar in other Circuits. United States v. Gottheiner (In re Gottheiner), 703 F.2d 1136, 1140 (9th Cir.1983) (dicta); In re Rahm, 641 F.2d 755, 757 (9th Cir.1981), cert. denied sub nom. Gregg v. Rahm, 454 U.S. 860, 102 S.Ct. 313, 70 L.Ed.2d 157 (1981) (prior state determination has no collateral estoppel effect; at most can establish prima facie case); Tutt v. Doby, 459 F.2d 1195, 1199 (D.C.Cir.1972).
Likewise, the overwhelming majority of federal district courts and bankruptcy courts which have considered the issue have held that prior default judgments do not operate to preclude relitigation of issues in the context of bankruptcy dischargeability proceedings. E.g., Fleet Consumer Discount Co. v. Graves (In re Graves), 156 B.R. 949 (E.D.Pa. 1993), aff'd 33 F.3d 242 (3d Cir.1994) (state court judgment; but court applies federal (Restatement) standard); Dein Host, Inc. v. Pignato, 86 B.R. 318 (D.N.H.1988) (state court judgment; but New Hampshire law deemed consonant with Restatement standard); Franks v. Thomason, 4 B.R. 814 (N.D.Ga.1980) (federal court judgment; Bankruptcy Act case); Hall v. Mady (In re Mady), 159 B.R. 487 (Bankr.N.D.1993) (federal court judgment); Stoll v. Conway (In re Conway), 148 B.R. 881 (Bankr. E.D.Wisc.1992) (state court judgment; court finds Wisconsin law consonant with federal (Restatement) standard); Alvarado v. Kallmeyer *835 (In re Kallmeyer), 143 B.R. 271, 274 (Bankr.D.Kans.1992) (federal court judgment); Lawrence Steel Erection Co., Inc. v. Piercy (In re Piercy), 140 B.R. 108 (Bankr. D.Md.1992) (state court judgment; but court applies federal (Restatement) formula in its alternate holding); National Union Fire Insurance Company of Pittsburgh, Pa. v. Boyovich (In re Boyovich), 126 B.R. 348 (Bankr. W.D.Wa.1991) (state court judgment; court finds Washington law consonant with federal (Restatement) standard); Cardenas v. Stowell (In re Stowell), 113 B.R. 322 (Bankr. W.D.Tex.1990) (state court judgment; but court views Texas law as supporting Restatement comment e); Ferguson v. Hall (In re Hall), 95 B.R. 553 (Bankr.E.D.Tenn.1989) (state court judgment; but court applies uniform federal standard); Hoffman v. Sheahan (In re Sheahan), 87 B.R. 67 (Bankr.E.D.Mo. 1988) (state court judgment; but court applies uniform federal standard); Sixteen Twenty Eight Bellevue Limited Partnership v. Barigian (In re Barigian), 72 B.R. 407, 410 (Bankr.C.D.Cal.1987) (prior arbitration decision; court utilizes federal standard in its alternative holding); Tolbert v. Clay (In re Clay), 64 B.R. 313 (Bankr.N.D.Ga.1986) (federal court judgment); Berkfield v. Goodman (In re Goodman), 25 B.R. 932, 939 (Bankr. N.D.Ill.1982) (state court judgment; but federal standard applied); Kramer v. Joseph (In re Joseph), 22 B.R. 319, 321 (Bankr.E.D.N.Y. 1982) (state court judgment; but federal (Restatement) standard utilized); First Nat'l Bank of Gainesville v. Grainger (In re Grainger), 20 B.R. 7, 10 (Bankr.D.S.C.1981) (federal court judgment); Manning v. Iannelli (In re Iannelli), 12 B.R. 561, 563 (Bankr.S.D.N.Y.1981) (federal court judgment; Bankruptcy Act case).
The seemingly contrary authority cited by the Plaintiff, and that discovered independently by this court, is readily distinguishable from the facts and context of the present dispute.
First, the vast majority of reported bankruptcy decisions giving preclusive effect to issues determined in prior, arguably "default" judgment contexts are cases in which the prior preclusive judgment was rendered by a state court. E.g., Rally Hill Productions, Inc. v. Bursack (In re Bursack), 65 F.3d 51 (6th Cir.1995) (Tennessee judgment; debtor-defendant answered and cross-claimed but suffered a jury verdict following his nonappearance at trial); Seay v. Greene (In re Greene), 150 B.R. 282 (Bankr.S.D.Fla. 1993) (Florida judgment; debtor-defendant answered and counterclaimed but suffered default after non-appearance at trial and counsel announced no contest); Pacific Energy and Minerals, Ltd. v. Austin (In re Austin), 93 B.R. 723 (Bankr.D.Colo.1988) (Colorado "consent" judgment); Bend v. Eadie (In re Eadie), 51 B.R. 890 (Bankr. E.D.Mich.1985) (Michigan judgment; default was discovery sanction); Harris v. Byard (In re Byard), 47 B.R. 700 (Bankr.M.D.Tenn. 1985) (Kansas judgment; debtor-defendant's attorney appeared and withdrew; court heard live testimony). Each of these cases explicitly or implicitly adopts the view that 28 U.S.C. § 1738 compels initial recourse to the collateral estoppel law of the prior forum state[6]; which, as noted supra, admits the possibility of disparate individual state formulations and applications of the collateral estoppel doctrine which may be, and often are, contrary to the Restatement rule endorsed by the United States Supreme Court in Grogan. Thus, because the case sub judice concerns the preclusive effect of a prior federal court adjudication, and is governed by, federal common law (i.e. Restatement) standards, these decisions have no real precedential authority or persuasive impact here.
Other cases considering the preclusive effect of prior state-court judgments utilize or reference a federal collateral estoppel standard, but are distinguishable from the present case due to the nature of the previous "default". E.g., Crain v. Limbaugh (In re *836 Limbaugh), 155 B.R. 952, 956-57 (Bankr. N.D.Tex.1993); Bishop v. Herwig (In re Herwig), 77 B.R. 662, 663-64 (Bankr.S.D.Ill. 1987). In Limbaugh the debtor-defendant was represented by counsel in the prior proceeding, filed an answer admitting the relevant conduct, but alleged several grounds of justification and interposed a counterclaim. The default was a discovery sanction, and the debtor-defendant fully participated in a subsequent hearing in damages. In Herwig the pro-se defendant filed an answer and counterclaim in the prior action. He was eventually defaulted for failing to appear for trial, at which time the trial judge heard the plaintiff's testimony and received exhibits.
This Court is cognizant of two decisions, Katahn Associates, Inc. v. Wien (In re Wien), 155 B.R. 479 (Bankr.N.D.Ill.1993) and Jones v. Wilson (In re Wilson), 72 B.R. 956 (Bankr.M.D.Fla.1987), which accord preclusive effect to prior arguably unopposed dispositions by a federal court. The decision in Wien is factually distinguishable from the present case since in that case the prior adjudication by the district court was by unopposed summary judgment, not default judgment. Also, Wien's failure to oppose summary judgment followed his full participation in, and litigation of, the case in the district court. More fundamentally however, this Court deems Wien's legal analysis incomplete. Specifically, the decision seems to ignore the relevant and binding authority of Grogan. For example, Wien states that the "Supreme Court has left open the issue of whether the doctrine of collateral estoppel may be applied in dischargeability proceedings." Wien, supra, at 155 B.R. at 484. Grogan, at fn. 11, 111 S.Ct. at 658 fn. 11, conclusively clarified that collateral estoppel applies in dischargeability actions. In light of Wien's oversight of Grogan it is not surprising to find that Wien's discussion of the appropriate federal collateral estoppel standard, and specifically the "actually litigated" element thereof, excludes any reference to the Grogan-endorsed Restatement formulation.
Likewise, the Memorandum Decision in Wilson proceeds without the benefit of Grogan's endorsement of the Restatement. This is understandable since Wilson predates Grogan. In light of Grogan this Court disagrees with Wilson's reasoning that a theoretical "opportunity to defend" is sufficient to satisfy the requirement of "actual litigation". Further, the Wilson Court's entire discussion of collateral estoppel may be dicta since the Bankruptcy Court there apparently heard testimony fully supportive of the grounds of non-dischargeability. Wilson, supra, 72 B.R. at 959.
It is a fundamental tenet of federal common law that a "judgment by default only admits for the purpose of the action the legality of the demand or claim in suit . . . it does not make the allegations of the . . . complaint evidence in an action upon different claim." See Cromwell v. County of Sac, 94 U.S. 351, 356, 24 L.Ed. 195 (1876). This rule should apply with even greater force in matters adjudicated by default in relative temporal proximity to a defaulted party's bankruptcy petition.
The incentive of a defendant to defend a pre-bankruptcy action for damages often differs from the incentive of a bankruptcy debtor to defend a complaint seeking to have a debt declared forever nondischargeable. Defendants in financial distress may decide to put their financial house in order in one forum and one proceeding, i.e. through bankruptcy. This is an important benefit which bankruptcy affords. Therefore, a debtor might reasonably suffer default judgments prior to bankruptcy, relying on their presumptive dischargeability. Only when a creditor holding such a judgment seeks to have that particular debt excepted from discharge will such a debtor have the incentive to mount a defense to the creditor's factual allegations supporting nondischargeability. Such principles are in harmony with the Restatement's Official Comment e, which recognizes a cost-benefit analysis as one of the "many reasons why a party may choose not to raise an issue, or to contest an assertion."
Similarly, such a rule does not offend the purposes served by the collateral estoppel doctrine. Although judicial resources are limited and valuable, relatively few are expended in processing a default judgment. Likewise, the party seeking the benefit of *837 issue preclusion cannot be said to have been oppressed or harassed since its reasonable expectations ex ante would have been the necessity of at least one trial on the merits. And if collateral estoppel is denied, at most only one trial will occur, albeit in the bankruptcy court rather than the prior forum.
Returning to the facts of the case sub judice, Wright suffered a classic default judgment in the District Court Action. No appearance was filed by or on behalf of Wright in that action, and no responsive pleading was interposed to the FTC's District Court Complaint. Only after the commencement of his personal bankruptcy case did Wright seek to derail the adjudication process in the District Court. There is also nothing in the record before this Court which evidences any explicit or tacit manifestation by Wright of an intention that his default in the District Court Action forever preclude him from litigating the facts essential to such judgment in future litigation with FTC. To the contrary, the uncontested facts are indicative of a paradigmatic debtor's "slide into bankruptcy".
VI. CONCLUSION
This Court concludes that facts material to the Dischargeability Action, i.e. the Disputed Facts, were not "actually litigated" in the District Court Action. Consequently, FTC has failed to carry its burden of establishing its entitlement to the use of collateral estoppel to preclude the full evidentiary litigation of such facts in this Court. There being no further grounds alleged by FTC and Wright justifying summary judgment in their respective favors, the parties' cross motions for summary judgment shall be denied by separate order.
NOTES
[1] Wright's cross-motion on this basis can be disposed of relatively easily. Chief Judge Cabranes specifically found that the automatic stay was inapplicable to the District Court Action pursuant to 11 U.S.C. § 362(b)(4) and (5). As a court which enjoys its jurisdiction only on reference from the District Court, 28 U.S.C. § 157(a), this Court has no authority to vacate that Order. Therefore, the District Court Judgment is not void. Yet, even assuming that it were void, that fact is of no consequence to the issue of whether a "debt" defined by 11 U.S.C. § 101(12) as "liability on a claim" exists. A "claim" is a "right to payment" which need not be "reduced to judgment". 11 U.S.C. § 101(5). The United States Supreme Court has held under similar circumstances that the Bankruptcy Code concepts of "claim" and "debt" are co-extensive. Pennsylvania Department of Public Welfare v. Davenport, 495 U.S. 552, 558, 110 S.Ct. 2126, 2130-31, 109 L.Ed.2d 588 (1990). It is clear that the subject civil penalty judgment constitutes a "right to payment". Cf. id. at 558-59, 110 S.Ct. at 2130-31.
[2] Although not implicated by the matter at bar, the source of authority generally compelling federal court application of collateral estoppel in favor of adjudications by state courts is 28 U.S.C. § 1738.
[3] Although the present dischargeability action technically is pending in the same Court (albeit, on reference) that determined the District Court Action, res judicata is not applicable to these proceedings. Under the doctrine of res judicata a final judgment on the merits bars further claims by parties or their privies based on the same cause of action. Brown v. Felsen, supra, 442 U.S. at 131, 99 S.Ct. at 2209. The Dischargeability Action is a distinct and separate cause of action from the District Court Action.
[4] Some courts have questioned whether Congress' grant to the federal district courts of exclusive original jurisdiction over bankruptcy supersedes 28 U.S.C. § 1738 and provides for a uniform federal rule of collateral estoppel relating to prior state court adjudications. See e.g., In re Hall, 95 B.R. 553 (Bankr.E.D.Tenn.1989); see also Kelleran v. Andrijevic, 825 F.2d 692 (2d Cir.1987) (dissenting opinion) (analysis in context of claim allowance; citing also the preeminence of the Uniform Bankruptcy Law Clause of the United States Constitution). Contra In re Byard, 47 B.R. 700 (Bankr.M.D.Tenn.1985); but cf. Rally Hill Productions, Inc. v. Bursack (In re Bursack), 65 F.3d 51, 54-5 (6th Cir.1995).
[5] A Sixth Circuit panel has recently called into question Spilman's presumption or "bright-line" rule against the preclusive effect of a state-court default judgment. Rally Hill Productions, Inc. v. Bursack (In re Bursack), 65 F.3d 51, 54-5 (6th Cir.1995).
[6] When federal courts preside over proceedings over which they enjoy subject matter jurisdiction exclusive of the state courts, they should not only consider the preclusive effect of prior state-court adjudications per § 1738, but also the question of whether "the concerns underlying . . . [the] . . . particular grant of exclusive jurisdiction justify a finding of an implied partial repeal of § 1738." Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 386, 105 S.Ct. 1327, 1335, 84 L.Ed.2d 274 (1985).
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455 B.R. 607 (2011)
In re Hadi D. LEBBOS, Debtor.
Basil T. Simon, Trustee, Plaintiff,
v.
JP Morgan Chase Bank, National Association, a National Banking Association, Defendant.
Bankruptcy No. 09-58805-wsd. Adversary No. 09-06145-wsd.
United States Bankruptcy Court, E.D. Michigan, Southern Division, Detroit.
August 23, 2011.
*609 Stephen P. Stella, Detroit, MI, for Plaintiff.
Kenneth A. Flaska, Bloomfield Hills, MI, for Defendant.
Opinion Denying Defendant's Motion for Summary Judgment and Granting Trustee's Motion for Summary Judgment under 11 U.S.C. § 547
WALTER SHAPERO, Bankruptcy Judge.
The Chapter 7 Trustee filed this adversary proceeding to obtain a judgment avoiding and setting aside a notice of lis pendens recorded by Defendant, JP Morgan Chase Bank, National Association ("JP Morgan"), against the Debtor's primary residence under 11 U.S.C. § 547 or, in the alternative, for a declaratory judgment that JP Morgan's interest was unperfected and inferior to the Trustee's rights under subsections (1) through (3) of 11 U.S.C. § 544(a). In its answer to the complaint, JP Morgan admitted that its notice of lis pendens was recorded within the 90 day statutory preference period, but raised several affirmative defenses.
Pending before the Court are cross motions for summary judgment. For the reasons explained in this opinion, the Court denies JP Morgan's summary judgment motion and grants the Trustee's motion for summary judgment under 11 U.S.C. § 547.
Jurisdiction
The Court has jurisdiction over this matter under 28 U.S.C. §§ 1334(a), 157(a), *610 and 157(b)(1) and E.D. Mich. LR 83.50(a). This adversary proceeding is a core proceeding under 28 U.S.C. § 157(b)(2)(F) and (K).
Facts
The parties do not dispute the relevant facts and thus the issue is a legal one. On June 15, 2009, Hadi Lebbos ("Debtor") filed his Chapter 7 bankruptcy petition. The Debtor owns a home located at 29232 Lyndon, Livonia, Michigan ("the Property"). The Property is located in Wayne County, Michigan. On August 13, 2004, Debtor and his then spouse, Julie Lebbos obtained a $160,000 loan from Washington Mutual Bank, FA ("WAMU"). To secure payment of the loan, the Debtor and his spouse granted a mortgage on the Property to WAMU. On September 14, 2004, WAMU or its agent incorrectly recorded the mortgage with the Macomb County Register of Deeds instead of with the Wayne County Register of Deeds as required by the fact that the Property is located in Wayne County.
Several years later, WAMU discovered that the mortgage had been recorded in the wrong county and on March 11, 2009, it filed a Claim of Interest with the Wayne County Register of Deeds pursuant to Mich. Comp. Laws § 565.451a. WAMU attached to its Claim of Interest an Exhibit A, which consisted of a copy of the mortgage containing the bar code stamp, liber and page number affixed by the Macomb County Register of Deeds.
In May 2009, WAMU filed a lawsuit seeking a declaratory judgment and to compel the Debtor to execute a new mortgage to allow it to be properly recorded with the Wayne County Register of Deeds. Attached as exhibit A to the lawsuit was a copy of a notice of lis pendens, which WAMU requested it be permitted to record with the Wayne County Register of Deeds. On May 8, 2009, the notice of lis pendens ("Lis Pendens") was recorded with the Wayne County Register of Deeds at Liber 47902, pages 342-43. At some unknown point, JP Morgan became the successor in interest to WAMU.
On June 15, 2009, the Debtor filed his Chapter 7 bankruptcy petition and Plaintiff, Basil Simon, was appointed as the Chapter 7 Trustee. On July 8, 2009, JP Morgan filed a motion for relief from the automatic stay. The Trustee did not file a response to or otherwise oppose that motion and upon the filing of a certificate of non-response by JP Morgan, this Court entered an order on July 28, 2009, granting JP Morgan the stay relief sought. Thereafter, the Debtor executed a new mortgage on the Property to JP Morgan, which was recorded with the Wayne County Register of Deeds on September 2, 2009.
On September 23, 2009, the Trustee filed this adversary proceeding against JP Morgan. On that same day, the Trustee filed a motion seeking to set aside the order granting relief from the automatic stay, which JP Morgan opposed. On December 10, 2009, this Court issued an opinion and order denying the Trustee's motion to set aside the order granting JP Morgan relief from the automatic stay.
In its answer to the complaint, JP Morgan also raised several affirmative defenses: (1) it asserted that the Trustee was barred from pursuing his preferential transfer and avoidance claims based on res judicata grounds; and (2) it asserted that the Trustee would be unable to establish an essential element under either of his § 547 or § 544 causes of action because its interest in the Property had been perfected once it recorded its Claim of Interest with the Wayne County Register of Deeds.
The Trustee has moved for summary judgment, as has JP Morgan.
*611 Applicable Law: Cross-Motions for Summary Judgment
Fed. R. Bankr.P. 7056 incorporates and applies Fed.R.Civ.P. 56 for summary judgment in adversary proceedings. Under Rule 56(a), a court may grant summary judgment when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." "The initial burden is on the moving party to demonstrate that an essential element of the nonmoving party's case is lacking." Kalamazoo River Study Group v. Rockwell International Corp., 171 F.3d 1065, 1068 (6th Cir.1999) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Once the moving party meets this burden, the non-movant must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
The standard for summary judgment does not change when a court is presented with cross-motions for summary judgment. Profit Pet v. Arthur Dogswell, LLC, 603 F.3d 308, 312 (6th Cir.2010). When reviewing cross-motions for summary judgment, "a court must evaluate each motion on its own merits and view all facts and inferences in the light most favorable to the nonmoving party." Appoloni v. U.S., 450 F.3d 185, 189 (6th Cir.2006) (quoting Westfield Ins. Co. v. Tech Dry, Inc., 336 F.3d 503, 506 (6th Cir.2003)).
"The fact that the parties have filed cross-motions for summary judgment does not mean, of course, that summary judgment for one side or the other is necessarily appropriate. `When parties file cross-motions for summary judgment, "the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist."'"
Parks v. LaFace Records, 329 F.3d 437, 444-45 (6th Cir.2003) (quoting B.F. Goodrich Co. v. United States Filter Corp., 245 F.3d 587, 593 (6th Cir.2001) (citing 10A Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, FEDERAL PRACTICE AND PROCEDURE, § 2720 (3d ed.1998))). "At the same time, `cross motions for summary judgment do authorize the court to assume that there is no evidence which needs to be considered other than that which has been filed by the parties.'" Greer v. United States, 207 F.3d 322, 326 (6th Cir.2000) (quoting Harrison W. Corp. v. Gulf Oil Co., 662 F.2d 690, 692 (10th Cir.1981)).
Discussion
A. Whether res judicata is a bar to the Trustee's actions under 11 U.S.C. §§ 547 and 544
JP Morgan argues that the same issues embodied in the Trustee's claims under 11 U.S.C. § 547 and § 544 were presented incident to its motion for relief from the automatic stay and were thus litigated at the time that uncontested motion was before the Court. Thus, it argues, due to the Trustee's failure to contest its motion, this Court's order granting it relief from the automatic stay is a final order precluding the Trustee from subsequently re-litigating all claims, issues, and defenses that could, or should, have been raised at the time it moved for relief from the automatic stay.
The Trustee disagrees and contends that JP Morgan overstates the limited determination made by a bankruptcy court when it grants relief from the automatic stay under § 362(d), asserting that the validity and avoidability of JP Morgan's lien were never litigated and could not have been *612 litigated in the context of a motion for relief from the automatic stay, and thus, JP Morgan cannot establish two of the required elements of res judicata.
The doctrine of res judicata has been broadly described in case law to refer to separate preclusion concepts known as claim preclusion (res judicata) and issue preclusion (collateral estoppel). To avoid any confusion between these different preclusion concepts, this opinion refers to the term res judicata as being synonymous with, and limited to, claim preclusion. As explained by the United States Supreme Court in New Hampshire v. Maine, 532 U.S. 742, 748-49, 121 S.Ct. 1808, 1814, 149 L.Ed.2d 968 (2001):
Claim preclusion generally refers to the effect of a prior judgment in foreclosing successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit.
In the Sixth Circuit, a claim is barred by the res judicata effect of prior litigation if each of these four elements are established: `"(1) a final decision on the merits by a court of competent jurisdiction; (2) a subsequent action between the same parties or their `privies'; (3) an issue in the subsequent action which was litigated or which should have been litigated in the prior action; and (4) an identity of the causes of action.'" Browning v. Levy, 283 F.3d 761, 771 (6th Cir.2002) (citing Bittinger v. Tecumseh Prods. Co., 123 F.3d 877,. 880 (6th Cir.1997)). A party asserting res judicata as a defense bears the burden of proving each element. Id. at 772.
The first element of res judicata is not satisfied because while the order granting relief from the automatic stay is a final order (see In re Sun Valley Foods Co., 801 F.2d 186, 189 (6th Cir.1986)), its scope and effect is determined and limited to the merits and grounds raised by JP Morgan in its motion (which are more fully hereinafter explained in the Court's analysis of the third element of res judicata).
The second element is satisfied. Both the Trustee and JP Morgan were parties in interest in the bankruptcy case prior to the commencement of this adversary proceeding: the Trustee, as such, and JP Morgan due to its claim against the Debtor. Also, there is no dispute that the Trustee was properly served with and did not oppose JP Morgan's motion for relief from the automatic stay. This adversary proceeding then is a "subsequent action between the same parties."
For the third element to be established, the Court must determine whether the issues raised in the Trustee's causes of action were litigated or could have been litigated at the time JP Morgan moved for relief from the automatic stay. Without providing any authority for its position, JP Morgan contends that the order granting relief from the automatic stay conclusively determined its perfected status in the Debtor's property resulting in precluding the Trustee from thereafter pursuing actions in this proceeding under § 547 and § 544. The Trustee responds that (1) the issues encompassed in a motion for relief from the automatic stay are limited to the statutory grounds for such expressed in § 362(d), which include: lack of adequate protection of the creditor's interest; a debtor's lack of equity in the property and whether the property is necessary for an effective reorganization; (2) each of those grounds center on a basic legal threshold requirement of whether a creditor possesses a "colorable" claim to estate property; and (3) once a creditor proves that its claim is "colorable," a court will grant relief from the automatic stay to allow the creditor to fully pursue its federal or state law rights against the debtor or property *613 of the estate without being exposed to liability for a violation of the automatic stay. In support of his argument, the Trustee primarily relies on Grella v. Salem Five Cent Savings Bank, 42 F.3d 26 (1st Cir.1994).
Like this case, Grella v. Salem involved a chapter 7 trustee's attempt to avoid a bank's unperfected security interest in estate property on preferential transfer grounds. After being granted relief from the automatic stay, the creditor filed an adversary proceeding to determine the validity of its lien. In turn, the trustee filed an answer and a counterclaim against the creditor alleging that its interest in estate property was avoidable as a preferential transfer. In opposing the trustee's claim, the bank argued that the trustee was barred from pursuing his preference action based on grounds of either claim preclusion or issue preclusion because he failed to contest or file an objection to the bank's motion for relief from the automatic stay under § 362(d)(1), and that the validity of its security interest had already been decided when the bankruptcy court granted it relief from the automatic stay under § 362(d)(1).
Based on an issue preclusion analysis, the Court of Appeals held that a determination on a motion for relief from the automatic stay under § 362(d) is limited in scope and does not have preclusive effect on a trustee's subsequent lien avoidance claims. The Court in Grella reasoned that
Congress included the provision for relief from stay under § 362(d), allowing bankruptcy courts to lift the stay as to certain creditors if grounds for relief are presented.... These grounds are the adequacy of protection for the creditor, the debtor's equity in the property, and the necessity of the property to an effective reorganization. 11 U.S.C. § 362(d). That the statute sets forth certain grounds for relief and no others indicates Congress' intent that the issues decided by a bankruptcy court on a creditor's motion to lift the stay be limited to these matters.
Id. at 31. The Court then went on to explain the significant procedural differences that exist between a motion for relief from the automatic stay and a preferential transfer claim as follows:
The relief from stay procedures established by the Bankruptcy Rules also point to the limited scope of the hearing. Relief from stay is obtained by a simple motion, ... and it is a "contested matter," rather than an adversary proceeding.... In contrast, all actions to determine the validity of a lien, such as a preference action under § 547, require full adjudication on verified pleadings, and must be limited in adversary proceedings.... To allow a relief from stay hearing to become more extensive than a quick determination of whether a creditor has a colorable claim would turn the hearing into a full scale adversary lawsuit... and would be inconsistent with this procedural scheme.
Moreover, the Bankruptcy Code [in Section 546(a)(1) ] specifically provides that a trustee has two years after appointment or until the close of the case to commence a § 547 preference action. A relief from stay proceeding, conversely, is usually commenced very shortly after the bankruptcy petition is filed, and, as explained above, must be completed no more than sixty days from the filing of the motion for relief. Forcing trustees to raise their counterclaims within that short period, usually during nascent stages of a bankruptcy case, would in effect allow movant creditors to drastically reduce the two-year limitations period set forth in the Code. Not only is *614 this result patently unfair and inefficient, it renders the Bankruptcy Code's statutes of limitations provision irrelevanta result we cannot endorse.
Id. at 33 (internal citations omitted). For these reasons, the Court held that
a court hearing on a motion for relief from [the automatic] stay should seek only to determine whether the party seeking relief has a colorable claim to property of the estate. The statutory and procedural schemes, the legislative history, and the case law all direct that the hearing on a motion to lift the stay is not a proceeding for determining the merits of the underlying substantive claims, defenses, or counterclaims. Rather, it is analogous to a preliminary injunction hearing, requiring a speedy and necessarily cursory determination of the reasonable likelihood that a creditor has a legitimate claim or lien as to a debtor's property. If a court finds that likelihood to exist, this is not a determination of the validity of those claims, but merely a grant of permission from the court allowing that creditor to litigate its substantive claims elsewhere without violating the automatic stay.
Id. at 33-34. In applying its holding, the Grella Court pointed out that the order lifting the automatic stay entered by the bankruptcy court did not make any findings about the status of the creditor's security interest in estate property. It explained that the court "did not, and indeed, could not adjudicate the substantive merits of either the creditor's claim or any possible defenses or counterclaims." Id. at 35.
The Court is persuaded by the reasoning in Grella v. Salem, Although its analysis is based on issue preclusion, it is nonetheless instructive and on point to the third element of res judicatawhether an issue exists in the subsequent action which was litigated or which should have been litigated in the prior action. Browning v. Levy, 283 F.3d 761, 771 (6th Cir.2002) (citing Bittinger v. Tecumseh Prods. Co., 123 F.3d 877, 880 (6th Cir.1997)). In Browning, the court explained that before deciding whether the claims "should have been brought" in a prior action, a court "must first consider whether those claims could have been brought in that forum." Id. at 772 (emphasis in original).
Several cases have reasoned that it is entirely appropriate for a party, including a trustee, to raise a defense or counterclaim in response to a motion for relief from the automatic stay. G & B Aircraft Mgmt. v. Smoot (In re Utah Aircraft Alliance, 342 B.R. 327 (10th Cir. BAP 2006)). Yet, once a defense or counterclaim is raised, a court may exercise its discretion to consider such defenses or counterclaims on a limited basis in the context of determining whether to grant or deny a movant's request for relief from the automatic stay. In re Hubbel, 427 B.R. 789 (N.D.Cal.2010) (finding no abuse of discretion in decision by bankruptcy court to deny movant relief from the automatic stay based on its conclusion on existing doubts about the validity of movant's security interest, which had to be determined through an adversary proceeding or by an evidentiary hearing). As explained by many cases, any such defenses or counterclaims raised during a § 362(d) hearing, would and should still be pursued in the context of an adversary proceeding for a final decision on their merits. In re Hurst, 409 B.R. 79, 83 (Bankr.D.Md.2009) (explaining that "[w]hile a court may consider counterclaims that strike at the core of a movant's secured interest, any such decision should be preliminary, pending an adversary proceeding"); Montgomery v. Dennis Joslin Co., (In re Montgomery), 262 B.R. 772, 775 (8th Cir. BAP 2001) (noting that a court has discretion under § 362(d) to consider defenses or claims to *615 a movant's interest as secured party but "the consideration cannot result in a preclusive adjudication on the merits of the underlying claim for avoidance"); and In re Tally Well Service, Inc., 45 B.R. 149, 151 (Bank.E.D.Mich.1984) (explaining that it is perfectly appropriate for a court to consider counterclaims and defenses at a preliminary hearing under § 362(d) but that "it is not the proper time or place for a full adjudication of the trustee's claims against the creditor") (emphasis in original).
The Court therefore concludes that while the Trustee could have asserted his § 547 and § 544 causes of action as counterclaims to JP Morgan's motion for relief from the automatic stay, he was not required to do so. Likewise, even if the Trustee had raised such counterclaims, this Court would not have been required to rule on them. The Court finds that any determination under § 362(d) is narrowly limited to whether a creditor has a colorable claim against property of the estate. Any decision would be made solely on the statutory grounds expressed in § 362(d). The possible avoidability of a transfer under § 547 or a lien avoidance action based on a trustee's invocation of his strong arm powers under § 544 are beyond the scope of a court's limited inquiry under § 362(d). Grella v. Salem, 42 F.3d at 32 (collecting cases determining that a decision to lift the automatic stay does not involve a determination of counterclaims and thus those counterclaims are not precluded from being brought later); see also In re Vitreous Steel Prod. Co., 911 F.2d 1223, 1234 (7th Cir.1990) (noting that questions of preferential transfers under § 547 are not generally at issue in a § 362 hearing, but only whether there is a colorable claim on property) and Johnson v. Righetti (In re Johnson), 756 F.2d 738, 740-41 (9th Cir.1985) ("Hearings on relief from the automatic stay are thus handled in a summary fashion. The validity of the claim or contract underlying the claims is not litigated during the hearing."), overruled on other grounds by Travelers Cos. & Sur. Co. v. Pac. Gas & Eke. Co., 549 U.S. 443, 127 S.Ct. 1199, 167 L.Ed.2d 178 (2007).
Applying this reasoning to the facts in this proceeding, it is apparent to the Court that the order entered in the Debtor's bankruptcy case granting relief from the automatic stay to JP Morgan does not have preclusive effect on the Trustee's claims in this adversary proceeding. In its stay lift motion, JP Morgan merely alleged that it was a "holder of a mortgage on property owned by the Debtor." It did not allege that it held a perfected interest in the Debtor's property. Nor did it allege any other facts about the validity of its security interest. In addition, JP Morgan alleged facts asserting that it was entitled to relief from the automatic stay based on the statutory grounds provided under § 362(d)(1) and (2) because cause existed to terminate the stay because its interest was not adequately protected; the Debtor did not have any equity in the Property and the Property was not necessary to an effective reorganization. The Trustee's failure to file a reply to JP Morgan's motion for relief from the automatic stay was, at most, an admission based on these grounds that JP Morgan possessed a colorable claim in the Debtor's property.
Likewise, the order entered by the court, which was prepared and submitted by JP Morgan, is limited to the following two paragraphs
JP Morgan Chase Bank, National Association... having filed a Motion For Relief From The Automatic Stay with respect to the property located at 29232 Lyndon St, Livonia, MI 48154-J526; and the approximate market value of the property is $85,000; and the current debt owing is approximately $179,435,00, which includes Movant's Attorney fees and costs for filing this Motion; and any *616 surplus on the sale of this property shall be distributed pursuant to applicable state law and procedures; and any deficiency on the sale of this property shall be treated as an unsecured debt; and the Court being in receipt of the Motion and Certificate of No Response, and the Court being fully advised in the premises:
IT IS HEREBY ORDERED that the Automatic Stay is hereby terminated as to Movant with respect to the property located at 29232 Lyndon St, Livonia, MI XXXXX-XXXX to allow Creditor to commence or continue its federal and/or state law rights to the property. This Order shall be binding and effective despite any conversion of this bankruptcy case to a case under any other chapter of Title 11 of the United States Bankruptcy Code.
(Def.'s Mot. Ex. D). Based on the language in the order, JP Morgan was permitted to begin litigation, relative to the Property in an appropriate forum without any findings being made by this Court as to the validity of or the avoidability of JP Morgan's interest in the Property. There was no adjudication on the Trustee's rights to avoid JP Morgan's interest as a preferential transfer under § 547 or pursuant to the strong-arm powers under § 544. Therefore, entry of this order did not preclude the Trustee from challenging the validity of JP Morgan's interest in the Property in this subsequent adversary proceeding, and thus JP Morgan has not established the third element of res judicata.
The fourth and final element of res judicata requires that there be an identity of claims. "Identity of causes of action means an "identity of the facts creating the right of action and of the evidence necessary to sustain each action." " Sanders Confectionery Products, Inc. v. Heller Financial, Inc., 973 F.2d 474, 484 (6th Cir.1992) (quoting Westwood Chemical Co. v. Kulick, 656 F.2d 1224, 1227 (6th Cir. 1981)). JP Morgan's motion for relief from the automatic stay hinged on its assertions that the Debtor was in default of his loan agreement; its mortgage interest was not adequately protected; that there was no equity in the Property because the value of the Property was less than the balance due under the loan agreement and that the Property was not necessary to an effective reorganization. In order to establish these assertions, JP Morgan would have to rely on these alleged facts (and evidence), all of which go to its contractual relationship with the Debtor. These alleged facts and the evidence necessary to support them are not identical to those required under the Trustee's § 547 or § 544 actions. The allegations that underlie both those counts of the Trustee's complaint deal with the validity and avoidability of JP Morgan's interest in the Property due to its unperfected status under Michigan law. These are functionally and substantively different causes of actions from that asserted in JP Morgan's motion for relief from the automatic stay, and therefore, the issues under JP Morgan's motion and the Trustee's causes of action are not identical. Thus, the fourth and final element of res judicata is not satisfied. Viewing the facts in the light most favorable to the Trustee, the Court finds that there are no genuine issues of material fact that the Trustee's § 547 and § 544 claims are not barred by the doctrine of res judicata. Accordingly, JP Morgan's motion for summary judgment based on res judicata is denied.
B. Whether JP Morgan Possesses An Unsecured Interest In The Property
1. The Effectiveness of the Recorded Claim of Interest Under Michigan Law
In his complaint, the Trustee alleged that the Lis Pendens recorded by JP Morgan *617 constituted a transfer of the Debtor's interest in real property under 11 U.S.C. § 547. At the time he moved for summaryjudgment, however, the Trustee differently asserted that the transfer at issue and subject to avoidance under § 547 was the Claim of Interest recorded by JP Morgan, arguing it is ineffective under Michigan law because it does not comply with the recording requirements under Mich. Comp. Laws § 565.201 or § 565.451a. Even if the Claim of Interest was permitted to be recorded, the Trustee contends that it is insufficient and may not be used as a substitute to record and perfect JP Morgan's mortgage interest in the Property, which then remains unperfected because the original mortgage was never validly recorded in the proper county. The Trustee maintains that pursuant to either argument, the mortgage (i.e., the transfer) is deemed to have been perfected "immediately before the date of filing of the petition" under § 547(e)(2)(C).
JP Morgan argues that the Claim of Interest with an attached copy of the original mortgage recorded on March 11, 2009, pursuant to Mich. Comp. Laws Ann. § 565.451a, was sufficient to perfect its interest in the Property, and thus because the recording date of the Claim of Interest occurred outside the 90 day statutory preference period, its interest is not subject to avoidance under § 547.
JP Morgan does not dispute that the Trustee has established four out of the five required elements of an avoidable preference as set forth in § 547(b). The fifth element is one of law i.e.: If JP Morgan's interest was properly perfected before the 90-day preference period, the Trustee would not be able to avoid the transfer because he could not establish that the transfer was made within the 90 day period.. On the other hand, if JP Morgan's interest was perfected within the 90-day preference period, the Trustee would be able to successfully establish the remaining essential element under § 547(b)(4)(A).
In Michigan, perfection occurs upon recording. See Mich. Comp. Laws Ann. § 565.29 (West 1988) ("Every conveyance of real estate within the state ... which shall not be recorded ... shall be void as against any subsequent purchaser in good faith and for valuable consideration, of the same real estate or any portion thereof, whose conveyance shall be first duly recorded."). It is undisputed that the original mortgage was not recorded in the proper county. Instead, the document recorded consists of a Claim of Interest, which is in affidavit form and states the following:
Brian Yoho, who is the attorney and agency for Washington Mutual Bank as servicing agent for Washington Mutual Bank, FA, being duly sworn, deposes and states as follows:
1. That this Claim of Interest is filed in accordance with the provisions of MCL 565.451a; which provides for giving and recording of notice relating to certain matters which may affect the title to real property in the State of Michigan and to claim of interest in land, respectively.
2. That in accordance with the provisions of the aforementioned sections, NOTICE IF HEREBY GIVEN Washington Mutual Bank as servicing agent for Washington Mutual Bank FA submits this Claim of Interest as to certain parcel of real property (Subject Property) located in the City of Livonia, County of Wayne, State of Michigan, more particularly described as follows:
Lot 40, Marcy Ann Subdivision, recorded in Liber 86, Pages 67 and 68 of Plats, Wayne County Records. More commonly known as 29232 Lyndon St, Livonia MI XXXXX-XXXX.
*618 3. That on August 31,2004, a mortgage was made by Haddi Lebbos and Julie Lebbos, Husband and Wife, to Washington Mutual Bank, FA, in the original principal sum of $160,000.00 (the Mortgage) (Exhibit A).
4. That the Mortgage was given as security for a note (Note) in the principal sum of $160,000.00 which was executed by Haddi Lebbos and Julie Lebbos, Husband and Wife.
5. That said Mortgage was recorded erroneously in Macomb County.
6. That the Mortgage held by Washington Mutual Bank as servicing agent for Washington Mutual Bank, FA had not been satisfied and there remains an outstanding balance of approximately $175,176.55.
7. That Washington Mutual Bank as servicing agent for Washington Mutual Bank, FA, hereby claims an interest in the above-reference property by virtue of the Mortgage given by Haddi Lebbos and Julie Lebbos, Husband and Wife.
(Def.s' Ex. B).
In support of their respective positions, the Trustee and JP Morgan rely on cases from Bankruptcy Courts in this District that reached opposite conclusions as to whether the recording of an affidavit pursuant to Mich. Comp. Laws Ann. § 565.451a could be deemed to perfect an interest in real property when an original mortgage document itself could no longer be used for recording purposes. The Trustee relies on Lewis v. Pub. Serv. Credit Union (In re Neal), 406 B.R. 288 (Bankr.E.D.Mich.2009), which held that an affidavit recorded under Mich. Comp. Laws Ann. § 565.451a was ineffective to record or perfect a conveyance (i.e., a mortgage) in real property. JP Morgan, on the other hand, relies on Camacho v. Homeq Serv. Corp. (In re Camacho), 311 B.R. 186 (Bankr.E.D.Mich.2004), which held that an affidavit of lost mortgage that recites facts affecting title to real property in Michigan may be recorded to perfect a mortgage interest. After a thorough review of In re Neal and In re Camacho, the Court is persuaded by In re Neal and determines that its analysis and conclusions should be applied here.
Mich. Comp. Laws Ann. § 565.451a states:
An affidavit stating facts relating to any of the following matters which may affect the title to real property in this state made by any person having knowledge of the facts or by any person competent to testify concerning such facts in open court, may be recorded in the office of the register of deeds of the county where the real property is situated:
(a) Birth, age, sex, marital status, death, name, residence, identity, capacity, relationship, family history, heirship, homestead status and service in the armed forces of parties named in deeds, wills, mortgages and other instruments affecting real property;
(b) Knowledge of the happening of any condition or event which may terminate an estate or interest in real property;
(c) Knowledge of surveyors duly registered under the laws of this state with respect to the existence and location of monuments and physical boundaries, such as fences, streams, roads and rights of way of real property;
(d) Knowledge of such registered surveyors reconciling conflicting and ambiguous descriptions in conveyances with descriptions in regular chain of title;
(e) Knowledge of facts incident to possession or the actual, open, notorious *619 and adverse possession of real property; or
(f) Knowledge of the purchaser, or in the case of a corporation, of its president, vice president, secretary, or other duly authorized representative acting in a fiduciary or representative capacity, of real property sold upon foreclosure or conveyed in lieu of foreclosure of a trust mortgage or deed of trust securing an issue of bonds or other evidences of indebtedness, or of any mortgage, land contract or other security instrument held by a fiduciary or Other representative, as to the authority of such purchaser to purchase the real property and as to the terms and conditions upon which the real property is to be held and disposed of.
In construing Mich. Comp. Laws Ann. § 565.451a, the court in Neal concluded:
that the statute is clear enough on its face in describing the types of disclosures that may be made in an affidavit presented for filing and that a lost mortgage is not among them. It is equally clear that even if recorded, an affidavit of lost mortgage does not perfect a mortgage as if the original had been properly recorded.
406 B.R. at 292. The court in Neal further reasoned that Michigan's recording statutes
apply to any instrument that conveys an interest in property and that the affidavit did not itself convey an interest in property. Therefore, it cannot be recorded to establish the conveyance or to perfect the conveyance.... Because the mortgage itself was not recorded, it was not perfected. Although a copy of the mortgage was attached to the affidavit, it did not contain an original signature and therefore did not meet the requirements for recording a real estate conveyance.
Id. (citing Mich. Comp. Laws Ann. § 565.201(l)(a)).
JP Morgan did not direct the Court's attention to a particular permissible category under Mich. Comp. Laws Ann. § 565.451a that its Claim of Interest falls into. A review of each one of categories under Mich. Comp. Laws Ann. § 565.451a indicates that none of them cover its recorded Claim of Interest. Like the affidavit of lost mortgage in Neal, the recordation of the Claim of Interest is not among the situations enumerated or permitted under Mich. Comp. Laws Ann. § 565.451a for the recording of an affidavit against real property. Therefore, it was not entitled to be recorded and is thereby insufficient to perfect JP Morgan's mortgage interest in the Property. In re Neal, 406 B.R. at 292; see also Wells Fargo Home Mortgage, Inc. v. Richardson (In re Brandt), 434 B.R. 493, 501 (W.D.Mich. 2010) (explaining that under Michigan law, "[i]f a recorded document is not in compliance with law or was not entitled to be recorded, the record is a nullity and is "entirely inoperative" to provide notice") (citations omitted). This latter is what this Court agrees with and concludes in this proceeding.
2. The other curative Michigan statutes relied on by JP Morgan are not applicable
JP Morgan also argues that even if the Court finds that its Claim of Interest was not perfected, it is nonetheless valid under Michigan law by virtue of other Michigan statutes, citing Mich. Comp. Laws § 565.201(4) and § 565.604. Although the Trustee did not address this argument, the Court finds that neither one of these statutes are useful to JP Morgan.
Mich. Comp. Laws § 565.201(4) states that "Any instrument received and recorded by a register of deeds shall be conclusively presumed to comply with this *620 act. The requirements contained in this act are cumulative to the requirements imposed by any other act relating to the recording of instruments." JP Morgan construes this statute to mean that its Claim of Interest was "conclusively established under the recording statutes" upon its acceptance and recording by the Wayne County Register of Deeds. The Court disagrees. There is a difference between a recorded document, like the Claim of Interest, being conclusively presumed to comply with the requirements as to its form pursuant to Mich. Comp. Laws §§ 565.201-565.203 and one that is effective to properly perfect a mortgage interest in property.
Mich. Comp. Laws § 565.604 provides:
No conveyance of land or instrument intended to operate as such conveyance, made in good faith and upon a valuable consideration, whether heretofore made or hereafter to be made, shall be wholly void by reason of any defect in any statutory requisite in the sealing, signing, attestation, acknowledgment, or certificate of acknowledgment thereof; nor shall any deed or conveyance, heretofore or hereafter to be made, designed, and intended to operate as a conveyance to any religious, fraternal, scientific or benevolent society, or corporation, be wholly void by reason of any mistake in the name or description of the grantee, nor because of any failure to such society or corporation to comply with any statutory provisions concerning the organization of such society or corporation: Provided, Such society or corporation shall hereafter comply with the provisions of the statute touching the organization or incorporation of such societies; but the same, when not otherwise effectual to the purposes intended, may be allowed to operate as an agreement for a proper and lawful conveyance of the premises in question, and may be enforced specifically by suit in equity in any court of competent jurisdiction, subject to the rights of subsequent purchasers in good faith and for a valuable consideration; and when any such defective instrument has been or shall hereafter be recorded in the office of the register of deeds of the county in which such lands are situate, such record shall hereafter operate as legal notice of all the rights secured by such instrument.
JP Morgan did not provide any explanation or reasoning as to how Mich. Comp. Laws § 565.604 applies to cure its defective Claim of Interest. By its express language that statute seeks to provide an equitable remedy under certain circumstances. One circumstance addresses conveyances or instruments that will not be deemed wholly void if they are made in good faith and upon valuable consideration merely because of certain defects in the statutory requirements "in the sealing, signing, attestation, acknowledgment, or certificate of acknowledgment." The other circumstance pertains to a conveyance or instrument to religious, fraternal, scientific or benevolent society, or corporation that is defective. Neither one of these circumstances are at issue or relevant to JP Morgan's Claim of Interest in this proceeding. Even if they were present, JP Morgan exaggerates and misuses the relief provided by Mich. Comp. Laws § 565.604. This statute recognizes that while a recorded instrument may be ineffective for the purposes intended, a party is provided with the right to use the recorded instrument or conveyance as evidence of an agreement as to the conveyance of the property in question in an equitable action to enforce such recorded instrument subject to the rights of a good faith purchaser. As a result, the Court determines that Mich. Comp. Laws § 565.604 is unavailing here.
*621 For all these reasons, the recorded Claim of Interest failed to perfect JP Morgan's mortgage interest in the Property and thus the mortgage itself remained unperfected. Under § 547(e)(2)(C), the transfer is deemed to have been made immediately before the filing date of the Debtor's bankruptcy petition, which falls within the 90 day statutory preference period.
Conclusion
For the reasons explained in this opinion, the Court concludes that JP Morgan's motion for summary judgment is denied and the Trustee's motion for summary judgment on his preference claim under § 547 is granted. The Trustee shall present an appropriate order.
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