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scaling_mia_the_pile_00_FreeLaw

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT GISELA VORSPRECHER DIBBLE, Plaintiff-Appellant, v. REGENTS OF THE UNIVERSITY OF MARYLAND SYSTEM; FREEMAN A. HRABOWSKI, Dr., in his official capacity as President of The University of Maryland; MICHAEL K. HOOKER, individually and as former president of The University of Maryland; ARTHUR O. PITTENGER, individually and as Dean of Arts and Humanities, University of No. 95-2317 Maryland Baltimore Campus; ROBERT A. SLOANE, individually and as Chair of the Modern Languages and Linguistics Department, University of Maryland Baltimore Campus; RENATE M. FISCHETTI; JOHN H. SINNIGEN, individually and as Associate Professor and Former Chair of the Modern Languages and Linguistics Department, University of Maryland Baltimore Campus, Defendants-Appellees, and ANGELA B. MOORJANI, individually and as Associate Professor and Former Chair of the Modern Languages and Linguistics Department, University of Maryland Baltimore Campus, Defendant. Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, Chief District Judge. (CA-93-1792-JFM) Submitted: June 11, 1996 Decided: June 26, 1996 Before HALL and WILLIAMS, Circuit Judges, and PHILLIPS, Senior Circuit Judge. _________________________________________________________________ Affirmed by unpublished per curiam opinion. _________________________________________________________________ COUNSEL Tracy E. Mulligan, Rockville, Maryland, for Appellant. J. Joseph Curran, Jr., Attorney General, Anne L. Donahue, Assistant Attorney General, Baltimore, Maryland, for Appellees. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ 2 OPINION PER CURIAM: Appellant Gisela V. Dibble appeals the district court's order grant- ing summary judgment to the Appellees in this action alleging employment discrimination. Finding no reversible error, we affirm. Dibble, a former part-time German professor at the University of Maryland, Baltimore County ("UMBC"), filed a complaint pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e (West 1994), alleging that the Defendants discriminated against her in various respects. Dibble named as Defendants The Regents of the University of Maryland System, the current and immediate past presi- dents of the University, the Dean of Arts and Humanities, the Chair of Modern Languages and Linguistics Department, and a tenured associate professor and coordinator of the German language area in that department. Dibble asserted claims under Title VII, the Equal Pay Act of 1963 (29 U.S.C. § 206(d)(1) (1988)), and 42 U.S.C.§ 1983 (1988). Specifi- cally, Dibble asserted that the Defendants violated those statutes by (1) failing to place her in a tenure-track position, (2) failing to pay her the salary of a full-time professor to compensate her for extra work that she performed, and (3) not renewing her part-time contract in retaliation for having filed discrimination complaints with various university officials. Finding that Dibble failed to offer evidence of any triable issues, the district court granted summary judgment to the Defendants on all claims. Dibble is a German-born, Protestant woman. She held various posi- tions at the University teaching German. From 1979 to 1984, Dibble worked as a teaching assistant (a faculty position) and taught college level courses at the University's College Park Campus. From 1983 to 1984, she also taught part-time at UMBC while completing her Ph.D dissertation. In the fall of 1984, UMBC hired Dibble as a part-time instructor in the Department of Modern languages and Linguistics. Dibble remained a part-time instructor until 1988. During the 1988- 1989 academic year, she was hired as a full-time lecturer to replace Dr. Brigitte May who was on leave for one year. In 1989, UMBC 3 returned Dibble to part-time instructor status, a position she held until the 1991-1992 academic year. Sometime at the end of her year appointment as a full-time profes- sor in 1989, Dibble began complaining to Dr. Fischetti about her course assignments and failure to be assigned upper level courses. She made additional complaints to Dr. Sloane and Dean Pittenger in December 1990. In the fall of 1991, Sloane informed Dibble that he had decided not to recommend renewal of her employment contract for the following fall semester. In December 1991, Dibble com- plained to University President Hooker of sexual discrimination. On May 15, 1992, UMBC formally declined to renew Dibble's employ- ment contract for the fall 1992 semester. There is a hierarchy of faculty positions at UMBC. The tenured or tenure-track jobs are titled full professors, associate professors, and assistance professors. The associate and full professor jobs typically are tenured positions. An assistant professor is not tenured, but is enti- tled to tenure consideration no later than six years after commencing university employment. All other categories, such as lecturer and instructor, are non-tenure track positions: they are not tenured nor do they lead to consideration for tenure. Part-time faculty members at UMBC are hired on a contractual basis for specific instructional duties for a specific period time, gener- ally one semester. In Dibble's case, she received an appointment letter each semester beginning in the fall of 1984 through the spring of 1992. The appointment letters contained the following language: It should be understood that this appointment implies no commitment on the apart of the University beyond the [Spring][Fall] semester, although circumstances may lead to its renewal. The letters were signed by the University and counter-signed by Dib- ble. The agreement for the 1988-1989 academic year for which Dib- ble was hired as a full-time lecturer contained a similar term limitation. 4 We review the district court's award of summary judgment de novo. Higgins v. E.I. Du Pont de Nemours & Co. , 863 F.2d 1162, 1167 (4th Cir. 1988). Summary judgment is appropriate when the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). In ruling on a motion for summary judgment, a court must assess the evidence in the light most favorable to the non- moving party. Charbonnages de France v. Smith , 597 F.2d 406, 414 (4th Cir. 1979). Although summary judgment disposition should be used sparingly in employment discrimination cases, it is appropriate where there is no genuine dispute of material fact. Ballinger v. North Carolina Agric. Extension Serv., 815 F.2d 1001, 1004-05 (4th Cir.), cert. denied, 484 U.S. 897 (1987). A. Denial of Tenure-Track Position Dibble's first claim is that the Defendants violated Title VII and 42 U.S.C. § 1983 by denying her appointment and opportunity for a full- time tenure-track position. Dibble alleges discrimination under Title VII on the basis of her gender, religion, and national origin. Dibble's claim under § 1983 appears to be premised on underlying violations of the First and Fourteenth Amendments to the Constitution. More specifically, Dibble seems to assert that the Defendants refused to grant her a tenure-track position based upon her non-Marxist world view, with which the Defendants disagreed. See generally Ollman v. Toll, 518 F. Supp. 1196, 1201-02 (D. Md. 1981), aff'd, 704 F.2d 139 (4th Cir. 1983) (state may not exclude person from employment based upon political beliefs). As the district court correctly noted, however, this claim suffers from a fundamental factual flaw. The record contains absolutely no evidence that there was a tenure-track position available in the Ger- man department at UMBC during any relevant time frame to which Dibble could have been appointed. Dibble herself does not dispute this fact. Rather, she contends that a tenure-track position should have been opened for her in 1992. In that year, Dr. May, who had held such a position, withdrew from the tenure track because she was unable to meet certain requirements for tenure. After that occurred, UMBC decided that instead of continuing the tenure-track position in Ger- man, the position that had been held by Dr. May should be divided 5 into a number of half-time instructor positions among the French, Russian, Spanish, and German departments because of budget con- straints. Nonetheless, Dibble asserts that if she had not held the "world view" that she does, UMBC would have retained the tenure-track position in German and appointed her to it. However, the record bears no evidence to support such a claim. Dibble failed to present any facts to show that UMBC was not facing budget constraints or that the number of students enrolled in its French, Russian, and Spanish classes did not justify creating half-time instructor positions in those departments. Since Dibble bears the burden to prove her claim, the absence of any evidence entitled the Defendants to summary judg- ment, and the district court correctly so held. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). B. Equal Pay Act Claim Dibble's second claim is brought under the Equal Pay Act. Dibble alleged that she was paid one-third the salary of her "male counter- part," Dr. Edward Larkey, even though she was carrying an equiva- lent teaching load and performing essentially the same tasks. To establish a prima facie case under the Equal Pay Act, Dibble must show that (1) an employer is paying different wages to employees, (2) of opposite sex, (3) "for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are per- formed under similar working conditions." 29 U.S.C. § 206(d)(1); Houck v. Virginia Polytechnic Inst., 10 F.3d 204, 206 (4th Cir. 1993). Dibble must properly select a specific male comparator, Strag v. Board of Trustees, 55 F.3d 943, 950 (4th Cir. 1995), looking to see if they share a common core of tasks in their jobs. Hassman v. Valley Motors, Inc., 790 F. Supp. 564, 567 (D. Md. 1992). If the jobs to be compared have a common core of tasks, the inquiry turns on whether the differing or additional tasks require greater skill or responsibility. Cherrey v. Thompson Steel Co., 805 F. Supp. 1257, 1262 (D. Md. 1992). The undisputed evidence in the record reveals that the duties of a part-time professor are far less demanding than those of an assistant 6 professor or another full-time faculty member. In other words, Dibble is unable to show that Larkey is an appropriate male comparator. Dib- ble, as a part-time teacher, was required only to teach the course and have an office hour for that course so that students could have access to the instructor. In contrast, Larkey, as an assistant professor, was required to publish and engage actively in research in addition to teaching. He was required to advise students in their major, partici- pate in curriculum development, oversee the curriculum, participate in departmental, university, and community activities, and attend departmental meetings. Larkey's additional duties constituted fifty percent of his job responsibilities. Nonetheless, Dibble asserts that she performed equal work to Larkey because she voluntarily took on the additional responsibilities of teaching a full course lead, designing and developing courses, par- ticipating in curriculum development, researching and publishing, and participating in departmental meetings and student activities. Dibble contends that she and the University had a parol agreement regarding her employment. The district court properly found Dibble's Equal Pay Act claim to be meritless. First, she produced no evidence of a parol agreement. Second, Dibble could not unilaterally modify her written employment contract by voluntarily performing work not required of her. Third, the additional duties that Dibble performed did not equal Larkey's work. Dibble offered no evidence that she advised students in their major, oversaw the curriculum, or participated in departmental, uni- versity, and community activities to the same extent as is required of assistant professors. The fact that Dibble chose to assume additional duties does not entitle her to more pay. Therefore, the district court properly granted summary judgment to the Defendants on her Equal Pay Act claim. C. Retaliation Claim Dibble's final claim asserts that the Defendants retaliated against her for filing complaints of discriminatory treatment by not renewing her part-time contract. To prevail on her retaliation claim, Dibble must show that she engaged in protected activity, that UMBC took adverse employment action against her, and (3) that a causal connec- 7 tion existed between the protected activity and the adverse employ- ment action. Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989); Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985). Once Dibble establishes her prima facie case, the Defendants can rebut it with proof of some legitimate, non-retaliatory reason for the adverse action. Id. The burden of proof then shifts to Dibble to establish by a preponderance of the evidence that the prof- fered reasons are pretextual. Id. The district court properly found that Dibble failed to establish a prima facie case of retaliation. The only evidence Dibble offered to support her claim is that the decision not to renew was not formalized until after she complained to certain University officials. However, the record establishes that the non-renewal decision was made in the fall of 1991. Dr. Sloane informed Dibble in September or October of 1991 that he was not going to recommend the renewal of her contract. Dibble acknowledged that Sloane had the power to make appointment decisions. Dibble did not complain to President Hooker of Sloane's decision until December 1991. Dibble received written notification of her non-renewal in May 1992. Thus, while it is true that Dibble did not receive formal notification of her non-renewal until May 1992, she was aware as early as the fall of 1991 that her contract likely would not be renewed. Thus, the non- renewal decision was made before her complaints to the University president. Accordingly, absent some evidence of a causal connection between her complaints and the adverse employment decision, Dibble cannot establish a prima facie case of retaliation. Dibble offered no evidence suggesting that if the complaints had not been made, UMBC would have rescinded the decision to terminate her part-time contract. We find nothing in the record to suggest that the district court erred in concluding that Dibble failed to prove a causal nexus between her complaints to University officials and the decision to terminate her contract. Accordingly, we affirm the district court's order. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 8	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6666 ADRIAN JOHNSON, Petitioner - Appellant, v. JON OZMINT, Director; WARDEN OF PERRY CORRECTIONAL INSTITUTION, Respondents - Appellees. Appeal from the United States District Court for the District of South Carolina, at Rock Hill. R. Bryan Harwell, District Judge. (0:08-cv-03928-RBH) Submitted: October 19, 2010 Decided: October 27, 2010 Before DUNCAN, KEENAN, and WYNN, Circuit Judges. Dismissed by unpublished per curiam opinion. Adrian Johnson, Appellant Pro Se. Donald John Zelenka, Deputy Assistant Attorney General, Alphonso Simon, Jr., OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Adrian Johnson seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2254 (2006) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Johnson has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials 2 before the court and argument would not aid the decisional process. DISMISSED 3	{ "pile_set_name": "FreeLaw" }
287 B.R. 808 (2003) Mike MEOLI, et al, Plaintiffs, v. AMERICAN MEDICAL SERVICE OF SAN DIEGO, et al., Defendants. & Related Cross-Actions. No. CIV.97-1222-BTM(LSP). United States District Court, S.D. California. January 9, 2003. 809 810 Thomas M. Monson, Miller, Monson, Peshel, Polacek and Hoshaw, Judith M. Finch, Law Office of Judith M. Finch, San Diego, CA, Richard Alan Lucal, Law Offices of Richard A. Lucal, Vista, CA, J. Mark Dunbar, Dunbar and Associates, La Jolla, CA, Brent W. Reden, Miles D. Scully, Gordon and Rees, San Diego, CA, for plaintiffs. Marc S. Schechter, Butterfield Schechter, A. Kendall Wood, III, Hinchy, Witte, Wood, Anderson and Hodges, San Diego, CA, John Macalester Sherwood, Law Offices of John Macalester Sherwood, San Francisco, CA, for defendants. Mike Meoli, San Diego, CA, Ronald L. Saathoff, San Diego, CA, Erik M. Windsor, San Marcos, CA, Wayne C. Whitney, Chula Vista, CA, John C. Warrick, Temecula, CA, Traci A. Wagner, San Diego, CA, Eric Vogt, El Cajon, CA, Debra K. Vidaurri, Ramona, CA, Miguel Verdugo, Oceanside, CA, Craig S. Tenma, San Diego, CA, Janet E. Terlouw, Temecula, CA, Matthew M. Thomas, San Diego, CA, Raymond Trussell, Escondido, CA, Craig Usher, Valley Center, CA, Zachary L. Valde, La Mesa, CA, Dorothy E. VanBuskirk, San Diego, CA, Steven Vandewalle, Julian, CA, Tom Venditti, San Diego, CA, Clyde Ada, San Diego, CA, Marsha Adamek, Fremont, CA, Tony Aguilar, Jr., Lakeside, CA, Thomas M. Anglim, San Diego, CA, James R. c/o American Medical Response, Jr., San Diego, CA, Denise Baker, Chula Vista, CA, Craig Balderson, Ramona, CA, Thea Barsalou, San Diego, CA, Darlene S. Bataresh, Temecula, CA, Daniel D. Beebe, Escondido, CA, Russell Belcher, San Diego, CA, Matthew Bergin, Fallbrook, CA, Greg Berry, La Mesa, CA, Colette Berkwick, Temecula, CA, Veryl Blakeley, San Diego, CA, Robert R. Blizzard, Poway, CA, Jim Bold, Oceanside, CA, Steve Braucht, Temecula, CA, Shell Bridges, San Diego, CA, Rick Burger, San Diego, CA, Steve Calderon, Bonita, CA, James D. Carter, Bonita, CA, Jesus Castro, San Diego, CA, Mark Caviness, Saint Louis, MO, John J. Cerruto, San Diego, CA, Cathy Chanley, Ramona, CA, Mike Chasin, San Diego, CA, Nancy J. Clapp, El Cajon, CA, Kimberly A. Clift, 811 San Diego, CA, Donna Cochran, Chula Vista, CA, Jon N. Coffman, Escondido, CA, Sharon E. Conger, Poway, CA, Leto Contreras, National City, CA, Jeff Conway, San Diego, CA, Ronald W. Crase, Oceanside, CA, Robert W. Cranfield, Bonita, CA, Pam Dastrup, Temecula, CA, Paul Dochmaschewsky, Huntington Beach, CA, Steven P. Duffy, Ramona, CA, Laurie C. Duncan, San Marcos, CA, Thomas M. Duncan, San Marcos, CA, Alfredo Duron, Chula Vista, CA, Bradley J. Dussault, San Diego, CA, Noel A. Edwards, San Diego, CA, Clinton C. Egleston, San Diego, CA, Sean M. Feather, Escondido, CA, Wesley J. Ferracioli, Sunset Beach, CA, Roger Fisher, Carlsbad, CA, Daniel J. Froelich, Temecula, CA, Carolyn R. Gain, Alpine, CA, Edward, San Diego, CA, Terri Glass, El Cajon, CA, Douglas L. Hagan, Encinitas, CA, Debra Hahn, Valley Center, CA, Evelyn Hallford, El Cajon, CA, Joseph E. Hand, Alpine, CA, David Helman, Temecula, CA, Baryic A. Hunter, San Diego, CA, Brent C. Hufford, San Diego, CA, Denise Hunter, Poway, CA, Pam Hunter, Spring Valley, CA, Jon D. Husby, San Diego, CA, Duane Ingerson, Chula Vista, CA, Kim Isaac, San Diego, CA, Peter S. Jaeb, Vista, CA, Kevin R. Johnson, Vista, CA, Wayne D. c/o American Medical Response, Lemon Grove, CA, Orin Jones, Palo Verde, CA, Richard P. Jones, Sugarland, TX, Daniel S. Kalberg, Oceanside, CA, Mark Karlin, Murrieta, CA, Steven M. Langenfeld, San Diego, CA, Dominic Liberatore, Greenville, NC, Gregory M. Lloyd, Ramona, CA, Justin Loffredo, Escondido, CA, Troy D. Loreth, Oceanside, CA, Sandra Lyon, El Cajon, CA, Ramon Maciel, Spring Valley, CA, Ramin Mahjoub, San Diego, CA, Kathleen c/o AMS of San Diego, San Diego, CA, Robert Mayorga, Clovis, CA, Cathy McGee, San Diego, CA, Ruth McGuire, San Diego, CA, Mitchell J. Mendler, Spring Valley, CA, Michael R. Meoli, San Diego, CA, Salvador Meza, National City, CA, Brian S. Mitchell, Oceanside, CA, Martin G. Morikado, San Diego, CA, Robert Morrison, Oceanside, CA, Ron Neenan, San Diego, CA, Craig R. Newell, San Diego, CA, Mark D. Norman, Los Angeles, CA, Timothy S. O'Malley, Carlsbad, CA, Amy Osborne, La Mesa, CA, Dave Picone, El Cajon, CA, Edward Galbicka, San Diego, CA, John R. Pringle, Jr., San Diego, CA, Karen E. Ramirez, San Ysidro, CA, Dulice Reden, Carlsbad, CA, Eric K. Rheinhardt, San Marcos, CA, Maria Rincon, National City, CA, Allan D. Rivas, San Diego, CA, Dave Rivas, San Diego, CA, Donnie Rivas, Temecula, CA, Rick Rod, San Diego, CA, Shaun Rohrbach, San Diego, CA, Charles Romero, San Diego, CA, Sally A. Safarik, San Marcos, CA, Deanna Sawdey, Winchester, CA, Jeff Schroeder, Vista, CA, Debra Schroeder, Vista, CA, David A. Scigliano, Bonita, CA, Gregory G. Scott, Salt Lake City, UT, Rafael Senior, Imperial Beach, CA, Karen Sharp, Poway, CA, Mark J. Shtino, Santee, CA, Lisa Shurilla, Poway, CA, Ellen Simpkins, Chula Vista, CA, Nico K. Simponis, Las Vegas, NV, Dean Sipes, Jamul, CA, Sharon E. Smith, Poway, CA, Guillermo Soto, San Diego, CA, Brett D. Souza, Carlsbad, CA, Rebecca Spradle, San Diego, CA, Randy Stark, San Diego, CA, pro se. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR PROTECTIVE ORDER LIMITING USAGE OF EXHIBIT 128 PAPAS, United States Magistrate Judge. INTRODUCTION This action involves the alleged misappropriation of funds belonging to the San Diego Medical Association ("SDMA") paramedics' 401k retirement plan (the "Plan"). Defendants Stanley Kaufman, 812 Robert Naify, Excelsior Ambulance Co., Inc. ("Excelsior"), James Kaufman, Larry Ward, Ron White, KWBB Management, Inc. fka Kaufman Ward Services, Inc. ("KWBB"), K.W.P.H. Enterprises, Inc. dba American Ambulance, and KARD (collectively referred to hereafter as the "Appearing Defendants") request the Court issue a protective order limiting the usage of a document identified as "Exhibit 128," which was discovered in the files of Defendant American Medical Services of San Diego ("AMS-SD"), a bankrupt limited partnership that is unrepresented in this action. Plaintiffs oppose. Briefs were filed in support of and in opposition to the Appearing Defendants' motion and, at the Court's request, supplemental briefs were also filed by the parties. On October 9, 2002, a hearing was held before Magistrate Judge Leo S. Papas. In attendance were Richard A. Lucal, Esq. and Joe B. Cordileone, Esq. on behalf of Plaintiffs, and Julia A. Nickerson, Esq. and A. Kendall Wood, Esq. on behalf of the Appearing Defendants. The Court has reviewed the parties' briefs, supporting exhibits and the Court's own records and considered the oral arguments presented by counsel during the hearing. On October 9, 2002, the Court issued a minute order ruling on the motion with the indication this written order would follow. Pursuant to the Court's minute and this written order, the Appearing Defendant's motion to limit the usage of "Exhibit 128" is DENIED without prejudice. FACTUAL BACKGROUND During the mid-1990s AMS-SD, a limited partnership, provided paramedic services under contract with the City of San Diego. AMS-SD paramedics formed SDMA, a collective bargaining unit which yielded the Plan. Defendant and Counterclaimant Stanley Kaufman was employed by AMS-SD as an accounting manager and also served as a trustee for the Plan. Plaintiffs contend AMS-SD, Stanley Kaufman, and the other Appearing Defendants misappropriated the Plan's funds to pay for operating expenses and to make improper payments to, or for the benefit of, other defendants. In 1997 AMS-SD ceased operations and by early 1998 filed bankruptcy under Chapter 7. In connection with the bankruptcy proceedings, AMS-SD documents, the majority of which were in files maintained at a storage facility in Fresno, California, were turned over to the control of the bankruptcy trustee. The trustee relocated approximately one-third of the documents to San Diego. The rest remained in Fresno. In 1999 the bankruptcy trustee requested all AMS-SD documents be destroyed. Plaintiff Mike Meoli objected due to this litigation. The documents in AMS-SD files, therefore, were turned over to the custody of Mr. Meoli's counsel Richard A. Lucal (hereafter "Mr. Lucal"). The trustee released the documents located in San Diego directly to Mr. Lucal. Documents that were still in Fresno were released to Mr. Lucal after review by counsel for the Appearing Defendants. In December 2001, during the deposition of Stanley Kaufman, Mr. Lucal produced the document that has since been referred to as "Exhibit 128." Mr. Lucal represents to the Court that Exhibit 128 was discovered in the AMS-SD files that were released to him by the trustee in bankruptcy. Exhibit 128 is a memorandum dated October 7, 1996, from attorney Miles Scully to Ron White, an officer of KWBB and a defendant in this action. The memorandum indicates a carbon copy was sent to "Owners." The parties agree the owners referenced in the memorandum are 813 KWBB and Excelsior, the general and limited partners of AMS-SD, the limited partnership. The Appearing Defendants now seek a protective order with regard to Exhibit 128, on two basis. First, that the document is a confidential attorney-client privileged communication that was inadvertently disclosed to third parties and, second, that the memorandum is protected as attorney work-product. GOVERNING LAW In cases involving the adjudication of federal rights, questions of attorney-client privilege are "governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." Fed.R.Evid. 501. State privilege law applies to purely state law claims brought in federal court pursuant to diversity jurisdiction. Id. In cases where state law claims are pendent to federal question claims, as is the case here, claims of privilege are determined under federal law. See Burrows v. Redbud Community Hosp. Dist., 187 F.R.D. 606, 608 (N.D.Cal.1998), citing Wm. T. Thompson Co. v. General Nutrition Corp., Inc., 671 F.2d 100, 104 (3rd Cir.1982). Unlike the attorney-client privilege, the work-product doctrine is governed by a uniform federal standard even in diversity cases. Dawson v. New York Life Ins. Co., 901 F.Supp. 1362, 1367 (N.D.Ill.1995). DISCUSSION I. AMS-SD, KWBB & Excelsior Jointly Hold Privileges as to Exhibit 128 A. Exhibit 128 Was Communicated in the Course of an Attorney-Client Relationship The attorney-client privilege is recognized under federal law, as "the oldest of the privileges for confidential communications known to the common law." See Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). Courts long have viewed its central concern as one "to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." Id. The attorney-client privilege attaches to "(1) communications (2) made in confidence (3) by the client (4) in the course of seeking legal advice (5) from a lawyer in his capacity as such, and applies only (6) when invoked by the client and (7) not waived." United States v. Abrahams, 905 F.2d 1276, 1283 (9th Cir.1990), overruled in part on other grounds by United States v. Jose, 131 F.3d 1325, 1329 (9th Cir.1997). The privilege protects both the giving of information to the lawyer, as well as the giving of professional advice by the lawyer. Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980). In determining whether Exhibit 128 is an attorney-client privileged communication, the Court must initially ascertain whether the memorandum was communicated in the course of an attorney-client relationship and, if so, what individuals or entities were parties to that relationship. The Appearing Defendants initially contended an attorney-client relationship existed between Mr. Scully and the memorandum's recipients by virtue of his involvement in a prior related case before this Court [(San Diego Medic Assoc. v. American Medical Services of San Diego, Case No. 96CV1544-BTM(JAH)]. It is apparent from the Court's files that Mr. Scully was retained by AMS-SD as defense counsel in the prior case. However, neither KWBB nor Excelsior were parties to the action at the time the memorandum was written, and thus, it 814 was not clear from the Court's files that Mr. Scully represented either KWBB or Excelsior. In response to the Court's request for additional briefing and evidence regarding Mr. Scully's relationship with KWBB and Excelsior, the Appearing Defendants proffered the declaration of Mr. Scully, in which Mr. Scully states he also represented KWBB and Excelsior at the time the memorandum was prepared. Declaration of Miles Scully, ¶ 4. According to the declaration, the memorandum was communicated by Mr. Scully to KWBB and Excelsior in the course of his representation. Id. at ¶ 6. Mr. White, the third recipient of the memorandum, was an officer and agent of KWBB at the time. Declaration of Ron White, ¶ 4. As a result, communications between Mr. White and KWBB's counsel would also be subject to KWBB's attorney-client privilege. See Upjohn Co., 449 U.S. at 395, 101 S.Ct. 677. Plaintiffs did not contradict Mr. Scully's declaration. Therefore, the Court is satisfied that Exhibit 128 was communicated in the course of an attorney-client relationship between Mr. Scully and KWBB and Excelsior. Although Mr. Scully was AMS-SD's counsel when the memorandum was drafted, the Appearing Defendants deny the memorandum is an attorney-client communication between Mr. Scully and AMS-SD. As discussed further below, Plaintiffs assert AMS-SD's bankruptcy trustee waived privileges on behalf AMS-SD and the other defendants by virtue of his releasing Exhibit 128 to Plaintiffs.[1] The Appearing Defendants refute Plaintiffs' contention, claiming the privileges for Exhibit 128 belong to only the memorandum's named recipients, KWBB and Excelsior. In support of their argument, they contend the attorney-client relationship between Mr. Scully and AMS-SD's owners was "separate and apart" from his relationship with AMS-SD. By extension they argue that Mr. Scully was not acting as AMS-SD's counsel at the time the memorandum was prepared and communicated. Therefore, the Appearing Defendants assert, because AMS-SD did not hold the privilege, it was not AMS-SD's, or by extension the bankruptcy trustee's, to waive. The Court is not convinced by the distinction the Appearing Defendants seem to draw between Mr. Scully's relationships with AMS-SD, KWBB and Excelsior. Assuming the Appearing Defendants are correct, if the memorandum was communicated exclusively to KWBB and Excelsior (and by extension was not intended for AMS-SD) and, therefore, these two exclusively hold the privilege, how did Exhibit 128 end up in the AMS-SD files? No explanation is offered as to how Exhibit 128 came into AMS-SD's possession, or why, given the Appearing Defendants' argument above, such a disclosure would not waive KWBB or Excelsior's privilege. Assuming the privilege belonged to KWBB and Excelsior alone, then their disclosure of the memorandum to AMS-SD, as evidenced by its discovery in AMS-SD's files, would have resulted in a waiver of their right to claim the memorandum as privileged. See Edison Elec. Light Co. v. United States Elec. Lighting Co., 44 F. 294, 298 (C.C.S.D.N.Y.1890) (a privilege holder's disclosure of an attorney-client privileged communication to a third party generally waives the privilege). The Court believes a more reasonable explanation for the location of Exhibit 128 is that it came into AMS-SD's possession by virtue of the attorney-client relationship AMS-SD and its owners shared with Mr. Scully. This is reinforced by the fact the memorandum discusses the under-funding 815 of AMS-SD retirement plans and the potential liability of various defendants in this action. Mr. Scully's declaration makes it clear that he represented the interests of AMS-SD, KWBB and Excelsior with regard to these issues. Thus, the Court concludes AMS-SD, KWBB and Excelsior jointly hold the attorney-client privilege attached to Exhibit 128. B. Exhibit 128 Is Also Subject to the Work-Product Doctrine The work-product doctrine is a qualified immunity which protects from discovery documents and tangible things prepared by a party or that party's representative in anticipation of litigation. Fed.R.Civ.P. 26(b)(3). In order for lawyers to "act within the framework of our system of jurisprudence to promote justice and protect their client's interests," it is "essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel." Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). Because Exhibit 128 contains the mental impressions, conclusions, opinions and potential legal theories of counsel and was prepared in anticipation of this action, the Appearing Defendants contend it is subject to the work-product doctrine and, therefore, privileged. Plaintiffs do not dispute the attorney work-product status of the memorandum. However, Plaintiffs counter that Defendants have waived this privilege. The Court finds, therefore, in addition to the attorney-client privileges, Exhibit 128 may also be protected under the work-product doctrine and turns its attention to consider whether the applicable privileges have been waived. II. Privileges Attached to Exhibit 128 Were Waived by AMS-SD and Stanley Kaufman Only Plaintiffs assert any privileges attached to Exhibit 128 were waived by AMS-SD's bankruptcy trustee by way of the release of AMS-SD's files to Plaintiffs. Plaintiffs further argue Stanley Kaufman's deposition testimony that he relied on the advice of counsel while serving as a Plan trustee waives any privilege claims.[2] Lastly, Plaintiffs contend the Appearing Defendants' failure assert their privilege claim in response to document production requests and failure to act in a timely manner upon their discovery of the claimed inadvertent production of Exhibit 128 both served to waive any privilege claims. A. The Trustee Waived the Attorney-Client Privilege on Behalf of AMS-SD It is a well established principle of law that a privilege holder's disclosure of an attorney-client privileged communication to a third party generally waives the privilege. See Edison, 44 F. at 298; See also Samuels v. Mitchell, 155 F.R.D. 195 (N.D.Cal.1994). Such a disclosure is viewed as an indication that confidentiality is no longer intended. Edison, 44 F. at 298. In the case at hand, however, the disclosure was not made by the party asserting 816 the privilege, but rather by a bankruptcy trustee on that party's behalf. These circumstances raise a question of law as to whether the trustee in bankruptcy had the power to waive AMS-SD's privileges. The issue as to whether a bankruptcy trustee can waive a privilege on behalf of an insolvent limited partnership has not been addressed in the Ninth Circuit. For guidance as to a bankruptcy trustee's power to control an estate's attorney-client privilege the Court turns to Commodity Futures Trading Commission v. Weintraub, 471 U.S. 343, 105 S.Ct. 1986, 85 L.Ed.2d 372 (1985), a U.S. Supreme Court case involving a similar question arising from a corporation's Chapter 7 proceedings. In Weintraub, the high court held the trustee of a corporation in bankruptcy has the authority to waive the corporation's attorney-client privilege with respect to pre-bankruptcy communications. Id. at 358, 105 S.Ct. 1986. In reaching this holding, the Supreme Court enunciated several settled legal principles: a) in the case of a solvent corporation, the power to waive the corporate attorney-client privilege rests with the corporation's management and is normally exercised by its officers and directors; b) when control of a corporation passes to new management, the authority to assert and waive the corporation's attorney-client privilege passes as well; and c) new managers installed as a result of a takeover, merger, loss of confidence by shareholders, or simply normal succession, may waive the attorney-client privilege with respect to communications made by former officers and directors. Id. at 348 349, 105 S.Ct. 1986. Because in the absence of bankruptcy the attorney-client privilege is controlled by a corporation's management, the high court reasoned that when bankruptcy occurs, the actor whose duties most closely resemble those of management should control the debtor corporation's privilege. Id. at 352 353, 105 S.Ct. 1986. Against this background, the Supreme Court queried as to which of the corporation's "various actors . . . is most analogous to the role played by management of a solvent corporation." Id. at 351, 105 S.Ct. 1986. The Court observed that all corporate property was transferred to a bankruptcy estate which was represented by a trustee. Id. at 352, 105 S.Ct. 1986. The trustee operated the business, was directed to investigate the debtors' financial activities, and was authorized to recover fraudulent or preferential transfers. Id. On the other hand, the debtors' directors retained no management powers. Id. Because the trustee's duties were most like those of management, the high court found the trustee would control the privilege. Id. at 353, 105 S.Ct. 1986. The Fifth Circuit Court of Appeals applied the Weintraub decision to a case involving the waiver of an attorney-client privilege belonging to a limited partnership. See United States v. Campbell, 73 F.3d 44 (5th Cir.1996). In Campbell, a criminal defendant was the general partner of a limited partnership that filed for bankruptcy. The defendant was convicted of bankruptcy fraud for transferring funds out of the estate. He appealed his conviction, alleging evidence was improperly admitted because the bankruptcy trustee lacked the authority to waive the attorney-client privilege on the limited partnership's behalf. The Court of Appeals upheld the conviction reasoning "there is no logical reason to distinguish partnerships from corporations or other legal entities in determining the client a lawyer represents" and that "the rules regarding the attorney-client privilege of corporations are no less instructive when applied to a partnership." Id. at 47, citing 817 Hopper v. Frank, 16 F.3d 92, 96 (5th Cir.1994); In re Bieter Co., 16 F.3d 929, 935 (8th Cir.1994). The Court concurs with the Campbell ruling. Like a corporation, a limited partnership is an inanimate entity that can act only through its agents. A solvent limited partnership is managed by its general partner, which has the power to direct the limited partnership's affairs and control its property. Except in cases of debtor-in-possession, when a limited partnership is in bankruptcy, the trustee steps into the shoes of the general partner and removes all power of the general partner to direct affairs and control property. In the case at hand, AMS-SD was not a debtor-in-possession. Rather, a trustee was appointed to manage AMS-SD's affairs during the bankruptcy proceeding. The powers and duties of a bankruptcy trustee are extensive.[3] Given the role of the trustee, it is logical the trustee's broad management powers include the authority to waive privileges held by the debtor limited partnership. Therefore, the Court finds by virtue of releasing AMS-SD's files to Plaintiffs, the trustee waived AMS-SD's attorney-client privilege with regard to the released documents.[4] B. The Trustee Waived the Work-Product Privilege on Behalf of AMS-SD Unlike the attorney-client privilege, the work-product privilege is not automatically waived by any disclosure to third persons. See Samuels, 155 F.R.D. at 200-201 (defendants did not waive work-product protection by disclosing documents to their own accounting firm). Rather, courts generally find a waiver only if the disclosure "substantially increases the opportunity for potential adversaries to obtain the information." Id. at 201, citing In re Grand Jury, 561 F.Supp. 1247, 1257 (E.D.N.Y.1982). Voluntary disclosure of attorney work product to an adversary in the litigation defeats the policy underlying the privilege. Carter v. Gibbs, 818 909 F.2d 1450, 1451 (Fed.Cir.1990). In these circumstances, the criteria for waiver of the work-product and attorney-client privileges are equivalent. Id. In the case before this Court, a more clear example of an adversarial relationship can not exist. AMS-SD had been named as a defendant in this lawsuit when AMS-SD's trustee in bankruptcy voluntarily relinquished the files to Plaintiffs. Therefore, AMS-SD, through the bankruptcy trustee, has clearly also waived its work-product privilege with regard to Exhibit 128. C. Stanley Kaufman's Waiver Does Not Extend to KWBB or Excelsior During his deposition, Stanley Kaufman testified he relied on advice of counsel with respect to certain actions he took while serving as a trustee for the Plan. The Court has ruled Stanley Kaufman's reliance on counsel has waived his right to assert privileges with regard to these issues. See fn. 1 supra. The question not raised in that motion, but now before the Court, is whether Stanley Kaufman's waiver of attorney-client and attorney work product privileges serves as a waiver on behalf of KWBB or Excelsior with regard to Exhibit 128. An officer or employee of a corporation may assert or waive privileges on behalf of the corporation. See Upjohn, 449 U.S. at 395, 101 S.Ct. 677. Stanley Kaufman was an employee of AMS-SD and a trustee for the Plan. He denies having any working relationship with either KWBB or Excelsior during the relevant time period. Plaintiffs did not proffer any evidence to the contrary. Therefore, in consideration of the fact Stanley Kaufman had neither an employment nor managerial relationship with KWBB or Excelsior during the time in question, the Court does not find any evidence to support Plaintiffs' claim that Stanley Kaufman's waiver of attorney-client and attorney work product privileges extends to either KWBB or Excelsior. D. Attorney-Client and Work Product Privileges Were Not Waived by KWBB or Excelsior Exhibit 128 was not produced directly by either KWBB or Excelsior. Rather, the three page memorandum was located in one of ninety boxes that were released by the bankruptcy trustee to Mr. Lucal. The majority of the documents in those boxes are described as general business documents for AMS-SD. Exhibit 128 appears to be the only document in those boxes for which a privilege is asserted. Although counsel for the Appearing Defendants had the opportunity to review a portion of these documents prior to their production, a significant number of files were released directly to Plaintiffs by the bankruptcy trustee. It is not clear whether Exhibit 128 was located in the boxes that were released directly to Plaintiffs or in those that were reviewed by counsel for the Appearing Defendants. Given the Appearing Defendants' limited involvement, if any, in the release of Exhibit 128 or the remainder of the files, their conduct in connection with the disclosure could, at most, be characterized as inadvertent. In cases involving inadvertent disclosure of attorney-client or work-product privileged documents the court considers (1) the reasonableness of precautions taken to prevent disclosure, (2) the time taken to rectify error, (3) the scope of discovery, (4) the extent of disclosure, and (5) the overriding issue of fairness. Hartford Fire Ins. Co. v. Garvey, 109 F.R.D. 323 (N.D.Cal.1985). Inadvertent disclosure of privileged documents may be excused when the disclosure is reasonable in 819 light of all the surrounding facts, the number and extent of disclosure is small in comparison to the scope of discovery, and the party asserting the privilege promptly asserts a remedy to the disclosure. KL Group v. Case, Kay & Lynch, 829 F.2d 909, 919. Plaintiffs' counsel represents he discovered the memorandum in October 2001 in the files that were released by the bankruptcy trustee. The fact the memorandum was in Plaintiffs' custody first came to the Appearing Defendants' attention during the deposition of Stanley Kaufman on December 4, 2001. At that time Stanley Kaufman's counsel, Mr. Wood, questioned Mr. Lucal about how he came into possession of the document. Mr. Lucal represented it had been produced during the litigation by "Schector's office," implying it had been produced by counsel for the remaining Appearing Defendants. Ms. Nickerson, an attorney with Mr. Schector's office, contacted Mr. Lucal nine days later, indicating the firm had just learned of the events at the deposition. Ms. Nickerson then requested Mr. Lucal return the memorandum, claiming it had been inadvertently produced and was attorney-client privileged. Mr. Lucal refused and counsel continued to meet and confer through an exchange of correspondence during December regarding the memorandum. In January 2002, the parties agreed to stay discovery in order to facilitate settlement discussions. At about that time correspondence regarding the memorandum also ceased. While the stay was in effect, Plaintiffs filed their Fifth Amended Complaint, setting forth portions of the memorandum verbatim. The Appearing Defendants' Answer includes an affirmative defense in which they again assert their attorney-client privilege and request the privileged portions of the pleading be stricken. The discovery stay remained in effect until it was lifted by this Court in late July 2002. Three weeks after the stay was lifted, the Appearing Defendants again corresponded with Plaintiffs' counsel and requested the memorandum's return. Plaintiffs now contend the Appearing Defendants waived any privilege by failing to act in a timely manner upon discovering Plaintiffs' possession of Exhibit 128. Given the number of documents that were produced to Plaintiffs, the Appearing Defendants' limited role in the documents' production, and their timely and repeated objections to Plaintiffs' possession of Exhibit 128, the Court is not persuaded by Plaintiffs' position. Moreover, given their ongoing and persistent attempts to recover the memorandum, the Court concludes that the Appearing Defendants acted reasonable and timely in their privileges. Further, given the circumstances described above, Plaintiffs could not reasonably believe the Appearing Defendants intended to waive, or waived by lack of diligence, any privileges it held with regard to Exhibit 128. Plaintiffs also argue that Appearing Defendants waived privileges attached to Exhibit 128 by failing to raise a claim of privilege in responses to document production requests. A party claiming privilege in response to a discovery request must describe what is privileged in a manner sufficient to enable other parties to assess the applicability of the claimed privilege. Fed. R. Civ. Proc. 26(b)(5). The failure to claim privilege in written discovery responses constitutes a waiver. Marx v. Kelly, Hart & Hallman, 929 F.2d 8, 10 11 (1st Cir.1991). Plaintiffs propounded document production requests to Stanley Kaufman and James Kaufman. In these requests Plaintiffs sought categories of documents that would have included Exhibit 128, assuming 820 Exhibit 128 was in the possession of these Defendants. While it is true that neither Stanley Kaufman nor James Kaufman asserted a privilege claim in response, the Court does not construe this to be a waiver on behalf of KWBB or Excelsior. Neither KWBB nor Excelsior were the recipients of document production requests that encompass Exhibit 128. Accordingly, the Court finds they have not waived any privileges by failing to assert them in response to Plaintiffs' discovery requests. Based on the foregoing, the Court finds neither KWBB nor Excelsior waived any privileges as to Exhibit 128. CONCLUSION In sum, the Court finds: (1) attorney-client and work product privileges attached to Exhibit 128 have been waived by AMS-SD and Stanley Kaufman; and (2) attorney-client and work product privileges attached to Exhibit 128 have not been waived by either KWBB or Excelsior. The Appearing Defendants' motion is, therefore, GRANTED as to Defendants KWBB and Excelsior, and DENIED as to Defendants AMS-SD and Stanley Kaufman. All reference to Exhibit 128 shall be stricken from Plaintiffs' Fifth Amended Complaint. (See Minute Order of December 20, 2002). NOTES [1] See Section II.A. infra. [2] The Court concurrently considered briefing and oral argument regarding Plaintiffs' motion to compel production of documents from Stanley Kaufman. As set forth in the Court's minute order of October 9, 2002, the Court determined Mr. Kaufman's assertion of reliance on advice of counsel waived his right to assert attorney-client and attorney work-product privileges relating to: 1. Mr. Kaufman's execution of the "Letter of Agreement;" 2. Mr. Kaufman's request(s) for administrative fees to be paid from the subject Plans, and; 3. Mr. Kaufman's payment of plan accounting fees using Plan assets. In light of the ruling, the Court will not revisit the argument here. [3] See Weintraub, 471 U.S. at 352, 105 S.Ct. 1986. Upon the commencement of a case in bankruptcy, the debtor's property passes to an estate represented by the trustee. 11 U.S.C. §§ 323, 541. "The trustee is `accountable for all property received,' §§ 704(2), 1106(a)(1), and has the duty to maximize the value of the estate, see § 704(1); In re Washington Group, Inc., 476 F.Supp. 246, 250 (M.D.N.C.1979), aff'd sub nom. Johnston v. Gilbert, 636 F.2d 1213 (4th Cir.1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3084, 69 L.Ed.2d 954 (1981). He is directed to investigate the debtor's financial affairs, §§ 704(4), 1106(a)(3), and is empowered to sue officers, directors, and other insiders to recover, on behalf of the estate, fraudulent or preferential transfers of the debtor's property, §§ 547(b)(4)(B), 548. Subject to court approval, he may use, sell, or lease property of the estate. § 363(b). Moreover, in reorganization, the trustee has the power to `operate the debtor's business' unless the court orders otherwise. § 1108. Even in liquidation, the court `may authorize the trustee to operate the business' for a limited period of time. § 721. In the course of operating the debtor's business, the trustee `may enter into transactions, including the sale or lease of property of the estate' without court approval. § 363(c)(1). As even this brief and incomplete list should indicate, the Bankruptcy Code gives the trustee wide-ranging management authority over the debtor. See 2 Collier on Bankruptcy ¶ 323.01 (15th ed.1985)." [4] See also August 12, 1999, Order Approving Non-Contested Notice of Intended Action to Assign Claims. In re American Medical Service of San Diego, U.S. Bankruptcy Court for the So. District of California Case No. 98-06928-M7 (All claims for relief and causes of action arising out of an obligation for breach of contract, a violation of right of property, or wrong involving injury to personal property, which may exist in favor of AMS-SD's bankruptcy estate as to Stanley Kaufman, Dan Lynch, Mark Karlin, Robert Mayorga, James Calvin, Larry Ward, Robert Naify, and Ron C. White, were assigned by the trustee in bankruptcy to the members of the class action herein).	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued May 7, 2015 Decided August 14, 2015 No. 13-5293 HUMANE SOCIETY OF THE UNITED STATES, APPELLANT HARVEY DILLENBURG AND IOWA CITIZENS FOR COMMUNITY IMPROVEMENT, APPELLEES v. THOMAS J. VILSACK, SECRETARY OF THE U.S. DEPARTMENT OF AGRICULTURE, APPELLEE Consolidated with 13-5307 Appeals from the United States District Court for the District of Columbia (No. 1:12-cv-01582) Matthew E. Penzer argued the cause for appellants. With him on the briefs was Jonathan R. Lovvorn. Ralph E. Henry entered an appearance. Abby C. Wright, Attorney, U.S. Department of Justice, argued the cause for appellee. With her on the brief were 2 Ronald C. Machen Jr., U.S. Attorney at the time the brief was filed, and Scott R. McIntosh, Attorney. Before: GRIFFITH, SRINIVASAN and PILLARD, Circuit Judges. Opinion for the Court filed by Circuit Judge PILLARD. PILLARD, Circuit Judge: The plaintiffs, a pork producer named Harvey Dillenburg and two animal welfare organizations who count pork producers among their members, claim that the National Pork Board has misappropriated millions of dollars from a fund for pork promotion into which pork producers are required to pay. The plaintiffs filed suit in federal district court and the court dismissed their claim for a lack of standing. We reverse. I. The National Pork Board is a quasi-governmental entity responsible for administering a federal regulatory scheme known as the “Pork Order.” See 7 U.S.C. § 4808; see also 7 C.F.R. Part 1230. The Order implements the Pork Act, 7 U.S.C. §§ 4801-19, the purpose of which is to promote pork in the marketplace, see 7 U.S.C. § 4801(b)(1). The Board strengthens, maintains, develops, and expands markets for pork and pork products through research and consumer information campaigns. In exchange for the Board’s efforts on behalf of their industry, pork producers pay the Board a special assessment on each hog they import or sell. See 7 C.F.R. § 1230.71(b). In 2006, the Board, with the approval of the Secretary of the Department of Agriculture, bought four trademarks associated with the slogan Pork: The Other White Meat 3 (hereinafter “the slogan” or “the mark”) from the National Pork Producers Council, an industry trade group, for $60 million.1 The payment terms provide that the Board will pay the Council $3 million annually for twenty years. The Board can terminate the payments at any time with one year’s notice, in which case ownership of the phrase reverts back to the Council. Five years after buying the mark, the Board replaced it with a new motto, Pork: Be Inspired. Now the Board keeps the initial slogan around as a “heritage brand” that it does not feature in its advertising. The plaintiffs claim that the Board did not buy the slogan for its value as a marketing tool. They allege that the Board used the purchase of the slogan as a means to cut a sweetheart deal with the Council to keep the Council in business and support its lobbying efforts. They maintain that the Board overpaid for the slogan and that the Board’s shift to the Pork: Be Inspired campaign makes the initial slogan all but worthless. According to the plaintiffs, the purchase of the mark and continued payment for it was and is arbitrary and capricious. The plaintiffs also argue that the Board’s purchase of the slogan with the purpose of supporting the Council’s lobbying efforts violates the Pork Act and Order’s prohibitions against the Board spending funds to influence legislation. See 7 U.S.C. § 4809(e); 7 C.F.R. § 1230.74. The plaintiffs sued the Secretary of the Department of Agriculture under the Administrative Procedure Act seeking 1 The Secretary of the Department of Agriculture is charged with reviewing and approving the Board’s actions. See 7 U.S.C. § 4808(b)(3); 7 C.F.R. § 1230.60(a). In this opinion, for clarity and concision, we attribute Board-recommended, Secretary- approved actions to the Board even though ultimate authority and liability for those actions runs against the Secretary. 4 an order enjoining the Board’s further payments to the Council and directing the Secretary to claw back what payments he can from the deal. The district court dismissed the plaintiffs’ suit for lack of Article III standing. See Humane Soc’y v. Vilsack, 19 F. Supp. 3d 24, 29 (D.D.C. 2013). The court held that Dillenburg failed to establish an injury in fact fairly traceable to the Board’s actions that is likely to be redressed by a favorable decision. Id. at 34-42. It also held that the two plaintiff organizations could not establish standing to sue in their own right or on behalf of their pork-producing members. Id. at 42-47. The plaintiffs appealed via separate notices and we consolidated the cases for review. For the reasons that follow, we reverse and remand. This case involves a concrete and particularized harm caused by an agency’s failure to confer a direct economic benefit on a statutory beneficiary. We also reject the government’s argument that the plaintiffs have failed to exhaust their administrative remedies. The statute’s provision for administrative review would not offer the plaintiffs adequate relief, and therefore they were not required to pursue it. II. This suit ended on a motion to dismiss. We review such dismissals de novo. Mendoza v. Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014). To survive a motion to dismiss for lack of standing, a complaint must state a plausible claim that the plaintiff has suffered an injury in fact fairly traceable to the actions of the defendant that is likely to be redressed by a favorable decision on the merits. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Determining a claim’s plausibility is “a context-specific task that requires the 5 reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. We accept facts alleged in the complaint as true and draw all reasonable inferences from those facts in the plaintiffs’ favor. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57 (2007). A. Dillenburg has made out a plausible claim to Article III standing. His argument is simple. He says that his return on his investment has been diminished by the Board’s unlawful payments of $3 million per year for Pork: The Other White Meat. If the Board stopped paying for the slogan, recouped funds unlawfully channeled to the Council, and devoted the money saved to more effective pork promotions, Dillenburg’s alleged harm would be at least partially redressed. Amend. Compl. ¶¶ 15, 128, J.A. 11, 34. That claim, if supported by sufficient factual allegations to “nudge [it] . . . from conceivable to plausible,” Twombly, 550 U.S. at 570, is sufficient to establish Article III standing. Dillenburg’s claim readily clears that line. As an initial matter, Dillenburg has alleged a “concrete and particularized” injury. Lujan, 504 U.S. at 560. He has alleged facts plausibly showing that the mark was worth less than its $60 million purchase price. Between 2001 and 2004, the Board paid the Council one dollar per year to license the slogan. Amend. Compl. ¶ 59, J.A. 20. In 2004, the Board negotiated a new five-year license with the Council, providing that payments would increase from one dollar per year to $818,000 for three years before reverting back to one dollar per year for the final two years. Id. ¶¶ 63, 109, J.A. 21-22, 30-31. The plaintiffs allege that the Board’s CEO wrote that the increased license fee was negotiated to “allow the [Council] to get the money they need for the next four years.” 6 Id. ¶ 63, J.A. 21-22. Before the Board entered the new licensing agreement, the Board’s own economist recommended that the Board pay no more than $375,000 annually to license the mark. Id. ¶ 64, J.A. 22. He also advised the Board that it was in a powerful position to dictate favorable terms to the Council because there would be few other buyers willing to purchase a generic slogan closely identified with the promotion of pork. Id. ¶ 83, J.A. 25-26. Indeed, there were no competing offers to purchase the slogan. Id. ¶ 84, J.A. 26. Those facts raise a plausible inference that the slogan was not worth its purchase price at the time, and is not worth $3 million per year now. Dillenburg also alleged facts tending to show that the Board’s purchase of the mark was not negotiated at arm’s length, which increased the plausibility of allegations that the Board paid too much. According to the complaint, the Council and the Board have been intertwined intimately since the Board’s formation in the mid-1980s. Id. ¶¶ 43-45, 55, J.A. 17, 19-20. The Council lobbied for passage of the Pork Act, and it proposed the text that ultimately served as the foundation for the Pork Order. Id. ¶¶ 43, 45, J.A. 17. The Council played an instrumental role in developing the slogan, vetting possible promotions for the Board to undertake, and engaging with advertising agencies to develop them. Id. ¶¶ 46-54, J.A. 18-19. Even though the Board paid for the mark’s development, the Council registered the mark in its own name and as its sole owner. Id. ¶¶ 52-53, J.A. 19. The Board and the Council were so enmeshed that, in 1986 when the Board voted to adopt the campaign and so committed itself to spend tens of millions of dollars in assessment funds over two decades on the promotion, it did not execute any licensing agreement or fee contract to formalize that arrangement. Id. ¶ 51, J.A. 19. The Department of Agriculture’s Office of Inspector General concluded in a 1999 7 audit that the Board had “relinquished too much authority to its primary contractor, the [Council], and ha[d] placed the [Council] in a position to exert undue influence over Board budgets and grant proposals.” Id. ¶ 55, J.A. 19-20. That history, as alleged, raises a plausible inference that the Board’s purchase was not the product of arm’s-length negotiation. Dillenburg has also alleged facts plausibly showing that, whatever its value when the Board purchased it, the mark is no longer worth $3 million per year. In 2011, the Board replaced the slogan with a “proud new brand identity”—Pork: Be Inspired. Id. ¶ 100, J.A. 28. In the same press release in which it announced that it would be adopting Pork: Be Inspired, the Board stated that the initial mark would be treated as a “heritage brand,” and that “The Other White Meat campaign will not be featured in advertising.” Id. ¶ 101, J.A. 29. The Board’s replacement of the mark with Pork: Be Inspired justifies the inference that the mark is no longer worth $3 million annually. That inference is strengthened by the fact that when the Board valued the mark and negotiated its purchase in 2006, it expressly assumed that it would be using the slogan as its primary brand identity for the indefinite future. Id. ¶¶ 105- 106, J.A. 29-30. At that time, the Board reasoned that it could either purchase the mark from the Council, or spend millions of dollars building a new brand identity. Id. ¶¶ 68-72, J.A. 22-23. The Board chose to purchase the slogan. Id. ¶ 71, J.A. 23. In a letter seeking approval for the purchase from the Department of Agriculture, the Board stated that its “primary objective” was to purchase the mark for less than the estimated cost of establishing the new brand identity. Id. ¶ 72, J.A. 23. The Board’s valuation of the slogan incorporated the assumption that it would serve as the Board’s 8 primary brand identity in the future. Now that it is no longer the Board’s primary brand identity, the slogan is likely worth substantially less than the $3 million per year the Board pays for it. Those allegations establish Dillenburg’s Article III standing. Dillenburg’s injury is a classic form of concrete and particularized harm: actual economic loss. See Sierra Club v. Morton, 405 U.S. 727, 736-37 (1972); Shaw v. Marriott Int’l, Inc., 605 F.3d 1039, 1042 (D.C. Cir. 2010). The Board’s allegedly unlawful overpayments for an advertising campaign it does not use divert funds from other promotions. Because of that pork demand is lower, and thus the price at which pork producers can sell their hogs is lower than it would be if the Board were spending those funds on legitimate promotions and other demand-enhancing campaigns rather than squandering them with the Council. The misuse of the assessment funds cognizably harms Dillenburg’s bottom line. See, e.g., United Transp. Union v. ICC, 891 F.2d 908, 912 n.7 (D.C. Cir. 1989) (explaining that “courts routinely credit” allegations founded on the “application of basic economic logic”); see also Clinton v. City of New York, 524 U.S. 417, 432-33 (1998) (explaining that a “petitioner who is likely to suffer economic injury as a result of [governmental action] that changes market conditions satisfies” Article’s III injury- in-fact requirement) (alterations in original) (quoting 3 Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law Treatise 13-14 (3d ed. 1994)). Traceability and redressability readily follow. Dillenburg’s harm is caused by the Board’s failure to spend his mandatory assessment funds on legitimate promotions. The harm is thus “fairly traceable” to the challenged action. Lujan, 504 U.S. at 560 (internal quotation marks omitted). Furthermore, if the Board were ordered to stop paying $3 9 million annually for the mark, it would be required by law to use those funds reasonably and for legitimate purposes, an outcome likely at least partially to redress his injury. See Massachusetts v. EPA, 549 U.S. 497, 525-26 (2007) (explaining that litigation success need only partially redress a plaintiff’s injury to meet the redressability requirement). The close relationship between a holding that the funds are being unlawfully used and a remedy that would make them available for lawful, more effective uses makes it “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 561 (internal quotation marks omitted). We therefore conclude that Dillenburg has alleged a plausible claim to Article III standing. Because we find that Dillenburg has standing, we need not and do not reach the arguments of the other plaintiffs regarding their standing. See Mendoza, 754 F.3d at 1010; In re Navy Chaplaincy, 697 F.3d 1171, 1178 (D.C. Cir. 2012). B. The government argues that we should affirm the district court’s order dismissing the complaint on the alternative ground that the plaintiffs failed to exhaust their administrative remedies. We reject that argument because the statute offers administrative relief that, in the context of this case, is too “doubtful and limited” to justify requiring the plaintiffs to pursue it. Bowen v. Massachusetts, 487 U.S. 879, 901 (1988). Under the relevant provision of the Pork Act, any person subject to “an order” may petition the Secretary of the Department of Agriculture (1) “stating that such order, a provision of such order, or an obligation imposed in connection with such order is not in accordance with law” and (2) “requesting a modification of such order or an exemption 10 from such order.” 7 U.S.C. § 4814(a)(1). The government contends that the plaintiffs were required to petition the agency to exempt them from their payment obligations under the Pork Order, or seek a modification of the Pork Order prohibiting the Board from making the expenditures to which they objected. Appellee Br. 17-19. There is reason to doubt that the exhaustion provision applies to the plaintiffs’ claims at all. The statute provides that an individual subject to the Pork Order must “stat[e]” in his petition for relief “that such order, a provision of such order, or an obligation imposed in connection with such order is not in accordance with law.” 7 U.S.C. § 4814(a)(1)(A). But the plaintiffs are not claiming that any provision of the Pork Order itself is “not in accordance with law.” The government asserts, however, that the plaintiffs fall within the provision because the Board’s misappropriation of assessment funds transforms otherwise lawful assessments into “obligation[s] imposed in connection with” the Pork Order “not in accordance with law.” Id. That is a strained reading of the provision. Even assuming the plaintiffs came within the Pork Act’s administrative relief provision, the only relief they could obtain would be inadequate. See Bowen, 487 U.S. at 901. The Act provides only two administrative remedies: “an exemption from” the Pork Order, or “a modification” of it. 7 U.S.C. § 4814(a)(1)(B). Neither of those remedies would provide plaintiffs anything like the relief they seek. See Garcia v. Vilsack, 563 F.3d 519, 522 (D.C. Cir. 2009) (explaining that administrative relief must be of the “same genre” as Administrative Procedure Act relief sought). An exemption from assessments would not remedy the plaintiffs’ harms. The plaintiffs seek specific performance. 11 An exemption is more akin to rescission. The two are not equivalent. Moreover, making exemptions from payment the only relief available to pork producers would undermine the program: Producers who identify actionable abuses of the Board’s discretion would be exempted, narrowing the Board’s base even as it failed to correct its malfeasance. Alternatively, a modification of the Pork Order would offer the plaintiffs only doubtful relief. The plaintiffs’ claim is that the Secretary is failing to comply with the Pork Act and Order. The plaintiffs do not want to change the rules; they want to see the existing rules enforced. Modifying the Order will not get them that. Because neither an exemption nor a modification of the Pork Order would offer the plaintiffs adequate relief, they were not required to pursue an administrative path that offered only those two remedies. *** For the foregoing reasons, we reverse and remand for further proceedings consistent with this opinion. So ordered.	{ "pile_set_name": "FreeLaw" }
NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted November 21, 2018* Decided November 26, 2018 Before JOEL M. FLAUM, Circuit Judge DIANE S. SYKES, Circuit Judge MICHAEL Y. SCUDDER, Circuit Judge No. 18‐1594 KENNEDY LAFAYETTE, Appeal from the United States District Plaintiff‐Appellant, Court for the Eastern District of Wisconsin. v. No. 17‐CV‐86 NANCY A. BERRYHILL, David E. Jones, Acting Commissioner of Social Security, Magistrate Judge. Defendant‐Appellee. O R D E R Kennedy Lafayette, who has received medical treatment for pain resulting from his lifelong scoliosis, appeals from the district court’s judgment upholding an administrative law judge’s ruling that Lafayette was not disabled. The ALJ’s decision is supported by substantial evidence, so we affirm. * We have agreed to decide this case without oral argument because the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. FED. R. APP. P. 34(a)(2)(C). No. 18‐1594 Page 2 Lafayette has unsuccessfully sought disability benefits twice. His first application came after he quit his job at a medical center, where he had worked as an x‐ray file clerk for 10 years, from 2000 to 2010. He left that job because the back pain from his scoliosis interfered with the additional duties—pushing beds and patients—that the center had recently assigned him. Three years after he was denied benefits, he applied again. This time he argued that he was disabled because of his scoliosis plus other issues, such as gastroesophageal reflux disease, anemia, weight issues, and stomach pain. An ALJ conducted a hearing on his claim, followed the five‐step evaluation process, see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), and issued another unfavorable decision. We now examine that ruling. The ALJ ruled that Lafayette had the residual functional capacity to perform some sedentary work, such as an information clerk, office helper, inspector, or assembler. In reaching this conclusion, the ALJ determined that Lafayette’s allegations of disabling pain and limitations were “not completely credible.” The ALJ noted three respects in which Lafayette was not believable. First, although Lafayette had a long history of scoliosis, he had successfully worked for years, despite its presence. Second, Lafayette received treatment for his back pain in 2014, and his 2015 medical records did not report any flare‐ups or difficulties. Finally, Lafayette acknowledged that he had been taking college‐level courses since 2012, which required him to sit and stand for hours every day in class, in the library, and while taking public transportation. The ALJ also assessed the medical opinions. She placed great weight on the treatment notes of Lafayette’s treating physician, Dr. Kern Reid, but gave little weight to Dr. Reid’s answers to the agency’s diagnostic questionnaire. In those answers, Dr. Reid limited Lafayette to just 4 hours of standing, sitting, and walking in an 8‐hour day. The ALJ explained that those answers conflicted with Dr. Reid’s treatment notes and the opinions of the consulting doctors. The treatment notes reflected that Lafayette was adequately treated for a vitamin D deficiency, costochondritis (pain in the ribs), vertigo, obesity, eczema, and gastroesophageal reflux disease. The ALJ concluded that these conditions caused only “minimal” limitations, both “singly and in combination.” Lafayette’s severe impairments, based on the notes, were scoliosis, anemia, and hemorrhoids. But the notes from 2015 state that Lafayette’s anemia was resolved, report that he had no debilitating limitations from his hemorrhoidectomy, and do not mention any back pain. The ALJ took the latter omission to mean that Lafayette’s pain was managed with medication. The ALJ relied on the consulting doctors who opined that Lafayette could perform sedentary activity with a 20‐pound lifting restriction, a view echoed by one of the state medical consultants. Based on these notes and reports, the No. 18‐1594 Page 3 ALJ ruled that benefits were not warranted. Lafayette’s challenges to this decision, administratively and in the district court, were unsuccessful. On appeal, Lafayette first argues that the ALJ failed to consider the combined weight of his impairments, but we disagree. The ALJ properly evaluated all of the limitations that arose from Lafayette’s impairments, even those that were not severe, and their combined impact on his residual capacity to work. SSR 96–8p; Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009). The ALJ found that the minor impairments were all treated and caused only “minimal” limitations, both singly and together. Likewise, the treatment notes showed that the severe impairments (scoliosis, anemia, and hemorrhoids) were resolved, well‐managed, or showed no debilitating residual limitations. The ALJ thus considered Lafayette’s health problems in the aggregate, permissibly ruling that Lafayette did “not have an impairment or combination of impairments” equal to one of the listed impairments. See Getch v. Astrue, 539 F.3d 473, 483 (7th Cir. 2008); see also Pepper v. Colvin, 712 F.3d 351, 362 (7th Cir. 2013). Lafayette next complains that the ALJ failed to follow the “treating physician rule” in considering the sitting and standing limitations that Dr. Reid described in answers to the diagnostic questionnaire. Thus, Lafayette concludes, the ALJ erred in ruling that he could handle some sedentary work. Under the treating‐physician rule, a treating doctor’s opinion generally receives controlling weight if it is consistent with the record. See 20 C.F.R. § 404.1527(c)(4). (This rule has been abrogated, but it applies to claims, like Lafayette’s, filed before March 27, 2017. See 20 C.F.R. § 404.1527.) But the ALJ permissibly discredited Dr. Reid’s answers to the diagnostic questionnaire because they were inconsistent with his treatment notes, see 20 C.F.R. § 404.1527(c)(4); Loveless v. Colvin, 810 F.3d 502, 507 (7th Cir. 2016); Hofslien v. Barnhart, 439 F.3d 375, 376 (7th Cir. 2006). Moreover, “[w]eighing conflicting evidence from medical experts … is exactly what the ALJ is required to do,” see Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). The ALJ did just this by considering the opinions of medical consultants who opined that Lafayette could perform sedentary activity with a lifting restriction of 20 pounds. Because the ALJ’s determination of Lafayette’s residual work capacity was consistent with his treating doctor’s notes and the opinions of other doctors, it was supported by substantial evidence. See Rice v. Barnhart, 384 F.3d 363, 370–71 (7th Cir. 2004). Lafayette finally protests, unpersuasively, that the ALJ improperly discounted as “not entirely credible” his subjective complaints that his back pain disabled him from all work. The “not entirely credible” formulation is one that this court has repeatedly derided as “meaningless boilerplate.” Parker v. Astrue, 597 F.3d 920, 921–22 (7th Cir. No. 18‐1594 Page 4 2010). But the formulation does not require a remand if the ALJ identified legitimate reasons for discrediting the claimantʹs testimony. See Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012). The ALJ did so here. She explained that: (1) Lafayette worked for years despite back pain and quit only after his supervisor assigned him additional exertional duties; (2) Lafayette received treatment for his back pain in 2014, and the lack of flare‐ups in 2015 suggested that Lafayette’s back condition was stable (as too were his anemia and hemorrhoid conditions); and (3) Lafayette had been able to sit and stand for hours daily while getting to and taking his college level courses since 2012. Thus, the ALJ “properly considered the degree to which the objective medical evidence supported the degree of severity of [Lafayette’s] subjective complaints.” Rice, 384 F.3d at 371. Because the record adequately supports the ALJ’s credibility ruling, see Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir. 2010), we cannot say that her determination was “patently wrong,” see Summers v. Berryhill, 864 F.3d 523, 528 (7th Cir. 2017). AFFIRMED	{ "pile_set_name": "FreeLaw" }
18 B.R. 104 (1982) In re FORREST HILLS ASSOCIATES, LTD., a Florida limited partnership, Debtor. Bankruptcy No. 81-135. United States Bankruptcy Court, D. Delaware. February 17, 1982. Daniel Krapf, Wilmington, Del., for debtor. David Roeberg, Wilmington, Del., for Institutional Securities Corp. MEMORANDUM DECISION AND ORDER HELEN S. BALICK, Bankruptcy Judge. The debtor filed a plan that states "under the plan, all classes are not impaired". For this reason it requested that it be relieved from the filing of and hearing on a disclosure statement. The debtor does not intend to solicit acceptances because unimpaired classes are deemed under 11 U.S.C. § 1126(f) to accept such a plan. A statement that a class is not impaired does not necessarily make it so. A creditor may assert that he is improperly treated as unimpaired. This is a matter for determination at the confirmation hearing if we equate the meaning of "impairment" to the meaning of "materially and adversely affected" under the Bankruptcy Act. Such a creditor, in addition to the filing of an objection to confirmation, may wish to solicit rejections to the plan. Section 1125(b), title 11, permits solicitation of acceptances or rejections only after the proponent of a plan has filed a written disclosure statement, approved, after notice and hearing, by the court as containing adequate information. If the requirement of a disclosure statement is waived, then a proponent of a plan could deprive an opponent of the plan from soliciting rejections. Such a result flies in the face of the express language of § 1125(b). *105 Under the Code, unlike the procedure under the Act, there is no hearing on the plan. The court is not required to determine if a plan should be submitted to creditors. Instead, there is a hearing on a disclosure statement. That statement together with a plan should give interested parties adequate information so they can make their own determination to accept or reject. The circumstances of each case should control whether the disclosure information and plan are separate documents or one document combining disclosure information with the plan and the amount and kind of information. Interim Rule 2002(b)(5) requires at least 20 days notice of a hearing on a disclosure statement. The language of § 1125 is not the mandatory language of § 1128: "after notice, the court shall hold a hearing on confirmation of a plan". Consequently, § 102(1) should apply. If no objections are filed to the disclosure information nor any requests that a hearing be held, the notice and hearing requirements of § 1125 are met and an actual hearing is unnecessary. The court may then consider whether the information is adequate on the pleadings. An order is attached.	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals. Eleventh Circuit. No. 94-5112. UNITED STATES of America, Plaintiff-Appellee, v. Perla Martin DAVIS, Marta Morfa, Emilio Valdes, Elva R. Lamas, Defendants-Appellants. July 2, 1997. Appeals from the United States District Court for the Southern District of Florida. (No. 93-367-CR- UU-B), Ursula Ungaro-Benages, Judge. Before HATCHETT, Chief Judge, COX, Circuit Judge, and MESKILL, Senior Circuit Judge. HATCHETT, Chief Judge: Appellants Perla Martin Davis, Elva Lamas, Marta Morfa and Emilio Valdes, M.D., were convicted in a complex Medicare fraud scheme. On appeal, appellants challenge their convictions and sentences on a number of grounds, including insufficient evidence, erroneous jury instructions, failure to charge the jury on an element of the offense, admission of uncharged criminal conduct evidence, exclusion of expert psychological testimony, prejudicial prosecutorial comments, failure to grant sentencing departures, and improper assessment of restitution. We affirm the restitution orders assessed against appellants Davis, Lamas and Morfa, and the judgments and sentences that the district court entered in all other respects. BACKGROUND In August of 1993, a grand jury returned a 23-count Medicare fraud indictment against the appellants and eight other defendants. The indictment charged each of the twelve with conspiring, in violation of 18 U.S.C. § 371, to (a) "defraud the United States by impeding, impairing and obstructing the function of the Department of Health and Human Services in administering the Medicare Program," and (b) commit offenses against the United States, including violations of the False Claims Statute, 18 U.S.C. § 287, and the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b (Count Honorable Thomas J. Meskill, Senior U.S. Circuit Judge for the Second Circuit, sitting by designation. 1). Counts 2-16 of the indictment charged various defendants, including appellants, with substantive violations of the False Claims Act.1 Counts 17-23 included indictments for violations of 42 U.S.C. § 1320a-7b. The grand jury charged both Davis and Morfa with violating the Anti-Kickback Statute: Davis in Count 19 and Morfa in Counts 21-23. The eight codefendants, including Frank Morfa, Perla Morfa, Celia Morfa Martin, Mario Fonesca, Ana Conde, Luis Mateus, Sandra Mayorga and Nora Vega, subsequently pleaded guilty, leaving appellants to proceed to trial. The government alleged that the appellants and their co-defendants executed the Medicare fraud scheme through the operation of sixteen related companies (the Morfa companies). Certain members of the Morfa extended family, including appellants Davis, Lamas and Morfa, owned, operated and worked for the businesses at different times during the course of the conspiracy. Over a period of several years, the Morfa companies submitted false claims and billed Medicare for medically unnecessary nutritional supplements and feeding supply kits, ostensibly for the purpose of parenteral and enteral nutritional (PEN) therapy, the majority of which the intended patients never received. Participants in the scheme included (1) recruiters, who solicited patients through whom Medicare could be billed fraudulently without their knowledge; (2) physicians, such as Valdes, who signed blank Certificates of Medical Necessity (CMNs) which authorized the issuance of PEN therapy medical supplements and supply kits for the recruited patients, regardless of their medical necessity and the patients' eligibility to receive such products; and (3) managers, who paid the recruiters to locate Medicare-eligible participants, paid the physicians for signing false CMNs, and ran the actual Medicare billing operation—completing the fraudulent CMNs, preparing falsified Medicare claim forms and monthly summaries, and filing the documents with Medicare seeking reimbursement. On July 20, 1994, the United States District Court for the Southern District of Florida granted judgments of acquittal on the false claims count against Lamas (Count 16), and one false claims count against Morfa (Count 14). On August 1, 1994, the jury returned guilty verdicts on most of 1 The indictment charged Davis in Counts 2, 3, 8 and 9; Morfa in Counts 10 and 14; Lamas in Count 16; and Valdes in Counts 4, 7, 8 and 10. the offenses charged in the indictment. Each appellant received a guilty verdict on Count 1, the multiple-object conspiracy. In addition to the conviction on Count 1, Davis received guilty verdicts on Counts 2, 3, 8 and 9, and an acquittal on Count 19; the jury declared Morfa guilty on Counts 10, 21, 22 and 23; and Valdes was found guilty on Counts 4, 7, 8 and 10.2 In October of 1994, the district court sentenced Davis to forty-one months, Lamas to forty-six months and Morfa to forty-six months of imprisonment. Pursuant to the information and recommendations found in the appellants' Presentence Investigation Reports (PSR), the court ordered them to pay restitution jointly and severally to the United States Department of Health and Human Resources (HHR) in installments as the Bureau of Prisons instructed. The district court imposed the following restitution amounts: $9,182,271.40 for Davis, $8,119,445.40 for Lamas and $8,119,445.00 for Morfa. Valdes received a sentence of thirty months imprisonment; the court also ordered Valdes to pay $261,896.73 in restitution. ISSUE The issue is whether the district court committed plain error in ordering appellants Davis, Lamas and Morfa to pay restitution jointly and severally, without making the proper factual findings regarding the amount of loss and appellants' respective abilities to pay.3 CONTENTIONS The appellants argue that the district court (1) plainly erred in imposing restitution on them for amounts greater than their specific contributions to the conspiracy; and (2) plainly erred in failing to make the requisite factual findings regarding each appellant's ability to pay. The government counters that the district court may attribute the total loss associated with the conspiracy to a particular conspirator when imposing restitution. A defendant is liable for the foreseeable acts of co-conspirators. While indigence is a consideration, it is, nonetheless, one of 2 Lamas only received the guilty verdict on the conspiracy count following the district court's dismissal of the substantive false claims charge. 3 We do not find appellants' arguments persuasive regarding the remaining issues raised in this appeal, and, deciding that the district court did not commit reversible error, we dispose of them without additional comment. See Eleventh Circuit Rule 36-1. many factors and does not itself bar an order of restitution. Because the appellants did not dispute the relevant facts at trial, the government contends that the district court was not required to make explicit factual findings on the restitution issue. DISCUSSION In this appeal, appellants challenge the restitution order on two grounds: the district court erred in determining the amount of loss attributable to each appellant for restitution purposes; and the district court failed to make findings as to each appellant's ability to pay the restitution amount. The Victim and Witness Protection Act of 1982 (VWPA), 18 U.S.C. §§ 3663-64, empowers the district court to award restitution to victims. The VWPA enumerates those factors which a district court must consider before imposing a restitution order. Section 3664(a) provides: The court, in determining whether to order restitution under section 3663 of this title and the amount of such restitution, shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate. 18 U.S.C. § 3664(a) (1994).4 The court must award restitution "in accordance with sections 3663 and 3664." United States v. Twitty, 107 F.3d 1482, 1493 (11th Cir.1997) (quoting 18 U.S.C. § 3556). This court ordinarily reviews a district court's restitution order for abuse of discretion. United States v. Remillong, 55 F.3d 572, 574 (11th Cir.1995). The court reviews the legality of the restitution order de novo. United States v. Cobbs, 967 F.2d 1555, 1556 (11th Cir.1992). The appellants admit, however, that they did not dispute the restitution order at sentencing. Moreover, the appellants did not state any objections to their PSRs on the issue of restitution. A defendant's failure to challenge a restitution order at sentencing constitutes a waiver of the objection. United States v. Stinson, 97 F.3d 466, 468 n. 1 (11th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1007, 4 We acknowledge that Congress substantially amended sections 3663 and 3664 in 1996. See Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, Title II, §§ 205(a), 206(a), 110 Stat. 1214, 1229-31, 1232-36 (Apr. 24, 1996), codified at 18 U.S.C.A. §§ 3663, 3664 (West Supp.1997). We need not apply the amended versions to these facts, however, because the amendments are only effective "for sentencing proceedings in cases in which the defendant is convicted on or after Apr. 24, 1996." 18 U.S.C.A. §§ 3663, 3664 note (West Supp.1997). All future references to the VWPA within this opinion are to its pre-1996 amendment version. 136 L.Ed.2d 885 (1997). The appellants were obligated to preserve this issue for appeal, and their silence in the face of that duty precludes us from addressing the merits of their contentions absent a showing of manifest injustice. Effective appellate review is hindered when the asserted error has not been brought to the district court's attention. Under these facts, therefore, we will review the restitution orders for plain error. See United States v. Obasohan, 73 F.3d 309, 310-11 (11th Cir.1996) (absent manifest injustice, this court will not entertain an appeal of a restitution order if the defendant failed to raise an objection to the district court); see also Cobbs, 967 F.2d at 1557-58 (if plain error exists, this court may review the claim). 1. The Amount of Loss The appellants fail to show any error in the district court's measure of restitution assessed on behalf of HHR. The appellants contend that the district court did not properly tailor the amount of restitution to each appellant's specific conduct within the conspiracy. In Obasohan, this court held that a district court may order a defendant to pay restitution for losses "which result from acts done in furtherance of the conspiracy of which the defendant is convicted." 73 F.3d at 311. After careful review of the record, we conclude that the district court did not commit error, plain or otherwise, in calculating the amount of loss attributable to the appellants. A conspiracy is an ongoing criminal activity for which a participant remains culpable until the conspiracy ends or the participant withdraws. Hyde v. United States, 225 U.S. 347, 369, 370, 32 S.Ct. 793, 56 L.Ed. 1114 (1912). "Congress intended restitution to be tied to the loss caused by the offense of conviction." Hughey v. United States, 495 U.S. 411, 418, 110 S.Ct. 1979, 1983, 109 L.Ed.2d 408 (1990). Where the defendant is convicted of conspiracy to defraud, the district court has "the authority to order restitution for the losses caused by the entire fraud scheme, not merely for the losses caused by the specific acts of fraud proved by the government at trial." United States v. Brothers, 955 F.2d 493, 497 (7th Cir.), cert. denied, 506 U.S. 847, 113 S.Ct. 142, 121 L.Ed.2d 94 (1992). Each appellant herein had a sufficiently substantial involvement in the fraud scheme to warrant the restitution amount that the district court ordered. See United States v. Barnette, 10 F.3d 1553, 1556 (11th Cir.), cert. denied, 513 U.S. 816, 115 S.Ct. 74, 130 L.Ed.2d 28 (1994)(granting restitution to the extent justice requires). Our conclusion follows the general proposition that a defendant is liable for reasonably foreseeable acts of others committed in furtherance of the conspiracy of which the defendant has been convicted. See, e.g., United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir.1993). The appellants herein were thoroughly involved in this scheme to defraud the Medicare system. Accordingly, the district court properly relied on the information contained in the PSRs to render the appellants jointly and severally liable for the losses resulting from the enterprise. The court did not plainly err in imposing restitution on each appellant based on the acts of all those involved in the scheme for the period that the appellant was involved. See United States v. Plumley, 993 F.2d 1140, 1142 (4th Cir.), cert. denied, 510 U.S. 903, 114 S.Ct. 279, 126 L.Ed.2d 230 (1993). 2. Ability to Pay The appellants also do not demonstrate that the district court failed to consider the appellants' financial resources, such that the restitution order can be deemed manifestly unjust. The statute requires that the district court "consider" the factors listed above prior to imposing restitution. 18 U.S.C. § 3664(a). This court has held that the district court must "evaluate the defendant's financial condition and ability to pay before determining the restitution amount...." Remillong, 55 F.3d at 574 (citations omitted) (emphasis added). Neither the statute nor this court requires the district court to make specific factual findings. Twitty, 107 F.3d at 1493 ("District courts are not obligated to make explicit factual findings of a defendant's ability to pay restitution if the record provides an adequate basis for review."); see also United States v. Hairston, 888 F.2d 1349, 1352-53 (11th Cir.1989). In order to warrant a reversal of the restitution order, the challenging party must show that the "record is devoid of any evidence that the defendant is able to satisfy the restitution order." Remillong, 55 F.3d at 574 (internal quotation marks omitted). The appellant's burden is particularly acute under the plain error standard of review. Under these facts, the record shows that the district court considered each appellant's ability to pay prior to imposing restitution. The sentencing transcripts reveal that the district court noted its reliance upon the information contained in each appellant's PSR. The PSRs assessed the appellants' financial resources and capacities for future earnings. Each PSR recommended that the appellant would be able to make monthly payments toward restitution. "A defendant who disputes his ability to pay restitution bears the burden of demonstrating his financial resources by a preponderance of the evidence." Twitty, 107 F.3d at 1494 n. 14; see also 18 U.S.C. § 3664(d) (1994). A defendant's failure to present contrary evidence authorizes the district court to rely on the information provided in the PSR. Twitty, 107 F.3d at 1494 n. 14. Our prior decision in United States v. Page, 69 F.3d 482 (11th Cir.1995), does not compel resentencing under the facts at issue. In Page, this court found plain error where the district court did not provide the defendants with an opportunity to object to its findings of fact or conclusions of law as required under United States v. Jones, 899 F.2d 1097, 1102 (11th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 275, 112 L.Ed.2d 230 (1990), overruled on other grounds, 984 F.2d 1136 (11th Cir.1993) (en banc ). Page, 69 F.3d at 492-93. Moreover, although the district court had adopted wholesale the recommendations in the PSR, this was deemed insufficient because the district court neglected to consider the defendants' objections. Page, 69 F.3d at 494. Furthermore, the record demonstrated that the district court recognized one defendant's inability to pay the restitution imposed. Page, 69 F.3d at 494. Our opinion in Page, therefore, stands only for the proposition that "the wholesale adoption of the PSR at the commencement of the sentencing hearing, without more, does not suffice to meet the court's obligation under 18 U.S.C. § 3664(a) and under Remillong to consider a defendant's financial resources before imposing restitution." Page, 69 F.3d at 493-94. The facts herein demonstrate that the district court sought input from the appellants. As in Page, the district court acknowledged the information in the PSR and adopted its factual findings regarding the appellants' abilities to pay restitution. Unlike Page, however, the court reviewed the appellants' objections to the PSRs. The court then specifically asked each appellant and counsel whether they objected to the court's findings of fact or the sentence imposed. No appellant took exception to the restitution order. Where the PSR provides a detailed account of the "amount of the loss sustained by the victim, the defendant's financial resources, and other factors enumerated in Sections 3663-3664 as appropriate for the court to consider when imposing restitution[,] ... the record provides an adequate basis for review of the restitution order[ ]." Twitty, 107 F.3d at 1493- 94. We cannot find plain error where the district court adopts a PSR supporting its restitution order, provides the defendant with the chance to object, and considers any objections raised. While the district court must explain its decision to reject any challenges to the restitution order, we can impose no such burden where the defendant fails to avail himself of the opportunity to object. Upon review of the record, we conclude that the district court did not plainly err in determining appellants' restitution amounts. Even though the district court did not make any explicit factual findings as to appellants' abilities to pay restitution, the record does reveal that the district court considered appellants' abilities to pay as a factor. The district court gave each appellant an opportunity to object to the restitution amount and encountered silence. The district court has only the duty to consider the defendant's ability to pay; it does not have a duty to make a specific factual finding. Twitty, 107 F.3d at 1493. Under these circumstances, the appellants have not shown that the district court failed to honor that obligation. Accordingly, we affirm the district court's restitution orders. AFFIRMED.	{ "pile_set_name": "FreeLaw" }
123 F.3d 1342 80 A.F.T.R.2d 97-6321, 97-2 USTC P 50,613,Unempl.Ins.Rep. (CCH) P 15764B, 97 CJ C.A.R. 1681 Edward J. FINLEY, Plaintiff and Counterclaim Defendant,v.UNITED STATES of America, Defendant and CounterclaimPlaintiff-Appellee,Floyd Johnson, Counterclaim Defendant-Appellant. No. 95-3108. United States Court of Appeals,Tenth Circuit. Aug. 20, 1997. Ernest J. Brown (Loretta C. Argrett, Charles E. Brookhart, and Roger E. Cole, Department of Justice, and Of Counsel, Randall K. Rathbun, Office of the United States Attorney, with him on the briefs), Department of Justice, Washington, DC, for Defendant and Counterclaim Plaintiff-Appellee. Joseph E. McKinney (Arthur E. Palmer, with him on the briefs) of Goodell, Stratton, Edmonds & Palmer, L.L.P., Topeka, KS, for Counterclaim Defendant-Appellant. Before SEYMOUR, PORFILIO, ANDERSON, TACHA, BALDOCK, BRORBY, EBEL, KELLY, HENRY, BRISCOE, LUCERO and MURPHY, Circuit Judges. BRORBY, Circuit Judge. 1 We reheard this appeal en banc to address the following question: 2 Under 26 U.S.C. § 6672, if a responsible person fails to investigate or correct mismanagement after learning of a withholding tax delinquency, must his conduct be found reckless and therefore willful as a matter of law, or, in the alternative, should the jury, in the view of all relevant evidence, be entitled to find the responsible person did not act recklessly? 3 We hold "willful" conduct as defined in the context of 26 U.S.C. § 6672 (1994 & Supp.1977) can be negated by a showing the responsible person had reasonable cause for failing to pay withholding taxes held in trust for the government. Such conclusion appropriately avoids a "strict liability" interpretation of § 6672 and preserves a role for the jury, as fact finder, to determine whether, in the view of all relevant evidence, a responsible person "willfully" failed to pay employee withholding taxes. OPERATIVE FACTS AND PRIOR DISPOSITION1 4 Appellant, Mr. Floyd Johnson, was president and a member of the board of directors of Halsey-Tevis, Inc. ("Halsey-Tevis"), a struggling corporation engaged in the interior construction business. In late October 1988, Mr. Johnson learned from board member and secretary-treasurer, Mr. Edward Finley, that Halsey-Tevis was delinquent in paying federal social security and income taxes withheld from employee wages during the third and fourth quarters of 1988. Upon learning of the delinquency, Mr. Johnson told Mr. Finley, "[t]hey have to be paid." Mr. Finley responded that partial payments were coming in; he gave no indication he would not comply with Mr. Johnson's directive to pay the taxes. Mr. Johnson made no further inquiry and took no further action regarding the unpaid withholding taxes even though he had authority to sign company checks and, at that time, Halsey-Tevis had access to funds that could have been used to make at least partial payment to the government. 5 The full extent of Halsey-Tevis' financial woes became evident a short time later when Mr. Finley completed the company's quarterly financial statement for the period ending September 30, 1988. On November 7, 1988, Mr. Finley contacted First National Bank in Wichita--the bank at which Halsey-Tevis maintained its general checking and payroll accounts and that provided Halsey-Tevis a line of credit from which the company could borrow operating funds based on its accounts receivable--to explain the newly completed quarterly statement. After reviewing the statement, the bank called a meeting of the Halsey-Tevis officers for the next day. On the morning of November 8, Mr. Finley, Mr. Johnson and another Halsey-Tevis officer, Mr. Brian McCann, met to discuss the company's financial problems prior to meeting with the bankers. It was at this meeting Mr. Johnson learned Mr. Finley had not remedied the withholding tax delinquency. Prior to meeting with the bankers, Mr. Johnson, Mr. Finley and Mr. McCann went to the local Small Business Administration office to try and secure a loan that would allow them to pay the withholding taxes. The Small Business Administration told the Halsey-Tevis officers they would have to go through a bank. Later that same day, First National Bank froze Halsey-Tevis' accounts. Thereafter, Halsey-Tevis could not pay any bills without the bank's prior approval. 6 On November 14, 1988, Mr. Johnson and Mr. Finley delivered about $105,000 in collections to the bank and asked bank officials to apply the deposit to the withholding tax balance. The bank refused and instead applied the deposit to Halsey-Tevis' loan indebtedness. Bank officials told Mr. Johnson and Mr. Finley they would "take care of the taxes later." 7 In July 1991, the Internal Revenue Service notified Mr. Johnson he was being assessed a $144,876.48 penalty under 26 U.S.C. § 6672. The government's claim against Mr. Johnson proceeded to a jury trial in 1994 on the sole issue of whether he acted willfully within the context of § 6672. When asked whether Mr. Johnson had "shown, by a preponderance of the evidence that he did not willfully fail to pay over to the United States any of the taxes withheld from the wages of Halsey-Tevis, Inc.'s employees," the jury responded "YES." This verdict was not allowed to stand, however. The district court granted the government's post-trial motion for a judgment as a matter of law under Fed.R.Civ.P. 50(b), concluding "a reasonable jury could not have found that [Mr.] Johnson met his burden of proof." Applying Denbo v. United States, 988 F.2d 1029 (10th Cir.1993), a panel of this court affirmed the district court's decision to set aside the jury verdict. Finley, 82 F.3d at 972-74. WILLFULNESS UNDER 26 U.S.C. § 6672 8 : A Question of Fact or A Matter of Law? 9 The Internal Revenue Code requires employers to withhold federal social security and income taxes from their employees' wages and then pay those taxes over to the government. 26 U.S.C. §§ 3102(a), 3402(a), 3403 (1994 & Supp. 1997). The funds withheld from employee wages do not belong to the employer/corporation; they are funds held by the employer in trust for the government. 26 U.S.C. § 7501(a) (1994). A corporate officer or employee who fails to remit such taxes to the government may be personally liable for penalties pursuant to 26 U.S.C. § 6672(a), which provides: 10 Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over. 11 (Emphasis added.) 12 It is well-settled § 6672 liability does not depend on the presence of a bad motive or the specific intent to defraud the government--elements associated with criminal liability. Burden v. United States, 486 F.2d 302, 304 (10th Cir.1973), cert. denied, 416 U.S. 904, 94 S.Ct. 1608, 40 L.Ed.2d 109 (1974); Bowen v. United States, 836 F.2d 965, 967-68 (5th Cir.1988); Bloom v. United States, 272 F.2d 215, 223-24 (9th Cir.1959), cert. denied, 363 U.S. 803, 80 S.Ct. 1236, 4 L.Ed.2d 1146 (1960). Rather "willfulness" for purposes of imposing civil liability under § 6672 is 13 a "voluntary, conscious and intentional decision to prefer other creditors over the Government...." Although negligence does not give rise to section 6672 liability, " ' the willfulness requirement is ... met if the responsible officer shows a "reckless disregard of a known or obvious risk that trust funds may not be remitted to the government...." ' " A responsible person's failure to investigate or to correct mismanagement after being notified that withholding taxes have not been paid satisfies the section 6672 willfulness requirement. 14 Denbo, 988 F.2d at 1033 (citations omitted). The question posed in this en banc appeal is whether evidence satisfying the Denbo definition alone is sufficient to impose liability under § 6672, as a matter of law, or whether there remains some role for a jury to determine, in view of all relevant evidence, that a responsible person did not act willfully and therefore cannot be held liable for a corporation's unpaid withholding taxes. 15 The government responds to this question by citing us to case law from this circuit and others that holds a responsible person who has knowledge of unpaid taxes and thereafter personally pays or directs the payment of claims of other creditors, or fails to take appropriate steps to ensure the taxes are paid (e.g., fails to investigate the matter or correct mismanagement), is willful as a matter of law. According to the government, to stray from this precedent "would largely emasculate Section 6672 and provide a blueprint for the avoidance of personal liability for those persons responsible for the failure to pay over trust fund taxes due the United States." 16 We are fully aware of the precedent whereby courts have seized on the notion that certain factual paradigms establish willfulness as a matter of law, even though the facts do not involve an intentional failure to pay over withholding taxes to the government. A responsible person's failure to investigate the problem or correct mismanagement after receiving actual notice of a withholding tax delinquency represents the factual paradigm applied in this case. Finley, 82 F.3d at 973; see also, Denbo, 988 F.2d at 1033-34. Reliance upon the representation of someone in control of company finances that withholding taxes will be paid after learning that such taxes are delinquent, and when it is known that the person making the statements is unreliable and has inadequately performed his financial responsibilities in the past, represents another paradigm used to impose liability under § 6672 as a matter of law. The payment of other bills with knowledge that the business is in financial trouble, but failing to reasonably inquire whether money would be available to pay withholding taxes when they become due is yet another paradigm courts have applied. See Thomsen v. United States, 887 F.2d 12, 18-19 (1st Cir.1989) (summarizing the "distinctive fact patterns from which to infer a reckless disregard sufficient to demonstrate willfulness as a matter of law under section 6672" (quoting I.R.S. v. Blais, 612 F.Supp. 700, 710 (D.Mass.1985))). These paradigms obviously create an expansive web of liability "as a matter of law" and significantly ease the government's burden under Fed.R.Civ.P. 50(b). Thus, it is easy to understand why the government relies so heavily on existing precedent. The en banc question, however, reflects our concern whether this web of case law leaves any role for the jury to determine willfulness. The government's mere reliance on existing precedent does not answer that question. 17 Mr. Johnson attempts to escape the web by arguing the relevant facts in his case are distinct from (not as egregious as) the relevant facts in cases where courts have applied the "failure to investigate or correct mismanagement" paradigm. In the alternative, Mr. Johnson urges us to reject a rigid application of that paradigm, as such an application would announce "a standard of virtual strict liability" contrary to the plain language of the statute. Using either approach to back away from the "failure to investigate or correct mismanagement" paradigm, Mr. Johnson then asserts there is substantial evidence to support the jury's verdict he did not willfully fail to pay Halsey-Tevis' federal withholding taxes. 18 We agree with Mr. Johnson that certain factual distinctions exist between existing precedent and this case. However, the factual paradigms identified as standards for determining willfulness as a matter of law are quite broad. The vast majority of cases leave no room for a taxpayer to meaningfully distinguish his case before a jury based on the relative degree of willfulness or the presence of extenuating circumstances. 19 Indeed, in defining those circumstances that constitute willfulness as a matter of law, many of our sister circuits have considered and expressly rejected the possibility that a responsible person's breach of duty to pay withholding taxes might be excused by a "reasonable cause" or "justifiable excuse."2 See, e.g., Harrington v. United States, 504 F.2d 1306, 1316 (1st Cir.1974); Pacific Nat. Ins. Co. v. United States, 422 F.2d 26, 33 & n. 19 (9th Cir.), cert. denied, 398 U.S. 937, 90 S.Ct. 1838, 26 L.Ed.2d 269 (1970); Monday v. United States, 421 F.2d 1210, 1216 (7th Cir.), cert. denied, 400 U.S. 821, 91 S.Ct. 38, 27 L.Ed.2d 48 (1970); c.f. Bowen, 836 F.2d at 968 (although the Fifth Circuit has recognized conceptually that a reasonable cause may negate a finding of willfulness, "no taxpayer has yet carried that pail up the hill."). The main reasons given for rejecting the possibility that willfulness can be negated by a showing of reasonable cause are: (1) a liability standard which does not incorporate reasonable cause will better further the primary purpose of the statute to protect government revenue, (2) defining willfully to include a lack of reasonable cause may inappropriately inject the notions of bad motive or evil purpose applicable to the criminal definition of willful into the civil definition of willful, and (3) the consideration of reasonable cause may invite consideration of irrelevant elements such as a business' financial condition or creditors' demands. Harrington, 504 F.2d at 1316; Monday, 421 F.2d at 1216. At least one court also has noted "that while 'reasonable cause' is an element of other sections of the [internal revenue code], it is not made so in Section 6672." Harrington, 504 F.2d at 1316. 20 We appreciate the government's reliance on 26 U.S.C. § 6672 to collect withholding tax revenues from responsible individuals after a business entity becomes insolvent. And we understand the corresponding importance of construing § 6672 in a manner to protect government revenue. See Slodov v. United States, 436 U.S. 238, 243-45, 98 S.Ct. 1778, 1783-84, 56 L.Ed.2d 251 (1978); Bowlen v. United States, 956 F.2d 723, 726 (7th Cir.1992). Accordingly, we agree with the notions that "willful" conduct under § 6672 is not the same as "willful" conduct in the criminal context, and that certain facts are irrelevant to the determination of whether a responsible person willfully failed to pay withholding taxes. Nevertheless, like Mr. Johnson, we are troubled by the possibility the courts have transformed 26 U.S.C. § 6672 into a strict liability statute, outside the jury's realm, by (1) broadly defining the most likely fact scenarios leading to a failure to pay withholding taxes as "willful" conduct as a matter of law, and (2) closing the door on any opportunity for a responsible person to distinguish his case from those factual scenarios, or paradigms (i.e., demonstrate reasonable cause for failure to pay). As " '[m]aintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence,' " it is our duty to carefully scrutinize any apparent curtailment of that function.3 Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 501, 79 S.Ct. 948, 951-52, 3 L.Ed.2d 988 (1959) (quoting Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935)). 21 Our scrutiny begins with the plain statutory language of 26 U.S.C. § 6672. "Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). If possible, we also must construe § 6672 in such a manner that every word has some operative effect. United States v. Nordic Village, Inc., 503 U.S. 30, 36, 112 S.Ct. 1011, 1015-16, 117 L.Ed.2d 181 (1992). Our focus in this case is on the word "willfully," which Congress expressly included as an element of liability under § 6672. 22 Although the precise definition of "willful" varies somewhat depending on its context, Screws v. United States, 325 U.S. 91, 101, 65 S.Ct. 1031, 1035, 89 L.Ed. 1495 (1945), one thing is certain: in any context, the word "willfully" denotes a "conscious motion of the will," Black's Law Dictionary 1434 (5th ed.1979), or "mental faculty" giving rise to a particular course of action. Webster's II New Riverside University Dictionary (1988). In this context, then, an inquiry whether a responsible person "willfully" failed to pay withholding taxes is " 'necessarily directed to the state of the responsible person's mind,' " Thibodeau v. United States, 828 F.2d 1499, 1505 (11th Cir.1987) (quoting Mazo v. United States, 591 F.2d 1151, 1157 (5th Cir.), cert. denied, 444 U.S. 842, 100 S.Ct. 82, 62 L.Ed.2d 54 (1979)), and therefore is properly characterized as an issue of scienter--"the quintessential jury issue." Turpin v. United States, 970 F.2d 1344, 1350 (4th Cir.1992) (court upheld jury verdict in favor of taxpayer, concluding sufficient evidence existed for jury reasonably to conclude taxpayer neither knew of nor recklessly disregarded withholding tax delinquency). To deprive a jury of the opportunity to fully evaluate the conscious motions supporting a responsible person's conduct would be to deprive the word "willfully" of its operative effect. Thus, even in the absence of an express reasonable cause element, Congress must have contemplated that in most cases a jury would be permitted to determine whether a responsible person willfully failed to pay withholding taxes based on the totality of circumstances and evidence.4 23 Our review of existing § 6672 case law leads us to conclude courts too often have extended § 6672 liability beyond this plain statutory language and impermissibly encroached upon the role of the jury as fact-finder by utilizing broad factual paradigms to impose liability as a matter of law notwithstanding the possibility that a taxpayer presented convincing evidence of extenuating circumstances relevant to his state of mind. We view this case as an opportunity to rectify that problem in the Tenth Circuit, and have given much thought as to how to accomplish the dual objectives of protecting government revenue and preserving the fact-finding function of the jury as required by the plain language of § 6672. 24 We could, as Mr. Johnson suggests, reject the rigid application of the "failure to investigate or correct mismanagement" paradigm to impose liability as a matter of law. Alternatively, we could adopt the concurring Judges' approach and characterize the issue as whether there is substantial evidence to support the jury verdict. See also Turpin, 970 F.2d at 1347. Either approach could be used to salvage the jury verdict in Mr. Johnson's favor. However, neither can be fully squared with precedent imposing liability as a matter of law, and thereby taking the issue of liability away from the jury, whenever the undisputed facts establish (1) a responsible person, (2) had knowledge of a withholding tax delinquency, and (3) failed to personally fulfill his duty to ensure payment of the delinquent taxes with any available, unencumbered funds prior to paying any other creditors. See Denbo, 988 F.2d at 1033-34; Mazo, 591 F.2d at 1156. We believe the better way to protect government revenue and preserve a role for the jury in this case and others without undermining existing precedent is to continue to apply the established paradigms to identify willful conduct as a matter of law, yet expressly recognize a reasonable cause exception to the application of those paradigms. In this way the courts can continue to hold responsible persons' feet to the fire, yet provide those same individuals a delimited opportunity to demonstrate to a jury there was reasonable cause sufficient to excuse the failure to pay the withholding taxes they held in trust for the government. 25 Having recognized the reasonable cause exception, we must now take the further step of defining what elements are necessary to demonstrate "reasonable cause," as the jury's role properly is limited to determining whether those elements are present in a given case. See, e.g., Rykoff v. United States, 40 F.3d 305, 307-08 (9th Cir.1994); Hatfried, Inc. v. Commissioner of Internal Revenue, 162 F.2d 628, 635 (3d Cir.1947). 26 We begin our analysis of what constitutes reasonable cause sufficient to avoid withholding tax liability under § 6672 by distinguishing this situation from those cases, statutes and regulations which address what constitutes reasonable cause sufficient to avoid liability for income tax penalties. Unlike the penalties assessed for failure to file income tax returns, penalties imposed by § 6672 are not civil fines assessed in addition to the amount of the delinquent tax. Section 6672 is simply a means to insure payment to the government of the withholding taxes owed. Thus, § 6672 penalties reflect only that amount of tax already collected or deducted by an employer and for which the employees have already received credit in their individual income tax returns. Since § 6672 does not raise a concern regarding the protection of a taxpayer from harsh, additional penalties imposed for purposes of punishment and deterrence, it would be inappropriate to adopt a lenient reasonable cause standard like that applied to income tax penalties, i.e. ordinary business care and prudence. See Eastern Inv. Corp. v. United States, 49 F.3d 651, 655 (10th Cir.1995); Sanders v. Commissioner of Internal Revenue Serv., 225 F.2d 629, 636-37 (10th Cir.1955), cert. denied, 350 U.S. 967, 76 S.Ct. 435, 100 L.Ed. 839 (1956). Instead, we must narrowly construe the "reasonable cause" exception to § 6672 liability in order to (1) further the basic purpose of § 6672 to protect government revenue, (2) discourage corporations from self-executing government loans using the tax monies they hold in trust, and (3) avoid making the government "an unwilling partner in a floundering business." See Collins v. United States, 848 F.2d 740, 741-42 (6th Cir.1988); Thibodeau, 828 F.2d at 1506; Newsome v. United States, 431 F.2d 742, 747 (5th Cir.1970). 27 We therefore conclude reasonable cause sufficient to excuse a responsible person's failure to pay withholding taxes should be limited to those circumstances where (1) the taxpayer has made reasonable efforts to protect the trust funds, but (2) those efforts have been frustrated by circumstances outside the taxpayer's control. By so limiting the elements of reasonable cause in the § 6672 context we avoid the temptation to inject notions of evil motive, bad faith or other improper factors into the determination of willfulness, and maintain the ability to zealously protect government revenue via the application of certain factual paradigms widely-recognized and accepted as "willful conduct." Yet, consistent with the plain language of § 6672, this approach preserves a role for the jury to determine whether, based on all relevant evidence in a particular case, the responsible taxpayer's conduct reflects the requisite scienter.5NEW TRIAL: Did Mr. Johnson Have Reasonable Cause? 28 The only issue tried to the jury was whether Mr. Johnson acted willfully in failing to pay over Halsey-Tevis' delinquent withholding taxes to the federal government. The jury was instructed (1) Mr. Johnson contended he did not willfully fail to pay the taxes, (2) when Mr. Johnson learned the withholding taxes had not been paid, he directed Mr. Finley to pay the taxes, and (3) when he learned Mr. Finley had not done so, there were no unencumbered corporate funds with which to pay the taxes. The jury was further instructed the United States denied Mr. Johnson's contention and Mr. Johnson bore the burden of proof. The parties defined "willfully," in relevant part, as 29 a voluntary, conscious and intentional decision to prefer other creditors over the government. Willfulness is present whenever a responsible person acts or fails to act consciously and voluntarily and with knowledge or intent that as a result of his action or inaction trust funds belonging to the government will not be paid over but will be used for other purposes. In addition, the jury was told 30 [t]o be willful, the payment to other creditors by means of unencumbered funds must be done either (1) with knowledge that trust funds had not been paid over, or; (2) with reckless disregard for whether they had been paid. If a responsible person has knowledge of circumstances which would give a person in his position reason to believe that withholding taxes may not have been paid over because of mismanagement or of problems in paying over withholding taxes, his failure to investigate and determine if the funds have been paid over is reckless disregard and constitutes a willful failure to pay over these funds. 31 Having been so instructed, the jury then was asked to answer the following interrogatory: 32 Has the plaintiff, Floyd Johnson, shown by a preponderance of the evidence that he did not willfully fail to pay over to the United States any of the taxes withheld from the wages of Halsey-Tevis, Inc.'s employees. (Circle the appropriate answer.) 33 The jury circled "YES." 34 The instructions and verdict reveal the jury never was asked to determine whether Mr. Johnson had reasonable cause sufficient to excuse his failure to pay Halsey-Tevis' withholding taxes. Rather, it appears this case was tried and instructed under the assumption this circuit would not recognize a reasonable cause exception to conduct otherwise deemed "willful" under existing § 6672 precedent. Our decision today makes clear that assumption was incorrect. 35 The question remains, then, how to properly resolve this appeal. We can uphold the government's judgment as a matter of law only if Mr. Johnson was fully heard on the issue of willfulness and, construing the evidence and inferences in Mr. Johnson's favor, we can find no legally sufficient evidentiary basis for a reasonable jury to find his conduct was not willful. Mitchell v. Maynard, 80 F.3d 1433, 1438 (10th Cir.1996); Fed.R.Civ.P. 50(a)(1). Applying the § 6672 analysis we embrace today, Mr. Johnson should have had an opportunity to prove, and the jury should have determined, whether there was sufficient evidence to establish Mr. Johnson had a reasonable cause for his failure to pay Halsey-Tevis' withholding taxes. This did not occur. We can only speculate from the present record as to why the jury found in Mr. Johnson's favor; there simply is no way to discern how the jury would decide the issue of reasonable cause. Consequently, we are not in a position to uphold the judgment as a matter of law. Neither can we reinstate the jury verdict. Under these circumstances, the interests of justice demand we grant a new trial. Neely v. Martin K. Eby Construction Co., 386 U.S. 317, 329, 87 S.Ct. 1072, 1080, 18 L.Ed.2d 75 (1967) (court of appeals may order a new trial based on factors encountered in its own review of the case); Derr v. Safeway Stores, Inc., 404 F.2d 634, 639-40 (10th Cir.1968) (court of appeals may grant new trial if jury verdict is not reinstated); c.f. Jackson State Bank v. King, 992 F.2d 256, 257-58 (10th Cir.1993) (new trial required after state court announced a new rule of law on certification and no way to discern from jury's answers to special interrogatories how it would have decided the issue if properly instructed). 36 Accordingly, we REVERSE the district court's Rule 50(b) order, VACATE the jury verdict and REMAND this case to the district court for further proceedings consistent with this opinion. 37 PAUL KELLY, Jr., Circuit Judge, concurring in part and dissenting in part, with whom SEYMOUR, Chief Judge, joins. 38 I concur with the court that the willfulness inquiry under I.R.C. § 6672 and Treas. Reg. § 301.6672-1 requires consideration of relevant evidence pertaining to intent, including whether a responsible person fails to investigate or correct mismanagement after learning of nonpayment of trust fund taxes. In my view, this case turns on whether sufficient evidence supports the jury's verdict that Mr. Johnson did not act willfully when the evidence is viewed in the light most favorable to him. See Turpin v. United States, 970 F.2d 1344, 1347 (4th Cir.1992). Because a jury is entitled to consider the nature, extent and timing of a responsible person's nonpayment in deciding willfulness, I would hold that sufficient evidence supports the jury's verdict and would remand the case to the district court to vacate its judgment, reinstate the jury verdict, and enter judgment in favor of Mr. Johnson. I would not reach the issue of whether a "reasonable cause" exception applies, nor would I define its parameters. 39 The principles in our prior cases must be read in conjunction with the procedural posture of the case, specifically, application of the law to undisputed facts on summary judgment, Muck v. United States, 3 F.3d 1378, 1380 (10th Cir.1993) or affirming a judge or jury's finding of willfulness while viewing the evidence in the light most favorable to the result, Denbo v. United States, 988 F.2d 1029, 1033-34 (10th Cir.1993) (jury verdict); Burden v. United States, 486 F.2d 302, 304 (10th Cir.1973) (district court finding), cert. denied, 416 U.S. 904, 94 S.Ct. 1608, 40 L.Ed.2d 109 (1974). Where we have reversed a district court's finding of a lack of willfulness in the § 6672 context, the responsible person knew the taxes were unpaid, yet continued to operate and liquidate the business over a substantial period of time. Bradshaw v. United States, 83 F.3d 1175, 1186 (10th Cir.1995), cert. denied, --- U.S. ----, 117 S.Ct. 296, 136 L.Ed.2d 215 (1996). In Bradshaw, we rejected a contention that allowing a bank authority over disbursements vitiated willfulness. Id. at 1183-86. 40 Whether Mr. Johnson acted "willfully" under § 6672 is a factual matter. Id. at 1182-83; Taylor v. I.R.S., 69 F.3d 411, 417 (10th Cir.1995). One way to prove willfulness is to show that a responsible person acted with reckless disregard of a known or obvious risk that trust funds may not be paid over to the government. Bradshaw, 83 F.3d at 1183; Denbo, 988 F.2d at 1033. Under this theory, we have held that "[a] responsible person's failure to investigate or to correct mismanagement after being notified that withholding taxes have not been paid satisfies the section 6672 willfulness requirement." Bradshaw, 83 F.3d at 1183. At the same time, negligence is insufficient to result in § 6672 liability. Id. Denbo, 988 F.2d at 1033. 41 The evidence in this case does not compel a finding of willfulness, i.e., that Mr. Johnson knowingly preferred other creditors to the government with unencumbered funds totaling $95,000. Mr. Johnson learned of the delinquent trust fund taxes in late October 1988 from Mr. Finley, discussed sources of funds, and then directed that they be paid. Other than the fact of the unpaid taxes, Mr. Johnson had no reason to view Mr. Finley as unreliable; he was unaware of Mr. Finley's scheme to conceal unpaid trust fund taxes. See Finley v. United States, 82 F.3d 966, 969 (10th Cir.1996). Even assuming that the unpaid taxes were evidence of mismanagement, a reasonable jury could conclude that Mr. Johnson took appropriate steps to correct it under the circumstances by discussing available sources of funds and directing that the taxes be paid. 42 Not until November 8, 1988, did Mr. Johnson learn of the failure to correct the problem. At this point, however, the company's arrangement with the bank underwent substantial change. The government does not argue that subsequent cash receipts delivered to the bank pursuant to this arrangement (including $105,000 that Mr. Johnson and Mr. Finley requested be applied to trust fund taxes) constitute unencumbered funds that should have been applied to payment of trust fund taxes. See United States v. Kim, 111 F.3d 1351, 1358-61 (7th Cir.1997); Honey v. United States, 963 F.2d 1083, 1089-90 (8th Cir.), cert. denied, 506 U.S. 1028, 113 S.Ct. 676, 121 L.Ed.2d 598 (1992). Thus, at issue in this case are Mr. Johnson's actions from late October 1988 until November 8, 1988. 43 According to the government, 44 once a responsible officer becomes aware that trust fund taxes due the United States have not been paid, it is incumbent upon such person to take appropriate steps to ensure that the taxes are paid and that, if he fails to do so, e.g., fails to investigate the matter or correct mismanagement, his failure to act constitutes, as a matter of law, a reckless disregard of the known risk that the taxes owed the Government might not be paid. 45 Aplee. Supp. Br. On Reh'g En Banc at 8. I agree that investigating the matter or correcting mismanagement are exemplary but not exclusive and that the focus must be on taking appropriate steps given the situation. Here, Mr. Johnson did act. Whether a responsible person has taken appropriate steps, and consequently not acted with scienter, cannot be dependent solely upon whether the investigation or correction of mismanagement ensured that the taxes were paid; otherwise, there would be strict liability in every nonpayment case. A much more reasonable construction of the statute allows the jury to consider the facts and circumstances surrounding the nonpayment, including (1) Mr. Johnson's lack of sophistication, (2) that Mr. Finley hid from him the company's financial problems and led him to believe the company was doing better than it actually was, (3) that Mr. Johnson wanted the taxes paid and took steps to accomplish that goal, including (a) delivery of $105,000 to the bank for that purpose, and (b) actual payment of unencumbered funds, and (4) that the time period in which the government claims Mr. Johnson's conduct amounted to recklessness was no more than a couple of weeks and possibly as short as one week. Though the statute is harsh, surely it was not intended to replace a subjective evaluation of willfulness with a formulaic objective standard. While any one of these factors might not be sufficient to avoid a willfulness determination, the trier of fact should be allowed to consider them and determine whether the nonpayment conduct was willful. 1 We present here only those facts relevant to the en banc question. A complete recitation of facts is found in Finley v. United States, 82 F.3d 966, 968-70 (10th Cir.1996) 2 The Tenth Circuit has never squarely addressed this issue. A three-judge panel in Muck v. United States, 3 F.3d 1378, 1382 (10th Cir.1993), stated, in dicta, a reasonable cause "defense to liability under § 6672 ... appears inconsistent with this circuit's insistence that (bad) motive is not a pertinent inquiry under § 6672." Ultimately, however, the panel determined "[e]ven if [a reasonable cause] exception were recognized by this circuit, it would not apply" under the circumstances in Muck. Id. at 1382 3 We note a number of courts have expressed discomfort with their application of binding § 6672 precedent. See Finley, 82 F.3d at 974 ("We are not oblivious to what one court has called 'the Draconian enforcement power which the IRS has under the precedent,' but it is our job to apply the law as it is.") (quoting Phillips v. I.R.S., 73 F.3d 939, 943 (9th Cir.1996)); Buffalow v. United States, 109 F.3d 570, 575 (9th Cir.1997) (in upholding summary judgment against taxpayer who, in an attempt to rescue his company, paid other creditors before he paid delinquent withholding taxes, court commented "we must once again embrace the result of a 'responsible person' case with velleity"); Williams v. United States, 931 F.2d 805, 811 (11th Cir.1991) ("The seeds of common sense compassion sown by the jury find scant hospitality on this rock hard legal landscape."); Arnett v. United States, 927 F.Supp. 1464, 1471-72 (D.Kan.1996) (constrained by Finley and Denbo, court was "reluctantly compelled" to conclude taxpayer willfully failed to pay over federal employment taxes); Fowler v. United States, 820 F.Supp. 1390, 1395 n. 2 (D.Wyo.1993) ("Section 6672 is not a strict liability statute, although after reviewing the case law, one might believe otherwise."). None, however, has taken the step we take today to scrutinize the impact of existing precedent on the jury's role in determining willfulness as contemplated by the plain language of § 6672 4 If, in fact, Congress desires § 6672 to impose strict liability on responsible persons, then Congress is the appropriate branch to establish such policy, not the courts 5 We note this result also is in line with the government's concession during oral argument that § 6672 imposes an element of scienter, the evaluation of which is dependent upon all the facts in a given case, including those indicating a reasonable cause for the responsible person's failure to pay	{ "pile_set_name": "FreeLaw" }
Fourth Court of Appeals San Antonio, Texas June 15, 2016 No. 04-15-00677-CV Helen A. MZYK, Karnes S4 Minerals, L.P., and Karnes S4 Management, L.L.C., Appellants v. MURPHY EXPLORATION & PRODUCTION COMPANY-USA, Appellee From the 81st Judicial District Court, Karnes County, Texas Trial Court No. 14-04-00083-CVK Honorable Donna S. Rayes, Judge Presiding ORDER Appellants’ unopposed motion for an extension of time to file their brief is granted. We order appellants to file their brief by July 13, 2016. _________________________________ Luz Elena D. Chapa, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 15th day of June, 2016. ___________________________________ Keith E. Hottle Clerk of Court	{ "pile_set_name": "FreeLaw" }
914 F.2d 1492Unpublished 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.UNITED STATES of America, Plaintiff-Appellee,v.David Olushina JOHN, Defendant-Appellant. No. 90-6580. United States Court of Appeals, Fourth Circuit. Submitted July 20, 1990.Decided Sept. 24, 1990.Rehearing and Rehearing In Banc Denied Oct. 22, 1990. Appeal from the United States District Court for the District of Maryland, at Baltimore. Frederic N. Smalkin, District Judge. (CR No. 83-226-M). David Olushina John, appellant pro se. Lawrence L. Hooper, Jr., Assistant United States Attorney, Baltimore, Md., for appellee. D.Md. AFFIRMED. Before K.K. HALL, SPROUSE, and CHAPMAN, Circuit Judges. PER CURIAM: 1 David Olushina John appeals from the district court's order which denied his motion to correct an illegal sentence. Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court. United States v. John, CR No. 83-226-M (D. Md. Apr. 18, 1990). 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	{ "pile_set_name": "FreeLaw" }
116 F.3d 1491 U.S.v.Brooks NO. 95-9515 United States Court of Appeals,Eleventh Circuit. June 06, 1997 Appeal From: N.D.Ga. ,No.94004561CRMHS 1 Affirmed. Local Rule 36 case	{ "pile_set_name": "FreeLaw" }
72 P.3d 182 (2003) In re the Personal Restraint Petition of Ronald J. BRENNAN, Jr., Petitioner. No. 49424-4-I. Court of Appeals of Washington, Division 1. May 12, 2003. Publication Ordered June 26, 2003. Christopher Gibson, Nielsen Broman & Koch, Seattle, WA, Ronald J. Brennan, Monroe, WA, for Appellant. Mary K. Webber, Snohomish County Pros. Atty, Everett, WA, for Respondent. 183 BAKER, J. Several years after Ronald Brennan, Jr. was convicted of methamphetamine possession and sentenced, it became public that Michael Hoover, a chemist at the Washington State Patrol Crime Laboratory, had been using heroin sent to the crime lab for testing purposes. Hoover had tested the substance found on Brennan and determined it was methamphetamine. But there is no evidence that Hoover was using drugs when he tested the substance found on Brennan. And independent evidence established that the substance was methamphetamine. Finally, although Brennan argues that there was a Brady[1] violation, he cannot now raise this argument because he pled guilty. We therefore deny his personal restraint petition. I On November 15, 1996, police investigated a call from a motel that housekeepers had discovered what appeared to be drugs in one of the rooms. The room was registered to Ronald Brennan, Jr. While the police were interviewing witnesses, another man, Stuart Darren Ray, arrived at the room. Ray stated that he and Brennan were roommates, and admitted that there might be drugs in the room. The police obtained a search warrant, and found several bags containing white powder in the room. The powder field tested for methamphetamine. When Brennan arrived, he was arrested and advised of his rights. During a search incident to arrest, officers found a small plastic bag on his person, the contents of which also field tested for methamphetamine. Later, Brennan gave a statement admitting to possessing methamphetamine and occasionally selling it. The substances from the motel room and Brennan's person were sent to the state crime lab in Monroe. The following week, chemist Michael Hoover tested both, concluding that they contained methamphetamine. The next month, Brennan was charged with possessing a controlled substance. Because of subsequent arrests and charges concerning the sale and distribution of methamphetamines to minors, Brennan entered into a plea agreement and pled guilty to this charge on May 29, 1998, eighteen months after his initial arrest. In his plea of guilty Brennan stated that "On November 15, 1996, in Snohomish County, I knowingly and unlawfully possessed methamphetamine while armed with a firearm." Michael Hoover began working as a chemist for the Monroe Washington State Patrol (WSP) crime lab in 1989. Shortly after Chemist James Boaz transferred to the lab in early 1997, he heard odd sounds, such as a razor blade on glass and snorting sounds, coming from Hoover's work station. Boaz was told that the sounds were because Hoover was taking antihistamines. Boaz observed other unusual behavior by Hoover. For example, when he approached Hoover's work station he noticed that Hoover "palmed" a large evaporating dish on his desk. Later, in 1998 or 1999, chemists Boaz and David Northrop noticed that Hoover was assigning himself a disproportionately large number of heroin cases. Hoover also appeared to be removing heroin cases from other chemist's drawers and reassigning them to himself. Northrop requested that supervisor Erik Neilson assign all cases, but Hoover continued to remove heroin cases from the drawer of unassigned cases and self-assign them. Boaz also observed that Hoover's lab data seemed sloppy. He suspected that Hoover was reducing his workload by repeatedly testing the same purified sample and applying the results across a number of cases, a practice known as "dry labbing." Boaz suspected that Hoover was dry labbing because, in Boaz's opinion, Hoover's data for separate criminal cases was too similar to have come from different samples. Boaz documented at least 14 possible dry labbing incidents between August and October 2000. In November 2000, Neilson asked the Washington State Patrol to investigate Hoover. A hidden video camera placed above 184 Hoover's work station, revealed that Hoover was scraping the residue from evaporation dishes into small vials and hiding them on his person or around his workstation. The videotape also showed Hoover obtaining a hidden sample of a "dark substance" and placing it in his mouth. Officers obtained a search warrant and interviewed Hoover on December 22, 2000, more than two years after Boaz began noticing that Hoover was taking heroin cases out of his drawer. Hoover eventually acknowledged that he had been taking heroin samples from evidence sent to the lab for testing, purifying it, and using it to treat his back pain. He also admitted that he frequently used heroin at the lab shortly before leaving work. Hoover was given a urine test, which tested positive for heroin. Detectives also found seven test tubes at the back of Hoover's work station that appeared to contain controlled substances. The vials had various labels, including "meth" and "heroin." Testing revealed that six of the test tubes contained heroin, and one contained methamphetamine. Boaz and Northrop thought the quantity of material in the test tubes was larger than normal for "marker samples" kept in the work area. Hoover was charged with evidence tampering and official misconduct. He pleaded guilty to both charges. In August 2001 Brennan moved to withdraw his guilty plea, claiming that he had only pleaded guilty because he had no reason to contest the lab reports prepared by Hoover. In his personal restraint petition, he argues that the revelation that Hoover was using drugs creates a reasonable doubt as to the validity of the lab reports in his case, and that it would be manifestly unjust not to allow him to withdraw his guilty plea. II A personal restraint petitioner has the burden of proving constitutional error that results in actual prejudice or nonconstitutional error that results in a miscarriage of justice.[2] If a petition is based on matters outside the appellate record, a petitioner must show that he has "competent, admissible evidence" to support his arguments.[3] Also, "a petitioner must show that more likely than not he was prejudiced by the error. Bare allegations unsupported by citation of authority, references to the record, or persuasive reasoning cannot sustain this burden of proof."[4] Brennan argues that because there are significant questions surrounding Hoover's drug use, including whether he properly tested methamphetamine samples, the fairness of the procedures followed in his case are at issue, citing State v. Roche.[5] In Roche, this court reversed two convictions because Hoover's malfeasance broke the chain of custody and tainted the integrity of two trials. The court expressed concern that if the convictions were not overturned, the integrity of the criminal justice system might suffer: The most important consideration for us now is the preservation of the integrity of the criminal justice system. We must handle these ... cases now before us in such a fashion that the public, the defense bar, the prosecuting attorneys, and the courts of Washington will clearly understand that we will not tolerate criminal convictions based on tainted evidence, but will insist upon proper standards of conduct and procedure.[[6]] We do not believe that Roche requires us to grant Brennan's personal restraint petition. There are three significant differences between this case and Roche. First, Brennan pled guilty. On the guilty 185 plea form he was asked to explain in his own words the crime he committed. He wrote that "I knowingly and unlawfully possessed methamphetamine while armed with a firearm." In Roche, neither defendant pled guilty. Second, there is independent evidence establishing that Brennan possessed methamphetamines. The substance taken from Brennan's person field tested positive for methamphetamine. And after receiving his Miranda[7] warning, Brennan confessed to possessing methamphetamines with the intent to sell them. In contrast, although police conducted a field test determining that the substances found in Roche's home were methamphetamines, the officers did not find the drugs on Roche, nor did Roche confess to possessing methamphetamines. Finally, Brennan provides no temporal connection between Hoover's acts of malfeasance and Hoover's testing of the substance found on Brennan. The earliest direct evidence of illegal drug use by Hoover is in 1998. Although there is inconclusive evidence which might imply that Hoover was using heroin in mid-1997, there is no evidence even inferring his drug use before mid-1997, nearly six months after Hoover performed the test on the substances taken from Brennan. Again in contrast, there was compelling evidence in Roche establishing that Hoover was using heroin and dry labbing methamphetamine test results during the time he conducted the tests on the substances at issue in the challenged trials. The absence of evidence suggesting that Brennan's test results were inaccurate, combined with a positive field test and his confession, support his guilty plea. The interests of justice do not require that Brennan be permitted to withdraw his guilty plea. Brennan further argues that by not disclosing Hoover's drug use before Brennan pleaded guilty, the State violated his constitutional right to due process. In the 1963 case of Brady v. Maryland,[8] the United States Supreme Court held that state prosecutors violate a defendant's right to due process when evidence favorable to a defendant is not disclosed.[9] The prosecutor's good faith is unimportant.[10] Further, a prosecutor has the duty to learn of evidence favorable to the defendant that is known to others acting on behalf of the government in a particular case, including the police.[11] The purpose of holding police and others assisting prosecutors so accountable is that "[e]xculpatory evidence cannot be kept out of the hands of the defense just because the prosecutor does not have it."[12] Otherwise, prosecutors could instruct those assisting them not to give the prosecutor certain types of information, resulting in police and other investigating agencies acting as the final arbiters of justice.[13] A true Brady violation has three components: (1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.[14] Although the prosecution cannot avoid its obligations under Brady by keeping itself ignorant of matters known to other state agents, it has no duty to independently search for exculpatory evidence.[15] And prejudice exists "`only if there is a reasonable probability that, had the evidence been disclosed 186 to the defense, the result of the proceeding would have been different.'"[16] Brennan argues that a Brady violation occurred because Hoover did not disclose his malfeasance to the prosecutor or the defense. According to Brennan, the Brady rule applies because Hoover was an employee of a state investigative agency, and his activities would have provided exculpatory or impeaching evidence material to the defense.[17] He further seeks to apply Brady to Hoover's co-workers at the lab who observed unusual behavior in 1997 and harbored suspicions about Hoover's activities as early as 1998. Essentially, Brennan alleges that the prosecution withheld evidence that could be used to impeach Hoover, in violation of Brady. He argues that this evidence would have raised doubt about the accuracy of the testing in his case, and thus he is entitled to withdraw his guilty plea. Brennan's argument is foreclosed by United States v. Ruiz.[18] In Ruiz, the Supreme Court rejected the Ninth Circuit's conclusion that the constitution requires prosecutors to make certain impeachment information available to defendants before pleading guilty.[19] Brennan has submitted no evidence that the tests performed by Hoover were inaccurate. Instead, he argues that because it is known that Hoover was using drugs at a later date, there is a reasonable doubt as to the validity of the tests. But Brennan pled guilty, and gave up "not only a fair trial but, also other accompanying constitutional guarantees."[20] One of those rights was to impeach any witnesses the state might call, including Hoover.[21] Accordingly, there was no Brady violation. Brennan's personal restraint petition is denied. GROSSE and ELLINGTON, JJ., concur. NOTES [1] Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). [2] In re Personal Restraint of Cook, 114 Wash.2d 802, 813, 792 P.2d 506 (1990). [3] In re Personal Restraint of Rice, 118 Wash.2d 876, 886, 828 P.2d 1086 (1992). [4] State v. Brune, 45 Wash.App. 354, 363, 725 P.2d 454 (1986). [5] 114 Wash.App. 424, 59 P.3d 682 (2000) [6] Roche, 114 Wash.App. at 447, 59 P.3d 682 (adopting the reasoning of Snohomish County Prosecutor as its own). [7] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). [8] 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). [9] Brady, 373 U.S. at 87, 83 S.Ct. 1194. [10] Brady, 373 U.S. at 87, 83 S.Ct. 1194. [11] Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). [12] U.S. v. Zuno-Arce, 44 F.3d 1420, 1427 (9th Cir.1995). [13] Kyles, 514 U.S. at 438, 115 S.Ct. 1555. [14] Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). [15] In re Personal Restraint of Gentry, 137 Wash.2d 378, 399, 972 P.2d 1250 (1999). [16] In re Personal Restraint of Benn, 134 Wash.2d 868, 916, 952 P.2d 116 (1998) (quoting U.S. v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). [17] At least two state courts have found that a crime lab was part of the prosecution team in the context of disclosing evidence. See In re Brown, 17 Cal.4th 873, 72 Cal.Rptr.2d 698, 702, 952 P.2d 715 (1998) (holding that failure of crime lab to disclose evidence did not relieve prosecutor of obligation to review lab files for exculpatory evidence because "no serious dispute" that state run crime laboratory part of "investigative team"); Damian v. State, 881 S.W.2d 102, 107 (Tex.App.1994) (rejecting state's claim that evidence was never within prosecutor's possession because in possession of crime lab). [18] 536 U.S. 622, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002). [19] Ruiz, 122 S.Ct. at 2455. [20] Ruiz, 122 S.Ct. at 2455. [21] Ruiz, 122 S.Ct. at 2455.	{ "pile_set_name": "FreeLaw" }
OPPlCE OF THE ATTORNEY GENF.RAL STATE OF TELUS JOHN CORNYN June 3, 1999 Ms. Linda Cloud Opinion No. JC-0064 Executive Director Texas Lottery Commission Re: Whether the Lottery Commission may renew an P.O. Box 16630 expired license to conduct bingo games or to sell Austin, Texas 78761-6630 lottery tickets, and related questions (RQ-1195) Dear Ms. Cloud: You ask several questions about the Texas Lottery Commission’s authority under the State Lottery Act, TEX. Gov’TCODEANN. ch. 466 (Vernon 1998), and the Bingo Enabling Act, TEX. REV. CIV. STAT. ANN. art. 179d (Vernon Supp. 1999), to “revive,” as you say, an expired or ineffective license. We conclude that the Texas Lottery Commission (the “Commission”) may not revive an expired license and may renew an expired or lapsed license under either act only if the licensee sent the renewal application to the Commission on or before the date the previous license expired. We begin by examining each of the acts you cite. Under the Bingo Enabling Act, an organization generally may not conduct bingo games unless it is licensed to do so. See id. 5 12(a); 16 TEX. ADMIN. CODE 5 402545(a)(l) (1998) (Tex. Lottery Comm’n, Bingo Regulations & Tax); see also TEX. REV. CIV. STAT. ANN. art. 179d, 5 2( 11) (Vernon Supp. 1999) (defining “authorized organization”). A license is effective for no longer than one year unless the Commission revokes or suspends it. See TEX. REV. CIV. STAT. ANN. art. 179d, $5 13(h), 13c(b) (Vernon Supp. 1999); 16 TEX. ADMIN. CODE 5 402545(a)(3)(A) (1998) (Tex. Lottery Comm’n, Bingo Regulations &Tax). Neither the Bingo Enabling Act nor rules promulgated under the act’s authority indicates when a licensee must tile a renewal application for the application to be timely. Cf: TEX. GOV’TCODEANN. 5 466.158(c) (Vernon 1998) (requiring lottery ticket sales agency to tile renewal application before license expires). Similarly, under the State Lottery Act, a person who is not a Commission employee must be licensed as a sales agent if the person is to sell lottery tickets. See TEX. GOV’T CODE ANN. 5 466.151(a) (Vernon 1998); 16 TEX. ADMIN. CODE 5 401.151(a) (1998) (Tex. Lottery Comm’n, Administration of State Lottery Act). A license that is not suspended or revoked generally expires no later than two years after it was issued. See TEX. GOV’T CODE ANN. 5 466.158(a); 16 TEX. ADMIN. CODE 5 401.155(a)( 1) (1998) (Tex. Lottery Comm’n, Administration of State Lottery Act). A sales agent must apply for renewal in accordance with Commission rules, see TEX. GOV’T CODE ANN. 5 466.158(b), (c) (Vernon 1998); 16 TEX. ADMIN. CODE 5 401.156 (1998) (Tex. Lottery Comm’n, Administration of State Lottery Act), but, in accordance with the statute, a “sales agent Ms. Linda Cloud - Page 2 (X-0064) must file a renewal application and pay the renewal fee before the sales agent’s license expires.” See TEX. GOV’T CODEANN. $466.158(c) (1998); accord 16 TEX. ADMIN. CODE 5 401.156(a) (1998) (Tex. Lottery Comm’n, Administration of State Lottery Act). Although you do not cite the Administrative Procedure Act (the “APA”), TEX. GOV’T CODE ANN. ch. 2001 (Vernon 1999), we believe it is pertinent. The Commission, a state agency, is subject to the APA. See id. 5 2001.003(7) (defining “state agency”). In general, the APA directs that, regardless of the expiration date that may be printed on a license, a license for an activity of a continuing nature does not expire until the licensing agency has made a final determination on a timely and sufficient renewal application: If a license holder makes timely and sufficient application for the renewal of a license or for a new license for an activity of a continuing nature, the existing license does not expire until the application has been finally determined by the state agency. If the application is denied or the terms of the new license are limited, the existing license does not expire until the last day for seeking review of the agency order or a later date fixed by order of the reviewing court. Id. 5 2001.054(b); see also id. 5 2001.003(2), (3) (defining “license” and “licensing,“respectively). Because conducting bingo games on a nontemporary basis and selling lottery tickets are activities of a continuing nature, licensure for these activities is subject to this APA provision. We turn to your questions. You first ask whether the Commission is expressly authorized to revive an expired or ineffective license. It is not authorized to do so where a timely renewal application was not filed. Where the legislature has desired to provide a grace period for licensees or to except a specific group from licensurerequirements, it has done so expressly. We find no grace period or excepted groups in the Bingo Enabling Act, the State Lottery Act, or the APA. See Tex. Att’y Gen. Op. No. JM-796 (1987) at 2-3 (pertaining to dentists and dental hygienists). You next ask whether the Commission is authorized to approve the renewal application of an expired or no longer effective lottery-retailer or charitable-bingo license. We conclude, for the reasons stated in answer to your first question, that the Commission may approve a renewal application only if it was submitted in a timely manner. Cf: Texas Dep ‘tofPub. Safety v. Plyor, 329 S.W.2d 85,87 (Tex. 1950) (stating that Respondent’s expired commercial operator’s license could no longer be renewed). You also question whether the Commission may act only upon a renewal application that it received on or before the date the license expired. We conclude that the renewal application must be sent, but not necessarily received, on or before the expiration date. The State Lottery Act explicitly requires a renewal application to be “tiled” on or before the expiration date. See TEX. G0~‘~C0~~A~~.~466.158(c)(Vemon1998);~ccord16T~~.AD~1~.C0~~~401.156(a)(1998) Ms. Linda Cloud - Page 3 (X-0064) (Tex. Lottery Comm’n, Administration of State Lottery Act). Because you do not inform us to the contrary, we assume that the Commission applies the same requirement to applications to renew licenses to conduct bingo games, although neither the Bingo Enabling Act nor Commission rules stipulate one way or the other. The Commission’s rules stipulate that an application is “filed” when it is sent, via mail or fax, for example, to the Commission: Documents required to be filed or served are considered filed or served when actually received or are deemed filed or served when deposited with the United States Postal Service or private mail service, postage or delivery charges paid, or sent by facsimile transmission. The postmark, shipping, or transmission date indicated on a document is presumed to be the date of service, but this is a rebuttable presumption. 16 TEX. ADMIN. CODE $ 401.221 (1998) (Tex. Lottery Comm’n, Administration of State Lottery Act). In accordance with the Commission’s own rule, then, a renewal application is timely submitted to the Commission and must be acted upon if the application is sent or transmitted to the Commission on or before the date the license is set to expire. You next ask whether the Commission may approve a temporary charitable-bingo authorization or a lottery-retailer provisional license after the original license has expired or is no longer effective. Under the APA, if the licensee timely sent a sufficient renewal application, the expiration is tolled until the Commission finally determines the renewal application. See TEX. GOV’T CODE ANN. 5 2001.054(b) (Vernon 1999). Consequently, the Commission need not grant a temporary or provisional license to a licensee who timely submitted a renewal application. With respect to a licensee who did not submit a timely renewal application, on the other hand, we conclude the Commission may not issue a temporary renewal authorization or a provisional renewal license. Our reasons differ for each act, though. Under the Bingo Enabling Act, the Commission must issue a temporary authorization to conduct bingo games when the Commission fails to finally determine a license application before the thirty-first day after the applicant submitted a sufficient application. See TEX. REV. CIV. STAT. ANN. art. 179d, 5 13(b) (Vernon Supp. 1999). By rule, the Commission has directed that a temporary authorization is available only to a person who is not licensed but who has filed an “original application.” 16 TEX. ADMIN. CODE 5 402.546(a) (1998) (Tex. Lottery Comm’n, Bingo Regulation & Tax). This rule speaks to an application for a new or original license, and not to a renewal. See id. Thus, the Commission may not issue a temporary charitable-bingo license if the applicant is seeking to renew the license. Under the State Lottery Act, on the other hand, the Commission may issue a provisional license to sell lottery tickets, which expires on the date specified on the license. See TEX. GOV’T CODEANN. 5 466.15 l(b) (Vernon 1998) (authorizing executive director of Commission to establish provisional license); 16 TEX. ADMN CODE 5 401.157 (1998) (Tex. Lottery Comm’n, Administration of State Lottery Act) (authorizing director to issue provisional licenses). We find nothing in the Ms. Linda Cloud - Page 4 (X-0064) statutes or the rules that limits the issuance of a provisional license to an original applicant. But because the Commission is precluded from issuing a renewal license to an applicant who did not timely submit a renewal application, we believe the Commission is similarly precluded from issuing a provisional, or “interim,” see BLACK’S LAW DICTIONARY 1102 (5th ed. 1979) (defining “provisional”), renewal license to the same applicant. If, as we have concluded, the Commission lacks express statutory authority to renew lapsed licenses or to issue interim or temporary licenses to applicants for renewal, you ask whether the Commission has implied authority to take those actions. A state agency has only those powers it has been expressly granted by statute or that may be necessarily implied therefrom. See Texas Parks & Wildlife Dep’t v. Callaway, 971 S.W.2d 145, 148 (Tex. App.-Austin 1998, no writ) (citing Texas v. Jackson, 376 S.W.2d 341,344 (Tex. 1964); Texas Dep’t ofHuman Servs. v. Christian Care Ctrs., Inc., 826 S.W.2d 715, 719 (Tex. App.-Austin 1992, writ denied)). We find no implied authority vested in the Commission to renew a license that the Commission is not expressly authorized to renew. Nor, in answer to your sixth question, do we find any authority, express or implied, for the Commission to renew on equitable grounds a license that could not otherwise be renewed. Rather, both acts appear to establish a detailed licensing scheme that the Commission is to strictly enforce. See TEX. GOV’T CODE ANN. 5 466.015(a) (Vernon 1998) (requiring Commission to exercise “strict control and close supervision over all lottery games”); id. 5s 466.151 - 466.160 (licensing provisions); TEX. REV. Crv. STAT. ANN. art. 179d, 95 12, 13 (Vernon Supp. 1999) (providing for licensing and investigation ofapplicants); id. 5 16(a) (requiring Commission to exercise strict control and close supervision over bingo games). Because the Commission cannot approve the renewal of an expired or a lapsed license and cannot issue a temporary authorization-in the case of a license to conduct bingo games-r a provisional license-in the case of a license to sell lottery tickets-the Commission’s only option is to require the former licensee to submit a new original license application. If, on the other hand, the licensee timely submitted the renewal application but the Commission is unable to review the application before the license expires, then, under the APA, the license continues to be valid until the Commission makes a final determination on the renewal application. See TEX. GOV’T CODE ANN. 5 2001.054(b) (Vernon 1999) (tolling provision). Ms. Linda Cloud - Page 5 (JC-0064) SUMMARY The Lottery Commission may renew a license to conduct bingo games or a license to sell lottery tickets only if the licensee mailed or faxed a sufficient application on or before the date the original license was to expire. The Lottery Commission has no authority, express, implied, or in equity, to renew a license if the renewal application was untimely. Attorney General of Texas ANDY TAYLOR First Assistant Attorney General CLARK KENT ERVIN Deputy Attorney General - General Counsel ELIZABETH ROBINSON Chair, Opinion Committee Prepared by Kymberly K. Oltrogge Assistant Attorney General	{ "pile_set_name": "FreeLaw" }
UNITED STATES ARMY COURT OF CRIMINAL APPEALS Before BURTON, HAGLER, and SCHASBERGER Appellate Military Judges UNITED STATES, Appellee v. Private E1 VICTOR D. WILSON United States Army, Appellant ARMY 20160342 Headquarters, Fort Leavenworth Charles L. Pritchard, Jr., Military Judge Colonel Craig E. Merutka, Staff Judge Advocate For Appellant: Captain Zachary A. Gray, JA (argued); Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA; Captain Patrick J. Scudieri, JA (on brief); Lieutenant Colonel Tiffany M. Chapman, JA; Major Todd W. Simpson, JA; Captain Zachary A. Gray, JA (on brief and reply brief in response to specified issues) For Appellee: Captain Jonathan S. Reiner, JA (argued); Lieutenant Colonel Eric K. Stafford, JA; Major Michael A. Korte, JA (on brief); Lieutenant Colonel Eric K. Stafford, JA; Major Michael A. Korte, JA; Captain Jonathan S. Reiner, JA (on brief in response to specified issues). 22 June 2018 ---------------------------------- MEMORANDUM OPINION ---------------------------------- This opinion is issued as an unpublished opinion and, as such, does not serve as precedent. SCHASBERGER, Judge: A military judge sitting as a general court-martial convicted appellant, contrary to his pleas, of one specification of assault consummated by a battery upon a child under the age of sixteen and one specification of committing an indecent act upon a child under the age of sixteen in violation of Articles 128 and 134 Uniform Code of Military Justice, 10 U.S.C. §§ 928, 934 (2006) [UCMJ]. The convening authority approved the adjudged sentence of a dishonorable discharge and confinement for eight years. WILSON—ARMY 20160342 This case is before us for review under Article 66, UCMJ. Appellant assigns four errors through counsel 1 and personally asserts multiple additional errors pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). One of the assigned errors and several of the personally asserted errors 2 involve allegations of ineffective assistance of counsel. In order to ensure we properly understood appellant’s full ineffective assistance of counsel claim, we invited appellant to expand on his original allegations of error. After a review of the record, including supplemental briefs, oral argument, and affidavits from the trial defense counsel, we find the decisions of the trial defense counsel reasonable and affirm the findings and sentence. BACKGROUND In the summer of 2007, YH-J was eight years old and lived with her family on Fort Polk, Louisiana. Her neighbor and sometimes babysitter was appellant’s wife, KW. Appellant, appellant’s wife, and YH-J’s parents, Staff Sergeant (SSG) B and KB, were all friends and frequently spent time together. The families remained friends in the years after both families moved from Fort Polk. YH-J’s stepfather, SSG B, had various ailments, which culminated in several trips to the hospital in the summer of 2007. One such trip happened on 8 June 2007, and another occurred in July 2007. On one occasion that summer, SSG B went by ambulance to the hospital. That night, KB brought YH-J and her four-year-old sister over to appellant’s house. YH-J did not want to stay at appellant’s house and 1 Appellant’s first three assignments of error all involve the government’s expert witness, which we address in our opinion and footnote 4, infra. Appellant’s fourth assignment of error claims the military judge erred by failing to merge the Specification of Charge I and Specification 2 of Charge II as an unreasonable multiplication of charges. On the facts of this case, we do not find an unreasonable multiplication of charges in the government charging appellant with an assault on a child under the age of sixteen and then committing a lewd act on a the same child. “What is substantially one transaction should not be made the basis for an unreasonable multiplication of charges against one person.” Rule for Courts-Martial 307(c)(4). We considered the five factors set out in the United States v. Quiroz, and conclude there was not an unreasonable multiplication of charges. 55 M.J. 334, 338- 39 (C.A.A.F. 2001). 2 We reviewed the remaining Grostefon matters and find they are without merit. 2 WILSON—ARMY 20160342 begged her mother not to leave her. Her mother did not know why YH-J was making a fuss and left her at appellant’s house. 3 YH-J testified she and her sister slept on a blow-up mattress in appellant’s dining room. That night appellant grabbed YH-J by the arm and led her to the living room. While in the living room he sat her down on the couch, stuck his hand down her pants and digitally penetrated her vagina. YH-J did not tell anyone about the assault. In 2012, YH-J’s family went to visit appellant’s family while on a vacation in Orlando, Florida. When they arrived at appellant’s house, YH-J did not want to go inside. With no context for YH-J’s behavior, KB told her to stop being rude and made her go into the house. The following year, YH-J again refused to get out of the car at appellant’s house; this time because YH-J’s grandparents were in the car, YH-J was allowed to remain in the car. In 2014, when YH-J was fifteen years old, she told her mother about appellant assaulting her. YH-J’s account resonated with KB as it put into perspective YH-J’s previous behavior that KB witnessed. KB remembered the one time she had dropped YH-J and her sister to stay at appellant’s but did not remember the exact date. KB looked at SSG B’s medical records and determined that the date was 8 June 2007. KB reported YH-J’s allegations to the police. At trial, everyone agreed that YH-J and her sister spent the night at appellant’s house when SSG B went to the hospital in an ambulance. YH-J had no recollection of the exact date, but had some idea of the time of year and her own age at the time. There was some inconsistency in the testimony as to whether the ambulance trip occurred when SSG B had surgery or a bile obstruction. The obstruction occurred on 8 June 2007 and the stomach surgery occurred on 23 July 2007. Neither government nor defense introduced SSG B’s medical records at trial. The defense theory at trial was that appellant could not have committed the assault during the time alleged because he was generally never around due to his 3 Specification 1 of Charge II alleged appellant, on a previous occasion, committed an indecent act on YH-J by placing his penis on her buttocks. YH-J testified that she went to appellant’s house to use the swimming pool. Appellant entered the room where she was changing into her bathing suit, had her face the corner and rubbed his penis on her buttocks. At trial YH-J was vague when this occurred and, while she testified appellant committed this act, she felt but did not see appellant’s penis. The defense theory was the pool had been destroyed before the alleged time period and there was no evidence appellant touched YH-J with his penis. The military judge found appellant not guilty of this specification. 3 WILSON—ARMY 20160342 work and field exercises, and specifically not around on 8 June 2007. Defense counsel attempted to introduce evidence to show that appellant was rarely home, and when he was home there were a lot of other people around. The second part of the defense strategy focused on impeaching YH-J, pointing out inconsistencies in previous statements and the holes in her memories. Defense also got the government expert, Dr. Kennedy, to agree that just because YH-J suffered trauma it did not mean the trauma was caused by appellant. The key witness for the defense was the appellant’s wife, KW. KW testified that appellant was at basic noncommissioned officer’s course (BNCOC) and not at the house on 8 June 2007. She also testified that YH-J and her sister did not sleep downstairs at appellant’s house, but instead slept upstairs in a bedroom, and that there was no way an assault could have happened as she is a very light sleeper and would have heard any noise from downstairs. KW was impeached on cross- examination on several grounds, including her telephone discussions with appellant, at a time he was incarcerated for a different offense, about the contents of KW’s testimony at trial. In rebuttal, the government introduced evidence that BNCOC was not a residential course during that general time frame at Fort Polk. LAW AND DISCUSSION To establish an ineffective assistance of counsel claim, which we review de novo, an appellant must show: “his counsel’s performance fell below an objective standard of reasonableness; and [] the counsel’s deficient performance gives rise to a ‘reasonable probability’ that the result of the proceeding would have been different without counsel’s unprofessional errors.” United States v. Akbar, 74 M.J. 364, 371 (C.A.A.F. 2015) (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)). When we evaluate the first Strickland prong, we “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Appellant has the burden to show that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 687). As to our evaluation of the prejudice prong of the Strickland test, we must determine “whether, absent counsel’s errors, there is a reasonable probability the factfinder would have had a reasonable doubt as to appellant’s guilt.” Strickland, 466 U.S. at 695. A reasonable probability “is a probability sufficient to undermine the confidence in the outcome.” Id. at 694. Merely demonstrating error is not sufficient; appellant must show that the defense counsel’s errors were so “serious as to deprive the defendant of a fair trial whose result is reliable.” Id. at 687. 4 WILSON—ARMY 20160342 On appellate review, there is a strong presumption that counsel was competent. Thus, appellant “must rebut the presumption by pointing out specific errors made by his defense counsel which were unreasonable under prevailing professional norms.” United States v. Weathersby, 48 M.J. 668, 670 (Army Ct. Crim. App. 1998)(citing United States v. Cronic, 466 U.S. 648 (1984)); see also United States v. Grigoruk, 56 M.J. 304, 306-07 (C.A.A.F. 2002)(citing Strickland, 466 U.S. at 689). Appellant claims his counsel were ineffective in three ways: 1) failing to object to Dr. Kennedy’s inadmissible testimony; 2) failing to introduce SSG B’s medical records; and 3) failing to present publically available information about BNCOC. We disagree and address each allegation in turn. A. Dr. Kennedy’s Testimony 4 Appellant’s assertion that defense counsel were deficient by failing to object to Dr. Kennedy’s testimony is unpersuasive. First, Dr. Kennedy’s testimony was within the scope of her expertise. Second, given a judge-alone trial, defense counsel’s tactical decision not to object to Dr. Kennedy’s testimony was reasonable. The government qualified Dr. Kennedy as an expert in the fields of forensic child psychology and neuropsychology. During the course of her testimony she discussed general concepts based on her expertise and specific behaviors she 4 In his assigned errors, appellant argued the military judge erred by allowing the government’s expert witness, Dr. Kennedy, to act as a human lie detector and that the military judge abandoned his gatekeeper role by allowing unscientific testimony. We disagree. Doctor Kennedy made clear that she was not testifying as to whether the victim was telling the truth. Insofar as her testimony could be interpreted as a comment on the victim’s believability, the military judge stated that “the court notes that it does not consider Dr. Kennedy’s testimony about [YH-J’s] memories to mean that the memories reflect actual events and are therefore true. Dr. Kennedy cannot see into [YH-J’s] past.” In this judge-alone case, we find that the military judge’s statement to be akin to the curative instructions we expect from a military judge when there is a panel. The defense cites United States v. Jackson for the proposition that this curative statement is not enough. 74 M.J. 710, 714 (Army Ct. Crim. App. 2015). We find the rationale of our superior court in United States v. Robbins as more on point and persuasive, especially given the military judge’s disclaimer. 52 M.J. 455, 457 (“A military judge is presumed to know the law and apply it correctly, is presumed capable of filtering out inadmissible evidence, and is presumed not to have relied on such evidence on the question of guilt or innocence.”). 5 WILSON—ARMY 20160342 witnessed from six meetings with YH-J and observing YH-J in court. She discussed the formation of memories and how the brain encodes them. Finally, she testified as to various reasons why children might delay reporting an event. Though Dr. Kennedy used the phrase “autobiographical memory” and pointed to YH-J using phrases such as “I felt”, “I heard, I saw, I felt inside,” Dr. Kennedy did not tie those phrases to specific events. Nor did Dr. Kennedy testify that she believed YH-J was telling the truth, or was even correct in her memories, or that the memories were accurate. As an expert, who provided a foundation for her expertise and observations, her testimony was within the allowable evidence permitted under Military Rule of Evidence [Mil. R. Evid.] 702. 5 In his affidavit supplied to this court, trial defense counsel explains at length why he did not object to Dr. Kennedy’s testimony. First, he knew the substance of her testimony as the defense had an expert consultant who was familiar with Dr. Kennedy’s qualifications and the areas to which she would testify. Second, the defense’s consultant agreed with Dr. Kennedy’s testimony and that it was “soundly based” in her fields of expertise. In short, defense counsel did not object because there was no tactical reason for so doing. We find counsel’s stated reasons for not objecting to Dr. Kennedy’s testimony reasonable. While the defense counsel’s explanation of his decision not to object during Dr. Kennedy’s testimony was reasonable, it is harder to understand the defense counsel’s failure to object during closing argument when the government mischaracterized what Dr. Kennedy said. Specifically, government counsel argued “. . . and then Dr. Kennedy that talked extensively about the formation of memories and how that makes [YH-J] believable. That makes what happened to her believable.” However, this failure to object, even if deficient, was not prejudicial as the military judge sua sponte stated that he would not consider Dr. Kennedy’s testimony about YH-J’s memories to mean that the memories were true. B. Failure to Introduce SSG B’s Medical Records At first blush it might appear that defense counsel’s failure to introduce SSG B’s medical records was deficient. A further review illustrates that it was a tactical decision that closed one avenue of attack, but enabled another. The defense could have introduced the medical records and argued that, if the assault happened, it occurred on 23 July 2007, or a month outside the charging window. The issue then 5 In his affidavit, the trial defense counsel stated that after Dr. Kennedy testified he discussed the testimony with his expert consultant. The defense expert informed defense counsel that Dr. Kennedy’s testimony was soundly based in science. The defense expert provided the defense with questions to cross-examine Dr. Kennedy as to the limits of her testimony. 6 WILSON—ARMY 20160342 would have been whether a month difference constituted a fatal variance to the charged specifications. If the military judge allowed four weeks to fall within the “between on or about” language the defense would lose its alibi defense. 6 We therefore ask ourselves, was it reasonable for the defense to conclude the military judge would simply expand the charged time frame to encompass an additional four weeks? We answer in the affirmative. The government charged appellant with grabbing the arm of YH-J and committing an indecent act on YH-J, between on or about 13 May 2007 and 23 June 2007. Though both events happened on a single night, the government chose to charge a window of time, in fact a non-exact window. As the military justice system is a notice pleading jurisdiction this charging decision is permissible. See generally United States v. Fosler, 70 M.J. 225,229 (C.A.A.F. 2011). The words “on or about” in pleadings mean that “the government is not required to prove the exact date, if a date reasonably near is established.” United States v. Hunt, 37 M.J. 344, 347 (C.M.A 1993) (internal citations omitted). What is “reasonably near” does not have a bright line rule. In Hunt “reasonably near” was several weeks. A reasonable defense counsel could conclude that the military judge would use his authority under R.C.M. 918(a)(1) to modify the charges and specifications under the authority to make "exceptions and substitutions” to conform the findings to the evidence. On the one hand, if the military judge found a fatal variance, appellant could not be convicted on those charges. 7 On the other hand, if the military judge did not find the variance fatal the defense would lose its argument that appellant could not have committed the crime on 8 June 2007 because he was at BNCOC. Under the circumstances, the defense made a reasonable choice. C. The Failure to Introduce Evidence the Appellant’s Attendance at BNCOC Made an Offense Date of 8 June 2007 Impossible At trial, the defense theory of the case was that YH-J’s memories were wrong, and appellant did not have the opportunity to commit the offense. Defense introduced evidence, through several witnesses, that appellant worked all the time, was in the field frequently, and was generally not at home. Defense also introduced the fact that on June 8, 2007, appellant was at BNCOC. Appellant’s wife testified 6 Defense counsel affidavits lend support to the conclusion that this was a tactical decision, not an oversight. 7 This does not mean that the prosecution could not prefer a new charge. 7 WILSON—ARMY 20160342 that when appellant was at BNCOC he stayed in the barracks. Other than appellant’s wife, the defense did not introduce any evidence which would show that in 2007, at Fort Polk, attendance at BNCOC required a soldier to be away from home for the entire time. 8 Given the defense theory of the case, it would appear to be ineffective to fail to introduce evidence that appellant was away at the time the offense was committed. We therefore invited defense to supplement their appellate brief and address this issue. In response, they have appended Appellate Defense Exhibits B, C, and D, to establish that: appellant attended BNCOC from 29 May 2007 to 15 June 2007; per Army regulations, BNCOC was intended to be a “live-in environment, where possible;” and the Army did not move to a web based core model until 2009. After reviewing the submission, we find Defense Exhibits B, C, and D do not establish that appellant was physically away from his quarters during the relevant time period. Though introduction of these exhibits might have made parts of appellant’s wife’s testimony more credible, they are not dispositive. With no other evidence that shows that appellant was in fact away from his home during the time period, we cannot conclude that the defense counsel was deficient and that the result of the proceeding would have been different. CONCLUSION On consideration of the entire record, the findings of guilty and the sentence are AFFIRMED. Senior Judge BURTON and Judge HAGLER concur. FOR THE COURT: MALCOLM H. SQUIRES, JR. Clerk of Court 8 In rebuttal, the government introduced evidence that BNCOC was not a residential course at Fort Polk during that time frame. While the government’s witness was credible, his knowledge was not first-hand. Due to the almost ten years between the BNCOC class and the testimony, we do not find his testimony case-dispositive, although it does tend to undercut the weight of the Appellate Exhibits submitted by appellant to bolster this particular ineffectiveness claim. 8	{ "pile_set_name": "FreeLaw" }
133 N.J. Super. 189 (1975) 336 A.2d 16 ESSEX COUNTY WELFARE BOARD, PLAINTIFF-RESPONDENT, v. CURTIS PERKINS, DEFENDANT-APPELLANT. Superior Court of New Jersey, Appellate Division. Argued October 30, 1974. Decided March 14, 1975. 192 Before Judges HALPERN, CRAHAY and ACKERMAN. Ms. Rita L. Bender argued the cause for appellant. Mr. Ralph J. Salerno argued the cause for respondent (Mr. William J. Tamburri. of counsel). The opinion of the court was delivered by ACKERMAN, J.A.D. Appellant asserts two points on this appeal. The first is that the Juvenile and Domestic Relations Court had no power or authority, in proceedings pursuant to R. 1:10-5 to enforce litigant's rights under a support order granted under the Poor Law (N.J.S.A. 44:1-143 et seq.) to place him on probation. The second point is that he was denied his rights of due process in the proceedings to enforce litigant's rights because he was not advised of his 193 right to counsel and he was also not advised of his privilege against self-incrimination under the Fifth Amendment. A full outline of all the proceedings below is not necessary. In October 1968 appellant was ordered by the Juvenile and Domestic Relations Court, on complaint of the Essex County Welfare Board, to pay $40 a week through the Essex County Probation Office for the support of his wife and three children. He failed to comply and a proceeding to enforce litigant's rights was instituted. After a lapse of 1 1/2 years he was finally arrested and a hearing was held on October 8, 1971, at which time an order was entered reciting that he had been tried for nonsupport and suspending sentence on the condition that he be placed on probation for three years and, in addition to the conditions of probation set forth in N.J.S.A. 2A:168-2, that he pay $25 a week support through the probation office. A second proceeding to enforce litigant's rights was subsequently commenced because of appellant's defaults. On October 31, 1972, after he had been arrested and another hearing held, an order was entered vacating arrears, increasing weekly support to $35 and "continuing probation." He continued to fail to fully comply and in October 1973 he was again arrested and charged with violation of probation. He was provided with counsel and on November 28, 1973 a hearing was held before the late Judge Kenarik. At that hearing appellant asserted that the order of October 8, 1971, placing him on probation was invalid on the ground that probation cannot be imposed in a proceeding to enforce litigant's rights which is essentially civil in nature. In a comprehensive oral opinion Judge Kenarik ruled that the 1971 order imposing probation was valid and proper. He entered a new order dated November 28, 1973, finding that appellant was guilty of violation of probation because of (1) failure to report to the probation officer as required by the conditions of probation, and (2) failure to make support payments. He concluded that appellant, who acknowledged that he had worked steadily for 17 years for the same employer 194 and had earned between $120 and $130 net a week during the period covered by the support orders, had the ability to pay and had no excuse for noncompliance. Although the judge recognized that appellant could be placed in jail until he complied with prior orders or promised to comply, he suspended sentence and continued probation. He further ordered that appellant should pay $35 a week support plus $10 arrears. This appeal followed. It is apparent from the above that we have before us the typical case, so often faced by the juvenile and Domestic Relations Court, of a man who willfully fails to support his family over a period of years, forcing them to require ever-increasing assistance from public funds, and who makes sporadic contributions to support only because of court compulsion. Appellant's main ground for appeal, as indicated above, is that the court lacked power to place him on probation. Although the appeal is from the order of November 28, 1973, it is also a challenge to the validity of the order of October 8, 1971. One may argue, as the respondent does here, that, having failed to take a timely appeal from the earlier order, appellant is foreclosed from questioning it. See Lathrop v. Lathrop, 57 N.J. Super. 532, 537 (App. Div. 1959); Quagliato v. Bodner, 115 N.J. Super. 133 (App. Div. 1971). However, since a timely appeal has been taken from the later order, which was necessarily predicated on the earlier order, we think that essential fairness mandates consideration of the manner in which the final result was reached and we pass to the merits. The gravamen of appellant's argument is that probation is available only in criminal matters where punitive sanctions are permitted. He contends that probation subjects one to a curtailment of liberty and that one on probation is made to "feel like a criminal." It is claimed that probation is an alternative to a jail sentence, which is normally suspended but may be revived if the conditions of probation are violated, and it is argued that since a fixed jail sentence can never be 195 imposed in a proceeding to enforce litigant's rights and no imprisonment at all may be ordered if a defendant lacks ability to pay, probation is not appropriate because the threat of imprisonment for a fixed term on violation is lacking. He claims that the decision in New Jersey Department of Health v. Roselle, 34 N.J. 331 (1961), which emphasized the differences between contempt proceedings and those to enforce litigant's rights, supports his arguments. We find that his contentions, rejected below, lack merit. Although we affirm essentially for the reasons stated by Judge Kenarik in his opinion below, we think it appropriate, since the basic powers and everyday practices of the Juvenile and Domestic Relations Court in imposing probation in support cases are involved, to make some additional comments. There is no doubt that there is a vast difference between a contempt proceeding under R. 1:10-2 to 4 and a proceeding to enforce litigant's rights under R. 1:10-5. The latter is essentially a civil proceeding to coerce the defendant into compliance with the court's order for the benefit of the private litigant. In such proceeding the judge, before ordering any sanction, must determine that defendant has the ability to comply with the order which he has violated, and incarceration may be ordered only if made contingent upon defendant's continuing failure to comply with the order. Release must be available immediately upon defendant's compliance. Defendant may not be sentenced to a specific jail term. A contempt proceeding, on the other hand, is essentially criminal and punitive in nature. Its purpose is to punish defendant in the public interest for failure to comply with the order and it may be instituted only by the court. Defendant is entitled to counsel and other safeguards appropriate to criminal proceedings. A fixed jail sentence may be imposed. See New Jersey Department of Health v. Roselle, supra; In re Carton, 48 N.J. 9 (1966); In re Reeves, 60 N.J. 504 (1972); Pierce v. Pierce, 122 N.J. Super. 359 (App. Div. 1973). 196 Because of the criminal aspects of contempt and the fact that a fixed jail term may be meted out, the right to place a defendant on probation and to impose the conditions of probation specified in N.J.S.A. 2A:168-2 has never been questioned in contempt proceedings. In re Ruth M. Buehrer et al, 50 N.J. 501 (1967). We deem it clear that probation may also be used in civil proceedings to enforce litigant's rights under R. 1:10-5. In the ordinary case, where the court order which is the subject of enforcement proceedings pursuant to R. 1:10-5 involves only the performance of a single act, confinement until there is performance is the best solution and the imposition of probation is not a useful alternative. The same does not apply where the order of the court requires continuing performance this is particularly true where the orders involved are support orders. Where the order is a continuing one and enforcement is contingent upon the ability to comply, which normally requires that defendant continue to work and earn money, incarceration will often serve only to remove his ability to perform. This does not solve the problems which his family has and serves only to increase the burden on the public since it frequently happens, as here, that there are related problems of administration of public assistance and welfare payment programs. See Buchanan v. Essex Cty. Welfare Bd., 117 N.J. Super. 541 (App. Div. 1971). Probation, despite the problems of enforcement if its conditions are violated, is a viable and practical alternative to coerce the defendant's continued compliance. It is preferable to imprisonment if it works. Although there may be erroneous impressions to the contrary because the term "probation" is associated by most persons with criminal matters, the probation office in each county does not serve only in the criminal field. It is an arm of the state judicial system. It performs investigations and collects monies from the courts in both civil and criminal matters. For many years, in accordance with court rules so providing, support and alimony payments in almost all cases have 197 been paid through the probation office. See former R.R. 4:98-9(a), now R. 4:79-9(a). Probation as a judicial tool has not been limited to criminal matters. Wholly apart from practices which may have existed at common law and antedated specific statutory authority, the statutes relating to probation and the duties and functions of the probation office have provided since at least 1929 for probation or "supervision" in quasi-criminal and matrimonial and domestic relations cases as well as in criminal cases.[1] See N.J.S.A. 2A:168-1 through 13, particularly §§ 1, 4 and 11, having their source in L. 1929, c. 156. See also, Adamo v. McCorkle, 13 N.J. 561 (1953), cert. den. 347 U.S. 928, 74 S.Ct. 531, 98 L.Ed. 1080 (1954); Godfrey v. McGann, 37 N.J. 28, 34-35 (1962). N.J.S.A. 2A:168-1 provides in part as follows: When it shall appear that the best interests of the public as well as of the defendant will be subserved thereby, the courts of this state having jurisdiction over criminal or quasi-criminal actions shall have power, after conviction * * * for any crime or offense, * * , to suspend the imposition or execution of sentence, and also to place the defendant on probation under the supervision of the chief probation officer of the county, for a period of not less than 1 year nor more than 5 years. The courts having jurisdiction over juvenile or domestic relations cases, when it shall appear that the best interests of the public as well as of the person adjudged guilty of any offense, * , before such court will be subserved thereby, shall have power to place the defendant on probation for a period of not less than 1 year nor more than 5 years. * * N.J.S.A. 2A:168-11 provides in part that 198 * * The duties of probation officers shall be, among others: * * * * * * * * b. To receive under their supervision, on request of the court having jurisdiction, any person ordered to pay any sum for alimony or support in an order or judgment entered in a matrimonial action; c. To receive under supervision any person placed on probation by any court within the county * * ; * * * * * * * Lathrop v. Lathrop, 57 N.J. Super. 532 (App. Div. 1959), is a direct holding that probation may be imposed in a proceeding to enforce litigant's rights. There a judgment had issued out of the Chancery Division in a divorce case, granting custody of children to the wife and rights of visitation to the husband. The wife refused to allow visitation. The trial judge found the wife guilty of "civil contempt," imposed an indefinite sentence, suspended it, and placed her on probation for five years subject to seven conditions of probation, all relevant to visitation rights. This court affirmed that order. We held, first, that the order was authorized by the terms of the first sentence of N.J.S.A. 2A:168-1, authorizing probation in "quasi-criminal" actions; we concluded that the language of that portion of the statute, properly construed, confers upon courts the power to use probation as an adjunctive sanction in "civil contempt" cases. Secondly, we held that the adoption of N.J.S.A. 2A:168-1 through 13 and its predecessor statutes did not have the purpose or intention of preempting the entire field of judicial use of probation as it was known at common law, and that the inherent jurisdiction of the Chancery Division included any reasonable procedures designed to enforce judgments or orders for litigants, including the placing of a defendant on probation. The correctness of the decision in Lathrop has never been questioned in subsequent cases. Nor has any attempt been made in the intervening years to amend the statute and thus the construction placed upon the first sentence thereof in Lathrop may be deemed to have been acquiesced in by the Legislature. The Roselle case, which it antedated by two years, 199 is not to the contrary. There the Supreme Court took the occasion to clarify and reaffirm the differences between public and private enforcement proceedings and to point out that the common use up to that time, in the court rules and elsewhere, of the term "civil contempt" to designate proceedings on behalf of a private litigant to enforce compliance with a court order was inaccurate and a misnomer. However, as is apparent from a reading of Chief Justice Weintraub's opinion in that case and the authorities therein cited, the basic substantive differences between contempt and private enforcement proceedings enunciated therein, summarized above, had long been established in our law. The Roselle case did not deal with the matter of probation or forbid its use in proceedings to enforce litigant's rights. Although in the fashion of the times references were made in Lathrop to "civil contempt" and "criminal contempt", the fundamental distinctions set forth in Roselle, which were subsequently carried into the court rules by amendment in 1965 (R.R. 3:8 and 4:87) and are now found in R. 1:10, were observed. See also Lathrop v. Lathrop, 50 N.J. Super. 525 (App. Div. 1958). The decision in Lathrop that there is inherent jurisdiction to use the probation procedure where appropriate in civil proceedings to enforce litigant's rights is supported by the recent decision of the Supreme Court in State v. Carter, 64 N.J. 382 (1974). There it was held that courts have inherent power apart from statute to fashion "probation" to provide conditional releases for persons committed to state hospitals as criminally insane. Justice Pashman, writing for the court, said: The fact that the Legislature has acted to provide a remedy does not mean that the judicial branch is limited to the boundary lines of strict legislative expression in fashioning or denying remedies in a particular case. * * * * * Probation has a deep-rooted common law basis. The enactment of a statute relating to a particular aspect of probation does not preempt the entire field. Lathrop v. Lathrop, 57 N.J. Super. 532, 538-539 (App. Div. 1959). It follows that a statute neglecting to mention probation would certainly not preempt the court's ability to 200 provide for it. * * The courts have power to fashion psychiatric out-patient probation in the form of conditional releases. [at 392-393] See also State v. Johnson, 42 N.J. 146, 174-176 (1964); N.J.S.A. 2A:10-1, last paragraph. This inherent jurisdiction to use probation where it may reasonably be employed as an alternative to incarceration to enforce orders in favor of litigants is vested in the Juvenile and Domestic Relations Court. See N.J.S.A. 2A:4-18, 2A:4-19. Because of the nature of the matter before it and the fact that it came up from the Chancery Division, the court in Lathrop held in the circumstances that "it is not necessary for us to determine whether the exercise of the probation procedure in this case may also be supported on the basis of the reference in the statute [i.e., N.J.S.A. 2A:168-1, second sentence] to courts having jurisdiction over `juvenile or domestic relations cases.'" 57 N.J. Super. at 538. We now hold that the second sentence of N.J.S.A. 2A:168-1 specifically vests authority in the Juvenile and Domestic Relations Court to impose probation in civil proceedings to enforce litigant's rights under support orders. Indeed, the provisions of N.J.S.A. 2A:168-11 (b) and (e) grant authority to that court to place a defendant, who is ordered to pay support, on probation prior to a failure to comply with the order. For many years the court rules, consistent with the statutes relating to probation and the inherent power of the courts, including the Juvenile and Domestic Relations Court, to provide reasonable remedies to enforce their orders, have contained broad provisions providing for probation in terms which permit its use in civil proceedings to enforce litigant's rights under support orders. See R. 5:6-4, having its source in R.R. 6:6-5, second sentence, and R.R. 6:6-8, which had its source in Rule 6:5-8 of the 1948 Rules; R. 5:6-1, which had its source in R.R. 6:6-4, preceded by Rule 6:5-3(d) of the 1948 Rules. Indeed, for 16 years, from 1953 until 1969, 201 the rules contained a provision, similar to N.J.S.A. 2A:168-11(b), authorizing the court to place a defendant, ordered to pay support, on probation prior to any default under the order. The first sentence of R.R. 6:6-5, adopted in 1953, provided: When the court has entered an order for support it may order the defendant to be placed under the supervision of the chief probation officer of the county to insure the carrying out of the terms of the order for support. The proposed revision of the rules in 1966 included the carryover of the above provision, with minor language changes, as proposed R. 5:6-3(c), but it was omitted in the 1969 revision. See R. 5:6-3. The elimination of the provision was dictated by policy reasons rather than by any lack of power or authority, and it has not in any way affected the power of the Juvenile and Domestic Relations Court to place a defendant on probation after default in civil proceedings to enforce a support order pursuant to R. 1:10-5. Nor is the decision in Plath v. Plath, 99 N.J. Super. 394 (App. Div. 1968), a holding that such power is lacking. There the Juvenile and Domestic Relations Court, in issuing a support order, placed defendant, prior to default, on probation for one year, and the condition of probation was that defendant's salary should be turned over to the Probation Department which should thereupon budget said income and fix the amount of support for defendant's family and for his own needs. It was held that this order was illegal because it delegated to an agency other than the court itself the function of adjudicating the amount of support. The court said: It was also error in this essentially civil proceeding to subject defendant, prior to adjudication of default of a prior order, see Lathrop v. Lathrop, 57 N.J. Super. 532 (App. Div. 1959), to the criminal and quasi-criminal probation procedures of N.J.S. 2A:168-2. The court may not have so intended, but the order was so interpreted by the probation department in imposing a number of probation conditions appropriate only in a criminal or quasi-criminal context. Probationary supervision of the support order, in the background 202 of this particular case, should be confined in terms to the authority granted by R.R. 6:6-5. See N.J.S. 2A:168-11(b); Godfrey v. McGann, 37 N.J. 28, 34 (1962). [at 396, emphasis supplied] The effect of Plath is rather clearly to affirm the validity of R.R. 6:6-5 permitting the placement of a defendant on probation at the time of entry of a support order prior to default thereunder so long as appropriate conditions of probation are fixed.[2] Moreover, it clearly approves the holding in Lathrop that probation may be imposed after default in civil proceedings to enforce litigant's rights under a support order and, by inference at least, indicates that the conditions of probation set forth in N.J.S.A. 2A:168-2 may be imposed in such cases. The universal and long standing practice throughout the State of imposing probation in civil enforcement of litigant's rights in support orders is demonstrated by the contents of three memoranda issued over the years by the Administrative Office of the Courts for the benefit of judges and probation officers entitled "Suggested Procedures for Enforcement of Alimony and Support Payments". The first, promulgated on July 29, 1966, outlined new procedures consonant with the rule changes adopted in 1965 to conform to the holding in the Roselle case. The suggested procedures included placing a defendant on probation in civil enforcement proceedings and enclosed sample forms, including a form of order where probation is used, ordering that "during the time necessary to bring support payments up to 203 date, defendant shall be placed on probation under the supervision of ____ County Probation Office." The second memorandum was dated September 15, 1967. In discussing procedures under the relief to litigants rule, it stated (at 2): Experience with the rule demonstrates in any event that most failures to observe the court's support orders may be cured without recourse to imprisonment. Yet under the rule, incarceration, limited to the period during which it takes the defendant to demonstrate a willingness to comply with the order, remains a possibility. Also possible are a variety of special probationary terms and conditions which need be limited only by the judge's ability to devise creative solutions, his sense of fitness, and understanding of human nature. Sample forms of orders were included together with a set of standard conditions of probation. The suggested form of order for use in civil enforcement proceedings was the same as that included with the previous memorandum except that there was added to the provision for probation that the same should be "upon the standard conditions of probation applicable to support matters." The suggested standard conditions of probation were as follows: STANDARD PROBATION CONDITIONS GOVERNING DEFENDANTS PLACED ON PROBATION BY THE COURT IN ORDER TO ENFORCE SUPPORT OR ALIMONY AWARDS: 1. You will pay through the Probation Department all monies ordered for support or alimony by the court. 2. You will report to the Probation Department any time you do not make payments as ordered by the court and explain to the Probation Officer the reason for your default. 3. You are to keep the Probation Officer informed of your home and employment address and promptly notify him whenever you change your place of residence or employment. 4. You will comply with any additional special conditions imposed by the court. The third memorandum was dated October 2, 1972. It was issued, in part, as the result of the decision of the Supreme Court in In re Reeves, supra, to remind judges that the courts must adhere to due process requirements and comply with R. 204 1:10, differentiating between contempts and enforcement of litigant's rights proceedings. With respect to the latter, as in the case of the prior memoranda, a recommended alternative, after making careful inquiry into defendant's ability to pay, is to place defendant on probation, using either the standard conditions governing support orders or any special terms developed by the court for the particular situation. The same standard conditions of probation and sample forms of orders previously circulated were included with the memorandum. Considering the above authorities and the long practice of the use of probation in the civil enforcement of support orders, we deem it clear that appellant's contentions lack merit. The use of probation is supported by express statutory sanction as well as by the inherent power of the court. No particular point is made by him that the order of October 8, 1971 was improper because the conditions of probation were those enumerated in N.J.S.A. 2A:168-2. As we have indicated, the statutory authority is broad enough to permit imposition of such conditions where a defaulting defendant is placed on probation in civil enforcement proceedings and appellant's probation was not rendered illegal because such conditions were imposed. It is obviously preferable, however, that the more suitable standard conditions relating to probation in support matters as suggested by the Administrative Office should be used in the normal case. Cf. Plath v. Plath, supra. Appellant's second ground of appeal does not entitle him to relief. He was provided with counsel at the proceedings in 1973 from which this appeal directly stems and was afforded due notice of the proceedings. There is no proof before us that he did not have adequate notice of the R. 1:10-5 proceedings against him in 1971 and 1972, in which probation was first imposed and continued. He apparently did not have counsel provided to him at those hearings, and did not receive Miranda warnings. However, in view of the nature of those proceedings and the limitations on permissible sentences, the fact that he did not appeal directly therefrom, *205 and the fact that he was not incarcerated as a result thereof, he has no basis for complaint. See David v. Strelecki, 51 N.J. 563 (1968) cert. den. 393 U.S. 933, 89 S.Ct. 291, 21 L.Ed.2d 269 (1969); State v. Macuk, 57 N.J. 1 (1970); State v. McGrew, 127 N.J. Super. 327 (App. Div. 1974); see Crist v. N.J. Div. Youth and Family Services, 128 N.J. Super. 402, 417 (Law Div. 1974). Affirmed. NOTES [1] The summary of the Judicial Conference Committee Report on "Custody and Support" for 1950, contained in 73 N.J.L.J. 290 (1950), includes the following comment, "The report includes a suggestion that since the name `probation office' is often associated in the public mind with law enforcement and the criminal courts, a `friendlier' designation for the office be established because of the increasingly frequent use of their offices in domestic relations." [2] In the 1969 edition of the Rules of Court, with comments and annotations by Sylvia B. Pressler, the following comment to R. 5:6-3 appears at 697: "The first sentence of R.R. 6:6-5, included in the tentative draft as R. 5:6-3(c), authorized the court to place a defendant who is subject to a support order under the supervision of the Probation Department, even if there has been no violation of the order. This provision is eliminated. Cf. Plath v. Plath, 99 N.J. Super. 394 (App. Div. 1968)."	{ "pile_set_name": "FreeLaw" }
581 N.W.2d 607 (1998) DICO, INC., Appellant, v. EMPLOYERS INSURANCE OF WAUSAU, Appellee. No. 96-1824. Supreme Court of Iowa. July 1, 1998. Rehearing Denied August 11, 1998. 608 Mark McCormick of Belin Lamson McCormick Zumbach Flynn, A Professional Corporation, Des Moines, and Jon R. Muth of Miller, Johnson, Snell & Cummiskey, P.L.C., Grand Rapids, Michigan, for appellant. Randall G. Horstmann of the Nyemaster Law Firm, Des Moines, and Richard M. Hagstrom and Keith A. Dotseth of Zelle & Larson, L.L.P., Minneapolis, Minnesota, for appellee. Considered by HARRIS, P.J., and CARTER, NEUMAN, SNELL, and ANDREASEN, JJ. NEUMAN, Justice. Dico, Inc., an industrial manufacturer in Des Moines, is saddled with cleanup costs imposed by the Environmental Protection Agency (EPA) under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA).[1] To compel indemnity coverage and the duty to defend under policies with its various insurers, Dico brought suit for breach of contract and declaratory relief. This appeal concerns claims against Employers Insurance of Wausau (Wausau).[2] Dico alleged that under comprehensive general liability (CGL) policies issued by Wausau, coverage is owed on property damage for which Dico is responsible due to the CERCLA action. Wausau urged in a motion for summary judgment that Dico's late notice of the indemnity claim precluded, as a matter of law, Wausau's obligation under the policies. The district court granted summary judgment for Wausau. Because we do not believe the reasonableness of Dico's notice can be determined under this record as a matter of law, we reverse and remand for further proceedings. I. Background. Dico's plant is located in Des Moines across the Raccoon River from the Des Moines Water Works. As early as 1974, trichloroethylene (TCE)[3] was detected in the finished water at the municipal water treatment plant. In 1976, the EPA confirmed the contamination during the National Organic 609 Monitoring Survey and thereafter initiated ongoing investigations, surveys, and testing in the area. In 1978, the EPA confirmed that a well inside the Dico plant was contaminated with significant levels of TCE. Dico was identified as a possible contributor to the TCE-polluted water because it used TCE as a solvent to degrease metal wheels produced at its plant. The wheels were allowed to drip dry on a concrete pad near a production well. Dico also spread waste sludge containing TCE around the perimeter of its facility as a method of dust control. The company voluntarily ceased these practices by January, 1979, after state and federal officials alerted it to the environmental implications. A. Coverage and notice clauses. In August 1979some months subsequent to Dico becoming implicated in the environmental investigationWausau began providing CGL coverage for the company. Policies were renewed annually through August 1985.[4] The relevant coverage clause in Wausau's policy stated: The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of [property damage] ... to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company's liability has been exhausted by payment of judgments or settlements. The policy included the following notice requirements as conditions precedent to coverage: (a) In the event of an occurrence, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the company or any of its authorized agents as soon as practicable. (b) If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative. B. EPA involvement. During this coverage period, from 1979 to 1986, the EPA evaluated the contamination area, known as the "Des Moines TCE Site." The task was complicated by Des Moines' underground "gallery" drainage system, which moves water downward from Ingersoll Avenue, under Dico's property, and on to the river and water works. Several other industrial businesses and a landfill were, along with Dico, targeted in the EPA investigation. Due to the level of TCE present and the proximity of the contamination to the city's drinking water supply, the Dico site was added in January 1981 to the list of potential or confirmed hazardous waste sites in the region. The EPA informed Dico that it would be "notified as to compliance status or of any violations of the environmental laws at issue." The Dico property was relisted in May 1981 when the EPA determined that the source of the TCE could have been from the sludge deposited for dust control. Using its Hazard Ranking System the EPA gave a high score to the risks associated with the site. Dico was notified in September 1983 that the Des Moines TCE Site, which included the Dico plant, would be included on the National Priorities List.[5] 610 The record indicates that by the summer of 1985, however, Dico had not yet been identified as a "potentially responsible party."[6] In fact, no "PRPs" had been named for the site.[7] Although not yet named a PRP, Dico was closely monitoring the situation. In September 1985 Dico's general counsel wrote to company auditors to apprise them of various areas of potential liability. On the subject of environmental contamination, the letter stated: Based upon information available to date, it appears likely that Dico will be identified as a potentially responsible party. Under CERCLA, if Dico is determined to be a responsible party, Dico will have joint and several liability with other responsible parties, if any, for all costs of any response action and injury to natural resources, including reasonable costs of assessing such injury.... The amount and probable outcome of any such claims and the extent of insurance coverage, if any, cannot be assessed at this time. (Emphasis added.) Also in September 1985, Dico's corporate counsel responded to an EPA request for information regarding Dico's hazardous substances insurance coverage. Dico represented to the EPA that "[i]f a claim is asserted against Dico, Dico will seek the benefits of any and all insurance coverage to which it may be entitled under its policies." In early 1986, EPA officials held open meetings with parties interested in the Des Moines TCE Site. Representatives from area 611 companies, including Dico officials and its outside counsel, attended. Discussed at the meetings were remedial goals and potential technologies for removal of the TCE contamination. Dico was invited to a meeting on April 23, 1986, to discuss with the EPA terms of the proposed administrative order which would address liability for the contamination of the site. In the first week in May, Dico's insurance broker notified Wausau that it had received the proposed administrative order, but no formal claim had yet been made by the EPA. The notice letter stated: At a meeting of interested parties with the EPA held on April 23, 1986, it became apparent that the Agency expected negotiations over a proposed administrative order to progress very rapidly. Notice of this claim accordingly is being provided to you very promptly, such that Dico may consult and work with you on an expedited basis in connection with these negotiations. Wausau acknowledged that it received the notice and would be evaluating the claim. The EPA issued an administrative order on July 21, 1986, which Dico forwarded to Wausau on July 24. The order identified Dico as a responsible party pursuant to section 107(a) of CERCLA. Dico was ordered to "design, construct, operate and maintain the response action." The company turned to its CGL insurers for indemnification. C. Court action. Dico brought suit in 1993 against Wausau. The petition sought damages for breach of contract and/or declaratory relief[8] related to remedial activities at the TCE site. Wausau denied coverage on grounds of late notice, taking the position that Dico had been aware of the ongoing EPA investigation since at least 1978 but failed to give notice until 1986. The district court granted Wausau summary judgment based on its late notice defense. In a peculiar twist to the order rendering judgment, however, the court delayed dismissal of Dico's petition for three weeks, giving the parties time to "comment" on the court's decision. Within the three-week period given by the court, Dico filed a motion for enlargement under Iowa Rule of Civil Procedure 179(b). In its ruling on Dico's motion, the court not only declined to enlarge its findings but found the motion untimely because it was filed more than ten days following the court's summary judgment order. Dico appealed to this court within thirty days of the court's ruling on the rule 179(b) motion. Wausau moved to dismiss the appeal, claiming Dico's rule 179(b) motion was untimely and, therefore, insufficient to delay appeal from the court's summary judgment ruling. We ordered Wausau's motion to dismiss submitted with the appeal. II. Scope of Review. Summary judgment is proper when the moving party proves no genuine issues of material fact exist and it is entitled to judgment as a matter of law. Iowa R. Civ. P. 237(c); Met-Coil Sys. Corp. v. Columbia Cas. Co., 524 N.W.2d 650, 654 (Iowa 1994). On our review, we consider the record in the light most favorable to the non-moving party. Met-Coil Sys., 524 N.W.2d at 654. III. Rule 179(b) Issue. Before turning to the merits of the case, we address Wausau's claim that Dico's appeal is time barred. There is no question that appeal must be taken within thirty days from entry of final judgment, and a motion to amend and enlarge must be filed within ten days after the court's decision is filed. See Iowa R.App. P. 5; Iowa R. Civ. P. 247. These deadlines are mandatory and jurisdictional. Bellach v. IMT Ins. Co., 573 N.W.2d 903, 905 (Iowa 1998). Wausau contends that while an erroneous ruling on posttrial motions may not be appealable until entry of final judgment, the court's order rendering summary judgment 612 here was immediately appealable. Moreover, Wausau argues, the district court's forty-five-page ruling put Dico on notice of the grounds supporting summary judgment sufficient for a timely motion to enlarge. Its argument relies heavily on Milks v. Iowa Oto-Head & Neck Specialists, 519 N.W.2d 801 (Iowa 1994), and Qualley v. Chrysler Credit Corp., 261 N.W.2d 466 (Iowa 1978). In Milks we said: [O]nce the jury returns its verdict, the parties are usually on notice of the result for purposes of determining whether to file a motion for a new trial. In Qualley, for instance, the court concluded that "when the court [in a nonjury case] issued its findings and conclusions it was obvious to plaintiff on which facts and law the court's impending judgment entry would be based." Milks, 519 N.W.2d at 804 (quoting Qualley, 261 N.W.2d at 470). Dico counters that this case is more analogous to Egy v. Winterset Motor Co., 231 Iowa 680, 2 N.W.2d 93 (1942), in which judgment for the plaintiff was ordered by the court but counsel assumed the task of preparing a formal judgment "to give effect to the informal decision so expressed." Egy, 231 Iowa at 687, 2 N.W.2d at 96. There we held the time for appeal did not begin to run until the written ruling was filed, reasoning the losing party was without notice of the facts and conclusions upon which the court's forthcoming formal judgment would rest. Id. at 687, 2 N.W.2d at 97; see Qualley, 261 N.W.2d at 470. We agree with Dico that Egy, not Qualley and Milks, controls the current controversy. By focusing on the length and detail of the district court's written ruling, Wausau overlooks the ruling's evident lack of finality. Because the court left the door open for further comment, Dico had no way of knowing whether the ruling would undergo revision based on comments by Wausau. Thus Dico had little choice but to wait to the end of the "grace period" to proceed with its motion to enlarge. We cannot reconcile the district court's view that Dico's rule 179(b) motion was untimely with its open-ended invitation to submit revisions. The uncertainty injected into the proceedings by the court should not, in fairness, be used by Wausau to defeat Dico's appeal on the merits. We thus overrule Wausau's motion to dismiss the appeal. IV. Notice. The controlling question on appeal is whether the court erred when it ruled, as a matter of law, that Dico's notice to Wausau was untimely, relieving Wausau of its duties under the policy. We summarized the framework for such analysis in Met-Coil Systems Corp. v. Columbia Casualty Co.: When a notice provision is written as a condition precedent to policy coverage in an insurance contract, substantial compliance with such a condition must be shown by the claimant. Absent the claimant proving substantial compliance, in order to maintain the action against the insurer the claimant must show that failure to comply was excused, or that the requirements of the condition were waived, or that failure to comply was not prejudicial to the insurer. Met-Coil Sys., 524 N.W.2d at 654 (citations omitted). This analysis prompts two initial questions: Was notice a condition precedent to coverage under the Wausau policy and, if so, did Dico substantially comply with the notice requirement? Wausau's policy requires notice in two situations. "In the event of an occurrence," the insured must provide written notice as soon as practicable. "If claim is made or suit is brought," the insured must, under the policy, "immediately forward to the company every demand, notice, summons or other process" it has received. A. Occurrence. Turning to the first situation, Wausau's policy defines an occurrence as "an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured." We recently considered the term "accident" in the context of a pollution "occurrence" in Iowa Comprehensive 613 Petroleum Underground Storage Tank Fund Board v. Farmland Mutual Insurance Co., 568 N.W.2d 815, 818 (Iowa 1997). There we held that "accident" means "an unexpected and unintended event." Iowa Comprehensive Petroleum, 568 N.W.2d at 818. While recognizing that the "occurrence" of the first drop of leakage might be sudden, we concluded that ground contamination, occurring over a period of time, falls outside the definition of "accident." Id. at 819. Applying these definitions to the case before us, it appears plain that Dico's contamination of its production well and soil, which resulted from manufacturing procedures and dust control occurring over a long period of time, were not "occurrences" triggering noticeor, potentially, coverageunder Wausau's policy.[9] B. Claim. As for the notice required of an insured in the event of a "claim made," the district court appliedand Wausau urges on appeala broad reading of the term "claim." Wausau contends that correspondence between the EPA and Dico in 1981 and 1983 concerning the ground contamination were "claim letters." Dico counters that these preliminary discussions were far from "claims" as contemplated by Wausau's policy and as applied in the context of a CERCLA action. We agree. Wausau's policy does not define "claim." The policy, however, states: "The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages." (Emphasis added.) This is consistent with the commonly understood definition of "claim" as "a demand for something due or believed to be due {insurance}." Webster's Collegiate Dictionary 210 (10th ed.1993). Also consistent with this notion of legal obligation, the policy requires the insured to accompany any "claim made" with "every demand, notice, summons or other process" the insured has received. In A.Y. McDonald Industries, Inc. v. Insurance Company of North America, we noted that EPA enforcement procedures have moved "away from the use of law suits toward the use of agency demands for participation in remedial action." A.Y. McDonald Indus., Inc. v. Insurance Co. of N. Am., 475 N.W.2d 607, 628 (Iowa 1991) (quoting Hazen Paper Co. v. United States Fidelity & Guar. Co., 407 Mass. 689, 555 N.E.2d 576, 581 (1990)). Thus we concluded an EPA demand letter was substantially equivalent to commencement of suit for purposes of triggering the insurer's duty to defend. Id. In reaching this conclusion, we highlighted the responsibility shouldered by an insured once EPA demands have been made: The prospects of avoiding financial responsibility [are] minimal because liability is not based on fault and the available defenses are very limited. Moreover, the risk to which [the insured is] exposed [is] substantial because, as a practical matter, its liability is joint and several. Early involvement in the settlement discussions is thus often crucial to protect one's interests. Any court action by EPA is limited to the administrative record, and judicial review considers only whether the EPA "decision was arbitrary and capricious or otherwise not in accordance with law." Thus participation in the development of that record can be crucial. Settlement of EPA claims against potentially responsible parties, with protection against claims for contribution, is a desired goal. The situation [is] such that the opportunity to protect [the insured's] interests could well [be] lost, long before any lawsuit would be brought. It would be naive to characterize [an] EPA [demand] letter as a request for voluntary action. [The insured has] no practical choice other than to respond actively to the letter. Id. (citing Hazen, 555 N.E.2d at 581-82) (citations omitted). Here, unlike the situation in A.Y. McDonald, no petition had been filed before Wausau received notice of Dico's claim. *614 More importantly, the early correspondence between the EPA and Dicowhich Wausau contends triggered noticeimplied no duty to mount a defense. To the contrary, when the EPA informed Dico that the area would be listed as a potentially hazardous waste site, it advised Dico that "you will be notified as to compliance status or of any violations of the environmental laws at issue." Moreover, mere correspondence between the EPA and an insured concerning hazardous waste disposal would not necessarily develop into a claim. Under CERCLA, a "claim" is defined as "a demand in writing for a sum certain." 42 U.S.C. § 9601(4). Here, several businesses in the area of the Des Moines TCE Site were included in the EPA's investigation and attended many of the information meetings along with Dico. Ultimately, Dico was named as a responsible party and assigned liability for the site's cleanup. But that assignment of liability did not occur until July 1986. We recently held in Fireman's Fund Insurance Co. v. ACC Chemical Co., 538 N.W.2d 259, 265 (Iowa 1995), that an insured's lack of compliance with notice requirements can be determined as a matter of law when the delay is measured in terms of months and years. In Fireman's Fund, the insured did not directly notify its CGL insurer until five years after it negotiated a consent decree with the EPA. Fireman's Fund, 538 N.W.2d at 265. Here the question of substantial compliance with notice requirements comes down to a matter of weeks from April 18, when Dico received the proposed administrative order, to May 7 when Dico informed Wausau of the EPA's imminent action. We said in Fireman's Fund that, "[o]rdinarily, the question of whether a notice has been reasonably given is one of fact for the jury." Id. at 262. Under the record before us we cannot say as a matter of law that Dico failed to substantially comply with Wausau's notice requirements. The district court erred when it ruled otherwise. Our decision makes it unnecessary to consider appellant's remaining arguments. We reverse the judgment of the district court and remand for further proceedings. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. NOTES [1] See CERCLA, 42 U.S.C. §§ 9601-9675, as amended by Superfund Amendments and Reauthorization Act of 1986, Pub.L. No. 99-499, 100 Stat. 1613. [2] The other defendant insurers have been dismissed from the case. [3] According to an EPA order included in the record, "TCE is an anesthetic which depresses the central nervous system. It can cause neurological impairment, liver and kidney damage, and at high concentrations, death." [4] The several policies will hereafter be referred to in the singular. [5] The D.C. Circuit Court of Appeals has succinctly explained the statutory scheme this way: [CERCLA] authorizes the Environmental Protection Agency to establish a National Priorities List ("NPL"), identifying high priorities among the nation's known hazardous waste sites. The statute directs EPA to base the listing criteria on "relative risk or danger to public health or welfare or the environment."... The EPA has duly promulgated risk-based criteria under which a listing is triggered by either a high score on its Hazard Ranking System ("HRS") or by a "health advisory." Mead Corp. v. Browner, 100 F.3d 152, 153 (D.C.Cir.1996) (citations and footnote omitted). Once a site is included on the NPL, it becomes eligible for remedial action financed by the Superfund. See 40 C.F.R. § 300.68(a) (1987). Site owners (as well as generators and transporters of hazardous substances) are ultimately liable for response actions, and EPA has the option of requiring the injuring party to perform response actions in the first instance, or reimburse the fund after response action has been taken. 42 U.S.C. §§ 9606-9607(a). City of Stoughton v. United States Envtl. Protection Agency, 858 F.2d 747, 749 (D.C.Cir.1988). [6] Under CERCLA, a potentially responsible party ("PRP") is: (1) the owner and operator of a vessel or a facility, (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, (3) any person who by contract, agreement, or otherwise 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, and (4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance.... 42 U.S.C. § 9607(a). The Eighth Circuit Court of Appeals has explained the extensive liability associated with being named a PRP: Under CERCLA, if a responsible party, as defined by subsections (1) through (4), releases hazardous materials into the environment, and that release "causes the incurrence of response costs," then the party is liable. 42 U.S.C. § 9607(a). The question then becomes, liable for what? CERCLA's answer is that the party is liable for "any other necessary cost of response incurred by any other person consistent with the national contingency plan." 42 U.S.C. § 9607(a)(4)(B) (emphasis added). Thus, a plain reading of the statute leads us to the conclusion that once a party is liable, it is liable for its share, as determined by Section 9613(f), of "any" and all response costs, not just those costs "caused" by its release. Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930, 936 (8th Cir.1995) (footnote omitted). [7] One commentator has aptly characterized the difficulties faced by the EPA in identifying PRPs: In theory, all PRPs should be located. In practice, however, this is extremely difficult to accomplish and highly impractical because of CERCLA's expansive liability structure, in which hundreds of parties may be associated with one site. As a result, PRP searches can be very costly, and it is not unusual for the EPA to identify the minimum number of parties to commence an action. Karen L. Demeo, Note, Is CERCLA Working? An Analysis of the Settlement and Contribution Provisions, 68 St. John's L.Rev. 493, 502-03 (1994). [8] The petition stated in pertinent part: 2. Dico seeks a declaration that the defendants are obligated, under the terms of their respective insurance policies, to defend the proceedings brought against Dico by EPA, to reimburse Dico for its reasonable defense costs already incurred, including costs of investigation, and to indemnify Dico for its past and future damages as a result of property damage at the Site. [9] The record also reveals a second "plume" of contamination discovered in 1988 appearing to originate north of Dico's property. It remains to be determined whether this newly discovered plume resulted from an "occurrence" covered under the Wausau policy. But the timeliness of notice to Wausau of this additional contaminationdiscovered, as it was, after Wausau came into the casecan hardly be questioned.	{ "pile_set_name": "FreeLaw" }
J-S82003-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ANDRE LAMONT BUTLER, Appellant No. 1591 WDA 2016 Appeal from the Judgment of Sentence Entered September 20, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0002797-2016 BEFORE: BENDER, P.J.E., STEVENS, P.J.E., and STRASSBURGER, J.* MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 26, 2018 Appellant, Andre Lamont Butler, appeals from the judgment of sentence of three years’ probation, imposed following his conviction for carrying a firearm without a license, 18 Pa.C.S. § 6106(a)(2). Appellant challenges the trial court’s denial of his motion to suppress the seized firearm. After careful review, we affirm. The record in this matter is limited. Appellant’s trial consisted entirely of his stipulation to the facts set forth in the affidavit of probable cause, followed by the court’s verdict. N.T., 9/20/16, 2-3. The affidavit of probable cause stated, verbatim, as follows: ____________________________________________ * Former Justice specially assigned to the Superior Court. ** Retired Senior Judge assigned to the Superior Court. J-S82003-17 Your affiant in this case is Officer Fred Hill. I have been a Police Officer over 18 years and in that time, I have made countless arrests and convictions for firearms and narcotics related offenses. On Saturday, 2/20/16, at appx 1118 Hours, I was on routine patrol near the Dollar General Store, Clonmel @ Hoffman Blvd. I observed a white Buick sedan bearing PA# JVX-2074 with black window tint covering the side windows. I ran the registration and it was suspended due to insurance. I conducted a traffic stop for the vehicle code violations. Upon approaching the vehicle, I knew the driver to be DEFENDANT ANDRE BUTLER and the passenger was identified as James Brooks. While speaking with Butler, I observed him to be very nervous. I asked Butler if he had a weapon on him. Butler stated that he had a gun. I asked Butler if he had a permit, he stated no. Upon arrival of Officer Ernst, we removed Butler from the vehicle and he was detained. We removed Brooks from the vehicle and he was detained. I recovered a Smith and Wesson 40 caliber firearm with a laser from the unlocked glove compartment. Serial # DTD0121. Butler stated the gun was his and he thought he could carry it as long as it was not on his body. Butler is a convicted Felon. The firearm was registered to a Ronald Norman. Butler was checked and he does not have a gun permit. I BELIEVE PROBABLE CAUSE EXISTS FOR THE LISTED CHARGES. Criminal Complaint, 2/2/16, at 6 (affidavit of probable cause). Following Appellant’s arrest and the filing of the criminal complaint, the Commonwealth filed a criminal information on April 25, 2016. Therein, the Commonwealth charged Appellant with carrying a firearm without a license (count 1), and three Motor Vehicle Code violations (counts 2-4). Appellant filed a written suppression motion on September 20, 2016 – the same day as his non-jury trial. On the day of trial, the Commonwealth withdrew counts 2-4, the trial court denied Appellant’s suppression motion (without hearing testimony or argument), and the trial court entered a verdict of guilty following -2- J-S82003-17 Appellant’s stipulation. N.T., 9/20/16, 2-3. The court then immediately sentenced Appellant to three years’ probation. Id. at 3. Appellant filed a timely notice of appeal, and a timely, court-ordered Pa.R.A.P. 1925(b) statement. The trial court issued its Rule 1925(a) opinion on January 12, 2017. Appellant now presents the following question for our review: Did the trial court err in failing to suppress the gun found in the vehicle because the questioning of [Appellant] was an investigative detention without reasonable suspicion? Appellant’s Brief at 4 (unnecessary capitalization omitted). Before we reach the merits of Appellant’s claim, we must begin by addressing the Commonwealth’s assertion that it is subject to waiver due to his failure to articulate it with adequate specificity in the trial court. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”); Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa. Super. 2008) (“Even issues of constitutional dimension cannot be raised for the first time on appeal.”). Here, Appellant essentially asserts that “once the purpose of the traffic stop was achieved[,]” the police conducted what amounted to an investigatory detention by asking Appellant if he had a gun. Appellant’s Brief at 8. As the Commonwealth correctly notes, Appellant “presents an argument based on the line of cases flowing from the decision in Commonwealth v. Strickler, 757 A.2d 884 (Pa. 2000).” Commonwealth’s Brief at 4. -3- J-S82003-17 In Commonwealth v. Moyer, 954 A.2d 659 (Pa. Super. 2008), this Court summarized the facts and legal impact of the Strickler decision, as well as its companion case, Commonwealth v. Freeman, 757 A.2d 903 (Pa. 2000), as follows: The following facts informed the Strickler decision. Late one night, a police officer observed two men standing on the side of a rural road next to their parked car. The officer stopped to ascertain whether they needed assistance. As he passed the vehicle, the officer noticed that it contained a cooler with unopened beer cans. In response to the officer's questions, the men stated that they were leaving a local racetrack and had stopped to urinate. The officer asked for a driver's license, which the two men supplied. As the first officer was checking whether the individuals had outstanding warrants, another officer arrived in a second car and parked. The first officer returned the men's licenses and admonished them against urinating on a stranger's property. The officer started to walk toward his cruiser, turned around, and without the existence of any suspicion of criminal activity, asked Strickler if his car contained anything illegal. Strickler responded negatively, and the officer asked if he could search the car. After Strickler hesitated, the officer informed Strickler that he did not have to give his consent to search. Strickler nevertheless consented, and the officer discovered drug paraphernalia. As the Commonwealth had readily conceded that there were no facts to support a reasonable suspicion that Strickler was engaged in criminal activity, the sole question presented to the Supreme Court was whether Strickler had been subjected to a seizure within the meaning of the Constitution when, after returning Strickler's documents, the police started to ask questions. The Court observed: -4- J-S82003-17 To guide the crucial inquiry as to whether or not a seizure has been effected, the United States Supreme Court has devised an objective test entailing a determination of whether, in view of all surrounding circumstances, a reasonable person would have believed that he was free to leave. See [United States v.] Mendenhall, 446 U.S. [544,] 554 … [(1980)]; [Florida v.] Royer, 460 U.S. [491,] 502 … [(1983)]. In evaluating the circumstances, the focus is directed toward whether, by means of physical force or show of authority, the citizen-subject's movement has in some way been restrained. See Mendenhall, 446 U.S. at 553…. In making this determination, courts must apply the totality-of-the-circumstances approach, with no single factor dictating the ultimate conclusion as to whether a seizure has occurred. [Strickler, 757 A.2d at] 890–91 (footnotes omitted)…. The Strickler Court noted that by its nature, this test is imprecise since it is “designed to assess the coercive effect of police conduct, taken as a whole rather than focus on particular details of that conduct in isolation.” Id. at … 890. Strickler acknowledged that his initial detention was valid but contended that once his license was returned, there was a second detention that was not supported by reasonable suspicion, rendering his consent to search his vehicle infirm. The suppression court in Strickler had ruled that once a valid detention had been concluded, it was improper for police to continue an investigative interaction with a citizen. Thus, the suppression court essentially ruled that a detention could never devolve into a mere encounter. Our Supreme Court disagreed and noted that such an approach failed to take into consideration the fact that the officer had informed Strickler he did not have to consent to the search and that there was an absence of any show of authority on the part of the officer. The Supreme Court ruled that after an initial valid detention has concluded, the crucial determination of whether a continuing interdiction constitutes a mere encounter or a constitutional seizure centers upon whether an individual would objectively believe that he was free to end the encounter and refuse a request to answer questions or conduct a search. In making this determination, we must examine the totality of the -5- J-S82003-17 circumstances surrounding the interaction between the police and the citizen. A non-exclusive list of factors to be used in assessing whether police conducted a mere encounter after completion of a traffic stop includes: 1) the presence or absence of police excesses; 2) whether there was physical contact; 3) whether police directed the citizen's movements; 4) police demeanor and manner of expression; 5) the location of the interdiction; 6) the content of the questions and statements; 7) the existence and character of the initial investigative detention, including its degree of coerciveness; 8) “the degree to which the transition between the traffic stop/investigative detention and the subsequent encounter can be viewed as seamless, ... thus suggesting to a citizen that his movements may remain subject to police restraint,” id.; 9) the “presence of an express admonition to the effect that the citizen-subject is free to depart is a potent, objective factor;” and 10) whether the citizen has been informed that he is not required to consent to the search. Id. at … 898–899. The Court made a critical observation: when an individual has been subjected to a valid detention and the police continue to engage that person in conversation, the citizen, having been in official detention, is less likely to understand that he has the right to refuse to answer questions or a search. Furthermore, while acknowledging the importance of the ninth factor, the Court stressed that “conferral of the ‘free-to-go’ advice is, itself not a reason to forego a totality assessment” and therefore does not constitute a controlling factor in assessing whether a person would actually credit a police indication that he was free to leave. Id. at … 899 n. 24. The Strickler Court held that the defendant therein had not been subjected to a seizure after his documentation was returned. The Court noted that the defendant had not been seized initially by police since he voluntarily had stopped and exited his car to urinate. Further, it opined that the police were not coercive, did not display guns, and had told the defendant that he was free to refuse a search of his vehicle. Police had not directed the defendant to move, did not use coercive language or tone, and there was a clear ending to the first interaction when police returned the defendant's documents. Finally, the Court observed that the isolated location and time of night militated in favor of a finding that the defendant had been seized, but it concluded that those two factors did not outweigh those in favor of a finding that the interdiction was a mere -6- J-S82003-17 encounter. It held that Strickler was not seized when he granted his permission to search the car, and thus, his consent to search was voluntary. On the same day of the opinion in Strickler, the Supreme Court issued its decision in Commonwealth v. Freeman, … 757 A.2d 903 (Pa. 2000). In that case, the state police noticed two vehicles on an interstate highway traveling together. The two automobiles closely followed one another and were switching lanes simultaneously. A different police cruiser stopped each vehicle. One officer asked Freeman, a driver who was traveling with two passengers, if she was lost or having a problem with the driver of the other car. Freeman responded that she had switched lanes because she was in the wrong lane to continue onto her proper destination and that she was not traveling with the other car. The trooper asked for her driver's license and vehicle registration, returned to his cruiser, and initiated a check on the documents. At that time, he was radioed by the trooper who had stopped the other vehicle and informed that the driver said he was following Freeman's car because it was experiencing difficulties. The trooper re-approached Freeman's car, gave her a warning for improperly changing lanes, returned her documents, and stated that she was free to leave. The trooper walked away, but Freeman's car remained stopped. The trooper then returned to Freeman's vehicle and asked her again whether she was traveling with the other car. After she repeated a negative response, the trooper indicated that the occupants of the other vehicle had contradicted that information. He ordered her from her car and asked to search it. Freeman gave permission, and contraband was discovered. Our Supreme Court suppressed the fruits of that search, concluding that police had initiated a seizure when they re- approached Freeman's car and ordered her to exit it. The Court reasoned that a seizure had occurred despite conferral of the “free to go” language because the “trooper's subsequent actions were inconsistent with his statement to Freeman that she was free to leave.” Id. at … 907. Police conduct supporting a determination that Freeman objectively and reasonably believed she was, in fact, not free to go included: 1) the officer returned to Freeman's vehicle and asked her about the second car; 2) he pointed out the discrepancies between her statements and those of the other driver; and 3) “most significantly,” the officer “asked -7- J-S82003-17 her to step out of the vehicle prior to the request for consent [to search].” Id. Since the consent to search was vitiated by a detention that was not supported by reasonable suspicion, the Court suppressed the fruits of that search. Moyer, 954 A.2d at 664–66. In this context, it is clear that a Strickler/Freeman claim is an argument that is entirely dependent on a nuanced set of factual preconditions. To be successful, such a claim must establish that, following the termination of an otherwise valid but temporary seizure, police reinitiate contact in circumstances that constitute a distinct detention, one requiring its own showing of reasonable suspicion not wholly reliant on the facts that predicated the initial detention. Needless to say, Strickler/Freeman claims are not implicated in every instance of police stopping a motor vehicle. Instantly, the Commonwealth argues: Appellant agreed that his suppression motion should be decided on the affidavit of probable cause and did not offer any testimony to support his current assertion that he did not feel free to leave; thus there is no factual basis for that assertion. He also did not assert that the stop had ended before Officer Hill questioned him about the gun; and the affidavit contains nothing to support that inference. The Commonwealth certainly understands its obligation to prove that evidence was seized in a constitutional manner. Commonwealth v. Wallace, 42 A.3d 1040 (Pa. 2012). But a litigant has to articulate a theory of suppression so that the Commonwealth knows what aspect of a seizure and search is being challenged. No lawyer, whether defense counsel or prosecutor, is a seer. Appellant, who was represented by the Office of Public Defender, which currently represents him, did not put anyone on notice that he was asserting that Officer Hill had completed the traffic stop and then asked questions about the gun. -8- J-S82003-17 Commonwealth’s Brief at 6-7. We agree with the Commonwealth. Nothing in Appellant’s suppression motion could reasonably be perceived as having raised a Strickler/Freeman claim. Beyond Appellant’s boilerplate citation of the United States and Pennsylvania Constitutions’ search and seizure clauses, no further clarifying citations were set forth in his suppression motion. There was no mention of Strickler, Freeman, or any other relevant or related case law. The motion appears solely to challenge the initial stop of Appellant’s vehicle. Suppression Motion, 9/20/16, at 10 (“Officers observed no violations of the motor vehicle code prior to initiating the traffic stop on the vehicle in question.”). With that predicate in mind, the motion goes on to argue the inapplicability of various exceptions to the warrant requirement, such as the plain view exception, independent source, inventory search, and protective sweep. Id. at 11c, d, e, and g. Despite specifically referencing these search-and-seizure legal doctrines with some specificity, no mention was made of Strickler and/or Freeman, nor was any vague reference to the factual prerequisites of such a claim offered. In Commonwealth v. Freeman, 128 A.3d 1231 (Pa. Super. 2015), this Court warned: Although the burden in suppression matters is on the Commonwealth to establish “that the challenged evidence was not obtained in violation of the defendant's rights,” Pa.R.Crim.P. 581(D), that burden is triggered only when the defendant “state[s] specifically and with particularity the evidence sought to be suppressed, the grounds for suppression, and the facts and events in support thereof.” Commonwealth v. McDonald, 881 -9- J-S82003-17 A.2d 858, 860 (Pa. Super. 2005). Thus, when a defendant's motion to suppress does not assert specifically the grounds for suppression, he or she cannot later complain that the Commonwealth failed to address a particular theory never expressed in that motion. McDonald, 881 A.2d at 860; Commonwealth v. Quaid, 871 A.2d 246, 249 (Pa. Super. 2005) (“[W]hen a motion to suppress is not specific in asserting the evidence believed to have been unlawfully obtained and/or the basis for the unlawfulness, the defendant cannot complain if the Commonwealth fails to address the legality of the evidence the defendant wishes to contest.”). Id. at 1241–42 (emphasis added). On this basis, we conclude that Appellant waived his Strickler/Freeman claim, as he failed to present such a claim in his suppression motion. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 2/26/2018 - 10 -	{ "pile_set_name": "FreeLaw" }
249 B.R. 764 (2000) In re Carlton ZABEL and Diane Zabel, Debtors. Carlton Zabel and Diane Zabel, Plaintiffs, v. Schroeder Oil, Inc., Defendant. Bankruptcy No. 95-20532-JES, Adversary No. 99-2262. United States Bankruptcy Court, E.D. Wisconsin. May 12, 2000. 765 George B. Goyke, Wausau, WI, for Plaintiffs. James B. Connell, Wausau, WI, for Defendant. DECISION JAMES E. SHAPIRO, Chief Judge. This controversy stems from a $20,000 payment made to the defendant. Schroeder Oil, Inc., in June of 1999 from the sale proceeds of certain real estate owned by the plaintiffs (hereafter "debtors"). This was done in exchange for a release by Schroeder Oil of a junior mortgage which it held against the real estate and which was recorded in 1984. The $20,000 payment was made approximately 3½ years after the debtors' chapter 12 plan had been confirmed and which also occurred a few months after the debtors received their chapter 12 discharge. The payment and mortgage release were handled by the real estate agent for the debtors. On June 29, 1999, the debtors commenced this adversary proceeding asking that Schroeder Oil be found in contempt for violation of the § 524 discharge and seeking a refund of the $20,000. In opposition, Schroeder Oil states the following: 1. Debtors did not have the right to any "lien stripping" of this mortgage in their chapter 12 plan. 2. The debtors' plan did not provide for a discharge of this mortgage, and therefore, the mortgage "passed through" the bankruptcy. 3. The debtors' action is barred by the doctrine of accord and satisfaction. All of these issues are now before the court by virtue of the debtors' motion for summary judgment. A stipulation of facts and briefs have been submitted by the parties. In order to place this matter in its proper context, the following chronological sequence of events is set forth: February 1, 1995. Debtors file voluntary petition under chapter 12. May 1, 1995. Debtors file motion under § 506 for determination of secured status of the claim of Schroeder Oil, seeking a determination that this claim in the amount of $47,326 constitutes an unsecured claim. June 2, 1995. Schroeder Oil objects to the debtors' § 506 motion and also files a 766 separate objection to debtors' chapter 12 plan contending that its claim should be treated as a secured claim. August 24, 1995. Schroeder Oil withdraws its objection to debtors' § 506 motion. December 7, 1995. Court confirms debtors' second amended chapter 12 plan. December 8, 1995. Court signs order confirming debtors' second amended chapter 12 plan. February 22, 1999. Order discharging debtors after completion of their chapter 12 plan is signed. April 19, 1999. Case is closed. June, 1999. Schroeder Oil is contacted by debtors' real estate agent seeking a satisfaction of the real estate mortgage held by Schroeder Oil. This results in payment of the $20,000 to Schroeder Oil from the real estate sale proceeds in exchange for a satisfaction of the mortgage. June 29, 1999. Debtors commence this adversary proceeding against Schroeder Oil for recovery of the $20,000 and for a finding of contempt against Schroeder Oil, with sanctions. IS LIEN STRIPPING PERMISSIBLE IN CHAPTER 12? 11 U.S.C. § 506[1] states that a claim is secured to the extent of the value of the property which secures a particular claim and to the extent that it is not so secured, such lien is void and constitutes an unsecured claim. This is called "lien stripping." It can take the form of either "stripping off" or "stripping down" of a lien. "`Stripping off' of a lien occurs when the entire lien is avoided whereas `stripping down' occurs when an undersecured lien is bifurcated and the unsecured portion of the claim is avoided." In re Yi, 219 B.R. 394, 397 n. 6 (E.D.Va.1998). The instant case involves "stripping off" of a lien, since the property which was sold by the debtors was fully encumbered by liens senior to the mortgage held by Schroeder Oil. It is Schroeder Oil's position that, under the ruling of Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992), there can be no lien stripping in a chapter 12 case. Dewsnup held that a chapter 7 trustee cannot utilize § 506(d) to "strip down" an undersecured mortgage and void the unsecured portion of the mortgage holder's lien. The vast majority of post-Dewsnup decisions have limited Dewsnup to cases arising under chapter 7 and have allowed the parties in the reorganization cases under chapters 11, 12, and 13 to employ lien 767 stripping. See Collier on Bankruptcy ¶ 506.06(1)(c). The rationale for these post-Dewsnup decisions is that to prohibit lien stripping in the reorganization cases would be inconsistent with the pre-Code law and also inconsistent with those provisions and principles applicable to reorganization cases. See Collier, ¶ 506.06(1)(c). There are, however, a minority of cases which hold to the contrary. See In re Blue Pacific Car Wash, Inc., 150 B.R. 434 (W.D.Wis.1992); In re Taffi, 144 B.R. 105 (Bankr.C.D.Cal.1992). In re Jones, 152 B.R. 155 (Bankr.E.D.Mich.1993), criticizes both Blue Pacific and Taffi by declaring that these decisions "fail to heed Dewsnup's own caveat indicating that its holding would not necessarily obtain outside of chapter 7." Jones, 152 B.R. at 173. Dewsnup anticipated the ramifications of its holding by declaring the following: [Sec.] 506 of the Bankruptcy Code and its relationship to other provisions of that Code do embrace some ambiguities. See 3 Collier on Bankruptcy Ch. 506 and, in particular, ¶ 506.07 (15th Ed.1991). Hypothetical applications that come to mind and those advanced at oral argument illustrate the difficulty of interpreting the statute in a single opinion that would apply to all possible fact situations. We therefore focus upon the case before us and allow other facts to await their legal resolution on another day. Dewsnup, 502 U.S. at 416-17, 112 S.Ct. at 777-78. In In re Dever, 164 B.R. 132, 139 (Bankr.C.D.Cal.1994), the court states: Chapter 12 was specifically designed to facilitate the stripping down of liens on family farms with repayment of the reduced debt by installments under a plan of reorganization in other words, exactly what the Dewsnup debtors were trying to do. Its principal purpose was to provide a mechanism for repayment of the reduced loan over time, because the farm debtors were obviously unable to redeem their farms for cash at a foreclosure sale. In re Leverett, 145 B.R. 709, 713 (Bankr. W.D.Okla.1992), states: The extension of Dewsnup to the rehabilitative chapters of the Code would, in this court's view, serve to defeat one of the primary purposes of those chapters to permit debtors, through periodic payments under a plan, out of post-petition income, to financially rehabilitate themselves, their lives, and their businesses. The survival of all liens would preclude the finality necessary to the success of such rehabilitative efforts and would render § 506(a) virtually meaningless in those cases. In In re Jones, supra, the court noted that the ability of farmers under chapter 12 to strip down liens was regarded as an important means of achieving the objective of helping them to keep their farms in the midst of a nationwide farm crisis and concluded that, to extend Dewsnup to chapter 12, "would be highly problematic." Jones, 152 B.R. at 175. The Eighth Circuit in Harmon v. U.S. Through Farmers Home Administration, 101 F.3d 574 (8th Cir.1996), declared that a chapter 12 debtor can strip down an undersecured creditor's lien to the value of the collateral based upon several different code provisions which authorize such lien stripping in chapter 12. The court noted that § 1222(b)(2) permits a plan to modify the rights of holders of secured claims. Sec. 1227(c) vests property in a debtor "free and clear of any claim or interest of any creditor provided for by the plan" unless the plan or the order confirming the plan specified otherwise. 101 F.3d at 584. Harmon further noted that § 1225(a) deals with a creditor's allowed secured claim as determined under § 506(a) to the extent that such creditor's total claim exceeds the value of the security which the debtor holds in an allowed unsecured claim. Id. at 583. The court therefore concluded that where a creditor's secured interest has a zero value, its claim is entirely 768 unsecured and shall be treated in the same manner as any other unsecured claimants. These statutory provisions apply in chapter 12 cases. Chapter 7 cases, however, do not contain similar statutory provisions. Furthermore, there are also some cases which hold that "stripping off" of a lien is permissible even in chapter 7 cases and that the Dewsnup decision should be confined to "stripping down" of a lien. One of these cases, In re Yi, 219 B.R. 394 (E.D.Va.1998), held that a creditor's wholly unsecured third lien of trust on a chapter 7 debtor's real property can be "stripped off" because the property in question was fully encumbered by prior liens and that Dewsnup was not intended to preclude such "stripping off." See also In re Zempel, 244 B.R. 625 (Bankr.W.D.Ky.1999); In re Howard, 184 B.R. 644 (Bankr.E.D.N.Y. 1995); and In re Farha, 246 B.R. 547 (Bankr.E.D.Mich.2000). But see In re Cunningham, 246 B.R. 241 (Bankr.D.Md. 2000). This court concludes that lien stripping is permissible in a chapter 12 case. DID SCHROEDER OIL'S MORTGAGE "PASS THROUGH" THE BANKRUPTCY AND SURVIVE THE DISCHARGE? Schroeder Oil next contends that, even if lien stripping is available in a chapter 12 case, its mortgage nonetheless survived confirmation of the chapter 12 plan because "appropriate affirmative steps necessary to discharge the security interest were not taken." That same argument was made by a secured creditor in In re Martin, 130 B.R. 951 (Bankr.N.D.Iowa 1991), and rejected by the court. Martin concluded that, under 11 U.S.C. § 1227, the secured creditor was bound by the debtor's confirmed chapter 12 plan pursuant to 11 U.S.C. § 1227.[2] A confirmed chapter 12 plan is binding on all creditors. See In re Wickersheim, 107 B.R. 177, 181 (Bankr. E.D.Wis.1989). The district court, affirming Wickersheim, stated: A confirmed plan binds both the debtors and their creditors to the plan provisions and is res judicata as to all issues that could have and should have been raised pertaining to the plan. . . . A binding, confirmed plan serves the need for finality in determining the rights and obligations of affected parties. Wickersheim, 89-C-1235 (1990). See also In re Harmon, 96-20834, where Judge McGarity wrote: A secured creditor's lien may be extinguished even if it did not file a proof of claim if the creditor participated in the reorganization and the reorganization plan provided for the claim. The key word in Harmon is "participated." In In re Penrod, 50 F.3d 459 (7th Cir.1995), the Seventh Circuit concluded that, unless a plan of reorganization and order confirming plan states that a preexisting lien is preserved, it is extinguished on confirmation, provided that the holder of the lien participated in the reorganization. It is abundantly clear in this case that Schroeder Oil participated in this reorganization 769 case. It filed a proof of claim. It also filed an objection to debtors' motion to avoid the lien under § 506 and then filed a separate objection to confirmation. Subsequently, Schroeder Oil withdrew its objection to the debtors' § 506 motion and did not appear at the December 7, 1995, confirmation hearing to pursue its objection to confirmation. As a result, the debtors' plan was then confirmed. Recently, the Seventh Circuit in In re Harvey, 213 F.3d 318 (7th Cir.2000), declared: It is a well-established principle of bankruptcy law that a party with adequate notice of a bankruptcy proceeding cannot ordinarily attack a confirmed plan. Schroeder Oil was listed on the debtors' Schedule F (Creditors Holding Unsecured Non-Priority Claims) and received notice of all proceedings. By virtue of the § 506 motion, Schroeder Oil was given notice that the debtors intended to treat its claim as unsecured. The time for Schroeder Oil to have complained about the treatment of its claim under the plan was before the plan was confirmed. While Schroeder Oil did raise objections both to the § 506 motion and to confirmation, it withdrew its objection to the § 506 motion and did not pursue its objection to confirmation. Schroeder Oil is bound by the debtors' confirmed plan. Schroeder Oil further argues that because the debtors did not file a separate adversary proceeding, pursuant to Bankruptcy Rule 7001(2), its lien survived the plaintiffs' discharge. A similar argument was made in Harmon but was rebuffed by the court. The court declared that where a creditor files a proof of claim, the debtor challenging such claim is not required to commence an adversary proceeding to strip down the creditor's lien. 101 F.3d at 585. In the same vein, the court in Martin, supra, stated that the issue of lien stripping can be brought before a court either by a motion or a complaint. Martin, 130 B.R. at 957. "In order to extinguish or modify a lien, some affirmative steps must be taken by the debtor toward that end." In re Deutchman, 192 F.3d 457 (4th Cir.1999). The debtors' filing of their § 506 motion met that end. This court is satisfied that the debtors took appropriate affirmative action to extinguish Schroeder Oil's lien. The court concludes that Schroeder Oil's mortgage was extinguished and did not pass through the chapter 12 case unaffected. DOES ACCORD AND SATISFACTION APPLY? The requisite elements for an accord and satisfaction are a bona fide dispute as to the amount owing, an offer, an acceptance and consideration. See Tower Insurance Co. v. Carpenter, 205 Wis.2d 365, 556 N.W.2d 384 (Ct.App.1996). See also Cook & Franke, S.C. v. Meilman, 136 Wis.2d 434, 439, 402 N.W.2d 361, 363, (Wis.Ct.App.1987), where it is declared that "an accord and satisfaction is an agreement to discharge an existing disputed claim." (Emphasis added). At the time the $20,000 payment was remitted to Schroeder Oil, there no longer was any existing dispute. Schroeder Oil's claim had been fully resolved by the debtors' confirmed chapter 12 plan and subsequent discharge. While the debtors and Schroeder Oil may have misunderstood the consequences of the debtors' discharge, its legal effect is clear. The debtors were entitled to have Schroeder Oil's mortgage of record released without having to make any payment to Schroeder Oil for such release. The Bankruptcy Code contains a specific provision declaring that nothing prevents a debtor from making a voluntary payment of his discharged obligation. 11 U.S.C. § 524(f). But, in this case, there was no voluntary payment by the debtors. The $20,000 payment was made in order to close the real estate transaction. Time was of the essence. Schroeder Oil agreed 770 to release its mortgage, but only upon the payment to it of the $20,000. It is clear from both the legislative history and requirements imposed by the Bankruptcy Code that the drafters intended to incorporate some procedural safeguards to prevent debtors from improvidently reobligating themselves on discharged debts. See 4 Samuel Williston, A Treatise on the Law of Contracts, § 8:19 (4th ed.1992). The debtors, by paying $20,000 to Schroeder Oil from the sale proceeds without consulting an attorney, acted both improvidently and under compelling circumstances. The doctrine of accord and satisfaction does not apply. SANCTIONS FOR VIOLATING § 524 Unlike 11 U.S.C. § 362(h), which mandates that the individual injured by a willful violation of the automatic stay shall recover actual damages, including costs and attorney's fees, § 524 does not contain a similar provision. Awarding sanctions under § 524 is discretionary by the court. Schroeder Oil knew of the discharge granted to the debtors when it received the $20,000 payment. The court, however, does not believe that Schroeder Oil's actions in demanding payment before providing a satisfaction of mortgage were done in bad faith or that, by accepting payment, it knew it was violating § 524. While this court has opted to join the majority view which permits lien stripping in chapter 12 cases, it also recognizes that there is a minority of courts which has adopted a contrary view. Schroeder Oil's actions were technically in violation of the § 524 discharge. However, this court, in its discretion, declines to impose sanctions. CONCLUSION Summary judgment is granted in favor of the debtors. Schroeder Oil is found to be in violation of the permanent injunction under 11 U.S.C. § 524 and is ordered to forthwith refund to the debtors $20,000. No costs or attorney's fees shall be assessed against Schroeder Oil. A separate order granting summary judgment shall be issued simultaneous with this decision. NOTES [1] § 506. Determination of secured status. (a) An allowed claim of a creditor secured by a lien on property in which the estate has an interest, or that is subject to setoff under section 553 of this title, is a secured claim to the extent of the value of such creditor's interest in the estate's interest in such property, or to the extent of the amount subject to setoff, as the case may be, and is an unsecured claim to the extent that the value of such creditor's interest or the amount to subject to setoff is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor's interest. (b) To the extent that an allowed secured claim is secured by property the value of which, after any recovery under subsection (c) of this section, is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement under which such claim arose. (c) The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim. (d) To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void unless (1) such claim was disallowed only under section 502(b)(5) or 502(e) of this title; or (2) such claim is not an allowed secured claim due only to the failure of any entity to file a proof of such claim under section 501 of this title. [2] § 1227. Effect of confirmation. (a) Except as provided in section 1228(a) of this title, the provisions of a confirmed plan bind the debtor, each creditor, each equity security holder, and each general partner in the debtor, whether or not the claim of such creditor, such equity security holder, or such general partner in the debtor is provided for by the plan, and whether or not such creditor, such equity security holder, or such general partner in the debtor has objected to, has accepted, or has rejected the plan. (b) Except as otherwise provided in the plan or the order confirming the plan, the confirmation of a plan vests all of the property of the estate in the debtor. (c) Except as provided in section 1228(a) of this title and except as otherwise provided in the plan or in the order confirming the plan, the property vesting in the debtor under subsection (b) of this section is free and clear of any claim or interest of any creditor provided for by the plan.	{ "pile_set_name": "FreeLaw" }
25 B.R. 403 (1982) In re Vincent PRIBISH Dorothy Pribish Amvent Enterprises, Inc., Debtors. Bankruptcy Nos. BK-79-553 to BK-79-555. United States Bankruptcy Court, D. Maine. November 9, 1982. John Whalen, Platz & Thompson, Lewiston, Maine, for Watie and Ellen Akins. Jim Mitchell, Augusta, Maine, for Francis X. and Clare Lamb. Louis Kornreich, Gross, Minsky, Mogul & Singal, Bangor, Maine, for debtors. M. Ray Bradford, Jr., Bangor, Maine, trustee. MEMORANDUM DECISION FREDERICK A. JOHNSON, Bankruptcy Judge. On September 6, 1979, Dorothy Ann Pribish and Vincent R. Pribish filed petitions under chapter XII of the Bankruptcy Act of 1898. They were adjudicated bankrupts on July 6, 1981. On September 6, 1979, Amvent Enterprises, Inc. filed a petition under chapter XI of the Act. All of the stock of the corporation is owned by Dorothy and Vincent Pribish. On July 6, 1981, Amvent Enterprises, Inc. was also adjudicated a bankrupt. The Pribishes and Amvent owned and developed real estate. Prior to filing their petitions, the Pribishes conveyed real estate located in Monmouth to Watie and Ellen Akins. The Monmouth real estate was, in 404 fact, owned by Amvent. Record title remains in Amvent.[1] The Pribishes and Amvent seek authority to exchange deeds to give record title to the Akinses. The court considers the debtors' motion to be an application for a deed reformation. The court ordered notice of the motion mailed to all creditors and interested parties. Objections were filed by two creditors. The trustee of the Amvent estate opposed the motion at oral argument. DISCUSSION On September 6, 1979, when Amvent's petition was filed, a search of the registry of deeds would have revealed that record title was in Amvent. The recording of the deed from the Pribishes had no effect because it was outside the chain of title. Maine Revised Statutes Annotated, title 33, sections 201-210 (1978). A recorded deed is constructive notice only to subsequent purchasers or those claiming under the same grantor. Blumenthal v. Serota, 129 Me. 187, 151 A. 138 (1930). As of the date of the filing of the original chapter XI petition, Bankruptcy Rule 122(1), Amvent's trustee was clothed with the rights and powers of a lien creditor. Section 70(c)(3) of the Act.[2] The issue presented is whether the court may properly allow the proposed exchange of corrective deeds. In deciding this issue, the court must examine the effect of the trustee's status as hypothetical lien creditor on one who claims an unrecorded equitable interest in real estate. Section 70(c) was designed to allow the trustee to attack secret transfers and gives the trustee the status of the "ideal creditor." 4 Collier on Bankruptcy ¶ 544.01-.02 (15th ed. L. King 1982). Although section 70(c) confers lien creditor status on the bankruptcy trustee, state law determines the rights of the trustee as lien creditor against third parties. In re Clifford, 566 F.2d 1023, 1025 (5th Cir.1978). The Bankruptcy Act does not give the trustee greater rights than those given by state law to a similarly positioned creditor. 4 Collier, supra, at ¶ 544.02. Thus, Maine law governs this priority issue. Maine courts will reform a deed in equity if the petitioner shows a mutual mistake of fact. Williams v. Libby, 118 Me. 80, 82 (1919). A mistake as to title is a mistake of fact and can be reformed in equity. Id. Once the deed is reformed, it is construed as it was originally intended by the parties. Adams v. Stevens, 49 Me. 362, 366 (1861). However, equity will not act when its actions "will `result prejudicially to third persons.' . . . nor when `rights of third parties have intervened.'" Williams, at 83 (citations omitted). As stated by the court in Foster v. Kingsley, A court of equity never interferes to relieve a party from the consequences of an error, when the only effect of such an interference would be to lift a burden from the shoulders of one and place it upon the shoulders of another, when both are equally innocent and equally free from fault. 67 Me. 152, 156 (1877). Thus, Maine courts will not reform a deed if the rights of a third party have intervened. Sargent v. Coolidge, 433 A.2d 738 (Me.1981); Farley v. Bryant, 32 Me. 474 (1851); Whitman v. Weston, 30 Me. 285 (1849). As a hypothetical lien creditor under section 70(c), Amvent's trustee, as the representative of general creditors, benefits from the above-described equitable principles. A reformation of the Akins deed would prejudice the trustee's intervening rights by removing the property from Amvent's 405 estate. Thus, reformation is inappropriate in this case.[3] An appropriate order will be entered. NOTES [1] This proceeding is evidence of the value of a title search. [2] A case commenced under the old Act shall be conducted under such Act as if the new Code had not been enacted. Bankruptcy Reform Act of 1978, P.L. 95-598, Transition, Section 403(a). [3] Bankruptcy courts applying equitable principles other than reformation have reached similar conclusions. In In re Trotta, 12 B.R. 843, 8 B.C.D. 187 (D.Conn.1981), the court found that the trustee's status as lien creditor under section 544 of the Bankruptcy Code was superior to a constructive trust imposed in equity. For the same conclusion under section 544(a)(3), see In re Hotel Associates, Inc., 10 B.R. 668, 4 C.B.C.2d 523, 7 B.C.D. 612 (Bkrtcy.E.D.Pa. 1981); In re Taylor, 8 B.R. 806, 7 B.C.D. 317 (D.C.1981). Contra, In re Fieldcrest Homes, Inc., 18 B.R. 678, 8 B.C.D. 1285 (Bkrtcy.N.D.Ill. 1982) (holding in addition that where constructive trust imposed trustee holds legal title only under section 541(a)).	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals FOR THE EIGHTH CIRCUIT ________________ No. 04-2735 ________________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Juan Ramon Palomares-Alcantar, * * [PUBLISHED] Appellant. * ________________ Submitted: March 15, 2005 Filed: May 5, 2005 ________________ Before WOLLMAN, LAY, and HANSEN, Circuit Judges. ________________ HANSEN, Circuit Judge. Juan Ramon Palomares-Alcantar pleaded guilty to knowingly transporting illegal aliens within the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). The district court1 sentenced him to 18 months in prison and two years of supervised release. Palomares-Alcantar appeals his sentence. For the reasons discussed below, 1 The Honorable James E. Gritzner, United States District Judge for the Southern District of Iowa. we affirm the district court’s Guidelines calculations, but we remand for resentencing consistent with United States v. Booker, 125 S. Ct. 738 (2005). I. The following facts were undisputed. Palomares-Alcantar was driving a 1995 Ford Econoline van containing 20 individuals whom he knew to be illegal aliens. They were traveling from Phoenix, Arizona, to Chicago, Illinois. There were only seats and seatbelts for Palomares-Alcantar and one passenger; the remaining 19 passengers rode on the floor of the van. The Iowa State Patrol stopped the van on the morning of March 14, 2004, for speeding on Interstate 80 near Atlantic, Iowa. Some of the aliens told the police that they had paid between $1,200 and $1,500 to an unknown alien smuggler–someone other than Palomares-Alcantar–to be transported. Some facts regarding the van were in dispute. The presentence report described it as having the rated capacity to carry 15 people, but at sentencing, Immigration and Customs Enforcement Special Agent Martha Trevino described the van as having the rated capacity to carry seven people. She provided the district court with seven photographs of the van. One photograph showed a frontal view of the van, and another photograph showed the van with the doors to the rear passenger compartment opened. The remaining photographs showed that the van’s tires were bald, with the tread eroded to the point that the steel belts underneath were visible. There was no evidence as to whether Palomares-Alcantar knew of the condition of the tires. The district court examined the photographs and found that it was “unquestionably not a 15-passenger van,” but that the district court was “going to disregard the issue of the rating of the van” in making its Guidelines calculations. The district court made the following Guidelines calculations. Palomares- Alcantar’s base offense level was 12, see U.S. Sentencing Guidelines Manual (USSG) § 2L1.1(a)(2), he received a three-level enhancement because of the number of illegal aliens transported, see USSG § 2L1.1(b)(2)(A), his offense level was increased to 18 -2- because he intentionally or recklessly created a substantial risk of death or serious bodily injury to others, see USSG § 2L1.1(b)(5), and he received a three-level reduction for acceptance of responsibility, see USSG § 3E1.1. Palomares-Alcantar argued that he was entitled to a three-level reduction because the offense was not committed for profit, see USSG § 2L1.1(b)(1). He acknowledged, however, that the applicability of this reduction was moot if the district court found that he intentionally or recklessly created a substantial risk of death or serious bodily injury because § 2L1.1(b)(5) established an offense level of 18 with or without the § 2L1.1(b)(1) reduction. Palomares-Alcantar objected to the application of § 2L1.1(b)(5), arguing that he did not intentionally or recklessly create a substantial risk of death or serious bodily injury to others. Finally, he objected to the Guidelines on the basis of Blakely v. Washington, 124 S. Ct. 2531 (2004). The district court overruled Palomares-Alcantar’s Blakely objection, concluding that it was bound to apply the Guidelines until the Supreme Court or the Eighth Circuit declared otherwise. The district court also overruled Palomares- Alcantar’s objection to the application of § 2L1.1(b)(5). The district court concluded that the presence of 21 people in the van, regardless of whether it was designed to carry seven or 15 people, “was far in excess of any ability for the safety design of the van to provide safe transportation under the best of circumstances.” The overcrowding of the van was exacerbated, the district court continued, by the absence of seats or seatbelts for the 19 passengers who were riding on the floor of the van, and by the baldness of the van’s tires. Under these conditions, driving the van from Phoenix at interstate highway speeds intentionally or recklessly created a substantial risk of death or serious bodily injury to the passengers in the van, the district court concluded. Because § 2L1.1(b)(5) applied to Palomares-Alcantar’s conduct, the district court concluded, there was no need to rule on whether the offense was committed for profit within the meaning of USSG § 2L1.1(b)(1). -3- Based on a total offense level of 15 and a Category I criminal history, Palomares-Alcantar’s Guidelines imprisonment range was 18-24 months. The district court sentenced him to 18 months in prison and two years of supervised release. Had the district court adopted the Guidelines calculations urged by Palomares-Alcantar, his total offense level would have been 12, and his Guidelines imprisonment range would have been 10-16 months. Palomares-Alcantar appeals, arguing that the district court erred by finding that he intentionally or recklessly created a substantial risk of death or serious bodily injury; if so, he is entitled to the § 2L1.1(b)(1) reduction because he did not commit the offense for profit; and, in any event, his sentence violates Blakely and Booker. II. We conclude that the district court did not clearly err in finding that Palomares- Alcantar intentionally or recklessly created a substantial risk of death or serious bodily injury to others, and that the district court properly applied § 2L1.1(b)(5). See United States v. Flores-Flores, 356 F.3d 861, 862-63 (8th Cir. 2004) (affirming the application of § 2L1.1(b)(5) where the defendant was transporting 11 illegal aliens from Arizona to Michigan in a van that had only four seats and seatbelts, requiring eight of the aliens to ride on the floor); United States v. Rio-Baena, 247 F.3d 722, 723 (8th Cir. 2001) (affirming the application of § 2L1.1(b)(5) where the defendant was transporting 21 illegal aliens from Phoenix to Chicago in a van that had no seats or seatbelts for them); United States v. Ortiz, 242 F.3d 1078, 1078-79 (8th Cir. 2001) (affirming the application of § 2L1.1(b)(5) where the defendant was transporting 23 illegal aliens in a van equipped with seats and seatbelts for 14 passengers). Because § 2L1.1(b)(5) was correctly applied, it is irrelevant (as Palomares- Alcantar acknowledges) whether he committed the offense for profit because his offense level would remain 18 with or without a § 2L1.1(b)(1) reduction. -4- Finally, the government concedes error under Booker. Although the district court’s Guidelines calculations were correct, the district court (understandably) treated the Guidelines as mandatory. Having preserved a timely Blakely objection below, Palomares-Alcantar is entitled to a resentencing hearing at which the district court treats the Guidelines as advisory and imposes a sentence based on its consideration of all the factors listed in 18 U.S.C. § 3553(a). Accordingly, we remand this case to the district court for resentencing consistent with Booker, 125 S. Ct. at 764-65, 769. ______________________________ -5-	{ "pile_set_name": "FreeLaw" }
37 F.3d 1538 147 L.R.R.M. (BNA) 2719, 308 U.S.App.D.C. 411,129 Lab.Cas. P 11,274 EXXEL/ATMOS, INC., Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent. No. 93-1108. United States Court of Appeals,District of Columbia Circuit. Nov. 4, 1994. Petition for Review of an Order of the National Labor Relations Board. Before: EDWARDS, Chief Judge, WALD, SILBERMAN, BUCKLEY, WILLIAMS, GINSBURG, SENTELLE, HENDERSON, RANDOLPH, ROGERS, and TATEL, Circuit Judges. ON RESPONDENT'S SUGGESTION FOR REHEARING EN BANC ORDER PER CURIAM. 1 Respondent's Suggestion for Rehearing En Banc and the Response thereto have been circulated to the full Court. The taking of a vote was requested. Thereafter, a majority of the judges of the Court in regular active service did not vote in favor of the suggestion. Upon consideration of the foregoing, it is 2 ORDERED, by the Court en banc, that the suggestion is denied. 3 Chief Judge EDWARDS and Circuit Judge SILBERMAN would grant the suggestion. 4 A dissenting statement filed by Circuit Judge SILBERMAN is attached. 5 SILBERMAN, Circuit Judge, dissenting from the denial of rehearing en banc: 6 Ordinarily I would not vote to vacate an opinion of this court and to set the case for en banc argument if the opinion merely remanded to the agency for an adequate explanation. I have noted, however, that such an order should be limited to situations where the court is genuinely uncertain as to the agency's legal/policy course. See United States Office of Personnel Management v. FLRA, 905 F.2d 430, 437 (D.C.Cir.1990) (Silberman, J., concurring) ("[W]e must take care not to cajole agencies, through remand for inadequate explanations, into adopting legislative interpretations we lack authority to require."). In this situation we are not uncertain; the court quite obviously just disagrees with the Board's policy. By repeatedly, if episodically, refusing to enforce Board bargaining orders, unless and until the Board articulates limits on those orders that the court believes desirable, the court has exceeded--rather dramatically in my view--the legitimate scope of judicial review. Compare, e.g., Sullivan Indus. v. NLRB, 957 F.2d 890, 904-05 (D.C.Cir.1992)and Williams Enters., Inc. v. NLRB, 956 F.2d 1226, 1235 (D.C.Cir.1992) with NLRB v. Creative Food Design Ltd., 852 F.2d 1295, 1299 (D.C.Cir.1988). And since under the National Labor Relations Act employers throughout the country may petition for review in the D.C. Circuit, the court's posture absolutely prevents the Board from pursuing its policy even though our sister circuits are more deferential. See, e.g., Louisiana-Pacific Corp. v. NLRB, 858 F.2d 576, 578-79 (9th Cir.1988); NLRB v. Hollaender Mfg. Co., 942 F.2d 321, 327-28 (6th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992). 7 The Board's position is rather straightforward. If an employer violates Sec. 8(a)(5) of the Act by illegally refusing to bargain with a union that the employer has previously formally recognized as the representative of a majority of its employees, the employer will be ordered to bargain with the union. Such a bargaining order obliges the employer to bargain in good faith for a reasonable period of time. 8 For over 50 years, an affirmative bargaining order has been the standard Board remedy for an employer's unlawful refusal to bargain with a union which, as of the date of the refusal, enjoys the status of a 9(a) collective-bargaining representative. See, e.g., Inland Steel Co., 9 NLRB 783, 814-816 (1938). This remedy is warranted even if the union has lost its majority support after the unfair labor practice and even though the order will operate to preclude, for a reasonable period, an election to test majority status. In such cases, the Board's paramount concerns are to restore to the union the bargaining opportunity which it should have had in the absence of unlawful conduct and to prevent the possibility that the wrongdoing employer would ultimately escape its bargaining obligation as the result of the predictably adverse effects of its unlawful conduct on employee support for the union. 9 Williams Enters., Inc., 312 N.L.R.B. 937, 940, 1993 WL 402910 (1993). 10 Going back to Peoples Gas Sys., Inc. v. NLRB, 629 F.2d 35 (1980), this court has been uncomfortable with such orders because it has thought that employees should have an early opportunity (presumably, earlier than what the Board might ex post conclude was a reasonable period of time) to initiate a decertification election, or that an employer should be able readily to force the union to petition for an election to reaffirm its majority status. I have explained in my dissenting opinion in Sullivan Indus. v. NLRB, 957 F.2d 890, 906 (D.C.Cir.1992) (Silberman, J., concurring in part and dissenting in part), that Peoples Gas misread NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), a Supreme Court decision which deals only with the propriety of bargaining orders employed in the unusual situation where a union has not been recognized. The court, I am afraid, continues to labor under the misreading; Peoples Gas is once again relied upon in this case. The premise, accordingly, upon which in this case the court remands to the Board--that a bargaining order is an unusual remedy for an illegal refusal to bargain, even when an employer has previously recognized the union--is simply not correct. 11 The panel's opinion suggests a rationale upon which it is prepared to enforce the Board's order, but it is a rationale that would compel the Board--improperly in my view--to set a boundary on what is a reasonable period in this case and to forswear the use of a bargaining order in other cases not before the court. The court recognizes that the illegal refusal to bargain took place only eight months after the union was recognized. A union is normally entitled under Board precedent to an irrebuttable presumption of majority support during the first year after achieving representative status, and the court suggests that the order would be enforced in this case if the Board were to define a reasonable period of time to mean only four months. But when an employer illegally refuses to bargain during the first year after recognizing a union, the employer's unfair labor practice itself presumably contributes to eroding employee support for the union. If a Board order to bargain is applicable only for a period that corresponds to the period remaining in the first year when the unfair labor practice was committed, an employer would thus still have an incentive to engage in illegal conduct. 12 The corollary to the court's position, which follows our line of cases since Peoples Gas, is that the Board may not issue an order requiring an employer to bargain with a union for a reasonable period of time (which also forecloses an employee decertification election during that period) if the illegal refusal to bargain takes place more than a year after the employer recognized the union. The Board, not surprisingly, refuses to accept the court's view of desirable policy. The Board may be unwilling to spell out ex ante what is a reasonable period of time in such situations because subsequent events may bear on the issue. The Board may also be concerned, however--not unlike Presidents faced with demands for time limits on the deployment of U.S. troops--that a specified period will provide an incentive to the employer to wait out the period rather than reach a possible agreement. 13 We have said repeatedly in the Peoples Gas line of cases that the Board has not, to our satisfaction, balanced the interests of employees who wish to be rid of their union (and employers who perhaps also wish to be free of the union) with the Board's desire to return a union back to the position it would have occupied but for the unfair labor practice. As I argued in Sullivan, however, an agency is entitled to enormous deference when it chooses the appropriate remedy to redress a violation of law. See National Treasury Employees Union v. FLRA, 910 F.2d 964, 966-67 (D.C.Cir.1990) (en banc); see also Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 201-02, 111 S.Ct. 2215, 2222-23, 115 L.Ed.2d 177 (1991). For its part, the Board has taken the position that an order to bargain is the appropriate remedy for all Sec. 8(a)(5) violations. If I were a Board member I might well be sympathetic to a somewhat different policy, but I do not believe that we have any judicial warrant to object to the Board's categorical approach or its refusal to spell out ex ante the temporal limits on a bargaining order.	{ "pile_set_name": "FreeLaw" }
NOTE: This order is nonprecedential. United States Court of AppeaIs for the FederaI Circuit IN RE JASON ARTHUR TAYLOR, REBECCA ANN ZELTINGER, AND JOHN G. COSBY, JR., Appellants. 2012-1006 (Serial No. 11f429,507) Appea1 from the United States Patent and Trademark Office, Board of Patent Appea1s and Interferences. ON MOTION ORDER The Director of the United States Patent and Trade- mark Office moves for an extension of time, until March 9, 2012, to file his response brief. The appellants oppose. Up0n consideration thereof IT ls 0RDERED THA'1‘: The motion is granted 1N ss TAYLoR 2 FoR THE CoURT 1 0 lsi Jan Horbal}{ Date J an Horba1y C1erk : J Arth T 1 cc ason ur ay or FlLED JO1‘-11 G- COSbY» 51 u.s. count oF APPEALs ma Rebecoa Ann Ze1tinger T*‘“5 F59EHA'- macon Rayn1ond T. Chen, Esq. FEB 1 0 2012 s21 ` JAN HORBAL¥ CLERK §	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs April 25, 2012 STATE OF TENNESSEE v. IAN MICHAEL BOONE PARKS Appeal from the Criminal Court for Claiborne County No. 13CC1-2011-CR-985 E. Shayne Sexton, Judge No. E2011-01951-CCA-R3-CD - Filed September 27, 2012 Appellant, Ian Michael Boone Parks, was charged by criminal information with one count of aggravated assault in Claiborne County. Appellant pled guilty, and the trial court held a sentencing hearing. The trial court sentenced Appellant to a five-year sentence of confinement as a Range I, standard offender. On appeal, Appellant argues that the sentence imposed by the trial court was not supported by the evidence. After a thorough review of the record, we have determined that Appellant failed to include both the transcript of the guilty plea and the presentence report. These documents are necessary for an adequate review of the issues presented. Because we do not have these documents, we must conclude that the trial court’s sentences are supported by the evidence. Therefore, the judgment of the trial court is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed. J ERRY L. S MITH, J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER and D. K ELLY T HOMAS, J R., JJ., Joined. Liddell Kirk, Knoxville, Tennessee, for the appellant, Ian Michael Boone Parks. Robert E. Cooper, Jr., Attorney General and Reporter, Nicholas W. Spangler, Assistant Attorney General; William P. Phillips, District Attorney General, and Jared Effler, Assistant District Attorney General, for the appellant, State of Tennessee. OPINION Factual Background Based on the limited record before us, it appears that on the evening of December 18, 2010, Appellant was dealing with emotional issues and drinking. He went to his grandfather’s house and took two handguns. His intent was to commit “suicide by cop” whereby Appellant would create a situation where the police would be forced to shoot him. Appellant arrived at a dormitory on the Lincoln Memorial University Campus. The dormitory had been a motel at one time. Appellant was under the impression that it was still a motel. Ms. Whitney Vannoy and her boyfriend, Stewart Miller, were in Mr. Miller’s room at the dormitory in question. At about 10:45 p.m., Ms. Vannoy heard someone pounding on the door of Mr. Miller’s room. Mr. Miller looked through the peephole in the door and did not see anyone. Mr. Miller subsequently opened the door and saw a man standing to the side of the door where he was not visible through the peephole. Mr. Miller told Ms. Vannoy to call the police because “someone was trying to get into our room with a gun.” Ms. Vannoy called security because she thought they would have quicker access to the police. Officers arrived shortly thereafter. The officers arrested Appellant in the hallway. In January 2011, Appellant was charged with one count of aggravated assault by criminal information. On April 18, 2011, Appellant pled guilty to one count of aggravated assault. Pursuant to the agreement, the trial court held a sentencing hearing. At the conclusion of the hearing, the trial court sentenced Appellant to five years confinement as a Range I, standard offender. ANALYSIS On appeal, Appellant argues that the trial court erred in imposing a sentence of five years. The State argues that Appellant has waived this issue for failure to include the transcript of the guilty plea hearing and a copy of the presentence report. In the alternative, the State argues that the trial court did not err. As a general rule, a defendant appealing from a trial court bears the burden of preparing the record for appeal. Failure to prepare an adequate record leads to a presumption that the trial court’s rulings are correct. See Tenn. R. App. P. 24(b); State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). -2- In cases wherein a defendant pleads guilty, the guilty plea hearing is the equivalent of a trial, and “a transcript of the guilty plea hearing is often (if not always) needed in order to conduct a proper review of the sentence imposed.” State v. Keen, 996 S.W.2d 842, 843-44 (Tenn. Crim. App. 1999). Appellant has failed to include a copy of the transcript of the guilty plea as well as the presentence report. The trial court stated that it had reviewed the presentence report in determining what sentence to impose. Because the presentence report has not been included in the record, this Court cannot review the application of the enhancement factor based upon a defendant’s previous criminal history. “It is the duty of the appellant to prepare a record which conveys a fair, accurate, and complete account of what trans[pir]ed in the trial court with respect to the issues which form the basis of the appeal.” Oody, 823 S.W.2d at 559. “In the absence of an adequate record on appeal, this court must presume that the trial court’s rulings were supported by sufficient evidence.” Id. For this reason, we must conclude that the evidence supported the sentence imposed by the trial court. CONCLUSION For the foregoing reasons, the judgment of the trial court is affirmed. ___________________________________ JERRY L. SMITH, JUDGE -3-	{ "pile_set_name": "FreeLaw" }
133 F.3d 921 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.Bennie DAVIS, Appellant,v.Frank WOODS; Dennis Benson, Warden, Appellees. No. 97-2435. United States Court of Appeals, Eighth Circuit. Submitted: Jan. 7, 1998.Decided: Jan. 13, 1998. Before McMILLIAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges. PER CURIAM. 1 Bennie Davis appeals from the district court's1 adverse grant of summary judgment. After reviewing the record and the parties' briefs, we conclude that the judgment of the district court was correct, and that an extended opinion would have no precedential value. Accordingly, we affirm. See 8th Cir. R. 47B. 1 The Honorable Paul A. Magnuson, Chief Judge, United States District Court for the District of Minnesota, adopting the report and recommendation of the Honorable Jonathan G. Lebedoff, United States Magistrate Judge for the District of Minnesota	{ "pile_set_name": "FreeLaw" }
152 F.Supp.2d 92 (2001) Ralph MARENGO and Vona Marengo, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. FIRST MASSACHUSETTS BANK, N.A., Defendant. No. CIV. A. 00-40193-NMG. United States District Court, D. Massachusetts. July 18, 2001. Sandra L. Mayes, Legal Assistance Corp. of Central Mass., Worcester, MA, for plaintiffs. Kevin L. Courtney, Bruce D. Berns, Abendroth, Berns & Warner, Wellesley, MA, for defendant. MEMORANDUM AND ORDER GORTON, District Judge. This case arises out of the setoff by defendant of plaintiffs' bank account. 93 Pending before this Court is defendant's motion to dismiss for failure to state a claim upon which relief can be granted (Docket No. 4). I. Background Plaintiffs, Ralph and Vona Marengo ("the Marengos"), are elderly, disabled individuals. In the 1970s, Mr. Marengo opened a checking account and an unsecured line of credit with Shawmut Bank. When Shawmut Bank was acquired by Fleet Bank, defendant, First Massachusetts Bank ("FMB"), assumed operations of the former Shawmut Bank branch where the Marengos had their account and became the holder by assignment of the obligation on the unsecured line of credit. At some point, Mr. Marengo became delinquent on the unsecured line of credit and, in February, 1998, FMB exercised a setoff of the Marengo's NOW checking account in the amount of $343.80 to collect at least part of that debt. At the time of the setoff, the only funds contained in the NOW checking account consisted of the Marengo's Social Security and Supplemental Security Income benefits. The Marengos complain that they were not given advance notice of the setoff or an opportunity to dispute FMB's right to setoff the deposited funds. They also contend that the setoff caused them to bounce five checks totaling $232.80 and to have suffered humiliation and emotional distress as a result thereof. On June 22, 2000, the Marengos sent FMB a demand letter seeking relief under the Massachusetts Consumer Protection Act, M.G.L. c. 93A. More than 30 days passed without a response and the Marengos then filed the instant suit in Worcester Superior Court on September 11, 2000, seeking damages and declaratory relief. The complaint alleges: 1) improper taking of exempted Social Security and Supplemental Security Income benefits in violation of the Social Security Act, 42 U.S.C. §§ 407(a) and 1382(d)(1), 2) unfair or deceptive acts or practices in violation of M.G.L. c. 93A, §§ 2 and 9, and 3 intentional infliction of emotional distress. On October 30, 2000, FMB removed the case to this Court claiming federal question jurisdiction on the basis of plaintiffs claims for violation of the Social Security Act. II. Standard for Motion to Dismiss A motion to dismiss for failure to state a claim may be granted only if it appears, beyond doubt, that the plaintiffs can prove no facts in support of their claim that entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The Court must accept all factual averments in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Garita Hotel Ltd. Partnership v. Ponce Fed. Bank, F.S.B., 958 F.2d 15, 17 (1st Cir.1992). The Court is required to look only to the allegations of the complaint and if under any theory they are sufficient to state a cause of action, a motion to dismiss the complaint must be denied. Knight v. Mills, 836 F.2d 659, 664 (1st Cir.1987). III. Analysis Under the Social Security Act's anti-assignment provision, social security benefit payments are not transferable or assignable and are not "subject to execution, levy, attachment, garnishment, or other legal process...." 42 U.S.C. § 407(a). The purpose of § 407 is to protect social security beneficiaries from creditors' claims, Dionne v. Bouley, 757 F.2d 1344, 1355 (1st Cir.1985), and "it imposes a broad bar against the use of any legal process to reach all social security benefits." Philpott v. Essex County Welfare Bd., 409 U.S. 413, 417, 93 S.Ct. 590, 34 94 L.Ed.2d 608 (1973). Section 407 also applies to Supplemental Security Income benefits. 42 U.S.C. § 1383(d)(1)(incorporating § 407 by reference). The parties agree that FMB's exercise of its right of setoff does not constitute an execution, levy, attachment or garnishment under § 407. They dispute, however, whether the phrase "other legal process" encompasses and therefore prohibits setoffs. FMB contends that "legal process" requires court action and thus does not include extra-judicial self-help remedies such as setoffs. It argues, accordingly, that the federal claims must be dismissed and that this Court should decline to exercise supplemental jurisdiction over the remaining state law claims. The Marengos respond that the phrase "other legal process" should be construed broadly to include non-judicial remedies such as setoffs. FMB relies principally on two cases which hold that a bank's right of setoff is not "legal process" because it involves neither the courts nor the government. See Frazier v. Marine Midland Bank, N.A., 702 F.Supp. 1000, 1002-04 (W.D.N.Y.1988); In re Gillespie, 41 B.R. 810, 812 (Bankr. D.Colo.1984). As an initial matter, this Court notes that In re Gillespie has been substantially eviscerated, if not overruled, by Tom v. First American Credit Union, 151 F.3d 1289 (10th Cir.1998) which holds that an attempt to setoff an account containing Social Security benefit payments violates § 407. Id. at 1291-93. Moreover, the instant case is distinguishable from Frazier in which the plaintiff had signed an agreement stating that the defendant bank could use the monies in her account to setoff any indebtedness she might have to the bank. Frazier, 702 F.Supp. at 1001. By contrast, there is as yet no evidence that Mr. Marengo signed such an agreement when he opened the checking account and line of credit with FMB's predecessor. In any event, this Court is not persuaded by the reasoning in either Frazier or In re Gillespie. Federal benefits statutes "should be liberally construed....to protect funds granted by Congress for the maintenance and support of the beneficiaries thereof...." Porter v. Aetna Cas. & Sur. Co., 370 U.S. 159, 162, 82 S.Ct. 1231, 8 L.Ed.2d 407 (1962) (interpreting exempt status of benefits paid out by the United States Veterans' Administration) (citations omitted); see also Philpott, 409 U.S. at 416, 93 S.Ct. 590 (analogizing the protection given by § 407 to the veterans' benefits exemptions reviewed in Porter); In re Capps, 251 B.R. 73, 75 (Bankr.D.Neb.2000) (construing § 407 liberally in light of Porter). As noted by the Tenth Circuit Court of Appeals, there is no reason why Congress would, on the one hand, choose to protect Social Security beneficiaries from creditors who utilized the judicial system, a system that is built upon the fairness and protection of the rights of litigants, yet, on the other hand, leave such beneficiaries exposed to creditors who devised their own extra-judicial methods of collecting debts. Such a construction of § 407 would run contrary to both logic and the spirit underlying the Social Security Act. Tom, 151 F.3d at 1292 (citations omitted); see also Crawford v. Gould, 56 F.3d 1162, 1166 (9th Cir.1995) ("[Section 407] was not designed to preclude use of only the judicial process to obtain Social Security benefits."). Moreover, extra-judicial attempts to reach Social Security benefits may violate § 407 where the procedure used is unduly coercive. See Crawford, 56 F.3d at 1165-68 (Section 407 bars state from deducting Social Security benefits in order to pay for the care of institutionalized psychiatric *95 patients without patients' voluntary consent.); cf. Fetterusso v. New York, 898 F.2d 322, 328 (2d Cir.1990) (finding no § 407 violation in absence of evidence that mentally ill, committed persons did not voluntarily agree to use of their Social Security benefits to pay for the costs of their care and treatment). Although clearly less restricted than an institutionalized individual, the Marengos were nonetheless at FMB's mercy to the extent that the bank had immediate access to their account and could, without notice, exercise its right of offset. As FMB points out, the Marengos could simply have closed their checking account and walked away, but there is something inherently coercive in FMB's actions which this Court finds that § 407 was designed to prevent. Accordingly, this Court reads the phrase "other legal process" to include both judicial and extra-judicial self-help remedies, including setoffs. See Tom, 151 F.3d at 1293 ("setoff constitutes `other legal process' under § 407"); In re Capps, 251 B.R. at 75-76 (same). The motion to dismiss will, therefore, be denied.[1] ORDER For the reasons set forth in the Memorandum above, defendant's motion to dismiss (Docket No. 4) is DENIED. So ordered. NOTES [1] FMB also urges this Court to adopt the definition of "legal process" set forth elsewhere in the Social Security Act, see 42 U.S.C. § 659(i), and in Black's Law Dictionary, both of which limit the term to court-enforced remedies. Section 659(i), however, specifically defines "legal process" only for purposes of § 659 and FMB offers no basis for importing that definition into § 407. Similarly, the bank advances no support for adoption of the traditional definition from Black's Law Dictionary. To the contrary, as discussed supra, the relevant case law argues against applying a limited definition of "legal process" to § 407.	{ "pile_set_name": "FreeLaw" }
Opinion issued February 12, 2009 In The Court of Appeals For The First District of Texas ____________ NO. 01-07-00074-CV ____________ THE FREEPORT ECONOMIC DEVELOPMENT CORPORATION, Appellant V. WESTERN SEAFOOD COMPANY, Appellee On Appeal from the County Court at Law No. 3 and Probate Court Brazoria County, Texas Trial Court Cause No. CI032664 MEMORANDUM OPINION The parties have filed a joint motion to dismiss the appeal. No opinion has issued. Accordingly, the motion is granted, and the appeal is dismissed. Tex. R. App. P. 43.2 (f). All other pending motions in this appeal are overruled as moot. The Clerk is directed to issue mandate within 10 days of the date of this opinion. Tex. R. App. P. 18.1. PER CURIAM Panel consists of Justices Taft, Bland, and Sharp.	{ "pile_set_name": "FreeLaw" }
544 U.S. 947 HICKSv.UNITED STATES. No. 04-8881. Supreme Court of United States. March 28, 2005. 1 C. A. 6th Cir. Reported below: 110 Fed. Appx. 600. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgments vacated, and cases remanded for further consideration in light of United States v. Booker, 543 U.S. 220 (2005).	{ "pile_set_name": "FreeLaw" }
203 S.E.2d 445 (1974) STATE of West Virginia v. Frankie Lewis THOMAS. No. 13358. Supreme Court of Appeals of West Virginia. Submitted February 5, 1974. Decided March 19, 1974. 450 Hudgins, Coulling & Brewster, Harold D. Brewster, Jr., Bluefield, for plaintiff in error. Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., E. Leslie Hoffman, III, Asst. Atty. Gen., Charleston, for defendant in error. 446 447 448 449 HADEN, Justice: On a trial record virtually barren of objection, Frankie Lewis Thomas, an indigent, was convicted of the crime of breaking and entering in a jury trial conducted by the Intermediate Court of Mercer County, West Virginia. He was sentenced to an indeterminate term in the penitentiary for a period of one to ten years, with a further recommendation from the court that he serve a minimum of five years. He appeals from a final order of the Circuit Court of Mercer County, denying his petition for appeal from the intermediate court of that county. Thomas' recently appointed appellate counsel seeks a new trial for the reasons that the appellant was convicted through the introduction of incompetent evidence of the crime. The alleged incompetence of the questioned evidence occurred by reason of its seizure by the State as a result of an unconstitutional search incident to an unlawful arrest and because the defendant was cross-examined regarding charges and convictions of other crimes irrelevant to the crime charged in the indictment. Defendant was also questioned regarding criminal offenses committed by him allegedly occurring while he was a juvenile; this latter evidence being allegedly incompetent by reason of an alleged violation of statute, Code 1931, 49-7-3, as amended. Further, appellate counsel urges that by reason of the introduction of the illegally obtained and incompetent evidence against the defendant, its admission into evidence violated his constitutional rights and its cumulative effect denied him a fair trial, which require that his conviction be voided. In that the evidence assailed, which allegedly resulted in defendant being denied a fair trial, was introduced almost wholly without objection of trial counsel, this Court is also presented with the question of whether defendant received the benefit of effective asistance of counsel as required by the West Virginia and United States Constitutions. As a supplemental ground defendant believes he is entitled to a reversal and an acquittal because all the evidence introduced against him was insufficient to justify a conviction of the crime charged. The defendant's ultimate conviction resulted from events occurring when he was arrested during the early morning hours of February 10, 1971, by municipal police officers in Bluefield, West Virginia. Just prior to this arrest of Thomas, the officers had been on nightly patrol when they came upon an attempted break-in at the Commercial Printing Company on Commerce Street in Bluefield. Snow had fallen at the scene and there were observable footprints leading from the door of the printing house which were followed by the officers for some distance into a parking lot beside a theater building where they terminated. Having lost the trail, the officers proceeded to cruise the surrounding area of the Town of Bluefield in their patrol car. Sometime later, they observed Thomas who was carrying a green plastic bag departing the front entrance of the Matz Hotel building. One of the officers who knew him called to Thomas, and he stopped to await their approach. Both policemen observed that Thomas had been drinking and they placed him under arrest for intoxication. The trial testimony of the officers demonstrated, however, 451 that the detention and arrest of Thomas for intoxication was a pretext to enable them to question and search Thomas. The officers testified that the defendant was not at the time of the arrest intoxicated to the point that they could have sustained a drinking charge against him. After detaining Thomas, the officers took the green plastic bag from him and examined its contents. They gave conflicting reasons to support their search of Thomas. One officer indicated there was a small hole in the bag and that a corner of a tape player was protruding from the hole. The other said that Thomas had consented to the search. Thomas vehemently denied giving the officers consent either to look into the bag or to take it from him. The search was conducted without a warrant. The fruits of the search revealed three tape players and a tape cartridge with Montgomery Ward stickers affixed to them. Upon discovery of this evidence, the officers radioed other police officers and directed them to the Montgomery Ward store on a nearby street. There, the other officers discovered a successful breaking and entering. Thomas was then taken by the officers to the Montgomery Ward store. He was then advised of his rights and placed under arrest on the charge of possessing stolen property. On April 6, 1971, he was indicted for breaking and entering the Montgomery Ward storeroom, and counsel was appointed to represent him at trial. In the absence of objection or a motion to suppress by defense counsel, the prosecution introduced the evidence obtained by the initial "arrest" of Thomas, and the search of his plastic bag. The State also introduced extensive testimony by the police officers that the footprints discovered in the snow at the Commercial Printing House, and also at the entrance to the Montgomery Ward store, were footprints of the defendant Thomas. Measurements of the footprints made at the scene of the break-ins indicated that the prints measured four by eleven and one-half inches. Defense counsel buttressed the testimony of the police officer by demanding and receiving permission of the court to measure the defendant's shoes during trial. The results of this demonstration coincidently revealed that Thomas' shoes were four by eleven and one-half inches in size. Additional State evidence proved that a Montgomery Ward smock, also missing from the store, was found at the rear of the Matz Hotel building near garbage bins containing green plastic garbage bags. Counsel did not move for a directed verdict at the close of the State's case. Also without objection of defense counsel, Thomas, upon taking the stand in his own defense, was cross-examined extensively as to previous convictions and charges lodged against him involving collateral crimes. One example of such testimony which caught the particular attention of this Court, is as follows: "Q. (Defense counsel) was asking you about your clothes. You have got several pairs of shoes and several pairs of boots. You have got a lot of pants, too? Trousers? "A. I have a complete wardrobe. "Q. Yes, you had a complete wardrobe. Twelve pairs of them that belonged to Effron's Army and Navy Store, didn't "A. No. "Q. When you got arrested? "A. No. "Q. Your dad brought them over and gave them to the police, didn't he? "A. I don't know nothing about them. "Q. You are charged in this Court for breaking into Effron's Army and Navy Store, aren't you? 452 "A. I am charged with one thing as I know of." No objection was made to the introduction of the above testimony which related to an altogether separate charge on an occurrence at another place and time. In fact, defense counsel only lodged objections with the court twice during the entire course of the trial. The first objection relating to the racial composition of the jury panel, was abandoned. The second did concern the introduction on cross-examination of defendant's previous convictions for forgery, other felonies and misdemeanors, on the ground that some may have occurred while he was a juvenile. Counsel objected that such convictions, if they occurred when the defendant was a juvenile, violated Code 1931, 49-7-3, as amended, prohibiting evidence of the disposition of juvenile proceedings from being used against the defendant. After the prosecutor responded that forgery was a felony and a conviction of that crime meant that Thomas had been tried as an adult rather than a juvenile, the court overruled the objection. When the jury returned its verdict against the defendant, his counsel moved, without the assignment of grounds, that the jury verdict be set aside and that Thomas be granted a new trial. The trial court overruled the motion and sentenced the defendant. After trial, defendant requested his counsel to perfect an appeal of the conviction. Counsel took no further action in Thomas' behalf. Subsequently, this Court, on the pro se petition of Thomas, granted a writ of habeas corpus returnable to the Intermediate Court of Mercer County. There, the relator was awarded the writ but that court, apprehending no errors in the trial, resentenced the petitioner to the same term and on the same conditions as contained in the judgment of April 15, 1971. The legal effect of the resentencing order resulted in the re-commencement of a new appeal period for Thomas. The sentencing court also appointed Thomas' present counsel to represent him in the prosecution of this appeal. As to the contention that Thomas is entitled to a reversal and a judgment of acquittal because the verdict was not supported by the evidence introduced, we must reject it as having no merit. There was overly ample evidence introduced into the record which supports a conviction for breaking and entering. The jury, where there were conflicts in the testimony, resolved those conflicts in favor of the State. See, State v. Mahramus, W.Va., 200 S.E.2d 357 (Decided November 20, 1973); State v. West, 153 W.Va. 325, 168 S.E.2d 716 (1969); State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967); State v. Etchell, 147 W.Va. 338, 127 S.E.2d 609 (1962); State v. Winans, 100 W.Va. 418, 130 S.E. 2d 607 (1925). Regarding the admission upon cross-examination of evidence showing prior convictions of the defendant at a time when he may have been subject to the jurisdiction of a juvenile rather than a criminal court, it, as well, must be rejected. There is no support in the record for a conclusion that the State attempted to introduce proscribed evidence from juvenile proceedings protected by Code 1931, 49-7-3, as amended. That statute does not prohibit the introduction of evidence relating to former convictions of a defendant in the criminal courts of this or another state. On this appeal, Thomas' newly appointed counsel has ably contended for his rights. Present counsel and the attorney general for the State have very adequately briefed the issues presented on appeal. Nevertheless, this Court is confronted with the problem of reviewing obvious errors which were assigned for the first time on appeal and which are not preserved in the record of the trial below. We must proceed with the recognition that the general rule is that objections not shown to have been made in the trial court cannot be considered 453 in the appellate court. State v. Mahramus, supra; State v. Bragg, 140 W. Va. 585, 87 S.E.2d 689 (1955). With a very real awareness of the import of the rule, we are compelled by the facts of this case to discuss the circumstances of Thomas' arrest, the admission into evidence of the items acquired from him by the officers' search, the admission into evidence of collateral charges and crimes against Thomas, and the effect of this evidence and other circumstances at trial upon Thomas' ultimate conviction. Thomas was arrested without a warrant on a statutory misdemeanor charge of intoxication. See Code 1931, 60-6-9(1), as amended. The testimony given by the officers negatives circumstances which would demonstrate either a lawful arrest or a probable cause to search. Their testimony was that they stopped Thomas on the pretext of arresting him for intoxication but knew he was not intoxicated to the point that they could make the charge stick. They also acknowledged that but for the fruits of the search of Thomas' garbage bag, they would have been unaware of the successful breaking and entering and theft at the Montgomery Ward store. Rather remarkably, neither officer testified that they had reason to stop Thomas because of any suspicions they entertained that he might have attempted to break into the Commercial Printing House, which was the crime under active investigation by them. The record is absolutely silent on that point and neither officer attempts to justify the arrest or search on that basis. A municipal police officer has no authority at common law or by statute to make a warrantless arrest of a person who does not commit a misdemeanor in his presence. A pretext arrest for the misdemeanor of intoxication with foreknowledge that the charge could not be sustained against the suspect is an unlawful arrest. See Code 1931, 8-14-3, as amended. And the mere suspicion that a misdemeanor offense has been previously committed or will be committed by a person does not furnish probable cause to an officer who makes a warrantless arrest. State v. Lutz, 85 W.Va. 303, 101 S.E. 434 (1919). The initial arrest of Thomas was patently and obviously unlawful. Regardless of the foregoing, we must consider whether the evidence acquired from Thomas was admissible against him in trial to support the charge of breaking and entering the Montgomery Ward store. The common-law rule was that the admissibility of evidence is not affected by the illegality of the means by which it is obtained unless its admission will violate a constitutional guarantee of the person against whom its admission is sought. State v. Wills, 91 W.Va. 659, 114 S.E. 261, 24 A.L.R. 1398 (1922). This Court has recently reaffirmed that the unlawfulness of a seizure or arrest and a subsequent search is the constitutional equivalent of an unreasonable search and seizure: "In interpreting Section 6 of Article III of the Constitution of West Virginia, this Court held that unlawful searches and seizures are unreasonable within the meaning of this Section forbidding unreasonable searches and seizures." Sprouse, J., State v. Duvernoy, W.Va., 195 S.E.2d 631, 634 (1973). Further, we recognized and held in a similar case: "Except where authorized by law as incident to a lawful arrest, any search of a person or his dwelling on mere suspicion and the seizure of any article found as a result thereof, without an arrest warrant or a search warrant, is an unlawful search and seizure in violation of Section 6, Article 3 of the Constitution of West Virginia." Syllabus Point 2, State v. Smith, W.Va., 193 S.E.2d 550 (1972). Consequently, evidence obtained by reason of a search after an unlawful arrest cannot be used as evidence against the accused upon his trial. State v. Duvernoy, supra; State v. Massie, 95 W.Va. 233, 120 S.E. 454 514 (1923); State v. Slat, 98 W.Va. 448, 127 S.E. 191 (1925); State v. Andrews, 91 W.Va. 720, 114 S.E. 257 (1922); State v. Wills, supra; Davis v. Mississippi, 394 U. S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The officers in this case also relied upon the fact that part of the evidence was in plain view to them as substantiating the lawfulness of their search. The so-called "plain view" exception may not be relied upon to sustain the admission of contraband property inadvertently discovered unless the officer was lawfully searching with probable cause at the time. State v. Duvernoy, supra; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1961); Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed. 2d 409 (1971); Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). Although Thomas vehemently denied his voluntary submission to a search, the officers also claimed that their search of Thomas was made lawful by his consent. Evidence acquired by consent is admissible against the accused in trial. State v. Angel, 154 W.Va. 615, 177 S.E.2d 562 (1970). But that principle does not apply where the consent is not voluntary. Mere submission to authority is insufficient to support a "consent" search. As the United States Supreme Court said in Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968): "There can be no consent to a search where there is coercion, albeit colorably lawful coercion, as where a law enforcement officer claims authority to search a home under a warrant, thereby announcing in effect that the occupant has no right to resist the search." (Headnote 9, id., at Page 798 of the Law Edition Report). We also approve and adopt the reasoning of the Georgia Court in a recent decision relating to an alleged consent search: "A prisoner in police custody by reason of an illegal arrest (or any other form of detention, overt or subtle) is in no position to refuse to comply with the demands of the officer in whose custody he is placed whether such demand is couched in the language of a polite request or a direct order." Holtzendorf v. State, 125 Ga.App. 747, 188 S.E.2d 879, 882 (1972). Under the facts of this case, we cannot conclude that the consent alleged by the officers was voluntarily given since the defendant was under detention or arrest without probable cause. This Court has previously held that as to lawfulness of the search, it is of no moment whether the formal arrest occurred before or after the search. In a case relating to the admission of evidence of the possession of an unlawful pistol by the accused, the Court held in State v. Massie, supra, 95 W.Va. at page 238, 120 S.E. at page 516: "Whether we consider the arrest as made before the search or after the finding of the pistol, the result is the same. The officer had no information that the defendant had a pistol." The contraband evidence admitted in trial against Thomas to prove his guilt of the crime of breaking and entering was seized as a result of an unlawful arrest. It was not made admissible by the officers' faulty claim of "plain view" or "consent." In summary, an arrest cannot be justified by the fruits of an illegal search nor can a search be justified by what it produces. State v. Duvernoy, supra; State v. Massie, supra; Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). Thomas' appellate counsel also claims that his client was unquestionably prejudiced by the introduction of extensive evidence against him of unrelated crimes and 455 charges. The record demonstrates that an unusually voluminous amount of such evidence was introduced against the accused. It is a well-established common-law rule that in a criminal prosecution, proof which shows or tends to show that the accused is guilty of the commission of other crimes and offenses at other times, even though they are of the same nature as the one charged, is incompetent and inadmissible for the purpose of showing the commission of the particular crime charged, unless such other offenses are an element of or are legally connected with the offense for which the accused is on trial. State v. Hudson, 128 W.Va. 655, 37 S.E.2d 553, 163 A.L.R. 1265 (1946). The rationale for the general rule is that when a person is placed on trial for the commission of a particular crime he is to be convicted, if at all, on evidence showing his guilt of the specific offense charged in the indictment against him. The purpose of the rule is to forbid and prevent the conviction of an accused for one crime by the use of evidence that he has committed other crimes, and to preclude the inference that because he had committed other crimes previously, he was more liable to commit the crime for which he is presently indicted and being tried. It is said in 29 Am.Jur.2d, Evidence § 320 (1967): "This rule is one of the distinguishing features of our common-law jurisprudence, differing from that prevailing in civil law jurisdictions, and arises out of the fundamental demand for justice and fairness which lies at the basis of our jurisprudence." The difficulty with the application of the general rule is that there are a number of well-recognized exceptions to and limitations upon the general rule "Indeed, it has been said that there are so many exceptions to the rule that it is difficult to determine which is more extensivethe rule or its acknowledged exceptions." 29 Am. Jur.2d, Evidence § 321 (1967), citing Fairbanks v. United States, 96 U.S.App.D.C. 345, 226 F.2d 251 (1955). Concisely summarizing the exceptions, Rule 311 of the Model Code of Evidence, American Law Institute (1942) provides that: "Subject to Rule 306 (which relates to the admissibility of evidence concerning a person's character as tending to prove his conduct), evidence that a person committed a crime ... on a specified occasion is inadmissible as tending to prove that he committed a crime... on another occasion if, but only if, the evidence is relevant solely as tending to prove his disposition to commit such a crime ... or to commit crimes ... generally." The exceptions permitting evidence of collateral crimes and charges to be admissible against an accused are recognized as follows: the evidence is admissible if it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; and (5) the identity of the person charged with the commission of the crime on trial. People v. Molineaux, 168 N.Y. 264, 61 N.E. 286 (1901); State v. Hudson, supra; State v. Geene, 122 W.Va. 51, 7 S.E.2d 90 (1940). But proof of another distinct substantive crime is never admissible unless there is some legal connection between the two, upon which it can be said that one tends to establish the other or some essential fact in issue. State v. Adkins, 109 W. Va. 579, 155 S.E. 669 (1930). However, the mere fact that such evidence tends to prove that the accused committed other crimes does not render it inadmissible. State v. Hudson, supra. Such evidence will be considered strictly upon the ground of its relevancy to the purpose for which it is sought to be introduced. Ostensibly, if 456 it satisfies the legal requirements of the purposes recognized in the exceptions previously stated, the introduction of the evidence of the collateral crime is competent. The accused who takes the stand in his own defense shall be deemed to have waived his privilege of not giving evidence against himself only as to evidence as is relevant to the charge against him. State v. Simmons, 148 W.Va. 340, 135 S.E.2d 252 (1964). The specific problem occurs in this case not with the arguable admissibility of the evidence of collateral crimes and charges under one of the recognized exceptions, but rather, whether the prosecutor prejudiced the accused by the excessive employment or "shotgunning" of such evidence against the accused. This is a definite cause for concern in reviewing courts. See the caveat of Senior Circuit Judge Sobeloff: "A prudent prosecutor limits himself to what is needed to prove the charge in the indictment. In the process of proving the charge, other offenses may sometimes come to light incidentally, but when the prosecution devotes excessive trial time to this type of `background' material, it runs the risk of trespassing into the impermissible area and jeopardizing any resulting conviction." United States v. Mastrototaro, 455 F.2d 802, 804 (4th Cir. 1972). Certainly, the indiscriminate receipt of such evidence in volume and scope can predispose the minds of the jurors to believe the accused guilty of the specific crime by showing him guilty or charged with other crimes. Morover, the admissibility of the collateral crimes raises collateral issues which compel the defendant to meet charges of which the indictment gives him no information; which confuse his strategy of defense; and which raise such a variety of issues that the jury's attention is diverted from the charge immediately before it. This result, obviously prejudicial, is to be avoided by prompt objection on the part of the defense and close attention and control by the trial court to insure that an accused receives a fair trial when he is being subjected to zealous prosecution. The excessive zeal of the prosecutor in introducing evidence of collateral crimes can and has affected the accused's right to a fair trial. This Court recently spoke to this issue in the case of State v. McArdle, W.Va., 194 S.E.2d 174 (1973). Speaking through Justice Caplan, we held, as respects the method of introduction and scope of introduction of collateral crimes evidence, that its effect could definitely be prejudicial: "... Such practice constitutes a flagrant violation of the fundamental principles of fairness." Id., at Page 179 of the South Eastern Reporter. The control of the scope, latitude and method of introduction of arguably admissible evidence of collateral crimes and charges is, of course, vested in the trial court. Motions to introduce and motions and objections for exclusion are addressed to the sound discretion of the court. Again, the Model Code of Evidence, A.L.I., in Rule 303, sets forth the criteria for a trial court in the exercise of its discretion: "(1) The judge may in his discretion exclude evidence if he finds that its probative value is outweighed by the risk that its admission will . . . . . . "(b) create substantial danger of undue prejudice or of confusing the issues or of misleading the jury, or "(c) unfairly surprise a party who has not had reasonable ground to anticipate that such evidence would be offered." Likewise, the prosecution should be cognizant of the requirements of best evidence as respects the introduction of a conviction or charge of another crime for a purpose deemed relevant by the court. It is to be noted here that Thomas was confronted 457 with a barrage of questions relating to charges and convictions of former crimes, some while he was a juvenile and some while he was an adult, without any proof of those charges. He was compelled to respond by denial or by acknowledgment of the truth of the charges without being presented with documentary evidence demonstrating the criminal charges and convictions. See, Model Code of Evidence, id., Rules 517, 521, 601, 602, suggesting official documentary proof of criminal conduct. This Court believes these suggestions to be salutary and trusts their implementation will do much to protect an accused. The accused should be scrupulously protected in his right to a fair trial. Likewise, the State should be permitted to introduce evidence of collateral crimes and charges against the accused, if such evidence is demonstrably relevant and legally connected with the charge for which the accused is being tried. Were we to apply the rules of the foregoing discussion in regard to the admission of collateral crimes against an accused in trial, we would be disposed to say that the scope and latitude given the prosecutor in the introduction of evidence denied the defendant a fair trial. However, again we note, the defendant did not object to the method or extent of such evidence introduced against him. We are not of a mind to say that the trial court abused its discretion when its discretion was not questioned. It becomes obvious that this Court believes the appellant Thomas to have been convicted on the use and introduction of incompetent and unconstitutionally seized evidence which require a reversal on this appeal. We come full circle. Egregious errors are assigned on appeal and the record demonstrates that accused was convicted by incompetent evidence. The trial counsel appointed to defend the accused did not, however, bring these matters to the attention of the trial court at a time when error could have been prevented. As an appellate court, we are mindful that we are reviewing errors not ruled upon by the trial court. "The proceedings of the lower court are presumed to be regular, unless the contrary affirmatively appears upon the record, and objections taken for the first time in the appellate court will not be regarded in any matter of which the court had jurisdiction or which might have been remedied in the trial court if objected to there." 1B M.J., Appeal and Error § 103 (1967). (Emphasis supplied). West Virginia is firmly committed to this general rule and has only deviated from it on few occasions, and then only in extraordinary situations. Exceptions to the general rule can and do arise in proceedings involving deprivation of life or liberty. However characterized, all courts when confronted with a situation involving the fundamental personal rights of an individual, have considered unassigned errors, if meritorious and prejudicial, as jurisdictional, or have noticed them as "plain error." In either event, the rule is fashioned and applied to meet the ends of justice or to prevent the invasion of or denial of fundamental rights. 5 Am.Jur.2d, Appeal and Error §§ 548, 549 (1962); cf. State v. Cruikshank, 138 W. Va. 332, 76 S.E.2d 744 (1953), overruled on other grounds, State v. Bragg, supra. This Court is agreed that the fundamental error which occurred in this case was that the defendant was denied a fair trial. Why was he denied a fair trial? He did not receive the benefit of effective assistance of counsel. Trial counsel's derelictions were as follows: (1) failure to object to or move for the suppression of evidence seized incident to an unlawful arrest proscribed by Article III, Section 6 of the West Virginia Constitution, and the Fourth Amendment to the United States Constitution; (2) failure to object to the introduction of evidence of collateral crimes in a manner prejudicial to the accused; 458 (3) failure to move for a directed verdict at the close of the State's evidence; (4) failure to assign grounds in a motion to set aside the verdict and award the defendant a new trial; and, (5) failure to file an appeal on behalf of the defendant within the time limits prescribed by law. Additionally, defense counsel inadvertently corroborated the State's case and aided in securing his client's conviction by conducting a demonstration which proved that Thomas' shoe size matched the footprints found at the scene of the crime. These conclusions leap from the silent record and palpably demonstrate that defense counsel did not represent his client's best interest. Normally, the question of effective assistance of counsel is not reached on a direct appeal of a criminal case. Neither counsel nor his client assert his own counsel's ineffectiveness as being a prejudicial error requiring reversal or avoiding the results of the conviction. However, the case of State ex rel. West Virginia-Pittsburgh Coal Company v. Eno, 135 W.Va. 473, 63 S.E.2d 845 (1951), turned on the point of effective assistance of counsel and this Court reversed a conviction of one for criminal contempt because his counsel on appeal argued successfully that the trial court forced him to trial before he had adequate time to prepare the accused's defense. Other courts, however, have been presented with the precise questions involved in this case on direct appeal, and have found it necessary to void a criminal conviction based upon ineffective assistance of counsel. When counsel had entertained an erroneous notion of the law and consequently did not raise a defense, move to suppress evidence or call particular witnesses, the reviewing court reversed the judgment by reason of ineffective assistance. See, e. g., People v. McDowell, 69 Cal.2d 737, 73 Cal.Rptr. 1, 447 P.2d 97 (1968); People v. Wellborn, 257 Cal.App.2d 513, 65 Cal.Rptr. 8 (1968). In People v. Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487 (1963), counsel failed to challenge the illegality of a search which produced heroin because he was unaware of the rule of law which allowed him to do so. The California Supreme Court found that counsel's decision reflected not judgment but rather, unawareness of a rule of law basic to the case: "A rule that reasonable preparation would have revealed." Id., at page 466, 34 Cal.Rptr. at page 867, 386 P.2d at page 491. Accord, People v. Coffman, 2 Cal. App.3d 681, 82 Cal.Rptr. 782 (1969); In re Williams, 1 Cal.3d 168, 81 Cal.Rptr. 784, 460 P.2d 984 (1939); See also, United States ex rel. Williams v. Brierley, 291 F. Supp. 912 (E.D.Pa.1968), a habeas, which held ineffective assistance of counsel had been rendered when counsel failed to challenge the validity of a search and the introduction of the fruits of the search into evidence against the relator. As to the second point raised in the instant appeal, where counsel failed to challenge plainly inadmissible evidence used by the prosecution to impeach the accused testifying in his own behalf, the Court also found ineffective assistance and reversed. Poe v. United States, 233 F.Supp. 173 (D. C.D.C.1964). Although there have been numerous references to lack of effective assistance of counsel in cases before this Court, no ruling of this Court has voided a criminal conviction on the ground that counsel present, representing the accused at trial, was so ineffective so as to deprive the accused of a fair trial. The case of State ex rel. Favors v. Tucker, 143 W.Va. 130, 100 S. E.2d 411 (1957), cert. den., 357 U.S. 908, 78 S.Ct. 1153, 2 L.Ed.2d 1158 (1958), recognized that ineffective assistance of counsel could void the court's jurisdiction, but refused to take that action in that particular case for the reason that counsel was not conclusively proved to have been ineffective. There are reasons why this Court, or any appellate court, is, and should be, loath to void a conviction of an accused by reason of ineffective assistance of counsel. 459 First, we recognize and presume that trial counsel, appointed or retained, conscientiously seek, within the limits of preparation, ability, knowledge of the law, and skill at trial, to accomplish a successful result for his client. Secondly, as this Court has previously recognized, "a defendant... is not constitutionally guaranteed such assistance of counsel as will necessarily result in his acquittal." State ex rel. Owens v. King, 149 W.Va. 637, 640, 142 S.E.2d 880, 882 (1965). Third, aside from general statements regarding the subject, this Court has not been called upon to establish standards delineating the parameters of the constitutional right to effective assistance of counsel. Since the landmark case of State ex rel. May v. Boles, 149 W.Va. 155, 139 S.E.2d 177 (1964), decisions of this Court are legion on the point that the right to assistance of counsel is a fundamental right, essential to a fair trial. See, e. g., State ex rel. Hicklin v. Boles, 149 W.Va. 163, 139 S.E.2d 182 (1964); State ex rel. Stumbo v. Boles, 149 W.Va. 174, 139 S.E.2d 259 (1964); State ex rel. Browning v. Boles, 149 W.Va. 181, 139 S.E.2d 263 (1964); State ex rel. Arbraugh v. Boles, 149 W.Va. 193, 139 S.E.2d 370 (1964). Since Gideon, this Court has never wavered in according this basic right to an indigent accused or in voiding a trial and a conviction which occurred in the absence of counsel. But we have not defined the minimum standards of effective assistance. The historical test for judging the relative effectiveness of counsel's assistance is that to render a judgment in a criminal trial against an accused void, counsel's efforts must have been so inadequate as to render the trial a farce and a mockery of justice. See, e. g., Bell v. Alabama, 367 F.2d 243 (5th Cir. 1966), cert. den., 386 U. S. 916, 87 S.Ct. 859, 17 L.Ed.2d 788 (1967); Nutt v. United States, 335 F.2d 817 (10th Cir. 1964), cert. den., 379 U.S. 909, 85 S.Ct. 203, 13 L.Ed.2d 180 (1964); United States ex rel. Cooper v. Reincke, 333 F.2d 608 (2d Cir. 1964), cert. den., 379 U.S. 909, 85 S.Ct. 205, 13 L.Ed.2d 181 (1964); Frand v. United States, 301 F.2d 102 (10th Cir. 1962); Cofield v. United States, 263 F.2d 686 (9th Cir.) reversed per curiam, 360 U.S. 472, 79 S.Ct. 1430, 3 L.Ed.2d 1531 (1959); Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787, cert. den., 358 U.S. 850, 79 S.Ct. 81, 3 L. Ed.2d 86 (1948); Diggs v. Welch, 80 U.S. App.D.C. 5, 148 F.2d 667, cert. den., 325 U.S. 889, 65 S.Ct. 1576, 89 L.Ed. 2002 (1945). Recent decisions have approached the problem from a different aspect and have compared the questioned counsel's skills with those of one possessing normal customary skill and knowledge of the law. See, Kott v. Green, 303 F.Supp. 821, 822 (N.D.Ohio 1968). See generally, Finer, "Ineffective Assistance of Counsel," 58 Corn.L.Rev. 1077 (1973); Bines, "Remedying Ineffective Representation in Criminal Cases: Departures from Habeas Corpus," 59 Va.L.Rev. 927 (1973). This test, which has characteristics in common with the malpractice standard applied to physicians and other professions, has worth in that it provides the court with measurable indicia with which to judge and compare counsel's efforts. Using this general standard where, as often occurs, on close and arguable questions, a counsel's trial strategy results in detriment to his client rather than success, counsel's actions are to be held ineffective only if no reasonable attorney would have so acted under the circumstances of the case. Conversely, if the court determines there is any reasonable, tactical or strategic basis for counsel's conduct in the arguable situation, then such conduct is not considered ineffective. See, State v. White, 5 Wash.App. 283, 487 P.2d 243 (1971), reversed, 81 Wash.2d 223, 500 P.2d 1242 (1972); United States v. Garguilo, 324 F.2d 795 (2d Cir. 1963); Williams v. Beto, 354 F.2d 698 (5th Cir. 1965); In re Ernst, 294 F.2d 556 (3d Cir. 1961), cert. den., 368 U.S. 917, 82 S.Ct. 198, 7 L. Ed.2d 132 (1961); Snider v. Cunningham, 292 F.2d 683 (4th Cir. 1961); Bolden v. United States, 105 U.S.App.D.C. 259, 266 460 F.2d 460 (1959); Harris v. United States, 239 F.2d 612 (5th Cir. 1957); State v. Fulford, 290 Minn. 236, 187 N.W.2d 270 (1971). In the case of State ex rel. Burkhamer v. Adams, 143 W.Va. 557, 103 S.E.2d 777 (1958), this Court alluded to this standard in judging counsel's actions proper: "True, other attorneys may have, or may not have, pursued the same course of procedure followed by counsel. That, however, is no test.... It cannot be said with any degree of confidence that the manner of representation by counsel was not proper." Id., at pages 572-573, 103 S.E.2d at page 787, Given, J. One learned commentator urges persuasively that Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), guaranteed not only the timely and operative appointment of counsel, but also, the right to the assistance of counsel whose quality of performance does not fall below a certain minimum level. Waltz, "Inadequacy of Trial Defense Representation as a Ground of Postconviction Relief in Criminal Cases," 59 Nw.U.L.Rev. 289, 293-295 (1964). Subsequent cases bear out that conclusion. See White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348 (1945); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Chief Justice Burger goes further and persuasively argues that it is high time that the American legal system reformed itself. First, he says that the canons of legal ethics and the policy of the bar associations should be revised to recognize specialties of competence within the law. This is particularly true and required in a constitutional context as regards the representation of indigent defendants. Secondly, and perhaps every bit as important, the Chief Justice argues that these specialties, once recognized and once filled by persons certified as qualified by their professional colleagues, should be communicated to the public. This is needed so that those wishing to avail themselves of the high skills of our profession can do so with the assurance that they will receive the professional skills of an able criminal counsel when they seek criminal defense, rather than receive the equally skilled but useless services of a well-qualified trust, corporate or tax lawyer. See, Burger, The Special Skills of Advocacy: Are Specialized Training and Certification of Advocates Essential to Our System of Justice?, 27 Fordham L.Rev. 227 (1973). We believe this approach to be pragmatic and realistic and we cannot see how the profession would in any manner be denigrated or demeaned by a forthright recognition that some of our brethren are most skilled in a particular area of practice responsibility and to communicate this fact to the general public. Certainly this approach would tend to remove the justifiable fears of laymen who seek specialized legal services and indigents who receive the benefit of appointed counsel without the reasonable assurance of their particular qualifications. The layman-client's present recourse is to the bland and neutral listing of lawyers in alphabetical order under the appropriate classification in the yellow pages of the phone book. Pertinent to the present case, even with the best and conscientious effort of courts and counsel, the appointment of counsel to represent indigents in criminal matters is generally rotated among members of the entire bar, regardless of their practice specialty. The low remuneration, the varying numbers of attorneys available for appointment in the geographical area, and the lack of a public defender system in this jurisdiction present a problem of magnitude for the bench and bar of this State. With a concerned view of the problems, as well as the constitutional requirements, this Court cautiously suggests the following standards under which we will prospectively 461 judge the assistance of counsel effectiveness. In the determination of a claim that an accused was prejudiced by ineffective assistance of counsel violative of Article III, Section 14 of the West Virginia Constitution and the Sixth Amendment to the United States Constitution, courts should measure and compare the questioned counsel's performance by whether he exhibited the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law. There is an exception to the foregoing rule. If counsel's error, proven to have occurred, would not have changed the outcome of the case, it will be treated as harmless error. Code 1931, 58-1-2; State v. Bragg, supra. But where constitutional errors are involved, the United States Supreme Court has held that its test and not the test of the state controls in determining prejudice or the lack thereof. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L. Ed.2d 705 (1967); Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). The federal standard in regard to harmless constitutional error was held in Chapman to be that the conviction must fall unless it can be shown that the error was harmless beyond a reasonable doubt. In Fahy, it was stated almost as strongly: the conviction must be reversed unless there is no reasonable possibility that the violation contributed to the conviction. Where a counsel's performance, attacked as ineffective, arises from occurrences involving strategy, tactics and arguable courses of action, his conduct will be deemed effectively assistive of his client's interests, unless no reasonably qualified defense attorney would have so acted in the defense of an accused. As in habeas corpus proceedings, one who charges on appeal that his counsel at trial has been ineffective and that this ineffectiveness resulted in his conviction, must prove his allegation by a preponderance of the evidence. See, State ex rel. Scott v. Boles, 150 W.Va. 453, 147 S.E.2d 486 (1966). We adopt the above standards and caution that they are to be regarded as developmental and prospective in nature. We reiterate the previous recognition of this Court that a defendant is not constitutionally guaranteed such assistance of counsel as will necessarily result in his acquittal. State ex rel. Owens v. King, supra; State ex rel. Robison v. Boles, 149 W.Va. 516, 142 S.E.2d 55 (1965); State ex rel. Clark v. Adams, 144 W.Va. 771, 111 S.E.2d 336, cert. den., 363 U.S. 807, 80 S. Ct. 1242, 4 L.Ed.2d 1149 (1960); Ex parte Farmer, 123 W.Va. 304, 14 S.E.2d 910 (1941). Further, we do not, by the articulation of the above rules, invite frivolous habeas petitions or unfounded applications for writs of error. Judged by the foregoing standards, we reluctantly hold that the appellant's appointed trial counsel did not satisfy the requirements of Article III, Section 14 of the West Virginia Constitution, and the Sixth Amendment to the United States Constitution. We do so with no intended disparagement of the professional qualifications of trial counsel in the general practice of law. As we have previously held that a conviction of an indigent accused in the absence of assistance of counsel is void, see State ex rel. Mays v. Boles, supra; State ex rel. Widmyer v. Boles, 150 W.Va. 109, 144 S.E.2d 322 (1965); State ex rel. Curtis v. Boles, 150 W.Va. 79, 143 S.E.2d 824 (1965); State ex rel. Browning v. Boles, 149 W.Va. 181, 139 S.E.2d 263 (1964), we are logically directed to hold that a conviction of an indigent accused without the adequate assistance of counsel is also void. By reason of the ineffective assistance of counsel, the trial court lacked jurisdiction to enter a valid judgment against the defendant. *462 The judgment of the Circuit Court of Mercer County is reversed and this case is remanded to the Intermediate Court of Mercer County so that the appellant may be awarded a new trial. Reversed and remanded.	{ "pile_set_name": "FreeLaw" }
COURT OF APPEALS OF VIRGINIA Present: Judges Baker, Elder and Fitzpatrick ROBERT WARREN GORE MEMORANDUM OPINION * v. Record No. 2308-96-3 PER CURIAM MAY 20, 1997 SYLVIA SWAIN GORE FROM THE CIRCUIT COURT OF PATRICK COUNTY Charles M. Stone, Judge (Richard D. Rogers, Jr., on brief), for appellant. (Philip G. Gardner; Gardner, Gardner, Barrow & Sharpe, on brief), for appellee. Robert W. Gore (husband) appeals the final decree of divorce and equitable distribution entered by the circuit court. Husband contends that the trial court erred in (1) valuing the parties' retirement benefits, (2) awarding attorney's fees to Sylvia S. Gore (wife), (3) requiring husband to pay wife the value of a lost engagement ring, (4) awarding wife one-half the face value of savings bonds, and (5) awarding wife $375 in monthly spousal support. Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. Rule 5A:27. Pensions Husband contends that wife's expert erred in valuing his pension, that the present value calculation used post-separation * Pursuant to Code § 17-116.010 this opinion is not designated for publication. salary increases, that the marital share was erroneously calculated, and that the effect of Social Security payments upon his pension was not considered. We find these contentions to be without merit. While the court's final decree calculated the present value of husband's pension, the qualified domestic relations order (QDRO) which the court subsequently entered did not rely upon present value. That order calculated the marital share of husband's pension as a fraction of the total pension, based upon the parties' final separation date of February 1992. Specifically, the court awarded wife a pro rata portion of the marital share, defined as: one-half (1/2) of the fraction whose numerator is the number of months of federal, civilian and military service that [husband] . . . performed during the marriage and whose denominator is the total number of federal, civilian, and military service performed by the [husband]. . . . The court found the number of months of employment during the marriage equaled 192. The total number of months of employment will not be established until husband's retirement, based upon his employment starting date of May 12, 1976. Thus, while the court's final decree referred to a present value of husband's pension, the implementing QDRO did not rely upon the present value calculation. Therefore, husband's challenge to the discount rate assumption used by wife's expert in calculating the present value is moot. 2 Similarly, husband's contention that the present value calculation relied on the value of post-separation earnings is moot. Moreover, husband's argument that the calculation of the marital share cannot rely on any salary levels earned post-separation is incorrect. We rejected a similar argument in Banagan v. Banagan, 17 Va. App. 321, 324-26, 437 S.E.2d 229, 230-31 (1993). "It is only fair that both parties share in the increased value of the pension," or one will be "receiving the increase in value" over time which is attributable to the other's marital interest. Contrary to husband's view, such enhancement is clearly a part of the "total [pension] interest" component of the marital share equation and obviously distinguishable from a judicial award of interest on a deferred share of a pension. Id. at 325-26, 437 S.E.2d at 231 (citations omitted). Husband also contends that the number of years of retirement benefits earned during the marriage was fourteen, rather than thirty. The QDRO in fact awarded wife benefits based on a total of 192 months, or sixteen years. As this calculation was supported by the evidence, husband has not demonstrated error. Finally, the court's award to wife of a portion of the marital share complied with the provisions of Code § 20-107.3(G). Husband's contention that the court failed to consider possible reductions in his pension due to Social Security payments is, at best, based on speculation. Husband has not established reversible error. 3 Attorney's Fees An award of attorney's fees is a matter submitted to the sound discretion of the trial court and is reviewable on appeal only for an abuse of discretion. Graves v. Graves, 4 Va. App. 326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper award of counsel fees is reasonableness under all the circumstances. McGinnis v. McGinnis, 1 Va. App. 272, 277, 338 S.E.2d 159, 162 (1985). The trial court ruled that "most of [wife's attorney's fees] are directly attributable to the recalcitrance of the [husband] in honoring court orders and providing meaningful and forthcoming discovery." The court's letter opinion, dated January 10, 1996, noted that husband failed to furnish to wife "his equitable distribution schedules on or before November 10." Wife testified to the delays caused by husband's lack of cooperation. Based on the number of issues involved, husband's lack of cooperation with discovery, and the parties' respective abilities to pay, we cannot say that the award was unreasonable or that the trial judge abused his discretion in awarding wife $13,500. Engagement Ring The trial court found more credible wife's testimony that husband removed an engagement ring, valued at $4,500, from the parties' safe deposit box. The ring was given to wife by husband's family, but the parties agreed the ring was wife's 4 separate property. Wife testified that the ring was kept in the safe deposit box to which both parties had keys. When she checked the safe deposit box, she discovered that all of husband's items were gone and the ring box was empty. Husband admitted he had a key to the box, but testified that he had not been in the box for "years" and that he had no idea that the ring wasn't there. The evidence was presented by depositions and exhibits. "A decree based on testimony in deposition form, while presumed to be correct, is not given the same weight as one where the evidence is heard ore tenus by the chancellor." Moore v. Moore, 212 Va. 153, 155, 183 S.E.2d 172, 174 (1971). Nonetheless, "'[o]n the testimony in deposition form, the decree is presumed to be correct and should not be disturbed for lack of proof if the controlling factual conclusions reached are sustained by a fair preponderance of the evidence.'" Nash v. Nash, 200 Va. 890, 898-99, 108 S.E.2d 350, 356 (1959) (citations omitted). Because credible evidence supports the trial court's finding, we affirm its decree requiring husband to pay the value of the engagement ring to wife. Savings Bonds The savings bonds earmarked for the education of the parties' son were accumulated during the marriage and were properly classified as marital property. Code § 20-107.3(A)(2). In his deposition, husband conceded that the savings bonds did 5 not belong to his son. Furthermore, the court noted that husband failed to present evidence supporting his claim that the bonds were worth less than their $31,200 face value. We find no error in the trial court's classification or valuation of the bonds. Spousal Support Without citation to authority or evidence in the record, husband contends that wife's alleged extravagance decreased the value of the marital estate and, as a result, the trial court erred in awarding her spousal support. "Statements unsupported by argument, authority, or citations to the record do not merit appellate consideration. We will not search the record for errors in order to interpret the appellant's contention and correct deficiencies in a brief." Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992). Therefore, we do not consider this alleged error. Accordingly, the decision of the circuit court is summarily affirmed. Affirmed. 6	{ "pile_set_name": "FreeLaw" }
16-1753 Singh v. Sessions BIA Christensen, IJ A200 939 212 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 30th day of May, two thousand eighteen. PRESENT: REENA RAGGI, DENNY CHIN, CHRISTOPHER F. DRONEY, Circuit Judges. _____________________________________ DAVINDER SINGH, Petitioner, v. 16-1753 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Adrian Spirollari, Brooklyn, N.Y. FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; John S. Hogan, Assistant Director; Matthew A. Spurlock, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C. UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED. Petitioner Davinder Singh, a native and citizen of India, seeks review of a May 4, 2016 decision of the BIA affirming a January 12, 2015 decision of an Immigration Judge (“IJ”) denying Singh’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Davinder Singh, No. A200 939 212 (B.I.A. May 4, 2016), aff’g No. A200 939 212 (Immig. Ct. N.Y.C. Jan. 12, 2015). Under the circumstances of this case, we review both the IJ’s and the BIA’s decisions, see Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006), applying well-established standards of review, see 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165- 66 (2d Cir. 2008). In so doing, we assume familiarity with the underlying facts and procedural history of this case, which we reference only as necessary to explain our decision to deny the petition. Under the REAL ID Act of 2005, the agency may, “[c]onsidering the totality of the circumstances,” base an 2 adverse credibility finding upon an asylum applicant’s “demeanor, candor, or responsiveness” and inconsistencies in his statements, without regard to whether those inconsistencies go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia Lin v. Mukasey, 534 F.3d at 163-64. “We defer . . . to an IJ’s credibility determination unless . . . it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d at 167. Thus, in challenging an IJ’s credibility determination, “[a] petitioner must do more than offer a plausible explanation for his inconsistent statements to secure relief; he must demonstrate that a reasonable fact-finder would be compelled to credit his testimony.” Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (emphasis in original) (internal quotation marks omitted). For the reasons that follow, we conclude that Singh has not made that showing and that substantial evidence supports the agency’s determination that Singh was not credible. First, the agency’s reliance on Singh’s credible fear interview was appropriate. A credible fear interview warrants “close examination” because it may “be perceived as coercive” by the alien or fail to “elicit all of the details 3 supporting an asylum claim.” Ming Zhang v. Holder, 585 F.3d 715, 724 (2d Cir. 2009). But “[w]here the record of a credible fear interview displays the hallmarks of reliability, it appropriately can be considered in assessing an alien’s credibility.” Id. at 725. Some “hallmarks of reliability” are that the interview questions and answers were memorialized, the interview was conducted through an interpreter, and the questions were designed to elicit a possible asylum claim. Id. These indicia of reliability are present here: the record reflects the questions asked and answers given; the interview was conducted through a Punjabi interpreter; the questions of whether Singh had been harmed and what would happen to him on return were designed to elicit an asylum claim; and there is no indication that Singh was reluctant to reveal information because he recounted in detail his fear of a rival political party. Although Singh contends that the credible fear interview was unreliable because the interviewer did not read the record back to him, Singh concedes that he intentionally omitted reference to his prior police arrests during the interview. A review of his interview account therefore would not have resulted in a more thorough record. Accordingly, the agency appropriately 4 considered Singh’s credible fear interview in assessing his credibility. Second, the agency reasonably relied on the discrepancy between Singh’s credible fear interview and his asylum application in making the adverse credibility determination. At his credible fear interview, Singh stated that he was attacked by members of a rival political party, but his asylum application states that he was arrested and beaten by the Indian police. Singh’s explanation that a smuggler advised him to avoid mentioning his fear of the police does not compel a contrary result, because it was reasonable for the IJ to conclude that Singh had changed his story to bolster his claim. See Majidi v. Gonzales, 430 F.3d at 80-81. Singh now attributes his differing accounts to the credible-fear interviewer, claiming that the interviewer asked him a compound question—whether he had been arrested or convicted— that made his answer of “no” ambiguous. This argument misses the mark, however, because it does not resolve the inconsistency between Singh’s claim that he was attacked by political rivals and his claim that he was arrested and beaten by the police. The adverse credibility determination is further supported by the inconsistencies between Singh’s testimony 5 and the letters he submitted from fellow members of the Shiromani Akali Dal Amritsar (“SADA”). Singh testified that he was arrested and detained in India and that SADA was aware of his arrests. While the letters express general concern about encounters with the police by party members, they make no mention of Singh’s own arrests. The IJ reasonably relied on this omission. Xiu Xia Lin v. Mukasey, 534 F.3d at 167 (upholding agency decision that rested on omissions from letters). Finally, the agency reasonably determined that Singh’s corroborating evidence did not rehabilitate his credibility. An applicant’s failure to corroborate testimony may bear on credibility “because the absence of corroboration in general makes an applicant unable to rehabilitate testimony that has already been called into question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). Given that Singh’s credibility was already in question, the agency reasonably afforded diminished weight to Singh’s letters from his father, wife, and head of his village in India because the authors were unavailable for cross examination and his father and wife were interested parties. See Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (deferring to agency’s determination that letter from relative in China was entitled 6 to limited weight because it was unsworn and submitted by an interested witness). Additionally, the agency reasonably gave diminished weight to medical records that Singh submitted, which were prepared years after Singh received treatment. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (explaining that weight accorded to applicant’s evidence “lies largely within the discretion of the IJ” (internal alteration and quotation marks omitted)). Given the inconsistencies in Singh’s account and the lack of reliable or consistent corroboration, the totality of the circumstances supports the agency’s adverse credibility determination. See Xiu Xia Lin v. Mukasey, 534 F.3d at 165- 67. The credibility finding is dispositive of asylum, withholding of removal, and CAT relief because all three forms of relief were based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-67 (2d Cir. 2006). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of 7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court 8	{ "pile_set_name": "FreeLaw" }
991 So.2d 873 (2008) GUZMAN v. STATE. No. 5D07-4414. District Court of Appeal of Florida, Fifth District. September 29, 2008. Decision without published opinion. Affirmed.	{ "pile_set_name": "FreeLaw" }
T.C. Memo. 1996-43 UNITED STATES TAX COURT CRAIG E. AND DEBBIE A. BROWN, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 6830-94. Filed February 6, 1996. Craig E. and Debbie A. Brown, pro se. Andrew Lee, for respondent. MEMORANDUM OPINION NAMEROFF, Special Trial Judge: This case was heard pursuant to the provisions of section 7443A(b)(3) and Rules 180, 181, and 182.1 Respondent determined a deficiency in petitioners' 1989 Federal income tax return in the amount of $5,073, plus an accuracy-related penalty under section 6662(a) in the amount of $1,014. 1 All section references are to the Internal Revenue Code in effect for the year at issue. All Rule references are to the Tax Court Rules of Practice and Procedure. - 2 - The issues for decision in this case are: (1) Whether petitioners, are entitled to a charitable contribution deduction in excess of the amount allowed by respondent, (2) whether petitioners are entitled to a child care credit, (3) whether petitioners are entitled to additional deductions in connection with their Schedule C computer consulting activity, (4) whether petitioners are entitled to deductions in connection with a Schedule C business activity not claimed on the original return, and (5) whether petitioners are liable for the accuracy-related penalty. Some of the facts have been stipulated and are so found. The stipulation of facts and the supplemental stipulation of facts are incorporated herein by this reference. Petitioners resided in Lomita, California, at the time of the filing of their petition. During the year at issue, petitioner Debbie A. Brown was employed by Maxicare, a health provider. Petitioner Craig E. Brown (petitioner) was self-employed as a computer consultant. Petitioners have three children. In 1989, Gabriel was 11, Yulanda was 8, and Miranda was 4. Gabriel and Yulanda attended school from 8 a.m. until 2:30 p.m. Miranda attended either Van Ness Nursery School or Pacific Coast Preschool from 8 a.m. until 6 p.m. In 1989, petitioner paid Ruth Mayen, a housekeeper who resided in the home Monday through Friday, to take care of the - 3 - children before and after school, drive the children to school, and clean the house. Petitioner is a member of Christ Holy Sanctified Church (CHSC). Petitioner's father, Eugene Brown, is the pastor of CHSC. In 1989, petitioner was assigned the position of minister of music by the CHSC board of elders. In this position, petitioner organized choirs, played music, and performed other music-related functions. Petitioner was not an employee of CHSC and did not receive a salary from CHSC. In addition to his CHSC music ministry, petitioner played music and organized choirs for other churches and organizations, conferences, weddings, and funerals. A tenet of CASC is tithing; i.e., contributing 10 percent of one's income to the church. To set an example for the congregation, CASC leaders often contribute a greater amount to the church. In addition to tithes, CASC also collects donations for the building fund, visiting minister's fund, the Federated Church, and Greater Good News United Fellowship. In 1989, petitioner made contributions to CASC by cash and check. Petitioner has been a member of the Pentecostal Heritage (PH) since 1982. PH is a nonprofit organization founded to restore a house originally built by PH in 1906. PH asks its members to contribute $120 per year, plus extra amounts at special events. In addition, PH members volunteer their time to assist in the restoration of the house. Petitioner organized - 4 - choirs, conducted rehearsals, selected music, and located instruments for musical performances for PH. In addition, petitioner assisted with the cleaning, painting, and plumbing for PH. Petitioner did not receive a salary or other compensation from PH. In 1989, petitioner formed a joint venture with Art Glass, who was also the chairman of PH, to develop software and a computer system for churches. In theory, this computer system would allow the pastor to select and play music at the touch of a button from the pulpit. In addition, they intended to develop financial and record-keeping software for churches. Petitioner and Mr. Glass planned to sell the software, music, and computer to interested churches. Mr. Glass offered testimony about various activities of the joint venture, but was uncertain as to whether they occurred in 1989 or 1990. According to his testimony, he and petitioner made several trips to a recording studio in Ontario, California, to record various instruments such as the piano, organ, and drum to use in developing the computer software. Mr. Glass also testified that he and petitioner attended a music conference in Philadelphia, Pennsylvania, to observe trends and changes in black church music. In addition, Mr. Glass testified that he and petitioner attended several computer shows to see the latest computer technology and to locate a specific organ sound for their computer system. - 5 - Petitioner and Mr. Glass made one demonstration of the record-keeping software to a woman who was the owner of a small business; however, the date of this demonstration is unknown. No records of the joint venture were produced, no testimony was elicited as to an amount of any specific expenditure, and Mr. Glass indicated that petitioner did not contribute any funds to the joint venture. Petitioners filed their 1989 Federal income tax return (the original return) on or before April 15, 1990. The original return was prepared by the accounting firm of Williams & Tucker. On the Schedule C attached to the return, petitioner reported gross income from his computer consulting activity in the amount of $81,817 and claimed the following expenses: Expense Amount claimed Car and truck $3,390 Rent/lease of business equipment 50 Supplies 138 Travel 1,562 Meals and entertainment 140 Utilities 432 Education 1,824 Bank charges 153 Laundry 520 Temporary help 2,525 Home office 1,253 11,987 On that return, petitioners claimed a charitable contribution deduction in the amount of $18,151 on Schedule A and a child care credit in the amount of $960. - 6 - Thereafter, petitioner met Sam Morris (Morris), a Las Vegas accountant, at a conference in Los Angeles, California. In response to questions by Morris, petitioner explained his business and the types of expenses he incurred. Morris offered to review petitioners' returns to see whether petitioner could take advantage of certain deductions. Petitioner checked Morris' references and found nothing unusual. Sometime in 1991, petitioner sent a 30-pound box by Federal Express to Morris' office in Las Vegas, Nevada. Petitioner kept no receipt or list of the documents contained in the box, but he believes the box contained all of his tax records for 1988 through 1991, including credit card statements, bank statements, receipts, copies of prior tax returns, and his daily log for those years. Morris prepared, and petitioners signed and filed, a Form 1040X (the amended return) for taxable year 1989. When Morris presented petitioner with the amended return, petitioner did not review it in depth prior to signing and filing it. Respondent received the amended return on April 3, 1992. On the Schedule C for the computer consulting activity attached to the amended return, petitioner reported gross receipts in the amount of $75,312 and claimed the following expenses: Expense Amount claimed Car and truck $3,390 Depreciation 3,591 Insurance 1,412 Other interest 3,277 Legal/professional 1,301 Rent/lease machinery and equipment 50 - 7 - Rent/lease other business property 5,560 Repairs 4,213 Supplies 138 Travel 1,562 Meals and entertainment 940 Utilities 2,104 Wages 15,100 Software 5,755 48,393 A second Schedule C was attached to the amended return for an activity described as Minister of Music. On this Schedule C petitioner reported gross receipts of $6,505,2 and claimed the following expenses: Expense Amount claimed Car and truck $1,513 Commissions 16,638 Depreciation 792 Office expense 711 Rent or lease other business equipment 1,174 Supplies 2,808 Taxes 537 Travel 4,994 Meals and entertainment 1,208 Postage, telephone, special robes seminars, promotions, dues and publications, licenses and fees 14,560 44,935 The amended return did not include a Schedule A, and no charitable contribution deduction was claimed thereon. On February 11, 1994, a notice of deficiency was issued to petitioners based upon the original return. Respondent therein 2 The $6,505 represents income from petitioner-'s computer consulting activity, and the total income reported on the two Schedules C equals the gross income reported on the Schedule C attached to the original return. - 8 - disallowed the claimed charitable contribution deduction3 and child care credit. Respondent did not process the amended return, and it was not considered at the time respondent prepared the notice of deficiency. Sometime in 1991 or 1992, the Criminal Investigation Division of the Internal Revenue Service (IRS) began an investigation of Morris. On March 27, 1992, a search warrant was issued authorizing a search of Morris' office for various items. Pursuant to the search warrant, investigators were authorized to seize, among other things, Federal income tax returns or amended returns for the years 1989, 1990, and 1991 which included Schedule A itemized deductions or Schedule C business losses; amended Federal income tax returns for 1990, 1991, and 1992; and client lists or other records identifying clients. The search warrant was executed on March 30, 1992. The return on the search warrant reflects that 84 boxes of documents were seized, including 3 boxes which contained information related to petitioners. These boxes were identified as "Brown, Craig--Tax records and return", "Craig & Debbie Brown financial records", and "Amended return, Brown". Subsequently, Special Agent Steven Boyd returned to petitioners all of their identified documents which were seized pursuant to the execution of the search warrant. 3 The remaining itemized deductions were less than the standard deduction, so respondent disallowed them and allowed petitioners the standard deduction. - 9 - None of those returned documents allegedly pertained to 1989. Discussion We begin by noting that, as a general rule, the Commissioner's determinations are presumed correct and that the taxpayer bears the burden of proving that those determinations are erroneous. Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933). Moreover, deductions are a matter of legislative grace, and the taxpayer bears the burden of proving that he or she is entitled to any deduction or credit claimed. Rule 142(a); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934). This includes the burden of substantiation. Hradeskv v. Commissioner, 65 T.C. 87, 90 (1975), affd. per curiam 540 F.2d 821 (5th Cir. 1976). A taxpayer's failure to produce his records does not relieve him of this burden of proof. Estate of Mason v. Commissioner, 64 T.C. 651 (1975), affd. 566 F.2d 2 (6th Cir. 1977). Petitioners contend that they are unable to substantiate the claimed deductions and child care credit because all of their 1989 tax records were seized, and subsequently lost, by the IRS. In effect, petitioners argue that they should be relieved of their burden of substantiating the deductions and credit. There is no authority for placing the burden of proof on respondent in the present situation. As we stated in American Police & Fire Found., Inc. v. Commissioner, 81 T.C. 699, 706 (1983): "Petitioner's burden of going forward with the evidence - 10 - does not shift merely because his records are unintentionally lost, whether by petitioner, [or] the Government * * . Instead, the type of evidence that may be offered to establish a fact is altered." The loss of tax records does not leave a taxpayer helpless in meeting his substantiation burden. In general, when a taxpayer's records have been lost or destroyed through circumstances beyond his control, he is entitled to substantiate the deductions by reconstructing his expenditures through other credible evidence. American Police & Fire Found., Inc. v. Commissioner, supra; Malinowski v. Commissioner, 71 T.C. 1120, 1125 (1979); Cook v. Commissioner, T.C. Memo. 1991-590. Pursuant to a search warrant, special agents of the IRS were authorized to search Morris' offices and to seize certain records. Consequently, some of petitioners' records were seized by the IRS, although it is unclear whether, and to what extent the seized documents included petitioners' 1989 tax records. Apparently, Morris' office was extremely disorganized, and several boxes and file cabinets containing records were not seized. However, there is no information as to whether petitioners' 1989 tax records were left in Morris' office. Based on the record, we find that petitioner mailed his tax records from 1988 through 1991 to Morris, some of those records were seized pursuant to the execution of a search warrant, all seized records identified as belonging to petitioners were returned to - 11 - them, and petitioners no longer have any 1989 records. Thus, all we can conclude is that petitioners' 1989 original tax records are not now available. However, petitioners still bear the burden of- substantiating the claimed deductions and credit. To do so, petitioners may present secondary evidence. Petitioner contends that he cannot reconstruct his records because the cost to duplicate his records is prohibitive. However, the cost to duplicate petitioner's records, which may substantiate the deductions and credit, does not relieve petitioner of his burden of proof. We will now first consider the issues raised by respondent's determination in the notice of deficiency. Charitable Contribution Deduction Petitioners claimed a charitable contribution deduction in the amount of $18,151 on the original return. In the notice of deficiency respondent disallowed the entire amount, but respondent conceded on brief that petitioners made charitable contributions to CHSC in the amount of $2,657, which were substantiated by copies of their check carbons.4 Section 170 allows a deduction for charitable contributions made within the taxable year. Sec. 170(a). For charitable 4 It has not been satisfactorily explained how petitioners have copies of their 1989 check carbons, nor why such evidence is not available for the substantiation of the other items in dispute herein. - 12 - contributions of cash, a taxpayer shall maintain for each contribution a canceled check or receipt from the donee indicating the name of the donee, the date of the contribution, and the amount of the contribution, or in the absence of a check or receipt from the donee, reliable written records showing the name of the donee, the date of the contribution, and the amount of the contribution. Sec. 1.170A-13(a)(1), Income Tax Regs. Petitioner testified that he made cash and check contributions to CASC and that he believed in tithing. Eugene Brown testified that petitioner made contributions to CASC, but could not testify as to specific dates or amounts. However, he did testify that the church maintained records pertaining to contributions, that he did not bring those records to the trial, and that petitioner did not request him to do so. Petitioner attempted to remedy this lack of evidence by attaching to his reply brief several documents purporting to verify his charitable contributions to CASC. Evidence must be submitted at trial. Documents attached to briefs and statements made therein do not constitute evidence and will not be considered by the Court. Rule 143(b); Evans v. Commissioner, 48 T.C. 704, 709 (1967), affd. per curiam 413 F.2d 1047 (9th Cir. 1969); Lombard v. Commissioner, T.C. Memo. 1994-154, affd. without published opinion 57 F.3d 1066 (4th Cir. 1995); Pauli v. Commissioner, T.C. Memo. 1984-591. According to the testimony of Art Glass, PH members are requested to donate $120 per year. Petitioner presented no - 13 - receipts or canceled checks from PH for any contributions made by him. Mr. Glass testified that PH maintained records of contributions and that petitioner did not request Mr. Glass to bring those records to trial. Petitioner's testimony, as well as the testimony of Eugene Brown and Art Glass, as to petitioner's general giving patterns is not sufficient to substantiate petitioner's charitable contributions. In addition, petitioner's argument on brief that the 1990 check carbons, which were submitted as evidence, are representative of his giving patterns is not sufficient to substantiate petitioner's charitable contributions for 1989. Petitioner presented no receipts, canceled checks, or written records to substantiate the claimed deduction. We note that written records of contributions were maintained by CASC and PH; however, petitioner failed to present those documents. Accordingly, petitioner is not entitled to a charitable contribution deduction in excess of the amount previously allowed by respondent. Child Care Credit According to Form 2441, Child Care and Dependent Expenses, petitioner paid $9,620 to Ruth Mayen and $840 to Pacific Coast for child care services. Petitioner testified that he also paid Van Ness Nursery School for child care services. Section 21(a) generally provides an allowance for a credit against tax of any individual who maintains a household which - 14 - includes one or more qualifying individuals. The amount of the credit is equal to the applicable percentage of the employment- related expenses paid by the individual. Sec. 21(a). The term "qualifying individual" under section 21(b) includes a dependent of the taxpayer under age 13 with respect to whom the taxpayer is entitled to a dependency deduction under section 151(c). The allowable credit, under section 21(b)(2), generally is based upon employment-related expenses that are incurred to enable the taxpayer to be gainfully employed. The term "employment-related expense" includes expenses for household services and expenses for the care of a qualifying individual. Sec. 21(b)(2)(A). Employment-related expenses are explained in section 1.44A- 1(c)(2), Income Tax Regs. Sec. 1.44A-1(c). Employment-related expenses-- (2) Household services. Expenses are considered to be paid for household services if they are paid for the performance in and about the taxpayer's home of ordinary and usual services necessary to the maintenance of the household. However, expenses are not considered as paid for household services unless the expenses are attributable in part to the care of the qualifying individual. Thus, amounts paid for the services of a domestic maid or cook are considered to be expenses paid for household services if a part of those services is provided to the qualifying individual. * * The term "household services" includes both cleaning and cooking, probably the two services most commonly thought of as household services. Small v. Commissioner, 60 TC 719, 727 (1973), affd. without published opinion (75-2 USMC par. 9512, 10th Cir. October 9, 1974, 35,AFTR 2d 75-1383); sec. 1.44A-1(c)(7), Example (3), - 15 - Income Tax Regs. Respondent contends that petitioners are not entitled to the credit because Ruth Mayen provided housekeeping services. According to petitioner's testimony, Ruth Mayen was primarily hired to care for Gabriel and Yulanda, although she did provide housekeeping services. We find that a part of Ruth Mayen's housekeeping services included the care of Gabriel and Yulanda. Unfortunately, petitioner presented very little documentation and testimony as to the amounts paid Pacific Coast Preschool, Van Ness Nursery, and Ruth Mayen.5 However, the Court is satisfied that some amount was expended by petitioners for the care of Gabriel, Yulanda, and Miranda. Based on the record and using our best judgment under Cohan v. Commissioner, 39 F.2d 540 (2d Cir. 1930), the Court estimates that child care expenses paid by petitioners to Pacific Coast Preschool and Van Ness Nursery were $840 for 1989. Further, the Court estimates that the child care expense paid by petitioners to Ruth Mayen was $2,000 for 1989. Thus, petitioners are allowed a child care credit based upon these amounts. Schedule C Activities 5 Petitioner did present cancelled checks payable to Pacific Coast in the amount of $198 and Van Ness in the amount of $196.50. In addition, petitioners made statements in their reply brief as to the amount paid to Ruth Mayen for child care services. However, statements in briefs do not constitute evidence and will not be considered by the Court. - 16 - We now consider the claims of petitioners as set forth in the amended return; viz, additional expenses for the computer consulting activity and expenses pertaining to the minister of music activity. In short, we must reject these claims because petitioner has utterly failed to (1) substantiate that he had any expenses related to his computer consulting activity in excess of those claimed on the original return ($11,987);6 (2) that the music activity was one engaged in for profit7 or that he incurred any deductible expenses in carrying on such activity; or (3) that the joint venture with Mr. Glass went beyond the preopening stage8 or that he made any monetary contribution thereto. 6 In fact, when questioned about many of the deductions, petitioner did not know the nature of the expenses claimed nor how Morris arrived at the figures on the amended return. 7 To be engaged in a trade or business within the meaning of sec. 162, "the taxpayer must be involved in the activity with continuity and regularity and * * * the taxpayer's primary purpose for engaging in the activity must be for income or profit." Commissioner v. Groetzinger, 480 U.S. 23, 35 (1987). Petitioner did not receive, nor did he expect to receive, any compensation from CHSC, PH, or any other church organization for his music activity, except perhaps for an occasional reimbursement of expense. 8 In order to be currently deductible, the expenses must have been incurred after the taxpayer's trade or business actually commenced; expenses incurred prior to such time are nondeductible preopening expenses. Jackson v. Commissioner, 864 F.2d 1521, 1525-1526 (10th Cir. 1989), affg. 86 T.C. 492 (1986); Goodwin v. Commissioner, 75 T.C. 424, 433 (1980); affd. without published opinion 691 F.2d 490 (3d Cir. 1982); McManus v. Commissioner, T.C. Memo. 1987-457, affd. without published opinion 865 F.2d 255 (4th Cir. 1988). Thus, "carrying on any trade or business." requires a showing of more than initial research into business potential and solicitation of potential customers or clients. (continued...) - 17 - Therefore, we are unable to allow petitioners any deductions in this regard. Accuracy-related Penalty Respondent determined that petitioners were liable for an accuracy-related penalty under section 6662(a) for negligence or intentional disregard of rules or regulations. Petitioners' original return was prepared by Williams & Tucker. Petitioner did not offer any testimony with regard to the information he provided Williams & Tucker prior to the preparation of the original return. Inasmuch as the deficiency herein derives from the original return, we will not consider the amended return in this regard.9 Pursuant to section 6662(a), if any portion of an underpayment of tax is due to negligence or intentional disregard of rules or regulations, the taxpayer is liable for an amount equal to 20 percent of the portion of the underpayment attributable to such negligence or intentional disregard of the 8 (...continued) Dean v. Commissioner, 56 T.C. 895, 902 (1971); Ping v. Commissioner, T.C. Memo. 1987-28; Goldman v. Commissioner, T.C. Memo. 1975-138. The activities must be currently engaged in for profit. Industrial Research Prods., Inc. v. Commissioner, 40 T.C. 578, 590 (1963). 9 We note, however, that according to petitioner's testimony, he provided Morris with all of his tax 1989 records, but he did not review the amended return in depth before he signed and filed it. Had he done so, he would have observed a Schedule C for the minister of music activity reflecting gross income which was clearly inaccurate. - 18 - rules or regulations. Negligence is defined as the failure to do what a reasonable and ordinarily prudent person would do under the circumstances. Needy v. Commissioner, 85 T.C. 934, 947 (1985). Petitioner has the burden of proof on this issue. Bilby v. Commissioner, 58 T.C. 757, 791 (1972). If a taxpayer relies in good faith upon the advice of a competent and experienced accountant in the preparation of the taxpayer's return, the addition to tax for negligence or the intentional disregard of rules or regulations is not applicable. Sec. 6664(c); WAIS v. Commissioner, 94 T.C. 473, 487 (1990). To show good faith reliance, the taxpayer must show that the return preparer was supplied with all the necessary information and the incorrect return was a result of the preparer's mistakes. Pepsin v. Commissioner, 59 T.C. 473, 489 (1972). We cannot conclude, based solely on petitioner's testimony, that petitioner provided Williams & Tucker with all the necessary information and substantiating records to prepare an accurate return. Accordingly, we hold that petitioners are liable for the penalty under section 6662(a). To reflect the resolutions of the issues set forth above. Decision will be entered under Rule 155.	{ "pile_set_name": "FreeLaw" }
579 S.E.2d 833 (2003) 260 Ga. App. 407 HICKS v. DOORS BY MIKE, INC. No. A03A0360. Court of Appeals of Georgia. March 19, 2003. 834 Miller & Markle, Eric D. Miller, Atlanta, for appellant. Robert H. Stansfield, Covington, for appellee. BLACKBURN, Presiding Judge. This case involves the enforceability of a noncompetition and nonsolicitation agreement (the "Agreement") entered into by Kenneth L. Hicks and Doors by Mike, Inc. ("Doors by Mike") in conjunction with the sale of Hicks's business to Doors by Mike. The trial court granted Doors by Mike interlocutory injunctive relief against Hicks, and Hicks appeals, arguing that: (1) the Agreement is vague, ambiguous, and an illegal restraint on trade; and (2) even if the Agreement is enforceable, Doors by Mike failed to offer sufficient evidence that Hicks was in violation of the terms of the Agreement. For the reasons set forth below, we affirm. "[T]he sole purpose for granting interlocutory injunctions is to preserve the status quo of the parties pending a final adjudication of the case." MARTA v. Wallace.[1] "The trial court has broad discretion to decide whether to grant or deny a request for an interlocutory injunction, and the appellate courts will not disturb the trial court's exercise of its discretion unless a manifest abuse of discretion is shown or there was no evidence on which to base the ruling." (Citations omitted.) Chambers v. Peach County.[2] Hicks and his partner, Dennis Hulsey, owned and operated Residential Gutter Services, a business which sold and installed residential gutters. Doors by Mike purchased the business assets of Residential Gutter Services on October 12, 2001, for $185,000. In conjunction with the sale of the business, Hicks signed a noncompetition and nonsolicitation agreement. Under the terms of the nonsolicitation agreement, Hicks agreed that for a period of five years following the sale of his business to Doors by Mike, he would not 835 directly or indirectly, consult for, provide financial services or financing for, own stock in, engage in sales or marketing for or manage any other firm, company, business, or other business entity which sells or provides the Products that compete or will compete with the Company in the provision of the Products ("Competing Business") within a FIFTY (50) mile radius of Conyers, Georgia ("Territory"). Hicks also agreed that within the same time period and territorial limits, he would not "own, possess or hold, directly or indirectly, any legal, beneficial or financial interest in any Competing Business in the Territory or provide management, financial or consulting services to any Competing Business in the Territory through any other" entity. Under the terms of the nonsolicitation agreement, Hicks agreed that for a five-year period following the sale of his business to Doors by Mike, he would not, on his own behalf or on behalf of another, solicit, contact, call upon, communicate with or attempt to communicate with any customer or prospect of Company, or any representative of any customer or prospect of Company, with a view to sell or provide any product, equipment or service competitive or potentially competitive with the Products and Services of the Company, provided that the restrictions set forth in this section shall apply only to customers or prospects of the Company, or representative of customers or prospects of Company, with whom [Hicks] had contact while engaging in sales on behalf of the Company or an employee of the Company. 1. Hicks maintains that the Agreement is vague, ambiguous, and an illegal restraint on trade. He argues that the Agreement is unreasonable in duration, territorial coverage, and scope of prohibited activity. In determining the enforceability of restrictive covenants, we first determine what level of scrutiny to apply. In this case, the Agreement was ancillary to the sale of a business; for this reason, it is subject to much less scrutiny than that applied to employment contracts. New Atlanta Ear, Nose &c. Assoc. v. Pratt.[3] A covenant entered into as part of a sale of a business can generally be drafted more broadly than one which is entered into as part of an employment contract. The rationale behind the distinction in analyzing covenants not to compete is that a contract of employment inherently involves parties of unequal bargaining power to the extent that the result is often a contract of adhesion. On the other hand, a contract for the sale of a business interest is far more likely to be one entered into by parties on equal footing. (Citation and punctuation omitted.) Drumheller v. Drumheller Bag & Supply.[4] Moreover, "Georgia law provides substantial protection and latitude to covenants ancillary to the sale of a business because the covenants are a significant part of the consideration for the purchase of the business." Attaway v. Republic Svcs. of Ga.[5] "The reasonableness of ... a restraint against competition is a question of law to be decided by the trial court.... The reasonableness of a covenant not to compete given as part of the sale of a business is analyzed in terms of its limitations on time and territory and its description of the prohibited activity." Carroll v. Ralston & Assoc.[6] In this case, the terms of the Agreement prohibit competition and solicitation for five years within a fifty-mile radius of Conyers, Georgia. The trial court found these time and territorial restrictions to be reasonable, and we agree. At the hearing on the application of Doors by Mike for interlocutory relief, Mike Dawkins, owner and president of Doors by Mike, testified that Doors by Mike does business within a 100-mile radius of Conyers. Given the territorial range of the business, we cannot say that a territorial restriction of 836 half of that radius is unreasonable as a matter of law. "[A]n employer is permitted to include in [a noncompetition] covenant the territory in which the employee has in fact performed work, thus protecting itself from the unfair appropriation of good will and information acquired in the course of that work." Sysco Food Svcs. v. Chupp.[7] As to the duration restriction, our Supreme Court has held that "[a] covenant not to compete contained in the sale of a business, which restriction is within a reasonable space of territory, need not be limited as to time." Barrett-Walls, Inc. v. T.V. Venture, Inc.[8] It follows, then, that a period of five years, which has been found reasonable under the stricter scrutiny given noncompete agreements in employment contracts, see, e.g., Smith v. HBT, Inc.,[9] is a reasonable restriction. Hicks also challenges the scope of the activities prohibited by the Agreement. He argues that the Agreement prohibits him from working in the gutter business in any capacity. Where the sale of a business is involved, the purchaser's interest in what he has acquired cannot be effectively realized unless the seller agrees not to act so as to diminish the value of what has been sold. It follows that the reasonableness of any covenant not to compete ancillary to the sale of a business must be measured on the basis of whether the restricted activity protects the purchaser's legitimate business interests, i.e., the value of the business and its good will. (Citation omitted.) Drumheller, supra at 627-628(3), 420 S.E.2d 331. In this case, the restricted activity Hicks's participation in a residential gutter businessprotected a legitimate business interest of Doors by Mike, the purchaser. The record reveals that Hicks was thoroughly conversant with all aspects of the gutter business and that Doors by Mike would not have purchased Residential Gutter Services unless it obtained the benefit of Hicks's expertise and his customer base. Testimony indicated that customer contacts in the gutter business are important; the typical customer is a repeat customer. After Hicks started another gutter business in Stockbridge, well within the 50-mile radius set forth in the Agreement, business for Doors by Mike fell off "drastically." Finally, the trial judge, who had the authority to blue pencil the covenants into a more limited form because they were ancillary to the sale of the business, see White v. Fletcher/Mayo/Assoc.,[10] deleted the words "will compete" from the noncompetition agreement. We find, therefore, that the restrictions in the Agreement which prohibited Hicks from operating a competing gutter business and soliciting customers of Doors by Mike were reasonable and essential to protect the value of the business Doors by Mike had purchased as well as the good will of its customer base. Carroll, supra at 865, 481 S.E.2d 900. Hicks argues that the Agreement prohibits him from working in any capacity in the gutter business. Our Supreme Court "has held on several occasions that a covenant wherein the employee agreed not to accept [any] employment with a competitor `in any capacity' imposes a greater limitation upon the employee than is necessary for the protection of the employer and therefore is unenforceable." Howard Schultz & Assoc. v. Broniec.[11] In this case, however, we are dealing with noncompetition and nonsolicitation agreements entered into in conjunction with the sale of a business. As we stated above, such agreements are given substantial protection and latitude because the covenants are a significant part of the consideration for the purchase of the business. Attaway, supra at 325, 558 S.E.2d 846. 837 The vendor who signs a covenant not to compete when selling a business receives an equivalent for his partial abstention from that business, in the increased price paid him for it on account of his covenant. The covenant operates to his affirmative pecuniary benefit and against his impoverishment, in that, while being paid for desisting from the particular business in the locality covered by it, he may still enter upon other pursuits of gain in the same locality or upon this one in other localities. Id. at 324, 558 S.E.2d 846. This language indicates that a seller of a business may be required to desist from a particular business, i.e., refrain from engaging in that business in any capacity, if "it is found essential, by clear and convincing evidence, to protect the purchaser, despite the overbreadth of the covenant." (Punctuation omitted.) White, supra at 205, 303 S.E.2d 746. The record indicates that Doors by Mike is entitled to the protection afforded by the Agreement. Hicks also complains that the Agreement is vague and ambiguous, making it impossible for him to know what activities are prohibited. He points out that, although the Agreement forbids him from selling "products" or products which are "potentially competitive," or having "contact" with "prospects of the Company," none of these terms is defined. We find no merit in this argument. The language to which Hicks objects is nearly identical to that of a restrictive covenant examined by our Supreme Court in W.R. Grace & Co. v. Mouyal[12] and held to be enforceable. 2. In his second enumeration of error, Hicks contends that, even if the Agreement is valid, Doors by Mike did not present evidence showing that Hicks was in violation of the Agreement. We disagree. At the hearing on the application for injunctive relief of Doors by Mike, Dawkins testified that early in June, an employee of Doors by Mike by the name of Forest stopped coming to work. Forest, a step brother of Hicks, called Dawkins two weeks later and said he wanted to pick up his tools. When he came by the company to do so, he was driving a new truck marked "Gutter Pro." Not long after, Dawkins got a message from Forest saying that some of his tools were missing. When Dawkins returned the call, Hicks answered. Dawkins said nothing and hung up; within a short time, Forest returned Dawkins's call. Joshua East, who had worked for Hicks and who is a current employee of Doors by Mike, testified that he had received a telephone call from Hicks a week and a half before the hearing. Hicks told East that he was doing gutter work and asked East if he wanted to come to work for him installing gutters. Nancy Dawkins, who does much of the administrative work for Doors by Mike, testified that she received a personal check from Hicks in payment for his COBRA health insurance coverage. When she called the number printed on Hicks's check, she heard an answering machine message informing her that she had reached Gutter Pro. Nancy Dawkins also testified that she had called Hicks's number on the morning of the hearing and gotten the same message. Hicks was represented by counsel at the hearing on the application for injunctive relief. He did not attend the hearing, and his counsel did not present evidence. This evidence provided a basis on which the trial court could conclude that Hicks was acting in violation of the Agreement. The trial court did not abuse its discretion in granting Doors by Mike interlocutory injunctive relief. Judgment affirmed. ELLINGTON and PHIPPS, JJ., concur. NOTES [1] MARTA v. Wallace, 243 Ga. 491, 494(3), 254 S.E.2d 822 (1979). [2] Chambers v. Peach County, 268 Ga. 672, 673(1), 492 S.E.2d 191 (1997). [3] New Atlanta Ear, Nose &c. Assoc. v. Pratt, 253 Ga.App. 681, 683, 560 S.E.2d 268 (2002). [4] Drumheller v. Drumheller Bag & Supply, 204 Ga.App. 623, 626(1), 420 S.E.2d 331 (1992). [5] Attaway v. Republic Svcs. of Ga., 253 Ga.App. 322, 325, 558 S.E.2d 846 (2002). [6] Carroll v. Ralston & Assoc., 224 Ga.App. 862, 863-864, 481 S.E.2d 900 (1997). [7] Sysco Food Svcs. v. Chupp, 225 Ga.App. 584, 586(1), 484 S.E.2d 323 (1997). [8] Barrett-Walls, Inc. v. T.V. Venture, Inc., 242 Ga. 816, 819, 251 S.E.2d 558 (1979). [9] Smith v. HBT, Inc., 213 Ga.App. 560, 563(4), 445 S.E.2d 315 (1994). [10] White v. Fletcher/Mayo/Assoc., 251 Ga. 203, 206, 303 S.E.2d 746 (1983). [11] Howard Schultz & Assoc. v. Broniec, 239 Ga. 181, 184(2), 236 S.E.2d 265 (1977). [12] W.R. Grace & Co. v. Mouyal, 262 Ga. 464, 422 S.E.2d 529 (1992).	{ "pile_set_name": "FreeLaw" }
514 F.Supp. 740 (1981) Gerald M. HYDE, Jr. v. CHEVRON U. S. A., INC. Civ. A. No. 78-740. United States District Court, E. D. Louisiana. March 30, 1981. 741 John D. Schoonenberg, Houma, La., for plaintiff. Lloyd C. Melancon, McLoughlin, Barranger Provosty & Melancon, New Orleans, La., for defendant. Johnson & McAlpine, Ronald A. Johnson, Michael L. McAlpine, New Orleans, La., for Pool Offshore Co. ARCENEAUX, District Judge. Trial of this matter commenced on December 11, 1980. Considering the evidence and the law, the Court, for reasons hereinafter set forth finds that the plaintiff is entitled to judgment against Chevron U.S.A., Inc. ("Chevron") in the sum of $198,920.83. Further, Chevron cannot prevail in its third-party claim for indemnity against Pool Offshore Company ("Pool"). Finally, Employers National Insurance Company is entitled to $57,290.02, pursuant to its intervention, out of the plaintiff's award. 742 I. Findings of Fact 1. Plaintiff Gerald M. Hyde, Jr. was employed as a derrickman and relief driller aboard the Pool workover rig no. 2, which was attached, along with living quarters and galley, to the South Timbalier Block 189A production platform owned and operated by the defendant, Chevron, on the date of the accident, May 10, 1977. 2. On or about May 10, 1977, the Chevron South Timbalier Block 189A structure was permanently attached to the ocean floor of the Gulf of Mexico. 3. The Chevron platform, where the accident took place, had only a limited area upon which the Pool workover rig and associated equipment could be positioned. 4. Chevron production equipment was installed on the platform. Due to limited space caused by the location of production equipment, vessels, tanks and manifolds, the Pool workover rig and appurtenances (the living quarters, galley and related facilities) did not have their usual allotted space. 5. The normal construction of the Pool galley and living quarters is side by side. 6. Due to limited space on the platform, Pool constructed the living quarters on top of the galley. 7. Because of the location of Chevron equipment, the living quarters-galley facility was modified and an extension was welded onto the stairs leading thereto so that the staircase could reach the main deck of the living quarters. 8. The extension consisted of cutting the staircase at the bottom where a porch had previously existed. The staircase was then welded onto the living quarters at the top, and to the main deck at the bottom. An additional step was welded to the staircase, since the physical configuration of the platform required that the staircase be lengthened in order for it to reach the main deck of the platform. The evidence is in direct conflict as to whether the handrails reached the main deck. No one who testified has a clear memory that would enable us to decide this issue. 9. The staircase was steeper than usual. 10. On the date of the accident, plaintiff had just arrived aboard the platform for the first day of his tour of duty. After disembarking from the helicopter, he went upstairs to the living quarters to change his clothes. After having changed, he was coming down the stairs on his way to the galley for breakfast. 11. On the date of the accident, it was drizzling, causing the steps to be slippery. The Court finds that rain is a normal and expected hazard of this operation. 12. When plaintiff stepped on the third-to-last step from the bottom, his foot slipped, and he began to fall. Plaintiff was falling feet first. When he reached the last step, it separated from its support on one side and caved in or pointed downward toward the deck of the platform. Plaintiff, unable to break his fall, continued to fall once the last step collapsed, and he landed onto the deck of the platform on his lower back and buttocks. 13. Plaintiff reported the accident to his tool pusher, Leonard Cheramie. Cheramie prepared an accident report, and then ordered Melvin Galloway and Johnny Whiddon to repair the step. 14. Galloway and Whiddon cut off the old step and re-welded a new one onto the staircase beam. 743 15. Dr. Marmande, plaintiff's first physician, diagnosed the injury as a lumbosacral strain. 16. Dr. Marmande treated plaintiff until June 20, 1977, when he discharged plaintiff back to work. Plaintiff returned to Pool Rig 2, and worked light duty for approximately three months. 17. Due to plaintiff's continued back pain, he sought treatment from Dr. Chris Cenac, a Houma, Louisiana orthopedic surgeon, on September 29, 1977. Treatment continued with Drs. Cenac, Burns and Chandler. In 1979, Dr. Chandler performed a laminectomy and disc surgery. 18. Plaintiff moved to Gulfport, Mississippi. On September 22, 1979, he went to Gulf Coast Community Hospital after complaining of faintness and weakness in his legs. Local physicians Risch and Buckley performed a laminectomy and spinal fusion. 19. Plaintiff has since moved back to Houma, Louisiana, and is again under the care of Dr. Cenac. Dr. Cenac testified that plaintiff will not be released until 18 months post fusion, or until April of 1981. Dr. Cenac further testified that plaintiff will have a 20 to 25 percent permanent partial disability. Dr. Cenac would classify plaintiff as a class five, or unemployable for oil field or manual labor type work. 20. Dr. Cenac listed plaintiff's restrictions to consist of no repetitive bending, stooping or climbing, and no lifting of weights more than 50 pounds. Dr. Cenac further testified that plaintiff can expect to experience pain for the rest of his life. 21. At the time of his accident, plaintiff was earning $7.36 per hour. Plaintiff worked 12 hours per day, with time and a half after 40 hours per week. Between May 10, 1976 and May 10, 1977, plaintiff earned $16,971.55. 22. By stipulation, the parties agreed that Professor Harris would testify that a ¼ inch weld on the tread end of the step would have held a force of 2400 pounds in shear. It was further agreed that Mr. Harris' testimony would have revealed that he was not aware of any outside forces exerted on the stair between its construction and the accident. Additionally, he would have made no calculation and had no opinion concerning the stress imposed on the weld when struck by the plaintiff. II. Conclusions of Law 1. This Court has jurisdiction by virtue of the Outer Continental Shelf Lands Act, 43 U.S.C. § 1333, et seq., as well as diversity of citizenship between the parties and jurisdictional amount. 2. The Outer Continental Shelf Lands Act mandates that Louisiana law applies to fixed offshore structures, such as the South Timbalier Block 189A structure involved in this case. Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969). 3. Louisiana Civil Code Article 2322 (1870) provides that: The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction. Article 2322 imposes liability upon the owner of a building to persons injured through its "ruin", whether due to a vice in its original construction or through his neglect to repair it. 4. "The owner's fault is founded upon the breach of his obligation to maintain or repair his building so as to avoid the creation of undue risk of injury to others. The owner is absolved from its strict liability neither by his ignorance of the condition of the building, nor by circumstances that the 744 defect could not easily be detected. He is absolved for such liability only if the thing owned by him falls, not because of its defect, but rather because of the fault of some third person or of the person injured thereby, or because the fault is caused by an irresistible cause or force not usually foreseeable. Article 3556(14), (15), (usually an act occasioned exclusively by violence of nature without the interference of or contribution by any human agency)." Olsen v. Shell Oil Co., 365 So.2d 1285, 1288-1289 (La.1978). The evidence in this case supports the conclusion that the plaintiff slipped and fell on the stairway while descending between the living quarters and the main deck. As plaintiff began his fall, his feet struck the bottom step, which gave way upon impact. It is true that the failure of the last step was not the sole cause of the damage, but the evidence supports the proposition that its failure directly, and in natural and continuous sequence, produced, or contributed substantially to produce, the damage. It can reasonably be said that, except for the failure of the last step, the injury or damage would not have occurred. It is clear that the failure of the last step operated in combination with another cause (plaintiff's initial slip) that occurred at essentially the same time and as part of the same event, and that such failure contributed substantially to producing the damage. 5. The Chevron fixed drilling platform constitutes a building under Article 2322, and the stairway, once welded onto the platform, became an appurtenant structure to the building made immovable by attachment. Olsen v. Shell Oil Co., supra; Mott v. Odeco, 577 F.2d 273 (5th Cir. 1978). 6. Chevron's inability to keep the staircase in good repair and plaintiff's injury were a direct result of a defective condition in the staircase, whether the defect was due to a defect in the original design or in the manufacture (or, as here, the modification of the staircase), or through a neglect to repair it. This Court finds that plaintiff has proven a "ruin" by a preponderance of the evidence and, therefore, Chevron's liability to plaintiff extends to damages resulting from the defect in this appurtenance, Champagne v. Chevron, U.S.A., Inc., 605 F.2d 934 (5th Cir. 1979); Olsen v. Shell Oil Co., supra. This is true even though Pool may remain the owner of the staircase as between Pool and Chevron. Olsen v. Shell Oil Co., supra at 1290. 7. An owner may be exculpated from liability under Article 2322 for a premise-defect, if the victim is injured, not by reason of the defect, but instead because of the fault of some third person. See Loescher v. Parr, 324 So.2d 441, 445 (La.1975) and decisions cited therein. Chevron cannot find exculpation in this exception. There is no evidence that the staircase failed due to any improper handling or improper use by Pool. It is true that the staircase was modified before it was welded to the platform. But the evidence is clear that such modification was caused by the nature of this particular platform's structure as it was set up by Chevron. Chevron had the ultimate responsibility and supervision of all work that took place on the platform. The absence of any Chevron objection to the modification of the staircase imputes acquiescence by Chevron. This acquiescence coupled with the absence of any evidence of any Pool mishandling prevents Chevron from shifting the responsibility to Pool. Olsen v. Shell Oil Co., supra. 8. Under Louisiana law, the contributory negligence of the plaintiff is not a defense to an action predicated on strict liability. Chevron will only be relieved of its liability if the plaintiff, who with full knowledge and appreciation of the danger, voluntarily exposed himself to the risks and embraces the danger. Rodrigue v. Dixilyn Corp., 620 F.2d 537 (5th Cir. 1980). This 745 form of voluntary assumption of a known risk is not present in this case. Plaintiff did not voluntarily assume a risk of injury by proceeding down the abnormally steep staircase in the drizzling rain. The staircase was the only means of egress and ingress afforded to the Pool workmen. As previously discussed, the modification to the staircase and the abnormal construction was a result of the physical characteristics of the Chevron platform. Chevron had the ultimate responsibility to supervise and authorize the construction of the structure. Plaintiff's use of the stairway cannot be interpreted as assuming a risk of danger, nor can his using the staircase in a drizzle, a normal job hazard, be considered an undertaking of a known risk. Therefore, consistent with the rules of law announced in Olsen v. Shell Oil Co., supra, and Rodrigue v. Dixilyn Corp., supra, Chevron will not be allowed to shift its liability to plaintiff. 9. As the Court finds that Chevron is strictly liable for the defective condition of the platform and its appurtenances and that the defect was a legal cause of plaintiff's injuries, Chevron is liable for damages recoverable under Louisiana and federal law. 10. Considering the evidence and law in the case, the testimony adduced from the economist, Mr. Goodman, both on direct and cross examination, and the economic conditions as relevant herein, this Court feels it fair and equitable to find plaintiff's damages to be in the amount of $198,920.83, composed of: Past Wages $50,765.43 Future Lost Wages $100,000.00 (considering discount to present value and inflation) Pain and Suffering $25,000.00 Past Medical $23,155.40 ___________ $198,920.83 The Court makes no award for the value of such "fringe benefits" as future hospitalization and medical insurance premiums and meals, feeling that the evidence relative to those claims is too speculative to permit determination. 11. The third party complaint of Chevron against Pool, seeking indemnity under the terms of the contract between these parties, will be denied.[1] The terms of the indemnity agreement do not entitle Chevron to be indemnified against its own negligence. Under Louisiana law, an intention to indemnify an indemnitee against his own negligence will not be presumed in the absence of a clear and specific contractual stipulation to that effect. Mott v. Odeco, supra; Stephens v. Chevron Oil Co., 517 F.2d 1123 (5th Cir. 1975); Cole v. Chevron Chemical Co., 477 F.2d 361 (5th Cir. 1973). Chevron's liability in this case rests upon a degree of fault much greater than simple negligence. It would be incongruous to limit the application of the foregoing cases to negligence-based liability claims. It would make no sense at all to require a specific agreement to indemnify one against his own negligence, and yet presume an intent to indemnify one against liability predicated upon an even greater degree of fault, strict liability. 746 12. By not successfully defending the instant suit, Chevron is not entitled to recover from Pool their costs and expenses incurred. Hobbs v. Teledyne Movible Offshore, Inc., 632 F.2d 1238 (5th Cir. 1980); Stephens v. Chevron Oil Co., supra. 13. The evidence introduced at trial does not support the claim that Chevron was intended as an additional, designated, intended, and/or named insured under Pool's policy with Jeremy Hew Phillips. 14. Employers National Insurance Company is entitled to its intervention as the objections made by plaintiff are without merit. The Endorsement No. 35,[2] which provides a limited waiver of subrogation, was not in effect at the time of the accident. Since nothing contained in the endorsement can be interpreted to make it retroactive, it has no bearing on this suit. 15. Plaintiff's further reliance upon Paragraph 7[3] of the workover agreement between Chevron and Pool is also misplaced. Paragraph 7 applies directly to the loss of property and not to personal injuries. Accordingly, Employers National Insurance Company's claim in intervention is granted. Judgment will be entered accordingly. NOTES [1] The relevant paragraph of the workover agreement reads as follows: (7) CONTRACTOR shall be responsible for, and shall defend, indemnify and hold OPERATOR harmless from and against, any claims for damages for loss or destruction of property of CONTRACTOR, or for injury to, impairment of health of, or death of employees of CONTRACTOR or employees of CONTRACTOR'S subcontractors that may arise from CONTRACTOR'S operations under this agreement. If CONTRACTOR obtains insurance to protect itself from loss or destruction of property, CONTRACTOR agrees that any such policy or policies of insurance shall be endorsed to provide a waiver of subrogation rights against OPERATOR. CONTRACTOR shall also be responsible for and shall defend, indemnify and hold OPERATOR harmless from and against, or any claims for damages for loss or destruction of property of third parties that may arise from CONTRACTOR'S operations under this agreement. However, OPERATOR shall have the right, at its option, to participate in the defense of any such suit without relieving CONTRACTOR of any obligation hereunder. [2] Endorsement No. 35 reads as follows: It is agreed that, with respect to such insurance as is afforded by the policy by reason of the designation of Texas in Item 3 of the declarations, the company waives the right of subrogation (except as noted below) it may acquire against the principal named below by reason of any payment made on account of injury, including death resulting therefrom, sustained by any employee of the insured while engaged in the following described operations; provided however that said waiver of subrogation does not apply to death, compensation, and/or medical benefits where suit has been instituted by the injured employee or his beneficiary against the principal named below, and the company will intervene in said suit for reimbursement of such payments. All operations for the Principal named below:.......... Chevron U.S.A., Inc. P.O. Box 605 LaHabra, CA 90603 [3] See Footnote 1.	{ "pile_set_name": "FreeLaw" }
COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 2-09-378-CV NATIONAL TRANSMISSION APPELLANT V. BRIAN BOLTZ APPELLEE ------------ FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY ------------ MEMORANDUM OPINION[1] ------------ Appellant National Transmission attempts to appeal from a final judgment in favor of Appellee Brian Boltz. Because National Transmission=s notice of appeal was untimely filed, we dismiss the appeal for want of jurisdiction. The trial court signed the judgment at issue on June 30, 2009. Accordingly, National Transmission=s notice of appeal was due thirty days later, on July 30, 2009. See Tex. R. App. P. 26.1 (providing that the notice of appeal must be filed within thirty days after the judgment is signed).[2] National Transmission filed its notice of appeal on October 20, 2009. Because National Transmission=s notice of appeal appeared to be untimely filed, we notified it on October 28, 2009, of our concern that this court might not have jurisdiction over its appeal. We informed it that unless it or any party desiring to continue the appeal filed with the court, on or before November 9, 2009, a response showing grounds for continuing the appeal, this appeal would be dismissed for want of jurisdiction. See Tex. R. App. P. 42.3(a), 44.3. National Transmission has failed to file a response. The times for filing a notice of appeal are mandatory and jurisdictional, and absent a timely filed notice of appeal or extension request, we must dismiss the appeal. See Tex. R. App. P. 25.1(b), 26.1, 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Because National Transmission=s notice of appeal was not timely filed, we dismiss its appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f). PER CURIAM PANEL: MCCOY, J.; CAYCE, C.J.; and MEIER, J. DELIVERED: December 23, 2009 [1]See Tex. R. App. P. 47.4. [2]There are exceptions to the thirty-day requirement, but none would appear to apply here. See Tex. R. App. P. 25.1(d)(7) (setting out the requirements for a notice of appeal in a restricted appeal), 26.1(a)(1)B(4) (setting out how to extend filing deadline from thirty days to ninety), 26.1(c) (stating that the deadline for filing a restricted appeal is six months after the judgment is signed), 26.3 (stating the rule for requesting an extension of time to file a notice of appeal), 30 (addressing restricted appeals).	{ "pile_set_name": "FreeLaw" }
Case: 18-20009 Document: 00514698939 Page: 1 Date Filed: 10/26/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 18-20009 United States Court of Appeals Fifth Circuit FILED October 26, 2018 RALPH W. ROGERS, SR., Lyle W. Cayce Plaintiff-Appellant Clerk v. WARDEN BREWER; WARDEN LACOX; WARDEN PRESWOOD; WARDEN CARTER; SUPERVISOR J. PEGODA; MAINTENANCE SUPERVISOR BRUMLEY; CHAPLAIN MOSS; SERGEANT PARKER; SERGEANT WILLIAMS; CORRECTIONAL OFFICER SAXON; MAJOR RIGSBY; TEXAS DEPARTMENT OF CRIMINAL JUSTICE - INSTITUTIONAL DIVISION - TRUST FUND; 236TH DISTRICT COURT; CRIMINAL DISTRICT COURT NO. 2; UNIVERSITY OF TEXAS MEDICAL BRANCH GALVESTON TEXAS; COURT OF CRIMINAL APPEALS, Defendants-Appellees Appeals from the United States District Court for the Southern District of Texas USDC No. 4:17-CV-3683 Before SOUTHWICK, HAYNES, and HO, Circuit Judges. PER CURIAM: * Ralph W. Rogers, Sr., Texas prisoner # 493394, filed a civil rights action in the district court complaining inter alia of poor cell conditions and * 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: 18-20009 Document: 00514698939 Page: 2 Date Filed: 10/26/2018 No. 18-20009 inadequate medical care. The district court denied Rogers’s request for leave to proceed in forma pauperis (IFP) and dismissed the complaint because Rogers is subject to the three-strikes bar of 28 U.S.C. § 1915(g). Rogers now moves this court for leave to proceed IFP on appeal. The record shows and Rogers does not dispute that he has three strikes under § 1915(g); thus, to proceed IFP on appeal, he must show that he “is under imminent danger of serious physical injury.” § 1915(g); see Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Rogers has not satisfied this standard. Also pending are Rogers’s requests for an injunction pending appeal and emergency medical release and motions requesting that the court take “judicial notice” of his deteriorating medical conditions and other matters, for an evidentiary hearing, and for the appointment of counsel. These motions are DENIED. The motion for leave to proceed IFP on appeal is DENIED. The appeal is DISMISSED AS FRIVOLOUS. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997); 5TH CIR. R. 42.2. 2	{ "pile_set_name": "FreeLaw" }
502 S.W.2d 602 (1973) HARDWARE MUTUAL CASUALTY COMPANY, Appellant, v. Frankie McDONALD, Appellee. No. 15239. Court of Civil Appeals of Texas, San Antonio. November 21, 1973. Rehearing Denied December 19, 1973. Kenneth L. Clark, Huson, Clark, Thornton & Summers, San Antonio, for appellant. Warren Burnett, Richard J. Clarkson, Odessa, for appellee. BARROW, Chief Justice. This is a workmen's compensation death case. Judgment was entered for claimant-widow based on the jury finding that deceased, 603 James A. McDonald, was drowned in the course of his employment by Walker-McDonald Bit Company, Inc. Appellant, the compensation carrier for Walker-McDonald Bit Company, Inc., hereinafter referred to as employer, has timely perfected this appeal and asserts eight assignments of error. It urges by four points that there is no evidence or insufficient evidence to support the jury finding, and that the jury's finding that deceased was drowned in the course of his employment is contrary to the great weight and preponderance of the evidence. Three points complain of the admission of testimony from appellee regarding a telephone conversation with deceased several hours before he was drowned, in that said conversation was hearsay and was further barred by the Dead Man's Statute. The final point complains of the court's failure to grant a mistrial after an allegedly improper question by appellee's counsel to the executive officer of employer. Employer was in the business of manufacturing and reworking rotary drill bits, which were principally used in seismograph operations. Deceased was a brother of the executive officer and had worked for the executive officer, or employer, in several capacities since 1956. Since 1965, deceased had been on the road for employer. He was classified as a salesman and traveled for two or three hundred miles in all directions from Odessa to wherever seismograph operations were being conducted. He traveled in a company-owned pickup truck with an enclosed van, and he delivered the bits to contractors on the various job sites. In addition to delivery of drill bits which were on order, it was a part of deceased's duties to solicit new business. He was paid a monthly salary, plus all of his travel and living expenses while on the road, including any drinks or meals he might buy for a customer. On March 17, 1970, deceased left in the company truck and went from Odessa to Brady for the delivery of bits. The records found after his death show that he went from Brady to Junction and then on to Kerrville. From Kerrville he went to New Braunfels. Following a delivery in New Braunfels, deceased returned to Kerrville late that afternoon and checked into the Del Norte Motel, where he frequently stayed. His next delivery was to be made in Abilene. That evening he went to the Ranch House Cafe, which is located on the highway about five miles west of Kerrville. He had eaten at this cafe on other occasions and was known by the owner and a waitress, both of whom testified at the trial. The waitress testified that deceased drank five beers and ate a steak before leaving around 10:00 p. m. The owner of the cafe confirmed that deceased was there, and in her opinion, he was intoxicated when he left. Deceased apparently returned to his motel room and made several telephone calls, including a call to his wife. He later returned to the Ranch House Cafe where he sat at the bar for about forty-five minutes. He left the cafe between 11:30 p. m. and midnight. The Ranch House Cafe is about two hundred yards north of the Guadalupe River, and Ms. Kay Armour, who owns the cafe, also owns the property to the river. Although there is a private dirt lane from the back of the cafe down to the river front, the property is posted against trespassers. Ms. Armour testified that on another occasion, deceased had inquired if he could fish in the river, and she advised him that her prior permission would be required. He made no request of her on this occasion for permission to fish and did not mention to anyone that he was going to the river. Nevertheless, in the middle of the morning of March 18, Ms. Armour noticed a truck parked parallel to the river bank, and subsequent investigation discovered the body of deceased in the river. The left wheels of the truck were stuck in the mud very close to the river bank, and the left door, which extended out over the river, was open. From the physical evidence at the scene, it was presumed that the truck 604 became stuck and that deceased stepped or fell out of the titled truck while the motor was running. The truck was in gear, and the wheels of the truck continued to spin in the mud until the motor burned out. The bank was about three feet above the river bed at this location. Article 8309, Section 1(4), Vernon's Tex.Rev.Civ.Stat.Ann., provides in part that the term "injury sustained in the course of employment" shall include all "... injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon employer's premises or elsewhere." The interpretation of this statute is particularly difficult in the situation of an employee whose duty subjects him to travel away from the employer's premises. The applicable rule in such situations was stated in Shelton v. Standard Insurance Company, 389 S.W.2d 290, 293 (Tex.1965,) as follows: "Most courts which have considered the question regard an employee whose work entails travel away from the employer's premises as being in the course of his employment when the injury has its origin in a risk created by the necessity of sleeping or eating away from home, except when a distinct departure on a personal errand is shown." See also Walker v. Texas Employers' Insurance Association, 443 S.W.2d 429 (Tex.Civ.App.Fort Worth 1969, writ ref'd), Liberty Mutual Insurance Company v. Preston, 399 S.W.2d 367 (Tex.Civ. App.San Antonio 1966, writ ref'd n. r. e.). A similar rule applies in a majority of other jurisdictions. Larson, Workmen's Compensation (Desk Ed.), Sections 25.00 and 25.20 (1972). Thus in Shelton, coverage was provided an employee for injuries sustained when struck by a car while crossing the street from his hotel on his way to the nearby restaurant to eat. The employee was on a business trip of several days duration, and it was held that food and sleep were, therefore, necessary if he was to perform the job which he was hired to do. On the other hand, in Walker, coverage was denied where the employee, after eating and returning to his motel, decided to go to the motel room of a friend's friend for a drink, and was shot as he walked into the latter's room. It was held that the late-night visit to the room of an unknown person was not an incident of his employment, and that said injury did not have to do with and did not originate in his employer's business. In Preston, coverage was denied an executive of a company who, although on an extended sales trip to West Texas, had turned aside from said business trip on a personal mission to spend a few days camping in Garner Park. He received fatal injuries while traveling from the park to a nearby town. His tent and camping gear were still at the park at the time of his accident. Here deceased was in Kerrville on his employer's business and, under the rule set forth in Shelton, was within the scope of his employment while sleeping and eating. However, his drowning did not arise from either of these activities. Appellee urges that it was within the scope of his duties to entertain prospective customers, which would include taking a customer fishing. Nevertheless, there is no evidence whatsoever in this record that deceased was with a customer at the time in question. In fact, the evidence is undisputed that he was alone the entire evening, and there is no evidence from any of deceased's supervisors that he was to call on any customer in Kerrville. He had never fished at this river before, either with or without a customer. The undisputed evidence establishes that deceased had returned to the cafe after eating his evening meal and making several telephone calls. On this return to the cafe, he was on a purely personal mission *605 of his own. There is no explanation of why he subsequently determined to go down to the river alone and without permission from the owner. It is clear, however, that such activity did not have anything to do with furtherance of his employer's business, and his subsequent drowning was not of a kind and character of injury that had to do with and originated in the employer's work or business. This conclusion requires a reversal and rendition of the judgment; and, therefore, it is unnecessary to consider appellant's argument relating to whether deceased was intoxicated at such time, as a matter of law. It is not necessary to consider the factual insufficiency points or those relating to the admission of evidence, since these points, if sustained, would require a remand. The judgment of the trial court is reversed, and it is here rendered that appellee, Frankie McDonald, take nothing by her suit. CADENA, J., concurs in the result.	{ "pile_set_name": "FreeLaw" }
lN THE COURT OF CR\|M\|NAL APPEALS OF TEXAS NO. WR-83,804-01 EX PARTE JoHNNY RAY MULDRoW, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 25549 IN THE 6TH DISTRICT COURT FROM LAMAR COUNTY Per curiam. 0 P I N I 0 N Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a Writ of habeas corpus. Ex parte Young, 418 S.W.Zd 824, 826 (Tex. Crim. App. 1967). Applicant Was convicted ofpossession ofa controlled substance and sentenced to fifty years’ imprisonment The Sixth Court of Appeals l affirmed his conviction. Muldrow v. State, No. 06-14-00103-CR ('l`ex. App._Texarkana Dec. 16, 2014). Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed Counsel sent Applicant a 2 letter informing him of the appellate opinion, but the letter was written after the time to file a petition for discretionary review had passed. Ex parte Wilson, 956 S.W.Zd 25 (Tex. Crim. App. 1997). We find that Applicant is entitled to the opportunity to file an out-of-time petition for discretionary review of the judgment of the Sixth Court of Appeals in Cause No. 06-14-00103-CR that affirmed his conviction in Cause No. 25549 from the 6th District Court of Lamar County. Applicant shall file his petition for discretionary review with this Court within 30 days of the date on which this Court’s mandate issues. Delivered: September 23, 2015 Do not publish » l' lLl':, L`Ul’\' l sHARON KELLER ABEL ACosTA MEDINGJUDGE COURT oF CRIMINAL APPEALS (512¢)5§§§551 LAWRENCE E MEYERS P.O. BOX 12308, CAPITOL STATION CHERYL JoHi'\isoN AUSTIN» TEXAS 78711 slAN scHiLHAB Mii<E KEASLER _ GENERAL couNsEL BARBARA P. HERVEY ' (512) 463-1597 ELSA ALCALA - BERT RlCHARDSON KEVlN P. YEARY DAVlD NEWELL JUDGES Wednesday, September 23, 2015 JOHNNY RAY MULDROW ’ Stiles Unit - TDC # 1934318 ' 3060 FM 3514 Beaumont, TX 77705 Re! MULDROW, JOHNNY RAY CCA NO. WR-83,804-Ol COA NO. 06-14-00103-CR _ Trial Court Case No. 25549 HC-l v The court has issued an opinion on the above referenced cause number. Sincerely, \§` Abel A\c'osta, Clerk cc: 6th Court Of Appeals Clerk (DELIVERED VlA E-MAIL) District Attorney Lamar County (DELIVERED VIA E-MAIL) District Clerk Lamar County (DELIVERED VIA E-MAIL) SUPREME COURT BUILD'ING, 201 WEST 14TH STREET, RooM 106, AusTIN, TEXAS 78701 WEBsiTE www`rxcouRTs.Gov/CCA.ASPX	{ "pile_set_name": "FreeLaw" }
362 F.Supp.2d 266 (2005) Polina K. SMITH, Plaintiff, v. Stephen KOPLAN, Chairman United States International Trade Commission, Defendant. No. CIV.A. 01-2581(JGP). United States District Court, District of Columbia. March 30, 2005. 267 Polina K. Smith, Washington, DC, pro se. Wyneva Johnson, U.S. Attorney's Office for D.C., Washington, DC, for Defendant. MEMORANDUM OPINION PENN, District Judge. This matter is before the Court on defendant's Motion to Dismiss or in the Alternative for Summary Judgment [# 89]. Plaintiff is a former employee of the International Trade Commission ("ITC") alleging national origin discrimination and reprisal in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). Defendant has moved to dismiss plaintiff's claims for lack of subject matter jurisdiction because plaintiff failed to exhaust her administrative remedies. As explained more fully below, the Court concludes that defendant's motion to dismiss should be granted. BACKGROUND Plaintiff is a U.S. citizen of Russian-Ukranian origin. Compl. ¶ 8. In August 1999, Plaintiff was hired for a three year term as an attorney adviser in the Office of General Counsel ("OGC") of the ITC. See Compl. ¶ 27; Def.'s Mot. Dismiss or Summ. J., Ex. 1. Prior to her employment in the OGC, plaintiff worked as a law clerk in the U.S. Court of International Trade and as an associate at a Wall Street law firm. Compl. ¶¶ 17-18. Plaintiff resigned from her position in the OIG on June 9, 2000. Def.'s Mot. Dismiss or Summ. J. 9. On September 7, 2000, plaintiff filed a formal complaint alleging national origin discrimination and reprisal. Id. After completing the initial counseling process and investigation, plaintiff requested an Equal Employment Opportunity Commission ("EEOC") hearing on her claims. Id. On May 24, 2001, an EEOC administrative law judge issued an Acknowledgment Order. Id. The Order required both parties to respond to discovery requests within 15 calendar days of receipt of the request. Def.'s Mot. Dismiss or Summ. J., Ex. 2. When plaintiff received the Order, she had already made out-of-state commitments from June through August that included two trips overseas. Compl. ¶ 7. Knowing that she would be out of town during the discovery period, plaintiff attempted to find a lawyer to file an appearance on her behalf, but was unsuccessful. Id. Defendant served discovery requests to Plaintiff on June 18, 2001. Def.'s Mot. Dismiss or Summ. J., Ex. 4. When plaintiff did not respond, defendant attempted to contact plaintiff by phone on June 29, July 5, and July 9, 2001. Id. On July 30, 2001, defendant filed an Emergency Motion to Dismiss arguing that plaintiff failed to respond to the discovery requests. Id. The administrative judge also attempted to contact plaintiff and left messages on August 13 and August 16, 2001. Id. However, since plaintiff was out of town, she did not respond to either the defendant or the administrative judge's written requests or subsequent phone calls. Id.; see Compl. ¶ 7. The administrative judge sent plaintiff a final order on August 16, 2001 ordering plaintiff to contact either the judge or agency counsel by August 25, 2001 to explain why she failed to comply with discovery requests. Id. Plaintiff returned to her residence on August 22, 2001, but did not respond to the judge's order. Compl. ¶ 7. Consequently, the administrative judge dismissed plaintiff's claims and imposed a monetary sanction. Def.'s Mot. Dismiss or Summ. J., Ex. 4. Plaintiff subsequently filed a complaint with this Court. 268 ANALYSIS I. Standard of Review On a Fed.R.Civ.P. 12(b)(1) motion to dismiss, the plaintiff bears the burden of establishing that the court has subject matter jurisdiction. Scott v. England, 264 F.Supp.2d 5, 7 (D.D.C.2002) citing Dist. of Columbia Ret. Bd. v. United States, 657 F.Supp. 428, 431 (D.D.C.1987). In determining whether subject matter jurisdiction exists, the court must accept all of plaintiff's well-pled allegations as true and draw all reasonable inferences in the plaintiff's favor. Rann v. Chao, 154 F.Supp.2d 61, 64 citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The court is not required, however, to accept inferences unsupported by the facts alleged, or legal conclusions that are cast as factual allegations. Scott, 264 F.Supp.2d at 7. II. Failure to Exhaust Administrative Remedies Pursuant to 42 U.S.C. § 2000e-16, the EEOC has established detailed procedures for the administrative resolution of discrimination complaints. Bowden v. United States, 323 U.S.App.D.C. 164, 168, 106 F.3d 433, 437 (1997). Strict adherence to these procedural requirements is the "best guarantee of evenhanded administration of the law." Marshall v. James, 276 F.Supp.2d 41, 49 (D.D.C.2003) quoting National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 2070, 153 L.Ed.2d 106 (2002). Hence, persons filing complaints must timely exhaust their administrative remedies before bringing their claims to court. Bowden, 323 U.S.App.D.C. at 168, 106 F.3d at 437. "If a complainant forces an agency to dismiss or cancel the complaint by failing to provide sufficient information to enable the agency to investigate the claim, he may not file suit." Artis v. Greenspan, 332 U.S.App.D.C. 395, 400, 158 F.3d 1301, 1306 (1998) citing Wilson v. Pena, 316 U.S.App.D.C. 352, 362-63, 79 F.3d 154, 164-65 (1996). Courts equate cases of failing to cooperate with the agency as cases where a plaintiff has failed to exhaust her administrative remedies. See Carmona v. O'Neill, Civil Action No. 01-0115(CKK), slip op. at 1 (D.D.C. Jan. 21, 2002). Plaintiff argues that the Court and the EEOC are part of a framework of "parallel alternative jurisdictions" and that she satisfied her administrative requirement by exhausting her administrative remedies within the ITC. Pl.'s Opp.'n Def.'s Mot. Dismiss or Summ. J. 2. However, plaintiff did not exhaust her remedies within the ITC. Upon completion of the ITC investigation, plaintiff had the option of either requesting an immediate final decision from the agency, or a hearing before an EEOC administrative judge. Id. See 29 C.F.R. § 1614.108(f). Plaintiff chose the latter, but failed to complete the process. Precedent holds that when a claimant abandons any part of the administrative process, she is barred from seeking redress from the courts. See Bush v. Engleman, 266 F.Supp.2d 97, 101 (D.D.C.2003); Carmona, Civil Action No. 01-0115(CKK), slip op. at 1 (D.D.C. Jan. 21, 2002). Plaintiff abandoned the administrative process when she did not comply with the discovery proceedings before the EEOC administrative judge. The Acknowledgment Order set out specific time limits for the completion of various procedures in preparation for the hearing that plaintiff requested. Def.'s Mot. Dismiss or Summ. J., Ex. 2. Although the Order invited the parties to submit written requests for deviations from the order, plaintiff did not submit a request to the administrative judge, or notify defendant of her anticipated absence. See Compl.; Pl.'s Opp.'n *269 Def.'s Mot. Dismiss or Summ. J. Moreover, plaintiff returned to her residence on August 22, 2004, and had three days in which to contact the administrative judge to explain her absence. Compl. ¶ 7, Def.'s Mot. Dismiss or Summ. J., Ex. 3. However, plaintiff failed to do so. Plaintiff contends that defendant hired a detective agency to intercept her voice and electronic communications, and was thus aware that plaintiff was out of town. Compl. ¶ 7. However, plaintiff has no evidence to support her assertion. Def.'s Mot. Dismiss or Summ. J., Ex. 1. Plaintiff also contends that her doorman accepted service of the EEO proceedings on her behalf, but was not authorized to do so. Compl. ¶ 7. Even if the Court accepts that plaintiff was not properly served, this does not dispel the fact that plaintiff had 2-3 days from the date of her return to contact the administrative judge and explain her absence. Moreover, plaintiff does not deny that she received the notices or the numerous telephone messages left by both defendant and the administrative judge. See Compl.; Pl.'s Opp.'n Def.'s Mot. Dismiss or Summ. J. Plaintiff abandoned the administrative proceedings that she initiated with regard to her claims, and is therefore prohibited from seeking redress of those claims in this Court. CONCLUSION For the foregoing reasons, the defendant's Motion to Dismiss is GRANTED.	{ "pile_set_name": "FreeLaw" }
54 S.W.3d 849 (2001) In the Interest of E. M., S. M., J. M., and O. M., Children. No. 13-00-131-CV. Court of Appeals of Texas, Corpus Christi. August 23, 2001. 850 Fernando M. Galvan, Brownsville, Attorney for Appellant. Duke Hooten, Texas Department of Protective and Regulatory Services, Boerne, John A. Olson, Assistant County and District Attorney, Carlos Masso, District Attorney's Office, Brownsville, Attorneys for Appellee. Before Chief Justice VALDEZ and Justices RODRIGUEZ and CANTU.[1] OPINION RODRIGUEZ, Justice. Appellant, father of E.M., S.M., J.M., and O.M., appeals from the district court's[2] refusal to conduct a hearing de novo on his appeal of an associate judge's order terminating his parental rights. We affirm. In January 2000, the Texas Department of Protective and Regulatory Services (TDPRS) initiated a proceeding to terminate appellant's parental rights to his four children. An associate judge was appointed to conduct the proceeding. See TEX. FAM.CODE ANN. § 201.001(a) (Vernon Supp. 2001). After hearing the case, the associate judge signed an order involuntarily terminating appellant's rights. The order contained, inter alia, the following findings: 7.1 The Court finds by clear and convincing evidence that termination of the parent-child relationship between [appellant and O.M., E.M., S.M. and J.M.] is in the best interest of the children. 7.2 The Court finds by clear and convincing evidence that [appellant] has 7.2.1 engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangers 851 the physical or emotional well-being of the children; [§ 161.001(1)(E), Tex.Fam.Code] 7.2.2 been convicted or has been placed on community supervision, including deferred adjudication community supervision, for being criminally responsible for the death or serious injury of a child under the following sections of the Penal Code or adjudicated under Title 3 for conduct that caused the death or serious injury of a child and that would constitute a violation of one of the following sections: [§ 161.001(1)(L), Tex.Fam.Code] § 22.021 (aggravated sexual assault). Without specifying the findings and conclusions of the associate judge to which he objected, appellant timely filed a notice of appeal with the referring court. See TEX. FAM.CODE ANN. § 201.015(a), (b) (Vernon Supp.2001). Without a hearing, the referring court signed the order approving and adopting the associate judge's recommendations. Appellant subsequently filed specific objections to the three findings identified above and requested a hearing de novo. In response, TDPRS filed a motion to deny the appeal. Following a hearing on TDPRS's motion, the referring court denied appellant's request for a hearing de novo. By a single issue appellant contends the referring court erred in refusing to conduct a de novo hearing on his appeal of the associate judge's findings. Appellant asserts it is not necessary that a notice of appeal specify the findings and conclusions to which a party objects. He claims it is only necessary to specify the objections at some point during the appeal. We disagree. In Attorney General of Texas v. Orr, 989 S.W.2d 464, 467 (Tex.App.-Austin 1999, no pet.), the Attorney General filed a written notice of appeal three days after the associate judge announced her recommended ruling. See id. In the notice of appeal, the Attorney General specified the findings and conclusions to which he objected, and asked for a hearing before the referring court. See id. at 469. The Orr court noted that the Attorney General "complied with each statutory requirement for obtaining a de novo hearing before the referring court." Id. at 469; see Phagan v. Aleman, 29 S.W.3d 632, 634 (Tex.App.-Houston [1st Dist.] 2000, no pet.) (once notice of appeal filed, trial judge must conduct hearing de novo addressing issues raised). The Orr court directly commented on the issue of whether a party is required to specify the associate judge's findings and conclusions to which the party objects in the notice of appeal. The court first stated that, [a]ny party may appeal the associate judge's report to the referring court by timely filing a notice of appeal specifying the findings and conclusions to which the party objects. A party who files a notice of appeal to the referring court in compliance with the Family Code is entitled to a de novo hearing before that court. Orr, 989 S.W.2d at 467. The court later stated that "the appeal to the referring court is limited to the findings and conclusions specified in the notice of appeal." Id. at 468 n. 2. Finally, the Orr court stated that, [a] party may appeal an associate judge's report by filing a notice of appeal not later than the day after the date he receives notice of the substance of the report. A notice of appeal must *852 be in writing specifying the associate judge's findings and conclusions to which the party objects.... [W]hen a notice of appeal is properly filed, the requirement that the referring court hold a de novo hearing is mandatory [and the appellate court presumes] that the failure to hold such a hearing is harmful. Id. at 468-69 (internal citations omitted). Furthermore, "[j]udicial review by trial de novo is not a traditional appeal, but a new and independent action characterized by all the attributes of an original civil action." Id. at 467 (citing Key W. Life Ins. Co. v. State Bd. of Ins., 163 Tex. 11, 350 S.W.2d 839, 846 (1961); Godwin v. Aldine Indep. Sch. Dist., 961 S.W.2d 219, 221 (Tex.App.-Houston [1st Dist.] 1997, pet. denied)). Because an appeal to the referring court is limited to the findings and conclusions specified in the notice of appeal, filing a notice of appeal restarts the process only to the extent of the challenged findings. Orr, 989 S.W.2d at 468 (citing Tex.Fam.Code Ann. § 201.015(b)). The effect of the appeal is to begin again only as to the issues appealed. See id. It is apparent that the statute provides no other vehicle through which appellant may challenge the findings of the associate judge and, thus, focus on the issues for the de novo hearing. We conclude, therefore, to be entitled to a de novo hearing on appeal of an associate judge's recommendations to the referring court, a party must timely file a written notice of appeal containing the associate judge's findings and conclusions to which the party objects. See id. at 467; see also Tex.Fam. Code Ann. § 201.015(a), (b) (Vernon Supp. 2001). Although appellant's notice of appeal was timely filed, it did not contain his objections to any specific findings or conclusions. Because appellant failed to comply with the requirements under section 201.015, we conclude he is not entitled to a de novo hearing of his appeal of the associate judge's recommendation.[3] Accordingly, the referring court did not err by denying appellant's request for a de novo hearing. Appellant's sole issue is overruled. We affirm the referring court's denial of appellant's request for a de novo hearing of his appeal of the associate judge's recommendation. NOTES [1] Retired Justice Antonio Cantu assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex.Gov't Code Ann. § 74.003 (Vernon 1998). [2] The district court referred this matter for hearing before an associate judge. See TEX. FAM.CODE ANN. § 201.001(a) (Vernon Supp. 2001). Therefore, the district court will be described as the referring court throughout this opinion. [3] Appellant also asserts that Harrell v. Harrell, 986 S.W.2d 629 (Tex.App.-El Paso 1998, no writ), supports his position. However, the timeliness of the notice of appeal was at issue in Harrell, not the inclusion of specific objections to findings and conclusions in the notice of appeal. See id. at 630-31. Thus, Harrell provides no support for appellant's argument.	{ "pile_set_name": "FreeLaw" }
269 F.2d 305 Paul Eugene TESSIER, Appellant,v.UNITED STATES of America, Appellee. No. 5424. United States Court of Appeals First Circuit. July 31, 1959. David W. Walsh, Boston, Mass., with whom Arthur D. Healey, Boston, Mass., was on brief, for appellant. John G. Laughlin, Atty., Dept. of Justice, Washington, D.C., with whom George Cochran Doub, Asst. Atty. Gen., Anthony Julian, U.S. Atty., Boston, Mass., and Morton Hollander, Atty., Dept. of Justice, Washington, D.C., were on beief, for appellee. Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit judges. 1 MAGRUDER, Circuit Judge (Retired). 2 This is unquestionably a sad case, in which the United States is using the statute of limitations to defeat a meritorious claim. Appellant brought suit under the Federal Tort Claims Act, 28 U.S.C. 1346, 2671 et seq., and offered to prove the following facts: 3 Exercising his rights as an honorably discharged veteran of World War II, Tessier entered the Veterans' Administration Hospital in Togus, Maine, for an appendectomy performed there on June 7, 1947. He had undergone no prior abdominal or other major surgery. Appellant was released from the hospital on June 18, 1947. Sometime in 1948 he began experiencing sporadic sharp pain in his right side in the vicinity of his diaphragm, which became fairly constant by 1950. 4 Appellant was hospitalized at the Lowry Air Force Base hospital, Denver, Colorado, on complaint of this pain (1) from June 28 to July 30, 1951, (2) from February 18 to May 9, 1952, (3) from July 3 to July 10, 1952, (4) from April 15 to April 21, 1953, and (5) from April 27 to June 19, 1953. Tentative and final diagnoses of his illness during these five confinements included acute pleurisy, chronic pleurisy, hemorrhage of duodenal ulcer, duodenal ulcer without bleeding, liver abscess, other abscess, and finally (by a psychiatrist) physical manifestations of emotional problems centered around hostility. A major gastrointestinal exploratory operation, at least fourteen series of X-rays, and at least one fluoroscopy were performed; the results of all were reported as negative, although eight series of X-rays (the only ones which covered the area in question) portray at least one metal fragment and the fluoroscopy and at least one series of X-rays show elevation of the right side of the diaphragm. 5 In addition, appellant proved to the satisfaction of the district court that, complaining of intense similar pain, he returned on February 22, 1954, to the Togus hospital where his appendix had been removed, and that he there underwent a great variety of tests and medication, including further X-ray and fluoroscopic examinations. Eventually, on March 31, 1954, the presence of two metallic needle fragments lying between appellant's diaphragm and his liver was discovered, and an exploration thus prompted revealed a subdiaphragmatic abscess. Appellant was finally discharged on May 20, 1954. 6 The district court found that the needle fragments as portrayed on a single X-ray plate 'might well not be observed because they look exactly like artifacts, thin white lines which are a common X-ray anomaly, and even on a series of plates they could be overlooked.' 164 F.Supp. 779, 780. And it also found 'evidence that because of its lack of objective characteristics the diagnosis of a subdiaphragmatic abscess normally consumes several weeks.' Such an abscess 'is quite uncommon. Also, it is not usual to associate it with foreign bodies.' 7 The court, considering the 1954 hospitalization alone, found negligence in the failure of the Togus hospital personnel to discover the needle fragments by March 12, 1954, and thus find the abscess 19 days earlier than they did. The United States was held liable for $650 in damages, less $100 veterans' disability benefits received, from which judgment it has not appealed. 8 The plaintiff-appellant contends that the district court erred in several orders by which it ruled that the two-year statute of limitations for tort claims against the government, 28 U.S.C. 2401(b), limits appellant to recovery for negligent conduct occurring within two years before the complaint was filed. 9 The appellant's original complaint was filed November 30, 1955. It contained jurisdictional and damage allegations, set forth the appendectomy, and alleged: 10 '6. * * * In the course of this operation, the defendant, through its agents, servants or employees, used medical instruments and equipment in and about the body of the Plaintiff, whereupon, as a result of the negligence, wrongful act or omission of the Defendant, its officers, agents, servants and employees, acting within the course and scope of their employment, did cause, permit or place a piece or pieces of metal from a medical instrument or article of equipment in the Plaintiff's body and therein allow (such metal) to remain after the completion of said operation. 11 '7. As a result of the negligence, wrongful act or omission referred to in the preceding paragraph, the Plaintiff was obliged to undergo further treatment and was confined to various hospitals from June of 1947 until his most recent confinement which occurred at the Veterans Administration Hospital at Togus, Maine, from February 22, 1954 to May 20, 1954, at which time the above facts became known to the Plaintiff.' 12 The United States moved to dismiss, citing the statute of limitations, and the appellant countered with a memorandum suggesting three theories, which it still urges: (1) The statute did not begin to run until March 31, 1954, when the presence of the needle fragments became known to appellant. (2) The tortious insertion of the needle fragments gave rise to a duty to remove them, the failure to comply with which constituted continuing negligence. (3) The defendant's agents fraudulently concealed the presence of the needle fragments. 13 The district court ruled (obviously correctly) that the second theory was not comprehended by the complaint, so appellant moved on May 9, 1957, for leave to file an amended complaint, which specifically alleges tortious conduct during the interim hospitalizations and continuing negligence throughout the period June 7, 1947, to May 20, 1954. Leave was granted on June 4, 1957, the court expressly ordering, as explained in an opinion of October 30, 1957, that the amended complaint would not relate back under F.R.Civ.P. rule 15(c), 28 U.S.C. in so far as it pleaded continuing negligence. The court then ordered that the case stand for trial as to 'any separate act of misfeasance or negligent non-feasance occurring on and after February 22, 1954, a date set forth in the original complaint', D.C., 156 F.Supp. 32, at page 34, cf. Brassard v. Boston & Maine R.R., 1 Cir., 1957, 240 F.2d 138 and allowed motions to strike which pared the amended complaint to reflect this ruling. It was on this theory that the case was tried and appellant recovered his judgment. 14 Harsh as the result to the appellant may seem, there can be no doubt that the district court's ruling on the relation back of the amended complaint was correct. Until the amendment, the complaint did not even suggest that recovery was claimed for negligence occurring during the period 1947 to 1954, and the amendment was filed more than two years after the end of that period. It follows that no cause of action for continuing negligence was properly before the district court. Nor can we find any support in the complaint, the offer of proof, or the amended complaint, for the theory of fraudulent concealment, even if we assume that such fraud would toll the statute. Cf. Glus v. Brooklyn Eastern District Terminal, 1959, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770; Scarborough v. Atlantic Coast Line R.R. Co., 4 Cir., 1949, 178 F.2d 253, 15 A.L.R.2d 491. The district court was justified in assuming, in denying the motion to dismiss, that no such issue was in the case. 156 F.Supp. at page 33. 15 We therefore have before us on this appeal only the questions (1) whether a cause of action 'accrues' under 28 U.S.C. 2401(b) despite the injured person's ignorance of the cause of his misery, and (2) whether such 'continuing' treatment as was present in this case (which we will assume to have been negligent) tolls 28 U.S.C. 2401(b) and preserves a right to sue on the original tort. 16 Appellant claims that the federal rule should be that a 'claim accrues' only when the prospective plaintiff knows all the facts on which his action will be based. He relies in this respect on Urie v. Thompson, 1949, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282, and Reid v. United States, 5 Cir., 1955, 224 F.2d 102. Both of these cases, however, were concerned with unusual circumstances that prevented an accurate determination, even in retrospect, of when the harm to the plaintiff (without which the negligence was not actionable) actually happened. See Pillsbury v. United Engineering Co., 1952, 342 U.S. 197, 72 S.Ct. 223, 96 L.Ed. 225; Brassard v. Boston & Maine R.R., supra, 240 F.2d 138. Appellant's injury-- the introduction and abandonment of the needle fragments-- certainly occurred (if his allegations are accepted) on June 7, 1947; it is irrelevant that the resulting harm became great only subsequently. 17 Moreover, the assumption that a federal rule is decisive is unsound. Of course the meaning of the statutory phrase 'claim accrues' is a federal question; but it is too clear for argument that a 'claim accrues' when it may be made the basis of a judicial action. The Urie case involved not only an interpretation of the relevant statute of limitations but also a federal law decision of when the claim became actionable, because that case arose under the Federal Employers' Liability Act, 45 U.S.C.A. 51 et seq., which creates a substantive federal right of action. In contrast, the appellant here sued under the Tort Claims Act, where Congress merely waived the sovereign immunity of the government as a defense to litigation enforcing state-created substantive rights. The statute provides simply that 'the United States shall be liable * * * in the same manner and to the same extent as a private individual under like circumstances.' 28 U.S.C. 2674. Thus a 'claim accrues' when a private person similarly situated would become suable under the law of the state. Bizer v. United States, D.C.N.D.Cal.1954, 124 F.Supp. 949; cf. Williams v. United States, 1955, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761; Rushford v. United States, D.C.N.D.N.Y.1950, 92 F.Supp. 874, affirmed 2 Cir., 1953, 204 F.2d 831. Recognizing this fact, on the second appeal of the Reid case, supra, United States v. Reid, 5 Cir., 1958, 251 F.2d 691, the court did not apply the Urie rule that the action accrued only when the plaintiff knew he had been injured, but rather, following Georgia law, sought the time when, unknown to either party, harm had in fact occurred and there was thus a complete legal wrong. 18 The tort alleged by appellant Tessier took place in Maine. It seems clear that the law of that state gave him a right of action as soon as the metal fragments were abandoned in him. There was a legal wrong on June 7, 1947, and suit thereon was not suspended because of any duty imposed on the United States to remove the fragments. See Jones v. Grand Trunk Railway Co., 1882, 74 Me. 356; Perkins v. Maine Central R.R. Co., 1881, 72 Me. 95. See also Wilcox v. Plummer, 1830, 4 Pet. 172, 29 U.S. 172, 7 L.Ed. 821. Hence his claim accrued within the meaning of 28 U.S.C. 2401(b) in 1947. 19 Appellant's second contention, that the further negligence of federal employees tolled the statute, depends on the construction of 28 U.S.C. 2401(b) as a matter of federal law. Young v. United States, 1950, 87 U.S.App.D.C. 145, 184 F.2d 587, 21 A.L.R.2d 1458; Maryland, to Use of Burkhardt v. United States, 4 Cir., 1947, 165 F.2d 869, 1 A.L.R.2d 213; United States v. Westfall, 9 Cir., 1952, 197 F.2d 765. It has been held that this statute is not tolled during disabilities such as minority, Simon v. United States, 5 Cir., 1957, 244 F.2d 703; United States v. Glenn, 9 Cir., 1956, 231 F.2d 884, or nonappointment of an administrator to bring a wrongful death action, Foote v. Public Housing Com'r, D.C.W.D.Mich.1952, 107 F.Supp. 270, and it probably would not be tolled by the intervention of hostilities, cf. Soriano v. United States, 1957, 352 U.S. 270, 77 S.Ct. 269, 1 L.Ed.2d 306. 20 Many cases have been cited by the parties but few are really in point. If the alleged negligence were in misdiagnosis or mistreatment, as in Shives v. Chamberlain, 1942, 168 Or. 676, 126 P.2d 28; Williams v. Elias, 1941, 140 Neb. 656, 1 N.W.2d 121; Peteler v. Robison, 1932, 81 Utah 535, 17 P.2d 244; Hotelling v. Walther, 1942, 169 Or. 559, 130 P.2d 944, 144 A.L.R. 205; Schmit v. Esser, 1931, 183 Minn. 354, 236 N.W. 622, 74 A.L.R. 1312, the doctor might not be chargeable with a wrong until the course of treatment was over.1 That was the theory of the present appellant's amendment, but it is not before us. We cannot adopt a rationale based on contract in this action under the Tort Claims Act, compare Bowers v. Santee, 1919, 99 Ohio St. 361, 124 N.E. 238; Conklin v. Draper, 1930, 229 App.Div. 227, 241 N.Y.S. 529, nor can the appellant simply be said to have known at the time of the appendectomy that he was hurt, as did his counterparts in Gangloff v. Apfelbach, 1943, 319 Ill.App. 596, 49 N.E.2d 795, and Deer v. New York Central R.R. Co., 7 Cir., 1953, 202 F.2d 625. 21 In cases the one at bar where a doctor has, at the end of an operation, left in the plaintiff's body a needle, sponge, piece of tooth root, drill, skin clip, or even forceps, the majority of jurisdictions hold that the statute of limitations is not tolled during continuing negligent post-operative treatment by the doctor. Capucci v. Barone, 1929, 266 Mass. 578, 165 N.E. 653; Bernath v. Le Fever, 1937, 325 Pa. 43, 189 A. 342; Silvertooth v. Shallenberger, 1934, 49 Ga.App. 133, 174 S.E. 365; Becker v. Porter, 1925, 119 Kan. 626, 240 P. 584. See also Albert v. Sherman, 1934, 167 Tenn. 133, 67 S.W.2d 140; Carrell v. Denton, 1942, 138 Tex. 145, 157 S.W.2d 878; Conklin v. Draper, supra, 229 App.Div. 227, 241 N.Y.S. 529, affirmed without opinion, 1930, 254 N.Y. 620, 173 N.E. 892; Pickett v. Aglinsky, 4 Cir., 1940, 110 F.2d 628 (W.Va. law). Contra, Thatcher v. De Tar, 1943, 351 Mo. 603, 173 S.W.2d 760; Perrin v. Rodriguez, La.App.1934, 153 So. 555; Trombley v. Kolts, 1938, 29 Cal.App.2d 699, 85 P.2d 541. 22 It is argued on one hand that the statute of limitations expresses a policy of repose and should be interpreted accordingly. Undeniably the legislature intends to strike down all stale claims, meritorious as well as frivolous. On the other hand, it is said that a person has in effect no remedy if his claim is barred before he knows that he has been wronged, and that such a person cannot be accused of sleeping on his rights. This court can not resolve this policy conflict. In the present state of the law we cannot possibly say, contrary to the plain mandate of 28 U.S.C. 2401(b), that Congress intended that the statute be suspended until the plaintiff knows of the wrong; and we cannot remold the statute in the image of the equitable doctrine of laches. Soriano v. United States, supra, 352 U.S. 270, 77 S.Ct. 269. 23 Furthermore, the appellant's pleading and offer of proof fall somewhat short of alleging that appellant's health was solely in the care of employees of the United States from June, 1947, through May, 1954. We have also assumed, without deciding, that this doctrine tolling the statute during continuing negligent treatment would be applied to the United States-- or a comparable private principal-- through some kind of merger of vicarious responsibilities, even though the operation and continued treatment were not by the same doctor or his agents, or even in the same hospital, but were by distinct agencies of the government and were widely separated geographically. Cf. United States v. Hull, 1 Cir., 1952, 195 F.2d 64. 24 It is abundantly clear that the district court erred, if at all, in favor of the appellant. 25 A judgment will be entered affirming the judgment of the District Court. 1 The distinction is pointed out in the last three cases cited	{ "pile_set_name": "FreeLaw" }
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT MAHLARD K. BOYD, Appellant, v. CHRISTOPHER A. NARDUCCI, Appellee. No. 4D17-2893 [April 26, 2018] Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Bernard I. Bober, Judge; L.T. Case No. 97- 000907CF10A. Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant. No brief filed for appellee. PER CURIAM. Affirmed. GERBER, C.J., DAMOORGIAN and KLINGENSMITH, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing.	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-6322 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LAVONTA JONES, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:10-cr-00140-RJC-1; 3:17-cv- 00053-RJC) Submitted: July 20, 2017 Decided: July 25, 2017 Before DUNCAN and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Lavonta Jones, Appellant Pro Se. Melissa Louise Rikard, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Lavonta Jones seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Jones has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 2	{ "pile_set_name": "FreeLaw" }
372 S.W.2d 600 (1963) Carl BEGGS, Appellant, v. Bertie STALNAKER et al., Appellees. No. 5-3120. Supreme Court of Arkansas. November 26, 1963. 601 Pope, Pratt & Shamburger, by Richard L. Pratt And Joseph L. Buffalo, Jr., Little Rock, for appellant. Howell, Price & Worsham, Little Rock, for appellees. JOHNSON, Justice. This suit involves personal injuries and property damage sustained by a driver and personal injuries sustained by a passenger in a car hit from the rear by a truck. On June 17, 1962, appellee Lucille Smith was driving east on East Broadway Street in North Little Rock when she and the two cars ahead of hers stopped to permit another car to turn left off the street. Her mother, appellee Bertie Stalnaker, was a passenger. Appellant Carl Beggs, who was driving a dump truck, apparently had brake failure, was unable to stop and ran into the rear of appellees' stopped automobile, damaging the automobile and injuring appellees. Appellees filed separate suits against appellant which were consolidated for trial. Trial was held April 11, 1963. The jury returned a verdict of $5,000.00 for appellee Stalnaker and $22,500.00 for appellee Smith. From judgments on the verdicts, appellant has appealed, urging that the trial court erred in refusing to direct a verdict for appellant, errors in instructions, and that the verdicts were grossly excessive. Appellant moved for a directed verdict, contending that appellees produced absolutely no evidence of any negligence on the part of appellant. (Appellant's principal contention was that this was an unavoidable accident.) Testimony by and on behalf of appellees established that the collision did occur, the damage to the automobile by testimony on before-and-after valuations of the car, the nature and extent of appellees' injuries, diagnosis and prognosis. Virtually the only testimony offered by appellees relative to the truck was appellee Smith's statements that, "I looked in the rear view mirror and about a block behind us this truck went through the intersection traveling at a normal rate of speed," that there was no car to her right, also no traffic in the right hand lane (indicating that the truck could have turned right and avoided hitting the automobile), and, "Well, the truck hit us and the gravel spilled all over the street and it broke all the motor supports in my car and broke the seat track where mother was sitting and just pushed the motor clear up into the front end where it caused the radiator to burst. * " In a similar case this court held: "It is insisted by the appellee that this proof falls short of establishing negligence, since the mechanical defect might have arisen suddenly and without fault on Rorke's part. Even so it was not necessary for the plaintiff to anticipate and disprove this possible explanation. By statute every motor vehicle must be equipped with adequate brakes. Ark.Stats. 1947, § 75-724. It has often been held that proof of the violation of such a safety measure is evidence of negligence. Union Securities Co. v. Taylor, 185 Ark. 737, 48 S.W.2d 1100; Kendrick v. Rankin, 219 Ark. 736, 244 S.W.2d 495. The appellant's testimony constituted substantial evidence to the effect that the statute had been violated; it was for the jury to say whether the defendant was guilty of negligence." Brand v. Rorke, 225 Ark. 309, 280 S.W.2d 906. In addition to appellees' testimony, there was some testimony adduced on behalf of appellant which tended to strengthen appellees' case. Considering all the evidence, 602 with every reasonable inference arising therefrom, in the light most favorable to appellees, as we do to determine whether a jury question was presented, Harrison v. State Farm Mutual Insurance Co., 230 Ark. 630, 326 S.W.2d 803, we find that the trial court made no error in refusing to direct a verdict for appellant. Appellant asserts that three of the court's instructions to the jury were prejudicially erroneous. The first two recite the law requiring fitness of vehicles and brakes, and the third had to do with an element of damages. These three instructions were contended to be wrong not particularly because they were erroneous statements of the law but because there was no evidence in the case to justify the giving of such instructions. We do not agree. It is our view that two of the instructions complained of were absolutely necessary in order to fairly present appellees' theory of the case to the jury for its consideration, and the third, though close, was supported by some competent evidence in the record. Next appellant urges that the trial court erred as a matter of law by refusing to instruct the jury that in assessing damages to appellees' automobile, the cost of repairs should be considered as evidence. The general rule is that the measure of damages for injury to an automobile is the difference between the market value of the automobile immediately before and after the collision. Payne v. Mosley, 204 Ark. 510, 162 S.W.2d 889; Kane v. Carper-Dover Mercantile Co., 206 Ark. 674, 177 S.W.2d 41. Two of appellees' witnesses, used car dealers familiar with that particular car, testified on the market value of that car immediately before and immediately after the collision. It is true that, in the absence of such competent proof as to the amount of damages, the difference in market value before and after the collision may be established by proof of the total amount paid for repairs necessitated by the collision. Golenternek v. Kurth, 213 Ark. 643, 212 S.W.2d 14, 3 A.L.R.2d 593. In the instant case there was no repair bill in evidence, and although appellee Smith testified as to what she had so far paid for repairs, she also testified that repairs were not completed. In our opinion, the jury was presented with the best evidence available, that is, competent appraisals, and the trial court did not err in refusing to instruct the jury that they should consider the cost of repairs in assessing the property damage. Appellant's last point urged for reversal is that the verdicts are grossly excessive and are not supported by the evidence. The jury returned a verdict of $5,000.00 for appellee Stalnaker. Mrs. Stalnaker, who is 76, was injured in the knee as well as receiving a strained neck. Immediately after the accident Mrs. Stalnaker was taken to the hospital where x-rays were taken and her leg bandaged, after which she was sent home. The following day her neck started hurting and became so painful that she went to an orthopedist the following day. His examination revealed that any attempt to turn her head left caused extreme complaint of pain and spasm of the muscle in the cervical spine; further, that she could not bow or bend her head backward. The doctor diagnosed the condition as a strain of the neck and prescribed special physiotherapy treatment at his office. She made 23 or 26 trips to the doctor's office over a period of three or four months. The doctor testified that her injuries were very painful, that "all those areas of involvement are associated with pain." At the time of trial Mrs. Stalnaker testified that, "My neck bothers me quite a bit;" that she was 75 at the time of the accident and had never had anything wrong with her neck before the accident; that she was getting along pretty good, except when the weather declares otherwise, "then at night [she] can't sleep good." The jury returned a verdict of $22,500.00 in favor of appellee Smith, which included property damage. Two witnesses testified on the fair market value of appellee's car *603 before and after the accident, which placed the diminution in value at $1275.00 to $1300.00. Mrs. Smith testified that immediately after the collision she couldn't focus her eyes and that her neck hurt some but not a lot at that time. Nothing was done for it at the hospital and she went home with her mother. Two days later (when she could get an appointment), after suffering extreme pain, she went to an orthopedist. He testified that when he saw her she was holding her head up with her hands, that he made one lateral x-ray but was afraid to make a comprehensive x-ray study at that time because the necessary twisting or bending of her neck might aggravate a possible fracture or dislocation. Her injuries were diagnosed as a sprain of her neck and strain of her back. She was hospitalized as soon as possible and placed in head traction for almost four weeks, with medication and, when able, physiotherapy which was continued during the next seven months. The doctor testified that he thought her back had recovered and that he didn't think she had any permanent disability to her back. However, when asked if her neck had recovered, the doctor testified, "No, sir. I don't think it ever will recover," and estimated Mrs. Smith's permanent partial disability at twenty or twenty-five percent. The doctor also testified that he did not anticipate surgery, that she probably will require sporadic treatment, and that, "All I know, these people learn to live with themselves like they do with arthritis. They learn to live with their pain." Mrs. Smith was off work several months, at time of trial was still not working regularly on a full-time basis, still had to wear a cervical collar several days a week, and was not able to indulge in her avocations of fishing and driving. "Under our well-established rule the amount of recovery in these personal injury cases is for the jury's fair determination and when supported by substantial testimony we do not disturb the verdict unless it is shown to have been influenced by prejudice or so grossly excessive as to shock the conscience of the court." Grandbush v. Grimmett, 227 Ark. 197, 297 S.W.2d 647. From the testimony above and other testimony contained in the record not detailed here, we certainly cannot say that the amounts of the jury verdicts for Mrs. Stalnaker and Mrs. Smith are so grossly excessive as to shock the conscience of the court. Affirmed.	{ "pile_set_name": "FreeLaw" }
589 N.W.2d 729 (1999) Kevin WILSON, Appellee, v. IBP, INC. and Diane Arndt, Appellants, State of Iowa ex rel. Civil Reparations Trust Fund, Intervenor-Appellee. No. 97-971. Supreme Court of Iowa. February 17, 1999. Wade R. Hauser and H. Richard Smith of Ahlers, Cooney, Dorweiler, Haynie, Smith & Allbee, P.C., Des Moines, and Margaret C. Callahan of Belin Lamson McCormick Zumbach Flynn, A P.C., Des Moines, for appellants. David L. Brown of Hansen, McClintock & Riley, Des Moines, and Randall J. Shanks, Council Bluffs, for appellee Kevin Wilson. Thomas J. Miller, Attorney General, Craig Kelinson, Special Assistant Attorney General, and Richard E. Mull, Assistant Attorney General, for intervenor-appellee State of Iowa ex rel. Civil Reparations Trust Fund. Considered en banc. LARSON, Justice. This case presents a very narrow issue: Do punitive damages accrue interest from the date of a jury's verdict or from some later date. The district court opted for the earliest date, and the defendants appealed. We affirm. I. Facts and Prior Proceedings. Detailed facts of this case are set out in a prior appeal, Wilson v. IBP, Inc., 558 N.W.2d 132 (Iowa 1996), cert. denied, ___ U.S. ___, 118 S.Ct. 52, 139 L.Ed.2d 17 (1997) (Wilson I.) Briefly, Wilson was an employee of IBP when he filed a workers' compensation claim for job injuries. IBP's occupational health nurse, Diane Arndt, told Wilson's doctor that IBP had a videotape showing Wilson was faking his injuries. IBP in fact had no such videotape. Wilson sued IBP and Arndt (collectively IBP) for defamation. The jury awarded Wilson 730 $4000 in compensatory damages and $15 million in punitive damages. IBP moved, alternatively, for a judgment notwithstanding the verdict, a new trial, or remittitur. The court ordered a new trial unless Wilson accepted $100,000 in punitive damages. Wilson declined to accept the reduced amount and filed the appeal in Wilson I. In that appeal, we affirmed the $4000 in compensatory damages but modified the punitive damage award by ordering a new trial or a remittitur of all punitive damages in excess of $2 million. We said that, if Wilson opted for the remittitur, the district court should apportion the $2 million as follows: (1) For payment of applicable fees and costs, including plaintiff's reasonable attorney fees applicable to the recovery of the $2 million award, from the gross punitive damage award of $2 million. (2) For twenty-five percent of the $2 million award in favor of plaintiff ($500,000). (3) For the remainder of the $2 million award after satisfying (1) and (2) apportionments to the Civil Reparations Trust Fund. The judgments shall also include interest as provided by law. Wilson I, 558 N.W.2d at 148 (emphasis added). By this time, the State of Iowa had become interested in this case because, under Iowa Code section 668A.1(2)(b) (1997), the Civil Reparations Trust Fund would share in the punitive damage award. The trust fund intervened and is a party to the present appeal. Wilson accepted the remittitur under Wilson I on March 26, 1997. The district court entered judgment on April 25, 1997, as follows: 1. $4,000.00 compensatory damages, plus 10% per annum interest from the date the petition in this matter was filed, February 16, 1993 as provided by Iowa Code § 535.3. 2. $2,000,000.00 punitive damages, plus 10% per annum interest from the date of the jury verdict, December 2, 1994 as provided by Iowa Code §§ 535.3 and 625.21 to be distributed according to the determination of the Iowa Supreme Court as follows: a. Forty percent (40%) of the total punitive damage award together with interest in the amount of 10% per annum from date of verdict, December 2, 1994, to attorney's fees. b. Twenty-five percent (25%) of the total punitive damage award ($500,000) together with interest in the amount of 10% per annum from date of verdict, December 2, 1994 to plaintiff. c. The remainder, together with interest in the amount of 10% per annum from date of verdict, December 2, 1994, to the Civil Reparations Trust Fund after satisfying 2(a) and 2(b). All court costs assessed against defendant IBP. IBP filed the present appeal, challenging only the court's award of prejudgment interest on the punitive damage award. II. Standard of Review. Any award of interest depends entirely on statute because at common law there was no right to interest on any type of damages. See Arnold v. Arnold, 258 Iowa 850, 854, 140 N.W.2d 874, 877 (1966); V. Woerner, Annotation, Date of verdict or date of entry of judgment thereon as beginning of interest on judgment, 1 A.L.R.2d 479, 480 (1948). This case therefore turns on the application of our interest statutes and our prior cases interpreting them. Questions of statutory interpretation are reviewed for correction of errors at law, In re E.H. III, 578 N.W.2d 243, 245 (Iowa 1998), and of course a district court's legal conclusions are not binding on appeal. State v. Eickelberg, 574 N.W.2d 1, 3 (Iowa 1997). III. The Statutes. The district court relied on Iowa Code sections 535.3 and 625.21. Under section 535.3, [i]nterest shall be allowed on all money due on judgments and decrees of courts at the rate of ten percent per year, unless a different rate is fixed by the contract on 731 which the judgment or decree is rendered, in which case the judgment or decree shall draw interest at the rate expressed in the contract, not exceeding the maximum applicable rate permitted by the provisions of section 535.2, which rate must be expressed in the judgment or decree. The interest shall accrue from the date of the commencement of the action. This section does not apply to the award of interest for judgments and decrees subject to section 668.13. (Emphasis added.) Section 625.21 provides: Except for an action brought pursuant to chapter 668, when the judgment is for the recovery of money, interest from the time of the verdict or report until judgment is finally entered shall be added to the costs of the party entitled to the costs. (Emphasis added.) Both parties face problems in the application of these sections. IBP's problem is that neither statute makes any exception for punitive damages; both of them simply refer to "damages" on which prejudgment interest will be allowed. When a statute is plain on its face, we will not search for a meaning beyond the express terms of the statute. Lockhart v. Cedar Rapids Community Sch. Dist., 577 N.W.2d 845, 847 (Iowa 1998). Wilson's problem, on the other hand, is our cases, which say that prejudgment interest cannot be applied to punitive damages. See, e.g., Nassen v. National States Ins. Co., 494 N.W.2d 231, 239 (Iowa 1992); Hagan v. Val-Hi, Inc., 484 N.W.2d 173, 179 (Iowa 1992); In re Marriage of Baculis, 430 N.W.2d 399, 402 (Iowa 1988); Midwest Management Corp. v. Stephens, 353 N.W.2d 76, 83 (Iowa 1984); Dunshee v. Standard Oil Co., 152 Iowa 618, 631, 132 N.W. 371, 376 (1911); see also In re IBP Confidential Bus. Documents Litig. v. IBP, Inc., 755 F.2d 1300, 1319-20 (8th Cir.1985), aff'd en banc, 797 F.2d 632, 650 (1986) (applying Iowa law), cert. denied, 479 U.S. 1088, 107 S.Ct. 1293, 1294, 94 L.Ed.2d 150 (1987). The view of other jurisdictions is consistent with our own: prejudgment interest is ordinarily not allowed on punitive damages. See Annotation, Right to Prejudgment Interest on Punitive or Multiple Damages Awards, 9 A.L.R.5th 63, 74 (1993) [hereinafter Annotation]; Restatement (Second) of Torts § 913 cmt. d (1979). Contra Latham Seed v. Nickerson Am. Plant Breeders, Inc., 978 F.2d 1493, 1501-02 (8th Cir.1992) (applying Michigan law, applied prejudgment interest in punitive award case). In deciding when interest should begin to accrue, we have several dates from which to choose: December 2, 1994 (the jury's verdict); March 2, 1995 (the date of the district court's order for new trial or remittitur); and April 25, 1997 (the district court's final judgment following our remand in Wilson I). Wilson likes the first date; IBP likes the last. Wilson's alternative argument is that interest should run from the ruling on posttrial motions. The time spread is substantialover two yearsand the amount of interest at stake is considerableseveral hundred thousand dollars. Even more important, however, is our need to harmonize to the extent possible the competing public policies at stake. If we refuse to allow interest on punitive damages until the completion of all posttrial proceedings and appeals, we will almost certainly encourage posttrial proceedings and appeals. The larger the award, of course, the greater the incentive to appeal and the greater the loss to the plaintiff if interest is not allowed. On the other hand, our ruling should not hinder or discourage meritorious posttrial proceedings and appeals in punitive-damage cases, and we should remain mindful that a plaintiff is not "entitled" to punitive damages at the time of filing the suit, as allowed by section 535.3, for the reasons to be explained. In fact, Wilson does not attempt to get interest from the date of filing. Because our interest statutes do not speak to the question of prejudgment interest on punitive damages, we look to the purposes and policies behind the opposing views. The rationale for allowing prejudgment interest on compensatory damages while denying it on punitive damages is explained by the Colorado Supreme Court: Compensatory damages serve a different purpose than punitive damages, and the 732 right to such damages accrues at a different time. Compensatory damages in a negligence action are awarded to cover loss caused by the negligence of another and are intended to make the injured party whole. The addition of prejudgment interest to a judgment for compensatory damages recognizes that the loss caused by the tortious conduct occurred at the time of the resulting injury but that the damages paid to compensate for that loss are not received by the injured party until later. "The interest is compensatory and is awarded to indemnify the plaintiff for the loss of earnings on that money due to its delayed payment." Prejudgment interest on compensatory damages, therefore, is necessary to make the plaintiff whole. The same cannot be said of prejudgment interest on punitive damages. Punitive damages are awarded to punish the wrongdoer and deter similar acts. A plaintiff who establishes liability for personal injury is entitled to compensatory damages. In contrast, because punitive damages do not compensate for loss resulting from the injury, an award of punitive damages remains at the discretion of the trier of fact even after the plaintiff has established that such damages are permissible. Until that discretion is exercised, the right to punitive damages does not arise. Seaward Constr. Co. v. Bradley, 817 P.2d 971, 975 (Colo.1991) (citations omitted). The Nevada Supreme Court has made a similar observation: A plaintiff is never entitled to punitive damages as a matter of right; their allowance or denial rests entirely in the discretion of the trier of fact. Therefore, the amount of punitive damages to be awarded cannot be ascertained until the trier of fact has heard all the evidence. Because the amount of punitive damages to be awarded is not known until the judgment is rendered, we hold that prejudgment interest may not be granted by a trial court on punitive damage awards. Ramada Inns, Inc. v. Sharp, 101 Nev. 824, 711 P.2d 1, 2 (Nev.1985) (citations omitted). A federal circuit court, applying Iowa law, reversed a district court judgment that had allowed prejudgment interest on punitive damages under Iowa Code section 535.3. The court said: Although the statute [section 535.3] on its face admits of no exception for punitive damage awards, we cannot agree with this construction [by the district court allowing prejudgment interest]. Interest is compensation for the deprivation of the use of money. Punitive damages do not accrue, however, until they are awarded in a judgment. It would be anomalous indeed to compensate the plaintiff for the deprivation of the use of money to which he has no claim of right. In re IBP Confidential Bus. Documents Litig., 755 F.2d at 1320 (citing Midwest Management Corp., 353 N.W.2d at 82). Wilson argues that the court's order for interest commencing with the jury's verdict is consistent with the rule that interest is due from the date of judgment, because the jury's verdict was in effect a "judgment" for purposes of computing interest. He relies on the definition of judgment provided in Moreno v. Vietor: Although some of our cases say there is no judgment until it has been entered of record, we believe the more accurate analysis of the cases is that a judgment is rendered when it is announced, or when the judge writes in his calendar a statement of his decision or a jury returns a verdict but that there is no competent evidence of such rendition until the entry is made on the court record. 261 Iowa 806, 810, 156 N.W.2d 305, 307 (1968) (emphasis added). Wilson also focuses on the purpose underlying section 535.3, which is to discourage "persons obligated to pay money to another from profiting through delays in litigation." Baculis, 430 N.W.2d at 401 (citing Dillon v. City of Davenport, 366 N.W.2d 918, 926 (Iowa 1985)); see also Mercy Hosp. v. Hansen, Lind & Meyer, P.C., 456 N.W.2d 666, 674 (Iowa 1990) ("[A]pplication of the statute's plain language will nevertheless further its goal of preventing persons rightfully obligated to pay money to another from profiting through delays in litigation."); Janda v. Iowa Indus. Hydraulics, Inc., 326 N.W.2d 339, 344 733 (Iowa 1982) (retrospectively applying increased statutory interest rate under section 535.3 in order to discourage delays and appeals). Wilson contends IBP delayed his receipt of the punitive damages award during the appeal time, even though, as IBP points out, Wilson was the party who appealed. (IBP, of course, was responsible for the posttrial motions that led to the appeal.) IBP argues that allowing interest from the date of the verdict would contravene the holdings of our previous cases that have held interest on punitive damages runs only from the date of the judgment. However, those cases must be considered in light of the specific issues raised in them: whether interest accrued at the time the action was filed as provided by Iowa Code section 535.3. We held it did not, presumably because the plaintiffs entitlement to punitive damages was too uncertain at the time of filing. See, e.g., Nassen, 494 N.W.2d at 239; Hagan, 484 N.W.2d at 179; Baculis, 430 N.W.2d at 402. Because these cases involved the question whether interest runs from the date of filing, as provided by section 535.3, and not whether interest commences with the punitive-damage verdict, they must be distinguished. Allowing interest in this case from the date of the verdict is consistent with Iowa Code section 625.21 and our earlier cases, yet it recognizes the opposing policy considerations underlying this issue. When the jury returned its verdict awarding Wilson punitive damages, he acquired a "claim of right" that entitled him to interest. See In re IBP, Confidential Bus. Documents Liting., 755 F.2d at 1320. He acquired this claim of right because at that point the "discretion of the trier of fact" had been exercised in favor of punitive damages. See Seaward Constr., 817 P.2d at 975; see also Kaiser Alum. & Chem. Corp. v. Bonjorno, 494 U.S. 827, 836, 110 S.Ct. 1570, 1576, 108 L.Ed.2d 842, 852 (1990) (applying federal interest statute, holding interest should accrue when damages have been "`ascertained' in any meaningful way"). The district court properly added interest from the date of the verdict. AFFIRMED.	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 99-2814 ___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Arkansas. Bryan W. Wright, * [UNPUBLISHED] * Appellant. * ___________ Submitted: December 16, 1999 Filed: December 22, 1999 ___________ Before BOWMAN, FAGG, and MURPHY, Circuit Judges. ___________ PER CURIAM. Bryan Wright pleaded guilty to conspiring to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. He objected to the presentence report’s recommendation that he receive a two-level enhancement for possessing a firearm in connection with the offense, but he withdrew his objection at sentencing. The district court1 sentenced Wright to 121 months imprisonment and 5 years supervised release. On appeal, Wright argues that the court erroneously applied the weapon enhancement. 1 The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas. By withdrawing his objection to the weapon enhancement at sentencing, Wright intentionally relinquished or abandoned it, resulting in a waiver that extinguished his claim altogether. Therefore, we need not review it, even for plain error. See United States v. Olano, 507 U.S. 725, 733 (1993); United States v. Tulk, 171 F.3d 596, 600 (8th Cir. 1999); United States v. Gutierrez, 130 F.3d 330, 332 (8th Cir. 1997). Accordingly, we affirm the judgment of the district court. A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT. -2-	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 02-2378 JEANETTE PERRY-BEY, Plaintiff - Appellant, versus CITY OF NORFOLK, a municipal corporation, Defendant - Appellee, and REGINA WILLIAMS, individually and in her official capacity as the City Manager of the City of Norfolk; MELVIN C. HIGH, individually and in his official capacity as the Chief of the City of Norfolk Police Department; CAPTAIN SHARON L. CHAMBERLIN, individually and in her official capacity as a member of the City of Norfolk Police Department; LIEUTENANT C. W. BREWER, individually and in his official capacity as a member of the City of Norfolk Police Department; LIEUTENANT P. S. MIDGETT, individually and in his official capacity as a member of the City of Norfolk Police Department; OFFICER JUDY HASH, individually and in her official capacity as a member of the City of Norfolk Police Department; OFFICER D. J. POWELL, individually and in her official capacity as a member of the City of Norfolk Police Department, Defendants. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (CA-02-7-2) Submitted: July 25, 2003 Decided: August 20, 2003 Before TRAXLER, KING, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Jeanette Perry-Bey, Appellant Pro Se. Bernard Anthony Pishko, Joan Elizabeth Mahoney, Melvin Wayne Ringer, CITY ATTORNEY’S OFFICE, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). 2 PER CURIAM: Jeanette Perry-Bey appeals the district court’s order granting summary judgment in favor of her former employer, the City of Norfolk, in her civil action alleging retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3 (2000). We have reviewed the record and find no reversible error. Accordingly, we affirm substantially on the reasoning of the district court. See Perry-Bey v. City of Norfolk, No. CA-02-7-2 (E.D. Va. Oct. 31, 2002). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 3	{ "pile_set_name": "FreeLaw" }
DLD-073 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 11-3980 ___________ UNITED STATES OF AMERICA, v. CRAIG BROWN, a/k/a BEY, Appellant ____________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 97-cr-00544-001) District Judge: Honorable Anita B. Brody ____________________________________ Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 and the Issuance of a Certificate of Appealability December 22, 2011 Before: AMBRO, JORDAN and VANASKIE, Circuit Judges (Opinion filed: January 4, 2012) _________________ OPINION _________________ PER CURIAM Craig Brown appeals from the District Court’s orders declining to reconsider its 1 denial of his motion for a modification of his sentence. For the following reasons, we will summarily affirm. I. In 1998, Brown was found guilty by a jury in the Eastern District of Pennsylvania of possession of cocaine base with the intent to distribute and possession of a firearm by a convicted felon. He was sentenced to 360 months of imprisonment. This Court affirmed his judgment of sentence. In June 2009, Brown filed a “motion for adjustment modification of an imposed term of imprisonment pursuant to 18 U.S.C. [§] 3582(c), (1), (B) predicated upon another modifying statute 28 U.S.C. [§] 2255.” He claimed that he was (1) wrongly sentenced as a career offender because the predicate convictions upon which his career offender status was based were improperly designated as crimes of violence, see Begay v. United States, 553 U.S. 137 (2008); United States v. Johnson, 587 F.3d 203 (3d Cir. 2009); (2) denied due process as a result of his improper sentencing; and (3) actually innocent of being a career offender. The District Court treated the motion as a § 2255 motion and denied it as untimely. Brown filed a timely motion for reconsideration, arguing that the District Court erred in construing his motion as a § 2255 motion instead of a § 3582 motion. He was subsequently appointed counsel, who filed a second motion for reconsideration. Counsel appeared to agree with the District Court’s characterization of the motion as a § 2255 motion, but argued that the motion was, in fact, timely and that, alternatively, relief was 2 available to Brown pursuant to 28 U.S.C. § 2241. The District Court denied both motions for reconsideration. Brown timely appealed. II. “When a § 3582 motion requests the type of relief that § 3582 provides for – that is, when the motion argues that sentencing guidelines have been modified to change the applicable guidelines used in the defendant’s sentencing – then the motion is rightly construed as a motion to amend sentencing pursuant to § 3582.” United States v. Carter, 500 F.3d 486, 490 (6th Cir. 2007). However, “when a motion titled as a § 3582 motion otherwise attacks the petitioner’s underlying conviction or sentence, that is an attack on the merits of the case and should be construed as a § 2255 motion.” Id.; Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002) (“Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal prisoners can challenge their convictions or sentences that are allegedly in violation of the Constitution.”). The District Court properly viewed Brown’s motion as having been brought pursuant to § 2255 because the motion attacks his sentence based on an alleged constitutional violation and/or a fundamental miscarriage of justice that occurred during his sentencing. See 28 U.S.C. § 2255(a). Indeed, Brown’s own filings confirm that he is seeking relief under § 2255 as the “modifying statue” that would permit the court to reduce his sentence.1 Furthermore, Brown’s contentions that he was inappropriately 1 Brown’s argument to the contrary is based on § 3582(c)(1)(B), which states that, despite § 3582(c)’s general prohibition against modification of a term of imprisonment, a court is 3 sentenced as a career offender and that his sentence violates the constitution do not provide a basis for relief under § 3582(c). Nor is Brown entitled to pursue his claims through § 2241. A prisoner may proceed under § 2241 if § 2255 would be “inadequate of ineffective.” 28 U.S.C. § 2255(e); Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam). We have held that § 2255’s “safety valve” applies only in rare circumstances, such as when an intervening change in the statute under which the petitioner was convicted renders the petitioner’s conduct non-criminal. See In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). Brown has not satisfied that standard here, as he makes no allegation that he is actually innocent of the crime for which he was convicted, but instead asserts only that he is “innocent” of being a career offender. See Okereke, 307 F.3d at 120-21 (holding that Dorsainvil did not permit petitioner to challenge sentence via § 2241 based on intervening change in sentencing law). entitled to modify a sentence when “otherwise expressly permitted by statute.” That § 2255 is among the statutes expressly permitting modification of a sentence does not permit Brown to circumvent the requirements applicable to § 2255 motions by referencing the provision through § 3582. Furthermore, although district courts are generally required to provide notice to a pro se litigant before re-characterizing a motion as a § 2255 motion, see United States v. Miller, 197 F.3d 644, 652 (3d Cir. 1999), it is difficult to say that the District Court engaged in any re-characterization here given Brown’s express reliance on § 2255. Regardless, the District Court did not err in failing provide notice because the § 2255 motion was untimely, as discussed further below. See United States v. Chew, 284 F.3d 468, 471 (3d Cir. 2002) (no Miller warning was required where the statute of limitations already barred petitioner from filing a § 2255 motion at the time of re-characterization). 4 Brown must obtain a certificate of appealability to appeal the District Court’s denial of his § 2255 motion. See 28 U.S.C. § 2253(c). We decline to grant him one because reasonable jurists would agree that the District Court correctly dismissed his motion as time-barred. See Slack v. McDaniel, 529 U.S. 473, 478 (2000). A one-year statute of limitations applies to § 2255 motions and begins to run on the latest of four possible dates, the most common being the date on which the movant’s judgment of conviction became final. § 2255(f)(1). As Brown’s § 2255 motion was filed approximately ten years after his judgment of conviction became final, it is clearly untimely under that approach. Furthermore, none of § 2255(f)’s alternative start dates applies nor is there any apparent basis for equitable tolling. For the foregoing reasons, we decline to issue a certificate of appealability with respect to the District Court’s denial of Brown’s § 2255 motion and summarily affirm the remaining aspects of the District Court’s rulings. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6. 5	{ "pile_set_name": "FreeLaw" }
165 F.3d 39 Arnoldv.CFTR* NO. 97-5922 United States Court of Appeals,Eleventh Circuit. November 25, 1998 1 Appeal From: S.D.Fla. , No.97-08668-CV-ASG 2 Affirmed. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3	{ "pile_set_name": "FreeLaw" }
806 So.2d 1198 (2001) Ex parte Thomas W. EARLY and Tonya S. Early. (Re Thomas W. Early and Tonya S. Early v. Conseco Finance Corp.-Alabama, a Delaware Corporation, et al.) 1991923. Supreme Court of Alabama. June 15, 2001. 1200 David Michael Huggins of Turner, Onderdonk, Kimbrough & Howell, P.A., Mobile, for petitioners. Barre C. Dumas of Dumas & McPhail, L.L.C., Mobile, for Conseco Finance Corp.-Alabama. STUART, Justice. Thomas W. Early and Tonya S. Early are the plaintiffs in an action pending in the Baldwin Circuit Court against Conseco Finance Corp.-Alabama ("Conseco"). The Earlys petition this Court for a writ of mandamus directing the circuit court to vacate its order granting Conseco's motion to compel arbitration of the Earlys' claim and to allow discovery and further proceedings before the trier of fact. The Earlys visited the business of Real Home Properties, Inc. ("Real Home"), another defendant in the Earlys' action, to inquire about purchasing a mobile home. The Earlys and Real Home agreed upon terms for the purchase, and the Earlys made a partial deposit toward the purchase. The Earlys were asked to return at a later date when the paperwork for their financing had been completed; the financing was to be provided through Green Tree Financial Corporation-Alabama (now Conseco). At this stage, the Earlys had not seen an arbitration agreement, nor had arbitration been mentioned to them. When the Earlys returned to Real Home to make an additional deposit, they were presented for the first time with a manufactured-home retail-installment contract and security agreement (the "installment contract") and other documents for execution. Within the installment contract was an arbitration clause, and included within other closing documentation was a separate, blank-form arbitration agreement. The Earlys refused to sign any arbitration agreement and indicated they would take their business elsewhere. Real Home consulted with a representative of Conseco, who refused to remove the arbitration agreement. The Earlys were then told that if they refused to sign the arbitration agreements presented at the time of the closing they would not be allowed to purchase the mobile home and would forfeit the down payment they had made. It was only when the Earlys refused to sign the arbitration agreements presented to them that they were threatened with the loss of their down payment. The Earlys contend that, because of what they call this "economic duress" specifically directed to the execution of the arbitration agreement presented (as opposed to the contract as a whole), Real Home obtained their execution of the arbitration agreements presented. They assert that they did not voluntarily agree to waive their right to a jury trial. On December 9, 1999, the Earlys sued. They demanded a jury trial. One of the defendants, Conseco, filed a motion to compel arbitration. Thereafter, the defendant Real Home filed a motion to dismiss and a motion to enforce the arbitration agreement. After receiving briefs from the parties and conducting a hearing on the matter, the trial court granted the motions to compel arbitration, without making any findings on the issues raised as to the making of the agreements to arbitrate. The Earlys petition for a writ of mandamus directing the trial court to vacate its order compelling arbitration and to allow them to conduct discovery and to have a hearing before the trier of fact on the issue whether the alleged economic duress prevented their execution of the arbitration agreements from being voluntary. 1201 "`Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995)." Ex parte CTB, Inc., 782 So.2d 188, 190 (Ala.2000). A review of the limited record before this Court indicates that no discovery was conducted and that although the court held a hearing it made no written findings. This Court is unable to determine whether the trial court, in entering its order compelling arbitration, was referring the issue of alleged economic duress in the inducement to sign the arbitration agreement to the arbitrator for determination, or whether the trial court found no evidence of economic duress and concluded that the arbitration agreement was voluntarily entered into and therefore was enforceable. The Earlys attack only the enforceability of the arbitration agreement, not the enforceability of the contract as a whole. "[A] party who contests the making of a contract containing an arbitration provision cannot be compelled to arbitrate the threshold issue of the existence of an agreement to arbitrate. Only a court can make that decision." Shearson Lehman Bros., Inc. v. Crisp, 646 So.2d 613, 616-17 (Ala.1994). (Emphasis omitted.) The preliminary question of arbitrability, that is, the question whether the parties ever agreed to the arbitration clause itself, thereby relinquishing their right to have a court or jury decide the merits of a dispute, is not subject to a presumption favoring arbitration. Conseco argues that the parties agreed to arbitrate the issue of arbitrability. The United States Supreme Court, in First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995), indicated that while parties may agree to arbitrate issues of arbitrability, it is for the court to determine whether there is "clear and unmistakable" evidence that there was such an agreement. 514 U.S. at 944, 115 S.Ct. 1920. An arbitration agreement is a waiver of a party's right to a jury trial. While the Federal Arbitration Act ("FFA") and cases decided under that Act favor arbitration, the initial agreement to arbitrate, with its concurrent waiver of the right to a judicial determination of disputes, must be made knowingly, willingly and voluntarily. Allstar Homes, Inc. v. Waters, 711 So.2d 924 (Ala.1997). Arbitration agreements, and particularly agreements to submit the issue of arbitrability to arbitration, are not self-proving. An arbitration agreement is subject to the same general contract defenses applicable to other contracts, such as fraud, duress, or unconscionability. Doctor's Associates, Inc. v. Casarotto, 517 U.S. 681, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996). The Earlys argue their execution of the arbitration agreement was secured by means of economic duress. It is well established that the FAA does not require parties to arbitrate a dispute that they did not agree to submit to arbitration; the trial court must determine whether the parties agreed to arbitrate. Allstar Homes, Inc. v. Waters, 711 So.2d 924. "`If there is doubt as to whether such an agreement exists, the matter, upon a proper and timely demand, should be submitted to a jury. Only when there is no genuine issue of fact concerning the formation of the agreement should the court decide as a matter of law that the 1202 parties did or did not enter into such an agreement.'" Allstar Homes, Inc. v. Waters, 711 So.2d at 929 (quoting Shearson Lehman Bros. v. Crisp, 646 So.2d at 617). In this inquiry, there is no presumption in favor of arbitration. First Options of Chicago, Inc. v. Kaplan, supra. The trial court's duty in regard to this inquiry is analogous to its duty in ruling on a motion for summary judgment. It must hold a hearing and determine whether there are genuine issues concerning the making of the agreement to arbitrate. If the court finds there are genuine issues, such as is alleged in this case as to whether the agreement to arbitrate was entered into involuntarily because of economic duress, the issue must be submitted to a jury, if one has been timely demanded, or otherwise determined by the court as the trier of fact, after a full hearing. Only if the trial court finds that there is no genuine issue of fact may it summarily grant or deny a motion to compel arbitration, where a party has adequately asserted contract defenses to the agreement to arbitrate. We cannot determine from the limited record before us whether the trial court conducted the necessary hearing to determine whether the Earlys entered into the arbitration agreement because of economic duress. It has made no findings of fact. The Earlys, additionally, request that this Court order the trial court to permit discovery before it rules on the defendants' motions to compel arbitration. With its motion to compel arbitration, Conseco filed exhibits and a supporting affidavit. It carried its initial burden of proving the existence of an arbitration clause appearing in a contract made in regard to a transaction that substantially affects interstate commerce. See Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759, 765 (Ala.2000). The Earlys filed a response resisting arbitration; the response included an affidavit of Thomas Early in which he stated that he had agreed with all the terms of the contract except the arbitration clause; that he had informed Jimmy Phillips, of Real Home, that he would not sign the contract unless the arbitration clause was removed and that he would take his business elsewhere; and that he was told that if he did not sign the arbitration agreement and conclude the purchase of the mobile home he would lose his down payment of more than $4,000. He further described his and his wife's financial condition and stated that he had signed the arbitration agreement involuntarily and under economic duress. An affidavit from the party opposing arbitration, stating the matters within his knowledge, is the minimum predicate for further discovery sought in opposition to a properly supported motion to compel arbitration. In that affidavit, the nonmoving party can describe the circumstances within that party's knowledge that are relevant to defenses to arbitration. Ex parte Greenstreet, Inc., 806 So.2d 1203 (Ala.2001). The Earlys have supplied this predicate. Where information beyond the knowledge of the opposing party is essential to the resolution of the issue, so that discovery is necessary, the party seeking discovery must comply, to the extent applicable, with Rule 56(f), Ala. R.Civ.P. See Ex parte Greenstreet, Inc. The party seeking discovery must demonstrate the need for discovery and must allege generally the matters he expects to be revealed in discovery and how they are relevant to the issue of arbitrability. Upon a proper showing, the trial court shall allow the parties to conduct limited discovery before the court rules on a properly 1203 supported motion to compel arbitration.[1] The trial court is directed to vacate its order compelling arbitration and to conduct further proceedings in the Earlys' action in accordance with this opinion. PETITION GRANTED; WRIT ISSUED. MOORE, C.J., and HARWOOD, J., concur. SEE and BROWN, JJ., concur in the result. NOTES [1] The Earlys' discovery request filed with their complaint is broad and addresses all the issues of their action. The discovery permitted before the court conducts a hearing and rules on the issue of arbitrability must be limited in scope to the contract defense or defenses asserted by the party resisting arbitration.	{ "pile_set_name": "FreeLaw" }
912 F.2d 1255 Bankr. L. Rep. P 73,603In re William E. BRAYSHAW, Debtor.H. Christopher CLARK, Trustee-Appellant,v.William E. BRAYSHAW, Debtor-Appellee. No. 90-1061. United States Court of Appeals,Tenth Circuit. Aug. 31, 1990. Paul G. Quinn, Denver, Colo., for trustee-appellant. Paul D. Rubner and Larry A. Sigman of Rubner & Kutner, Denver, Colo., for debtor-appellee. Before LOGAN, SEYMOUR and TACHA, Circuit Judges. LOGAN, Circuit Judge. 1 H. Christopher Clark, the trustee in this Chapter 7 bankruptcy proceeding, appeals the district court's order that reversed an extension of time the bankruptcy court granted the trustee to file objections to exemptions claimed by the debtor, William E. Brayshaw.1 110 B.R. 935. 2 Debtor filed his bankruptcy petition on May 10, 1989, claiming exempt property, pursuant to 11 U.S.C. Sec. 522(l). Under that section, property claimed as exempt automatically becomes exempt unless a party objects. Fed.R.Bankr.P. 4003(b) provides that objections must be filed within thirty days after the meeting of creditors, "unless, within such period, further time is granted by the court." The trustee here filed a motion to extend the time for objections within the thirty-day period, actually on the thirtieth day after the creditor's meeting, and the bankruptcy court granted the motion after its expiration. The district court granted the debtor leave to take an interlocutory appeal under 28 U.S.C. Sec. 158(a) and reversed the bankruptcy court's extension order. 3 There are two issues on this appeal: (1) whether the district court's order is an appealable final order; and (2) whether the bankruptcy court had power to grant a motion to extend time for objections under Rule 4003(b) after expiration of the designated thirty-day time period, provided the motion was filed within the period. 4 * We have jurisdiction in bankruptcy cases only over final orders of district courts when they have exercised appellate jurisdiction. See 28 U.S.C. Sec. 158(d); Kaiser Steel Corp. v. Frates (In re Kaiser Steel Corp.), 911 F.2d 380, 386 (10th Cir.1990). "Grant or denial of a claimed exemption is a final appealable order from a bankruptcy proceeding." Sumy v. Schlossberg (In re Sumy), 777 F.2d 921, 923 (4th Cir.1985) (citing White v. White (In re White), 727 F.2d 884, 885-86 (9th Cir.1984)). Although the bankruptcy court order extending the time for objections did not finally dispose of the status of the debtor's exemptions, the district court's reversal of that order had the effect of granting the debtor's claimed exemptions and, therefore, is a final appealable order. II 5 Rule 4003(b) provides that "[t]he trustee ... may file objections to the list of property claimed as exempt within 30 days after the conclusion of the meeting of creditors ... unless, within such period, further time is granted by the court." (Emphasis added). Rule 9006(b) allows enlargement of time periods, but specifically provides that "[t]he court may enlarge the time for taking action under Rule[ ] ... 4003(b) ... only to the extent stated in [that] rule[ ]." Fed.R.Bankr.P. 9006(b)(3). The Rules are quite clear on their face, we believe, that a bankruptcy court can extend the period for objections to exemptions only by acting within the original time period. See 8 Collier on Bankruptcy p 4003.04, at 4003-10 (L. King 15th ed. 1990). There simply is no room in the wording for construing Rule 4003(b) or Rule 9006(b) to permit granting an extension of time to file objections outside the original thirty-day time limit. We recognize that this may cause problems for many bankruptcy courts with crowded dockets or when the motion has been filed, as here, on the last day. But that is a matter for the drafters of the bankruptcy rules, who appear to have thought precise time limitations were important in the situation presented here. We hold that the bankruptcy court was without power to grant the trustee's motion for an extension once the original period expired. 6 AFFIRMED. 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 case is therefore ordered submitted without oral argument	{ "pile_set_name": "FreeLaw" }
110 U.S. 156 (1884) UNITED STATES, on the relation of Chandler, v. COUNTY COMMISSIONERS OF DODGE COUNTY. Supreme Court of United States. Submitted January 4th, 1884. Decided January 21st, 1884. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA. Mr. William H. Munger for plaintiff in error. Mr. J.T. Newton, Mr. Lewis A. Groff, and Mr. C.S. Montgomery for defendants in error. MR. JUSTICE GRAY delivered the opinion of the court. This is a writ of error to reverse a judgment of the Circuit Court of the United States for the District of Nebraska, denying 157 a peremptory writ of mandamus to command the county commissioners of the county of Dodge, in the State of Nebraska, to levy a special tax upon the taxable property within Fremont Precinct, a local subdivision of that county, to pay and satisfy two judgments obtained by the petitioner against the county, in that court, upon interest coupons attached to bonds issued by the county commissioners in behalf of the precinct on September 1st, 1871, under the statute of Nebraska of February 15th, 1869, for the purpose of building a wagon bridge across the Platte River in that precinct, and purchased by the petitioner in good faith in the usual course of business, and without notice of any defects or infirmities; each of which judgments provided that they should be paid by such a levy. To an alternative writ of mandamus, alleging the facts above stated, the county commissioners filed an answer, alleging that the bonds, which were signed and sealed by the county commissioners, were in this form: "UNITED STATES OF AMERICA, STATE OF NEBRASKA. "It is hereby certified that Fremont Precinct, in the county of Dodge, in the State of Nebraska, is indebted unto the bearer in the sum of one thousand dollars, payable on or before twenty years after date, with interest at the rate of ten per cent. per annum from date. Interest payable annually on the presentation of the proper coupons hereunto annexed. Principal payable at the office of the county treasurer, in Fremont, Dodge County, Nebraska; interest payable at the Ocean National Bank, in the City of New York. "This bond is one of a series issued in pursuance of and in accordance with a vote of the electors of said Fremont Precinct at a special election held on the eleventh day of November, A.D. 1870, at which time the following proposition was submitted: "`Shall the county commissioners of Dodge County, Nebraska, issue their special bonds on Fremont Precinct, in said county, to the amount not to exceed fifty thousand dollars, to be expended and appropriated by the county commissioners, or as much thereof as is necessary, in building a wagon bridge across Platte River, in said precinct; said bonds to be made payable 158 on or before twenty years after date, bearing interest at the rate of ten per cent. per annum, payable annually?' Which proposition was duly elected, adopted, and accepted by a majority of the electors of said precinct voting in favor of the proposition. "And whereas the Smith Bridge Company of Toledo, Ohio, have entered into a contract with said county commissioners to furnish the necessary materials and to build and construct said bridge referred to in the foregoing proposition: "Therefore this bond, with others, is issued in pursuance thereof, as well as under the provisions of an act of the legislature of the State of Nebraska, approved February 15th, A.D. 1869, entitled `An Act to enable counties, cities, and precincts to borrow money on their bonds or to issue bonds, to aid in the construction or completion of works of internal improvement in this State, and to legalize bonds already issued for such purposes.' "In witness whereof, we, the said county commissioners of said Dodge County, have hereunto set our hands, this ____ day of ____, A.D. 1871." The answer further alleged that the proposition to vote the bonds, submitted to and voted upon by the voters of the precinct, contained a provision that the tax levied in any one year should not exceed one mill on a dollar of the valuation of the taxable property within the precinct, and was entered on the records of the county; and that a tax of one mill had since been annually levied. A general demurrer to the answer was overruled by the Circuit Court, and judgment entered accordingly; and thereupon this writ of error was sued out. The decision of this case depends upon the peculiar provisions of the statutes of Nebraska, and an examination of those statutes leaves us in no doubt how it should be decided. In the Revised Statutes of 1866, the ninth chapter, concerning county commissioners, contained the following provisions: "SECT. 19. The said commissioners shall have power to submit to the people of the county, at any regular or special election, the question whether the county will borrow money to aid in the construction of public buildings, the question whether the county will aid or construct any road or bridge, or to submit to the people of 159 the county any question involving an extraordinary outlay of money by the county; and said commissioners may aid any enterprise designed for the benefit of the county as aforesaid, whenever a majority of the people thereof shall be in favor of the proposition, as provided in this section. "SECT. 20. When county warrants are at a depreciated value, the said commissioners may, in like manner, submit the question whether a tax of a higher rate than that provided by law shall be levied; and in all cases when an additional tax is laid, in pursuance of a vote of the people of the county, for the special purpose of repaying borrowed money, or of constructing or ordaining to construct any road or bridge, or for aiding in any enterprise contemplated by the preceding section, such special tax shall be paid in money and in no other manner. "SECT. 21. The mode of submitting questions to the people, contemplated by the last two sections shall be the following: The whole question, including the sum to be raised, or the amount of the tax desired to be levied, or the rate per annum, and the whole regulation, including the time of its taking effect or having operation, if it be of a nature to be set forth, and the penalty of its violation, if there be one, is to be published at least four weeks in some newspaper published in the county. If there is no such newspaper published, the publication is to be made by being posted up in at least one of the most public places in each election precinct in the county. And in all cases the notices shall name the time when such question will be voted upon, and the form in which the question shall be taken; and a copy of the question submitted shall be posted up at each place of voting during the day of election. "SECT. 22. When the question submitted involves the borrowing or expenditure of money, the proposition of the question must be accompanied by a provision to lay a tax for the payment thereof, in addition to the usual taxes under section sixteen of this chapter; and no vote adopting the question proposed shall be valid, unless it likewise adopt the amount of tax to be levied to meet the liability incurred. "SECT. 23. The rate of tax to be levied in pursuance of the last four sections of this chapter shall in no case exceed three mills on the dollar of the county valuation in one year. When the object is to borrow money to aid in the erection of public buildings, the 160 rate shall be such as to pay the debt in ten years; when the object is to construct or aid in constructing any road or bridge, the annual rate shall not exceed one mill on a dollar of the valuation; and any special tax or taxes levied in pursuance of this chapter, becoming delinquent, shall draw the same rate of interest as ordinary taxes levied in pursuance of the revenue laws of this Territory." But the statute of February 15th, 1869, as amended by a statute of March 3d, 1870, and under which the bonds in question were issued, provides as follows: "SECT. 1. Any county or city in the State of Nebraska is hereby authorized to issue bonds to aid in the construction of any railroad, or other work of internal improvement, to an amount to be determined by the county commissioners of such county or the city council of such city, not exceeding ten per centum of the assessed valuation of all taxable property in said county or city: Provided, the county commissioners or city council shall first submit the question of the issuing of such bonds to a vote of the legal voters of said county or city, in the manner provided by chapter nine of the Revised Statutes of the State of Nebraska, for submitting to the people of the county the question of borrowing money. "SECT. 2. The proposition of the question must be accompanied by a provision to levy a tax annually for the payment of the interest on said bonds as it becomes due: Provided, that an additional amount shall be levied and collected to pay the principal of said bonds, when it shall become due; and Provided further, that no tax shall be levied or collected to pay any of the principal of said bonds until the year 1880. "SECT. 3. The proposition shall state the rate of interest such bonds shall draw, and when the principal and interest shall be made payable." "SECT. 5. It shall be the duty of the proper officers of such county or city to cause to be annually levied, collected, and paid to the holders of such bonds a special tax on all taxable property within said county or city, sufficient to pay the annual interest as the same becomes due; and when the principal of said bonds becomes due, such officers shall in like manner collect an additional 161 amount sufficient to pay the same as it becomes due;" with certain restrictions as to the amount to be levied and collected in any one year towards payment of the principal. "SECT. 6. Any county or city, which shall have issued its bonds in pursuance of this act, shall be estopped from pleading want of consideration therefor; and the proper officers of such county or city may be compelled, by mandamus or otherwise, to levy the tax herein provided to pay the same. "SECT. 7. Any precinct in any organized county of this State shall have the privilege of voting to aid works of internal improvement, and be entitled to all the privileges conferred upon counties and cities by the provisions of this act; and in such case the precinct election shall be governed in the same manner as is provided in this act, so far as the same is applicable, and the county commissioners shall issue special bonds for such precinct, and the tax to pay the same shall be levied upon the property within the bounds of such precinct. Such precinct bonds shall be the same as other bonds, but shall contain a statement showing the special nature of such bonds." Under either statute, the submission of the question to the people must be accompanied by a provision to levy a tax. But whereas the statute of 1866 provided that no vote adopting the question proposed should be valid unless it likewise adopted the amount of tax to be levied to meet the liability incurred, and that when the object was to construct or aid in constructing any road or bridge the annual rate should not exceed one mill on a dollar on the valuation, the statute of 1869, as amended by the statute of 1870, omits both these provisions, and peremptorily enacts that the proposition of the question shall be accompanied by a provision to levy a tax annually, sufficient for the payment of the interest as it becomes due; that it shall be the duty of the proper municipal officers to cause to be annually levied, collected, and paid to the holders of the bonds a special tax, sufficient so to pay the annual interest; and that they may be compelled, by mandamus or otherwise, to levy such a tax. The later statute, as to objects included in it, clearly repeals to this extent the earlier statute, removes the limit imposed upon the amount to be levied, and takes away the power of 162 the voters to limit that amount, and requires a tax to be levied and collected sufficient to pay the whole interest for the year; and it is equally clear that a bridge across the Platte River is a work of internal improvement, for the benefit of the public, and within the scope and the terms of the statute of 1869. County Commissioners v. Chandler, 96 U.S. 205; Fremont Building Association v. Sherwin, 6 Neb. 48. The petitioner is therefore entitled to a peremptory writ of mandamus to the county commissioners to levy a tax on the taxable property of Fremont Precinct, sufficient to pay the amount of the judgments recovered in the Circuit Court for the interest due on the bonds held by him. Davenport v. Dodge County, 105 U.S. 237. Judgment reversed.	{ "pile_set_name": "FreeLaw" }
REVISED JANUARY 30, 2008 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED January 3, 2008 No. 06-41637 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff - Appellee v. JUAN ANTONIO LOPEZ-SALAS Defendant - Appellant Appeal from the United States District Court for the Southern District of Texas Before KING, BARKSDALE, and DENNIS, Circuit Judges. PER CURIAM: Defendant-appellant Juan Antonio Lopez-Salas appeals his sentence. He argues that it was improperly enhanced pursuant to section 2L1.2(b)(1)(A)(i) of the United States Sentencing Guidelines because his prior North Carolina conviction for transporting marijuana does not constitute a drug trafficking offense. We VACATE his sentence and REMAND for re-sentencing. I. BACKGROUND On May 9, 2006, Lopez-Salas, an alien and citizen of Mexico, was arrested for being unlawfully present in the United States. Lopez-Salas was previously deported on December 26, 1996, after being convicted in North Carolina state No. 06-41637 court and sentenced to seven years of imprisonment for conspiring to transport marijuana under section 90-95(h) of the General Statutes of North Carolina. On May 30, 2006, Lopez-Salas was charged with being found unlawfully present in the United States after deportation and conviction of an aggravated felony in violation of 8 U.S.C. §§ 1326(a) and 1326(b). He pleaded guilty on October 3, 2006, without the benefit of a plea agreement. A pre-sentencing investigation report was prepared by the United States Probation Office, which recommended a sixteen-level enhancement on the grounds that Lopez-Salas’s prior North Carolina conviction was a drug trafficking offense under section 2L1.2(b)(1)(A)(i) of the United States Sentencing Guidelines (the “Guidelines”). Lopez-Salas objected to the enhancement, arguing that the underlying North Carolina statue did not create a drug trafficking offense because it punished mere possession without proof of an intent to distribute. On November 8, 2006, the district court overruled Lopez- Salas’s objection because the North Carolina indictment charged him with conspiring “to commit the felony of trafficking by transporting 100 pounds or more but less than 2000 pounds of marijuana.” According to the court, sustaining the objection would have required it to “ignore what . . . commonly happens in our courts day in and day out,” that is, courts consider the “quantity of a controlled substance as evidence sufficient to support a finding that the person did so with the intent to distribute . . . .” The district court, therefore, sentenced Lopez-Salas to forty-one months of imprisonment. On November 9, 2006, Lopez-Salas filed this timely appeal.1 1 Lopez-Salas challenges the constitutionality of treating 8 U.S.C. § 1326(b) as a sentencing factor, as opposed to an independent element of the crime that must be proven. This argument was rejected in Almendarez-Torres v. United States, 523 U.S. 224 (1998). He 2 No. 06-41637 II. DISCUSSION A. Drug Trafficking Enhancements Under the Guidelines, the offense level for unlawfully entering the United States is increased by sixteen levels if the defendant was previously deported after being convicted of a drug trafficking offense that resulted in a sentence of thirteen or more months of imprisonment. U.S.S.G. § 2L1.2(b)(1)(A)(i). A “drug trafficking offense” is defined as “an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iv) (emphasis added). We review a district court’s conclusion that a prior state conviction constitutes a drug trafficking offense de novo. United States v. Gutierrez-Ramirez, 405 F.3d 352, 355-56 (5th Cir. 2005). To determine whether a prior conviction is a predicate offense under the Guidelines, we generally apply the “categorical approach” set forth in Shepard v. United States, 544 U.S. 13 (2005), and Taylor v. United States, 495 U.S. 575 (1990). See United States v. Garza-Lopez, 410 F.3d 268, 273-74 (5th Cir. 2005); Gutierrez-Ramirez, 405 F.3d at 356-57. We look to the statutory definition of the underlying crime, rather than the facts supporting the conviction, and ask whether that offense necessarily fits within the definition of the enhancement. See Garza-Lopez, 410 F.3d at 273. “In a ‘narrow range of cases,’ however, . . . [we] may look beyond the elements of the offense when making such a contends that the Supreme Court would overrule Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), but properly concedes that we have rejected this argument and only appeals the issue to preserve it for further review. 3 No. 06-41637 determination.” Id. (citation omitted). The determination of whether a prior offense constitutes a drug trafficking offense under § 2L1.2(b)(1)(A)(i) falls into that narrow range. Id. (citing United States v. Rodriguez-Duberney, 326 F.3d 613, 616-17 (5th Cir. 2003)). We are not, therefore, free to consider any and all facts, but we “may consider the statutory definition of the predicate offense, the charging paper, and the jury instructions.” Id. (citations omitted); Gutierrez- Ramirez, 405 F.3d at 356-57 (stating that courts do not have carte blanche authority to look beyond the indictment and jury instructions to determine whether a prior conviction qualifies for a sentencing enhancement). In the instant case, Lopez-Salas’s sentence cannot be upheld based on the statutory elements of his crime. The underlying North Carolina statute punishes anyone who “sells, manufacturers, delivers, transports, or possesses [a certain quantity] of marijuana . . . .” N.C. GEN. STAT. § 90-95(h)(1) (1993). But we have previously held that a drug trafficking enhancement could not be supported by a conviction for transporting a controlled substance unless the predicate statute included as an element an intent to manufacture, import, export, distribute, or dispense. Garza-Lopez, 410 F.3d at 274-75. Nor is there any extrinsic evidence that provides the requisite element of intent. The district court relied on the indictment, which charged Lopez-Salas with conspiring “to commit the felony of trafficking by transporting 100 pounds or more but less than 2000 pounds of marijuana.” Yet the indictment merely tracks the statutory language. A charging document that is no more specific than the statute of conviction adds nothing to our analysis. Gutierrez-Ramirez, 405 F.3d at 359 (holding that the indictment did not justify the enhancement because it merely recited the language of the overly broad statute). 4 No. 06-41637 Nevertheless, the Government argues that Lopez-Salas’s conviction constitutes a drug trafficking offense because North Carolina presumes that anyone convicted for transporting marijuana under N.C. GEN. STAT. § 90-95(h) intends to distribute the drugs to others. The Government asserts that the presumption can be inferred because the North Carolina statute requires the transportation of large quantities of marijuana. In further support, the Government directs us to North Carolina case law stating that “[i]n creating this offense, [North Carolina’s] legislature determined that certain amounts of controlled substances indicate an intent to distribute on a large scale.” State v. McCoy, 414 S.E.2d 392, 394 (N.C. Ct. App. 1992) (citation omitted); see also State v. Carmon, 576 S.E.2d 730, 736 (N.C. Ct. App. 2003) (citation omitted) (stating that a § 90-95 trafficking crime involves the large scale distribution of controlled substances). In response, Lopez-Salas relies on unpublished cases from this court holding that a conviction under N.C. GEN. STAT. § 90-95(h) does not constitute a drug trafficking offense. See, e.g., United States v. Sanchez-Lopez, 182 F. App’x 355 (5th Cir. May 30, 2006); United States v. Meabe-Morales, 165 F. App’x 347 (5th Cir. Feb. 1, 2006). None of those cases addresses whether a state’s presumption of intent can create a drug trafficking offense under the Guidelines, however, which is both an issue of first impression in this court and the subject of a circuit split. B. The Circuit Split In United States v. Madera-Madera, 333 F.3d 1228, 1231-34 (11th Cir. 2003), the Eleventh Circuit held that a Georgia conviction for drug trafficking constituted a drug trafficking offense because the statute presumes an intent to distribute based on the amount of drugs involved. The court determined that a 5 No. 06-41637 presumption exists by looking to the overall statutory scheme, which requires proof of intent to distribute for possession of a small quantity of a controlled substance but not for possession of a large quantity of controlled substance. Id. at 1231-32. It deduced from this dichotomy that Georgia deems possession of a large amount of drugs per se evidence of an intent to distribute. Id. The Eleventh Circuit next concluded that a state statute that presumes an intent to distribute creates a drug trafficking offense, as defined in § 2L1.2(b)(1)(A), for three reasons. Id. at 1233-34. “First, the Sentencing Commission clearly understands how to define an enhancement in terms of the elements of the prior offense, but did not do so in § 2L1.2(b)(1)(A)(i).” Id. at 1233. In particular, while the definitions of other enhancements include the phrase “that has an element,” § 2L1.2(b)(1)(A)(i) does not. Id. (citation omitted). Second, if courts do not look beyond the elements of the Georgia statute, the Guidelines would produce anomalous results. Id. at 1233-34. They would permit enhancements for trafficking in small amounts of drugs while prohibiting enhancements for trafficking in large amounts of drugs. Id. Third, these anomalies would thwart the intent of the Guidelines, which were revised by the Sentencing Commission in order to provide graduated sentencing enhancements based on the seriousness of prior convictions. Id. at 1234 (citations omitted). On the other hand, one circuit court expressly rejects Madera-Madera, and two other circuits reject the decision’s rationales. In United States v. Villa-Lara, 451 F.3d 963, 965 (9th Cir. 2006), the Ninth Circuit held that a Nevada conviction for possession of a controlled substance is not a drug trafficking offense under § 2L1.2(b)(1)(A) because the underlying state statute does not include as an element the intent to manufacture, import, export, distribute, or 6 No. 06-41637 dispense. The Ninth Circuit reasoned that the ordinary categorical approach applies when determining whether a prior conviction is a drug trafficking offense and, therefore, refused to look beyond the elements of the statute. Id. at 964-65 (citation omitted). It rejected Madera-Madera because the Eleventh Circuit “failed to cite Taylor or [otherwise] undertake a proper Taylor categorical analysis of only the statutory definition of the prior offense.” Id. at 965 n.2. Similarly, in United States v. Montanez, 442 F.3d 485, 493-94 (6th Cir. 2006), the Sixth Circuit refused to find a “controlled substance offense,” under U.S.S.G. § 4B.1.2(b), based on an Ohio conviction for possession of a large quantity of drugs.2 The Sixth Circuit accepted the Government’s contention that the Ohio law is targeted at drug dealers, and that Ohio presumes that anyone possessing large quantities of drugs intends to distribute them. Regardless, the court held that while a “bulk theory” of intent may suit a state’s purposes, it does not comport with the requirements of the Guidelines. Id. at 491 (citation omitted). When determining whether a prior offense satisfies the Guidelines, the “‘implications from the statutory structure[]’ can[not] trump the clear and explicit elements of the offense.” Id. at 493 (citation omitted). Finally, in an opinion written by Judge McConnell that we find particularly persuasive, the Tenth Circuit rejected the reasoning of Madera- Madera. See United States v. Herrera-Roldan, 414 F.3d 1238, 1240-43 (10th Cir. 2005). In Herrera-Roldan, the Tenth Circuit refused to look beyond the elements of the Texas statute to determine whether a prior conviction was a drug 2 Other than the requisite prison term, the definition of a controlled substance offense under § 4B.1.2(b) is the same as the definition of a drug trafficking offense under § 2L1.2(b)(1)(A)(i). 7 No. 06-41637 trafficking offense under § 2L1.2(b)(1)(A). Id. at 1240-41. While it distinguished the Texas statute from the Georgia statute reviewed by the Eleventh Circuit, id. at 1242, the Tenth Circuit stated that the definition of a drug trafficking offense “confines [its] inquiry to the terms of the statute of conviction just as much as the phrase . . . ‘that has as an element[,]’” id. at 1241. Moreover, the court noted that although its interpretation might produce anomalous results, incongruous outcomes were “not strong enough to alter [its] straightforward reading of the Guidelines.” Id. at 1244. We agree with the reasoning of the Sixth, Ninth, and Tenth Circuits and hold that Lopez-Salas’s North Carolina conviction does not constitute a drug trafficking offense. Sentencing enhancements are defined by federal, not state, law. See Taylor, 495 U.S. at 590-91 (condemning the unfair results that would occur if each state could create its own standard). While a bulk theory of intent may suit a state’s purposes, “‘it does not comport with the requirement that, for purposes of federal sentencing law, criminal intent to distribute must be proven and not merely implied.’” Montanez, 442 F.3d at 492 (citation omitted). The Guidelines could have defined a drug trafficking offense based on the quantity of drugs possessed. Instead, they require that a state prove an intent to manufacture, import, export, distribute, or dispense. See § 2L1.2, cmt. n.1(B)(iv). While we are sympathetic with the Eleventh Circuit’s concerns, we agree with Judge McConnell’s cogent reasoning to the contrary. First, the absence of the phrase “that has an element” from the definition of a drug trafficking offense is not significant enough to depart from the ordinary standard of review. See Herrera-Roldan, 414 F.3d at 1241-42. This conclusion is buttressed by comparison to Taylor, where the Supreme Court limited the scope of review of 8 No. 06-41637 prior offenses under the Career Criminals Amendment Act of 1986 (the “Act”) to the terms of the statute because the Act “refers to ‘a person who . . . has three previous convictions’ for—not a person who has committed—three previous violent felonies or drug offenses.” 495 U.S. at 600 (omissions in the original). Similarly, here, the sentencing enhancement applies to an illegal alien deported after “a conviction for a felony that is [] a drug trafficking offense[,]” § 2L1.2(b)(1)(A)(i), not to an illegal alien who has committed a drug trafficking offense. Second, incongruous results do not justify a departure from the ordinary standard of review. See Herrera-Roldan, 414 F.3d at 1244. Anomalies occur when the evidence a court reviews is intentionally limited. But the Guidelines cannot be “rewrit[ten] . . . simply because they might . . . produce an anomalous result.” Id. We add that our conclusion in this case does not preclude the district court from considering Lopez-Salas’s prior North Carolina conviction for sentencing purposes on remand. “Before United States v. Booker, [543 U.S. 220, 259 (2005),] sentencing courts were compelled to impose sentences that fell within the sentencing ranges assigned by the Guidelines, unless a specified exception existed. . . . Since Booker, sentencing courts have had a third sentencing option—a non-Guidelines sentence.” United States v. Mejia-Huerta, 480 F.3d 713, 721 (5th Cir. 2007). Prior to imposing a non-Guidelines sentence, “the sentencing court must calculate the correct Guidelines range, consider it as advisory, and use it as a frame of reference.” Id.; see also Gall v. United States, 128 S. Ct. 586, 596 (2007) (noting that “a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range”). If the sentencing court “decides 9 No. 06-41637 that an outside-Guidelines sentence is warranted, [the court] must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Gall, 128 S. Ct. at 597. “After settling on the appropriate sentence, [the sentencing court] must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Id.; see also United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) (holding that district courts must provide fact-specific reasons for imposing a non-Guidelines sentence and those reasons must be consistent with the sentencing factors enumerated in 18 U.S.C. § 3553(a)). We have previously held that “[a] defendant’s criminal history is one of the factors that a court may consider in imposing a non-Guideline[s] sentence.” Smith, 440 F.3d at 709. Indeed, in United States v. Tzep-Mejia, 461 F.3d 522, 526-28 (5th Cir. 2006), we upheld an upward variance in a non-Guidelines sentence for a past conviction without regard to whether the prior offense “technically” qualified as a crime of violence under § 2L1.2(b)(1)(A)(ii). III. CONCLUSION For the reasons stated above, we VACATE Lopez-Salas’s sentence and REMAND for re-sentencing consistent with this opinion. 10	{ "pile_set_name": "FreeLaw" }
321 S.W.2d 313 (1959) H. D. LEWIS et al., Appellants, v. Warren H. BROWN et al., Appellees. No. 15960. Court of Civil Appeals of Texas, Fort Worth. February 6, 1959. Rehearing Denied March 6, 1959. 314 Aubrey J. Roberts, Dallas, Burford, Ryburn & Ford, Clarence Guittard, C. Benton Musslewhite and Logan Ford, Dallas, for appellants, H. D. Lewis et al. C. C. Renfro, Dallas, for appellees and cross-appellants Warren H. Brown and George R. Brown. Storey, Armstrong & Steger and Charles P. Storey, Dallas, for appellees Sue Adeline Williamson et al. BOYD, Justice. On October 19, 1949, J. C. Williamson and wife, Sue Adeline Williamson, executed a contract to sell to Warren H. Brown a 30 acre tract of land; and on the same day they executed to said Brown an option to buy an additional 24.9 acres contiguous to the 30 acre tract. On November 15, 1949, the Williamsons executed a deed to Brown covering the 30 acre tract. By the option contract the Williamsons bound themselves, their heirs, executors, and administrators "to give said Second Party the option to buy and to convey to him by general warranty deed at any time within three years from the date hereof, for the sum of One Thousand Dollars ($1,000.00) per acre, in cash or on terms acceptable to First Parties," the tract described therein. On February 11, 1952, Warren H. Brown, joined by George R. Brown, executed a contract to convey the 30 acre tract and the optioned tract to H. D. Lewis and E. P. Lamberth for the sum of $1,600 per acre. This contract provided that "Warren H. Brown and George R. Brown agree to immediately exercise their option to `Tract 2' in accordance with their option agreement now of record; and, that on obtaining title to said `tract 2' they agree to convey the land to H. D. Lewis and E. P. Lamberth in accordance with this contract, it being understood and agreed that the Seller shall have 6 months from the date of exercising his option before conveying Tract 2 to said H. D. Lewis and E. P. Lamberth." 315 In February, 1952, Warren H. Brown exercised his option on the 24.9 acre tract and tendered to the Williamsons the $1,000 per acre purchase price. The Williamsons refused to execute a deed. On March 7, 1952, Warren H. Brown and wife conveyed the 30 acre tract to Lewis and Lamberth. On April 12, 1952, Lewis and Lamberth called upon the Browns and the Williamsons to execute the deeds contemplated by their contracts relating to the optioned tract, and tendered performance on their part. The Williamsons again refused to execute a deed. On October 17, 1952, Lewis and Lamberth filed this suit against the Browns and the Williamsons, asking for specific performance of their contracts, and in the alternative for damages. The Browns answered that they were willing but unable to perform because of the refusal of the Williamsons to convey the tract to them, and that "plaintiffs' remedy of specific performance should be allowed." The Williamsons pleaded that Lewis and Lamberth were not in privity of contract with them and had no standing in court to enforce performance of the Williamsons' contract with Warren H. Brown, and further that "at all material times" the optioned tract was part of their rural homestead. Before the trial, Lamberth and J. C. Williamson died, and their heirs and legal representatives were made parties. By an instrument in writing executed on November 1, 1957, the Browns undertook to "sell, transfer, assign, set over and convey to the said H. D. Lewis and E. P. Lamberth, their heirs and assigns forever, the option agreement and contract" which had been entered into by the Williamsons and Warren H. Brown. Trial was to the court, and judgment rendered that plaintiffs take nothing. Lewis and the Lamberth heirs and legal representatives appealed as to all parties, and will be referred to as appellants; Warren H. Brown and George R. Brown appealed as to all parties, but join in the brief for Lewis and Lamberth, and will be referred to as the Browns; Sue Adeline Williamson and the heirs and legal representatives of J. C. Williamson will be referred to as appellees. The Browns did not ask for specific performance against the appellees, and at the outset we are met with appellees' contention that appellants cannot maintain the suit against appellees. They insist that the Browns' contract with appellants did not constitute an assignment of the option, and that without such assignment appellants are not in privity with appellees. We have reached the conclusion that regardless of whether the option contract has been assigned to appellants, they have an equitable right to maintain the suit. When the Browns exercised their option to buy, the option contract was converted into an executory contract of sale. McCaleb v. Wyatt, Tex.Civ.App., 257 S.W. 2d 880; Northside Lumber & Bldg. Co. v. Neal, Tex.Civ.App., 23 S.W.2d 858; San Antonio Joint Stock Land Bank v. Malcher, Tex.Civ.App., 164 S.W.2d 197. The Browns thereby became the equitable owners of the land, which interest they conveyed to appellants by their contract of sale. 43-A Tex.Jur., p. 84, sec. 73; 91 C.J.S. Vendor & Purchaser § 13, p. 863. We think one succeeding to the rights of the purchaser may enforce a contract against the seller by joining the purchaser in the suit, so that the seller will be relieved of the danger of future liability, and by performing or offering to perform all the obligations incurred by the purchaser to the seller. Allison v. Shilling, 27 Tex. 450; Cheney v. Bilby, 8 Cir., 74 F. 52; Geo. V. Clark Co. v. New York, New Haven & Hartford R. Co., 279 App.Div. 39, 107 N.Y.S.2d 721. "A suit for specific performance of a contract may be maintained by a party or privy to the contract, who has performed his part thereof; or, in the absence of intervening 316 equities, by a person claiming under such party, in privity of estate, representation, or title; or by a person who has an interest in the subject matter of the contract and suit." 81 C.J.S. Specific Performance § 23, p. 456. In Townshend v. Goodfellow, 40 Minn. 312, 41 N.W. 1056, 1057, 3 L.R.A. 739, an owner contracted to sell land; before the conveyance was made, the purchaser contracted to sell it to another, who sued the seller for specific performance. The court said: " * * one who has an equitable estate merely under an executory agreement may offer the premises for sale without waiting until he has obtained a deed. Tiernan v. Roland, 15 Pa. 429. But it is further suggested that in this case plaintiff was at the time a mere subpurchaser, having himself no contract with the executors, and both contracts remained wholly executory. Not being a party to the first contract, he is not bound by its terms, and could not compel the parties thereto to fulfill the same as between themselves, nor would the fact that they neglected to do so give him a right of action by virtue thereof. McCarthy v. Couch, 37 Minn. 124, 33 N.W. 777. But he necessarily purchased the equitable title of the first vendee subject to that contract, although, as between him and the latter, he did not assume its obligations; and, having purchased the entire interest of the first vendee, equity will interfere to protect his interest and enforce a deed to him from the vendor holding the legal title, upon a proper showing and tender of performance of the conditions subject to which it is so held, if the application is seasonably made. When a contract is made for the sale of an estate in land, the purchaser is treated in equity as the owner, and as trustee of the purchase money for the vendor, and the latter is considered the trustee of legal title for the purchaser. * * * So that a subpurchaser who has bought the equitable interests, although treated as equitable owner, takes his equitable title, not only subject to the conditions of his own contract, but also to those of the first contract, and, if the latter are not complied with by his vendor, he can only enforce a deed by showing or tendering performance, and thereupon seek an adjustment of the equities between the parties, who must all be joined." In Lenman v. Jones, 222 U.S. 51, 32 S. Ct. 18, 20, 56 L.Ed. 89, Miss Lenman entered into a contract to sell land to Mrs. Wilhoite. Mrs. Wilhoite contracted to sell the land to Jones. Jones sued Miss Lenman for specific performance. Said the court: "When Mrs. Wilhoite contracted to sell the land, she contracted to transfer all the rights she got by her contract with the owners of the land. As she, in popular legal language, became the equitable owner by her contract, she made the appellee the equitable owner by her contract with him,that is, she gave him the right to insist in her place that the legal owner should give up the legal estate upon fulfillment of the conditions agreed." The optioned tract was for many years a part of the rural homestead of the Williamsons. Appellees say that "at all material times" it remained a part of their rural homestead. Although conceding that if and while the property retained such homestead character specific performance could not be enforced, appellants contend that the homestead exemption has been lost by abandonment and by a change in the character of the property from rural to urban, and that when the property ceased to be a rural homestead their suit could be maintained. Appellees say that if the property continued to be a part of the homestead at the time appellants asserted their adverse right, the contract cannot be enforced, and that it is immaterial that there may have been a cessation of the homestead exemption at a later time. We understand appellees to contend that the time appellants "asserted their right" was either when appellees allegedly repudiated the contract, or when appellants called upon appellees to perform, or possibly when suit was filed. Appellants insist that they have the right to prevail if 317 the property ceased to be homestead at any time before judgment was rendered. The question has given us difficulty; but we have concluded that suit will lie for specific performance at any time before the action is barred by limitation, whether the exemption ceased before or after the suit was filed, providing it had ceased when the case was tried. In Goff v. Jones, 70 Tex. 572, 8 S.W. 525, 527, a husband and wife made a contract to sell their homestead, performable on July 8, 1883. It was not performed, and the property continued to be homestead until July 15, 1883. The contention was made that specific performance would not lie because there could be no alienation of the property until the wife signed, acknowledged, and delivered a deed. In rejecting that contention, the court said: "At the time fixed by the bond for its performance according to the allegations of plaintiff's amended petition it could not have been enforced, because at that time the property was still the homestead; but that is immaterial. We think if it was abandoned, and a new homestead was acquired, at any time before the bond should become barred, the suit for specific performance could be maintained." In Wright v. Hays, 34 Tex. 253, a husband made a contract in 1857 to convey, "when the patent is obtained," what he later claimed as a part of his homestead. His wife was living at the date of the contract and until a few months before the trial. Suit was filed in 1861 and it was tried in 1869. The homestead exemption was pleaded. The court said: "This defense, so far as a specific performance was prayed for, might have been good at the time of executing the contract, as defendant was then a married man living on a portion of the 160 acre tract. But at the trial of the cause, this defense had failed him, as his wife had died and left him a single man." It appears that the time when the homestead character must exist to be available as a defense may differ in suits for specific performance of contracts to convey from that in suits for foreclosure of alleged liens. Deeds of trust and levies of execution or attachment never become liens on property which is homestead at the time of their execution or levy, even after the homestead status ceases to exist. This is so because Article 16, sec. 50, of the Texas Constitution, Vernon's Ann.St., declares them to be void. The subsequent cessation of the homestead exemption does not give them validity. But a contract to sell a homestead is not void, and "not unlawful, but good and valid." Wright v. Hays, 34 Tex. 253. It is merely unenforceable so long as the homestead status exists. Hudgins v. Thompson, 109 Tex. 433, 211 S.W. 586; Hill v. McIntyre Drilling Co., Tex.Civ.App., 59 S.W.2d 193. Likewise, while a judgment cannot become a lien on property which is homestead, it does become a lien when the homestead exemption ceases. Marks v. Bell, 10 Tex.Civ.App. 587, 31 S.W. 699, error refused. The sale of the homestead by the husband, without the joinder of the wife, becomes operative when the property ceases to be a homestead. Marler v. Handy, 88 Tex. 421, 31 S.W. 636; Irion v. Mills and Halbert, 41 Tex. 310; Grissom v. Anderson, 125 Tex. 26, 79 S.W. 2d 619; Weinert v. Cooper, Tex.Civ.App., 107 S.W.2d 593. We must presume that the court resolved all disputed issues of fact in such manner as will support the judgment. Rule 299, Texas Rules of Civil Procedure. We think the evidence was sufficient to support a finding that the optioned tract was part of the rural homestead when the contract was made. If the same may be said as to all times during the option period and at the time suit was filed, in our view of the case such findings are not conclusive of the question, for we think that if the homestead exemption ceased at any time while appellants were seasonably asserting their rights, the defense failed. And we understand that they have been asserting their rights from their first demand until and including this day. The inquiry therefore is, has the 318 rural homestead status ceased? We think the evidence is insufficient to support an implied finding that the optioned tract is still a part of the rural homestead. Homestead character of property may cease because of abandonment or, in case of a rural homestead, by its becoming urban. Abandonment is accomplished by a cessation of use for homestead purposes with the intent not to so use it in the future. Bogart v. Cowboy State, Bank & Trust Co., Tex.Civ.App., 182 S.W. 678. Although whether property has lost its homestead character has been held in some cases to be a question of law, it is generally a question of fact. M. H. Lauchheimer & Sons v. Saunders, 97 Tex. 137, 76 S.W. 750; Hibbs v. City Nat. Bank of Wichita Falls, Tex.Civ.App., 293 S.W. 350; Smith v. Little, Tex.Civ.App., 217 S.W.2d 881. The same rules apply whether the inquiry is as to abandonment of a part of a tract or the whole. Wynne v. Hudson, 66 Tex. 1, 17 S.W. 110. The Williamson property is in the corporate limits of the City of Dallas. The residence is on a 4 acre tract which is separated from the 30 acre tract by Fisher Road and the H. & T. C. Railroad; the optioned tract joins the 30 acre tract on its east and northeast side. The evidence seems to be almost conclusive that appellees have ceased to use the optioned tract for any homestead purpose. Carl Williamson, one of the appellees, testified they last grew crops and ran cattle on the land about 1938, although they had some sheep on it in 1949. For a few years before his death in 1954, J. C. Williamson rented the tract to others who grazed cattle on it, and that practice has since been continued by appellees. The residence had been supplied with water by means of a pipeline from a well on the optioned tract, which was laid through the 30 acre tract; but this was discontinued in 1952, when the pipeline was destroyed by the development of the 30 acre tract. The evidence that appellees' property is no longer rural but is urban in character amounts almost to a demonstration. From the testimony of several witnesses and from aerial photographs in the record, it appears that the 30 acre tract is completely developed as a rather pretentious residential subdivision; across the railroad on the north and northwest side of the 30 acre tract and the optioned tract there is a large and almost completely developed residential district; across Mockingbird Lane on the south and southeast side of the 30 acre tract and extending alongside a portion of the optioned tract there is another residential development; northwest, west, and south of the homesite are residential districts rather closely built up; gas, lights, city water and sewerage services are available to the property; there are new and modern shopping centers in the vicinity and paved streets throughout the general area. We think the court's implied finding that the property is not urban is so against the great weight and preponderance of the evidence that the facts should be reexamined. The judgment is reversed and the cause remanded.	{ "pile_set_name": "FreeLaw" }
Filed 2/27/15 P. v. Silva CA3 NOT TO BE PUBLISHED 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 THIRD APPELLATE DISTRICT (Sacramento) ---- THE PEOPLE, C072100 Plaintiff and Respondent, (Super. Ct. Nos. 09F09081, 12F04901) v. DENNIS CHARLES SILVA, Defendant and Appellant. In case No. 09F09081, a jury convicted defendant Dennis Charles Silva of being a convicted felon in possession of a firearm (former Pen. Code, § 12021, subd. (a)(1)— count one)1 and carrying a concealed firearm (former § 12025, subd. (a)(1)—count two). Defendant admitted a strike prior (§§ 667, subds. (b)-(i), 1170.12) and two prior prison terms (§ 667.5, subd. (b)). In case No. 12F04901, defendant entered a plea of guilty to failure to appear (§ 1320.5) and admitted an on-bail enhancement (§ 12022.1). For both 1 Undesignated statutory references are to the Penal Code. 1 cases, the court sentenced defendant to state prison for an aggregate term of eight years eight months. Defendant appeals in both cases but raises only one issue, relating to case No. 09F09081. He contends the trial court erroneously denied his motion for acquittal because the presence of the gun in the car was alone insufficient to support his convictions. We conclude sufficient evidence supports his convictions. Defendant failed to raise any issues in case No. 12F04901, so we will dismiss the appeal. FACTS About 3:00 p.m. on December 1, 2009, Deputy Sheriff David Lee saw a car speeding on Arden Way. Deputy Lee followed the car for more than two miles. He noticed that it had expired registration tags and stopped the car. Defendant was the driver and Tessa Trimble, defendant’s girlfriend, was the front seat passenger. After asking for defendant’s license, registration, and proof of insurance, the deputy asked defendant if he was on probation or parole. Defendant admitted he was on parole. The deputy had defendant get out of the car. The deputy then pat-searched defendant and did not find any weapons on his person. Deputy Enriquez had arrived and was at the passenger side speaking with Trimble. Trimble was also asked to get out of the car. Defendant agreed to a search of the car. Deputy Lee searched the car, which had a lot of trash in the front and was “very messy.” Deputy Lee began on the passenger side for safety reasons (the driver’s side was along the road). In the middle of the floor, up against the center console on the passenger side but near the driver’s side and not underneath the seat or any trash, the deputy found a grey T-shirt loosely wrapped around a semiautomatic nine-millimeter handgun, a magazine (which had been taken out of the gun) with two nine-millimeter hollow-point rounds, and three loose nine-millimeter hollow-point rounds. Although the gun had a broken handle and looked damaged, it was in working order and was capable of being fired. There was electrical tape around the magazine. 2 The deputy asked defendant about the gun. Defendant denied that the gun belonged to him. He seemed calm. He stated that he did not know to whom the gun belonged. He claimed he had never before seen the gun. He stated that a lot of people used the car and that he had lent the car to someone, but could not remember that person’s name. When separately questioned, Trimble said the same thing as defendant. She did not know anything about the gun. She claimed that defendant lent the car to other people, a lot of people had used it the previous week, and a couple of people whose name she did not know had used it the previous day. An identification technician found four latent prints on the electrical tape around the magazine. Another technician found enough ridge detail on only one of the four latent prints to make a comparison. The print did not match defendant, Trimble, or defendant’s father, Dennis Silva, Sr. Defendant testified at trial. He admitted he was on parole the day Deputy Lee stopped his car. Defendant admitted five prior felony convictions for drug and assaultive offenses. He knew he was prohibited from possessing firearms and it was a violation of his parole to be in possession of a gun. The day he was stopped, he was upset because he had lost money at bingo and sped through a green light but denied he was going as fast as the officer claimed. Defendant saw the deputy but did not worry because he had a driver’s license, insurance, and valid registration (although the tag was not on the car). Defendant admitted the car belonged to him but the insurance was in his father’s name, and he claimed Trimble normally drove the car. Defendant’s father did not have a car. Defendant admitted that he agreed to a search of the car. Defendant claimed the deputy first searched the driver’s side and then searched the passenger side. The deputy put a “rag” on top of the car and held a gun up in his hand. Defendant claimed he was “blown away,” having never before seen the gun. Defendant denied that the grey T-shirt belonged to him. Defendant claimed that his father had taken the car home on Thanksgiving and had kept it until the day before defendant was pulled over. Defendant 3 did not give this information to the deputy. Instead, defendant said he had lent the car to a friend and did not know that person’s name, explaining he “couldn’t give up” his father. Defendant stated he had been recently paroled and moved to a sober living faith-based program, planning to change his life. On cross-examination, defendant denied talking to Trimble about what to do if pulled over while the deputy followed for two or three miles. Defendant claimed he knew what would happen because officers search his car every time he gets pulled over. He stated that he would have “tried to run or something” if he knew a gun was in the car, and “I would never, never have been driving like that with a gun in the car. Wouldn’t have happened. With no tags or nothing. It don’t even make sense.” Defendant assumed the gun belonged to his father because he was the “last one driving the vehicle.” Defendant denied lying to the deputy, saying he just did not tell him, explaining his father was his “best friend” and that when defendant spoke to the police, “I sure don’t remember [my father’s] name.” Defendant denied his father ever showed him the gun. Trimble testified. She denied knowing there was a gun in the car. She claimed the car was registered to defendant’s father and that she shared the car with him. Prior to the stop, defendant’s father had been using the car for a few days. Trimble believed she picked up the car the day prior to the stop. Trimble initially claimed she did not remember “exactly” what she had told the deputy but subsequently confirmed she had told the deputy the gun belonged to her to protect defendant’s father, not defendant, and then said it did not belong to her, telling the deputy she had never before seen the gun. When defense counsel noted that her statement taking responsibility for the gun was not in the deputy’s report, Trimble claimed she did not remember saying it and maybe only thought of saying it to take responsibility instead of someone else. Trimble did not recall telling the deputy that “Dennis” let others drive the car and several had done so the previous day, but when shown her statement she “guess[ed]” that was what she had said. Trimble then stated that she was referring to defendant’s father. But she told the deputy 4 that “Dennis,” her boyfriend, let others drive the car. She had been in a relationship with defendant for 11 years, loved defendant, and did not want to see him get in any trouble. She admitted she would take the responsibility for defendant or his father, explaining that defendant had only three months remaining on his parole. She insisted that neither she nor defendant knew about the gun. On recross-examination, she “technically” had no idea whether defendant knew the gun was in the car, but she was “pretty sure” he did not. Defendant’s father (Dennis Silva, Sr.) testified that he used the car for three days beginning on Thanksgiving, and thereafter, while he was ill, someone picked up the car. Father recognized the gun because he claimed he bought it for $20, months before Thanksgiving, from someone he met in a doughnut shop. Father claimed he showed his girlfriend the gun when he brought it home after buying it. The gun was wrapped in the grey T-shirt. Father admitted the T-shirt “smelled pretty bad,” but the smell did not permeate the car although father claimed his sense of smell was not very good. Father claimed he did not tell defendant about the gun and never showed it to him. The day after Thanksgiving, father took the gun to a gunsmith to see if it was worth fixing, but the gunsmith was not home. Father left the gun under the passenger seat of the car, which he parked in the driveway of his home. When he went to the doctor two or three days later, the car was gone, so his grandson took him. Father assumed that defendant had the car (the car was registered in defendant’s name). When Trimble called and said they had been stopped and the gun was found under the seat, father realized what had happened and called defendant’s attorney. Father admitted that he had not signed his statement until eight months after defendant’s arrest, but he had told the story to defendant’s attorney three days after defendant’s arrest. Father’s girlfriend saw the gun after father bought it, which she claimed was sometime around Thanksgiving. The gun was wrapped in a T-shirt and it was on the passenger side of the car. She thought the car belonged to father since she had seen defendant drive it only once. 5 Father’s barber client saw the gun after father bought it, sometime around Thanksgiving. Father claimed he was going to have the gun repaired. The client identified the gun from photographs of the gun found in the car. The gun made the client “nervous” because he was a convicted felon. DISCUSSION Defendant contends the trial court erroneously denied his motion for acquittal, arguing that the prosecution failed to prove that he had knowledge of the presence of the gun in the car. The People argue the trial court properly denied the acquittal motion because the jury could decide from circumstantial evidence that defendant had the requisite knowledge. We conclude sufficient evidence supported knowledge and that the trial court properly denied the acquittal motion. Background At the conclusion of the presentation of all the evidence, defendant’s motion for a judgment of acquittal (§ 1118.1) was heard.2 Defense counsel argued insufficient evidence supported a finding that defendant knew the gun was present in the car. The prosecutor argued defendant’s knowledge could be inferred from the fact that the car belonged to him, the gun was located in close proximity to the driver’s side, and he was driving erratically. The trial court denied the acquittal motion, finding that defendant was in possession of a jointly owned car, he was driving at the time, he had possession and control of the gun, and an inference could be drawn that he knew about the gun on the floorboard of the car, which he had been driving around to various locations for some 2 Defense counsel reminded the court that he planned to move for acquittal after the prosecution rested but the parties had agreed to allow defendant to begin his testimony out of order. In fact, all the defense witnesses testified before the acquittal motion was heard. 6 time. Noting that he made his motion at the close of the prosecution’s case but it was not heard until all the evidence had been presented, defense counsel objected to the trial court’s consideration of defendant’s testimony (the trial court had stated the jury could decide defendant knew despite his testimony). The trial court stated an inference could be made that defendant knew what was in his own car. Analysis “In ruling on a motion for judgment of acquittal pursuant to section 1118.1, a trial court applies the same standard an appellate court applies in reviewing the sufficiency of the evidence to support a conviction, that is, ‘ “whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.” [Citations.]’ [Citation.] ‘Where the section 1118.1 motion is made at the close of the prosecution’s case-in-chief, the sufficiency of the evidence is tested as it stood at that point.’ [Citation.]” (People v. Cole (2004) 33 Cal.4th 1158, 1212-1213.) “We review independently a trial court’s ruling under section 1118.1 that the evidence is sufficient to support a conviction.” (Cole, at p. 1213.) The standard of review is not different when the prosecution relies upon circumstantial evidence. “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ [Citations.] ‘Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’ [Citation.]” (People v. Bean (1988) 46 Cal.3d 919, 932-933 (Bean); accord, People v. Jones (2013) 57 Cal.4th 899, 960-961; see also CALCRIM No. 224.) 7 To prove the offense of being a convicted felon in possession of a firearm, the prosecutor must prove that the defendant had previously been convicted of a felony and knowingly and wrongfully possessed the firearm. (People v. Snyder (1982) 32 Cal.3d 590, 592; People v. Kim (2011) 193 Cal.App.4th 836, 846; People v. Jeffers (1996) 41 Cal.App.4th 917, 922; CALCRIM No. 2510.) Defendant and the prosecutor stipulated that defendant had previously been convicted of a felony. Defendant also admitted the same on the witness stand. To prove the element of possession, the prosecution was required to show that defendant had actual or constructive possession. (People v. Cordova (1979) 97 Cal.App.3d 665, 670.) Possession does not need to be actual or exclusive. (People v. Rushing (1989) 209 Cal.App.3d 618, 622.) A showing of joint or constructive possession is sufficient. (People v. Nieto (1966) 247 Cal.App.2d 364, 368.) Possession and knowledge may be proved by circumstantial evidence. (Cordova, at pp. 669-670; see also People v. Llamas (1997) 51 Cal.App.4th 1729, 1743.) To prove the offense of carrying a concealed firearm, the prosecutor was required to prove that defendant had previously been convicted of a felony and knowingly carried a firearm in a concealed or substantially concealed fashion within any car under his control. (People v. Jurado (1972) 25 Cal.App.3d 1027, 1030; CALCRIM No. 2521.) Defendant only challenges the evidence to support his knowledge of the presence of the gun in the car. Defendant argues that neither his ownership of the car nor the gun’s proximity constituted sufficient evidence of his knowledge of the gun’s presence in the car, noting the gun was completely concealed in a T-shirt amongst trash on the passenger floorboard. He also claims he did not engage in any suspicious activity. Here, there was evidence that defendant, a convicted felon and on parole, was driving his car with his girlfriend in the front passenger seat. He was speeding and his car did not have a current registration tag on the license plate. When stopped by a sheriff’s deputy, defendant admitted he was on parole; a search of his car ensued. The 8 deputy found the gun, magazine, and bullets hidden in a T-shirt in the middle of the front floorboard next to the console on the passenger side but close to the driver’s side. At the scene, both defendant and his girlfriend denied any knowledge of the gun. Defendant claimed he had lent his car to a friend but could not remember the person’s name. Defendant’s girlfriend said defendant lent the car to others and a couple of people had driven it the previous day but she did not know who they were. The jury could reasonably infer that defendant and his girlfriend had coordinated their stories.3 Despite defendant’s denial, the jury could infer that defendant put the gun where it was found so that it was within his immediate reach. We agree with the trial court that there was sufficient evidence to sustain convictions for possession of a firearm and carrying a concealed firearm. The gun’s location in defendant’s car, in close proximity to defendant, a convicted felon, who had been driving for some time; his speeding; the coordinated stories; and his motive to lie because he was on parole are sufficient to support the inference that defendant knew the gun was present. Defendant cites People v. Williams (1971) 5 Cal.3d 211, which held that mere possession of a drug does not constitute sufficient evidence of knowledge of its narcotic nature. For drug possession, the prosecution must prove the defendant had knowledge of the nature and presence of the drug; Williams focused on the nature, not the presence (where it found there was more than sufficient evidence), of the drug. (Id. at pp. 215- 216.) Williams does not assist defendant. Defendant does not claim he did not know that the item found was a gun. 3 Defendant complains that the jury could just as easily have reasonably inferred their statements were true. But that is not the appellate court’s concern on appeal and not sufficient for reversal. (See Bean, supra, 46 Cal.3d at pp. 932-933.) 9 Defendant also cites other drug cases where the opportunity of access to a place where the drugs were found was insufficient alone to prove possession but that knowledge of presence can be inferred from something more than mere proximity and ownership of the locale, such as the defendant’s conduct indicating a consciousness of guilt. To the extent that “something more” is required, it is present here in the form of defendant’s motive to lie and the joint effort he and his girlfriend made to mislead the officers by constructing an explanation for the gun’s presence, which they both later disavowed. As the People note, to the extent defendant’s contention can be construed as a challenge to the sufficiency of the evidence to support his convictions, we conclude that there was more than sufficient evidence. Defendant gave inconsistent and contrived stories to the deputy and at trial, demonstrating a consciousness of guilt. Defendant was a convicted felon, on parole, and subject to search, which showed he had a motive to lie about the gun. Sufficient evidence supported defendant’s convictions. DISPOSITION The judgment is affirmed in case No. 09F09081. The appeal in case No. 12F04901 is dismissed. RAYE , P. J. We concur: BLEASE , J. DUARTE , J. 10	{ "pile_set_name": "FreeLaw" }
916 F.2d 712 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.Vera L. BIRCH, Plaintiff-Appellant,v.BOARD OF EDUCATION OF CITY OF FLINT, Joseph Pollard,Defendants-Appellees. No. 89-2299. United States Court of Appeals, Sixth Circuit. Oct. 22, 1990. Before NATHANIEL R. JONES and WELLFORD, Circuit Judges, and ENGEL, Senior Circuit Judge. PER CURIAM. 1 Plaintiff, Vera Lenore Birch, appeals the district court's grant of summary judgment in favor of defendants in this employment discrimination case brought under Title VII and Michigan's Elliot-Larson Civil Rights Act. Plaintiff argues that defendants refused to offer her a full-time teaching position with the Flint School District because she is black and refused promotions in retaliation for her filing of civil rights complaints based upon her race. The issues presented by this appeal are: (1) whether the trial court properly determined that plaintiff failed to establish a prima facie case of race discrimination; and (2) whether the trial court properly held that plaintiff failed to establish a prima facie case of refusal to hire in retaliation for previous discrimination actions against the school district; and (3) whether summary judgment for defendants was warranted. Upon review of the record, we are persuaded that the district court's judgment in favor of defendants should be AFFIRMED. 2 In late 1984, plaintiff filed an amended complaint containing ten claims for relief, asserting race discrimination under 42 U.S.C. Sec. 2000e-16 (Title VII), 42 U.S.C. Sec. 1981, 42 U.S.C. Sec. 1983, and Mich.Stat.Ann. Sec. 3.548(101), et seq. (Michigan's Elliot-Larson Civil Rights Act); retaliatory refusal to hire; due process violations; and state tort claims. All of plaintiff's claims except those concerning race discrimination and retaliatory refusal to hire were dismissed by the trial court after reference to and upon the report and recommendation of the magistrate issued January 14, 1986. 3 Plaintiff had herself filed a motion for partial summary judgment arguing that she had established her claims of race discrimination and retaliatory refusal to hire. Defendants also filed a motion for summary judgment contending that plaintiff was refused employment due to poor work performance and not due to racial considerations. In support of their motion for summary judgment, defendants submitted affidavits and business records documenting the reasons for their failure to offer plaintiff, a part-time teacher, a full-time teaching position. 4 District Judge Avern Cohn issued a full memorandum and order denying plaintiff's motion for partial summary judgment and granting defendants' motion for summary judgment. We affirm, basically upon the district court's rationale. 5 Plaintiff was employed as a full-time teacher by the Flint School District from September 2, 1962 to February 1, 1963, when she resigned. At the time of her resignation, plaintiff was rated inadequate. 6 In September 1963, plaintiff began teaching in the Beecher School District in Genesee County, Michigan, from which position she resigned. Prior to her resignation she had been reprimanded by the Superintendent of the Beecher School District because of complaints received principally from parents. 7 Some time prior to June of 1968, Marvin S. Richardson, a principal in the Beecher School District, had a telephone conversation with Helen McMurray of the Flint School District regarding plaintiff's application for employment. Richardson informed McMurray that plaintiff was unable to take evaluative criticism and also that she had filed complaints with the Civil Rights Commission and other administrative bodies. This latter notation in her Flint personnel file is a primary basis for her claims. McMurray recommended that plaintiff not be hired. Id.1 8 A document prepared by Ladell Watson of the defendant school district in 1974 indicates that plaintiff's performance as well as the School District's recent economic layoff of 92 teachers were the reasons why plaintiff was not offered a position with the School District. 9 Since 1974 plaintiff has been a substitute teacher in the Flint School District. In 1978, the School District assigned plaintiff on a temporary basis to a position as a substitute mathematics teacher in a junior high school. When the position was declared vacant, a much younger white male teacher who majored in mathematics and physics was hired to fill the position. The district court found this male teacher to be significantly better qualified than plaintiff to teach mathematics and also had a broader assignment potential than plaintiff because of his academic training. (He was qualified to teach seventh, eighth, and ninth grades, whereas plaintiff was limited to teaching seventh and eighth grades.) 10 As a result of her failure to receive the full-time math position, plaintiff filed a charge of discrimination, which forms the basis for the Title VII complaint pending before this court. 11 Between 1978 and 1982, plaintiff filed a number of individual complaints of discrimination against the School District. Each complaint was dismissed on the merits. Plaintiff also filed a race discrimination action in federal district court but that action was also dismissed. 12 Toward the end of 1978, a directive was issued by the central office of the Flint School District that plaintiff was to be considered for each teacher opening for which she was qualified. Between the end of 1978 and the fall of 1981, plaintiff's name and credentials were sent by the central office to the each principal who made a request to fill a vacancy where plaintiff was eligible to fill the vacancy. No principal, black or white, requested that plaintiff be hired. After 1981, plaintiff's name was no longer routinely sent out by the central office. 13 In its findings of fact, the district court concluded that during the relevant time period, twenty white teachers and twenty-seven minority teachers were placed in positions for which plaintiff was qualified. Except for the mathematics position filled by a white male teacher with superior qualifications, plaintiff has not identified any particular opening for which she was better qualified than the person hired. 14 We must apply the same test in passing upon an award of summary judgment as that utilized by the trial court to grant the motion. Burkart v. Post-Browning, Inc., 859 F.2d 1245, 1249 (6th Cir.1988); Berlin v. Michigan Bell Tel. Co., 858 F.2d 1154, 1161 (6th Cir.1988). 15 A summary judgment motion may be granted if there is no genuine issue of material fact and the party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir.1988). A party can meet their burden by " 'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party meets its burden, the nonmoving party "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, 587-87 (1986). Taking the record as a whole and viewing the facts in a light most favorable to the nonmoving party, a grant of summary judgment is appropriate where a rational trier of fact could come to but one conclusion which is adverse to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (the court should determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."); Matsushita, 475 U.S. at 587. 16 We are satisfied that the district court's thorough analysis of the issues in the case is borne out by the record and that summary judgment was warranted. We accordingly AFFIRM. 1 In her affidavit filed in the present case, McMurray indicates that: the fact that Mrs. Birch may or may not have filed complaints with her union or the Civil Rights Commission had no bearing whatsoever on the decision not to hire Mrs. Birch. The decision not to hire her was made purely upon the School District's knowledge of her abilities as a teacher.	{ "pile_set_name": "FreeLaw" }
212 B.R. 147 (1997) In re THRIFTY OIL COMPANY, a California corporation; Golden West Refining Company, a California corporation; CLUJ Distribution Company, a California corporation; and Golden West Distribution Company, a California Corporation, Debtors. Bankruptcy Nos. 92-09132-A11 to 92-09136-A11. United States Bankruptcy Court, S.D. California. August 5, 1997. 148 Robert A. Greenfield, Isaac M. Pachulski, Stutman, Treister & Glatt, Los Angles, CA, for Debtors. Tiffany L. Carroll, Office of U.S. Trustee, Southern Dist. of CA, San Diego, CA, United States Trustee. Joel Ohlgren, Sheppard, Mullin, Richter & Hampton, Los Angeles, CA, for the OCC. Victor Vilaplana, Sheppard, Mullin, Richter & Hampton, San Diego, CA, for the OCC. Patrick C. Shea, David E. Kleinfeld, Matthew S. Walker, Pillsbury Madison & Sutro, LLP, San Diego, CA, for Bank of America. Leonard L. Gumport, Gumport, Rietman & Montgomery, Los Angeles, CA, for Debtor. MEMORANDUM DECISION LOUISE DeCARL ADLER, Chief Judge.[] Bank of America National Trust and Savings Association ("BofA") filed claim No. 650B, which arises from revested debtor's ("Thrifty") guaranty of Golden West Refining Company's ("GWR") obligation to the bank. Thrifty objected to BofA's claim and because of the apparent need for further discovery and an evidentiary hearing, the matter was deemed a contested matter under Fed. R.Bankr.P. 9014.[1] After conducting discovery, BofA and Thrifty brought these cross motions for summary judgment. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1334 and 157. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B). A motion for summary judgment may be granted if, upon consideration of the pleadings, depositions and declarations, the court 149 is persuaded that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. Although Thrifty's opposition states that there are many "disputed issues of fact," upon a closer examination, many of the claimed factual disputes are really legal questions. Also, the Court finds many of the alleged "disputed" facts are nonmaterial. Materiality of disputed facts is examined when determining whether summary judgment is appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). In addition, the court must draw all inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The following factual summary sets out each undisputed fact which the Court believes is material to the decision of this motion for summary judgment. I. FACTUAL SUMMARY In August 1989, GWR solicited a $75 million term loan ("Term Loan") from BofA and other potential lenders, in part to refinance a $52.1 million promissory note payable to Chevron (which note bore an 11% fixed rate), and in part to finance capital improvements. BofA submitted a loan proposal to GWR on September 29, 1989. (Exh. 1) Negotiations ensued and a final term sheet for the loan dated January 10, 1990 was executed by GWR on January 12, 1990. (Exh. 13). The term sheet provided for a variable interest rate Term Loan (called "Facility B") and also provided that the Term Loan would be fully underwritten by BofA. The term sheet also stated that GWR would enter into an interest rate swap ("Swaps") with BofA to hedge the Term Loan's interest rate fluctuations. (Exh. 13, Bates No. 51). The Term Loan for $45 million closed on or about July 31, 1990. The syndication of the Term Loan closed on December 20, 1990. After syndication was completed, BofA was a lender on less than one-half the principal balance of the Term Loan. GWR borrowed an additional $7 million under the Term Loan on November 6, 1991. Thrifty executed an unsecured guaranty dated as of July 30, 1990 in which it guaranteed "all obligations of Borrower [GWR] under the Loan Documents [which was defined in the Term Loan Agreement to include both the Term Loan Agreement and Approved Swap Agreements]." (Exh. 39, Bates No. 458). GWR entered into its first interest rate swap with BofA on June 20, 1990 with a notional amount of $21.5 million and a delayed start date of August 1, 1990. GWR entered into a second swap with BofA on July 12, 1990 with the notional amount of $10.75 million with a delayed start date of August 1, 1990. On August 1, 1990, GWR entered into a third swap with BofA with a notional amount of $12.75 million which had a start date of August 3, 1990. The Term Loan and the Swaps were cross-collateralized and cross-defaulted. BofA sent out confirmations of the three swaps which included statements that they would be governed by the standard form recommended by the International Swap Dealers Association, Inc. ("ISDA") which was later signed by both parties (collectively "Swap Agreement"). Under the Swap Agreement, GWR made payments based on fixed interest rates multiplied by the notional amounts and BofA made payments based on three month LIBOR[2] multiplied by the notional amounts. BofA's swap operations department sent GWR the payment notices pertaining to the Swaps. (Exh. 70-77). GWR's bankruptcy filing on July 31, 1992 constituted an early termination event of the Swap Agreement under the ISDA Agreement (Exh. 79, Bates No. 586) giving rise to termination damages of $5,428,500 as calculated according to the ISDA Agreement. On September 28, 1994, Thrifty, GWR and their affiliates filed the "Joint Plan of Reorganization (As Modified) (September 28, 1994)" (The "Plan"). In connection with the Plan, the Court approved a Bank Group Settlement Agreement among BofA, GWR, 150 Thrifty and others which fixed BofA's termination damage claim at $5,428,500. BofA filed a claim for $5,428,500 to which Thrifty has objected. Thrifty contends that the claim should be disallowed either as prohibited by section 502(b)(2) as unmatured interest or as violating California's Bucket Shop laws.[3] II. ISSUES A. Are "termination damages" under the Swap Agreement unmatured interest prohibited by 11 U.S.C. section 502(b)(2)? B. Do the Swaps violate the California Bucket Shop Laws? III. DISCUSSION To better understand this Court's decision, a discussion of a swap is relevant. A swap is considered a derivative which is a "bilateral contract or payments exchange agreement whose value derives . . . from the value of an underlying asset or underlying reference rate or index." Procter & Gamble Co. v. Bankers Trust Co., 925 F.Supp. 1270, 1275 (S.D.Ohio 1996). In essence, it is an agreement to exchange cash flows over a period of time. See, Procter & Gamble Co., 925 F.Supp. at 1275; Martin J. Bienenstock & Paul M. Basta, Treatment of Derivatives under the Bankruptcy Code, P.L.I. No. N4-4585 (1994). The cash flows are calculated by multiplying the respective interest rates by a notional amount. Procter & Gamble Co., 925 F.Supp. at 1275. The notional amount is an agreed principal amount against which the accruing interest obligations between the parties are calculated. S. Tucker, Interest Rate Swaps and the 1990 Amendments to the United States Bankruptcy Code: A Measure of Certainty Within the Swap Market Contracts, 1991 Utah L.Rev. 581, 586 n. 32. Usually it is a hypothetical amount that is never actually paid or received. Id. GWR and BofA entered into three Swaps having a total notional amount of $45 million. GWR agreed to pay a fixed rate of interest to BofA while BofA agreed to pay a floating rate of interest to GWR. The "net amount" is what actually changed hands. In this case, because the interest rates declined during the Swaps period, GWR made periodic payments to BofA. (Exh. 70-75). A. Termination Damages as Unmatured Interest Thrifty argues that BofA's termination damages claim represents unmatured interest prohibited by section 11 U.S.C. 502(b)(2). The general rule disallowing unmatured interest is a rule of administrative convenience and fairness to all creditors and is not an absolute rule. See, In re Hanna, 872 F.2d 829, 830 (8th Cir.1989). The rule makes it possible to calculate the amount of claims with certainty. See, In re Quick, 152 B.R. 902, 906 (Bankr.W.D.Va.1992). Id. Further, it assures that creditors at the bottom rungs of the priority ladder are not prejudiced by delay in payment to higher priority creditors. Thrifty contends the termination damages claim is the result of an integrated transaction that includes both the Term Loan Agreement and the Swap Agreement and which essentially created a fixed rate loan. BofA argues that the Term Loan Agreement and the Swap Agreement are separate transactions and the obligations arising from premature termination of the Swap Agreement arise only because of the breach of the terms of the Swap Agreement and not because BofA intended to disguise unmatured interest. Interest is money "paid to compensate for the delay and risk involved in the ultimate repayment of monies loaned." In re Pengo Industries, Inc., 962 F.2d 543, 546 (5th Cir.1992). The money loaned in this case is the amount loaned under the Term Loan Agreement. To characterize the termination damages as interest, the Court must conclude that it was the parties' intent that the Swap payments compensate BofA for delay and risk in the repayment of the Term Loan. To reach this conclusion the Court must examine GWR and BofA's intent in entering into the Term Loan and Swaps. 151 Thrifty contends there is a substantial factual dispute as to the intent of the parties. Both BofA and Thrifty cite In re Comark, 145 B.R. 47 (9th Cir. BAP 1992) to support their respective positions regarding intent. Comark involved a pre-petition transfer pursuant to a repurchase agreement from the debtor to another entity. The court had to determine whether the transaction was a loan or a security transaction in order to apply section 546(e). Id. at 49. The court explained that to characterize the transaction, it must look at the parties' objective intent. Id. The Comark court concurred with the court in In re Bevill, 67 B.R. 557 (D.N.J.1986) and held objective intent is "reflected by the terms of the transaction as well as extrinsic evidence of intent, such as the books and records of the parties, accounting practices, regulatory treatment of the transaction and trade custom and usage." Id. at 53. The Court will apply Comark's definition of objective intent to determine whether the two transactions should be recharacterized as one. 1. Terms of Transaction Thrifty directs the Court to examine the Loan Proposal, the Term Sheet, and the Term Loan Agreement. BofA wants the Court to look only at the Swap Agreement. The Court concludes that the terms of the transaction are reflected in four documents: (1) the Loan Proposal (Exh. 1); (2) the Term Sheet (Exh. 13); (3) the Term Loan Agreement (Exh. 34); and (4) the Swap Agreement (Exh. 58-64, Exh. 79). Thrifty points to the fact the Loan Proposal (Exh. 1) states the Term Loan would have a fixed interest rate as evidence of the parties' intent to enter into a fixed rate loan. The Court concludes the Loan Proposal provides more than just that. First, portions of the proposal indicate that BofA intended to syndicate the Term Loan. (Exh. 1, Bates No. 12). Thrift does not dispute the fact that BofA needed to syndicate the Term Loan due to its amount and GWR's creditworthiness. (Linkenheil Decl. at 1:27-28, 2:1-10). Second, the Term Loan interest rate is listed as variable not fixed. (Exh. 1, Bates No. 13). BofA needed this characteristic in order to be able to syndicate the Term Loan. (Linkenheil Decl. at 2:11-19). Third, the proposal includes a statement that the borrower will enter into an interest rate swap which would effectively provide GWR a fixed interest rate. (Exh. 1, Bates No. 13). The Term Sheet of January 10, 1990 (Exh. 13) incorporates most of the Loan Proposal terms with some adjustments as to the amount of the Term Loan and other minor changes not relevant to this Court's decision. As to the actual Term Loan Agreement ("Agreement")(Exh. 34), Thrifty argues that its defined terms reflect that it was the parties' intent that the transactions be viewed as one agreement. The Court cannot agree with this analysis. The only definition in the entire Agreement which references both transactions is the term "Loan Documents." (Exh. 34, Bates Nos. 176-77). The Agreement defines the Swap Agreement separately and the Term Loan Documents separately. (Exh. 34, Bates Nos. 164 & 176). The Court is not persuaded that one definition in a 75-page agreement conclusively determines the nature of two separately defined transactions. The Court finds it more compelling that the Term Loan Documents definition includes agreements that are included in the Loan Documents definition, such as the Hazardous Material Indemnity Agreement and the Guaranties, but the definition does not include the Swap Agreement. (Exh. 34, Bates No. 185). If the Swap Agreement was actually part of the Term Loan Agreement, it should have been included in the list of Term Loan Documents. Although, the Court agrees with Thrifty that the Term Loan Agreement states that it comprises "the complete and integrated agreement of the parties," (Exh. 34, Bates No. 238), it also states, "[e]ach Loan Document was drafted with joint participation of the respective parties thereto and shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning thereof" (Emphasis added)(exh. 34, Bates No. 239). Examining the Swaps themselves, on each of the three days GWR entered into a swap with BofA, BofA executed a confirmation. (Exh. 58-64). Thrifty contends the fact that the parties only signed the ISDA Agreement 152 nearly two years after the actual Swaps took place reflect the unimportance of the Swap Agreement. The Court finds that this is not a material fact to the determination because each swap confirmation states that the Swaps would be governed by the ISDA Agreement. The ISDA Agreement states that the agreement and the confirmations constitute a single agreement between the parties. (Exh. 79, Bates No. 582). More compelling evidence that Swap Agreement was to stand alone is that there is no reference to the Terri Loan in the Swap confirmations nor the ISDA Agreement. In fact, the Term Loan was not listed in the ISDA Agreement as a credit support document (Exh. 79, Bates No. 603). An agreement can have several transactions that stand alone. Here, the parties' intent was that they would enter into an agreement to participate in various transactions to allow GWR to effectively achieve a fixed rate loan. Thrifty takes the intent of the parties too far by arguing an integrated agreement is the same as an integrated transaction. John E. Elgin, former CFO of both GWR and Thrifty Oil, the debtors' primary negotiator for the transactions, states: [F]rom the very beginning both GWR and BofA envisioned that a term loan coupled with an interest rate swap would provide GWR with the equivalent of a low cost fixed rate term borrowing. (Elgin Decl. at 3:18-23). This statement indicates GWR knew there would be two transactions and reflects that BofA did not disguise the transactions. The Court holds that the fair meaning of the language of each separately defined Loan Document creates rights and obligations that exist independently of each other. 2. Books, Records, Accounting Practices and other Extrinsic Evidence Thrifty contends that BofA's own records reflect that the purpose of the Swap component of the transaction was to fix the interest rate for the loan. Thrifty provides the Court with three examples: (1) BofA's Internal Standard Credit Memoranda (Exh. 23 & 24); (2) the financial statements BofA prepared for GWR (accounting for the swap payments as interest expense)(exh. 104); and (3) the swap brochure which describes an interest rate swap as an agreement between two parties to exchange a stream of interest payments over time (Exh. 55). Thrifty fails to provide evidence of how BofA treated the swap payments, claiming it irrelevant. The Court disagrees. To collapse the two transactions into one, the Court must examine whether BofA treated the transactions as one. The Court finds at least five examples (which Thrifty does not dispute) that BofA treated the two transactions independently of each other. One example is that BofA maintained a swap portfolio separate from its loan operations. Another example is that GWR paid the Swap payments to the "Interest Rate Swap Operations" department and not to loan operations. Donald Strauss, a vice president of BofA, stated that BofA recorded the swap payments as trading account assets while interest rate payments of the Term Loan were recorded as loan assets.[4] (Strauss Decl. at 3:3-7). In addition, BofA's accounting system treats all of its swap portfolio the same and does not distinguish between swaps which hedge loans and other types of swaps. (Strauss Decl. at 3:19-22; 24-27). Finally, the most persuasive example is that the stream of Swap payments did not flow to all of the Bank Group members but to BofA alone. If the two transactions were to be viewed as one, the Swap payments should have gone to the Bank Group as a whole for their risk in funding the loan. In addition to the parties' treatment of the transactions, the Court finds other facts that support a conclusion that the Term Loan Agreement and the Swap Agreement created independent obligations. First, GWR borrowed 153 an additional $7 million on the Term Loan but the Swap payments remained based on the original notional amounts. Second, prepayment of the Term Loan is not listed as a default event in the ISDA Agreement so the Swap payments would continue even if the Term Loan had been prepaid. (Exh. 79, Bates No. 585). Prior to the loan's closing, Scott Rosebrook ("Rosebrook"), former vice president of BofA's Risk Management Group, discussed with Mr. Elgin (Thrifty and GWR's CFO) the possibility that the Swap Agreement's separate obligations could exist even if the Term Loan never closed. (Rosebrook Decl. at 2:11-24). Rosebrook confirmed this in his Oct. 16, 1989 letter stating: Additionally, as mentioned in our conversation Friday evening, was the concern by Golden West management as to the extent of swap "breakage costs" in the unlikely event its planned financing fell through. Golden West may simply choose to leave its swap transaction in place and utilize the swap cashflows for current or future floating rate borrowings. However, if management wished to unwind the swap arrangement, determination of gain or loss is a function of the interest rate environment prevailing at the time of termination. (Exh. 56). Finally, the interest rate payment due on the Term Loan was never included on any payment request for the Swaps. (BofA's Exh. 70-77). The Court concludes that GWR understood that the Term Loan and Swap Agreement had to be structured so that BofA could syndicate the Term Loan and GWR could effectively have a fixed interest rate loan. GWR agreed to the structuring of the transaction. The facts show that the parties did not intend the Swap payments to compensate BofA for the risk and delay in the repayment of the Term Loan. In addition, no facts exist to indicate that this was a disguised agreement. What these two transactions accomplished was what both BofA and GWR intendeda marketable loan to syndicate and a hedged loan which eliminated interest rate fluctuation risk. The Court cannot disregard the integrity of each of these transactions. 3. Section 502(b)(2) Policy Considerations A final reason for not characterizing the termination damage claim as unmatured interest is that the policy concerns underlying section 502(b)(2) are not triggered. First, the termination damages are not accruing on an existing BofA claim to the detriment of other claimants. There is no prejudice to other creditors in allowing BofA's termination claim. Second, BofA's termination damages represent lost income which is not prohibited from recovery under section 502(b)(2). In re Holm, 931 F.2d 620, 623 (9th Cir.1991). Third, there was no uncertainty as to the amount of BofA's claim because it was set when the petition was filed based on the formula set forth in the ISDA Agreement. (Exh. 79). The Court concludes the policy underlying section 502(b)(2) is not furthered by a ruling that the termination damage claim is a claim for unmatured interest. B. Bucket Shop Laws Thrifty argues that BofA's swap claim is not enforceable under California's Bucket Shop Laws.[5] Its primary argument is that an amendment to the Commodities Exchange Act, 7 U.S.C. § I et seq. ("CEA") did not retroactively preempt California's Bucket Shop laws as applied to the GWR-BofA Swaps. The Court does not reach this argument as it has decided that the Bucket Shop laws do not apply to the transaction at issue. Bucket Shop Laws prohibit "wagering on the rise or fall of market prices of securities by means of fictitious transaction in such securities. . . ." 57 Cal. Jur.3d (1980), Securities Regulations, § 7, pp. 258-259. Two characteristics of the interest rate swap between GWR and BofA lead this court to hold this Swap is not subject to the Bucket Shop Laws. First, the Swaps involved no security or commodity. Cal. Corp.Code section 29004 defines security as "all shares in any corporation or association . . . and other evidences of debt or property and options for the purchase or sale thereof or any right 154 entitling the holder thereof to participate in profits or a division of assets." Section 29005 defines commodity as "anything movable that is bought and sold." GWR and BofA agreed to transfer a net payment stream (the swap payment) not any security or commodity. Second, pursuant to section 29008, a bucketing contract provides for a purchase or sale of a security or commodity where either one or both of the parties do not intend the actual delivery of the security or commodity. GWR and BofA fully intended to perform their payment obligations under the swaps there was no fictitious transaction involved. The Court overrules Thrifty's objection based on California's Bucket Shop Laws. IV. CONCLUSION The Court holds that there is no factual dispute as to the intent of the parties and declines to recharacterize the Term Loan and the Swap Agreement as a fixed rate loan. The parties' objective intent was to create two transactions: (1) a Term Loan with a variable rate and (2) interest rate Swaps. The documents, extrinsic evidence and policy considerations support this interpretation. Therefore, BofA's claim is not unmatured interest prohibited by 11 U.S.C. section 502(b). The Court also holds that California's Bucket Shop Laws do not apply to this case. BofA's summary judgment motion is granted and its claim is allowed in the amount of $5,428.500. Counsel for BofA is directed to prepare an order in accordance with this Memorandum Decision within ten (10) days of the date of entry. NOTES [*] Formerly known as Louise DeCarl Malugen. [1] Rule 9014 provides that certain Adversary Rules (Fed. R. Bankr.P. 7000-7087) apply to contested matters. [2] "LIBOR" means "London Interbank Offered Rate" and refers to the interest banks have to pay other banks in order to borrow money in the London money market. [3] Cal. Corp.Code §§ 29000-29201 (West 1997). [4] Thrifty filed an evidentiary objection to the Strauss declaration because Strauss was never identified as a potential fact witness and that his testimony was based on a document that was not produced until after the discovery cutoff date. The Court overrules the Thrifty's evidentiary objection that he was never identified as a potential witness because although not named, he was a BofA employee that was generally referred to on the witness list. The Court will not consider any statements based on the late filed Exh. 172. [5] See Cal. Corp.Code §§ 29000-29201 (West 1997).	{ "pile_set_name": "FreeLaw" }
933 F.Supp. 1326 (1996) Mara HENDERSON and Earlene Bryan v. AT & T CORPORATION and AT & T Communications, Inc. Civil Action No. G-95-248. United States District Court, S.D. Texas, Galveston Division. August 1, 1996. 1327 1328 1329 James Duane Bashline, McLeod Alexander Powell & Apffe, Houston, TX, for plaintiffs. Kathleen M. LaValle, Cohan Simpson Cowlishaw & Wulff, Dallas, TX, for defendants. ORDER KENT, District Judge. This employment discrimination action was originally brought by five Plaintiffs, all female, who are employed by or were formerly employed by the Defendants (referred to together as AT & T) as sales persons in a small, distinct business organization within AT & T known as the Profile Initiative Program (PIP). The original Plaintiffs reside in five cities and four states, and worked in four separate AT & T offices located in three states. On March 19, 1996, the Court partially granted AT & T's Motions to Sever and Transfer, and the claims of three of the original Plaintiffs were severed into three separate actions and transferred to more appropriate districts. The Court retained the claims of Plaintiffs Henderson and Bryan, who both worked for AT & T in the Houston office. Now before the Court is the Defendants' Motion for Summary Judgment against the claims of Plaintiff Earlene Bryan. For the reasons set forth below, the Motion is hereby GRANTED IN PART and DENIED IN PART. I. BACKGROUND Plaintiff Bryan began working as an outside sales representative for an AT & T subsidiary in 1974, and performed well enough to receive many promotions. From November 1987 through September 1990, Bryan served as the National Account Manager (NAM) on the Department of Treasury account. In September 1990, she was promoted to Sales Manager, and, in that capacity, succeeded in winning a $138 million systems contract based on a proposal process begun while she was the Department of Treasury NAM. See Bryan's Response to AT & T's Motion for Summary Judgment, Exhibit A-2. In 1991, Bryan was selected to be an instructor at AT & T's University of Sales Excellence in Cincinnati, Ohio. In August 1992, Candyce Henry, who was taking a class taught by Bryan, approached 1330 Bryan about a NAM position. Henry, a Branch Manager in AT & T's National Accounts Branch in Houston, was interested in Bryan coming to Houston as the NAM for AT & T's Exxon account, a customer that had been giving the majority of its business to AT & T's competitors. Bryan was selected for the position after interviewing with John Wood, then Sales Vice-President of Southwest's National Accounts Branch, which included the Houston office. On November 1, 1992, Bryan began working in the Houston office, apparently in collaboration with the then-current Exxon NAM, who remained in that position until the end of the year. On January 1, 1993, Bryan assumed sole responsibility as the Exxon NAM. See AT & T's Motion for Summary Judgment, Exhibit A, Bryan Deposition at 121-23. Prior to her transfer to Houston, Bryan had attained a "B" band ranking at AT & T; the next band up in rank and salary was the "C" band. Because she was not on the promotable list, Bryan could not assume the NAM position at a "C" level; she could assume the position only as a lateral transfer, rather than a formal promotion. Bryan Deposition at 57-60. While Bryan was initially hesitant to take the position as a lateral transfer, she accepted the position after Henry stated that Bryan would receive a promotion to the C level if "everything went well." Bryan Deposition at 64-65. However, AT & T did give Bryan out-of-band salary treatment, so that Bryan was paid at and received the benefits of the C level. Bryan Deposition at 69. When she accepted the position as Exxon NAM, Bryan recognized that a full promotion to the C band was dependent on her job performance in Houston and her placement on the promotable list. See Bryan Deposition at 65-69. In the spring of 1993, the PIP organization was created within AT & T, and the Exxon account for which Bryan served as NAM was to be moved from the National Accounts group to the PIP sales group. Bruce Smith was appointed as PIP's Southwest Branch Manager. At the end of March 1993, Bryan met Smith for the first time. According to Bryan, a team sent by Smith purportedly to review the Exxon account and assist Bryan in preparing an account plan instead essentially audited the account, unilaterally interviewing Bryan's team members about Exxon, without Bryan's presence. See Bryan's Response, Bryan Affidavit at paragraphs 12-13; Bryan Deposition at XX. Bryan became concerned about the activities of the team sent by Smith, and called Smith to ask if he was thinking about replacing her on the Exxon account. According to Bryan, Smith responded by saying "I'm not sure you're good enough. Exxon is the largest account in [PIP] and represents the largest win-back opportunity in the country." Bryan Affidavit at paragraph 14; Bryan Deposition at 79-81. Bryan contends Smith had no basis for questioning her competence, given that this conversation was only the second conversation she had ever had with Smith. Bryan Affidavit at paragraph 14. By April 1993, Bryan had won some business from Exxon. While the sales were relatively small, Bryan considered them to be "turnaround sales," because they represented the first new business won from Exxon in a long time. Bryan Deposition at 132-33. On May 1, 1993, the Exxon account was officially transferred to the PIP organization. Bryan Deposition at 87. Shortly thereafter, an advertisement in the AT & T computerized job-posting system announced an opening for the Exxon NAM position within PIP. Id. at 84-86; Bryan Affidavit at paragraph 19; Bryan's Exhibit A-5. Bryan contends Smith informed her the advertisement was routine, because all PIP positions were to be advertised. In mid-May 1993, at Smith's request, Bryan submitted her application for the position. Bryan Deposition at 85. Bryan alleges that, over the course of the next month, Smith repeatedly informed her that he had made no decision about the Exxon position. Bryan Affidavit at paragraph 20. On June 15, 1993, the day Smith was to interview Bryan for the NAM position, Smith informed her that he had chosen the new NAM, who would arrive on June 21. Id.; see also Bryan Deposition at 151-52. Smith then informed Bryan that he was making her a Branch Systems Manager and that she 1331 would be required to report to her replacement.[1] While the Branch Systems Manager (BSM) has some sales responsibilities, the position is primarily a technical, support position. Bryan Deposition at 159-60, 164; Bryan Affidavit at paragraph 22. After being moved into the BSM position, Bryan contends she repeatedly asked Smith and John Wood, Smith's supervisor, to relocate her into another sales position. Wood promised Bryan that Smith would work with her until they found a new position for her. Bryan Affidavit at paragraph 50. However, because Smith refused to cooperate in Bryan's search, Bryan ultimately elected to take a "Special Enhanced Leave of Absence" beginning in December 1993. In January 1994, Jim Kaufold, Bryan's replacement as the Exxon NAM, gave Bryan a "partially met objectives" job appraisal. Bryan returned to work for AT & T in December 1995; however, the record is not clear about the position to which Bryan returned. As noted above, during her tenure as Exxon NAM, Bryan succeeded in winning back some of Exxon's business. In 1995, after Kaufold replaced Bryan as the Exxon NAM, Exxon awarded its entire telecommunications business to Sprint. See Bryan Affidavit at paragraph 40. On April 14, 1994, Bryan filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). In her charge, Bryan contended AT & T discriminated against her based on her sex and age by denying her a promotion, giving her a low performance appraisal, and refusing to relocate her. Bryan received a right to sue letter on June 14, 1995. On August 18, 1995, this Court granted permission to add Bryan as a Plaintiff in this action, which was commenced on May 4, 1995. In the Amended Complaint, Bryan asserts the same claims asserted in her EEOC charge, as well as claims of violations of the Equal Pay Act, and a state law defamation claim.[2] II. AT & T's MOTION FOR SUMMARY JUDGMENT A. Defamation Bryan's defamation claims are based on Smith's statement to her that he was not sure she was good enough for the Exxon NAM position and on the statements contained in the negative performance appraisal. AT & T contends the defamation claims fail as a matter of law because they are barred by the statute of limitations, and because any allegedly defamatory statements were not published and were privileged. In her Response to AT & T's Motion, Bryan stipulated that she would not pursue the defamation claim. See Bryan's Response at 2, footnote 3. However, in her Response to AT & T's Reply, Bryan "concedes that her defamation claims are barred, except to the extent that Bryan's poor performance appraisal may have been disseminated with malice or ill-will towards Bryan, or was disseminated to third persons with no interest in the subject matter of such appraisal." Bryan's Response to Reply at 2. Bryan's defamation claim is based on state law, and, therefore, is governed by the Texas statute of limitations. Under Texas law, any defamation claim must be brought within one year after the defamatory statements were made. See Tex.Civ.Prac. & Rem.Code § 16.002(a); Cote v. Rivera, 894 S.W.2d 536, 542 (Tex.Ct.App. Austin 1995). Smith's statement was made in March 1993, and Bryan received the performance appraisal in January 1994. At the very earliest, Bryan brought her claims on August 16, 1332 1995, the date she sought leave to file the Amended Complaint which first included her as a Plaintiff in this action. Thus, any claims based on Smith's statement to Bryan and the initial issuance of the performance appraisal are clearly time-barred. Moreover, absent identification of specific instances of publication of the performance appraisal after August 16, 1994, Bryan's vague assertions of possible but unknown instances of re-publication are insufficient to avoid summary judgment. Accordingly, because Bryan has presented no evidence that any defamatory statements were published within one year before filing her claims, her defamation claims are time-barred, and that portion of AT & T's Motion for Summary Judgment is hereby GRANTED. B. Failure to Hire Claims[3] (1) In order to pursue a claim of age or sex discrimination in Texas, a plaintiff must file a charge of discrimination with the EEOC within 300 hundred days after the alleged unlawful employment practice occurred. See 42 U.S.C. § 2000e-5(e)(1) (300 day requirement under Title VII); 29 U.S.C. § 626(d) (300 day requirement under ADEA). While Bryan learned on June 15, 1993 that she had not obtained the Exxon NAM position, she did not file her charge of discrimination until April 14, 1994, 303 days after June 15, 1993. Thus, AT & T contends that Bryan's failure to hire claims are time-barred under Title VII and ADEA. While filing a complaint with the EEOC is a precondition to maintaining an action under Title VII or the ADEA, it is not a jurisdictional requirement, and the time period for filing may be equitably tolled or otherwise modified. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132-33, 71 L.Ed.2d 234 (1982).[4] Bryan, therefore, attempts to salvage her claims by urging the application of various equitable doctrines, including the doctrine of equitable tolling.[5] 1333 Generally, a discrimination cause of action accrues, and the 300 day period begins running, when the employee learns of the adverse action taken by the employer. Delaware State College v. Ricks, 449 U.S. 250, 258-59, 101 S.Ct. 498, 504-05, 66 L.Ed.2d 431 (1980); Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 810 (5th Cir.1991). However, if, at the time of the adverse employment action, the employee did not have enough information to support filing a discrimination claim, the 300 day limitations period may be equitably tolled until the time the facts supporting a cause of action are or should be apparent to the employee. See Blumberg v. HCA Management Co., 848 F.2d 642, 644-45 (5th Cir.1988) ("a plaintiff who is aware that she is being replaced in a position she believes she is able to handle by a person outside the protected age group knows enough to support filing a claim."), cert. denied, 488 U.S. 1007, 109 S.Ct. 789, 102 L.Ed.2d 781 (1989); accord Conaway v. Control Data Corp., 955 F.2d 358, 362 (5th Cir. 1992), cert. denied, 506 U.S. 864, 113 S.Ct. 186, 121 L.Ed.2d 131 (1992); Rhodes v. Guiberson Oil Tools Div., 927 F.2d 876 (5th Cir.1991), cert. denied, 502 U.S. 868, 112 S.Ct. 198, 116 L.Ed.2d 158 (1991); Pruet Production Co. v. Ayles, 784 F.2d 1275, 1279 (5th Cir.1986). While Bryan learned on June 15, 1993 that she did not receive the Exxon NAM position in PIP, she contends she did not know her replacement was outside the protected sex and age groups until Kaufold reported for work on June 21, 1993. Because she did not have the information to support an age or sex discrimination claim until June 21, Bryan contends the 300 day period for her claims was tolled until that date. Bryan filed her EEOC charge within 300 days after June 21, 1993; thus, Bryan argues that her charge is timely and that her failure to hire claims are not barred under the doctrine of equitable tolling.[6] AT & T contends Bryan must have been aware of her potential discrimination claims, given that she hired an attorney immediately after learning that she was being replaced on the Exxon account. The Court disagrees. Bryan's attorney sent AT & T a letter contending that AT & T defrauded Bryan by recruiting her to move to Houston and then denying her the PIP position a few short months later, and raising issues of promissory estoppel; there is no mention of age or sex discrimination. Thus, the letter itself indicates Bryan's lack of knowledge of the relevant facts. Moreover, the mere fact that Bryan may have been aware of her rights in general does not mean that Bryan was aware of the facts necessary to support a discrimination claim, as required by Blumberg and its progeny. Thus, this case presents the precise factual pattern that generally supports the application of equitable tolling. See Blumberg, 848 F.2d at 645 (time period for filing EEOC charge is tolled until the "facts that would support a cause of action are or should be apparent."); Pruet, 784 F.2d at 1279 (plaintiff who is aware that she is being replaced by a person outside the protected 1334 age group knows enough to support filing a claim). AT & T further argues, however, that even if the limitations period should be tolled, application of equitable tolling does not automatically give a plaintiff the full limitations period to file her charge after learning she might have a claim. AT & T contends the doctrine should be applied to toll the limitations period only for a reasonable time after the plaintiff learns she might have a claim. Here, Bryan did not file her EEOC charge until almost 300 days after she learned she might have an age or sex discrimination claim; thus, AT & T contends that the charge was not filed in a reasonable time and that the doctrine of equitable tolling cannot save Bryan's failure to hire claims. In Cada v. Baxter Healthcare Corp., 920 F.2d 446 (7th Cir.1990), cert. denied, 501 U.S. 1261, 111 S.Ct. 2916, 115 L.Ed.2d 1079 (1991), the plaintiff was told on May 5, 1987 that he would be terminated sometime in July, after a replacement was hired. On July 7, 1987, the plaintiff learned that his replacement was young and inexperienced. The plaintiff filed his EEOC charge on March 4, 1988, more than 300 days after the May 5 meeting, but less than 300 after the July 7 discovery of the age of his replacement. Id. at 453. The plaintiff argued, inter alia, that the 300 day filing period should be tolled until July 7, when he first discovered that he might have been the victim of age discrimination. Because the court found no explanation for the plaintiff's failure to file his administrative charge in the eight months remaining before the expiration of the 300 day filing period, the court refused to apply the doctrine of equitable tolling to save the untimely charge: We do not think equitable tolling should bring about an automatic extension of the statute of limitations by the length of the tolling period or any other definite term. It is, after all, an equitable doctrine. It gives the plaintiff extra time if he needs it. If he doesn't need it there is no basis for depriving the defendant of the protection of the statute of limitations. Statutes of limitations are not arbitrary obstacles to the vindication of just claims, and therefore they should not be given a grudging application.... We should not trivialize the statute of limitations by promiscuous application of tolling doctrines. . . . . . [A] plaintiff who invokes equitable tolling to suspend the statute of limitations must bring suit within a reasonable time after he has obtained, or by due diligence could have obtained, the necessary information. [The plaintiff] failed to do this. Id. at 452-53; see also Thelen v. Marc's Big Boy Corp., 64 F.3d 264, 268 (7th Cir.1995) (equitable tolling "does not grant the plaintiff a fresh 300 days to file his charge once he obtains enough information to suspect discrimination; he must file his charge with the EEOC within a reasonable time."). AT & T's argument on this issue is appealing and rather persuasive. However, this Court is not convinced that the rule announced in Cada is the rule in the Fifth Circuit. While Cada has been cited by the Fifth Circuit, its requirement that equitable tolling extends the limitation period only for a reasonable time has never been articulated by the Fifth Circuit. Clearly, the Fifth Circuit requires a plaintiff seeking to invoke the doctrine of equitable tolling to act diligently in protecting her rights. See Wilson v. Secretary, Dep't of Veterans Affairs, 65 F.3d 402, 404 (5th Cir.1995) ("we `have generally been much less forgiving in receiving late filings where the claimant failed to exercise diligence in preserving his legal rights.'") (quoting Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 457, 112 L.Ed.2d 435 (1990)); St. Louis v. Texas Worker's Compensation Comm'n, 65 F.3d 43, 47-48 (5th Cir.1995) ("`One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence.'") (quoting Baldwin County Welcome Center, 466 U.S. 147, 151, 104 S.Ct. 1723, 1725-26, 80 L.Ed.2d 196 (1984)), cert. denied ___ U.S. ___, 116 S.Ct. 2563, 135 L.Ed.2d 1080 (1996). However, the cases in which the Fifth Circuit has refused to grant equitable relief because of the plaintiff's lack of diligence generally are factually distinct from the case at bar, and do not indicate that a plaintiff entitled to toll the 1335 limitations period until a specific date receives less than the full limitations period after that date. Most of the cases denying relief involve the plaintiff's failure to timely file a judicial complaint or administrative appeal after receiving his right to sue letter. See, e.g., St. Louis, 65 F.3d at 46-48; Wilson, 65 F.3d at 404-05. Clearly, the circumstances that might support tolling of that limitations period are significantly different from the circumstances that might warrant tolling of the period in which to file the initial EEOC charge. The plaintiffs in these cases knew they might have a cause of action, given that they filed EEOC charges. Moreover, EEOC right to sue letters specifically inform the plaintiff of the time limit for filing suit. Thus, cases involving failure to timely file a complaint after receiving a right to sue letter would likely result in the most narrow application of the doctrine of equitable tolling. However, the Court has found no indication even in these cases that, if the limitations period were to be tolled, the plaintiff would receive less than the full limitations period. Similarly, the Fifth Circuit cases involving equitable tolling where the plaintiff contends he did not initially know he might have a discrimination claim do not indicate that the plaintiff should receive less than the full limitations period if tolling is found to be appropriate. In Rhodes v. Guiberson Oil Tools Div., 927 F.2d 876 (5th Cir.1991), cert. denied, 502 U.S. 868, 112 S.Ct. 198, 116 L.Ed.2d 158 (1991), the plaintiff received notice on October 15, 1986 that he was being discharged as part of a reduction-in-force; on November 19, 1986, he learned that he had been replaced by a younger worker. More than four months later, on April 28, 1987, the Plaintiff filed his EEOC charge. The state involved in Rhodes was a non-deferral state; thus, the plaintiff had 180 days in which to file his administrative charge. The April 28 EEOC charge was filed 195 days after the plaintiff learned of his discharge. Id. at 877. Reversing the trial court's decision that the plaintiff's claim was time-barred, the Fifth Circuit concluded the limitations period should be tolled until November 19, 1986, because the plaintiff "had no reason, until discovery of [the employer's] hiring of a replacement, to suspect that [the employer] was guilty of age discrimination." Id. at 881. As to the requirement that the plaintiff act diligently to be entitled to equitable relief, the court noted simply that there was "no showing of lack of diligence in this case." Id. at 882. It appears that the Rhodes court was concerned with the plaintiff's diligence in discovering information surrounding his discharge, rather than his diligence in filing his charge after learning the relevant information. If the full limitations period is not available to a plaintiff who is entitled to relief under the doctrine of equitable tolling, then it seems likely the Rhodes plaintiff's four month delay in filing after he learned he had been replaced would have warranted some discussion. This understanding of the diligence requirement of equitable tolling is supported by the court's decision in Pacheco v. Rice, 966 F.2d 904 (5th Cir.1992). In Pacheco, the plaintiff, a civilian employee of the Air Force, resigned after a investigation of sexual harassment charges against him resulted in a finding that the plaintiff had acted improperly and should be fired. Id. at 905. Because the plaintiff was a federal employee, he was required to notify an equal employment opportunity counselor of any claims of discrimination within thirty days after the allegedly unlawful action occurred. Id. Three years after he resigned, the plaintiff allegedly learned that another employee who had been accused of sexual harassment had been investigated under different procedures and was not discharged. Within thirty days after discovering this information, the plaintiff filed an informal complaint of racial discrimination. 966 F.2d at 905. The plaintiff's theory was that the Air Force's investigation of him was not conducted in accordance with Air Force regulations, while investigations of white employees were conducted "by the book." Id. at 907. The Fifth Circuit rejected the plaintiff's argument that the limitations period should be tolled until he learned of the disparate treatment, three years after his resignation. The court stated: 1336 The doctrine of equitable tolling has its limits, however. It does not permit plaintiffs to suspend the time for filing discrimination complaints indefinitely when they discover instances of disparate treatment of other employees months or years after their discharge. It is to be expected that some relevant facts will come to light after the date of an employee's termination one purpose of filing an administrative complaint is to uncover them. The requirement of diligent inquiry imposes an affirmative duty on the potential plaintiff to proceed with a reasonable investigation in response to an adverse event. Id. at 907 (citations omitted). The court concluded that the plaintiff could easily have discovered and raised the alleged disparate treatment at the time he resigned. Because the plaintiff "sat on his rights for three years[,] [t]his was not a case for equitable tolling." Id. Pacheco's concern with diligence in discovering the necessary information lends support to this Court's understanding of the diligence requirement of equitable tolling. Moreover, the Court notes that in Pacheco, there again is no indication that the full limitations period is not available to the plaintiff in cases where tolling is appropriate. Furthermore, equitable tolling is similar to, and serves substantially the same purpose as, the concept of a "continuing violation." This concept, another equitable exception to strict application of the ADEA or Title VII administrative filing requirements, is applicable in cases where the "unlawful discrimination practice manifests itself over time, rather than as a series of discrete acts." Abrams v. Baylor College of Medicine, 805 F.2d 528, 532 (5th Cir.1986). So long as one incident of discrimination occurred within the limitations period, the plaintiff can recover for all acts of discrimination constituting the continuing violation, even those that otherwise would be time-barred. Id. at 533; see also Berry v. Board of Supervisors, 715 F.2d 971, 979 (5th Cir.1983), cert. denied, 479 U.S. 868, 107 S.Ct. 232, 93 L.Ed.2d 158 (1986).[7] The "core idea" of the concept of a continuing violation is that "equitable considerations may very well require that the filing periods not begin to run until the facts supportive of a Title VII charge or civil rights action are or should be apparent to a reasonably prudent person similarly situated." Glass v. Petro-Tex Chemical Corp., 757 F.2d 1554, 1560, 1561 n. 5 (5th Cir.1985). Thus, the concept of continuing violation ameliorates the strictness of the operation of the limitations periods for largely the same reasons as does the doctrine of equitable tolling. Given these similar purposes, the Court does not believe the operation of the doctrines should yield substantially different results. If the employer's conduct is found to be a continuing violation, the plaintiff is entitled to the benefit of the full limitations period after the occurrence of the act that puts the plaintiff on notice of his claim. The Court sees no reason why a plaintiff who is able to invoke the doctrine of equitable tolling should be entitled to any less protection. AT & T cites no Fifth Circuit authority for its argument that Bryan's failure to hire claim is time-barred because she did not file her EEOC charge in a reasonable time, and the Court's independent research has located no such authority. Instead, as discussed above, the Fifth Circuit cases at least implicitly indicate if a plaintiff establishes that he is entitled to invoke the doctrine of equitable tolling, he is entitled to the full limitations after learning the necessary information. In the absence of clearer precedent from the Fifth Circuit, the Court declines to impose such a requirement in this case. Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; see Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). In this case, Bryan has at least established that there is a genuine issue of fact as to whether she knew or should have known that she might have an age or sex discrimination claim before June 21 and thus whether her EEOC filing was timely. See Coke, 640 F.2d at 595-96 (treating applicability of equitable 1337 tolling as question of fact). Accordingly, as to her failure to hire claims asserted under Title VII and the ADEA, AT & T's Motion for Summary Judgment against that claim on the grounds of timeliness is hereby DENIED.[8] (2) AT & T further contends that, even if Bryan's failure to hire claims are not time-barred, it is nonetheless entitled to summary judgment because Bryan has failed to establish that AT & T's proffered explanation for its actions is pretext. The Court strongly disagrees. Absent direct evidence of discrimination, a plaintiff in an age or sex discrimination case must establish a prima facie case of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Meinecke v. H & R Block of Houston, 66 F.3d 77, 83 (5th Cir.1995). If the plaintiff establishes a prima facie case, a rebuttable presumption of discrimination arises, which the defendant must rebut by articulating a legitimate, nondiscriminatory reason for its actions. Meinecke, 66 F.3d at 83. If the defendant articulates a nondiscriminatory reason, the presumption of discrimination disappears from the case, and the plaintiff must prove that the proffered reasons are pretext for discrimination. Meinecke, 66 F.3d at 83.[9] In a failure to hire or failure to promote case, the plaintiff generally establishes a prima facie case by following the framework adopted by the Supreme Court in McDonnell Douglas, and showing that: (1) she is a member of a protected class; (2) she was qualified for the position at issue; (3) she was not hired for or promoted to the position; and (4) the position was given to a person outside the protected class. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Meinecke, 66 F.3d at 83; Portis v. First National Bank, 34 F.3d 325, 328 n. 6 (5th Cir.1994). Clearly, Bryan has established a prima facie case of age and sex discrimination based on AT & T's failure to give her the Exxon NAM position in PIP. To rebut the presumption of discrimination that arises from Bryan's prima facie case, AT & T contends that the Exxon position was awarded to Kaufold over Bryan because Smith believed that Kaufold was the most qualified candidate given Kaufold's "technical proficiency and his successful record at AT & T." AT & T's Motion for Summary Judgment at 2 n. 3.[10] However, Bryan has presented ample evidence from which the jury could conclude that AT & T's explanation for its actions is pretext for discrimination. See Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir.1996) (en banc) (to avoid summary judgment, the plaintiff must present sufficient evidence, if taken as a whole, to allow the jury to infer the actual reason for the employer's action was discriminatory). First, AT & T's explanation for its decision has changed during the course of this litigation. In connection with the EEOC investigation of one of Bryan's former co-plaintiffs, AT & T stated that Bryan was removed because Exxon was not satisfied with her performance. See Bryan's Response, Exhibit F. However, in response to Bryan's Requests for Admissions, AT & T acknowledged that customer complaints were not the primary reason for its decision not to award the 1338 position to Bryan. See Bryan's Response, Exhibit H. Moreover, in his declaration, Smith contends he chose Kaufold over Bryan because Kaufold was more qualified. Bryan's evidence of AT & T's shifting and evolving explanation for its actions is sufficient to allow the jury to discredit AT & T's proffered explanation for its actions and to conclude that the actions were motivated by illegal discrimination. See, e.g., EEOC v. Ethan Allen, Inc., 44 F.3d 116, 119 (2nd Cir.1994) (jury can infer pretext from shifting explanation). In addition, Bryan has produced evidence that Kaufold was pre-selected for the Exxon position and that she was never truly considered to be a candidate for the position. First, Bryan's Affidavit establishes that Smith's assessment of her qualifications was completely inaccurate. See Bryan Affidavit at paragraphs 27-29; "Exxon NAM Candidate Matrix," Bryan's Response, Exhibit A-6. Because Smith could have obtained accurate information by simply looking through Bryan's personnel file or speaking to Bryan, Smith's failure to take even these minimal steps indicates that he never considered her for the position. Cf. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259, 101 S.Ct. 1089, 1097, 67 L.Ed.2d 207 (1981) ("The fact that a court may think that the employer misjudged the qualifications of the applicants does not in itself expose him to Title VII liability, although this may be probative of whether the employer's reasons are pretexts for discrimination."). In addition, an internal AT & T document shows Bryan as holding the BSM position as of May 1, 1993, before the opening for the Exxon position was advertised on the AT & T computer system, and well before Smith informed Bryan of his decision. See Bryan's Response, Exhibit 5. From this evidence, a jury could reasonably conclude that AT & T's explanation is pretext and that AT & T never even considered giving the position to Bryan. See Townsend v. Washington Metropolitan Area Transit Auth., 746 F.Supp. 178, 184 (D.D.C.1990) (evidence that employer preselected applicant and "selected out" the plaintiff one month before announcing its selection for the position for which the plaintiff applied is evidence that the employer's proffered "better qualified" explanation is pretext for discrimination). Therefore, viewing as a whole the evidence presented by Bryan, the Court concludes that a reasonable jury, if it believes Bryan's evidence, could conclude that AT & T's explanation for its actions is pretext and that discrimination was the actual reason for its refusal to give Bryan the Exxon position. Accordingly, as to Bryan's failure to hire claims asserted under Title VII and the ADEA, AT & T's Motion for Summary Judgment is DENIED. C. Remaining Claims In addition to her failure to hire claims, Bryan also contends AT & T discriminated against her because of her sex and age in failing to relocate her to another area of the country and by giving her a low performance appraisal. These claims are in connection with AT & T's conduct after Bryan was reassigned to the BSM position; thus, her EEOC charge was timely as to the remaining claims. AT & T, however, contends it is entitled to summary judgment against these claims because Bryan cannot establish a prima facie case of age or sex discrimination in connection with her relocation or low appraisal claim. The Court disagrees. As discussed above, absent direct evidence of discrimination, a plaintiff must establish a prima facie case of intentional discrimination. While use of the McDonnell Douglas rubric may be the most common method of establishing a prima facie case, it is not the exclusive method for proving intentional discrimination. Portis, 34 F.3d at 328 n. 6. Ultimately, in order to establish a prima facie case, all that is required of the plaintiff is to prove that she was not hired or otherwise subjected to an adverse employment action "under circumstances that give rise to an inference of unlawful discrimination." Burdine, 450 U.S. at 253, 101 S.Ct. at 1094. In January 1994, Bryan received an appraisal evaluating her performance as a BSM through December 1993. The appraisal was conducted by Kaufold, Bryan's replacement on the Exxon account. Citing insufficient 1339 quality of work and understanding of AT & T's products and services as evidenced by errors in two Exxon proposals, as well as "inconsistent attendance," Kaufold gave Bryan a "partially met objectives" rating, the lowest rating Bryan had ever received.[11] Bryan contends the low evaluation was part of the paper trail created by AT & T to justify its earlier actions, and that the evaluation was simply a part of AT & T's continuing discrimination against her. Bryan has submitted evidence from which the jury might conclude that the conduct outlined in the appraisal did not justify a "partially met objectives" rating under AT & T's own guidelines. See Bryan's Response, Exhibit I, AT & T Personnel Guide at 6 (defining "partially met" rating as appropriate where employee's "contributions and performance frequently did not meet the basic job requirements.") (emphasis added). The Court believes the evidence presented by Bryan is minimally sufficient to allow the jury to infer that unlawful discrimination was the true motivation behind Bryan's appraisal. See Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94. While Bryan has not produced evidence that similarly situated employees were not evaluated as strictly as she was, the Court does not believe that, under the particular circumstances of this case, that failure is fatal to her claim. See Jones v. Western Geophysical Co. of America, 669 F.2d 280, 284-85 (5th Cir.1982) (fact that discharged black plaintiff was replaced by a black employee was not fatal to plaintiff's Title VII claim, where plaintiff produced evidence supporting inference that employer hired replacement employee only to defeat plaintiff's claim and in fact was pretext for discrimination against plaintiff). Were the appraisal claim Bryan's only claim against AT & T, the Court would likely agree that Bryan has failed to establish a prima facie case. However, the Court must consider the appraisal claim in connection with the failure to hire claim. If the negative appraisal was not justified, the jury could reasonably infer that AT & T forced Bryan's performance into a low rating in order to create a paper trail supporting its previous refusal to give her the Exxon position. Cf. Portis, 34 F.3d at 330 ("This circuit will not sterilize a seemingly objective decision to [discipline] an employee when earlier discriminatory decisions have infected it.") (quoting Vaughn v. Edel, 918 F.2d 517, 522 (5th Cir.1990)). Accordingly, as to Bryan's performance appraisal claims, AT & T's Motion for Summary Judgment is DENIED.[12] Finally, in her relocation claim, Bryan contends that Smith has a large relocation expense budget, and that he failed to help her relocate back to the East in spite of promises by John Wood, Smith's supervisor, that Smith would cooperate with her.[13] AT & T contends it is entitled to summary judgment because it has presented evidence that Smith's relocation funds were used only to relocate employees within the PIP organization, while Bryan is requesting that Smith use his relocation funds to place her in a position outside the PIP organization. See Smith Declaration at 2 (the PIP relocation budget "existed to pay relocation expenses of certain individuals who were hired into positions within [PIP]. The funds were not available to relocate [PIP] employees who desire to leave the [PIP] group in order to take positions elsewhere within or outside of 1340 AT & T."). AT & T contends that because there is no evidence that Bryan was treated differently from similarly situated employees, her claim fails as a matter of law. Bryan argues that AT & T has not responded to her requests for information regarding the expenditures from Smith's relocation budget, see Bryan's Response to AT & T's Reply at 8, and AT & T does not dispute this contention. Given the insufficient factual development on this issue, the Court declines to enter summary judgment against this claim at this juncture.[14]See Fed. R.Civ.P. 56(f); Celotex, 477 U.S. at 326, 106 S.Ct. at 2554. Accordingly, AT & T's Motion for Summary Judgment as to Bryan's relocation claims is likewise DENIED. III. Summary In summary, AT & T's Motion for Summary Judgment is hereby GRANTED as to Bryan's defamation claims. As to Bryan's failure to promote claims asserted under Title VII and the ADEA, AT & T's Motion for Summary Judgment is hereby DENIED. Finally, AT & T's Motion for Summary Judgment against Bryan's performance appraisal claims and relocation claims are likewise DENIED. IT IS SO ORDERED. DONE. ORDER DENYING SUMMARY JUDGMENT Presently before the Court is the Defendants' Motion for Summary Judgment against the claims of Plaintiff Mara Henderson. For the reasons discussed below, the Motion is hereby DENIED. This employment discrimination case was filed on May 4, 1995. On November 15, 1995, a scheduling order was entered, setting the case for trial on August 12, 1996. On June 4, 1996, the Defendants filed a Motion for Summary Judgment against the claims of Plaintiff Earlene Bryan, but it was not until July 19, 1996 that the Defendants filed this Motion for Summary Judgment against Henderson's claims. Pursuant to the Local Rules of the Southern District of Texas, the Plaintiff's response to this Motion is due on August 8, 1996, only four days, and one business day, before the scheduled trial date. While the Court did not establish a deadline for the filing of dispositive motions in this case, the Court's consistent practice is to caution attorneys to file dispositive motions early, so the Court has time to carefully consider the motions and issue its ruling a reasonable period before trial. The Court also instructs attorneys that if dispositive motions are filed close to the trial date, the Court will simply carry the motions forward to trial. Because of the timing of this Motion, the Court must deny the Defendants' Motion for Summary Judgment at this time. As noted above, the Plaintiff's response to this Motion is not due until the virtual eve of trial. Thus, the Court clearly would not have the time to properly consider the Defendants' Motion and any Response before the scheduled trial date, nor would the Court consider granting a continuance to allow time for consideration of the Motion. The Court's time is simply too valuable and its resources too scarce to allow its already crowded docket to be manipulated by the strategically-timed filing of dispositive motions.[1] The Court is denying this Motion at this time because the Court believes it would be extraordinarily unfair to require the Plaintiff to expend considerable time and energy responding to a motion that the Court in no event will be able to consider, when that time and energy instead should be devoted to preparing for the looming trial. Accordingly, the Defendants' Motion for Summary Judgment is hereby DENIED. The Defendants, of course, are free to present at trial any and all defenses raised in the *1341 Motion, by way of a motion for judgment as a matter of law, a post-judgment motion, or any other means that may be appropriate under the circumstances. IT IS SO ORDERED. DONE. NOTES [1] Although the Branch Systems Manager was a B level position, Bryan continued to be paid at the C band level. [2] In the First Amended Complaint, it appeared that Bryan also asserted claims of fraud and intentional infliction of emotional distress. However, the Second Amended Complaint makes clear that Bryan does not seek recovery for mental anguish. See Second Amended Complaint, section V ("Plaintiff Bryan, unlike the other Plaintiffs, does not seek damages for emotional pain, suffering, inconvenience, mental anguish, or loss of enjoyment of life."). In addition, Bryan testified at her deposition that she did not claim that AT & T had defrauded her. See Bryan Deposition at 67, 210. Thus, as of the date of AT & T's Motion for Summary Judgment, defamation was Bryan's only remaining state law claim. [3] In her Complaint and EEOC charge, Bryan separately accuses AT & T of failing to promote her and wrongfully demoting her. Thus, it was not clear whether Bryan was complaining of AT & T's failure to promote her into the C band during her tenure as the Exxon NAM before the Exxon account was transferred into PIP, of AT & T's failure to hire her for the Exxon NAM position within PIP, or her demotion to BSM. However, in her Response to AT & T's Motion for Summary Judgment, Bryan stated that, although different names had been given to her claims, she was complaining of AT & T's decision to hire Jim Kaufold, rather than her, as the Exxon NAM within PIP. See Bryan's Response at p. 15, footnote 70. Thus, the Court will use Bryan's characterization of these claims and refer to them as "failure to hire" claims. [4] To the extent the provisions of Title VII and the ADEA are similar, cases arising under one statute are applicable to cases arising under the other statute. See, e.g., Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 587 (5th Cir. 1981) (en banc). [5] As to her claims of sex discrimination, Bryan also contends that under the "single filing rule," her claim is not barred, despite her failure to timely file an EEOC charge. Under the "single filing rule," a non-filing plaintiff may maintain her case against the defendant if one plaintiff has timely filed a charge with the EEOC and the nonfiling plaintiff's claims arise from similar discriminatory treatment in the same time frame. See, e.g., Allen v. United States Steel Corp., 665 F.2d 689, 695 (5th Cir.1982). Here, Bryan contends her claims of sex discrimination are similar to and occurred in the same time frame as those of her co-plaintiff Mara Henderson and her former co-plaintiff Karen Talbert, both of whom timely filed EEOC charges. Thus, Bryan contends her untimely EEOC filing does not bar her claims of sex discrimination. The Court concludes that Bryan cannot invoke the single filing rule, because Henderson's and Talbert's EEOC charges were filed well more than 300 days after Bryan learned she was being replaced by a younger man. See Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 472 (D.C.Cir.1976) (in a Title VII class action, while EEOC filing requirement is satisfied if any member of the class timely files an EEOC charge, that filing "cannot revive claims which are no longer viable at the time of filing."); Lange v. Cigna Individual Financial Servs. Co., 766 F.Supp. 1001, 1002-03 (D.Kan. 1991) (single filing rule may be applied only to "non-complying plaintiffs who could have filed EEOC charges at the time the complying plaintiff filed his or her EEOC charge"); Cavanaugh v. Texas Instruments, 440 F.Supp. 1124, 1128 (S.D.Tex.1977) (allowing EEOC filing of class representative to satisfy filing requirement for other class action plaintiffs only if the non-filing plaintiffs "could have timely complied [with the ADEA] notice requirement as of the date of the representative plaintiff's filing."); cf. Payne v. Travenol Lab., Inc., 673 F.2d 798, 813 (5th Cir.) (Title VII class action open to plaintiffs "who could have filed a timely charge with the EEOC" at the time the earliest charge was filed), cert. denied, 459 U.S. 1038, 103 S.Ct. 451, 74 L.Ed.2d 605 (1982). [6] Initially, Bryan did not argue that equitable tolling applied to her Title VII claims, because she knew on June 15, 1993 that her replacement was a man. See Bryan's Response to Motion for Summary Judgment at 22, footnote 94. However, in her Response to AT & T's Reply, Bryan contends that equitable tolling applies to her age and sex discrimination claims. See Response to Reply at 4 ("Bryan did not meet her replacement, nor was she aware of her replacement's gender, age, or inexperience until June 21, 1993."). The Court has studied Bryan's Affidavit, upon which the initial statement that she knew her replacement was a male was based, and concludes there is at least a question of fact as to when Bryan knew the gender of her replacement. See Bryan Affidavit at paragraph 21 ("Mr. Smith.... abruptly informed me that the new Exxon NAM would arrive on Monday, that he was making me a Branch Systems Manager, that I would be reporting to my replacement, and that he was going that afternoon to Exxon to inform them of the change in personnel.") and paragraph 24 ("On June 21, 1993 my replacement arrived. His name is Jim Kaufold, a white male, who was 29 years old at the time."). While the Court is extremely troubled by the inconsistent positions taken by Bryan, the Court believes the inconsistency is attributable to the carelessness of Bryan's attorney, and the Court will not, at this stage in the proceedings, punish Bryan for an apparently inadvertent error by her attorney. [7] Bryan does not contend that AT & T's conduct amounts to a continuing violation. [8] Bryan also contends that AT & T should be equitably estopped from raising the timeliness of her EEOC charge, because AT & T repeatedly promised to help her find another position. See Bryan's Response to AT & T's Reply at 5-6. The Court disagrees. Equitable estoppel may be applicable in cases where the employer concealed facts or misled the employee about the reasons for the employee's termination. See, e.g., Rhodes, 927 F.2d at 879. The conduct about which Bryan complains is simply insufficient to warrant the application of equitable estoppel. [9] "The same evidentiary procedure for allocating burdens of proof applies to discrimination claims under both [Title VII and the ADEA]." Id. [10] Bryan contends this Court cannot consider Smith's declaration because it is neither sworn nor notarized. This argument is utterly without merit. 28 U.S.C. § 1746 treats as the equivalent of a sworn affidavit a declaration attested by the declarant to be true and correct under penalty of perjury. Because Smith's declaration contains the precise language required by section 1746, his declaration is as effective as a sworn affidavit. [11] At AT & T, employees are given one of five ratings: far exceeded objectives; exceeded objectives; fully met objectives; partially met objectives; and unsatisfactory. [12] Moreover, it does not appear that the performance appraisal claims are really independent causes of action for which Bryan seeks recovery. It is not apparent that Bryan can establish she has suffered any damages attributable only to the negative appraisal, rather than the failure to receive the Exxon position. Instead, it appears that Bryan is really arguing that the performance appraisal is simply more evidence of AT & T's discrimination against her. However, the Court is not foreclosing Bryan from treating the appraisal claim as a separate cause of action, provided she can present proper evidence of damages flowing from the appraisal. [13] Bryan's Response to AT & T's Motion for Summary Judgment makes clear that she complains only of Smith's failure to use his relocation budget to help Bryan move. See Response at 46-47. Bryan does not contend that Smith failed to help her obtain any specific position within AT & T but outside of the PIP organization, or that AT & T refused to hire her for any specific position outside PIP because of her sex or age. [14] Even if Bryan could not maintain an independent claim based on Smith's failure to relocate her, evidence of Smith's failure to cooperate in her relocation quest may nonetheless be admissible to show AT & T's intent to discriminate. See Fed.R.Evid. 401, 404(b). [1] The Defendants' Motion relies heavily upon Henderson's deposition testimony. Given that the Defendants deposed Henderson on February 28, 1996, the Court finds it impossible to believe that the information needed to support the summary judgment motion could not have been gathered sooner.	{ "pile_set_name": "FreeLaw" }
496 S.W.2d 143 (1973) Ruben GARZA et al., Appellants, v. FRANK HRUBETZ & COMPANY, INC., Appellee. No. 15178. Court of Civil Appeals of Texas, San Antonio. May 30, 1973. Pedro P. Garcia, Eduardo E. DeAses, Corpus Christi, for appellants. Meredith & Donnell, Corpus Christi, for appellee. KLINGEMAN, Justice. This is an appeal from an order sustaining a plea to the jurisdiction. Ruben Garza and Maria A. Castillo sued Moore's Modern Show, a resident of Zapata County, Texas, and Frank Hrubetz Company,[1] an Oregon corporation, for damages for personal injuries sustained by plaintiffs while riding in an amusement ride referred to as a "paratrooper ride." The accident occurred in Falfurrias, Brooks County, Texas. Moore's Modern Show was the owner and operator of such ride, and Frank Hrubetz Company was alleged to be the manufacturer of such ride. Jurisdiction is sought to be maintained as to Hrubetz under the provisions of Article 2031b, Vernon's Tex.Rev.Civ.Stat.Ann., the Texas "Long Arm" statute. A plea to the jurisdiction was filed by Hrubetz under the provisions of Rule 120a, Texas Rules of Civil Procedure, the special appearance rule; and after a hearing, the court sustained such plea to the jurisdiction, ordered 144 a severance as to Hrubetz, and dismissed the cause of action insofar as it pertained to plaintiffs' claim against Hrubetz. Plaintiffs' sole point of error is that the trial court should not have granted the plea to the jurisdiction filed by the defendant Hrubetz because by its own admissions, Hrubetz had sufficient contacts within the state of Texas to submit itself to the jurisdiction of the Texas court. The scope of permissible state jurisdiction over the person of foreign corporations has broadened considerably in the last twenty-five years, and under the holdings of the Supreme Court of the United States in International Shoe Company v. State of Wash., 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), a state can assert in personam jurisdiction over a foreign corporation, assuming proper notice is given, if the foreign corporation has had certain minimum contacts with the state. In such cases the Supreme Court held that due process requires only that in order to subject the defendant to a judgment in personam, if he be not present within the territory of the forum, he should have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Our Supreme Court in O'Brien v. Lanpar Company, Tex., 399 S.W.2d 340 (1966), reviewed the United States Supreme Court cases above cited and set forth three basic factors which should coincide if jurisdiction over a nonresident corporation is to be entertained: (1) a nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the foreign state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the foreign state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the foreign state, the relative convenience of the parties, the benefits and protection of the laws of the foreign state afforded the respective parties, and the basic equities of the situation. See also: National Truckers Service, Inc. v. Aero Systems, Inc., 480 S.W.2d 455 (Tex.Civ. App.Fort Worth 1972, writ ref'd n. r. e.); Sun-X International Company, Inc. v. Witt, 413 S.W.2d 761 (Tex.Civ.App.Texarkana 1967, writ ref'd n. r. e.). It is appellee's contention that the court properly sustained its plea to the jurisdiction because under the record the second factor is clearly not satisfied in that the cause of action did not arise out of any act or transaction of appellee in the state of Texas. In their petition, plaintiffs assert that as they were riding in the paratrooper ride, they were caused by said amusement device to be lifted up to the sky approximately forty feet from the ground; and while they were in such position, the amusement device broke, causing both plaintiffs to be dropped to the ground, inflicting serious bodily injury to both of them. For grounds of recovery, plaintiffs rely on the theory of res ipsa loquitur, and in the alternative that both defendants were guilty of negligence in the operation and maintenance of the paratrooper ride in that one of the main metal rods holding the seat or canopy in which plaintiffs were sitting broke, causing plaintiffs to be dropped to the ground. The evidence at the hearing consisted of certain written interrogatories and answers thereto, propounded to appellee by plaintiffs. Such interrogatories show that appellee is an Oregon corporation; that it is not registered in Texas; that it does not have a permit to do business in Texas; that it does not have any business outlets in Texas; and that it does not have any business subdivisions in Texas. Such interrogatories further show that on several occasions, appellee had done business with Moore's Modern Show by receiving telephone 145 orders for equipment from Moore's and sending shipments of equipment to Moore's. Appellee has also done business with other companies in the state of Texas, and an exhibit lists nineteen customers in Texas with whom appellee has done business. The record also contains copies of a number of invoices filed as exhibits showing shipment of goods to Texas customers, both on a "C.O.D." basis, and on an open account basis. Appellee asserts that such interrogatories show that it neither manufactured, assembled, nor sold the subject amusement ride in which plaintiffs were injured, nor did it manufacture the part that broke.[2] Appellants rely strongly on Everly Aircraft Company v. Killian, 414 F.2d 591 (5th Circuit 1969). This was a products liability action against Everly Aircraft Company, an Oregon corporation, and Jack Everly, its president, to recover damages sustained by Jan Killian in a fall from an amusement ride in Dallas, Texas. Such suit was filed in the United States District Court of the Northern District of Texas at Dallas. Everly Aircraft Company was the manufacturer of the ride known as a Rock-O-Plane. Service upon both defendants was accomplished through the Texas "Long Arm" statute, Article 2031b, supra. The evidence showed that the ride in question was manufactured by Everly, and sold by such corporation to a Chicago amusement show some twenty years before the accident involved; that during the year 1964, such Chicago amusement company sold the ride to another amusement company; and that over a period of years the ride had traveled through numerous states. In its opinion, the Court stated: "The question in this case, therefore, is whether the unrelated business contacts plus the introduction of the ride into interstate commerce are sufficient to support Texas in personam jurisdiction over Everly Aircraft. 146 We hold that these contacts are sufficient."[3] 414 F.2d at 595. Such case differs from the case before us in that in Everly it was undisputed that the Rock-O-Plane ride in question was manufactured and sold by Everly Aircraft, while in our case there is evidence that appellee neither manufactured, assembled, nor sold the subject amusement ride, and that it did not manufacture the part of the ride that allegedly broke. The trial court impliedly found that the asserted cause of action did not arise out of, and was not connected with, any act or transaction of appellee in the state of Texas. There is evidence in the record to support such implied finding of the trial court. The judgment of the trial court is affirmed. CADENA, Justice. I concur in the result. NOTES [1] It appears from the record that Frank Hrubetz Company and Frank Hrubetz & Company, Inc. are one and the same entity. [2] The pertinent parts of the interrogatories propounded by appellants to appellee under dates of February 22, 1972, and July 6, 1972, and the answers thereto are as follows: Interrogatories of February 22, 1972 Question No. 10: "Did your corporation manufacture the Fruehauf trailer and paratrooper ride, serial number 45152?" Answer: "No." Question No. 11: "To whom did your corporation sell the above ride known as the Paratrooper Ride? State the name, permanent address, date of sell [sic] and method of delivery of such ride to such buyer." Answer: "Defendant assumes that the name `Paratrooper Ride' refers to the machine being operated by Moore's Modern Shows on or about October 24, 1970; if so, Defendant did not sell that particular ride to anyone." Question No. 16: "Did your corporation assemble the Fruehauf trailer and paratrooper ride, serial number 45152?" Answer: "No." Question No. 22: "Please attach and make a part of these interrogatories, copies of all catalogs in your possession which refer to the paratrooper ride including all adaptations of different cars or components to the paratrooper ride which have taken place since the manufacture of such ride." Answer: "Attached hereto as Exhibit `C' are four colored photographs and two advertisements relating to the `Paratrooper' Ride which Defendant does manufacture; Defendant points out again that the ride on which the Plaintiffs were injured October 24, 1970 was not one manufactured by Defendant." Interrogatories of July 6, 1972 Question No. 4: "Did Frank Hrubetz & Company, Inc., or a predecessor company, individual or corporation or partnership, manufacture any part of the paratrooper ride on which these changes or suggestions were made?" Answer: "They may have made the main frame as a Spitfire." Question No. 29: "Did Frank Hrubetz & Company, Inc., manufacture the paratrooper ride being operated by Moore's Modern Shows on or about October 21, 1970?" Answer: "No. We may have manufactured it originally as a Spitfire and it may have been altered by parties unknown." Question No. 30: "Did Frank Hrubetz & Company, Inc., manufacture any part of such paratrooper ride?" Answer: "See No. 29." Question No. 54: "Did Frank Hrubetz & Company, Inc., or any predecessor company, corporation or business, manufacture the part that broke on October 24, 1970 and made the basis of this suit?" Answer: "No." [3] In its opinion, the Court further stated: "Although there is nothing in the record to indicate that Everly Aircraft ever saw the ride after it was shipped to Chicago, the record does clearly reflect that Everly Aircraft contemplated that the ride would ambulate from state to state throughout the nation and that it would eventually tour Texas. Moreover, Everly Aircraft through other transactions had made numerous and repeated contacts with Texas and has purposefully availed itself of the protections of her laws. * * These contacts with Texas were neither occasional nor sporadicthey were both continuous and substantial." 414 F.2d at 593-595.	{ "pile_set_name": "FreeLaw" }
178 Ga. App. 835 (1986) 344 S.E.2d 755 CHAPMAN v. PIGGLY WIGGLY SOUTHERN, INC. 71843. Court of Appeals of Georgia. Decided April 24, 1986. Alvin C. McDougald, for appellant. John C. Edwards, for appellee. BENHAM, Judge. After the trial of a personal injury case, the jury returned a verdict in favor of appellant on the issue of appellee's liability, but awarded no damages because the evidence was insufficient to prove that appellee's agent caused appellant to suffer a "serious injury" as defined by OCGA § 33-34-2 (13). Appellant's sole enumeration is that the trial court erred in its charge to the jury regarding the definition of "serious injury." We disagree and affirm. Our review of the record reveals that the trial court's charge to the jury on the definition of serious injury was an almost verbatim recitation of the first sentence of OCGA § 33-34-2 (13) and a definition of the word "disability." After the jury began its deliberations, it requested a recharge on the meaning of serious injury. The court reiterated its previous charge. Appellant then objected to the charge as not being adjusted to the evidence, claiming it suggested that appellant had to have suffered all of the maladies stated in the statute section rather than any one of them. We find no merit in this assertion. The statute section is written in the disjunctive, and the trial court charged it as it was written. "It is not usually cause for new trial that an entire Code section is given. [Cits.] This is so even though a part of the charge may be inapplicable under the facts in evidence. [Cits.]" Keller v. State, 245 Ga. 522 (1) (265 SE2d 813) (1980). In his brief, appellant asserts that the trial court should have given an additional instruction regarding the definition of serious injury. *836 However, the charge appellant now requests was not included in his requests to charge and was not a part of the objection he raised after the trial court delivered its charge. Therefore, we will not consider the assertion of error on this basis. Ga. Power Co. v. Slappey, 121 Ga. App. 534 (4) (174 SE2d 361) (1970). Judgment affirmed, Deen, P. J., and Beasley, J., concur.	{ "pile_set_name": "FreeLaw" }
343 S.W.2d 508 (1961) Albert FARB et al., Appellants, v. STATE BANKING BOARD of Texas et al., Appellees. No. 10824. Court of Civil Appeals of Texas, Austin. January 4, 1961. Rehearing Denied January 25, 1961. 509 Butler, Binion, Rice & Cook, Houston, for appellants. Will Wilson, Atty. Gen., Morgan Nesbitt, Fred B. Werkenthin, Asst. Attys. Gen., for State Banking Board. Billy B. Goldberg, Houston, Clark, Mathews, Thomas, Harris & Denius, Austin, for T. T. Weisz and others. GRAY, Justice. This appeal is from a judgment sustaining orders of the State Banking Board granting a charter to the Southside State Bank and denying the application for a charter to the Stella Link State Bank both of which proposed banks are to be located in the City of Houston. The case involves separate applications for State bank charters in the same general area of the City of Houston and two orders of the Board. The organizers of the proposed Stella Link State Bank filed their application for a charter for that bank on April 10, 1959 which application was amended May 4, 1959. On April 14, 1959 an application for a charter for the Southside State Bank was filed and on May 7, 1959 this application was amended. On October 5, 1959 these applications were presented to the Board at its meeting on that date. The minutes of that meeting, after reciting other proceedings of the Board, recite: "Mr. Falkner then presented to the Board the application for charter of Stella Link State Bank, Houston, Texas, this bank to have a capital of $250,000, surplus of $150,000, and reserves of $100,000. * " The minutes then recite the names of the proposed incorporators; that named persons appeared in support of the application; that named attorneys appeared and were the principal speakers for the applicants, and that named parties appeared in opposition to the application. Following the foregoing, the minutes then recite: "Mr. Falkner also presented for consideration at the same time the application of Southside State Bank, Houston, Texas, this bank to have a capital of $300,000, surplus of $100,000, and reserves of $125,000. * " The minutes then recite matters substantially the same as those recited in connection with the Stella Link application. Following the foregoing recitals the minutes recite: "At the conclusion of this hearing the Board adjourned for lunch at 1:10 p. m. and reconvened at 2:20 p. m." Upon reconvening the Board considered business not connected with either of the above applications, set its next regular meeting for November 10, 1959 and adjourned without taking further action on either of the above applications. We quote from the minutes of subsequent meetings of the Board: November 10, 1959: "There was then presented to the Board a letter dated November 9, 1959 over the signature of George W. Rice, Attorney at Law from Houston, of the firm of Butler, Binion, Rice and Cook requesting that no action be taken on the applications of the Stella Link State Bank and Southside State Bank, 510 Houston, Texas, until the December meeting. After some discussion with regard to this request: Mr. Falkner made a motion, which was seconded by Mr. James, that action on these two applications be deferred until Wednesday, November 25, 1959, the date designated for a special meeting of the Board. Mr. Wilson did not vote." December 3, 1959: "Next the Stella Link State Bank, Houston, Texas application was taken up. Hearing on this application was first held on October 5, 1959, and action on same was postponed to November 10, 1959, again to November 25, 1959, and again to December 3, 1959. Mr. James presented a drawing delivered to him by Mr. Jack Binion of the firm of Butler, Binion, Rice & Cook at Houston, who represents the organizers, which reflected a new location South of the original site, a distance of slightly more than a mile. After some discussion of this application the Board was of the opinion that inasmuch as the newly selected site might conflict with another application now on file or an existing bank in that area, a new application should be requested embracing the new location and an investigation made with respect to various factors considered in connection with the applications for charters for state banks. Mr. Wilson made a motion that this be done. Mr. Falkner seconded the motion, and the vote was unanimous. * * * "Mr. Wilson then made a motion, which was seconded by Mr. James, to postpone action on the following pending applications for charter until January 7, 1960: "* * * Stella Link State Bank, Houston, Texas. "The vote was unanimous. There being no further business to come before the Board, the meeting was adjourned." On January 8, 1960 the application of the Stella Link group was denied the Board having unanimously voted "No" on the issues of public necessity and volume of business. The Southside Bank's application was approved November 25, 1959 at a special meeting held on that date. Omitting matters before the Board not relevant here the minutes of that meeting recite: "The applications of the Southside State Bank, Houston, Texas, on which hearing was held on October 5, 1959, and the Stella Link State Bank, Houston, Texas, on which hearing was held on October 5, 1959, were presented to the Board. The Board took under consideration the Southside State Bank, Houston, Texas application first, and made its findings as follows: James Wilson Falkner 1. Public Necessity Yes Yes No 2. Adequacy of capital Yes Yes Yes 3. Volume of business Yes Yes No 4. Experience of officers and directors Yes Yes Yes 5. Good faith Yes Yes Yes "Upon motion of Mr. Wilson, seconded by Mr. James, the application was approved by majority vote, and the Commissioner was instructed to permit the bank to open and operate as provided by law. "The application of the Stella Link State Bank, Houston, Texas, was then considered by the Board. Mr. James made a motion, which was seconded by Mr. Wilson, to postpone action on this application until the regular meeting on December 3, 1959. The motion carried by majority vote." On May 1, 1947 the Board, at a special called meeting, fixed its regular meeting days and resolved: "All completed applications on hand that date shall be presented in order of filing. 511 "Hearings in respect to applications on hand shall begin promptly at 9:00 A.M. and continue in the order of filing dates until all hearings are completed. In the event one day is not sufficient time in which to dispose of all applications and hearings the said meeting shall be continued until all are disposed of. "Nothing herein shall operate to prevent called meetings in the discretion of the Board in respect to deferred decisions or uncontested or emergency matters needing attention." Sec. 16 of Art. 16, Texas Constitution, Vernon's Ann.St., provides that the Legislature shall by general law authorize the incorporation of corporate bodies with banking privileges, and shall provide a system of State supervision, regulation and control of such bodies for the protection and security of depositors and creditors. Art. 342-901, Vernon's Ann.Civ.St., declares State Banks to be charged with the public interest and places them under State control. Art. 342-115 creates the State Banking Board consisting of the Attorney General, the State Treasurer and the Banking Commissioner and provides that the Board's findings and determinations may be reviewed and set aside by a court of competent jurisdiction. Art. 342-305 provides that applications for charters for State banks shall be filed with the Commissioner on forms prescribed by him and provides that he shall thereupon make a "thorough" investigation and report his findings to the Board. This article then provides that the Board shall, after hearing, determine whether: (1) there exists a public necessity for the proposed bank; (2) the proposed capital structure is adequate; (3) the volume of business in the community where the proposed bank is to be located is such as to indicate profitable operation of the bank; (4) the proposed officers and directors have sufficient banking experience, ability and standing to render success of the proposed bank probable, and (5) the applicants are acting in good faith. It is then provided that if the Board determines any of the above issues adversely to the applicants it shall reject the application. Appellants here present three points. These are to the effect that the trial court erred in affirming the action of the Board because appellants were deprived of due process before the Board since (1) one or more members of the Board had reached a decision prior to the hearing based on considerations other than those established by Art. 342-305, and (2) the application of the Southside group, though filed subsequent to that of appellants, was presented and decided prior to that of appellants. The third point is to the effect that there was not substantial evidence before the Board that "the proposed officers and directors have sufficient banking experience, ability and standing to render success of the proposed bank probable." Under their first point appellants say that both the Commissioner and the Attorney General had reached a decision prior to the time their application was heard by the Board. While the Commissioner was testifying as a witness at the trial appellants had him identify an exhibit which was photostatic copies of instruments in connection with the Stella Link application and which he said contained everything except the investigation report. He identified as his a typed statement appearing in the exhibit and was asked and testified: "Q. And read to the Court what it says. A. `Attorneys Binion and Rice, of the George Butler Houston Law Firm, were in the office today to discuss filing an application for a State Bank in Houston at Stella Link and Woodside Plaza on the South Loop. I believe that this is the location Searcy Bracewell has in mind for a bank. Bracewell has a set of papers. They were requested to withhold any action until I had an opportunity to ascertain whether or not this application 512 would be in conflict with the Bracewell proposal. They insisted and papers were given to them and they were told that I would be against the application.' "Q. You had made your mind up on our application before we even filed it, hadn't you? A. Yes, sir." The Attorney General was asked and testified: "Q. * * * did you ever commit yourself to vote for Mr. Goldberg or his group? A. No, sir. I never did tell Mr. Goldberg that I would vote for his group. I did encourage him to file the application. "Q. Did the result of your encouraging him to file that application even though it was filed afterward, influence your vote? A. Well, * * "Q. (By Mr. Binion) Did it influence your vote? A. I would say that it was one factor I considered. "Q. You considered that factor in voting for the Goldberg Group, in addition to other evidence, did you not? A. Yes, I did. "Q. But that was a factor in making you decide your vote for that group against us, wasn't it, Will? A. I wouldn't say it was the final determining factor, but it was one factor." Appellants do not say that the Commissioner acted capriciously, arbitrarily, fraudulently or without factual basis but say that he had made up his mind prior to the hearing before the Board. The Legislature, by Art. 342-305, supra, has enjoined on the Commissioner not only the duty of receiving applications for bank charters but also the duties of making an investigation of the application and then reporting his findings to the Board of which he is made a member. The Legislature has not restricted the right of the Commissioner to vote at the hearing after reporting his findings on the application. The Commissioner received the application and in his report to the Board he said he advised the applicants that he would be against it for the assigned reason that it would be in conflict with the Bracewell application. He did vote "no" on two of the statutory issues and testified at the trial that he had made up his mind on the application before it was filed. The statute required the Commissioner to make the investigation and to report his findings to the Board but does not direct how he shall vote. Unless there was evidence before the Board sufficient to overcome the reported findings it would appear strange for the Commissioner to vote contrary to his reported findings. It may be that the Commissioner, in advising appellants what his position on the application would be, went further than the statute directed him to go. However appellants were advised of the attitude of the Commissioner and were afforded the opportunity to overcome that attitude by introducing evidence before the Board. The law gave to appellants the right: to have the Commissioner receive their application; to make an investigation of it, and to report his findings to the Board. They do not say the investigation was not "thorough" nor that the report was not honest. After the above steps appellants were entitled to a hearing before the Board and to its decision. All of these steps have been had and in that respect appellants have been afforded due process. Anchor v. Wichita County Water Improvement Dist. No. 2, 123 Tex. 105, 66 S.W.2d 657. Further appellants have not shown that the Commissioner violated any statutory duty resting on him nor that their complaint against him renders the action of the Board invalid. We are not advised as to whether at the time the Commissioner told appellants that he would be against their application he had made an investigation of the Bracewell application, and we are not advised, except by the Commissioner's own statement quoted supra, why he was opposed 513 to the application. However it is agreed that two banks in the area are not justified. The Commissioner voted "no" on the issues of volume of business and public necessity. We must, of course, accord to the Commissioner the exercise of an honest discretion in discharging the duties imposed on him by the Legislature; receiving applications, making an investigation, reporting his findings to the Board of which he is made a member, and, impliedly, to vote at the Board meetings. In keeping with this statement and the vote of the Commissioner together with the Bracewell application it appears that he was possessed of information which convinced him that the volume of business and public necessity did not justify the Stella Link application. In view of the duties imposed on the Commissioner by statute we think his action is not shown to be illegal so as to render the action of the Board invalid. The complained of influence operating on the Attorney General, as shown supra, influenced him to vote for the Southside application. It is clear that point one urges us to investigate the motive or purpose of the Attorney General which prompted his action. This we cannot do. Railroad Commission of Texas v. Galveston Chamber of Commerce, 105 Tex. 101, 145 S.W. 573. State Banking Board of Texas v. McCulloch, Tex.Civ.App., 316 S.W.2d 259, Er. ref., n. r. e. If the appellants' contention that both the Commissioner and the Attorney General were disqualified to hear their application were sustained then the only tribunal authorized by law to hear the same would be destroyed. On the other hand if only one of the said members were held disqualified then, since their application was rejected by a unanimous vote of the Board on January 8, 1960, it in any event was rejected by a majority vote. This being true appellants then are compelled to rely on the rule that participation by one disqualified member affects and renders null the action of the Board. See: 42 Am.Jur. p. 313, Sec. 23. Thus the contentions urged on us by appellants approach the application of the doctrine of necessity which as stated in 15 R.C.L. and quoted in State ex. rel. Miller v. Aldridge, 212 Ala. 660, 103 So. 835, 837, 39 A.L.R. 1470 is: "It is well established that the rule of disqualification of judges must yield to the demands of necessity, as, for example, in cases where, if applied, it would destroy the only tribunal in which relief could be had." See annotations following State ex rel. Miller v. Aldridge, supra in 39 A.L.R. at page 1476 et seq. It appears that the courts of Texas have not applied the doctrine of necessity to administrative proceedings. Rather they have left the authority to the agency to enter the order and to then test its legality by established principles. In Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022, 1029 the court said: "If the matter covered by the order is one committed to the agency by the Legislature, and involves the exercise of its sound judgment and discretion in the administration of the matter so committed to it, the court will not undertake to put itself in the position of the agency, and determine the wisdom or advisability of the particular ruling or order in question, but will sustain the action of the agency so long as its conclusions are reasonably supported by substantial evidence. This is so because, since the Legislature has seen fit to vest the authority to exercise sound judgment and discretion in the particular matter in the administrative agency, courts will not undertake to usurp the powers committed to the agency, and to exercise the agency's judgment and discretion for it. * * In such a case the issue is not whether or not the agency came 514 to the proper fact conclusion on the basis of conflicting evidence, but whether or not it acted arbitrarily and without regard to the facts. Hence it is generally recognized that where the order of the agency under attack involves the exercise of the sound judgment and discretion of the agency in a matter committed to it by the Legislature, the court will sustain the order if the action of the agency in reaching such conclusion is reasonably supported by substantial evidence." The Legislature has prescribed the procedure to be taken before the Board. It has not provided for disqualifications of Board members and has not authorized initial proceedings to be begun before any officer or tribunal other than the Commissioner and the Board. However the right of appeal from the Board's order and a trial de novo is provided. On appeal only questions of law are presented and the Board must be left free to finally determine controverted issues of fact and if the fact findings are reasonably supported by substantial evidence the order is not illegal, unreasonable, or arbitrary. Gulf Land Company v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73. Railroad Commission v. Mackhank Petroleum Co., 144 Tex. 393, 190 S.W.2d 802. Under their first point appellants do not say the order is not supported by substantial evidence but do so say under their third point. By the rule of the Board promulgated May 1, 1947 and quoted supra it is provided that applications "shall be presented in order of filing." There is no provision for the order of decision on applications. Supra we have quoted from the minutes of the Board. These show that the Stella Link application was presented to the Board prior to the presentment of the Southside application and a hearing was had on the applications October 5, 1959. The decision on the applications was deferred. A decision of the Southside application prior to a decision on the Stella Link application did not violate the Board's rules. In State Banking Board of Texas v. McCulloch supra this Court was confronted with a question similar to the question here and we there said: "The Board was authorized to consider the priority of the filing of the applications but it could not make such priority the controlling factor in arriving at a final decision as between them. Kentucky Broadcasting Corp. v. Federal Communications Commission, 84 U.S.App.D.C. 383, 174 F.2d 38. "The Board was not only authorized but it was its duty to decide whether both applications should be granted or both rejected or whether one should be granted and the other rejected and, if so, which one." [316 S.W.2d 264.] Appellants' third point asserts there was not substantial evidence before the trial court to support the Board's finding that the proposed officers and directors of the Southside Bank were qualified to render success of the bank probable. The statute, Art. 342-305 supra breaks these qualifications up into three requirements: banking experience, ability and standing. A summary of the evidence heard by the trial court supporting the qualification of the proposed directors follows: Chairman of the board, vice president of an exceptionally large independent wholesale grocery company and also president of another company, with banking experience as a director of a State bank at Channelview, Texas and as a director of a savings and loan association in Houston. A vice president of an electronic firm with experience in the field of commercial real estate. The general manager of a dairy company and experienced in the mercantile field. 515 A vice president of an iron and steel company with experience in the industrial manufacturing field and a director of a savings and loan association. An experienced certified public accountant specializing in oil and gas transactions. An attorney with interests in the fields of insurance, radio broadcasting, animal food manufacturing and real estate development including ownership and operation of commercial buildings and apartments. A medical doctor with experience in the field of securities. A vice president of a mortgage bankers company with qualifications in the fields of real estate, real estate development and money market and who had served three years in the banking department of the State of Minnesota. Appellants do not say that the above named parties do not possess the qualifications and experience as stated but say there was not substantial evidence to support the Board's finding that said parties have sufficient banking experience, ability and standing to render success of the bank probable. Thus a question of law is presented: Are the findings of the Board reasonably supported by substantial evidence? Substantial evidence has been said to be such competent evidence as a reasonable mind might accept as adequate to support a conclusion. Texas Liquor Control Board v. O'Fallon, Tex.Civ.App., 189 S.W.2d 885; Lowe v. Texas Liquor Control Board, Tex. Civ.App., 255 S.W.2d 252. The above qualifications were proved by competent evidence and show that the group possesses business experience in various fields of business common to the City of Houston. They are shown to be experienced business men with two of them having had banking experienceone as a bank director and one with past services with a State banking department. In addition there is in the group a certified public accountant and executives of savings and loan associations. Applying the above test to the evidence and testing the conclusion by the reasonableness of its support by that evidence it must be said that the findings of the Board on the issues in question are reasonably supported by substantial evidence. Appellants' points are overruled and the judgment of the trial court is affirmed. Affirmed. HUGHES, Justice (dissenting). This is another instance in which a top filed application for a banking charter is arbitrarily given preference over a previously filed and equally meritorious application, contrary to established authority and the commonest sense of fairness. When rights are equal, the first in time prevails. Yet, the Banking Board and the courts of this State, as evidenced by the majority opinion herein and this Court's previous majority opinion in State Banking Board of Texas v. McCulloch, 316 S.W.2d 259, 264 writ ref., N.R.E., refuse to follow this principle and the eminent authorities which sustain it. In McCulloch this Court said: "The Board was authorized to consider the priority of the filing of the applications but it could not make such priority the controlling factor in arriving at a final decision as between them." This misconceives the rule. Equality of rights is the basis of it. Unless there are "equally meritorious applications," the rule of priority is not invoked. If the applications are of this character then, in the words of Mitchie, the leading authority on banks and banking "* * * there is * * * no discretion; the application first presented should be granted." In McCulloch there was absolute equality of applications insofar as the statutory requirements for a charter were concerned. The Board so found. This Court in that case referred to and considered matters 516 extraneous to the statutory requirements. This, in my opinion, is erroneous statutory construction and, as shown by my dissent, is contrary to the pronounced policy statement of the Banking Board that it would not, in considering banking charter applications, go beyond the "factors which are enumerated in the law." The instant case is an even more flagrant violation of the equitable rule of priority as stated in Mitchie. The majority merely states that "A decision of the Southside application prior to a decision on the Stella Link application did not violate the Board's rules," and then cites and quotes from McCulloch to the effect that priority is not controlling. No extraneous, nonstatutory matters are relied on by the Court to differentiate the one application from the other. The award of the charter for this bank depended solely, completely and absolutely upon the order in which the applications for it were considered. It is undisputed that the trade area defined for the two proposed banks was sufficient to support only one state bank. Thus, the granting of one of the charters foreclosed any possibility of the granting of the other. With the granting of the Southside application first, the denial of the Stella Link application followed as a matter of course since negative answers to the public necessity and volume of business inquiries were obliged. The order of decision was the sole decisive factor. The majority says the rule of the Board was not violated. Perhaps not; but when did administrative fairness come to depend upon the existence of a rule requiring it? Must administrative agencies, as well as the courts, require a legislative mandate before they follow a venerable, unchallenged, authoritative rule of law based onM common fairness? On Law Day, lawyers, judges and others are wont to proclaim that we live under a Government of law and not men. If we believe in what we say, then we should practice it. I respectfully dissent. On Appellants' Motion for Rehearing GRAY, Justice. In their motion for rehearing appellants say that the majority committed fundamental error in affirming the judgment of the trial court because: it is apparent from the record that the Southside application, though filed subsequent to appellants' application, was first presented and decided for which reason they were denied due process of law before the Board. They also in effect say that the majority erred in permitting the Board to violate its own rule, and that because their application was first filed it was entitled to be first decided because "Where the equities are equal, the first in time shall prevail." Our majority opinion quotes from the minutes of the meetings of the Board and also the pertinent provisions of the applicable rule. These show that appellants' application was first presented and was first heard at the October, 1959 meeting. A decision on the applications was not had at that meeting for which reason the decision was necessarily deferred. The rule of the Board was in all respects followed at that meeting. The rule provides for first presentment and not for a first decision. The last statement is important here in view of the subsequent showings of the minutes. The minutes of the November 10 meeting show that the hearing on both applications was postponed on the request of appellants. It must be noticed that the postponements were at the request of appellants and not at the request of the South-side group. Although it is not shown to have been before the Board at the meeting on November 25[1] the minutes of the December 517 3 meeting show that appellants presented matters which in the opinion of the Board required a further postponement of the hearing on their application. Even if we agree with appellants that their first filing created equities in their favor we do not agree that the Board must stay its decision of a second application so long as appellants elected to secure postponements of the hearing on their own application. This would be an unreasonable hindrance to procedure by the Board. It is the opinion of the majority that any equities originally existing in favor of appellants because of their first filing was lost due to their own acts; that due process was not denied to appellants, and that the action of the Board did not violate its own rule. The motion for rehearing is overruled. Motion overruled. HUGHES, Justice (dissenting). For the Court to rely so heavily on the first presentation of an application for a bank charter is to prefer form to substance. The spirit of the rule of the Board requiring applications to be presented in the order of their filing certainly embraces decision in the same order; otherwise the semblance of fairness in the rule is utter farce. Besides, while the Court states that the record shows the Stella Link application to have been first presented, appellees, themselves, do not state the matter so strongly. They say the record reveals "that both applications were presented to the Board at substantially the same time." The Court now suggests that appellants have in some manner lost their priority by requesting that Board action on both applications be postponed for one month. The ground for requesting such delay is not shown. Nor is it shown that appellees objected to such request. That waiver could be thus accomplished is beyond my capacity to comprehend. In fairness to appellees, it should be stated that they do not advance this reason for sustaining the action of the Board. I respectfully dissent. NOTES [1] At which time the Southside application was granted which was before December 3, to which time appellants had requested postponements.	{ "pile_set_name": "FreeLaw" }
92 F.3d 1207 NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Vincent J. NERVIANO, Petitioner,v.DEPARTMENT OF VETERANS AFFAIRS, Respondent. No. 96-3280. United States Court of Appeals, Federal Circuit. July 11, 1996. ORDER 1 The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1) within the time permitted by the rules, it is 2 ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.	{ "pile_set_name": "FreeLaw" }
94 F.3d 655 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. Danny DUNSWORTH, Petitioner-Appellant,v.John SHANKS, Warden, Respondent-Appellee. No. 95-2147. United States Court of Appeals, Tenth Circuit.Aug. 22, 1996. Before EBEL, BARRETT, and HENRY, Circuit Judges. 1 ORDER AND JUDGMENT* 2 After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. 3 Danny Dunsworth appeals from the district court's denial of his habeas petition, filed pursuant to 18 U.S.C. § 2254. Our jurisdiction over this appeal arises from 28 U.S.C. § 1291. After Dunsworth filed his notice of appeal, the district court issued an order denying him a certificate of probable cause. This court construed Dunsworth's notice of appeal as a renewal of his request for a notice of probable cause. See Fed. R.App. P. 22(b). Further, in light of the passage of new legislation affecting the procedures for habeas corpus appeals, see Lennox v. Evans, 87 F.3d 431, 432 (10th Cir.1996), we construe the request as an application for a certificate of appealability. Id. at 434. 4 Applying the standards of the newly enacted 28 U.S.C. § 2253(c)(2),1 we conclude that Dunsworth "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). His habeas petition alleges that 1) he received ineffective assistance of counsel, and 2) his guilty plea was coerced and involuntary. These allegations caused the district court to appoint counsel and hold a hearing. The district court's order, adopting the magistrate judge's report, weighed the evidence from both the state record and the hearing and made detailed findings of fact. Application of the law to those facts was not a simple matter, requiring the discussion of many cases and standards. We conclude that "the issues raised are debatable among jurists, [and] that a court could resolve the issues differently," Smith v. Secretary of N.M. Dep't of Corrections, 50 F.3d 801, 820 (10th Cir.) (quotation omitted)(citing Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4 (1983)), cert. denied, 116 S.Ct. 272 (1995). Our conclusion is bolstered by this court's order appointing Dunsworth counsel on appeal. Accordingly, we grant Dunsworth a certificate of appealability on both of the issues presented to the district court. 5 On appeal, Dunsworth argues that his counsel failed to investigate his case and that his counsel represented him while under a conflict of interest, which deficiencies amounted to the denial of effective counsel, guaranteed by the sixth amendment. Further, he contends that as a result of his attorney's ineffective representation, his guilty plea to the underlying charges was involuntary. "In reviewing the district court's denial of [petitioner's] habeas corpus petition, we accept the court's findings of fact unless clearly erroneous and we review the court's conclusions of law de novo." Brewer v. Reynolds, 51 F.3d 1519, 1522 (10th Cir.1995), cert. denied, 116 S.Ct. 936 (1996). After our careful review of the record on appeal, including supplemental volumes containing the state court record and the transcript of the district court's hearing on Dunsworth's habeas petition, we conclude that the district court correctly decided this case. Therefore, for substantially the same reasons contained in the magistrate judge's proposed findings and recommended disposition, dated May 8, 1995, and adopted by the district court in its order dated June 20, 1995, the judgment of the United States District Court for the District of New Mexico is AFFIRMED. * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3 1 Lennox held that the newly enacted certificate of appealability provision, 28 U.S.C. § 2253(c)(2), codified the standard set out in Barefoot v. Estelle, 463 U.S. 880, 892-93 (1983), for the issuance of a certificate of probable cause. 87 F.3d at 434. Because "the standard governing the issuance of a certificate of appealability [under the newly enacted legislation] requires the same showing as that for obtaining a certificate of probable cause [under previous law]," id., the court in Lennox applied the new legislation as law "in effect at the time we render our decision." Id. We do likewise	{ "pile_set_name": "FreeLaw" }
705 F.2d 461 U. S.v.Griffin 82-1784, 82-1817 UNITED STATES COURT OF APPEALS Seventh Circuit 3/10/83 1 N.D.Ind. REMANDED	{ "pile_set_name": "FreeLaw" }
374 So.2d 1333 (1979) John H. WILKERSON, Sr. v. CITY SALES COMPANY OF MOBILE, INC., et al. 78-280. Supreme Court of Alabama. August 24, 1979. Rehearing Denied September 21, 1979. 1334 Champ Lyons, Jr., Mobile, for appellant. John D. Richardson, III, and Alton R. Brown, Jr., Mobile, for appellees. FAULKNER, Justice. This is an appeal from an order of the Circuit Court of Mobile County setting aside the default judgment granted John H. Wilkerson, Sr., in a libel and slander action. We affirm. Wilkerson filed a libel and slander suit against City Sales Company of Mobile, Inc. and Gene DeVan on October 27, 1978. Process was served on the defendants on November 3. They notified their insurer, Royal Globe Insurance Company, of the suit by telephone on November 27. Royal Globe's claims manager received the summons and complaint on November 29. The Wilkerson suit was then given to an independent investigator because of possible problems with coverage, and in order to obtain a non-waiver agreement from City Sales. On December 8, the insurance company received a follow-up inquiry from the attorney assigned to the case. The investigator's report was received on December 11. The suit was subsequently delivered by the insurer to the defense attorney on December 14. A default was entered on December 12 against both defendants for failure to appear. Thereafter, a judgment for Wilkerson was entered by the court in the amount of $40,000. On January 3, 1979, the defendants' attorney filed a motion pursuant to Alabama Rules of Civil Procedure 55(c) or 60(b) to set aside the default judgment based on the insurer's inadvertence in failing to deliver the suit papers to its attorneys until two days after the default judgment was taken. After an evidentiary hearing the trial court granted defendants' motion to set aside. Wilkerson asserts that the motion setting aside the default judgment was improperly granted under either ARCP 60(b) or 55(c). He contends that excusable neglect as required by Rule 60(b) was not shown and that Rule 55(c) allows a default judgment to be set aside in the trial court's discretion only if that court acts to grant the motion within thirty days of the entry of judgment. ARCP 60(b)(1) provides that the court may on motion and such terms as are just, relieve a party from a final judgment taken against him for "mistake, inadvertence, surprise, or excusable neglect [emphasis added]." The motion, however, must be made no later than four months after the judgment was taken. The grounds for relief stated in ARCP 60(b)(1) are expressed in the disjunctive. Any one of the four alternatives is a sufficient basis for granting a motion to set aside a judgment. Mistake or inadvertence, as those terms are contemplated by a rule authorizing relief from a judgment for mistake, inadvertence, surprise or excusable neglect, rarely will be completely explainable. Cf. Martin v. Rossi, 18 Ariz.App. 212, 501 P.2d 53 (1972). Royal Globe's claims manager could not completely explain his "serious oversight" in failing to deliver the suit papers to an attorney within the designated time. He could say only that the suit papers might have gotten shuffled into other paper work on his desk due to his heavy workload and that mistakenly he assumed that the period for filing an answer to the complaint ran from the time the suit was received by the insurer. We, however, must consider the total factual picture presented to the trial court. Defendants promptly sent notice to their insurance agent who notified Royal Globe by telephone. Two days later Royal Globe received copies of the summons and complaint. At the time this lawsuit was received, Royal Globe's claims office had only a claims manager and three employees to handle an average 297 claims per month. Shortly after receipt of the Wilkerson suit, Royal Globe received three other suits, two of which involved claims of one million dollars each. The claims manager was also investigating a four-fatality accident at the 1335 time. Potential coverage problems and the need for a non-waiver agreement led the manager to turn the suit over to an outside investigator. Within three days of the receipt of the investigator's report, the suit was turned over to the defense attorney. This delivery of the suit to the attorney occurred only nine days after the time for filing an answer to the complaint had run, and only two days after the default judgment had been taken. ARCP 60(b) allows the court in the exercise of its equity powers discretion to grant or refuse a motion to set aside a judgment. Nunn v. Stone, 356 So.2d 1212 (Ala.Civ.App.1978); Wilger v. Department of Pensions and Security, 343 So.2d 529 (Ala.Civ.App.1977). The trial court's action under ARCP 60(b)(1) in a default judgment case is subject to review only for abuse of discretion. Modernage Homes v. Wooldridge, 55 Ala.App. 68, 313 So.2d 190 (1975). In view of the total factual picture presented the trial court, we cannot say that it abused its discretion in granting the motion to set aside the default judgment under ARCP 60(b)(1) grounds of inadvertence, mistake or excusable neglect. Thus, we need not reach Wilkerson's assertions of error regarding ARCP 55(c). AFFIRMED. BLOODWORTH, JONES, ALMON and EMBRY, JJ., concur.	{ "pile_set_name": "FreeLaw" }
538 U.S. 960 COELHOv.CITY OF ANGELS CAMP ET AL. No. 02-1125. Supreme Court of United States. April 7, 2003. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. 2 C. A. D. C. Cir. Certiorari denied.	{ "pile_set_name": "FreeLaw" }
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-18-00285-CR Ignacio Sanchez Moreno, Appellant v. The State of Texas, Appellee FROM THE 427TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-DC-16-205199, THE HONORABLE WILFORD FLOWERS, JUDGE PRESIDING MEMORANDUM OPINION Ignacio Sanchez Moreno was charged with continuous sexual abuse of a child. See Tex. Penal Code § 21.02. At the end of the guilt-or-innocence phase, the jury found Moreno guilty of the charged offense. At the end of the punishment phase, the jury determined that Moreno should be imprisoned for forty-five years. See id. § 21.02(h). The district court rendered its judgment of conviction in accordance with the jury’s verdicts. On appeal, Moreno contends that there was error in the jury charge. We will affirm the district court’s judgment of conviction. BACKGROUND Moreno was romantically involved with D.M. and later moved in with D.M. and her daughter, S.G.M. At the time Moreno moved into D.M.’s home, S.G.M. was six years old, and Moreno continued to live with them for approximately seven years. After receiving information indicating that Moreno may have been engaging in inappropriate sexual behavior with S.G.M., the police investigated the allegation and interviewed multiple people, including Moreno. Ultimately, Moreno was arrested and charged with continuous sexual abuse of S.G.M. During the trial, Moreno requested instructions on the lesser included offenses of aggravated sexual assault of a child and indecency with a child by contact, and the district court granted the request. See Tex. Penal Code §§ 21.11, 22.021. The jury charge prepared in this case set out the elements for continuous sexual abuse of a child, including the requirement that an accused have committed two or more acts of sexual abuse during a period of time that was thirty days or more in duration. See id. § 21.02. Further, the instructions stated that if the members of the jury “believe from the evidence beyond a reasonable doubt that the defendant” committed the offense of continuous sexual abuse, “you will find the defendant guilty and say so by your verdict, but if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the defendant of the offense of Continuous Sexual Abuse of a Child and so say by your verdict.” Following those instructions, the charge set out the circumstances in which the jury could consider whether Moreno was guilty of the lesser-included offense of aggravated sexual assault of a child. In particular, the instructions provided as follows: If you find the defendant . . . not guilty of Continuous Sexual Abuse of a Child as alleged in the Indictment, then you will go on to consider whether the defendant is guilty of the lesser included offense of Aggravated Sexual Assault of a Child. You are instructed that you may only consider the lesser included offense of Aggravated Sexual Assault of a Child if you are unanimous as to your verdict of Not Guilty as to the offense of Continuous Sexual Abuse of a Child. The instructions then listed the elements of the offense of aggravated sexual assault of a child and informed the members of the jury that if they “believe from the evidence beyond a reasonable doubt[] that the defendant” committed the offense, they “will find the defendant guilty of the offense of Aggravated Sexual Assault of a Child and so say by your verdict, but if you do 2 not so believe or if you have a reasonable doubt thereof, you will acquit the defendant of the offense of Aggravated Sexual Assault of a Child and so say by your verdict ‘Not Guilty.’” Following those instructions, the charge described when the jury could consider if Moreno was guilty of the lesser-included offense of indecency with a child by contact. Specifically, the instructions provided as follows: If you find the defendant . . . not guilty of Aggravated Sexual Assault of a Child as set forth above, then you will go on to consider whether the defendant is guilty of the lesser included offense of Indecency with a Child by Contact. You are instructed that you may only consider the lesser included offense of Indecency with a Child by Contact if the Jury is unanimous as to your verdict of Not Guilty as to the lesser included offense of Aggravated Sexual Assault of a Child. As with the instructions for aggravated sexual assault of a child, the charge then set out the elements of the offense of indecency with a child by contact and informed the jury that if the members “believe from the evidence beyond a reasonable doubt that” Moreno committed the offense, they “will find the defendant guilty of the offense of Indecency with a Child by Contact as set forth above and so say by your verdict, but if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the defendant of the offense of Indecency with a Child by Contact and so say by your verdict ‘Not Guilty.’” Moreno presented no objection to the proposed charge, and the charge was read to the jury. At the end of the guilt-or-innocence phase, the jury found Moreno guilty of continuous sexual abuse. Moreno appeals the district court’s judgment of conviction. 3 DISCUSSION Jurisdiction As an initial matter, we note that in its appellee’s brief, the State contends that this Court does not have jurisdiction over Moreno’s appeal because the notice of appeal was not timely. Under the Rules of Appellate Procedure, for criminal cases, a notice of appeal must be filed “within 30 days after the day sentence is imposed or suspended in open court” or “within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial.” See Tex. R. App. P. 26.2. Although the State recognizes that Moreno filed a motion for new trial, the State urges that the motion for new trial was premature and, therefore, did not extend the time for filing a notice of appeal under the Rules of Appellate Procedure because it was filed before the trial was held and before he was sentenced. Accordingly, the State contends that the notice of appeal was not timely and that this Court does not have jurisdiction over the case. See Hernandez v. State, No. 03-11-00673-CR, 2012 WL 254606, at 1 (Tex. App.—Austin Jan. 25, 2012, no pet.) (mem. op., not designated for publication) (explaining that “the timely filing of a notice of appeal . . . is essential to vest this Court with jurisdiction”). The Rules of Appellate Procedure specify that a defendant in a criminal case “may file a motion for new trial before, but not later than 30 days after, the date when the trial court imposes or suspends sentence in open court.” Tex. R. App. P. 21.4(a). In other words, the language of the Rules specifies that motions for new trial filed before the conclusion of trial are timely and effective. See id. Accordingly, motions for new trial filed before the conclusion of trial would also seem to extend the deadline for filing a notice of appeal to 90 days under Rule 26.2. See id. R. 26.2. That conclusion is further supported by the language from Rule 27.2 4 specifying that appellate courts “may treat actions taken before an appealable order is signed as relating to an appeal of that order and give them effect as if they had been taken after the order was signed.” Id. R. 27.2. Further, the State has not pointed to any case law specifying that a prematurely filed motion for new trial in a criminal case is ineffective for extending the deadline for filing a notice of appeal. In light of the language of the Rules, we conclude that Moreno’s motion for new trial extended the time for filing an appeal to 90 days after his sentence was imposed, that his notice of appeal was timely filed before the 90-day deadline, and that this Court has jurisdiction over the appeal. Error in Jury Charge On appeal, Moreno contends that the district court erred by providing a jury charge twice instructing the jury that it “could only consider the lesser included offenses” of aggravated sexual assault of a child and then indecency with a child by contact “if it was unanimous as to its verdict of not guilty as to the greater offenses.” Moreno argues that these instructions “deprived the jury of full consideration of the” jury charge because the instructions did not inform the jury that it was “wholly in their discretion” to decide “the order in which the component parts of the jury charge are” to be “considered by them.” Further, Moreno contends that this error was further compounded by the fact that the district court included no benefit-of- the-doubt instruction or “any other explanation for how the jury should consider the lesser included offenses.” More specifically, Moreno argues that the jury charge should have included an instruction specifying that if the jury had no reasonable doubt about whether Moreno committed an offense but was uncertain regarding whether it was the greater offense or one of 5 the lesser offenses, the jury should resolve that doubt in his favor by finding him guilty of a lesser offense. For purposes of resolving this issue, we will assume that there was error in the jury charge. Cf. Barrios v. State, 283 S.W.3d 348, 349, 353 (Tex. Crim. App. 2009) (noting that jury charge stated that if jury had reasonable doubt about defendant’s guilt of greater offense, it should “acquit the defendant of” greater offense “and next consider whether the defendant is guilty of” lesser offense and commenting that better practice would be “to include an instruction that explicitly informs the jury that it may read the charge as a whole, and to substitute ‘or if you are unable to agree, you will next consider’ for ‘you will acquit . . . and next consider’ so that the charge makes clear to the jury that, at its discretion, it may consider the lesser-included offenses before making a final decision as to the greater offense”); Hutson v. State, No. 03-99-00523-CR, 2000 WL 298675, at 1 (Tex. App.—Austin Mar. 23, 2000, pet. ref’d) (not designated for publication) (finding “no statutory or constitutional requirement that the jury must acquit a defendant of the greater offense before considering the lesser offense” and explaining that “the courts may give juries free choice among greater and lesser-included offenses”). If an appellate court determines that there is error present in a jury charge, it must then evaluate the harm caused by the error. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). The amount of harm needed for a reversal depends on whether a complaint regarding “that error was preserved in the trial court.” Swearingen v. State, 270 S.W.3d 804, 808 (Tex. App.—Austin 2008, pet. ref’d). If no objection was made, as in this case, a reversal is warranted only if the error “resulted in ‘egregious harm.’” See Neal v. State, 256 S.W.3d 264, 278 (Tex. Crim. App. 2008) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (on reh’g)). “Jury charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.” Allen v. State, 6 253 S.W.3d 260, 264 (Tex. Crim. App. 2008). “The purpose of the egregious-harm inquiry is to ascertain whether the defendant has incurred actual, not just theoretical, harm,” Swearingen, 270 S.W.3d at 813, and “reversal for an unobjected-to erroneous jury instruction is proper only if the error caused actual, egregious harm to” the defendant, Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015). The determination depends “on the unique circumstances of” each case and “is factual in nature.” Saenz v. State, 479 S.W.3d 939, 947 (Tex. App.—San Antonio 2015, pet. ref’d); see Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002) (stating “that egregious harm is a difficult standard” to meet). Neither side has the burden of establishing either the presence or a lack of harm. See Warner v. State, 245 S.W.3d 458, 464 (Tex. Crim. App. 2008). Instead, the reviewing court makes “its own assessment” when evaluating what effect an error had on the verdict by looking at the record before it. Ovalle v. State, 13 S.W.3d 774, 787 (Tex. Crim. App. 2000) (quoting Wayne R. LaFave & Jerold H. Israel, Criminal Procedure 1165 (2d ed. 1992)). In assessing harm, reviewing courts “consider: (1) the jury charge as a whole, (2) the arguments of counsel, (3) the entirety of the evidence, and (4) other relevant factors present in the record.” Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). The analysis is “fact specific and is done on a ‘case-by-case basis.’” Arrington, 451 S.W.3d at 840 (quoting Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013)). The Entire Jury Charge As set out above, the charge instructed the jury to consider the lesser offense of aggravated sexual assault of a child only if the jury unanimously agreed to acquit Moreno of continuous sexual abuse and provided similar instructions regarding the lesser offense of indecency with a child by contact. Additionally, no portion of the charge explicitly authorized 7 the jury to consider the charge as a whole or to consider whether Moreno was guilty of lesser offenses before definitely deciding whether he was guilty of the greater offense. On the contrary, the jury was expressly instructed that it could only consider the lesser offenses if it first unanimously acquitted Moreno of the greater offense. Moreover, no benefit-of-the-doubt instruction was included in the charge. Accordingly, nothing in the charge suggested that the jury could consider all of the charges together if it determined beyond a reasonable doubt that Moreno committed some offense but was unsure which of the three offenses was committed. On the other hand, “the charge as a whole le[ft] no uncertainty as to how to resolve any doubt” regarding whether Moreno was guilty of any of the offenses. See Williams v. State, No. 05-09-01493-CR, 2011 WL 3484799, at *6 (Tex. App.—Dallas Aug. 10, 2011, no pet.) (mem. op., not designated for publication). More specifically, the charge instructed the jury to find Moreno guilty of the greater offense of continuous sexual abuse only if the jury had no reasonable doubt that he was guilty of the greater offense and to acquit Moreno of that offense if the jury had reasonable doubt regarding his guilt and provided similar instructions for the lesser offenses. Additionally, in the portion of the charge following the instructions on the last lesser offense, the charge emphasized the State’s burden to prove each element of an offense beyond a reasonable doubt and stated as follows: “Now bearing in mind the foregoing instructions and definitions, if you find the State has failed to prove each element of the offense beyond a reasonable doubt or you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict not guilty.” In light of the inclusion of the instructions requiring unanimous acquittals before the jury could consider lesser offenses and in light of the omission of any further instruction 8 correcting the unanimity directive, we conclude that, on balance, the first factor weighs in favor of finding egregious harm. Parties’ Arguments When considering the parties’ arguments, appellate courts “look to whether any statements made by the State, appellant, or the court during the trial exacerbated or ameliorated error in the charge.” Arrington, 451 S.W.3d at 844. During the trial, the State and Moreno asserted in their closing arguments that the jury was to first consider the greater offense of continuous sexual abuse, but neither party stated that the jury had to unanimously agree to acquit Moreno of the greater offense before considering a lesser offense. In fact, Moreno told the jury to familiarize themselves with the definitions in the charge so that they had “a clear idea of exactly what it is that you’re asked about in each of the counts—each of the alternatives, and to determine how that follows and fits with the evidence that was presented,” and he also stated that the jury should consider how the evidence “fits or does not fit in each of the alternatives.” Accordingly, this factor “weighs neither for nor against finding egregious harm.” See id. (noting that jury was not told “that they must be unanimous . . ., nor were they told that they need not be unanimous”). State of the Evidence When considering this prong in an egregious harm review, appellate courts “look to the state of the evidence to determine whether the evidence made it more or less likely that the jury charge caused appellant actual harm.” Id. at 840. As set out above, Moreno was charged with continuous sexual abuse of S.G.M. Consistent with the governing provisions of the Penal Code, the charge provided that a person 9 commits this offense if he performs two or more acts of sexual abuse during a period of time that is thirty days or more in duration. See Tex. Penal Code § 21.02(b). Further, the charge listed various actions that constitute sexual abuse, including causing S.G.M.’s sexual organ to contact Moreno’s sexual organ; causing the penetration of her sexual organ, mouth, or anus with his sexual organ; causing her mouth to contact his sexual organ; causing her anus to contact his sexual organ; causing the penetration of her sexual organ by his finger; or engaging in sexual contact with her by touching her genitals, by causing her to touch his genitals, or by touching her with his genitals. See id. § 21.02(c). During the trial, S.G.M. testified that Moreno started touching her inappropriately when she was six or seven years old; that he touched her vagina with his hand; that he put his penis in her vagina, mouth, and “booty”; that he put his finger in her vagina; and that he penetrated her on nearly a daily basis from 2011 to 2016. In addition, a recording of Moreno being questioned by the police was admitted as an exhibit during the trial as well a certified transcript of the interview that was translated from Spanish to English. According to the transcript, in his interview, Moreno admitted to having sex with S.G.M. once or twice a week for two or three years starting when she was eleven years old; to penetrating S.G.M.’s mouth, vagina, and anus with his penis; and to placing his tongue on her vagina. In addition, photos from S.G.M.’s and Moreno’s phones were admitted into evidence and showed two individuals engaged in multiple sex acts. In his testimony, Moreno admitted that the individuals depicted in those photos were S.G.M. and him. The digital information for those photos revealed that the photos were taken on six separate days during a period lasting more than a month. Finally, Moreno admitted in his testimony that he started having sex with S.G.M. when she was eleven years old and continued to have sex with her until she was thirteen years old, that he had sex with her “many 10 times” over “two and a half years,” and that he penetrated S.G.M.’s vagina, mouth, and anus with his penis. In light of the overwhelming evidence establishing that Moreno was guilty of committing continuous sexual abuse against S.G.M., this factor strongly weighs against a finding of egregious harm. See Campbell v. State, 227 S.W.3d 326, 331 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (determining that defendant was not egregiously harmed by alleged jury-charge error, in part, because “overwhelming weight of the evidence supported the jury’s verdict”). Other Information in the Record Moreno argues that other portions of the record demonstrate that he was harmed by the jury-charge error. In particular, Moreno points out that starting during voir dire and continuing through the conclusion of trial, the jury was instructed by the district court and by the parties that the charge would contain the law applicable to the case and that the oath taken by the jurors required them to follow the law and to return a verdict that is consistent with the governing law. Moreno contends that the emphasis placed on following the directives in the charge exacerbated the harm caused by the erroneous charge. However, other than when the district court read the charge, the jury was not told that it had to unanimously acquit Moreno of a greater offense before addressing the lesser offenses. Moreover, the comments made by the parties and by the district court regarding the charge and the jurors’ oaths were consistent with comments regularly given in criminal trials. Additionally, because the district court read the entire charge to the jury before the jury began deliberating, the jury was aware of the possibility that they might need to consider whether Moreno was guilty of lesser offenses. 11 Accordingly, at most, this factor only weighs slightly in favor of a finding of egregious harm. In conclusion, although two of the factors arguably might weigh in favor of an egregious-harm finding, the “erroneous jury instructions did not cause” Moreno “egregious harm” because “the evidence in the entire record and the analytical meaning of the jury’s verdicts in the aggregate show that the erroneous instructions did not cause actual harm to” him. See Arrington, 451 S.W.3d at 845; see also Cosio v. State, 353 S.W.3d 766, 777-78 (Tex. Crim. App. 2011) (finding no egregious harm even though jury instructions allowed for non-unanimous verdicts when two other factors did not weigh in favor of egregious harm). For these reasons, we overrule Moreno’s issue on appeal. CONCLUSION Having overruled Moreno’s issue on appeal, we affirm the district court’s judgment of conviction. __________________________________________ Thomas J. Baker, Justice Before Chief Justice Rose, Justices Goodwin and Baker Affirmed Filed: July 2, 2019 Do Not Publish 12	{ "pile_set_name": "FreeLaw" }
541 S.E.2d 418 (2000) 246 Ga. App. 562 CARTER v. PROGRESSIVE INSURANCE COMPANY et al. No. A00A0981. Court of Appeals of Georgia. October 27, 2000. 419 Saia & Richardson, Joseph J. Saia, Peachtree City, for appellant. Stuart J. Oberman, Atlanta, for appellees. BLACKBURN, Presiding Judge. Christopher Carter appeals from the trial court's entry of default judgment against him and in favor of Progressive Insurance Company. Carter contends that the trial court erred in failing to open default because service of process was insufficient. Because Carter failed to show that service of process was insufficient, we affirm. 1. On appeal, [t]he sole function of an appellate court reviewing a trial court's denial of a motion to open default is to determine whether all the conditions set forth in OCGA § 9-11-55 have been met and, if so, whether the trial court abused its discretion based on the facts peculiar to each case. (Punctuation omitted.) Stewart v. Turner.[1] The pertinent facts are undisputed. Progressive filed a subrogation claim against Carter in the State Court of Clayton County. After several unsuccessful attempts to serve Carter personally, notorious service was made. The sheriff's return of service states that, on July 16, 1999, the complaint was delivered to Ruth Carter, Carter's mother, at Carter's residence. After more than 45 days elapsed without Carter filing an answer, Progressive requested that the case be stipulated to the nonjury default calendar. On October 15, 1999, Carter filed a motion for leave to file defenses, answer and counterclaim in which he asserted insufficient service of process. The trial court, denying the motion, determined that Carter failed to make the requisite showing under OCGA § 9-11-55(b) to open default prior to final judgment and that Carter failed to show that he had not been properly served. The case was set for a bench trial to address the issue of damages. Shortly before trial, Carter filed a second motion to open default, which the trial court denied. Judgment was entered against him in the amount of $13,000. Carter contends the trial court erred by failing to open default because service of process was insufficient. Under OCGA § 9-11-55(b), a prejudgment default may be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense.... Generally, the opening of a default rests within the sound discretion of the trial court. (Punctuation and emphasis omitted.) Stewart, supra. In this case, to meet the four conditions, Carter raised insufficiency of service of process as a defense. Since Carter challenged the sufficiency of service, he bore 420 the burden of proving improper service. Franchell v. Clark;[2]Oden v. Legacy Ford-Mercury.[3] The record includes the signed entry of service which stated that service was made by leaving copies of the complaint at Carter's residence with his mother. "The process server's return of service can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit." (Punctuation omitted.) Oden, supra at 668, 476 S.E.2d 43. When Carter filed his initial motion to open default, he offered no evidence supporting his defense that service of process was insufficient. Later, the only evidence Carter submitted to prove failure of service was his verified pleading. Therein he simply stated that the complaint was delivered to his mother's home, and he did not live with his mother at the time the complaint was served. Carter offered no corroborating evidence, such as an affidavit of his mother or proof of his residency elsewhere. Although a return of service may be impeached by sworn statements made on personal knowledge, this Court has also held that in a case of the defendant's word against the deputy sheriff's[,] the presumption favors the sheriff's return of service. (Citation and punctuation omitted.) Oden, supra. In the absence of corroborating evidence to support the defendant's testimony, the presumption favors the sheriff's return of service. Moore v. Sanford, Adams, McCullough &c.[4] Whether a defendant presents evidence "sufficient to overcome facts reflected in a return of service is a question to be resolved by the trial court as the factfinder." Franchell, supra at 131, 524 S.E.2d 512. This Court will not disturb the factual finding of the trial court that service was effected as long as there is some evidence to support it. Id. Oden, supra; Patterson v. Coleman;[5]Baughan v. Alaoui.[6] The trial court did not abuse its discretion by denying the motion to open default under OCGA § 9-11-55(b). Stewart, supra. 2. In his enumeration of error, Carter also contended that venue was improper. Carter, however, failed to support this enumeration with argument, so the error is deemed abandoned. Court of Appeals Rule 27(c)(2). Judgment affirmed. ELDRIDGE and BARNES, JJ., concur. NOTES [1] Stewart v. Turner, 229 Ga.App. 119, 121(2), 493 S.E.2d 251 (1997). [2] Franchell v. Clark, 241 Ga.App. 128, 130-131(3), 524 S.E.2d 512 (1999). [3] Oden v. Legacy Ford-Mercury, 222 Ga.App. 666, 667-668(1), 476 S.E.2d 43 (1996). [4] Moore v. Sanford, Adams, McCullough &c, 175 Ga.App. 552(1), 333 S.E.2d 681 (1985). [5] Patterson v. Coleman, 252 Ga. 152, 311 S.E.2d 838 (1984). [6] Baughan v. Alaoui, 240 Ga.App. 661, 662-663(1), 524 S.E.2d 536 (1999).	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA,  Plaintiff-Appellee, v.  No. 00-4369 ROBERT H. BROWN, Defendant-Appellant.  Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, District Judge. (CR-99-47) Submitted: February 28, 2001 Decided: March 23, 2001 Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges. Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion. COUNSEL Audrey Freeman jaCobs, Richmond, Virginia, for Appellant. Helen F. Fahey, United States Attorney, Stephen W. Miller, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). 2 UNITED STATES v. BROWN OPINION PER CURIAM: Robert H. Brown appeals his conviction entered after a bench trial for carrying two firearms and two boxes of ammunition despite being a person convicted of a misdemeanor domestic violence offense in violation of 18 U.S.C.A. § 922(g)(9) (West 2000). Brown, who had been convicted of the requisite predicate offense, was arrested in pos- session of two firearms and two boxes of ammunition. After a trial, the district court found Brown guilty and sentenced him based on the four counts in the indictment; one count for each firearm and box of ammunition. Brown received fifteen months imprisonment on each count to be served concurrently and a $100 special assessment on each of the four counts of conviction. It is this judgment and sentence from which Brown appeals. Brown’s first assignment of error on appeal need not detain us for long. Brown argues that the Congress exceeded its authority under the Commerce Clause in enacting § 922(g)(9). Brown relies on United States v. Lopez, 514 U.S. 549 (1995) (invalidating 18 U.S.C. § 922(q)(1)(A)), and United States v. Morrison, 529 U.S. 598 (2000) (invalidating the Violence Against Women Act, 42 U.S.C.A. § 13981 (West Supp. 2000)), in suggesting that § 922(g)(9) is merely a crimi- nal statute that has nothing to do with interstate commerce. As such, Brown contends that Congress overstepped the bounds of the Com- merce Clause in enacting the statute. However, the statute contains a specific jurisdictional requirement that the possession be "in or affect- ing commerce." 18 U.S.C.A. § 922(g). Because of that additional ele- ment, lacking in the statutes in question in the authority Brown cites, § 922(g)(9) is an appropriate exercise of Congressional authority under the Commerce Clause. Gillespie v. City of Indianapolis, 185 F.3d 693, 704-05 (7th Cir. 1999); see United States v. Nathan, 202 F.3d 230, 234 (4th Cir. 2000) (upholding § 922(g)(1)); United States v. Bostic, 168 F.3d 718, 723 (4th Cir. 1999) (upholding § 922(g)(8)). Brown’s contention on this point is without merit. Brown suggests for the first time on appeal that the district court erred in convicting him of multiple counts of being a person con- victed of a crime of domestic violence in possession of firearms and ammunition. Brown contends that because he possessed the two fire- UNITED STATES v. BROWN 3 arms and two boxes of ammunition "together," he committed only one offense under 18 U.S.C.A. § 922(g)(9). See United States v. Dun- ford, 148 F.3d 385, 390 (4th Cir. 1998)(holding that defendant’s "pos- session of the six firearms and ammunition, seized at the same time from his house, supports only one conviction of 18 U.S.C. § 922(g)"). Because Brown failed to raise this claim before the district court, this Court’s review is limited to a search for plain error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732-33 (1993); United States v. Hastings, 134 F.3d 235, 239 (4th Cir. 1998). Consequently, Brown "must show that an error occurred, that the error was plain, and that the error affected his substantial rights." Hastings, 134 F.3d at 239. Even if the three requirements are met, correction of the error still lies "within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error seriously affect[s] the fairness, integrity or public reputation of judicial pro- ceedings." Olano, 507 U.S. at 732 (internal citations and quotation marks omitted). The government concedes that under United States v. Dunford, 148 F.3d 385 (4th Cir. 1998), it was error for the district court to convict Brown of multiple offenses based on only one instance of possession of the two firearms and two boxes of ammunition. Id. at 390. Given that this Court decided Dunford more than two years before Brown’s conviction and that there has been no vacillation from its holding, the error was plain. Further, the error affected Brown’s substantial rights in that he was subjected to three additional special assessments of $100 each and three additional convictions and concurrent sentences. See Olano, 507 U.S. at 734; Hastings, 134 F.3d at 240. With respect to the final consideration under Olano, we conclude that correcting this error is an appropriate exercise of our discretion. Accordingly, we affirm one conviction of a violation of 18 U.S.C. § 922(g)(9) and reverse three. Because the district court sentenced Brown on the basis of four courts and thus directed Brown to pay a $100 special assessment for each count, we vacate his sentence and remand this case for resentencing. 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 IN PART, REVERSED IN PART, AND REMANDED	{ "pile_set_name": "FreeLaw" }
November 22, 1961 Ronorable Richard %. Rudeloff County Attorney, Ree County Beeville, Texas Opinion No. WW-1198 Re: Whether the County Court of Bee County can legally draw a jury from the jury wheel during the current term of court, to be used during such term. Dear Mr. Rudeloff: You have requested the opinion of the Attorney General as to whether, when a jury wheel county, for reasons not here relevant, did not have a jury list during the preceding year and has now prepared a proper jury list and placed the same in the jury wheel at the proper time, i.e., between August 1 and August 15, and the County Court term began the third Monday in July, a legally qualified jury may be drawn for such County Court from such jury wheel in the face of Article 2096, Vernon's Civil Stat- utes, which states that the panel for the week be drawn not less than 10 days prior to the first day of a term of Court. Article 2096, Vernon's Civil Statutes, reads in relevant part as follows: "Not less than ten (10) days prior to the first day of a term of court, . . . the clerk of the county court, or one of his deputies, and the sheriff or one of his deputies, in the pres- ence and under the direction of the county judge, if the jurors are to be drawn for the county court, shall draw from the wheel containing the names of jurors after the same has been well turned so that the cards therein are thoroughly mixed, one by one the names of thirty-six jurors, or a greater or less number where such judge has so directed, for each week of the term of the . . . county courts for which a jury may be re- quired, . . .'I It was held in DeVault v. State, 159 Tex.Crim. 360, 264 S.W.2d 126 (19541, that Article 2096 was not so severely vio- lated by drawing the names in handfuls rather than individually as to cause reversible error in a murder prosecution. Honorable Richard E. Ruaeloff, page 2 (~~-1198) It is our opinion that the DeVault case is authority that Article 2096 is directory only and not mandatory, and that when no jury list existed at the time required under Article 2096 compliance therewith at the earliest practicable time woul4 be sufficient in the absence of a showing of prejudice arising therefrom. See also Williams v. State, 164 Tex.Crim. 381, 298 S.W.2d 833 (1957). SUMMARY Where the term of court began before a jury list could be placed in the jury wheel and a jury is drawn therefrom after the list is properly placed therein, the jury so drawn is a valid jury notwithstanding that Article 2096, V.C.S. calls for the drawing to be done not less than 10 days before the opening of the term of court,in the absence of a showing of prejudice. Sincerely yours, WILL WILSON J-EL:wb APPPGVED: OPINION COMMITTEE W. V. Geppert, Chairman Pat Bailey William Colburn Howard Mays Dualey McCalla REVIEWED FOR THE ATTORNEY GENERAL BY: Houghton Brownlee	{ "pile_set_name": "FreeLaw" }
728 F.Supp. 1158 (1990) A1 FERRO COMMODITIES CORP., S.A., Plaintiff, v. TUBE CITY IRON AND METAL COMPANY, Defendant. Civ. A. No. 88-7290. United States District Court, E.D. Pennsylvania. January 10, 1990. 1159 Stephen W. Miller, and James B. Burns, Clark, Ladner, Fortenbaugh & Young, Philadelphia, Pa., for plaintiff. Daniel J. Dugan, Spector, Cohen, Gadon & Rosen, Philadelphia, Pa., for defendant. MEMORANDUM AND ORDER DuBOIS, District Judge. Plaintiff, A1 Ferro Commodities Corp., S.A. ("A1 Ferro"), instituted this action against the defendant, Tube City Iron and Metal Company ("Tube City")[1], for breach of contract relating to the sale of 8500 metric tons of scrap steel. A1 Ferro claims that Tube City breached the contract by failing to nominate a vessel to take delivery of the scrap and thus forcing A1 Ferro to sell the scrap to another buyer at a net loss to A1 Ferro of $115,942. Tube City filed a counterclaim against A1 Ferro alleging that A1 Ferro breached the contract by not accepting Tube City's nomination of a vessel. Tube City claims that A1 Ferro deprived Tube City of resale profits on the scrap of $104,315. The Court held a non-jury trial in the case which concluded on September 28, 1989. For the reasons set forth in the following findings of fact and conclusions of law pursuant to Fed.R.Civ.P. Rule 52(a), the Court finds in favor of A1 Ferro and against Tube City in the amount of $71,535, and against Tube City on its counterclaim. I. FINDINGS OF FACT LIABILITY A1 Ferro is a company organized and existing under the laws of Switzerland with its principal place of business in Zug, Switzerland. A1 Ferro is in the business of purchasing and selling scrap metals. Tube City is a Delaware Corporation with its principal place of business in Glassport, Pennsylvania. Tube City is also in the business of purchasing and selling scrap metals. On or about September 30, 1987, A1 Ferro and Tube City entered into an Agreement (the "Agreement") under which Tube City agreed to purchase from A1 Ferro approximately 8,500 metric tons of scrap steel at the price of $115.00 per metric ton.[2] Under the Agreement, A1 Ferro and Tube City provided for delivery of the scrap to Tube City at the port facilities of Patrick J. Craenhals, et Fils ("Craenhals") in Antwerp, Belgium. Craenhals is a Belgian company which specializes in, inter alia, scrap processing and recycling. The Agreement set the delivery date of the scrap as "End October/Early November 1987". The Agreement specifically required that, prior to the delivery date, Tube City nominate a vessel to A1 Ferro to load the scrap. Under the terms of the Agreement, Tube City, to nominate a vessel, had to provide A1 Ferro with the vessel's name, "characteristics", "lay days", and a request for "stem". (See Special Conditions # 2 of the Agreement). A vessel's "characteristics" include the vessel's class, length, width, 1160 draft, size and number of holds, and size and number of hatches; "lay days" are the dates on which the vessel may be in port to load the goods; and a request for "stem" is a request for the shipper's commitment to accept and load the vessel some time during the proposed lay days. In early October, 1987, Tube City informed A1 Ferro that Tube City had inspected the scrap at Craenhals' facilities and found the scrap to conform to the Agreement. Later in October, 1987, Tube City and A1 Ferro worked out and confirmed Tube City's financing (i.e. a letter of credit) for the scrap. Towards the end of October, 1987, A1 Ferro and Tube City began to exchange telexes concerning the nomination of a vessel. On October 23, 1987, Jose A. Castillo, A1 Ferro's agent throughout the transaction who was based in Madrid, Spain, sent a telex to Harry Humphreys, an officer of Tube City, stating that the scrap was ready for "prompt shipment" and A1 Ferro awaited Tube City's nomination of a vessel. Mr. Humphreys telexed a reply to Mr. Castillo on October 26, 1987, that Tube City was in the market for a vessel. In response, Mr. Castillo telexed Mr. Humphreys on October 26, 1987, that the berth was "presently available for loading" and A1 Ferro awaited Tube City's nomination of a vessel. The parties next communicated concerning the matter when Mr. Castillo and Mr. Humphreys met by chance in Zurich, Switzerland in early November, 1987. Mr. Castillo was in Zurich attending a convention for scrap metal dealers. Mr. Humphreys, while not registered at the convention, arrived in Zurich on the evening of November 3, 1987. The following day, November 4, 1987, Mr. Humphreys met with Mr. Castillo in the lobby of the hotel where the convention was being held. During the meeting in the lobby, Mr. Humphreys showed Mr. Castillo a copy of one of two telexes concerning a ship which Tube City had been trying to obtain. Both telexes named a vessel, the M.V. Anezina. However, one of the telexes did not set forth proposed "lay days for stem". See Plaintiff's Exhibit 13. The other telex did not set forth the "characteristics" of a vessel. See Defendant's Exhibit "15" (Stamp 00084). Mr. Humphreys and Mr. Castillo did not discuss the matter further in Zurich. Mr. Castillo left for Madrid on the evening of November 4, 1987. Mr. Humphreys left for Rotterdam on the morning of November 5, 1987. Mr. Castillo sent Tube City a telex from Madrid on the evening of November 4, 1987, asking Tube City for a nomination, including a vessel's name and "lay days". No one from Tube City responded to Mr. Castillo's November 4, 1987 telex. On November 9, 1987, Mr. Castillo sent a telex to Tube City asking Tube City for a nomination. On November 10, 1987, Mr. Humphreys sent Mr. Castillo a telex stating that Tube City intended to take delivery of the scrap and suggested a two-week delay in fixing a vessel for loading. On November 11, 1987, Mr. Castillo advised Mr. Humphreys by telex that A1 Ferro would ask its shippers to delay the shipping date until "November 17/24". Mr. Castillo added that Tube City would have to extend its letter of credit with its bank, under which Tube City expected to pay for the scrap. The following day, November 12, 1987, Mr. Castillo informed Mr. Humphreys by telex that the shipping date could be extended to the end of November, 1987. Mr. Castillo also reminded Tube City to extend its letter of credit with its bank. On November 18, 1987, Mr. Castillo sent a telex to Mr. Humphreys requesting Tube City's nomination. Mr. Castillo stated in the telex that Tube City's delays were causing serious problems for the shippers (Craenhals) in tying up the port facilities. The telex also stated that Craenhals had to load the goods by "end November, latest 4th December". On November 19, 1987, Mr. Castillo sent a follow-up telex to Mr. Humphreys stating that Tube City had to immediately nominate a vessel. Mr. Castillo added that Craenhals had "serious" storage expenses, which Tube City would have to pay. Mr. 1161 Humphreys replied to Mr. Castillo by telex on November 19, 1987, that Tube City was in the market for a vessel and would keep A1 Ferro advised as to its progress. On November 24, 1987, Mr. Castillo sent a telex to Mr. Humphreys which stated, in part: "It is essential Tube City declare in this week a vessel to load this cargo, as otherwise and definitively the sellers/shippers will consider the contract defaulted...." Neither Mr. Humphreys, nor any other representative from Tube City, responded to Mr. Castillo's November 24, 1987 telex. In a telex dated November 30, 1987, Mr. Castillo told Mr. Humphreys that Tube City had to take immediate action to accept the steel or else face legal action. A1 Ferro received no response to the November 30, 1987 telex until December 8, 1987. On December 8, 1987, Mr. Humphreys sent Mr. Castillo a telex stating that Tube City was working a ship for the December 10-20, 1987 period. Mr. Castillo replied by telex on December 8, 1987, that the delivery date could be extended to December 10-20, 1987. On December 10, 1987, the law firm of Baker & McKenzie sent Tube City a letter on behalf of Mr. Castillo and A1 Ferro stating A1 Ferro's intention to hold Tube City liable for Craenhals' storage expenses. On December 14, 1987, Mr. Humphreys inquired by telex as to whether Craenhals' port could accomodate a vessel with a draft of 36 feet. In that telex, Mr. Humphreys also stated that Tube City had the M.V. Adolph Leonhardt ready to load for the December 16-18, 1987 period. On December 15, 1987, Mr. Castillo informed Mr. Humphreys by telex that Craenhals' facilities could not accomodate a vessel with a draft over 34.5 feet. Later on December 15, 1987, Mr. Humphreys sent a telex to Mr. Castillo proposing the M.V. Maloja II for loading with lay days of December 19-25, 1987. On December 16, 1987, Mr. Castillo sent a reply telex to Mr. Humphreys stating that A1 Ferro would consider the M.V. Maloja II if Tube City agreed to pay A1 Ferro the interest and storage charges incurred by Craenhals as a result of Tube City's delays in taking delivery of the scrap. In response, Michael Coslov, Chairman and Chief Executive Officer of Tube City, telephoned Mr. Castillo on December 16, 1987, rejecting A1 Ferro's offer to accept the M.V. Maloja II only if Tube City agreed to pay the interest and storage charges incurred by Craenhals. Later on December 16, 1987, Mr. Castillo sent a second telex to Tube City in which Mr. Castillo confirmed Tube City's refusal to pay interest and storage charges. In that same telex, Mr. Castillo offered to set aside the interest and storage charges, reserving that claim for the courts, provided Tube City could charter the M.V. Maloja II to load the scrap. In a telex dated December 16, 1987, Robert Odle, President of Tube City, stated to Mr. Castillo that Tube City had lost its option on the M.V. Maloja II. On December 18, 1987, Mr. Odle sent a telex to Mr. Castillo stating that Tube City was "trying to trade" two other vessels, the M.V. Senator and the M.V. Rank. The M.V. Senator and M.V. Rank had proposed lay day periods of December 30, 1987 to January 8, 1988 and January 5, 1988 to January 15, 1988, respectively. No one from A1 Ferro responded to Mr. Odle's December 18, 1987 telex. On December 22, 1987, Arthur R. Spector, Tube City's attorney, initiated a telephone conference call with Mr. Coslov, Mr. Odle, and Michael Mesnik, A1 Ferro's attorney, in an effort to avert the impending sale of the scrap. In the telephone conference, the representatives of Tube City told Mr. Mesnick that Tube City was still interested in making a nomination; Mr. Mesnick agreed to communicate Tube City's continued interest to Mr. Castillo. The parties also agreed during the telephone conference that it would be best to reserve their legal claims (relating to the previous failed nominations) until after a vessel was nominated and the scrap was delivered. Mr. Mesnik called Mr. Castillo that same day, December 22, 1987, to relay Tube City's continued interest in making a nomination. Mr. Castillo instructed Mr. Mesnick that A1 Ferro would still consider a 1162 nomination by Tube City, provided the nomination was made no later than December 23, 1987, and A1 Ferro had the right to accept or reject the nomination within a 24-hour period. Mr. Mesnick relayed Mr. Castillo's terms, orally, to Mr. Spector, who, in turn, relayed the terms, orally, to Mr. Coslov and Mr. Odle. There was no further communication between the parties on December 22 or December 23, 1987, regarding the nomination of a vessel. Accordingly, A1 Ferro sold the scrap to Nueva Montana Quijano, S.A., Santander, Spain, on December 23, 1987, and notified Tube City of the sale by telex sent from Madrid at 6:45 p.m. Madrid time. As of that time, Tube City had not nominated a vessel to A1 Ferro. II. CONCLUSIONS OF LAWLIABILITY The Court has diversity jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a). The parties have agreed that Pennsylvania law is applicable to the issues presented, and the Court concurs. While several jurisdictions are implicated in the transaction, Pennsylvania has the greatest number of contacts with the transaction, and a significant interest in the outcome of the suit.[3]Melville v. American Home Assurance Co., 584 F.2d 1306, 1311 (3d Cir.1978); Reading Metal Craft Co. v. Hopf Drive Associates, 694 F.Supp. 98 (E.D.Pa.1988). The dispute before the Court centers on whether there was a breach of contract, and if a breach occurred, by whom and at what time. The Court begins its analysis with the meeting between Mr. Castillo and Mr. Humphreys in Zurich, a point at which the Agreement between A1 Ferro and Tube City began to unravel. On November 4, 1987, Mr. Humphreys met by chance with Mr. Castillo in a hotel lobby in Zurich. During the encounter, Mr. Humphreys showed Mr. Castillo a copy of a telex concerning a ship which Tube City had been trying to obtain. While the parties dispute which telex Mr. Humphreys showed Mr. Castillo, neither of the telexes constituted a nomination. One telex did not set forth proposed "lay days" for stem. See Plaintiff's Exhibit 13. The other telex did not set forth the "characteristics" of a vessel. See Defendant's Exhibit "15" (Stamp 00084). Although Mr. Humphreys alleges that he waited in Zurich for Mr. Castillo to call him to discuss matters further, Mr. Humphreys did not attempt to contact Mr. Castillo, and no one from Tube City responded to Mr. Castillo's telex of November 4 from Madrid requesting a nomination. In their Agreement, A1 Ferro and Tube City included specific terms relating to the nomination of a vessel. The Agreement required Tube City, prior to the delivery date, to nominate a vessel by providing A1 Ferro with the vessel's name, "characteristics" and "lay days for stem". While in Zurich, Mr. Humphreys never provided Mr. Castillo with all the terms required under the Agreement for a nomination. Thus, Mr. Castillo did not have the information A1 Ferro needed to obtain approval from the shippers on a proposed vessel. In construing a contract, the intention of the parties is of paramount importance. If the terms of the contract are clearly stated, a court will determine the parties' intention based on the clear wording of the contract. See O'Farrell v. Steel City Piping Co., 266 Pa.Super. 219, 403 A.2d 1319 (1979); and P.L.E. Contracts, § 145 at 180-181. In Tube City's counterclaim, Tube City alleges that A1 Ferro breached the Agreement in Zurich by not accepting Tube City's nomination of a vessel. The Court rejects Tube City's contention, finding that Tube City did not make a nomination in Zurich on November 4, 1987 pursuant to the terms of the Agreement. The Court, however, does not agree with A1 Ferro that Tube City breached the Agreement as a result of that failed nomination. 1163 The Agreement between A1 Ferro and Tube City set a delivery date of "End October/Early November, 1987." Thus, while the Court finds that Tube City did not nominate a vessel in Zurich as of November 4, 1987 or immediately thereafter, the delivery date of "End October/Early November, 1987" allowed Tube City some leeway into November, 1987 for the nomination of a vessel. See Easton Theatres Inc. v. Wells Fargo Land & Mortgage Co., 265 Pa.Super. 334, 401 A.2d 1333 (1979); and James v. Silverstein, 224 Pa.Super. 489, 306 A.2d 910 (1973). On November 10, 1987, Tube City sent a telex to A1 Ferro requesting a delay in the delivery date of two weeks. On November 12, 1987 A1 Ferro telexed to Tube City that the delivery date could be extended. That exchange of telexes raises a question as to whether A1 Ferro and Tube City modified their Agreement to extend the delivery date. The Uniform Commercial Code applies to the question of contract modification. The contract between A1 Ferro and Tube City was for the sale of scrap steel, a "transaction in goods" under Article 2 of the Uniform Commercial Code, as adopted by the Commonwealth of Pennsylvania (hereinafter referred to as "the Uniform Commercial Code"). See 13 Pa.C.S.A. § 2102. Under the Uniform Commercial Code, consideration is not required for a binding modification. 13 Pa.C.S.A. § 2209(a). Furthermore, while a modification must comply with the Statute of Frauds, 13 Pa.C.S.A. § 2209(c), telexes, such as the ones between A1 Ferro and Tube City, are evidence of a writing in compliance with the Statute of Frauds requirement. See, e.g., Ore & Chemical Corp. v. Howard Butcher Trading, 455 F.Supp. 1150 (E.D.Pa.1978). Under the Uniform Commercial Code, a modification is defined as "[a]n agreement modifying a contract...." 13 Pa.C.S.A. § 2209(a). A single term of a contract, such as price or delivery date, may be modified by the parties without changing the underlying terms of the contract. See, e.g. June G. Ashton Interiors v. Stark Carpet, 142 Ill.App.3d 100, 96 Ill.Dec. 306, 491 N.E.2d 120 (1986) (modification of delivery date); see generally 2 Anderson, Uniform Commercial Code § 2-209:15. The term "agreement" is defined in the Uniform Commercial Code as a "bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing or usage of trade or course of performance...." 13 Pa.C.S.A. § 1201. The Court finds that A1 Ferro and Tube City agreed to extend the delivery date to as late as December 4, 1987, as evidenced by the parties' exchange of telexes. In the telexes, A1 Ferro agreed to extend the delivery date and Tube City agreed to extend its letter of credit. The telexes, which specify the terms of the extensions, evidence a "bargain in fact" or an agreed-to modification. Notwithstanding the agreement to extend the deadline to December 4, 1987, Tube City made no effort during the extended period to propose a vessel. Despite several written requests from A1 Ferro for a nomination, Tube City did not propose a vessel to A1 Ferro from November 12, 1987, through December 4, 1987, and Tube City did not even respond to A1 Ferro's November 24 and 30, 1987 telexes requesting a nomination until after the December 4, 1987 deadline. Under the Uniform Commercial Code, a contract may be repudiated if a party to the contract fails to provide adequate assurance of performance when justifiably demanded by the other party. The Uniform Commercial Code provides, in relevant part: "(a) A contract for sale imposes an obligation on each party that the expectation of the other of receiving due performance will not be impaired. When reasonable grounds for insecurity arise with respect to the performance of either party the other may in writing demand adequate assurance of performance.... (d) After receipt of a justified demand failure to provide within a reasonable time not exceeding 30 days such assurance of due performance as is adequate under 1164 the circumstances of the particular case is a repudiation of the contract." 13 Pa.C.S.A. § 2609(a) & (d). The Court finds that Tube City failed to adequately assure A1 Ferro of performance under the contract after receiving numerous written demands for a nomination by December 4, 1987. Such conduct by Tube City constituted a repudiation of the contract. See 13 Pa.C.S.A. § 2609, comment 4. Having determined that there was a repudiation of the contract by Tube City, the Court must next address the question whether there was a retraction of the repudiation. Under the Uniform Commercial Code, a party may retract a repudiation provided the aggrieved party has not cancelled or materially changed his position or indicated that the repudiation is final. See 13 Pa.C.S.A. § 2611(a). The retraction of a repudiation can be accomplished by any method which "clearly indicates to the aggrieved party that the repudiating party intends to perform, [and] must include any assurance justifiably demanded under the provisions of this division (section 2609)". 13 Pa.C.S.A. § 2611(b). Here, Tube City proposed to A1 Ferro to take delivery of the scrap shortly after expiration of the December 4, 1987 deadline. In a telex dated December 8, 1987, Tube City stated that it could have a ship ready during the December 10-20, 1987 period. A1 Ferro, responding to Tube City's proposal, sent a telex to Tube City on December 8, 1987, agreeing to extend the shipment delivery date to December 10-20, 1987. The Court finds that, by telex dated December 8, 1987, Tube City retracted its repudiation of the Agreement by clearly indicating to A1 Ferro its intent to perform under the Agreement. The Court also finds that the parties' exchange of telexes on December 8, 1987, constituted a modification of the Agreement which extended the shipment delivery date to December 10-20, 1987. 13 Pa.C.S.A. § 2209(a); see 4 Anderson, Uniform Commercial Code § 2-611:7 (modification of contract after retraction of repudiation). Although Tube City proposed three vessels, the M.V. Maloja II, the M.V. Senator, and the M.V. Rank, to A1 Ferro during the December 10-20, 1987 period, the Court finds that none of Tube City's proposals complied with the parties' modification of the Agreement which extended the shipment delivery date to December 20, 1987. First, all three vessels proposed by Tube City had proposed lay days which went beyond the December 20, 1987 shipment delivery date. Second, the Court rejects Tube City's argument that A1 Ferro imposed unreasonable conditions on Tube City by insisting upon the payment of interest and storage charges. A1 Ferro expressly reserved its right to collect these charges from Tube City in several telexes sent to Tube City prior to the December 8, 1987 modification of the Agreement, 13 Pa.C.S.A. § 1207, and A1 Ferro had the right to demand these charges following Tube City's repudiation of the Agreement on December 4, 1987. 13 Pa.C.S.A. § 2611(c). While generally time of performance will not be strictly construed, time may become of the essence if it is stated in the contract or the circumstances are such that the parties intend to make time of the essence. Texas Energy Fuels Corp. v. Pemco Supply Co., Inc., 640 F.Supp. 2 (M.D.Pa.1985); James v. Silverstein, 224 Pa.Super. 489, 306 A.2d 910 (1973). A1 Ferro and Tube City did not make time of the essence in the original Agreement, choosing a deadline of "End October/Early November, 1987." However, by the time of the second extension, a month after the original delivery date, A1 Ferro and Tube City both recognized the urgency of the situation and fixed a definite time for delivery when agreeing to the extended deadline. The Court finds that, as of the second extension of the delivery deadline to December 10-20, 1987, the parties made time of performance of the essence. As of December 20, 1987, the deadline of the second extension, Tube City had not nominated a vessel to take delivery of the scrap by December 20, 1987. Since time 1165 was of the essence as of the second extension to December 10-20, 1987, and Tube City did not nominate a vessel to take delivery of the scrap by December 20, 1987, the Court finds Tube City repudiated the Agreement a second time on December 20, 1987. As of that date, by reason of the repudiation, A1 Ferro had the right to sell the scrap. 13 Pa.C.S.A. § 2703(4). Tube City argues that it retracted its second repudiation of the Agreement on December 22, 1987, or, in the alternative, that it reached a new Agreement with A1 Ferro on that date. The Court finds that there was no retraction of Tube City's second repudiation and that the parties did not enter into a new Agreement on December 22, 1987. Tube City called A1 Ferro on December 22, 1987, about the possibility of nominating a vessel by December 23, 1987. However, Tube City did not indicate to A1 Ferro when it would nominate on December 23, 1987, or when it would contact A1 Ferro about any such nomination. Moreover, Tube City did not communicate with A1 Ferro about a nomination from the time of the initial calls on December 22, 1987, until after the close of business in Madrid on December 23, 1987. Under the circumstances, the Court finds that Tube City failed to retract its repudiation prior to A1 Ferro's resale of the scrap metal on December 23, 1987. See 13 Pa.C.S.A. § 2611(b); 13 Pa.C.S.A. § 2611(b), comment 2. Based on the December 22, 1987 telephone calls, Tube City argues that there was an implied waiver of A1 Ferro's contract rights. The Court disagrees. While an oral attempt to modify a contract can operate as a waiver, 13 Pa.C.S.A. § 2209(d), where a party has repudiated a contract, and the repudiation has not been retracted, the parties do not have an existing contract to modify or attempt to modify. See Gorge Lumber Co. Inc. v. Brazier Lumber Co. Inc., 6 Wash.App. 327, 493 P.2d 782, 10 UCC 609 (Div.1972). In Gorge Lumber Co., the court held that where the seller had previously repudiated a contract for the sale of lumber, the buyer's oral representations (following the repudiation) could not operate as a waiver of the buyer's rights, given that the contract had been repudiated. See Gorge Lumber Co., 493 P.2d at 787. The Uniform Commercial Code further provides that, following an alleged breach, a waiver or renunciation of a party's rights has to be made in writing by the aggrieved party. 13 Pa.C.S.A. § 1107. No such written waiver occurred with respect to the December 22, 1987 calls. Tube City's argument that the December 22, 1987 telephone calls created a new Agreement must fail because, under the Uniform Commercial Code, an Agreement for the sale of goods over $500.00 is not enforceable "unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought." 13 Pa.C.S.A. § 2201(a). In the absence of any written exchanges between the parties, and there were none, the calls between Tube City and A1 Ferro on December 22, 1987, cannot be the basis of a new contract. For all of the foregoing reasons, the Court finds in favor of A1 Ferro against Tube City for failing to nominate a vessel pursuant to the Agreement, and rejects Tube City's counterclaim against A1 Ferro based on an alleged nomination by Tube City. III. FINDINGS OF FACT AND CONCLUSIONS OF LAWDAMAGES Under the Uniform Commercial Code, when a buyer repudiates a contract, a seller has the right to resell the goods and recover damages under the contract. 13 Pa.C.S.A. § 2703(4). Generally, "the seller may recover the difference between the resale price and contract price together with any incidental damages...." 13 Pa. C.S.A. § 2706(a). Incidental damages are defined under the Uniform Commercial Code as "any commercially reasonable charges, expenses or commissions incurred in stopping delivery, in the transportation, care and custody of goods after the breach by the buyer, in 1166 connection with return or resale of the goods or otherwise resulting from the breach." 13 Pa.C.S.A. § 2710. Here, A1 Ferro resold the scrap intended for Tube City to a Spanish buyer, Nueva Montana Quijano S.A., following a period in which A1 Ferro's shippers (Craenhals) had to store the scrap. While A1 Ferro received a higher gross price per metric ton on resale, A1 Ferro had to pay freight and insurance charges on the resale. After deducting these expenses, which Tube City would have been obligated to pay under its Agreement with A1 Ferro, A1 Ferro received a lower net price on the scrap of around $7 per metric ton. Under general contract principles, resale damages are based on a seller's net resale price. See Williston Treatise on the Law of Contracts § 1380 (3d ed.1968). Furthermore, under the Uniform Commercial Code, costs to transport goods in connection with a resale are recoverable by the aggrieved seller as incidental damages. 13 Pa.C.S.A. § 2710; see, e.g., Rodwin Metals, Inc. v. Western Non-Ferrous Metals, Inc., 10 Cal. App.3d 219, 88 Cal.Rptr. 778 (1970). Here, A1 Ferro chartered three ships, the last one leaving Belgium on January 18, 1988, to carry the scrap from Belgium to Spain. In chartering the three ships, A1 Ferro incurred freight charges of between $17.87/ton and $18.82/ton and ship insurance charges in the amount of $ 0.10/ton. After deducting these extra charges ($158,693 for 8487.82 tons actually shipped) from the gross price paid by the Spanish buyer ($1,071,757), A1 Ferro's net receipts from the re-sale totalled $913,064. Under its contract with Tube City, A1 Ferro would have received $976,099 (8487.82 tons at $115/ton). A1 Ferro thus suffered a net loss on the resale in the amount of $63,035. A1 Ferro is also entitled to incidental damages relating to the storage of the scrap at Craenhals' facilities subsequent to Tube City's repudiation of the contract on December 4, 1987. 13 Pa.C.S.A. § 2710. Courts have routinely found that costs incurred to store goods are recoverable incidental damages. See, e.g., Continental Wirt Electronics Corp. v. Sprague Electric Co., 329 F.Supp. 959 (E.D.Pa.1971); Trilling v. Raffaele, 41 Del.Co. 44 (1954). Here, Craenhals calculated its total storage costs as $8,500. Craenhals based its storage charges on a $1/ton charge over a one-month period. (Trial Tr. 9/26/89 at 140). Since Tube City first repudiated the contract as early as December 4, 1987, and A1 Ferro did not complete the bulk of its shipments to Spain until mid-January, 1988, the Court finds Craenhals' one-month charge for storage expenses reasonable. Since A1 Ferro is legally liable to Craenhals for its storage charges, and these charges are a result of Tube City's repudiation, Tube City is required to pay to A1 Ferro the amount of the storage charges. See The Dimitrios Chandris Ring v. The Dimitrios Chandris, 43 F.Supp. 829, 832-33 (E.D.Pa.1942). The Court denies recovery to A1 Ferro for its other claimed damages relating to Craenhals' lost income ($30,000) and bank interest charges ($14,407). Both of these charges, as presented at trial, were premised on Craenhals' inability to handle other deliveries while it maintained Tube City's scrap on its docks. (Trial Tr. 141-148). The Court finds these charges, premised on the scrap as an impediment, facially inconsistent with Craenhals' charges for storing the scrap. Furthermore, in reviewing the record, the Court finds that the plaintiff failed to meet its burden of proving these damages with "reasonable certainty". C.T. Bedwell & Sons, Inc. v. International Fidelity Insurance Company, 843 F.2d 683 (3rd Cir.1988); E.C. Ernst, Inc. v. Koppers Co., Inc., 626 F.2d 324, 327 (3rd Cir.1980). For all of the foregoing reasons, the Court finds in favor of A1 Ferro and against Tube City in the total amount of $71,535, representing net resale losses of $63,035 and incidental damages of $8,500, and against Tube City and in favor of A1 Ferro on Tube City's counterclaim. NOTES [1] Since the filing of this action, Tube City Iron and Metal Company has changed its name to Tube City, Inc. [2] Tube City entered into the Agreement and performed acts pursuant to the Agreement at Tube City's place of business in Glassport, Pennsylvania. [3] Pennsylvania is both Tube City's principal place of business and the place from which Tube City negotiated and accepted the terms of the Agreement. Furthermore, Tube City's performance under the Agreement, such as opening a letter of credit and proposing a vessel, originated in Pennsylvania, albeit assisted by agents and banks elsewhere.	{ "pile_set_name": "FreeLaw" }
103 Wis.2d 455 (1981) 308 N.W.2d 917 STATE of Wisconsin, Plaintiff-Respondent, v. Clint Michael OLSON, Defendant-Appellant.[] No. 80-1361-CR. Court of Appeals of Wisconsin. Submitted on briefs January 8, 1981. Decided June 19, 1981. 456 For the defendant-appellant the cause was submitted on the briefs of John E. Tradewell, assistant state public defender. 457 For the plaintiff-respondent the cause was submitted on the brief of Bronson C. La Follette, attorney general, and Nancy L. Arnold, assistant attorney general. Before Gartzke, P.J., Bablitch, J. and Dykman, J. GARTZKE, P.J. During the late evening of June 30, 1979 defendant, in company with his teenage companions, drove a truck from Cooksville to the outskirts of Stoughton without the consent of its owner, defendant's truck having broken down while he was returning to his home in Stoughton. The evidence is conflicting as to whether defendant knew before he stopped that he was being pursued by the police. He was subsequently charged and convicted of violating sec. 943.23 (1), Stats., operating a vehicle without the owner's consent, and appeals from the judgment and order denying postconviction relief. The issues raised by defendant involve the meaning of "abandons" and the interplay of the subsections of sec. 943.23, Stats., which provides: (1) Whoever intentionally takes and drives any vehicle without the consent of the owner is guilty of a Class E felony. (2) Whoever violates sub. (1) and abandons a vehicle without damage within 24 hours is guilty of a Class A misdemeanor. Defendant contends that the complaint and information charging a violation of sec. 943.23 (1), Stats., should have negated the existence of an exception to the crime created by subsec. (2); that the evidence was insufficient to bind him over for trial; that the evidence at the trial was insufficient for the jury to find him guilty, and that the jury's instructions and the prosecutor's arguments misstated the law. Finding no reversible error, we affirm. 458 1. Criminal Offense Properly Charged The complaint and the information alleged that the defendant "did feloniously and intentionally take and drive a motor vehicle being a Ford truck without the consent of the owner . . . contrary to sec. 943.23(1)." Defendant contends that sec. 943.23(2), Stats., creates an exception to the crime defined by sec. 943.23(1). Because the charging documents failed to allege that he did not abandon the vehicle undamaged within twenty-four hours, defendant contends that the complaint and information are fatally defective. He relies on the rule that the state must recite all the elements of the crime, Champlain v. State, 53 Wis.2d 751, 754, 193 N.W.2d 868, 871 (1972), including the nonexistence of facts which constitute a statutory exception to the crime. State v. Williamson, 58 Wis.2d 514, 524, 206 N.W.2d 613, 618 (1973); Jensen vs. The State, 60 Wis. 577, 579, 19 N.W. 374 (1884). Violation of sec. 943.23 (1), Stats., is a crime which continues until it is terminated. The elements of the crime are (1) intentionally taking and driving a vehicle, (2) without the owner's consent, knowing that such consent has not been obtained.[1] Abandonment is not an element of the crime. Abandonment is a terminating circumstance which affects the consequences of, but does not excuse, exempt or except the defendant from having committed, the crime of taking and driving a vehicle without the owner's consent. The crime is a misdemeanor if terminated by abandonment under the circumstances prescribed by sec. 943.23 (2) and a felony if it is not so terminated. Assuming that sec. 943.23 (2), Stats., creates an exception to sec. 943.23 (1) in the broad sense that abandonment 459 removes the crime from its felony classification, the charging documents need not negate the existence of the exception if the facts as to the exception are peculiarly within the knowledge of the defendant. Williamson, 58 Wis.2d at 524, 206 N.W.2d at 618. Whether a defendant has abandoned a vehicle without damage within twenty-four hours may involve facts peculiarly within his or her knowledge. The taking and abandonment are usually furtive. The times of taking and abandonment are consequently often solely within the knowledge of the taker. Whether the taker had the appropriate mental state for abandonment and whether the vehicle was undamaged when abandoned, even if damaged when reclaimed, are matters peculiarly within the taker's own knowledge. [1] We conclude that a complaint and information charging a violation of sec. 943.23(1), Stats., need not allege the defendant's failure to abandon the vehicle without damage within twenty-four hours. 2. Sufficiency Of Evidence To Bind Over Defendant contends that the evidence at the preliminary examination showed that the truck was abandoned in an undamaged condition within twenty-four hours of its taking. He argues that he could not be charged with violating sec. 943.23 (1), Stats., when that evidence showed at most a violation of sec. 943.23 (2). Officer Anderson testified at the preliminary that shortly after he learned that the truck had been stolen, it passed his squad car from the opposite direction. He made a U-turn, pursued the truck, and saw it stop. When Anderson pulled up to the truck, two persons ran from it. Defendant was one of the two. The undamaged truck was recovered within two hours after it was taken. 460 Concluding that a vehicle is not "abandoned" for purposes of sec. 943.23 (2), Stats., unless its possession has been relinquished voluntarily, the trial court inferred that defendant left the truck to avoid arrest, found that defendant was probably guilty of a felony under sec. 943.23 (1), and bound him over for trial. Competent evidence existed for the trial court to find that defendant left the truck to avoid arrest and therefore did not relinquish it voluntarily. Our review of the sufficiency of the evidence ends at this point, if the trial court correctly interpreted the law as to abandonment. "When the reviewing court has discovered that there is competent evidence for the judicial mind of the examining magistrate to act on in determining the existence of the essential facts, it has reached the limit of its jurisdiction and cannot go beyond that and weigh the evidence." Lofton v. State, 83 Wis.2d 472, 480, 266 N.W.2d 576, 579 (1978); State v. Olson, 75 Wis.2d 575, 584, 250 N.W.2d 12, 17 (1977); State ex rel. Hussong v. Froelich, 62 Wis.2d 577, 583, 215 N.W.2d 390, 394 (1974). Defendant contends that sec. 943.23 (1), Stats., evinces a legislative intention to punish "joyriders" as misdemeanants where the victim's injury is a brief loss of the vehicle's use and no loss of value occurs through damage. He contends that whether he voluntarily gave up the vehicle is irrelevant to those legislative considerations and that he abandoned it within the meaning of sec. 943.23 (2) because he relinquished it with intent to part with it permanently. Defendant relies on the rule that ambiguous penal statutes are strictly construed in favor of the accused. State v. Wrobel, 24 Wis.2d 270, 275, 128 N.W.2d 629, 631 (1964). We may not resort to judicial rules of statutory construction if the statute is unambiguous but must give the words their ordinary meaning. Wisconsin Bankers Ass'n v. Mut. Savings & Loan, 96 Wis.2d 438, 450, 291 N.W.2d 461 869, 875 (1980). Property has not been abandoned, in its ordinary meaning, if it has been taken against the will of its possessor. Abandonment, as used in sec. 943.23 (2), Stats., is a voluntary act. Moreover, the purpose in making the crime a misdemeanor if terminated by abandonment under sec. 943.23(2), Stats., is to encourage joyriders to stop their foolish acts as quickly as possible. That encouragement is best provided if joyriders know a reduced penalty is unavailable if they wait until arrest is likely. It makes little sense to reduce the felony to a misdemeanor if the joyrider has had the time and acumen when facing imminent arrest simply to step outside the vehicle. That would encourage joyriders to risk a police chase for the chance to leave the vehicle before arrest. [2] We hold that abandonment for purposes of sec. 943.23 (2), Stats., must be a voluntary relinquishment with intent to part permanently with the vehicle. Leaving the vehicle because of the threat of imminent arrest is an involuntary relinquishment. Accordingly, defendant was properly bound over for trial. 3. Sufficiency Of Evidence As To Abandonment Defendant concedes that the evidence supports the finding that he operated a vehicle without the owner's consent but contends that the evidence was insufficient for the jury to find beyond a reasonable doubt that he failed to abandon the vehicle. Abandonment produces a significant difference in the penalty and the stigma for the crime of operating a motor vehicle without consent. Abandonment reduces the crime's two-year maximum penalty as a Class E felony to nine months as a Class A misdemeanor. Secs. 939.50 (3) (e), 939.51 (3) (a), Stats. Because the issue of abandonment 462 was properly presented, the due process clause of the fourteenth amendment to the United States Constitution requires the state to prove beyond a reasonable doubt the absence of this mitigating factor. Cf. Mullaney v. Wilbur, 421 U.S. 684 (1975) (state must prove beyond reasonable doubt the absence of circumstances reducing degree of culpability for generic crime charged if evidence of such circumstances is properly presented).[2] The jury was appropriately instructed that the state was required to meet that burden of proof. [3, 4] The question on appeal is not whether we are convinced beyond a reasonable doubt by our reading of the record but whether the evidence, considered most favorably to the state, is so insufficient in probative value and force that no jury acting reasonably could be convinced beyond a reasonable doubt. State v. Bowden, 93 Wis.2d 574, 582, 288 N.W.2d 139, 142-43 (1980), citing State v. Koller, 87 Wis.2d 253, 266, 274 N.W.2d 651, 658 (1979), and Lock v. State, 31 Wis.2d 110, 115, 142 N.W.2d 183, 185 (1966). The credibility of the witnesses and the weight of the evidence is for the jury. State v. Charbarneau, 82 Wis.2d 644, 650, 264 N.W.2d 227, 230 (1978), citing Bautista v. State, 53 Wis.2d 218, 223, 191 N.W.2d 725, 727-28 (1971). Defendant testified that he and his companions had been swimming and then drinking in a bar the day of his arrest. His truck broke down during their return late that night to Stoughton. After walking a half mile toward Stoughton, they found a cattle truck with keys in it at Cooksville. Defendant drove the truck, with his companions in the back, intending to leave it on the outskirts of Stoughton and walk into town. He testified that he did not see a squad car between Cooksville and 463 the place on Stoughton's outskirts where he left the truck, his companions told him when leaving the truck that a squad car had gone by, and he began to run when he saw the squad car arriving. A companion who had been riding in the back testified that he saw the squad car before the truck stopped, saw the squad car slow down, was worried that it was pursuing them and wanted to get away. Officer Anderson testified at the trial that his squad car was equipped with red rooftop lights. The night was bright and the moon was full. He testified to passing the truck from the opposite direction, making a U-turn, and following the truck to the Taylor Lane intersection. He turned on Taylor Lane and saw the truck, with no lights on, parked on Taylor's shoulder about 200 yards north of the intersection. Anderson pulled up to the vehicle, turned on his squad car's spotlights, and saw two persons running. They did not stop when he shouted, "Halt, Police." [5] The jury could, on the basis of the evidence, be convinced beyond a reasonable doubt that defendant failed voluntarily to abandon the truck. 4. Instruction Proper Defendant contends that the trial court erroneously instructed the jury in part that abandonment means "to intentionally give up, desert or relinquish voluntarily." In view of our holding that abandonment must be voluntary for purposes of sec. 943.23 (2), Stats., we need not review this claim of error. 5. Improper Argument Cured Defendant contends that prejudicial error occurred when the prosecutor argued to the jury that they should *464 decide the abandonment issue on the basis of which party convinced them of the facts. The argument followed instructions in which the court advised the jury of the state's obligation to prove defendant's guilt beyond a reasonable doubt. The court immediately admonished the jury that the prosecutor's statement was not to be taken as the law, that the defendant was not required to convince the jury of anything, and that the state's burden was to prove its case beyond a reasonable doubt. [6] The admonitory instruction was proper. Prejudice to a defendant is presumptively erased from the jury's collective mind when admonitory instructions have been properly given by the court. State v. Williamson, 84 Wis.2d 370, 391, 267 N.W.2d 337, 347 (1978). We have examined the record and find nothing to overcome that presumption. By the Court.Judgment of conviction and order denying postconviction relief affirmed. NOTES [] Petition to review granted. [1] The element of knowledge is not articulated in sec. 943.23, Stats., but was recognized in Edwards v. State, 46 Wis.2d 249, 252, 174 N.W.2d 269, 270-71 (1970). [2] Mullaney v. Wilbur, 421 U.S. 684, 702 (1975), reached this result, notwithstanding the difficulties in negating "a fact peculiarly within the knowledge of the defendant."	{ "pile_set_name": "FreeLaw" }
IN THE TENTH COURT OF APPEALS No. 10-15-00023-CV MICHAEL D. EADES AND REBECCA EADES, Appellants v. SUNRISE ESTATES PROPERTY OWNERS ASSOCIATION, Appellee From the 13th District Court Navarro County, Texas Trial Court No. 09-17965-CV ORDER OF REFERRAL TO MEDIATION Appellants indicated in their docketing statement that this appeal should be referred to mediation. The Legislature has provided for the resolution of disputes through alternative dispute resolution (ADR) procedures. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 154.001- 154.073 (West 2011). The policy behind ADR is stated in the statute: “It is the policy of this state to encourage the peaceable resolution of disputes . . . and the early settlement of pending litigation through voluntary settlement procedures.” Id. § 154.002 (West 2011). Mediation is a form of ADR. Mediation is a mandatory but non-binding settlement conference, conducted with the assistance of a mediator. Mediation is private, confidential, and privileged. We find that this appeal is appropriate for mediation. See id. § 154.021(a) (West 2011); 10TH TEX. APP. (WACO) LOC. R. 9. The parties are ordered to confer and attempt to agree upon a mediator. Within fourteen days after the date of this Order, Appellants are ordered to file a notice with the Clerk of this Court which either identifies the agreed-upon mediator or states that the parties are unable to agree upon a mediator. If the notice states that the parties are unable to agree upon a mediator, this Court will assign a mediator. Mediation must occur within thirty days after the date the above-referenced notice agreeing to a mediator is filed or, if no mediator is agreed upon, within thirty days after the date of the order assigning a mediator. No less than seven calendar days before the first scheduled mediation session, each party must provide the mediator and all other parties with an information sheet setting forth the party’s positions about the issues that need to be resolved. At or before the first session, all parties must produce all information necessary for the mediator to understand the issues presented. The mediator may require any party to supplement the information required by this Order. Named parties must be present during the entire mediation process, and each Eades v. Sunrise Estates Property Owners Association Page 2 party that is not a natural person must be represented by an employee, officer, agent, or representative with authority to bind the party to settlement. Immediately after mediation, the mediator must advise this Court, in writing, only that the case did or did not settle and the amount of the mediator’s fee paid by each party. The mediator’s fees will be taxed as costs. Unless the mediator agrees to mediate without fee, the mediator must negotiate a reasonable fee with the parties, and the parties must each pay one-half of the agreed-upon fee directly to the mediator. Failure or refusal to attend the entire mediation as scheduled may result in the imposition of sanctions, as permitted by law. Any objection to this Order must be filed with this Court and served upon all parties within ten days after the date of this Order, or it is waived. We refer this appeal to mediation. The appeal and all appellate deadlines are suspended as of the date of this Order. The suspension of the appeal is automatically lifted when the mediator’s report to the Court is received. If the matter is not resolved at mediation, any deadline that began to run and had not expired by the date of this Order will begin anew as of the date the mediator’s report to the Court is received. Any document filed by a party after the date of this Order and prior to the filing of the mediator’s report will be deemed filed on the same day, but after, the mediator’s report is received. PER CURIAM Eades v. Sunrise Estates Property Owners Association Page 3 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Order issued and filed February 26, 2015 Eades v. Sunrise Estates Property Owners Association Page 4	{ "pile_set_name": "FreeLaw" }
164 F.3d 957 37 UCC Rep.Serv.2d 565 MERRITT-CAMPBELL, INC., Plaintiff-CounterDefendant-Appellee-Cross-Appellant,v.RxP PRODUCTS, INC., Defendant-CounterPlaintiff-Appellant-Cross Appellee. No. 97-11114. United States Court of Appeals,Fifth Circuit. Jan. 27, 1999.Rehearing Denied Feb. 26, 1999. Ralph Henry Bauer, Arlington, VA, for Merritt-Campbell, Inc. James H. Baumgartner, Jr., Richard A. Rodgers, Vial, Hamilton, Koch & Knox, Dallas, TX, for RxP Products, Inc. Appeals from the United States District Court for the Northern District of Texas. Before REYNALDO G. GARZA, STEWART and PARKER, Circuit Judges. REYNALDO G. GARZA, Circuit Judge: I. Factual and Procedural Background 1 In August, 1995, Carl Merritt ("Merritt") telephoned RxP and talked to its President, Don Woodward ("Woodward"), about selling a fuel additive known as "RxP Gas Kicker" as a private label product. Woodward referred Merritt to RxP's National Sales Manager, James Potts ("Potts"). On August 19, 1995, Potts met with Merritt. During the next few weeks, the parties had numerous discussions relating to the potential private label arrangement. On September 18, 1995, Merritt-Campbell, Inc. ("M-C") was incorporated by Merritt and Harvey Campbell ("Campbell"). 2 On September 28, 1995, Merritt gave Potts a proposed agreement which Potts faxed to Woodward the following day. Woodward made changes to the proposal, signed it, and returned it to Potts to be signed by M-C. On October 3, 1995, Merritt signed the agreement on behalf of M-C. The agreement in its entirety states: 3 This agreement is made on this 28th day of September, 1995, between RxP Products, Inc., hereafter referred to as RxP, and Merritt-Campbell, Incorporated, hereinafter referred to as Merritt-Campbell. In consideration of the sum of ten dollars ($10.00), the receipt of which is acknowledged, RxP agrees to sell to Merritt-Campbell the product marketed as "RxP Gas Kicker" under the following terms: 4 1. RxP guarantees the following price to Merritt-Campbell for a period of five (5) years from the date of first order. 5 a. RxP Gas Kicker bottled in 2.5 ounce quantities-$1.25 per bottle (excluding labels). 6 b. RxP Gas Kicker in 55 gallon drum quantity-$1,280,00 (sic) per drum. 7 Said pricing may be increased only in the case of documented price increases to RxP for raw materials.2. RxP will bottle RxP Gas Kicker in either green or black bottles, as provided as samples, upon request for Merritt-Campbell. 8 3. RxP guarantees shipment within fourteen (14) days from receipt of order from Merritt-Campbell. 9 4. Both RxP and Merritt-Campbell agree unconditionally to maintain confidentiality regarding the relationship between the two companies. This confidentiality includes, but is not limited to, any disclosure of the source product market by RxP and Merritt-Campbell. The scope of this confidentiality includes, but is not limited to, any director, officer, employee, or agent of both RxP and Merritt-Campbell. 10 5. It is understood by RxP that it is the intention of Merritt-Campbell to market the product heretofore referred to as "RxP Gas Kicker" under a private label. 11 On November 9, 1995, Merritt presented to Potts a purchase order for 25,000 bottles of product with 60-day credit terms. Potts refused the purchase order because it contained credit terms. On April 8, 1996, RxP received a second order and a cashier's check from M-C for a total of 8,016 bottles of RxP Gas Kicker. RxP refused the order and returned the cashier's check to M-C uncashed. 12 On May 17, 1996, M-C filed suit against RxP in the United States District Court for the Northern District of Texas. M-C claimed that RxP breached a requirements contract entered into by RxP and M-C in September of 1995. M-C claimed that the contract entitled it to purchase from RxP quantities of RxP Gas Kicker. M-C described the contract as one for the sale of goods and acknowledged that it was governed by the Uniform Commercial Code ("UCC"). M-C sought specific performance and in the alternative, damages in the sum of $2,020,000. 13 RxP counterclaimed seeking a declaration that the agreement was not an enforceable contract. RxP also pleaded the affirmative defenses of failure to satisfy the statute of frauds, failure of consideration, failure to satisfy conditions precedent, repudiation by M-C, failure to provide adequate assurance of performance, and failure by M-C to perform in a commercially reasonable manner. 14 Pursuant to 28 U.S.C. § 636(c), the case was assigned to a United States Magistrate. The parties consented to the assignment and agreed that any appeals would be taken directly to this Court. 15 On April 21, 1997, RxP filed its motion for summary judgement raising the following issues: (1) the contract was unenforceable per the statute of frauds for lack of a stated quantity term; and (2) M-C was unable, as a matter of law, to prove lost profit damages because it was a new business and it failed to register an "ER-1" with the Environmental Protection Agency. 16 In opposing RxP's motion, M-C conceded the agreement lacked a quantity term, but M-C claimed that the agreement was a requirements contract and argued that requirements contracts are not subject to the statute of frauds. M-C also claimed that damages for lost profits could be recovered with respect to requirements contracts even though they may not be otherwise recoverable for lost profits allegedly lost by a new, speculative, and enviable business. M-C did not file its own motion for summary judgment, and the magistrate judge did not advise the parties he was considering any relief other than that requested by RxP. 17 On June 30, 1997, the magistrate judge granted RxP's motion with respect to damages holding that M-C was not entitled to recover damages for lost profits. The judge denied RxP's motion with respect to the enforceability of the contract between RxP and M-C. Without a motion before him the magistrate judge held that the contract was not one for the sale of goods. The court characterized the agreement as an option contract and held that option contracts are not subject to the UCC or the statute of frauds. The court also held that the agreement was potentially enforceable as an option contract. 18 A jury trial was scheduled for July 21, 1997. On July 14, 1997, the parties filed their pretrial order, which was approved and signed by the magistrate judge. The issues included: (1) whether the agreement is an enforceable contract; (2) whether the agreement is unenforceable because it lacks a quantity term; (3) whether the parties intended to form an option contract; (4) whether option contracts for the sale of goods are subject to the UCC; (5) whether the September 1995 agreement was intended to be the entire agreement between the parties; and (6) whether an option contract lacking numerous terms, including a quantity term, is capable of specific performance. 19 On July 21, 1997, the magistrate judge announced that a trial would not be held and that the parties would not be allowed to present evidence concerning the contested issues. 20 On September 9, 1997, the judge held that the agreement entered into by the parties is an option contract whereby M-C purchased from RxP, for consideration of $10.00, the right to purchase RxP Gas Kicker for a specified price over five years from the date of first order. The magistrate judge also held that the option contract was not one for the sale of goods and was not subject to §§ 2.102, 2.106(a) and 2.201 of the Texas Business and Commercial Code.1 The magistrate judge also held that the option contract represented the full and complete agreement between RxP and M-C and could not be supplemented by evidence of additional terms. The judge awarded M-C specific performance of the contract and attorney's fees that amounted to $32,156.25. 21 On October 2, 1997, RxP filed a timely appeal to this Court. On October 10, 1997, M-C cross appealed. II. Standard of Review 22 This Circuit reviews a district court's grant of summary judgment de novo, applying the same standard of review as would the district court. Ellison v. Connor, 153 F.3d 247, 251 (5th Cir.1998). Summary judgment evidence is viewed in the light most favorable to the party opposing the motion. Eastman Kodak v. Image Technical Services, 504 U.S. 451, 456-58, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). Summary judgment is proper only when it appears that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); Ellison, 153 F.3d at 251. Disputes concerning material facts are genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Douglass v. United Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir.1996) (en banc) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). An issue is "material" if it involves a fact that might affect the outcome of the suit under the governing law. Id. at 248, 106 S.Ct. 2505; Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir.1994). 23 As a general rule, the interpretation of a contract is a question of law, not fact. Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1048 (5th Cir.1998). "Whether a contract exists involves both questions of fact--such as the intent of the parties--and questions of law--such as whether, the facts as found constitute a contract. On appeal, a trial court's findings of fact must be accepted unless clearly erroneous or influenced by an incorrect view of the law." Zimmerman v. H.E. Butt Grocery Co., 932 F.2d 469, 471 (5th Cir.), cert. denied, 502 U.S. 984, 112 S.Ct. 591, 116 L.Ed.2d 615 (1991). 24 The magistrate judge held that the agreement was an option contract. In addition, the judge concluded that the agreement was not a contract for the sale of goods and therefore was not subject to the Texas Business and Commercial Code section 2.201. Both of these legal conclusions are subject to de novo review. Id. III. Discussion 25 There are four issues that are presented before this Court: (1) whether the magistrate judge was correct in holding that the agreement was an option contract not for the sale of goods and therefore not subject to the UCC; (2) whether RxP received proper notice of the magistrate judge's granting sua sponte summary judgment; (3) whether attorneys' fees were properly awarded; and (4) whether lost profits were properly denied. We will only address the first issue because we hold that the magistrate judge was incorrect in ruling that the Texas Business and Commercial Code does not apply to this case. 26 M-C asserts that the agreement is a valid and unambiguous enforceable contract. First, it supports the trial court's finding that the agreement is an enforceable option contract not governed by the UCC. In addition, M-C argues that the writing is an enforceable requirements contract governed by the UCC. Finally, M-C argues that the agreement is a valid distributorship agreement governed by the UCC. 27 RxP argues that option contracts are governed by the UCC. In the case at bar, however, the written agreement between M-C and RxP created an unenforceable option contract because it failed to satisfy the UCC statute of frauds by failing to state a quantity term. RxP argues that a quantity term is essential to form a valid option contract and therefore the writing is unenforceable. RxP ardently argues that the lower court's ruling, that option contracts are not governed by the UCC, is erroneous and unsupported by case law. Texas Business & Commercial Code 28 Chapter 2 of the UCC applies to all transactions in goods. TEX. BUS. & COM.CODE ANN. § 2.102. A contract for the sale of goods includes "both a present sale of goods and a contract to sell goods at a future time." TEX. BUS. & COM.CODE ANN. § 2.106(a). Therefore, rights of parties are not effected by whether the transaction is one for a present sale of goods or a contract relating to the future. See Id. 29 The UCC unequivocally states that a contract involving the sale of goods is not enforceable without a quantity term. See TEX. BUS. & COM.CODE ANN. § 2.201. Thus, the only term that must appear in a writing to support an enforceable contract for the sale of goods is the quantity term. TEX. BUS. & COM.CODE ANN. § 2.201cmt. 1. Section 2.201(a) states: 30 Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing. 31 (Emphasis added). However, a contract which fails to satisfy the requirements of section 2.201(a) but which is valid in other respects is enforceable pursuant to section 2.201(c): 32 (1) if the goods are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of the seller's business and the seller, before notice of repudiation is received and under circumstances which reasonably indicate that the goods are for the buyer, has made either a substantial beginning of their manufacture or commitments for their procurement; or 33 (2) if the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made, but the contract is not enforceable under this provision beyond the quantity of goods admitted. 34 M-C maintains that although the agreement lacks a quantity term, it still does not violate the statute of frauds because the agreement is within the exception for specifically manufactured goods under 2.201(c)(1). Although M-C's contention may have merit, this issue was not raised in the magistrate court and therefore is waived. See Illinois Central Gulf R. Co. v. R.R. Land, Inc., 988 F.2d 1397, 1407 (5th Cir.1993). 35 M-C also claims that Texas Business and Commercial Code § 2.201(c)(2) applies because RxP admitted the existence of a contract through its pleadings and live testimony. RxP states that much of the evidence that M-C relies on was not before the magistrate judge when he considered RxP's motion for summary judgment. In addition, RxP maintains that the evidence merely confirms that the parties were working toward an anticipated business relationship and does not confirm the existence of a contract. After reviewing the record we find that RxP's references to the agreement did not constitute an admission under 2.201(c)(2). Therefore, this section is inapplicable to the facts of this case. Thus, because a quantity term was not sufficiently stated in the agreement we hold that the statute of frauds is not satisfied. Characterization of the Agreement 36 We will not address whether the agreement is a valid distributorship agreement because M-C failed to a present this issue before the magistrate court. Consequently, M-C has waived that issue. See Illinois Central Gulf R. Co., 988 F.2d at 1407. 37 It is clearly established that the UCC applies to both option and requirements contracts. See W.H. McCrory & Co., Inc. v. Contractors Equipment and Supply Co., 691 S.W.2d 717 (Tex.App.-Austin 1985, writ ref'd n.r.e)(holding that an option contract to purchase a forklift must satisfy the statute of frauds); see Eastern Dental Corp. v. Isaac Masel Co., Inc., 502 F.Supp. 1354 (E.D.Pa.1980)(applying the statute of frauds requirement of a quantity term to requirements contracts). Therefore, the classification of the agreement as an option or requirements contract is irrelevant. This is because either characterization will result in the agreement violating the statute of frauds because the agreement fails to state a quantity term. Nevertheless, this Court classifies the agreement as an option contract. 38 The agreement cannot be characterized as a requirements contract. An essential element of a requirements contract is the promise of the buyer to purchase exclusively from the seller either the buyer's entire requirements or up to a specified amount. Mid-South Packers, Inc. v. Shoney's, Inc., 761 F.2d 1117, 1120 (5th Cir.1985). Without such a promise by the buyer, a requirements contract fails for lack of consideration. Id. at 1121. A requirements contract is a contract that, although it does not establish the amount that a buyer must purchase from the seller, prohibits the buyer from purchasing from other sellers. See Cardiovascular Services, Inc. v. West Houston Health Care Group, Inc., 1995 WL 523615 (Tex.App.-Hous. [1 Dist.] 1995). In this case, however, the agreement's language fails to contain a promise of exclusivity or demonstrate in any fashion that M-C was restricted from purchasing from other sellers. 39 In addition, in output and requirements contracts, the quantity of goods to be delivered under the contract is determined by the good faith output or requirements of the parties. This does not mean, however, that the statute of frauds' requirement of a quantity term is obviated since the inclusion of a quantity term is a mandatory requirement under the UCC. Eastern Dental Corp., 502 F.Supp. at 1363-64. While the quantity term in requirements contracts need not be numerically stated, there must be some writing which indicates that the quantity to be delivered under the contract is a party's requirements or output. Id. at 1364. "The writing must specify the quantity of goods to be sold.... For a requirements contract, the quantity to be specified is 'a party's requirements' ". Omega Engineering, Inc. v. Eastman Kodak Co., 908 F.Supp. 1084, 1090 (D.Conn.1995). The language in the agreement does not specify a quantity of M-C's requirements or RxP's output. Thus, we find that the correct classification of the agreement cannot be as a requirements contract. 40 We hold that the agreement is properly characterized as an option contract. An option contract has two components: 1) the underlying contract which is not binding until accepted; and 2) the covenant to hold open to the optionee the opportunity to accept. Casa El Sol-Acapulco, S.A. v. Fontenot, 919 S.W.2d 709, 717 n. 9 (Tex.App.-Houston. [14 Dist.] 1996, writ dism'd by agr.). "The purpose of a purchase option is to give the optionee the right to purchase, at his election, within an agreed period, at a named price, which presumably was considered satisfactory by the optionor in case the option should be exercised at any time during the option term."2 Maxwell v. Lake, 674 S.W.2d 795, 798 (Tex.App.-Dallas, 1984). To be binding, an option contract must: (1) be signed by the offeror; (2) recite a purported consideration for making the offer; and (3) propose an exchange on fair terms within a reasonable time. RESTATEMENT (SECOND) CONTRACTS § 87 (1979). We find that the agreement should be classified as an option contract because it was (1) was signed by RxP, the offeror; (2) the agreement states a consideration of the sum of ten dollars for making the offer; and (3) M-C had the option to purchase RxP Gas Kicker for five years from the date of the first order at the price of $1.25 per 2.5 ounce bottles and $1,280 per drum. We find these terms to be fair and within a reasonable time. Therefore, we conclude that the correct classification of the agreement is an option contract. 41 Although we agree with the magistrate judge in his conclusion that the agreement was properly characterized as an option contract, we find that there is no authority to support the proposition that the UCC does not apply to option contracts. The magistrate judge incorrectly cites Sinclair Refining Co. v. Allbritton, 147 Tex. 468, 218 S.W.2d 185 (Tex.1949), in support of his holding. As RxP notes, the UCC became effective in Texas as of June 30, 1966, but Sinclair was decided almost eighteen years before that date. Sinclair involved a dispute between a lessee and lessor over a purchase option clause in an oil and gas lease and is not applicable to our case. 42 Furthermore, Texas courts apply the UCC when dealing with option contracts. The Austin Court of Appeals held that an option to purchase a forklift was unenforceable because it failed to satisfy the statute of frauds. W.H. McCrory & Co., Inc., 691 S.W.2d at 721. The option, which was connected to an equipment lease, was characterized as a contract for the sale of goods. Id. at 720. The court held that the contract did not comply with Texas Business and Commercial Code § 2.201. Id. at 719-720. In addition, Texas courts have also held that option contracts involving the sale of securities must satisfy the statute of frauds. Kenney v. Porter, 604 S.W.2d 297, 302-04 (Tex.Civ.App.-Corpus Christi, 1980 writ ref'd n.r.e). 43 Moreover, other jurisdictions hold that option contracts are subject to the statute of frauds. Option contracts for the sale of land or personal property must satisfy the statute of frauds. See In re Air Vermont, Inc., 44 B.R. 446, 450 (Bankr.D.Vt.1984). Also, UCC § 2-201 has been held applicable to an alleged option contract involving the sale of an airplane. McCollum Aviation, Inc. v. CIM Associates, Inc., 446 F.Supp. 511, 513 (S.D.Fla.1978). IV. Conclusion 44 Although this Court would classify the agreement between RxP and M-C as an option contract, the agreement fails to sufficiently state a quantity term and therefore does not satisfy the statute of frauds. Thus, there is no valid and enforceable contract between M-C and RxP. Accordingly, this Court concludes that the magistrate judge's decision is incorrect and is hereby REVERSED and RENDERED. 1 Throughout this opinion there will be specific statutory references to the Texas Business and Commerce Code, which contains the applicable provisions of the Uniform Commercial Code as adopted by the Texas legislature 2 The following are illustrations of option contracts: 1 A promises B under seal or in return for $100 paid or promised by B that A will sell B 100 shares of stock in a specified corporation for $5,000 at any time within thirty days that B selects. There is an option contract under which B has an option; and 2 A offers to sell B Blackacre for $5,000 at any time within thirty days. Subsequently A promises under seal or in return for $100 paid or promised by B that the offer will not be revoked. There is an option contract under which B has an option. RESTATEMENT (SECOND) CONTRACTS § 25 (1979)	{ "pile_set_name": "FreeLaw" }
NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ WILDCAT LICENSING WI, LLC, Appellant v. ADIENT PLC, Appellee ______________________ 2016-1422, 2016-1425 ______________________ Appeals from the United States Patent and Trade- mark Office, Patent Trial and Appeal Board in Nos. IPR2014-00304, IPR2014-00305. ______________________ JUDGMENT ______________________ DONALD ROBERT DUNNER, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, DC, argued for appellant. Also represented by JEFFREY SALMON, Jeffrey W. Salmon Law LLC, Glenview, IL. MATTHEW B. LOWRIE, Foley & Lardner LLP, Boston, MA, argued for appellee. Also represented by GEORGE CHRISTOPHER BECK, CHASE JAMES BRILL, Washington, DC. ______________________ THIS CAUSE having been heard and considered, it is ORDERED and ADJUDGED: PER CURIAM (NEWMAN, MAYER, and LOURIE, Circuit Judges). AFFIRMED. See Fed. Cir. R. 36. ENTERED BY ORDER OF THE COURT December 20, 2016 /s/ Peter R. Marksteiner Date Peter R. Marksteiner Clerk of Court	{ "pile_set_name": "FreeLaw" }
321 So.2d 516 (1975) STATE of Louisiana, Appellee, v. Allen BROWN, Jr., Appellant. No. 56223. Supreme Court of Louisiana. November 3, 1975. 517 James D. Caldwell, Metairie, for defendant-appellant. William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Don K. Carroll, Dist. Atty., Lowen B. Loftin, Asst. Dist. Atty., for plaintiff-appellee. TATE, Justice. The defendant Brown was convicted of armed robbery, La.R.S. 14:64, and sentenced to thirty-nine years at hard labor. He appeals, relying upon five assignments of error. Deputy-Witnesses Lunching with Jurors The most substantial contention of error is presented by Assignment 5. It concerns the circumstance that two deputies, who were witnesses for the state, were allowed to eat at a table with two jurors who served in the case, immediately before or immediately after they were selected. The United States Supreme Court has held that the accused may be denied his constitutional right to a fair and impartial jury if placed in charge of, or permitted close and continual association during the trial with, law enforcement or other officers who are significant prosecution witnesses. Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965). The evidence shows that the already selected and the prospective jurors were cautioned not to discuss the case, and that, although not sequestered, they went in a group for lunch to a cafe near the court-house, 518 where an area was sectioned off for the jurors' group. A deputy sheriff or two was detailed to assist them and to assure their timely arrival back to the courtroom. During the time the jury was being selected, the chief deputy and another deputy, both of whom later testified in the case, were assigned this duty. However, after the second noon recess, when defense counsel informally objected to the trial court about the practice, the court immediately ordered the sheriff to assign the duty of associating with jurors only to deputies who had nothing to do with the evidence in the case. There was no evidence that the jurors or prospective jurors discussed the case. The deputies testified, without contradiction, that the conversation when they sat with one juror on one occasion and with two on another was about hunting and of a casual nature not related to the present case. Considering the prompt action by the trial judge immediately after the matter was brought to his attention, as well as the lack of evidence as to any improper influence, we are doubtful that the impropriety, of a casual nature, constituted prejudicial error. State v. Dotson, 260 La. 471, 250 So.2d 594 (1971). Nevertheless, we do not reach the substantive merits of the complaint. The evidence shows the defendant's counsel was fully aware of the circumstances and in fact informally complained of it to the judge at the time and obtained corrective action. Counsel was apparently satisfied at the time, which was before the selection of the jury was completed. Counsel did not make any formal objection at the time nor at any time during the trial. The defendant's first formal contention of error was made after the verdict, in his motion for a new trial. The belated complaint of error cannot on appeal be the basis by itself for reversal, for an alleged error to which no formal objection is made at the time is deemed waived. La.C.Cr.P. art. 841. Neither does a motion for a new trial lie for this alleged error, since its factual basis was discovered before or during the trial, La.C.Cr.P. art. 851(3), (4), unless the trial court in its discretion is of the opinion that the ends of justice would thereby be served, La.C.Cr.P. art. 851(5). The motion for a new trial was properly denied. We find no abuse of discretion in the trial court's denying the new trial sought for the above reason on this latter discretionary ground. Other Assignments The other assignments of error are without merit: Under the evidence and showing made, the motions for a change of venue (Assignment 1) and for severance of the trial of the two defendants (Assignment 2) were properly denied by the trial court, for the reasons stated in its excellent per curiams. The evidence of the kidnapping of a victim and another person following the robbery, and of incidents connected therewith, were admissible as an immediate incident and concomitant of the robbery, forming with it a continuous transaction, La.R. S. 15:448 (res gestae) (Assignment 3). The belated attack on the sufficiency of the bill of information made by motion to quash after the verdict raises no reversible error, since the technical insufficiency of an indictment or information may not be questioned after conviction, where as here the accused has been fairly informed of the charge against him by it. State v. James, 305 So.2d 514 (La.1974) (Assignment 4). Decree Accordingly, we affirm the conviction and sentence. Affirmed.	{ "pile_set_name": "FreeLaw" }
589 F.2d 300 Henry PRESTON et al., Plaintiffs-Appellees,andLocal 494, American Federation of State, County, andMunicipal Employees, AFL-CIO, Proposed InterveningPlaintiff-Appellant,v.James THOMPSON, Governor of the State of Illinois, etc., etal., Defendants-Appellants. Nos. 78-2401, 78-2516. United States Court of Appeals,Seventh Circuit. Argued Dec. 8, 1978.Decided Dec. 15, 1978. Joseph M. Cotugno, Dept. of Corrections, Chicago, Ill., for defendants-appellants. Gilbert Feldman, G. Flint Taylor, Jr., Chicago, Ill., for plaintiffs-appellees. Before SWYGERT, LAY1 and PELL, Circuit Judges. SWYGERT, Circuit Judge. 1 The principal question before us is whether the district judge abused his discretion when he issued a preliminary injunction which required officials in charge of the Pontiac Correctional Center to provide two showers a week to all inmates and a daily hour of yard recreation to prisoners incarcerated in the west cellblock. We hold that the district judge did not abuse his discretion. We also hold that the district judge did not err when, in conjunction with the preliminary injunction, he found as a matter of law that tensions at Pontiac subsided soon after the July 22 riot and that an "emergency" situation did not exist at the prison as of November 3, 1978. Finally, we conclude that the district court's denial of the motion to intervene filed by the prison guards' union did not constitute an abuse of discretion. 2 On July 22, 1978 a riot broke out among the prisoners incarcerated in the north and south cellblocks of the Pontiac Correctional Center. Three guards were killed, three other guards injured, and the buildings and facilities of the prison suffered massive damage. Pontiac prison officials, aided by outside tactical reinforcement, quickly restored order and immediately imposed a "deadlock" on the cellblocks of Pontiac prison. 3 Under the terms of a deadlock, prisoners are locked in their cells twenty-four hours a day. Meals are brought to the prisoners in their cells, and work assignments and recreation periods are cancelled. The deadlock at Pontiac has been marked by its length and severity. Normal prisoner grievance procedures were abolished from the day of the riot, July 22, to October 16, 1978. Prisoners received no showers until October. Family visits were banned from July 22 to October 14, and prisoners were not permitted to make any phone calls, even though this did not necessitate a prisoner's leaving his cell, until September 30. The correction officials did not begin the "shakedown" of the prison a search of each prisoner for weapons and contraband which is a preliminary step to a lifting of a deadlock until October 2. Even today, "normal" procedures have not been restored. Meal, work, and recreation time is either severely curtailed or non-existent, and the prisoners spend all but a few hours a week locked in their six by ten feet two-man cells. 4 On August 31, 1978 plaintiffs, prisoners incarcerated at Pontiac prison, brought an action for injunctive relief pursuant to 42 U.S.C. § 1983. They contended that the deadlock had continued longer than necessary for emergency, security purposes and was being maintained in violation of their constitutional rights. On September 7 plaintiffs moved for preliminary injunctive relief. The hearing on this motion commenced September 25; on September 29 the district judge continued the hearings to await the results of the shakedown which was to begin October 2 and was completed October 13. The hearing resumed October 16 and continued until October 25. On November 3 the district court issued a preliminary injunction against defendants. 5 The district court order of November 3 required Pontiac correction officials to restore family visitation and telephone privileges to their pre-riot status. The injunction also required defendants to provide two hours of yard recreation a week to prisoners in the north and south cellblocks. These requirements have been substantially complied with and have not been appealed. The injunction also directed defendants to produce a comprehensive plan for the reinstitution of pre-riot meal, work, and exercise routines. The defendants have presented the district court with a timetable for the restoration of these activities and the district judge has maintained jurisdiction over this element of his order to ensure that the execution of the timetable is constitutionally adequate. This provision of the district court's November 3 order was not appealed. 6 Defendants appeal from the district court's finding, made in conjunction with the November 3 order, that an emergency no longer exists at Pontiac prison. They also appeal the district court's requirements that all prisoners be permitted two showers a week and that prisoners in the west cellblock be given an hour of yard recreation daily. These provisions of the November 3 order have been stayed pending this appeal. 7 The district court's conclusions that tension at Pontiac decreased soon after the riot and that, as of November 3, no emergency existed justifying the continuation of the lock-up, can be overturned only if "clearly erroneous." Fed.R.Civ.P. 52(a). We hold that these findings were not clearly erroneous. The district judge heard numerous witnesses prison officials, guards, observers, psychologists, prisoners who testified regarding the level of tension and the potential security dangers in the prison. In this testimony, even some of the defendant officials seemed to acknowledge that an emergency no longer existed. Further, "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Fed.R.Civ.P. 52(a). 8 The district judge personally visited Pontiac prison, and later appointed a law clerk to observe the shakedown procedure. The trial court also took evidence about the character and frequency of unusual incidents occurring among the prisoners during the deadlock. The record reflects that these incidents decreased sharply after the first week in August, and that few of the incidents reported had anything to do with the potential security posture of the prison if the lock-up were lifted. The district court correctly observed that the existence of tension in a prison particularly in a prison in which the inmates are locked in double cells twenty-four hours a day does not mean that a security emergency exists. See generally La Batt v. Twomey, 513 F.2d 641, 648 (7th Cir. 1975). The district court's findings that tensions decreased soon after the riot and that an emergency did not exist as of November 3 are upheld. 9 Defendants also appeal the shower and west cellblock recreation provisions of the November 3 order. A trial court, however, has considerable latitude in shaping injunctive relief; as we have noted before: 10 Since an application for a preliminary injunction is addressed to the sound discretion of the trial court, appellate review is extremely limited. Hulburt Oil and Grease Co. v. Hulburt Oil and Grease Co., 346 F.2d 260 (7th Cir.), Cert. denied, 382 U.S. 835, 86 S.Ct. 78, 15 L.Ed.2d 77 (1965); Scherr v. Volpe, 466 F.2d 1027 (7th Cir. 1972). 11 American Medical Assoc. v. Weinberger, 522 F.2d 921, 924 (7th Cir. 1975). The district court's injunction must be viewed in the context of the court's duty to intervene in prison administration if that administration violates constitutional norms. Courts should be hesitant to interfere with the discretion afforded prison officials, but "in proper cases a federal court can, and must, compel state officials or employees to perform their official duties in compliance with the Constitution of the United States." Newman v. State of Alabama, 559 F.2d 283, 288 (5th Cir. 1977), Cert. denied, --- U.S. ----, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978). See also Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). And once a constitutional violation is demonstrated, "the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 115, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971). See also Newman, supra at 288. 12 The district court, having concluded that violations of due process had occurred in the course of the deadlock,2 had considerable discretion to devise a remedy. The shower and west cellblock recreation provisions of the limited preliminary relief ordered by the district court on November 3 do not constitute an abuse of this discretion. The fact that these elements of the relief package may go beyond the constitutional minimum does not mean that the court lacks the authority to order them to remedy a constitutional violation. Swann, supra; Newman, supra. Nor do defendants' assertions that these programs will create debilitating and dangerous staffing problems compel us to overturn the district court. The district court heard the evidence about staffing offered by defendants at the preliminary hearing and concluded that this evidence was outweighed by the need to restore some of the normal prison privileges at Pontiac in order to remedy the constitutional violations. The defendants cannot rely on fiscal and administrative difficulties to frustrate a district court's mandate to remedy constitutional violations. See, e. g., Newman, supra At 288. And finally, since this is preliminary relief and still within the jurisdiction and discretion of the district judge, the precise provisions of the order are, if necessary, subject to reconsideration and revision by the district court.3 13 We also hold that the district court did not abuse its discretion when it denied the union's motion to intervene. The union did not present its motion until November 28, over three weeks after the preliminary relief was granted. The prison guards were aware of the litigation; in fact, many of them participated as witnesses for the defendants. They also knew that the relief sought by plaintiffs, by increasing prisoner movement, could impinge on the interests they now assert. Yet the union did nothing until three weeks after the State received an adverse decision. The Supreme Court has noted: 14 Timeliness is to be determined from all the circumstances. And it is to be determined by the court in the exercise of its sound discretion; unless that discretion is abused, the court's ruling will not be disturbed on review. 15 NAACP v. New York, 413 U.S. 345, 366, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 648 (1973). Under these circumstances, we hold that the district court's order denying the union's motion to intervene was proper. See EEOC v. United Air Lines, Inc., 515 F.2d 946 (7th Cir. 1975).4 16 In conclusion, we affirm the district court's November 3 order and its denial of the union's motion to intervene. The stay on the enforcement of the contested provisions of the order is vacated, effective immediately. The case in its entirety is remanded to the district court for continued adjudication of plaintiffs' claims. 17 PELL, Circuit Judge, dissenting in part, concurring in part. 18 The present appeal does not involve one of the rather frequently filed prisoner cases where in the normal context of prison life there has been a claimed unconstitutional interference with matters such as access to legal materials, communication rights with the courts, counsel or family, or needed medical care; most of these factual situations probably not being of a nature which the Founding Fathers would have had in mind as constituting cruel and unusual punishment but which in appropriate cases have been the recipient of judicial protection under the aegis of due process.1 19 It is true that in the present appeal the claimed deprivations for the most part could be similarly categorized with those mentioned above. The trenchant difference is that the deprivations here involved did not come into being in the normal context of prison life but instead followed a vicious attack by inmates on six prison officers which resulted in the deaths of three of them and the serious injury of three others as well as substantial damage and, indeed, destruction of physical facilities of the prison complex. Following the cessation of the rioting, other officers, not surprisingly, left employment and despite the bringing of officers from other prisons and the employment of new, but inexperienced, personnel it appears clear to me from the record of this case that a complete and immediate return to conditions as they existed prior to July 22, which the prison authorities flatly assert is impossible, can reasonably be expected to produce further real danger to the life and safety not only of the prison employees but to those confined therein because of having been found to be guilty of serious crimes against society. I decline to add a burning match to the fuse and therefore respectfully dissent. 20 With all due respect to the district court judge who heard testimony resulting in more than 2000 pages of transcript and to my fellow members of the panel of this court, who despite the 13 volumes of transcript, are prepared forthwith to affirm the district court's order of November 3 across the board, I can only regard this litigation insofar as it compels compliance with that part of the district court's order which this court previously had stayed as being unwise second-guessing of the efforts of those on the scene. It is they who have the expertise in the matter of prison administration and who appear to me to be attempting in good faith to restore as rapidly as possible normalcy in a frighteningly dangerous situation. 21 Both this court and the district court, in my opinion, have given insufficient heed to the undoubted wisdom and verity of Mr. Justice Powell's words in Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974): 22 The Herculean obstacles to effective discharge of these duties (of prison administrators) are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities. (Footnote omitted.) 23 The majority opinion of the panel of this court, while paying respect to the frequently stated principle that courts should be hesitant to interfere with the discretion afforded prison officials, disregards what I deem to be an extremely significant aspect of this case as it was presented to us. Despite the statements in the majority opinion that only portions of the November 3 order were being appealed, the notice of appeal was not so limited, and in both briefs and oral argument the state defendants asked that the judgment of the district court granting the preliminary injunction be reversed in its entirety. 24 Notwithstanding their position that the injunction in toto constituted an improper exercise of judicial discretion, when the emergency appeal came to this court, the state authorities limited their request for a stay pending appeal to only two parts of the injunction order, namely, that all prisoners be provided two showers per week and each inmate of the West cellhouse be provided one hour of yard recreation per day. These might seem, on first blush, not to be of great consequence to the institution but of much importance to those confined. The prison authorities do not regard them lightly, however, and have unswervingly and emphatically averred impossibility of performance. This has been stated in the context of an expressed desire to return as soon as possible to conditions as they were before the riot, accompanied by a detailed explanation of the plan for a step-by-step implementation of that return. 25 As an initial matter, noting that customarily when we receive an appeal challenging a preliminary injunction grant, the request is for a stay of the entire decree, I regard the fact that the attack here was as to only two phases of the order to be indicative of good faith and responsible advocacy on the part of the authorities. The defendants state that they did not seek a stay of the other provisions because they were either in compliance or substantial compliance prior to the issuance of the November 3 order.2 26 Additionally, the defendants point out that the ordered recreational schedule would spread supervisory personnel to the point at the present time of insufficient supervision to prevent disturbances. The movement of inmates of two cellhouses had contributed substantially to the severity of the July 22 riot. Further, the yard recreation for the West cellhouse occupants as ordered would require cessation of the program underway for the North cellhouse with resultant increase of tensions there. 27 In its conclusions of law the district court stated that the "number of staff personnel that are required to provide showers, which are the ordinary degree of sanitation, is limited in number." The court, however, made no finding that the available staff, considering all other demands on the officers' time, was even sufficient to meet the indefinite "limited" quantity. Likewise there was no finding that two showers, although concededly desirable, were necessary immediately. The plan which had been filed by the prison authorities on November 1 provided for one shower per week for all inmates. While this scarcely qualifies for a country club atmosphere, it, on the other hand, would appear to meet minimal constitutional standards. Sostre v. McGinnis, 442 F.2d 178, 186 (2d Cir. 1971). The district court specifically found that the removal of a deadlock must be gradual; yet the requirement for immediate implementation when there was no showing of practicable possibility assumes aspects of imposing individual judicial concepts for improvement of the prison system. The aftermath of a riot such as that which occurred at Pontiac would not seem to be the appropriate time or context for reforming the system more expeditiously than practicality permits. 28 It is to be regretted that the necessarily slow and deliberate return to normalcy following the traumatic events of July 22 must undoubtedly adversely affect some prisoners who were innocent of any wrongdoing in relation to the rioting activity. It perhaps, however, is the time also to remember that normalcy as to a prison still contemplates confinement for transgression against societal rules of behavior. Whatever other objectives our prison system may hope to accomplish one of them remains that of punishment and as to that the very fact of involuntary confinement precludes a promise of a Rose Garden. 29 I am not dissenting from that part of the majority opinion with regard to the matter of the intervention by the Union representing the Pontiac guards primarily because of the belatedness of the attempted intervention and in view of the fact that guards individually did have input in the lengthy hearings in the district court. Despite my not dissenting at this time I express the hope that if the district court's handling of this case continues on any substantial time basis the court will see to it that the guard position on lack of security is fully developed as a part of the overall picture. While I think that the matter of prison reform properly belongs to the executive and legislative branches,3 if the judicial branch does become involved, as it has here, then all pertinent matters bearing on the situation should be given appropriate consideration. In the Pontiac picture, I regard the lack of security for the guards as having a crucial bearing on the return to normalcy. 30 On the principal matter here involved, in sum, while we are reviewing an exercise of discretion, it is a discretion which the cases require should be exercised sparingly and cautiously. In the explosive atmosphere fairly reflected by the record as existing at Pontiac, it appears to me that the discretion was abused as to the two items which had previously been stayed by this court. Irrespective of whether an emergency (itself a fluid term) continues to exist at Pontiac, the record clearly demonstrates in my opinion that the situation in the prison is such as to preclude at this time a complete return to conditions as they existed prior to July 22. Finally, I would hope that on remand the district court will give full consideration to the majority's suggestion that "the precise provisions of the order are, if necessary, subject to reconsideration and revision by the district court." 1 The Honorable Donald P. Lay, United States Circuit Judge for the Eighth Circuit, sitting by designation 2 The district court based its preliminary relief on due process violations. A determination of plaintiffs' Eighth Amendment claims awaits trial on the merits 3 Defendants also attack the injunction on the grounds that the district judge failed to find that there had been irreparable harm, that there was likelihood of success on the merits, that the harm to plaintiffs of denying the injunction would be greater than the harm to defendants of granting it, and that the public interest would be served. The existence of a continuing constitutional violation constitutes proof of an irreparable harm, and its remedy certainly would serve the public interest. See Burns v. Elrod, 509 F.2d 1133 (7th Cir. 1975), Aff'd, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Swann, supra. The record compels the conclusions that plaintiffs are likely to succeed on the merits and that the harm to the prisoners of rejecting this relief would be greater than the harm to defendants of granting it 4 The union's motion to strike the preliminary relief for failure to join it as an indispensable party likewise fails. See Kirkland v. New York State Dept. of Correctional Serv., 520 F.2d 420 (2d Cir. 1975), Cert. denied, 429 U.S. 823, 97 S.Ct. 73, 50 L.Ed.2d 84 (1976) 1 It is to be noted in the present litigation that there has been no determination made that the prisoners' Eighth Amendment rights to be free from cruel and unusual punishment have been violated 2 The fact that a party does not seek a stay of all parts of an injunction should not, it would seem, prevent that party from seeking a complete invalidation on appeal. Nevertheless in view of the apparent lack of burden to the authorities, the possible mootness, and the fact that only a preliminary injunction is involved, I am limiting my dissent to the two points which were the subject of a stay in this court 3 It is patent that the prison system in Illinois is past due for an extensive overhaul by someone with a substantial increase in the expenditure of necessary public funds	{ "pile_set_name": "FreeLaw" }
Opinion issued March 26, 2013 In The Court of Appeals For The First District of Texas ———————————— NO. 01-13-00090-CV ——————————— RICHLENE JOANNIDES, DEPENDENT ADMINISTRATRIX FOR ESTATE OF ANGELO JOANNIDES, Appellant V. VERONIKA JOANNIDES AND SHAWN MAYFIELD, Appellees On Appeal from the County Court at Law No. 3 Fort Bend County, Texas Trial Court Cause No. 06-CPR-019543 MEMORANDUM OPINION Appellant, Richlene Joannides, attempts to appeal from an order denying her motion to recuse the trial court judge. Appellees, Veronika Joannides and Shawn Mayfield, have moved to dismiss this appeal for lack of jurisdiction. We dismiss the appeal. Richlene Joannides filed a motion in the trial court to recuse the trial court judge, the Honorable Susan G. Lowery. The motion was referred to the regional presiding judge, the Honorable Olan Underwood, who denied the motion. Appellant timely appealed. In Veronika Joannides and Mayfield’s motion to dismiss, they argue that, because there is no final judgment in this case, this is an interlocutory appeal over which we have no jurisdiction. Richlene Joannides also filed a “Motion for Voluntary Dismissal.” In her motion, she “moves the Court to dismiss this Appeal pending completion of the case below and pending final judgment,” states that “appeal is proper on final judgment,” and “asks the Court to dismiss this appeal without prejudice to re-file after entry of final judgment on the merits of the case,” thereby conceding that this is an interlocutory appeal. Texas appellate courts only have jurisdiction to immediately consider appeals from interlocutory orders if a statute explicitly provides appellate jurisdiction. Stary v. DeBord, 967 S.W.2d 352, 352–53 (Tex. 1998). In the context of appeals from orders denying recusal motions, the legislature has unambiguously stated that a party may appeal from an order denying a motion to recuse only after final judgment has been entered. See TEX. GOV’T CODE ANN. 2 § 25.00255(j) (West Supp. 2012) (“After a statutory probate court has rendered the final judgment in a case, a party may appeal an order that denies a motion for recusal or disqualification as an abuse of the court’s discretion.”); TEX. R. CIV. PROC. 18a(j)(1)(A) (“An order denying a motion to recuse may be reviewed only for abuse of discretion on appeal from the final judgment.”); Gonzalez-Guilbot v. Guilbot-Serros de Gonzalez, 367 S.W.3d 442, 447 (Tex. App.—Houston [14th Dist.] 2012, pet. filed) (holding that court lacked jurisdiction over interlocutory appeal from order denying tertiary recusal motion in probate case); see also TEX. CIV. PRAC. & REM. CODE ANN. § 30.016(d) (West 2008) (authorizing appellate review of order denying tertiary recusal motion, defined as third or subsequent motion for recusal or disqualification filed against district court or statutory county court judge by same party in case, only after final judgment). Accordingly, we grant Veronika Joannides and Mayfield’s motion and dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a). We dismiss all other pending motions as moot. PER CURIAM Panel consists of Chief Justice Radack and Justices Higley and Brown. 3	{ "pile_set_name": "FreeLaw" }
549 N.E.2d 400 (1990) Tyrus ARMSTEAD, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. No. 82A01-8909-CR-361. Court of Appeals of Indiana, First District. February 7, 1990. Russell T. Woodson, Evansville, for defendant-appellant. Linley E. Pearson, Atty. Gen., Danielle Sheff, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee. BAKER, Judge. STATEMENT OF THE CASE Defendant-appellant, Tyrus Armstead (Armstead), was convicted of battery, a Class D felony,[1] resisting law enforcement, a Class D felony,[2] and two counts of resisting law enforcement, a Class A misdemeanor.[3] He appeals the trial judge's jurisdiction, one misdemeanor conviction, and the resisting law enforcement felony conviction. We affirm in part and reverse in part. STATEMENT OF THE FACTS On April 27, 1988, Detective Clayton Grace (Detective Grace) and Officers Phil George (Officer George) and Kent Walker (Officer Walker) of the Evansville Police Department responded to a radio dispatch report that three black males were stealing aluminum siding. Armstead and a companion, both black males, approached the officers 401 as they questioned Armstead's brother about the theft. Armstead's brother had just named his two accomplices when Armstead and the companion, who was one of the accomplices, appeared. Detective Grace sent Officer George to ask the men's names. Armstead backed away from Officer George, began yelling obscenities at him, and assumed a pugilistic stance. Officer George told Armstead he needed to talk to him, but Armstead remained confrontational and appeared prepared to flee. Detective Grace and Officer Walker came up behind Officer George and Detective Grace told Armstead repeatedly that he could be arrested if he did not calm down. Armstead backed into a chain link fence and continued to yell. Detective Grace said Armstead was under arrest and ordered him to turn around to be searched for weapons. When Armstead failed to comply, Detective Grace attempted to turn him around. At that moment, Armstead hit Officer Walker in the nose, breaking it. A struggle ensued in which all three policemen were injured. The incident resulted in Armstead's arrest. After a trial by jury, Armstead was convicted of Class D felony battery and Class D felony resisting law enforcement against Officer Walker, and of Class A misdemeanor resisting law enforcement against Detective Grace and Officer George. Armstead appeals. ISSUES Armstead raises several issues for our review which we restate as follows: I. Whether the special judge had jurisdiction over the case. II. Whether a single affray between a suspect and more than one police officer can lead to multiple charges and convictions for resisting law enforcement. III. Whether convictions for Class D felony resisting law enforcement and Class D felony battery arising from a single affray amount to double jeopardy. DISCUSSION AND DECISION I. Armstead first argues Judge O'Connor lacked authority to preside over the trial. Generally, causes may be transferred from the Vanderburgh Circuit Court to the Vanderburgh Superior Court under IND. CODE 33-5-43-27. While the record does not explain how Judge O'Conner acquired authority over this case, Armstead failed to object to Judge O'Conner's jurisdiction before this appeal. A defendant's failure to object timely to a special judge's jurisdiction results in waiver of the issue. Morrison v. State (1989), Ind. App., 542 N.E.2d 564. Armstead's failure to object at trial is tantamount to acquiescence to Judge O'Connor's authority. Accordingly, the judge had jurisdiction. II. Armstead next argues he cannot be held liable for more than one count of resisting law enforcement when the charges stem from a single event.[4] We agree. The offense of resisting law enforcement is codified at IND. CODE 35-44-3-3. The offenses set forth in title 35, art. 44, ch. 3 do not constitute crimes against the person. Rather, they are interferences with governmental operations constituting offenses against public administration. A person who violates IND. CODE 35-44-3-3 harms the peace and dignity of the State of Indiana and its law enforcement authority. The harm caused by one incident is the same regardless of the number of police officers resisted. It is the act of resisting duly constituted authority which the statute prohibits, not resisting individual representatives of that authority.[5] 402 The situation before us is akin to the crime of robbery.[6] A robbery of bank property harms only the bank as a single entity, regardless of the number of bank employees forced to relinquish the property. Williams v. State (1979), 271 Ind. 656, 669, 395 N.E.2d 239, 248, 249. Similarly, in the context of resisting law enforcement, only one entity is harmed as a result of a single incident, regardless of the number of law enforcement officers involved. Accordingly, unless more than one incident occurs, there may be only one charge. See Brumbaugh v. State (1986), Ind., 491 N.E.2d 983; Roberson v. State (1982), Ind., 430 N.E.2d 1173; Shepler v. State (1980), 274 Ind. 331, 412 N.E.2d 62. Under IND. CODE 35-44-3-3 any of several acts can constitute a separate offense of resisting law enforcement. Accordingly, when more than one incident has occurred, this court and our supreme court have upheld multiple resisting law enforcement convictions. In Pettit v. State (1982), Ind. App., 439 N.E.2d 1175, this court upheld the defendant's two resisting law enforcement convictions when the defendant had threatened one officer with a rifle and later fled by car from several officers. More recently, our supreme court reached a similar decision. In Parks v. State (1987), Ind., 513 N.E.2d 170, the defendant stole a police car and later attempted to use the car's shotgun against an officer. The court upheld his convictions on two counts of resisting law enforcement, based on the separate and discrete acts of taking the car and using the shotgun. Unlike Parks and Pettit, the case before us involves only one act; none of the discrete incidents characterizing Parks and Pettit are present. All three of Armstead's resisting law enforcement convictions stem from the single affray with the police. Accordingly, two of those convictions must be reversed. Armstead urges us to reverse his convictions for resisting Officers George and Walker, leaving only the conviction for resisting Detective Grace because he was the officer who actually placed him under arrest. Armstead's distinction is erroneous. In Stears v. State (1980), Ind. App., 412 N.E.2d 81, this court held IND. CODE 35-44-3-3(a)(3) allowed a police officer to give a visual order to stop. No speech is required for a suspect to be answerable if the circumstances surrounding the incident "indicate that a reasonable person would have known he had been ordered to stop." Id., at 83. When a defendant harms a single entity as a result of a single incident, we believe he should be answerable for the greatest harm stemming from that single incident. With respect to resisting law enforcement, the felony represents the greatest harm Armstead perpetrated. Accordingly, the felony conviction is affirmed and the misdemeanor convictions are reversed. III. Armstead was convicted of both battery, a Class D felony, and resisting law enforcement, a Class D felony, for hitting Officer Walker in the nose. He argues these two convictions amount to double jeopardy in violation of the fifth amendment of the U.S. Const. and art. I, § 14 of the Constitution of the State of Indiana.[7] Armstead argues one act cannot serve as the basis for two convictions. The single act, however, is not dispositive of a double jeopardy analysis. "Two offenses are the same for the purpose of double jeopardy when the same act constitutes a violation of two distinct statutory provisions which do not require proof of an additional fact." *403 Christie v. State (1989), Ind. App., 536 N.E.2d 531, 538 (citing Blockburger v. United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306). Where the State must prove an additional fact to secure the second conviction, a single act can serve as the basis for both convictions. In Indiana, resisting law enforcement is a Class D felony when the person committing it "inflicts bodily injury on another person." IND. CODE 35-44-3-3(b)(1). To sustain a conviction, the State must prove bodily injury to "another person." The statute does not require that person to be a law enforcement officer; its plain language contemplates injury to anyone. Battery is a Class D felony when it results in bodily injury to a law enforcement officer.[8] To sustain a conviction, therefore, the State must prove the injured person was a law enforcement officer. Here, while resisting the law enforcement efforts of three policemen, Armstead inflicted bodily injury on a person, Officer Walker. These facts were sufficient to sustain Armstead's Class D felony resisting law enforcement conviction. To sustain Armstead's Class D felony battery conviction, the State had to prove that Officer Walker was in fact a law enforcement officer. The jury found the State proved this fact and we will neither reweigh the evidence nor judge the credibility of witnesses on review. Jones v. State (1988), Ind., 518 N.E.2d 479. The State has satisfied the rule of Blockburger and, accordingly, Armstead has not been exposed to double jeopardy. The conviction and sentence on the felony battery charge and the felony resisting law enforcement charge are affirmed. The convictions and sentences on the misdemeanor resisting law enforcement charges are reversed. RATLIFF, C.J., and CONOVER, J., concur. NOTES [1] IND. CODE 35-42-2-1(2)(A). [2] IND. CODE 35-44-3-3(b)(1). [3] IND. CODE 35-44-3-3(a)(1). [4] Armstead argues the multiple convictions for resisting law enforcement must be reversed because there was insufficient evidence to support them and because they violate the double jeopardy provisions of the fifth amendment of the U.S. Const. and art. I, § 14 of the constitution of the State of Indiana. Because we decide the issue on the basis of statutory intent, we reach neither of these arguments. [5] Armstead was convicted of battery, a Class D felony, under IND. CODE 35-42-2-1(2)(A), for hitting Officer Walker in the nose. This is the proper charge for the State to bring against someone who has inflicted bodily injury on an individual officer. Moreover, because battery is a crime against the person, and our legislature has determined that law enforcement officers deserve special protection, battery is a more serious offense when an officer is battered while acting in his official capacity. See e.g. Parks v. State (1987), Ind., 513 N.E.2d 170. [6] IND. CODE 35-42-5-1. [7] While Armstead's argument on this point is obtuse and thinly constructed at best, the State's brief provides us with no guidance at all. Indeed, the State entirely ignores the double jeopardy issue. [8] IND. CODE 35-42-2-1(2)(A).	{ "pile_set_name": "FreeLaw" }
873 F.Supp. 1465 (1995) Amanda CHAPARRO, Plaintiff, v. IBP, INC., Defendant. Civ. A. No. 93-2200-GTV. United States District Court, D. Kansas. January 4, 1995. 1466 1467 1468 David O. Alegria, McCullough, Wareheim & La Bunker, P.A., Topeka, KS, for plaintiff. Terri Savely Bezek, John J. Jurcyk Jr., Frank D. Menghini, Douglas M. Greenwald, Gregory P. Goheen, McAnany, Van Cleave & Phillips, P.A., Kansas City, KS, Katherine E. Rich, Holman, McCollum & Hansen, P.C., Prairie Village, KS, for defendant. MEMORANDUM AND ORDER VAN BEBBER, District Judge. Plaintiff in this diversity jurisdiction suit against her former employer alleges that defendant wrongfully discharged her in violation of Kansas public policy. Plaintiff contends that her termination was in retaliation for plaintiff's exercise of her rights under the Kansas Workers Compensation Act. Defendant argues that plaintiff's termination was based on an excessive number of unexcused absences. The case is before the court on plaintiff's motion for partial summary judgment (Doc. 48) and defendant's motion for summary judgment (Doc. 53). Both motions address the issue of defendant's liability for retaliatory discharge. For the reasons set forth below, plaintiff's motion is denied and defendant's motion is granted in part and denied in part. I. Facts The following summary contains uncontroverted facts as established pursuant to Fed. R.Civ.P. 56 and in accordance with D.Kan. Rule 206(c). Immaterial facts and factual averments not properly supported by the record are omitted. Plaintiff Amanda Chaparro was hired by defendant IBP, Inc., which operates a meat processing plant, on April 25, 1989. Her first job was trimming cow tails after they had been removed and washed. In December 1990, plaintiff bid for a job dropping tails which involved cutting the tails off cows and throwing them down a chute to the washers and trimmers. One reason that plaintiff wanted to change jobs was that she felt dropping tails would be easier on her hand which had begun to swell and cause discomfort. IBP transferred her to the job of dropping tails in February 1990. When plaintiff returned to work on September 4, 1990, after a 5-month maternity leave, she was not immediately placed in her former job dropping tails. The record is unclear as to what job she was assigned when she first returned, but plaintiff complained to the dispensary nurse on September 27, 1990, that the new job was causing pain and swelling in her left hand. Plaintiff was returned to her old job of dropping tails on September 28, 1990. Plaintiff continued to have pain and swelling in her left hand and she returned to the dispensary for treatment on October 19, October 22, November 1, and November 6, 1990. The first absence which is relevant to plaintiff's ultimate discharge from employment occurred on October 29, 1990. That evening she left work to attend a scheduled doctor's appointment. She did not return to work that evening, nor did she call in to report that she would not be returning. On October 30, 1990, plaintiff returned to work with a doctor's note which stated that plaintiff had been under the doctor's care and would be unable to work until November 1, 1990. Plaintiff was then assessed an unexcused absence for failing to return to work or call in after her doctor's appointment the preceding day. Plaintiff discussed the unexcused absence with her supervisor who refused 1469 to excuse the absence. She appealed this decision to Rick Nimrich, personnel department manager, who upheld the supervisor's action. IBP's attendance policy calls for treating absences as either excused or unexcused. An employee is subject to discharge after incurring three unexcused or 12 excused absences in a 12-month period. IBP has no written procedure addressing the proper actions an employee must take when, after receiving permission to be absent for a doctor's appointment, the doctor visit is not completed until after the employee's regular shift. Neither do IBP rules specifically require an employee to return to work after leaving early for personal reasons. IBP rules call for treating absences due to doctor visits as excused absences. The dispensary nurses continued to monitor plaintiff's condition, and on November 5, 1990, plaintiff was assigned to light duty on the paint crew and her supervisor was told that plaintiff should minimize the use of her left hand. On November 20, 1990, plaintiff reported that she was no longer having problems with her hand, and she was returned to her regular job of dropping tails on November 26, 1990. She continued to work at this job until December 7, 1990. On December 4, 1990, plaintiff again reported problems with her left hand, and the dispensary nurse scheduled a doctor's appointment in order to have her hand examined. Plaintiff visited Dr. Welch on December 7, 1990, and was diagnosed as having work-related left carpal tunnel syndrome. Dr. Welch told plaintiff she should not use her left hand at work and also relayed this information to IBP. Plaintiff was also given a splint to wear at all times. Upon receipt of this information, Nurse Garcia in IBP's dispensary explained to plaintiff which available jobs would accommodate the restrictions. Plaintiff was then assigned to the labeling department where she was given the job of labeling boxes using her right hand. This assignment lasted through March 12, 1991. During this period, Dr. Welch added a restriction that plaintiff should work only in a warm environment. The doctor also diagnosed plaintiff as having work-related DeQuervain's syndrome of the left wrist, and added a restriction that plaintiff was not to lift more than 20 pounds and was to wear an Ace bandage at work without the splint. During this period, plaintiff also continued to receive cumulative trauma disorder exams at the dispensary. On March 5, 1991, plaintiff filed a workers compensation claim, and IBP received notification of the claim on March 8, 1991. In her claim plaintiff sought entitlement to temporary total disability benefits along with job accommodation and vocational rehabilitation evaluation. On March 15, 1991, plaintiff was assigned to the laundry facility as part of the "welfare cleanup crew" after she reported to the nurse that the cold was affecting her hands. This job required plaintiff to hang laundry in employees' lockers and enabled her to work in a warmer environment. She continued in this job until April 11, 1991, when plaintiff was transferred to the low rendering operation. In this job plaintiff was required to operate, mainly by pushing buttons, a machine which ground up bones and fat. Plaintiff apparently had no physical problems in performing either the welfare cleanup or low rendering operator jobs. On May 2, 1991, Nurse Shipley made an entry in plaintiff's dispensary records stating that plaintiff was to continue in the welfare cleanup job. The entry also stated that plaintiff was not to lift, push, pull, or carry over 10 pounds, and was not to grip, pinch, or reach above her shoulders. On May 6, 1991, Nurse Shipley reassigned plaintiff to the job of wrapping rounds, also known as hanging plastic on rounds. This job entailed taking plastic off a roll and wrapping a round with it. Nurse Shipley's records show that the reason for the change was "crewing," a term that refers to the process of matching available personnel to positions needing to be filled. Plaintiff first complained to Nurse Shipley on May 6, 1991, that she could not wrap the rounds with one hand because it was too hard to take the plastic off the roll and also put it on the round with only one hand. Plaintiff also asked the nurse to take her off 1470 the hanging plastics job because the overhead reaching motions it required were hurting her arm. In response, Nurse Shipley told plaintiff to do the best she could with one arm, despite the fact that the nurse knew that the job required the use of both hands. At plaintiff's urging, Nurse Shipley phoned Dr. Welch on May 9, 1991, to ascertain whether the job was within plaintiff's restrictions. Based on the description of the job given by the nurse, the doctor determined that the wrapping rounds job fell within plaintiff's work restrictions and authorized her to continue on that job. During that telephone conversation, Nurse Shipley also told the doctor that it was not unusual for plaintiff to disappear for long periods of time during which she could not be found. Nurse Shipley does not recall the source of this information or the reason that she relayed it to the doctor. Plaintiff also visited Dr. Welch later the same day, May 9, 1991. According to the doctor's notes, plaintiff explained what the job entailed and Dr. Welch concluded that the job may require more pulling and straining than the doctor had inferred from Nurse Shipley's description. The doctor concluded, however, that the job was within plaintiff's restrictions. On May 10, 1991, plaintiff visited the dispensary with complaints of fever, achiness, nausea, dizziness, and vomiting. Nurse Shipley sent plaintiff home because of her illness, told her to see her personal physician, to return to work only after getting a doctor's release, and to call in to work every day. Plaintiff alleges that she told the nurse she could not call in every day because she did not have a phone and the nearest phone to which she had access was two or three blocks away. Nurse Shipley does not recall plaintiff making this statement, but the nurse was aware that plaintiff's telephone had been disconnected when they attempted to call plaintiff earlier, on April 15, 1991. Plaintiff, in her deposition testimony, alleges that she called in to work on May 11, 1991, and left a message on the answering machine that receives absentee calls. According to plaintiff, the message she left stated that she had made a doctor's appointment for May 13, the earliest available time, and that she would be back to work on that day after the appointment, or at the latest on May 14, 1991. IBP's records of employee absentee calls made to the answering machine in May 1991 are no longer available. Plaintiff's attendance calendar, maintained by IBP's personnel department, shows that the number "12" the code for an excused absence had been written in the space for May 11. This was changed at some point to an "11", the code for a "no call" or "no show." Plaintiff's supervisor does not recall reporting to the personnel office that plaintiff's absence on May 11 was excused. On the morning of May 14, 1991, plaintiff returned to the dispensary with a doctor's release form allowing her to return to work. The nurse sent plaintiff back to work. Later that day the decision was made to treat plaintiff's absences on May 11 and May 13 as unexcused because of her alleged failure to call in. The personnel manager, Rick Nimrich, also made the decision to terminate plaintiff's employment because these two unexcused absences, added to the unexcused absence on October 29, 1990, resulted in three unexcused absences in a 12-month period. Plaintiff discussed the decision to terminate her employment with Mr. Nimrich and told him that in the past she had not been required to call in every day during an illness of which the employer was aware. Plaintiff also claims that she told Mr. Nimrich that she did call in on May 11. Mr. Nimrich refused to remove any of the absences from plaintiff's record or to recategorize any of them as "excused." If any one of the three absences had been excused, plaintiff's absenteeism would not have violated defendant's attendance policy and she would not have been terminated. The only reason for plaintiff's termination, according to IBP, was that she incurred three unexcused absences in a 12-month period. She was not terminated for any inability to perform her job, and there was no indication that she was not fully capable of performing all the tasks assigned to her. Plaintiff's supervisor testified that based upon the 30, 60, and 90-day quality of work evaluations, plaintiff had been a satisfactory employee. IBP has light duty jobs available, such as picking bone chips and fat off the 1471 belt, which would accommodate workers with restrictions similar to plaintiff's. IBP supervisors and managers meet at a weekly safety meeting during which information about work-related injuries from the previous week are discussed. The supervisors and managers also meet for a quarterly safety meeting during which strategies for reducing workers compensation costs are discussed. Occasionally, IBP nurses and lawyers representing the company in workers compensation cases discuss those cases. No one at IBP ever told plaintiff she was being terminated because she had filed a workers compensation claim, and plaintiff has not seen any written evidence to that effect. Between May 14, 1991, and September 1992, plaintiff was not employed and made no applications for employment. She left for Mexico in June 1991, and returned to the United States in March 1992. Plaintiff was released from medical treatment on September 14, 1992, and plaintiff then worked for one month as a grocery clerk. Between October 1992, and May 1993, plaintiff was not employed, nor did she apply for employment. Plaintiff worked at a restaurant from May 1993, until December 1993, and is currently employed at a fast food restaurant where she began working in February 1994. After her termination, plaintiff pursued her workers compensation claim. During this time plaintiff made application for vocational rehabilitation benefits in order to receive training for a new job. In January 1993, plaintiff was examined by Dr. Donald Harder in connection with her workers compensation case. Dr. Harder told plaintiff that she would be restricted from repetitive movements, grasping and handling tools, and work that required pinching. Dr. Harder's report stated that he believed plaintiff was unable to return to work at IBP or any meatpacking facility. II. Summary Judgment Standards Under Fed.R.Civ.P. 56(c), summary judgment is proper only if the evidence, reviewed in the light most favorable to the plaintiff, the party opposing the motion, demonstrates 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. See Deepwater Inv., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be discharged by showing that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). A "material" fact is one "that might affect the outcome of the suit under the governing law," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), and a "genuine" issue is one for which "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Once the moving party has properly supported its motion for summary judgment, "a party opposing ... may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. The substantive law regarding a claim will identify which facts are material in a motion for summary judgment, and only factual disputes that might affect the outcome of the case under governing law will preclude entry of summary judgment. Id. at 248, 106 S.Ct. at 2510. In this diversity case, the court applies Kansas law with the objective that the result obtained in this court should be the same result that a Kansas court would reach. See Adams-Arapahoe School Dist. No. 28-J v. GAF Corp., 959 F.2d 868, 870 (10th Cir.1992). In applying this standard, the court views the evidence, and all reasonable inferences derived from the evidence, in the light most favorable to the party opposing the motion. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). In this case, because the parties have filed cross motions for summary judgment, the court will consider each motion separately in applying the controverted facts in the light most favorable to the nonmovant. 1472 III. Retaliatory Discharge Both plaintiff and defendant have moved for summary judgment on plaintiff's claim that she was discharged from employment in retaliation for having filed a workers compensation claim. For the reasons outlined below, both motions must be denied on this point. Kansas generally follows the employment at will doctrine which holds that in the absence of a contract, either express or implied, between an employee and employer covering the duration of employment, the employment is terminable at will by either party. See Johnson v. National Beef Packing Co., 220 Kan. 52, 54, 551 P.2d 779 (1976). Kansas recognizes a number of exceptions to the employment at will doctrine. One such exception applies to employees discharged in retaliation for the exercise of their rights under the Workers Compensation Act. See Murphy v. City of Topeka, 6 Kan.App.2d 488, 630 P.2d 186 (1981). This cause of action is "based on the theory that dismissal of employees for reasons violative of a particular public policy are actionable." Brown v. United Methodist Homes for the Aged, 249 Kan. 124, 135, 815 P.2d 72 (1991). In order to establish a claim of retaliatory discharge, a plaintiff must show (1) that she filed a claim for workers compensation benefits or sustained an injury for which she might assert a future claim for such benefits; (2) that the employer had knowledge of plaintiff's compensation claim or the fact that she had sustained a work-related injury for which she might file a future claim for benefits; (3) that the employer terminated her employment; and (4) that a causal connection existed between the protected activity or injury, and the termination. See Ortega v. IBP, Inc., No. 92-2351, 1994 WL 373887 at 6 (D.Kan. July 1, 1994); Pilcher v. Board of County Commissioners, 14 Kan.App.2d 206, 213, 787 P.2d 1204 (1990). Plaintiff must establish her claim by evidence which is clear and convincing. Ortega v. IBP, Inc., 255 Kan. 513, 527, 874 P.2d 1188 (1994). Evidence "is clear if it is certain, unambiguous and plain to the understanding. It is convincing if it is reasonable and persuasive enough to cause the trier of facts to believe it." Ortega, 255 Kan. at 527, 874 P.2d 1188 (citing Chandler v. Central Oil Corp. 253 Kan. 50, 58, 853 P.2d 649 (1993)). Under Kansas law, clear and convincing evidence is not a quantum of proof, but rather a quality of proof. Ortega, 255 Kan. at 527, 874 P.2d 1188. In this case, the undisputed facts show that plaintiff had filed a claim for workers compensation benefits, that the employer knew about the claim, and that the employer then terminated plaintiff's employment. The only question is whether there is a causal connection between plaintiff's termination and her filing the workers compensation claim. The evidence, even when viewed in the light most favorable to the plaintiff, contains no direct proof that IBP terminated plaintiff's employment because she filed a workers compensation claim. This does not necessarily mandate summary judgment in favor of IBP. Retaliatory discharge cases must generally be proven by circumstantial rather than direct evidence because rarely will an employer admit to having discharged an employee in retaliation for exercising a right. Taking the evidence, and the reasonable inferences drawn from the evidence, in the light most favorable to the plaintiff results in the following scenario. IBP received notification on March 8, 1991, that plaintiff had filed a workers compensation claim. Shortly thereafter, IBP assigned plaintiff to two light duty jobs and she was able to perform the duties associated with those jobs. IBP's nurse noted on May 2 that plaintiff should continue in a light duty position and abide by several restrictions on her activities. In spite of these noted restrictions and the fact that plaintiff was able to perform the light duty jobs she had been assigned, the nurse on May 6 reassigned plaintiff to a position which the nurse knew would require a violation of the restrictions set by plaintiff's doctor. The nurse also misrepresented to plaintiff's doctor the physical requirements of plaintiff's new job. The facts viewed in the light most favorable to plaintiff would also include the following evidence regarding the unexcused absences 1473 which led to plaintiff's discharge. Plaintiff called in to IBP on May 11 and stated that she would be absent due to illness at least through May 13. The May 11 absence was originally recorded on IBP's records as an excused absence at the direction of an IBP supervisor. In spite of this, IBP charged plaintiff with two unexcused absences and terminated her employment pursuant to its attendance policy. It could be argued that the foregoing facts establish only that plaintiff was treated unfairly, but not that her filing a workers compensation claim was the reason for the unfair treatment. The proximity in time, however, between IBP's knowledge of plaintiff's workers compensation claim and the adverse actions taken against plaintiff strengthen the inference of retaliatory motive. This principle is recognized in connection with retaliation claims brought under Title VII, see e.g., Burrus v. United Telephone Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir.) (no inference of retaliatory motive when termination occurred almost three years after employee filed charges), cert. denied, 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982); Miller v. Fairchild Ind., Inc., 797 F.2d 727, 731-33 (9th Cir.1986) (discharge two months after EEOC settlement agreement sufficient evidence of retaliatory motive to avoid summary judgment for employer), and would appear to be appropriate in analyzing common law retaliatory discharge claims. In this case, the adverse actions taken by IBP began only two months after IBP received notification of plaintiff's workers compensation claim. While plaintiff's evidence is far from sufficient for establishing her claim on her motion for summary judgment, the facts viewed in the light most favorable to her support an inference that IBP retaliated against her for filing the workers compensation claim. Genuine issues of material fact preclude a finding that plaintiff was discharged for non-retaliatory reasons. For these reasons, IBP's motion for summary judgment on the issue of retaliatory discharge will be denied. Plaintiff's motion for partial summary judgment on the issue of liability for retaliatory discharge must also be denied. The evidence viewed most favorably toward IBP would show that IBP terminated plaintiff's employment solely due to her unexcused absences which were properly assessed. There is clearly insufficient undisputed evidence to establish that IBP discharged plaintiff because of her worker's compensation claim. IBP also contends that even if the retaliatory discharge claim is not dismissed, the court should rule, as a matter of law, that (1) plaintiff is estopped from claiming that she was capable of working after May 14, 1991; or (2) that plaintiff has failed to mitigate her damages. According to the pretrial order, plaintiff is seeking damages from lost wages and benefits in the amount of $338,602.00. IBP bases its argument on plaintiff's testimony that she did not seek employment during the period May 14, 1991, through September, 1992, and during this period she took the position in her workers compensation case that she was unable to work. In the alternative, IBP argues that if plaintiff was able to work during that period but chose not to, she has failed to mitigate her damages. The evidence viewed in the light most favorable to plaintiff does not support IBP's contention that plaintiff took the position in pursuing her workers compensation claim that she was unable to work. The only evidence relating to this charge is the fact that plaintiff applied for vocational rehabilitation benefits in order to be retrained. IBP has not supplied any undisputed evidence that plaintiff ever claimed she was unable to perform any work or that she could not have returned to the light duty assignments she had received at IBP. In addition, the evidence that plaintiff was unemployed and not seeking work for a period of time after her discharge is insufficient in and of itself to establish that plaintiff has failed to mitigate her damages. Generally, a party is entitled to recover only her actual damages less those that might have reasonably been prevented. Iseman v. Kansas Gas & Electric Co., 222 Kan. 644, 647, 567 P.2d 856 (1977); Theis v. duPont, Glore Forgan Inc., 212 Kan. 301, 307, 510 P.2d 1212 (1973). In a wrongful discharge case, the measure of damages is the amount of wages for the period in question less the amount plaintiff earned, or with reasonable diligence could have earned in a comparable 1474 job. Lines v. City of Topeka, 223 Kan. 772, 781, 577 P.2d 42 (1978). The record contains no evidence from which the court could compute the amount that plaintiff would reasonably have earned had she sought employment during the period in question. A ruling on whether plaintiff failed to mitigate her damages, and if so, by what amount plaintiff's damage claim must be reduced, is premature. For these reasons, IBP's motion for summary judgment relating to plaintiff's damages arising out of her retaliatory discharge claim is denied. IV. Intentional Infliction of Emotional Distress Plaintiff's complaint also alleged a claim for intentional infliction of emotional distress. Defendant has moved for summary judgment on this claim. To the extent that such a claim remains in the court's pretrial order, defendant's motion will be granted, and the claim for intentional infliction of emotional distress will be dismissed. In order to maintain an action for intentional infliction of emotional distress, plaintiff must establish that (1) defendant's conduct was intentional or in reckless disregard of plaintiff; (2) the conduct was extreme and outrageous; (3) a causal connection existed between defendant's conduct and plaintiff's emotional distress; and (4) plaintiff's emotional distress is extreme and severe. Anspach v. Tomkins Ind., Inc., 817 F.Supp. 1499, 1506-07 (D.Kan.1993) (citations omitted); Taiwo v. Vu, 249 Kan. 585, 592, 822 P.2d 1024, 1029 (1991). The court must determine whether defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, and whether the emotional distress alleged by plaintiff is so extreme that the law must intervene because no reasonable person should be expected to endure it. Taiwo, 822 P.2d at 1029. IBP contends that plaintiff has failed to demonstrate that IBP's alleged conduct was so extreme and outrageous so as to permit recovery. The court agrees. Plaintiff in her response brief did not address this part of defendant's summary judgment motion. The evidence, even when viewed in the light most favorable to plaintiff, fails to demonstrate any outrageous conduct on the part of defendant. In addition, plaintiff has failed to present any evidence of severe emotional distress. For these reasons, IBP's motion for summary judgment with respect to plaintiff's claim of intentional infliction of emotional distress will be granted. IT IS, THEREFORE, BY THE COURT ORDERED that plaintiff's motion for partial summary judgment (Doc. 48) is denied. IT IS FURTHER ORDERED that defendant's motion for summary judgment (Doc. 53) is granted in part and denied in part, as provided by this order. Copies of this order shall be mailed to counsel of record for the parties. IT IS SO ORDERED.	{ "pile_set_name": "FreeLaw" }
203 Cal.App.3d 521 (1988) 250 Cal. Rptr. 25 FARRELL L., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. F009831. Court of Appeals of California, Fifth District. August 2, 1988. 523 COUNSEL Jose R. Villarreal, Public Defender, and Michael J. Feinberg, Deputy Public Defender, for Petitioner. No appearance for Respondent. John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Michael J. Weinberger and James T. McNally, Deputy Attorneys General, for Real Party in Interest. [Opinion certified for partial publication.[]] OPINION MARTIN, Acting P.J. On November 10, 1987, an information was filed in the Fresno County Superior Court charging petitioner with a violation of Penal Code section 261, subdivision (2)[1] with a section 12022, subdivision (b) enhancement (count I); a violation of section 289, subdivision (a) with a section 12022, subdivision (b) enhancement (count II); section 288a, subdivision (c) with a section 12022, subdivision (b) enhancement (count III); section 261, subdivision (2) with a section 12022, subdivision (b) enhancement (count IV); section 286, subdivision (c) with a 12022, subdivision (b) enhancement (count V); section 289, subdivision (a) with a section 12022, subdivision (b) enhancement (count VI); section 261, subdivision (2) with a section 12022, subdivision (b) enhancement (count VII); section 289, subdivision (a) (count VIII); section 261, subdivision (2) (counts X and XI); section 647a (count XII); section 220 (count XIII); section 245, subdivision (a)(1) (count XIV); and section 245, subdivision (a)(2) (count XV). On December 11, 1987, petitioner filed a section 995 motion to dismiss counts I through XIII. A hearing was held, after which the motion to 524 dismiss was granted as to counts III, IV, V, VI, VII, XII and XIII. The motion was denied as to counts I, II, VIII, IX, X and XI. On January 8, 1988, a first amended information was filed charging petitioner in count I with a violation of section 261, subdivision (2) and a section 12022, subdivision (b) enhancement; in count II with a violation of section 289, subdivision (a) [penetration by a foreign object] plus a section 12022, subdivision (b) enhancement; in counts III and IV with a violation of section 285 [incest] with a section 12022, subdivision (b) enhancement; in count V with a violation of section 289, subdivision (a); in counts VI, VII and VIII with violations of section 261, subdivision (2) [rape by force or fear]; in count IX with a violation of section 245, subdivision (a)(1) [assault with a deadly weapon]; and in count X with a violation of section 245, subdivision (a)(2) [assault with a firearm]. A petition for writ of prohibition and/or alternative writ of mandate was filed with this court requesting respondent court be compelled to vacate its order denying petitioner's motion to dismiss the information regarding counts I, II, V, VI, VII and VIII of the amended information pursuant to section 995, on the grounds that the magistrate wrongfully admitted evidence of crimes outside the County of Fresno but within the State of California and that the magistrate improperly ruled that the defense could not cross-examine the prosecutrix regarding persons in her therapy group at Napa State Hospital she had told of the offenses committed against her. A response to said petition was filed on February 8, 1988, pursuant to an order of this court. On March 21, 1988, this court issued an order to show cause. FACTS C., the 17-year-old daughter of petitioner, lived with her sister in Los Angeles. She had not seen her father since she was 15 years old. In January of 1987, C. had been visiting in Fresno for about a week when petitioner, a truck driver, indicated he wished her to accompany him on a trip so that he could get to know her. She did not want to go and tried to avoid going as she was afraid her father would drink to excess and hit her, as that is "how he's always been." Petitioner indicated they would be back in a couple of days but, in fact, they were gone 12 days, traveling between Fresno, Nogales, Mexico, San Francisco and back to Fresno. The first destination was San Francisco to pick up some produce. From San Francisco, C. was not sure where they went. She testified the two of them traveled back and forth from Nogales to San Francisco and drove all day and all night and slept "every once in awhile." Nogales was the first place C. remembers sleeping. Although petitioner had not suggested they have 525 sexual relations prior to their reaching Nogales, once in the motel room there petitioner hit her and frightened her, thereby forcing her to have sexual intercourse and commit other sexual acts with him. C. testified she does not remember everything that happened on the trip because she and petitioner were "doing crank." After they left Nogales, they traveled to San Francisco and on the outskirts of San Francisco, they slept in the truck where petitioner again forced C. to have sexual intercourse with him. A couple of days later at a truckstop between 30 and 40 miles outside of San Francisco, a third incident in which petitioner forced C. to have sexual intercourse with him occurred. Petitioner again forced C. to have sexual intercourse with him in the truck when they were about 30 minutes outside of Fresno, California. Petitioner ordered C. to get undressed and had sexual intercourse with her, telling her that this was his way of expressing how much he loved her. On April 6, 1987, petitioner and C. spent the night at the residence of the petitioner's mother, on Belmont Avenue in Fresno, California. During the course of the evening, petitioner consumed alcohol and became violent. He hit C. in the face and on her collarbone and threatened to kill her. Petitioner had two pocketknives and threw one on the table and the other at C. Petitioner then seemed to calm down and C. went into the bedroom to go to sleep. Petitioner subsequently entered the room, shut the door and got into bed with her. Petitioner placed his hands on her vagina and penetrated her vagina with his fingers. She protested but he said "he was going to do what he wanted ..." and told her to "shut up." He insisted she remove her pants and she complied. He then proceeded to have sexual intercourse with her. DISCUSSION[] I., II. .... .... .... .... .... . III. DENIAL OF SIXTH AMENDMENT RIGHT TO CROSS-EXAMINE WITNESSES (1a) Petitioner claims he was deprived of his Sixth Amendment right to confront the witnesses against him when he was denied opportunity to 526 cross-examine C. regarding the names of people within her counseling program at the Napa State Hospital to whom she had revealed details of the offenses allegedly perpetrated against her. Petitioner urges that her testimony be stricken and once stricken there would be no evidence against petitioner regarding counts I, II, V, VI, VII and VIII and, accordingly, those counts would have to be dismissed. (2) The right of an accused in a criminal case to confront the witnesses against him is a fundamental right secured by the Sixth and Fourteenth Amendments and article I, section 14, of the California Constitution. (Pointer v. Texas (1965) 380 U.S. 400, 403 [13 L.Ed.2d 923, 926, 85 S.Ct. 1065]; Davis v. Alaska (1974) 415 U.S. 308, 315 [39 L.Ed.2d 347, 353, 94 S.Ct. 1105].) "[C]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested." (Davis, supra, 415 U.S. at p. 316 [39 L.Ed.2d at p. 353].) (1b) C. stated she was unable to provide the names of the persons in her group on the ground of confidentiality. After a hearing in chambers in which C.'s counselor at the state hospital testified, the trial court refused to allow defense counsel to proceed with this line of cross-examination on the basis that it fell within the psychotherapist-patient privilege set forth in Evidence Code sections 1010 to 1014. The first question we must answer is whether or not the information sought falls within the privilege. If so, we must determine whether the privilege must give way to permit petitioner his fundamental right to a fair trial. Evidence Code section 1012 defines a confidential communication between a patient and psychotherapist as: "... information, including information obtained by an examination of the patient, transmitted between a patient and his psychotherapist in the course of that relationship and in confidence by a means which, so far as the patient is aware, discloses information to no third persons other than those who are present to further the interest of the patient in the consultation, or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the psychotherapist is consulted, ..." In People v. Gomez (1982) 134 Cal. App.3d 874 [185 Cal. Rptr. 155], the defendant alleged statements made to family court student interns were privileged. The court noted the privilege extended to virtually every licensed class of therapists but held it did not apply to student interns. (Id. at pp. 880-881.) The court went on to state, however, under some circumstances, that communications to student interns could be privileged if the 527 students were working under the supervision of a therapist to whom the privilege attached. (Id. at p. 881, fn. 3.) The question here is whether communications made by a patient to other persons participating in a group therapy session come within the psychotherapist-patient privilege. The parties do not cite nor has our independent research uncovered a case on point. In our view, the other participants in a group therapy session are "those who are present to further the interest of the patient in the consultation ... or the accomplishment of the purpose for which the psychotherapist is consulted...." (Evid. Code, § 1012.) The language of Evidence Code section 1012 plainly indicates that communications made by patients to persons who are present to further the interests of the patient comes within the privilege. "Group therapy" is designed to provide comfort and revelation to the patient who shares similar experiences and/or difficulties with other like persons within the group. The presence of each person is for the benefit of the others, including the witness/patient, and is designed to facilitate the patient's treatment. Communications such as these, when made in confidence, should not operate to destroy the privilege. An analogy may be made to the cases decided under Evidence Code section 912, i.e., waiver of otherwise privileged communications which are disclosed to others in the course of accomplishing the purpose for which the lawyer, physician, or psychotherapist was consulted. Evidence Code section 912, subdivision (d) provides: "A disclosure in confidence of a communication that is protected by a privilege provided by ... 1014 (psychotherapist-patient privilege) ..., when such disclosure is reasonably necessary for the accomplishment of the purpose for which the ... psychotherapist ... was consulted, is not a waiver of the privilege." Thus, we conclude that the communication with other participants in group therapy is reasonably necessary for the accomplishment of the purpose for which the psychotherapist was consulted and, therefore, comes within the privilege. (3) However, there are circumstances where the psychotherapist-patient privilege must yield to a criminal defendant's right to confrontation and cross-examination. (People v. Reber (1986) 177 Cal. App.3d 523, 530 [223 Cal. Rptr. 139].) (4) "`The capacity of a witness to observe, recollect and narrate an occurrence is a proper subject of inquiry on cross-examination. If as a result of a mental condition such capacity has been substantially diminished, evidence of that condition before, at and after the occurrence ... is ordinarily admissible for use by the trier in passing on the credibility of the 528 witness.' [Citations.]" (Ibid.) In Reber, the Third District Court of Appeal concluded that adherence to a statutory privilege of confidentiality must give way to pretrial access when defendants have established good cause and when upholding the privilege would deprive the defendant of the constitutional right of confrontation and cross-examination. (Id. at p. 531.) The privilege may be overridden only if and to the extent necessary to insure the defendant's constitutional rights of confrontation. (Id. at p. 532.) (5a) Denial of cross-examination concerning events which were part of the actual criminal transaction itself denies the defense a substantial right. (People v. Stone (1983) 139 Cal. App.3d 216, 222 [188 Cal. Rptr. 493].) By contrast, a trial judge or a magistrate conducting a preliminary hearing is within his discretion in denying cross-examination of a prosecution witness as to matters not relating to the criminal event itself and which only affect the weight of the direct testimony. (Ibid.) (1c) In the instant case, the identification of persons in C.'s group counseling could only have been relevant in a subsequent attempt to impeach her testimony. Thus, the excluded evidence could only have been relevant, if at all, to the ultimate weight of the direct evidence. (5b) "Exclusion of cross-examination which `only go[es] to the weight of the direct evidence' does not deny the defendant a fair hearing. [Citations.]" (Id. at p. 224.) (1d) Moreover, defense counsel failed to establish good cause justifying the discovery of the sought-after, privileged information. Indeed, counsel indicated he did not intend to pursue the questioning once he had the names of the persons she had spoken to regarding the alleged atrocities admitted against her. Defense counsel represented to the court that he had "no idea" as to whether he would subpena any of the people whose identity might be revealed. Therefore, good cause was not shown for overriding the psychotherapist-patient privilege in the instant case. (People v. Reber, supra, 177 Cal. App.3d 523, 532.) The petition is denied. Stone (W.A.), J., and Brown (G.A.), J.,[*] concurred. NOTES [] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts I and II. [1] All statutory references are to the Penal Code unless otherwise indicated. [] See footnote, ante, page 521. [*] Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.	{ "pile_set_name": "FreeLaw" }
216 Cal.App.3d 1192 (1989) 265 Cal. Rptr. 315 THE PEOPLE, Plaintiff and Respondent, v. PETER ANTHONY MERCANT, Defendant and Appellant. Docket No. F011658. Court of Appeals of California, Fifth District. December 20, 1989. 1193 COUNSEL Richard G. Rumery, under appointment by the Court of Appeal, for Defendant and Appellant. John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, and Wanda Hill Rouzan, Deputy Attorney General, for Plaintiff and Respondent. 1194 OPINION FRANSON, P.J. STATEMENT OF THE CASE Appellant was convicted on his guilty plea of violating Penal Code section 12021, subdivision (a)[1] (felon in possession of a concealable firearm) on December 13, 1985. Appellant entered this plea on the condition the court could sentence him to no more than two years in state prison. The court referred the matter to the probation department and set the sentencing hearing for January 16, 1986. A probation report was submitted on January 6, 1986. Appellant failed to appear for sentencing on January 16, 1986. Appellant did not appear until January 19, 1989, approximately three years later. At that time appellant's counsel, Mr. Ulman, requested a continuance so that a supplemental probation report could be prepared. Counsel further stated that he was not prepared to proceed because the matter had previously been handled by a different deputy public defender. However, appellant stated he had no objection to Mr. Ulman appearing for him that day. The court denied the request for a continuance. Appellant's request for probation was denied, and he was sentenced to state prison for two years pursuant to the negotiated plea. (1a) Appellant contends the trial court erred in sentencing him without a current probation report, and consequently, the case must be remanded for resentencing. We agree. ISSUE A supplemental probation report should have been prepared before appellant was sentenced. Section 1203, subdivision (b) provides in part: "[I]n every case in which a person is convicted of a felony and is eligible for probation, before judgment is pronounced, the court shall immediately refer the matter to the probation officer to investigate and report to the court, at a specified time, upon the circumstances surrounding the crime and the prior history and record of the person, which may be considered either in aggravation or mitigation of the punishment...." (italics added.) (2) This statute has repeatedly 1195 been held to require a current probation report upon resentencing proceedings following a remand by the appellate court. (People v. Cooper (1984) 153 Cal. App.3d 480, 483 [200 Cal. Rptr. 317].) In fact, this court has held that even when the defendant is ineligible for probation, if the resentencing court has discretion to alter the length of the defendant's imprisonment, it must obtain a new, updated probation report before proceeding with the resentencing. (People v. Brady (1984) 162 Cal. App.3d 1, 7 [208 Cal. Rptr. 21].) (1b) Respondent contends that, despite the three-year delay in sentencing, appellant was not entitled to a supplemental probation report because he was not being resentenced. Respondent notes appellant did not serve time in custody and created his own delay by becoming a fugitive. Nevertheless, the right to a current probation report is not dependent on serving time in custody. (Cf. People v. Causey (1964) 230 Cal. App.2d 576 [41 Cal. Rptr. 116].) Rather, a current report is required because, by reversing a defendant's sentence, the court restores the defendant to his original position as if he had never been sentenced. Thus, the defendant is entitled to all the normal procedures and rights available at the time judgment is pronounced, including the right to a current probation report. (Van Velzer v. Superior Court (1984) 152 Cal. App.3d 742, 744 [199 Cal. Rptr. 695].) Here, rather than being restored to his original position, appellant maintained that position by failing to appear. In People v. Rojas (1962) 57 Cal.2d 676 [21 Cal. Rptr. 564, 371 P.2d 300], the court concluded section 1203 requires that the trial court consider a current probation report before pronouncing judgment. As previously noted, the statute states that before judgment is pronounced, "`the court must immediately refer the matter to the probation officer.'" (Id. at p. 682.) The Rojas court determined the Legislature's use of the word "immediately" indicated that a defendant is entitled to have a current report before the trial judge with each pronouncement of judgment. (Ibid.) Here, the trial court did not have a current probation report before pronouncing judgment on appellant. The report was three years old. (Cf. People v. Causey, supra, 230 Cal. App.2d 576, 579 [case reversed with directions that trial court order and consider a current probation report when trial court had relied on a report two and one-half years old].) The fact that appellant was not being resentenced is irrelevant. Regardless of the procedural history, a current report is required on each occasion of passing judgment. (People v. Rojas, supra, 57 Cal.2d 676, 682; People v. Cooper, supra, 153 Cal. App.3d 480, 483.) Although appellant caused the delay by failing to appear, that unlawful action should not deprive him of the statutory right to a current probation report. (Cf. People v. Cruz (1988) 44 Cal.3d 1247 [246 Cal. Rptr. 1, 752 P.2d 439].) Separate sanctions are 1196 available against a fleeing defendant under sections 1320 and 1320.5. (Id. at p. 1249.) Respondent further argues that if any error occurred, it was harmless. The trial court, however, was not bound by the plea bargain to impose the two-year sentence. That sentence was merely the maximum which could be imposed under the terms of the plea. Further, the court could have withdrawn its approval of the plea. (People v. Cruz, supra, 44 Cal.3d 1247, 1250.) With respect to whether a current probation report could have benefited appellant under these circumstances, we cannot know "what a current report, made by a professional probation officer, might have disclosed, nor in what light such a report would have presented appellant as of the time of the hearing." (People v. Causey, supra, 230 Cal. App.2d 576, 579.) Since a current probation report was not before the court, the case must be remanded for a new sentencing hearing. In light of this conclusion, it is unnecessary to determine whether the trial court erred in denying trial counsel's request for a continuance. DISPOSITION The judgment is reversed, and the matter is remanded to the trial court with directions to order a current probation report and, giving due consideration to that report, to resentence appellant. Martin, J., and Dibiaso, J., concurred. NOTES [1] All statutory references are to the Penal Code unless otherwise indicated.	{ "pile_set_name": "FreeLaw" }
762 F.2d 1516 10 Soc.Sec.Rep.Ser. 18, Unempl.Ins.Rep. CCH 16,150Mason L. GIBSON, Plaintiff-Appellant,v.Margaret M. HECKLER, Secretary of Health and Human Services,Defendant-Appellee. No. 82-7383. United States Court of Appeals,Eleventh Circuit. June 12, 1985. David M. Olive, J.T. Simmonetti, Jr., Birmingham, Ala., for plaintiff-appellant. Mary P. Thornton, Asst. U.S. Atty., Birmingham, Ala., for defendant-appellee. Appeal from the United States District Court For the Northern District of Alabama. Before GODBOLD, Chief Judge, ANDERSON, Circuit Judge, and THORNBERRY, Senior Circuit Judge. PER CURIAM: 1 Appellant Gibson seeks reversal of the district court's decision affirming a decision of the Administrative Law Judge ("ALJ") that Gibson was not disabled under the Social Security Act and, thus, not entitled to disability benefits. Because the ALJ improperly and mechanically applied regulatory guidelines in determining that Gibson was not disabled, we vacate the decision of the district court and remand with instructions to remand to the agency for further proceedings consistent with this opinion. BACKGROUND 2 On September 29, 1979, Gibson filed an application for disability benefits. The parties agree, based on the medical evidence in the record, that Gibson has a chronic medical impairment likely to last in excess of twelve months, although the parties disagree as to the severity of the impairment. The primary impairment arises out of an on-the-job injury to Gibson's back sustained in 1970, which later required a laminectomy (removal of the posterior arch of a vertebra). Gibson alleges that his back problem results in scoliosis (an appreciable lateral deviation in the normally straight vertical line of the spine), curvature of the spine, and chronic and severe lower back pain. Gibson also maintains that he suffers from another set of impairments, shortness of breath and chest pain. Apparently, Gibson has smoked one and one-half packs of cigarettes per day for fifteen years. Most of the medical evidence simply states that Gibson suffers from chest pain of unknown cause; however, one doctor determined that Gibson had chronic obstructive pulmonary disease and suspected angina pectoris (a sudden chest pain, accompanied by a feeling of suffocation due, most often, to a lack of oxygen flow to certain muscles of the heart). The ALJ agreed that Gibson had some chronic back problem and resultant pain, but did not attribute any significance to Gibson's chest pain. Significantly, the ALJ found, consistent with the medical evidence and Gibson's testimony, that as a result of his back problem Gibson could neither sit nor stand for more than four hours in an eight-hour work day (hereafter referred to as the "sit/stand option" or "sit/stand limitation"). Record, vol. 2 at 16. DISCUSSION 3 An inquiry to determine whether a claimant is disabled follows two steps. The first step requires that the claimant prove by a preponderance of the evidence that he has a medically determinable physical or mental impairment likely to last for a continuous period of not less than twelve months which prevents him from performing his past work. 42 U.S.C.A. Sec. 423(d)(1)(A); 20 C.F.R. Sec. 416.905(a).1 The burden of proving such an impairment is on the claimant. Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir.1982); Cowart v. Schweiker, 662 F.2d 731, 736 (11th Cir.1981); 42 U.S.C.A. Sec. 423(d)(5). The second step requires an inquiry into whether the claimant, despite his inability to return to his past work, can nevertheless perform a job which exists in substantial numbers in the national economy. 42 U.S.C.A. Sec. 423(d)(2)(A); 20 C.F.R. Sec. 416.905(a). With respect to this second step, the burden is on the Secretary to prove by a preponderance of the evidence that there are jobs in substantial numbers in the economy which the claimant can perform despite the impairment. Cowart, 662 F.2d at 736. 4 In the instant case, the ALJ found that Gibson had an impairment which rendered him unable to perform his past relevant work as a brick mason, an assistant to a brick mason, and an automatic welder. Record, vol. 2 at 16. Thus, Gibson proved a prima facie case of disability, and the burden shifted to the Secretary to prove by a preponderance of the evidence that Gibson was able to perform a job which existed in substantial numbers in the national economy. 5 The only direct evidence of Gibson's ability to perform work existing in the national economy was presented by Patsy Bramlett, a disability rehabilitation specialist with the Alabama Department of Education's Division of Rehabilitation. Bramlett testified that she was very familiar with the Dictionary of Occupational Titles ("DOT") and the Occupational Outlook Handbook,2 comprehensive listings of occupations promulgated by the United States Department of Labor, and stated that she had received training in the use of these and similar resources. Id. at 63-64. She testified that a major part of her work was determining whether, and with what rehabilitation, the prior work skills of her physically and mentally impaired clients were transferable, thus enabling them to reenter the work force. Id. at 65. Bramlett then stated that she had met with Gibson, reviewed his educational and work background, and his medical reports. Id. at 65-66. At that point, Gibson's attorney propounded a hypothetical question to Bramlett, based upon the medical evidence in the record and restricting Gibson to jobs allowing a sit/stand option, but limiting Gibson to sedentary work. See 20 C.F.R. Sec. 416.967(a) (defining sedentary work as work involving the lifting of no more than ten pounds at a time and occasionally requiring the carrying of small articles and tools). Bramlett stated that based on the hypothetical Gibson could not return to his prior work because such work was in the medium category. Record, vol. 2 at 67-68. See 20 C.F.R. Sec. 416.967(c) (defining 'medium work' as involving the lifting of up to fifty pounds at a time with frequent lifting or carrying of objects weighing up to twenty-five pounds). Bramlett then stated that in her opinion there were no sedentary jobs in the national economy in substantial numbers which Gibson could perform. Record, vol. 2 at 69. In coming to her conclusion, she relied heavily on the fact that Gibson had a limited educational background (Gibson completed the seventh grade at age 16), and the fact that any sedentary job found otherwise appropriate would have to allow a sit/stand option to accommodate Gibson's particular physical needs. Id. 6 The ALJ conducted a cross-examination of Bramlett. He asked her whether, assuming the other record evidence, the sit/stand option and that Gibson could perform medium work, i.e., work requiring the lifting and carrying of fifty pounds occasionally and twenty-five pounds frequently, Gibson could return to his past relevant work. She stated that he could not. Id. at 71-72. She stated, however, that if medium work were possible, there would be a "wider range" of work open to Gibson in the national economy. Id. at 73. She emphasized, nevertheless, that the sit/stand option would still greatly restrict Gibson's access to the marketplace: "Most of these [medium] jobs that would be available to him, he would physically have a lot of problems performing those jobs because they don't allow for a lot of frequent changing of positions.... I feel like based on ... [Gibson's] restrictions, there's going to be almost no job available to him." Id. at 73-74. Bramlett then stated that she surveyed a sampling of twenty to twenty-five sedentary jobs in the DOT and found that Gibson could perform none of those because they required sitting 6 or more hours per 8-hour day. Id. at 74. She also testified that "when I got above the sedentary range into the light range where you could possibly do a job standing, it was primarily standing the whole day, at least 6 hours out of 8." Id. The ALJ asked Bramlett if Gibson's sit/stand limitation would prevent him from employment as a self-service gas station attendant. She answered that it would be a "possibility," but expressed doubt that Gibson's educational limitations would permit him to do such work. She said she would have to check the DOT "to see what was required" of a self-service gas station attendant. Id. at 75. 7 The ALJ found that Gibson was not disabled. First, the ALJ determined that Gibson could "perform a modified range3 of sedentary or light work." Id. at 15. "Light work" is defined generally as the ability to lift no more than twenty pounds at a time with frequent lifting or carrying of ten pounds.4 20 C.F.R. Sec. 416.967(b). 8 The ALJ then proceeded to find that Gibson had the ability to engage in substantial gainful work "on the basis of the principles and definitions in the regulations and the use of the rules as a framework." Record, vol. 2 at 15. Specifically, the ALJ applied Rule 201.25 of 20 C.F.R. Part 404, Subpart P, Appendix 2 (the "grids" or "App. 2"). The grids are a series of matrices which correlate a set of variables--the claimant's residual functional capacity (i.e., the ability, despite impairments, to do sedentary, light, etc. work), age, educational background, and previous work experience. Upon the entry of a set of these variables into the appropriate matrix a finding of disabled or not disabled is rendered. In Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983), the Supreme Court held that the use of the grids to determine the existence of jobs in the national economy was a legitimate use of regulatory power derived from the Social Security Act. The Court held that the inquiry about the presence of jobs in the economy was the "type of general factual issue [which] may be resolved as fairly through rulemaking as by introducing the testimony of vocational experts at each disability hearing." 461 U.S. at 468, 103 S.Ct. at 1958, 76 L.Ed.2d at 75. The Campbell court also held that when the grids are properly used the Secretary need not introduce evidence of specific available jobs that the claimant is able to perform despite the existing impairments. Id. at 468-472, 103 S.Ct. at 1957-1960, 76 L.Ed.2d at 75-77. 9 However, the Campbell court recognized that the Secretary may rely on the grids only in "appropriate cases." Id. at 466, 103 S.Ct. at 1956, 76 L.Ed.2d at 74. The Court took pains to indicate at several points in its opinion that the regulations are only applicable where each variable on the appropriate grid matrix accurately describes the claimant's situation as a matter of objective historical fact found by the ALJ. Id. at 468 & n. 11, 103 S.Ct. at 1958 & n. 11, 76 L.Ed.2d at 75 & n. 11; see also id. at 462 n. 5, 103 S.Ct. at 1955 n. 5, 76 L.Ed.2d at 71 n. 5. The Court noted that the introductory regulatory preface to the grids states that 10 [i]f an individual's capabilities are not described accurately by a rule, the regulations make clear that the individual's particular limitations must be considered.... [T]he regulations ... recognize that some claimants may possess limitations that are not factored into the guidelines.... Thus, the regulations provide that the rules will be applied only when they describe a claimant's abilities and limitations accurately. Id. (emphasis added).5 11 The above discussion indicates where the ALJ erred in this case. The ALJ made factual findings for each grid variable, a necessary predicate for use of the grids. See App. 2, Sec. 200.00(c). He found that Gibson had a limited seventh grade education, had no transferable work skills,6 and was capable of light or sedentary work (i.e., Gibson's residual functional capacity). The ALJ then applied Rule 201.25 which analyzes the variables of a younger individual (age 18-44), with a limited (or less) education (see 20 C.F.R. Sec. 416.964(b)(3) (defining limited education)), without transferable work skills, and with a sedentary residual functional capacity, and rendered a finding of not disabled. See App. 2, Table 1, Rule 201.25. 12 Our discussion of the Campbell case and the introductory regulations to the grids lead us to the conclusion that the grids should not have been applied in this case. The ALJ's determination that, based on his physical abilities, Gibson had the exertional ability to perform some sedentary work may have been supported by the evidence; however, the residual functional capacity variable of grid rule 201.25 does not take into account a sit/stand limitation. As the ALJ found, Gibson could only perform jobs with the sit/stand option. The only evidence presented at the hearing concerning jobs amenable to the sit/stand option was the testimony of the vocational expert, Patsy Bramlett. As indicated by Bramlett's testimony to the effect that her random sampling of sedentary jobs in the DOT uncovered no jobs amenable to a sit/stand option, it is clear that the general category of sedentary jobs does not remotely resemble the category of jobs existing in substantial numbers in the national economy which can accommodate Gibson's individual residual functional capacity. This is thus a classic case where "one of the findings of fact does not coincide with the corresponding criteria of a rule" and where, therefore, "the rule does not apply ... and, accordingly, does not direct a conclusion of disabled or not disabled." App. 2, Sec. 200.00(a).7 13 Having determined that the ALJ applied the grids in conjunction with circumstances rendering such application inappropriate and violative of regulatory directive, we must determine what relief is due Gibson. We are cognizant of the fact that once the ALJ found that Gibson could not perform his past relevant work, the burden was on the Secretary to prove by a preponderance of the evidence that Gibson could perform a job which existed in substantial numbers in the national economy. Cowart, 662 F.2d at 736. Because the Secretary has inappropriately relied upon the grids, she has technically failed to carry her burden. Moreover, we realize that on the present record, the evidence on the dispositive issue, consisting mainly of Bramlett's testimony, weighs heavily in Gibson's favor. However, we must be careful not to usurp the ALJ's role as factfinder in a case where, as here, factfinding was improperly conducted. Cf. 42 U.S.C.A. Sec. 405(g) (the factual findings of the Secretary are conclusive if supported by "substantial evidence"). Thus, we remand the case to the district court with instructions to remand to the Secretary for appropriate factfinding. 14 On remand, the ALJ should reconsider all the facts and circumstances of the case in accordance with the statutory and regulatory principles applicable in cases where the grids do not apply. See App. 2, Sec. 200.00(a) ("In any instance where a rule does not apply, full consideration must be given to all of the relevant facts of the case in accordance with the definitions and discussions of each factor in the appropriate sections of the regulations"). The ALJ is, of course, entitled to evenhandedly supplement the record on the dispositive issue if he finds it appropriate. However, any use of the grids as a measure of Gibson's ability to work would be inappropriate since Gibson's sit/stand limitation renders the residual functional capacity variable grossly over-inclusive. See supra note 7. 15 Accordingly, the decision of the district court is vacated and remanded for proceedings consistent with this opinion. VACATED and REMANDED.8 Honorable Homer Thornberry, U.S. Circuit Judge for the Fifth Circuit, sitting by designation 1 Certain impairments are so severe either when considered alone or in conjunction with other impairments that, if such impairments are proved, the regulations require a finding of disability without further inquiry into the claimant's ability to work. 20 C.F.R. Sec. 404.1520(d); see 20 C.F.R. Part 404, Subpart P, Appendix 1 (enumerating and explaining so-called "listed impairments"). The ALJ found that Gibson did not meet any listed impairment, Record, vol. 2 at 13, and Gibson does not dispute that finding on appeal 2 The DOT and the Occupational Outlook Handbook are two of the authoritative government publications of which the Secretary has taken administrative notice for use in determining whether work exists in substantial numbers in the national economy. See 20 C.F.R. Secs. 416.966(d)(1), (5). The DOT classifies work as "sedentary," "light," "medium," "heavy," or "very heavy" in accordance with the use of those terms by the Secretary in making determinations of residual functional capacity, i.e., a claimant's ability to do work despite impairments. Id. at Sec. 416.967 3 Presumably, the ALJ's use of the term "modified range" was a reference to Gibson's sit/stand limitation, a factor curiously not taken into account when the ultimate finding of "not disabled" was made. See discussion in text infra 4 This finding, that Gibson could do no more than light work, renders purely hypothetical the ALJ's question to Bramlett premised upon Gibson's ability to do medium work 5 The regulations succinctly state when the grids should be used by the Secretary to determine disability and when they should not: The Dictionary of Occupational Titles includes information about jobs (classified by their exertional and skill requirements) that exist in the national economy. Appendix 2 provides rules using this data reflecting major functional and vocational patterns.... The rules in Appendix 2 do not cover all possible variations of factors. Also, as we explain in Sec. 200.00 of Appendix 2, we do not apply these rules if one of the findings of fact about the person's vocational factors and residual functional capacity is not the same as the corresponding criterion of a rule. In these instances, we give full consideration to all relevant facts in accordance with the definitions and discussions under vocational considerations. However, if the findings of fact made about all factors are the same as the rule, we use that rule to decide whether a person is disabled. 20 C.F.R. Sec. 404.1569; see also App. 2, Secs. 200.00(a), (d); cf. id. at Sec. 200.00(e) 6 The ALJ finding stated that "in view of the claimant's age, education, and residual functional capacity, the issue of transferability of work skills is not material." Record, vol. 2 at 16. Although this statement is less than clear, we view it as a determination that Gibson's work skills are not transferable, given that the grid matrix used indicated nontransferability, see App. 2, Table 1, Rule 201.25, and the record evidence, apparently concurred in by the ALJ, Record, vol. 2 at 16, indicated that Gibson could no longer perform work akin to his past relevant work as a manual laborer. See 20 C.F.R. Sec. 416.968(d)(2) (common factors indicating likelihood of transferability among jobs) 7 The fact that the ALJ stated that he used Rule 201.25 "as a framework," Record, vol. 2 at 15-16, is of no consequence. After a careful reading of the ALJ's opinion, we are convinced that he mechanically applied Rule 201.25 without regard to the fact that Gibson's situation did not comport with the rule in at least one crucial aspect. See id. at 14-16. The language of the opinion indicates that the ALJ felt bound by the grids to render a finding of "not disabled." See id. at 15 ("Using as a framework Rule 201.25 ... claimant must be found 'not disabled' ") (emphasis added). We are aware that the grids, although not determinative, can provide a "frame of reference" when a claimant's condition does not fully coincide with the criteria of a rule, e.g., where a claimant has a combination of impairments, see App. 2, Sec. 200.00(d); however, the regulations indicate that where a claimant's condition is not met by the criteria of a rule the disability determination is generally made by reference to individualized evidence and principles relating to the assessment of individual factors found elsewhere in the regulations, see App. 2, Secs. 200.00(a), (e), and may not in any case be made by the mechanical approach taken in the instant case. Moreover, in this case, since the grids are grossly overinclusive with respect to residual functional capacity, use of the grids would be inappropriate even as a "frame of reference." See discussion in text infra 8 Of course, since the ALJ on remand will be considering all the relevant facts without use of the grids, he will also necessarily consider claimant's age on an individual basis. Thus, we need not decide whether claimant would have been entitled to a remand on the basis of our recent decisions in Broz v. Schweiker, 677 F.2d 1351 (11th Cir.1982), vacated and remanded sub nom., Heckler v. Broz, 461 U.S. 952, 103 S.Ct. 2421, 77 L.Ed.2d 1311, adhered to, 711 F.2d 957 (11th Cir.), modified, 721 F.2d 1297 (11th Cir.1983), and its progeny. See Reeves v. Heckler, 734 F.2d 519 (11th Cir.1984); Wilson v. Heckler, 734 F.2d 513, 519 (11th Cir.1984) Similarly, since we are remanding this case for further proceedings we need not address Gibson's argument that the ALJ improperly engaged in "sit and squirm" jurisprudence. We are confident that on remand the ALJ will evaluate the evidence concerning Gibson's pain in accordance with this court's "sit and squirm" precedents. See, e.g., Wilson, 734 F.2d at 516-18; Freeman v. Schweiker, 681 F.2d 727, 731 (11th Cir.1982).	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs January 18, 2001 STATE OF TENNESSEE v. TIMOTHY L. ROBERTSON Direct Appeal from the Criminal Court for Davidson County No. 99-B-1027 J. Randall Wyatt, Jr., Judge No. M2000-01235-CCA-R3-CD - Filed December 7, 2001 The defendant, Timothy L. Robertson, was indicted on two counts of unlawful possession of a controlled substance with intent to sell; one count of felony possession of a weapon; and one count of driving on a revoked or suspended license. Following the trial court’s denial of his motion to suppress, he pled guilty to one count of possession of more than .5 grams of cocaine with the intent to resell, a Class B felony, and one count of felony possession of a weapon, a Class E felony. In accordance with the terms of his plea bargain agreement, the remaining counts of the indictment were dismissed. Pursuant to Rule 37(b)(2)(1) of the Tennessee Rules of Criminal Procedure, the defendant reserved the right to appeal as a dispositive question of law the issue of whether his custodial arrest and the subsequent search of his vehicle violated the Fourth Amendment of the United States Constitution, Article I, Section 7 of the Tennessee Constitution, and Tennessee Code Annotated Section 40-7-118(b)(1)(c). We conclude that the officers were required to make a custodial arrest of the defendant to prevent his continued violation of the driver’s license law, and that the subsequent search of his vehicle was valid as incident to that arrest. Accordingly, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed JERRY L. SMITH, J., delivered the opinion of the court, in which THOMAS T. WOODA LL and ROBERT W. WEDEMEYER , JJ., joined. Nicholas D. Hare, Nashville, Tennessee, for the appellant, Timothy L. Robertson. Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Erik R. Herbert, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION Factual Background At about 5:00 p.m. on October 16, 1998, Metropolitan Nashville Police Officer David Goodwin stopped the defendant for running a stop sign at Rockwood Drive and Rockwood Place in Nashville. Officer John Vincent, driving in a separate patrol car, arrived on the scene in time to see the defendant get out of his car and walk to the rear of his vehicle. The defendant had no identification but provided the officers his name, date of birth, and social security number. By running his name and date of birth through dispatch, Officer Vincent learned that the defendant’s driver’s license had been revoked. The officers then placed him under custodial arrest for driving on a revoked license, handcuffed him and put him in the rear of a patrol car. Upon opening the driver’s door of the defendant’s car, Officer Vincent discovered a loaded clip of nine-millimeter ammunition between the driver’s seat and the door jam. The officers’ continued search uncovered, among other items: a nine-millimeter handgun and approximately ten grams of crack cocaine underneath the driver’s seat; eleven pills of Alprazolam, a Schedule IV controlled substance, in the console; and the butt of a marijuana cigarette in the ashtray. The officers also found $2162 in cash in the defendant’s right front pocket. The defendant filed a motion to suppress all evidence resulting from the stop. At the February 1, 2000, suppression hearing, Officer Vincent testified that the defendant’s girlfriend pulled up in her car as he was beginning his search of the defendant’s vehicle, at about the time that he opened the driver’s door to the defendant’s car. He said that they were following standard procedure of inventorying the vehicle prior to towing, and that they did not turn the vehicle over to the girlfriend because she was in a separate car and had small children with her. Officer Vincent explained that they placed the defendant under custodial arrest because he had no valid identification, and his license came back as revoked. He said that it was departmental policy to place anyone under custodial arrest whose license comes back as revoked or suspended, and who cannot produce a proper state identification. Officer Goodwin testified that the defendant was placed under custodial arrest when they learned that he did not have a driver’s license. He said that the defendant’s girlfriend arrived at the scene at “about the time he was placed in custody.” The defendant’s girlfriend, Latika Morton, testified that she arrived at the scene before the defendant was handcuffed while the police were still questioning him about his identification. At the conclusion of the hearing, the trial court denied the defendant’s motion to suppress. The court found that the officers appropriately placed the defendant under custodial arrest based on the fact that he was driving on a revoked license and was unable to produce valid identification, and that their search of the passenger compartment of his vehicle was permissible as incident to the valid arrest and as part of an inventory search prior to towing. On February 23, 2000, the defendant filed a motion to reconsider the trial court’s decision, citing State v. Walker, 12 S.W.3d 460 (Tenn. 2000), to argue that the officers had no objectively reasonable basis to doubt his identification information and, thus, no lawful grounds to place him -2- under custodial arrest for the misdemeanor offense of driving on a revoked license. On March 23, 2000, the trial court entered a written order denying the defendant’s motion. The court first distinguished Walker from the instant case by noting that the identification information provided by Walker, unlike that provided by the defendant in the case at bar, came back as belonging to a valid driver’s license. The court then found that the defendant was lawfully placed under custodial arrest based on the subsection of the cite and release statute providing for custodial arrest for a misdemeanor offense when “[t]here is a reasonable likelihood that the offense would continue or resume,” Tenn. Code Ann. § 40-7-118(c)(2)(1997), and that the subsequent search of the vehicle was permissible as incident to the custodial arrest, and as a valid inventory search in preparation for the vehicle to be towed. The court also found that the officers’ discovery of the ammunition clip created probable cause to justify a further search of the vehicle. The defendant subsequently pled guilty to the possession of more than .5 grams of cocaine with the intent to resell and felony possession of a weapon. With the permission of the trial court and the State, he reserved the following question of law, which he states as follows: “Whether the custodial arrest of the defendant and subsequent search of the vehicle he was driving conformed with the Fourth Amendment of the United States Constitution, Article I, Section 7 of the Tennessee Constitution, and Tenn. Code Ann. § 40-7-118(b)(1)(c).” Standard of Review We review the trial court’s denial of the defendant’s motion to suppress under the following well-established standard of review: The party prevailing in the trial court is entitled to the strongest legitimate view of the evidence adduced at the suppression hearing as well as all reasonable and legitimate inferences that may be drawn from that evidence. So long as the greater weight of the evidence supports the trial court’s findings, those findings shall be upheld. In other words, a trial court’s findings of fact in a suppression hearing will be upheld unless the evidence preponderates otherwise. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The trial court’s application of law to the facts, however, is a question of law, which is reviewed de novo. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). Suppression On appeal to this court, the defendant cites Walker and Tennessee Code Annotated Section 40-7-118(b)(1) and (c)(3) to argue that the officers could not lawfully place him under custodial arrest based solely on the fact that he was unable to produce photographic identification, and that their subsequent search of his car therefore violated the protections against unreasonable search and seizure afforded by the United States and Tennessee Constitutions. He also argues that there is no -3- merit to the State’s contention that a custodial arrest was necessary to prevent a continuation of the offense, because his girlfriend could have driven him from the scene in her car. The State argues that the cite and release statute provided the officers with discretion to place the defendant under custodial arrest for driving on a revoked license, and that the officers took him into custody not because of his failure to produce picture identification, but because of the likelihood that the offense would continue. The State therefore contends that the trial court properly denied the motion to suppress because the search of the passenger compartment of the defendant’s vehicle was conducted incident to a valid arrest. We agree with the State. Tennessee Code Annotated Section 40-7-118, the “cite and release” statute, provides that in the case of most misdemeanors, an officer must issue a citation instead of effectuating a custodial arrest. See Tenn. Code Ann. § 40-7-118(b)(1) (1997). However, for some misdemeanors, including driving on a revoked or suspended license, an officer has the discretion to either issue a citation or place the individual who committed the offense under custodial arrest. See id. at (b)(3)(C); see also State v. John Earl Thompson, No. 01C01-9308-CC-00259, 1994 WL 179778, at 2 (Tenn. Crim. App. at Nashville, May 12, 1994) (“Citations are discretionary with the officer for persons arrested for . . . revoked or suspended driver’s license infractions[.]”). Moreover, the statute provides that if one of eight conditions exists, “no citation shall be issued.” Tenn. Code Ann. § 40-7-118(c)(1)- (8). The conditions for which an officer must place an individual under custodial arrest include when “[t]here is a reasonable likelihood that the offense would continue or resume,” id. at (c)(2), and when “[t]he person arrested cannot or will not offer satisfactory evidence of identification[.]” Id. at (c)(3). The defendant relies on Walker as support for his argument that the officers should not have placed him under custodial arrest. We agree with the State and the trial court that Walker is readily distinguishable from the case at bar. The sole issue in Walker was what constitutes “satisfactory evidence of identification” for the purposes of subsection (c)(3) of Tennessee Code Annotated Section 40-7-118. In that case, a police officer approached a defendant whose car radio was playing at an excessive volume, informed him that he would be issued a citation for violating the city’s noise ordinance, and asked to see his driver’s license and vehicle registration. Walker, 12 S.W.3d at 462- 63. The defendant, who had left his driver’s license at his mother’s house, provided the officer with his name, date of birth, and driver’s license number, all of which were verified by the officer’s dispatcher as belonging to a valid license. Id. at 463. Nonetheless, the officer decided to take the defendant into physical custody because he did not have his driver’s license or other identification with him. When the officer searched the defendant incident to that arrest, he found marijuana and a substance containing cocaine. Id. Adopting an “objectively reasonable” test for what constitutes satisfactory evidence of identification, our supreme court held that an officer must have a “‘specific articulable reason to doubt that the cited person has accurately identified himself [or herself] before taking him [or her] into custody.’” Id. at 465 (quoting People v. Monroe, 12 Cal. App. 4th 1174, 16 Cal. Rptr. 2d 267, 286 (1993) (Smith, J., dissenting)). Because the State failed to show an objective reason for the officer to doubt the reliability of the identification information provided by the defendant, the court concluded that the custodial arrest was unlawful, and that the evidence seized as a result of that arrest should have been suppressed. Id. at 468. -4- The evidence here, by contrast, reveals that the defendant was placed under custodial arrest not because the officers doubted his identification information, but because the information he provided revealed that he was driving on a revoked license, and there was a reasonable likelihood that the offense would continue. In such a situation, custodial arrest is not merely within the officer’s discretion, but is required under subsection (c)(2) of Tennessee Code Annotated Section 40-7-118. See Tenn. Code Ann. § 40-7-118(c)(2). As support for his claim that he was placed under custodial arrest because of his failure to provide photographic identification, the defendant cites a portion of Officer Vincent’s testimony in which he stated that the officers arrested the defendant because “[t]here was no way to verify his information without a picture I.D. He had no kind of picture I.D.” Elsewhere in his testimony, however, Officer Vincent indicated that it was the combination of the defendant’s revoked driver’s license status and lack of photographic identification that caused the officers to place him under custodial arrest. Furthermore, Officer Vincent’s subjective belief about the reason for the custodial arrest is not controlling. See State v. Vineyard, 958 S.W.2d 730, 734 (Tenn. 1997) (citing Whren v. United States, 517 U.S. 806, 812, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996)). Officer Goodwin testified at the suppression hearing that he did not place the defendant under custodial arrest when he first learned that he had no photographic identification. Instead, he asked the defendant to step away from the back of his vehicle while Officer Vincent ran the information the defendant provided through dispatch. Only after they learned that the status of the defendant’s license was revoked was he placed in custody. The defendant argues that there was no reasonable likelihood that he would have continued to drive on a revoked license because his girlfriend was present at the time of his arrest, and could have driven him from the scene in her automobile. Based on the trial court’s language that “[a]t some point during the stop, Ms. Latika Morton . . . arrived on the scene,” the defendant asserts that the court “thus did not find that [he] was in custody” when his girlfriend arrived at the scene, and argues that there was therefore no basis for the officers to take him into custodial arrest in order to prevent a continued offense. We disagree. The trial court’s statement that Morton arrived “[a]t some point during the stop” does not, as the defendant implies, equate to a finding that he was not in custody when she arrived at the scene. Although Morton testified that she arrived before the defendant was arrested, both officers’ testimonies indicated that she appeared either simultaneously with the custodial arrest, or after the defendant had already been placed in handcuffs and inside the patrol car. Officer Vincent testified that Morton arrived as he was beginning his search of the defendant’s car, and Officer Goodwin said that she arrived “at about the time” that the defendant was placed in custody. Officer Vincent further testified that Morton did not at first identify herself as the defendant’s girlfriend. Particularly noteworthy is the fact that she was driving a separate car. Thus, even had she arrived before the defendant was placed under custodial arrest, the officers would have been justified in concluding that there was a reasonable likelihood that the defendant would continue driving his own car if they merely issued him a citation. Under these circumstances, the officers were authorized to place the defendant under custodial arrest to prevent a continuation of the offense. See State v. Jeffrey L. Hammons, No. M1999-00756-CCA-R3-CD, 2000 WL 924633 (Tenn. Crim. App. at Nashville, June 30, 2000) (concluding that officer was authorized to place defendant whose license -5- was revoked under custodial arrest to prevent further violation), perm. to appeal denied (Tenn. Feb. 20, 2001); State v. Juan E. McAdams, No. 01C01-9704-CR-00140, 1998 WL 305500, at 2 (Tenn. Crim. App. at Nashville, June 11, 1998), perm. to appeal denied (Tenn. Mar. 1, 1999) (concluding that custodial arrest is “appropriate” when officer discovers defendant is driving on a revoked license in order to prevent continuation of the offense). Having placed the defendant under custodial arrest, the officers were then authorized to make a contemporaneous search of the passenger compartment of his vehicle incident to that arrest. See New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864, 69 L. Ed. 2d 768 (1981); State v. Watkins, 827 S.W.2d 293, 295-96 (Tenn. 1992). The fact that the defendant was handcuffed and seated in the rear of the patrol car at the time does not destroy the contemporaneous nature of the search. United States v. White, 871 F.2d 41, 44 (6th Cir. 1989); Watkins, 827 S.W.2d at 296. We therefore conclude that the evidence in this case was properly admissible as the result of a search conducted incident to a valid custodial arrest. Because the evidence was discovered within the passenger compartment, we need not determine whether, under the circumstances of this case, the officers were authorized to conduct an inventory search of the vehicle. Accordingly, the judgment of the trial court is AFFIRMED. ___________________________________ JERRY L. SMITH, JUDGE -6-	{ "pile_set_name": "FreeLaw" }
137 Cal.App.2d 158 (1955) ARGONAUT INSURANCE EXCHANGE, Petitioner, v. GORDON FRANK KATES (a Minor) and INDUSTRIAL ACCIDENT COMMISSION, Respondents. Civ. No. 16793. California Court of Appeals. First Dist., Div. One. Nov. 21, 1955. Leonard, Hanna & Brophy and Edmund D. Leonard for Petitioner. Everett A. Corten and Daniel C. Murphy for Respondents. BRAY, J. Raising the interesting question as to whether enlistment in the United States Army by a minor under 18 constitutes an emancipation making the presumption of dependency provided in section 3501, Labor Code, inapplicable, petitioner seeks review and annulment of an order of the commission awarding a death benefit to respondent Gordon, the minor son of John Kates who was killed in an industrial accident. 159 Facts John and his wife, Pauline, were divorced in 1939 by a decree of the Superior Court of the State of Washington, under which she received no alimony, but which ordered John to pay her $40 per month for the support of their three children, of whom she was given custody. April 22, 1954, John was killed in an industrial accident in California. At that time said decree was in full force. The other two children had passed the ages of 18. Gordon was 17 years and 4 months old. A week after his 17th birthday and almost four months prior to his father's death, Gordon, with his mother's consent, enlisted in the Army, and at the time of his father's death was receiving $74 a month as a private. For an extended period prior to his death John had not in fact paid the support money ordered by the court nor supported Gordon in any manner. The commission applied the presumption of dependency provided by section 3501, Labor Code, and granted to Gordon a death benefit of $7,000. Emancipation Section 3501, Labor Code: "The following shall be conclusively presumed to be wholly dependent for support upon a deceased employee: ... (b) A child under the age of eighteen years or over that age but physically or mental incapacitated from earning, upon the parent with whom he is living at the time of the injury of the parent or for whose maintenance the parent was legally liable at the time of injury, there being no surviving dependent parent." (Emphasis added.) It is contended that the father was no longer legally liable for Gordon's maintenance because the latter's enlistment emancipated him from his parents and hence the conclusive presumption of that section does not apply. Whether this is so is a matter of first impression in this state. Although the Civil Code provides that a child may be emancipated by an abuse of parental authority ( 203), by marriage or attaining majority ( 204), or by the parent voluntarily relinquishing it ( 211), there is no provision for emancipation by enlistment in the service. [1] It has long been established that as between the government and the parent the minor becomes emancipated from the control of the latter on enlistment or drafting into the armed forces. (See Baker v. Baker (1868), 41 Vt. 55; In re Morrissey (1890), 137 U.S. 157 [11 S.Ct. 57, 34 L.Ed. 644]; United States v. Williams, 302 U.S. 46 [58 S.Ct. 81, 82 L.Ed. 160 39] (rehearing denied 302 U.S. 779 [58 S.Ct. 361, 82 L.Ed. 602]).) The effect of a minor's enlistment upon the father's obligation to comply with a court order for the minor's support has been determined elsewhere in Corbridge v. Corbridge (1952), 230 Ind. 201 [102 N.E.2d 764]. There, with the consent of both parents, the minor son enlisted in the Army at a time when a divorce decree requiring the father to pay $45 per month for the minor's support was still in effect. On appeal from a judgment finding the father in contempt for failing to comply with the decree, the court flatly held that the minor's enlistment emancipated the child and made the father no longer liable for his support. The court referred to a statement in the Morrissey case, supra (p. 767): " 'An enlistment is not a contract only, but effects a change of status' " and the following in Iroquois Iron Co. v. Industrial Com. (1920), 294 Ill. 106, 109 [128 N.E. 289, 290, 12 A.L.R. 924]: " 'When a minor enlists in the military service of this country, he ceases to be a part of his father's family, and puts himself under the control of the government, and is consequently emancipated so long as this service continues ...' " It then held (p. 768): "By the son's enlistment, his custody was placed in the United States Army. We cannot presume that the federal government did not and would not make full and adequate provision for his support, maintenance, medical care, and education if required. This would be true whether the son enlisted or was drafted." "As soon as the son entered the armed forces the purposes of the trust for support, maintenance and education abated, and so continued as long as that service continued. ..." "There is no more reason for equity granting the coercive remedy of imprisonment to compel payment of past due installments of support after a son is a member of the armed forces of the United States than if he had attained his majority, or if prior thereto he had been absolutely emancipated." The Iroquois case, supra, dealt with a situation almost identical with ours. Under a divorce decree in full force at the time of the father's death resulting from an industrial injury, the father was ordered to pay certain sums weekly for the support of his minor son. With the father's consent, but without the mother's, and approximately three years before the father's death, the minor enlisted in the United States Marines, and was still in that service and a minor at the father's death. The commission awarded the son compensation 161 for the death of the father. The problem before the court was stated (p. 290): "It seems too clear to require argument that Reginald Olesen was not dependent upon his father for support, but the question of dependency is not controlling here. The question we are called upon to determine is whether the deceased was under legal obligation to support this son at the time of the injury." (This is identically our problem.) As set forth in the Corbridge case, supra, the reviewing court held that the minor's enlistment constituted an emancipation and that thereafter the father was "not under legal obligation to support his son." (P. 290.) The award was reversed. In Peters v. Industrial Com., (1924), 314 Ill. 560 [145 N.E. 629], the Illinois Supreme Court approved the rule of the Iroquois case but modified it to the extent that if at any time during minority the child is discharged from military service and returns home, he again becomes subject to parental control and the emancipation terminates. To the same effect is Green v. Green (Mo.App., 1950), 234 S.W.2d 350, where the court reversed an order of the trial court denying the father's motion to modify a divorce decree ordering support of the minor son, after that son had enlisted in the Navy. See Dean v. Oregon R. & Navigation Co., 44 Wash. 564 [87 P. 824], to the effect that if enlistment in the Army constitutes an emancipation, it terminates upon the minor's discharge. To the same effect, 67 Corpus Juris Secundum 814. In Swenson v. Swenson (Mo.App., 1950), 227 S.W.2d 103, the father failed to pay the amounts ordered in a divorce decree for the support of his minor son on the ground of the son's induction into the Army. In reversing the trial court's order refusing to quash execution for the unpaid amount the reviewing court quoted from the Iroquois case, supra, and held that such induction emancipated the child and relieved the father from complying with the divorce decree. There is authority to the contrary of the rule stated in the Iroquois case. In Torras v. McDonald (1943), 196 Ga. 347 [26 S.E.2d 598], a father whose minor son was inducted into the United States Coast Guard, contended that such fact emancipated the child, and thereby rendered the father not liable in contempt for failing to comply with a previous divorce decree ordering him to pay monthly for the son's support. It appears that in Georgia, unless the power to alter or amend a decree of that type is reserved in the decree it 162 may not be thereafter modified. The court pointed out that in making the order for support the court takes that fact into consideration. As to the contention that the minor's induction into service terminates the father's duty to pay the support provided in the decree the court said (p. 600): "The induction of a minor son into the armed forces is nothing more than a rise or fall of the needs of a minor for maintenance and support, and is indefinite and uncertain as to the duration of such status." In Harwood v. Harwood, 182 Misc. 130 [49 N.Y.S.2d 727], affirmed (268 App.Div. 974 [52 N.Y.S.2d 573]), the question in a suit brought by a minor's mother against his father, her former husband, was (p. 727 [49 N.Y.S.2d]): "The questions presented on this appeal are, first, whether the induction of a minor into the Military Service of the United States operates as a temporary emancipation during his term of service so as to suspend the obligation of his father to make payments, under a separation agreement, for the son's support, maintenance and education ..." The court referred to the rule of the Iroquois case, supra, distinguishing the two cases upon the ground that this was an action upon a contract, while the Iroquois case was an issue of dependency under the Workmen's Compensation Law. The court said, however, "But to the extent that the Iroquois case is contrary to the views here expressed, we do not follow it. The induction of the boy into the Armed Services results only in a suspension of any right appellant may have to his boy's services during such period as the Nation exercises its superior right to such services. The pay received by the boy may be regarded in the nature of a gratuity from the Government, because the Government in time of war unquestionably has the right to determine what sum, if any, it will pay to those whom it calls into service. Even while the boy is in actual service, there may be many obligations which the parent is still called upon to assume." "The obligation under the contract is not one of reimbursement to the wife for any expenses incurred by her in maintaining and supporting the son, and nothing else. The obligation does not spring into existence only upon a showing by the plaintiff that she has expended certain sums in maintaining and supporting the boy. That does not mean, nor does she claim, that she would be entitled to retain for her own use and benefit the full sum specified in the contract to the exclusion of her son, the other beneficiary; but the fact that she would have no right to the sole use and benefit 163 of the full installment does not impair her right to collect the entire amount. With respect to any benefits intended for the boy, her position would be that of a trustee charged with the duty, both legal and moral, to affect collection so as to make available to the boy the benefits intended for him. Seaver v. Ransom, 224 N.Y. 233 [120 N.E. 639, 2 A.L.R. 1187]. The plaintiff is not seeking a 'windfall' for herself, as the appellant charges. Rather she is seeking to prevent the appellant from taking advantage of a situation arising because of the gravest of all national emergencies." (Pp. 730-731 [49 N.Y.S.2d].) Eisenberg v. Eisenberg (1945), 59 N.Y.S.2d 534, approved and followed the Harwood case in granting an order requiring the father to comply with the requirement of a separation agreement to pay support for a minor son who had entered the Merchant Marine. In Wack v. Wack, 74 N.Y.S.2d 435, there was a similar situation, the minor son being in the Navy. Giving the Harwood case as a reference the court said (p. 436): "... defendant is entitled to no credit; induction into military service does not constitute an emancipation nor suspend nor abrogate the father's contractual obligation to contribute to his son's maintenance." In Carson v. Carson (1950), 120 Ind.App. 1 [89 N.E.2d 555], the separation agreement which provided for the support of the minor son was incorporated in a divorce decree. In an action on the contract, the father contended he was excused from complying with its terms because of the alleged emancipation of the son by reason of his being in the Army. The court said (p. 558 [89 N.E.2d]): "It is our opinion that no emancipation of the son has occurred by reason of his entering the Armed Forces to release the father from the performance of his contractual obligations. Although, on occasion 'emancipation' has been used to signify complete severance of the legal rights and liabilities attendant upon the relationship of parent and child, it has frequently and more accurately been held to operate merely as a relinquishment to the child of its earnings, free of any of the rights or claims thereto in favor of the parent. 'Emancipation' does not operate to release a parent from liabilities and obligations involving his child which he has expressly covenanted to perform. The doctrine of emancipation has as its basis sound principles of public policy and has been applied by the courts, for the most part, to protect the best interests of children and those who have provided them with necessaries when their parents have failed 164 to do so. The entering of the child into the Armed Services does not constitute a voluntary surrender of control on the part of the parent. Harwood v. Harwood (1944), 182 Misc. 130 [49 N.Y.S.2d 727]. ... The pay received by the boy may be regarded in the nature of a gratuity from the Government, because the Government in time of war unquestionably has the right to determine what sum, if any, it will pay to whom it calls into service. Even while the boy is in actual service, there may be many obligations which the parent is still called upon to assume." Volume 2, Armstrong, California Family Law, page 1259, states: "Although no decision squarely meets this question, statements made by the supreme court in Workmen's Compensation cases in regard to the general scope of the parental duty to support the child suggests that California accepts the general rule that emancipation, except by marriage of the minor, affects only the rights of the parent and not his duties." (Emphasis added.) This statement is based partially [fn. 1] on language in Federal Mut. Liab. Ins. Co. v. Industrial Acc. Com. (1925), 195 Cal. 283 [233 P. 335], where the court upheld an award to a minor child for the industrial death of her father who for eight years had failed to provide for her and only shortly before his death had commenced to contribute anything to her support. In concluding that the conclusive presumption of the Workmen's Compensation Act (now Lab. Code, 3501) applied, the court said (pp. 289-290): "Whether such conclusion is based upon the proofs of the voluntary resumption on the part of the father of his parental relations and obligations to his child, or upon the legal liability for the support of his child imposed by the terms of the divorce decree, or upon the broader ground of the basic legal obligation imposed by law upon a father to support his dependent child to the end that it shall not become a public charge, the award of the Commission upon either and all of these grounds can be sustained." Thus Armstrong's statement can hardly be applied to the question of emancipation by enlistment in the armed forces. As above shown, the majority of jurisdictions where the question has been considered hold that such enlistment constitutes an emancipation during its continuance which releases the parent of the obligation to support [fn. 2] except where he has 165 contracted to support the child during minority, in which case he would be held on the contract. [fn. 3] The only case we have been able to find flatly holding in the absence of an agreement to support the minor, that the latter's enlistment does not constitute an emancipation and does not relieve the father of complying with the support order is the Georgia case of Torras v. McDonald, supra, 26 S.E.2d 598. [fn. 4] Petitioner cites the quotation (hereafter set forth) in Aetna Life Ins. Co. v. Industrial Acc. Com., 175 Cal. 91, 94 [165 P. 15, L.R.A. 1918F 194], taken from Lackman v. Wood, 25 Cal. 147, as being in support of its claim that the minor here was emancipated. The Aetna case dealt with a 19-year-old son whom it was held was not emancipated by the fact that for work on his father's ranch where the family lived the father gave the son from time to time small sums of money as payment of wages. Obviously the case itself is not in point. The Lackman case dealt with the question of whether at the time he took up certain land, the son of defendants, upon whose acts the defendants relied for their title, had been emancipated by the father. The language referred to above is (p. 151): "The power of a father to emancipate his minor child cannot be questioned; nor can there be any doubt as to the effect of such emancipation upon the relations of the persons who are parties to it. The child is freed by emancipation from parental control; he can claim his earnings thereafter as against his father, and is in all respects his own man." While it is true the father may emancipate his child (Civ. Code, 211) he had not done so in our case, unless Gordon's joining the Army constituted an emancipation. Respondent commission in determining that enlistment of the minor did not constitute emancipation, relied upon, in addition to Torras v. McDonald, supra, 26 S.E.2d 598, Pacific 166 Emp. Ins. Co. v. Industrial Acc. Com. (1947), 81 Cal.App.2d 37 [183 P.2d 344], where the court held that the presumption we are dealing with here applied even though the minor was self-supporting and the father had not contributed to his support for over 10 years, saying, "Irrespective of the presumptions mentioned in Labor Code, section 3501, the first duty of a father is to support his legitimate children" (p. 41): also Federal Mut. Liab. Ins. Co. v. Industrial Acc. Com., 195 Cal. 283 [233 P. 335] (discussed above), and Kamper v. Waldon (1941), 17 Cal.2d 718 [112 P.2d 1], which holds that the marriage of a minor and the emancipation thereby provided by section 204, subdivision 2, Civil Code, does not release the father from his obligation to comply with the terms of a property settlement agreement entered into theretofore in which he agreed to pay monthly for the support of said minor. This holding was based upon the statement that "It may be assumed, in the absence of an agreement to the contrary, that a parent is released from the legal duty of support upon the complete emancipation of a minor child, as by its lawful marriage" (p. 720), and the further statement (p. 720): "Upon sufficient consideration the parent may agree and be bound to do more than the statute requires, so long as the additional obligation is not contrary to nor inconsistent with the statutory provision." It should be pointed out that in the Waldon case the court did not determine whether complete emancipation results from the minor's marriage: it merely assumed for the purpose of the case that it did and then held that in spite of such assumption the father's agreement to support continued in force. [2] This court is faced with the question of whether it will follow the majority or the minority rule as to the effect of induction into the armed services. Because the majority rule is that the emancipation may be only a temporary one, ending if the minor is released from service during his minority, and also does not release the father of his contract obligation; because as stated in Torras v. McDonald, supra, 26 S.E.2d at p. 600, "The induction of a minor son into the armed forces is nothing more than a rise or fall of the needs of a minor for maintenance and support, and is indefinite and uncertain as to the duration of such status"; because in all the cases discussing the matter it is held that the payment by the father of support for the minor during the period of enlistment must be held by the mother as trustee for the minor "to make available to the boy the benefits intended 167 for him" (Harwood v. Harwood, supra, 49 N.Y.S.2d 727, 731), and because under Pacific Emp. Ins. Co. v. Industrial Acc. Com., supra, 81 Cal.App.2d 37, had the minor here been completely self-supporting in industry, rather than in his country's service, he would not have been emancipated and would have been entitled to compensation by reason of his father's death, we believe that the minority rule is the better one and should be applied in this state. We are of the opinion, therefore, that the conclusive presumption of dependency set forth in section 3501, Labor Code, applies; that the induction of the minor son into the Army did not constitute such an emancipation as to relieve the father of his obligation to comply with the court order for support, and hence the "parent was legally liable at the time of injury ..." (Lab. Code, 3501, subd. (b).) The award is affirmed. Peters, P. J., and Wood (Fred B.), J., concurred. NOTES [fn. 1] 1. It is also partially based upon a reference to Madden, Persons and Domestic Relations, 408, which, however, discusses emancipation in general without any consideration of the effect of enlistment. [fn. 2] 2. Indiana, Illinois, Missouri. [fn. 3] 3. New York, Indiana. [fn. 4] 4. While New York has not passed upon the question except where a separation agreement was involved, the language hereinbefore quoted from Harwood v. Harwood, 182 Misc. 130 [49 N.Y.S.2d 727], to the effect that the father's contract liability still exists after the minor's enlistment and that the moneys owed by the father are to be held in trust by the mother for the boy, coupled with the statement (p. 730), "The induction of the boy into the Armed Services results only in a suspension of any right appellant [the father] may have to his boy's services" during the period of the boy's remaining in the service, might indicate that in a case similar to ours the court might follow the Georgia rule. (Emphasis added.)	{ "pile_set_name": "FreeLaw" }
106 So.2d 671 (1958) Ex parte William Dale SHIRLEY. 6 Div. 574. Court of Appeals of Alabama. October 7, 1958. Rehearing Denied October 28, 1958. 672 J. J. Cockrell, G. Ernest Jones, Sr., and G. Ernest Jones, Jr., Birmingham, for petitioner. John Patterson, Atty. Gen., and Wm. C. Younger, Asst. Atty. Gen., for respondent. HARWOOD, Presiding Judge. This is an original petition for mandamus, the purpose of which is to require the respondent judge to expunge from an order dismissing the prosecution under an indictment charging the petitioner with a felony, that part of the order holding the petitioner for further indictment by the grand jury. Briefly summarized the case made by the petition for the writ is the following: The petitioner was put to trial upon an indictment, in several counts, alleging that he corruptly procured one Gayle Gene Holsomback on her examination as a witness on the trial of a criminal prosecution against the petitioner, defendant, to swear falsely to a stated fact, etc. Upon introduction of the State's first witnesses, defendant interposed objections, and by these objections and otherwise it became evident that the proof would show the name of the allegedly suborned witness to be Holsonback. Thus bringing about a variance between the pleading and the proof. After some preliminaries and discussions, the State's solicitor offered an amendment to the indictment. Whether or not the defendant would consent to the amendment brought forth the somewhat lengthy proceedings disclosed by the petition for mandamus and exhibits thereto. The end result was an order of the respondent, pursuant to Section 254, Title 15 of the Code, and in the form prescribed, dismissing the prosecution on the basis of defendant's refusal to consent to the amendment and holding him to subsequent action of the grand jury. As we interpret the petition and the entire record presented to us, the petitioner's contention is that his constitutional rights have been infringed in these particulars: First that it affirmatively appears that the petitioner as defendant consented to the amendment, and that the respondent judge was unauthorized to dismiss the case. Second, that the part of the order holding defendant to the grand jury was after the jury had been discharged and at a time when defendant and his counsel were not present. We deal with these contentions in this order. First, as to defendant's consent vel non. The record discloses that after an exchange of remarks, questions and statements on the part of the judge and counsel both for the State and the defendant, the judge excused the jury and requested a conference in his chambers 673 with the respective counsel. At this conference, it appears, the judge informed defense attorneys that failure to consent to the amendment would necessitate a dismissal of the case and holding of defendant over. No definite agreement having been reached in the conference, there was a subsequent resumption of proceedings in open court, and the jury recalled. The judge thereupon interrogated defense counsel as to consent to the amendment which had been offered on the part of the State. What transpired was, we are convinced, far from an unequivocal consent to the proposed amendment. At most, it was a consent that the solicitor file his amendmentwhich apparently was not examined by defense counselbut that defendant reserved the right to subsequently interpose any valid objection. It was clearly within the province of the trial judge so to interpret the responses made by defense counsel and to conclude that there was no consent, and in consequence to order a dismissal, which he did. By the terms of the statute, Code, Title 15, Section 253, an indictment may only be amended by consent of defendant, and it has been consistently held that to permit an amendment, without consent, even in an immaterial matter, is reversible error. Gregory v. State, 46 Ala. 151; Shiff v. State, 84 Ala. 454, 4 So. 419; Dix v. State, 8 Ala.App. 338, 62 So. 1007. Even where defendant consents to an amendment, if the amendment as received is not within the terms of the consent, this will work a reversal. Stone v. State, 105 Ala. 60, 17 So. 114. Unquestionably the trial judge is authorized to enter a nol pros and order a new indictment where defendant will not consent to an amendment offered to meet a variance. Code, Title 15, Section 254; Cunningham v. State, 117 Ala. 59, 23 So. 693. Second, as to the circumstances under which the order or orders were made. Petitioner contends that the order in toto should have been delivered before the jury retired, as provided by the statute, Section 254, supra. That statute reads in pertinent part: "If the defendant will not consent to such amendment, the prosecution may be dismissed at any time before the jury retires, as to the count in the indictment to which the variance applies; and the court may order another indictment to be preferred at a subsequent time, in which case an entry of record must be made," etc., setting out the form of such order. A reading of this statute is sufficient to show that the underscored words merely fixed the time when the prosecution may be dismissed because of a variance. Before the jury retires, means before it has retired to deliberate and reach a verdict, not, as petitioner contends, before it is dismissed. Reeves v. State, 31 Ala.App. 226, 16 So.2d 697. The statute does not require, nor can we perceive any reason for requiring that the order in final form be made while the jury is in the box. Indeed, when the court announces a dismissal and dismisses the jury, the jury's function is at an end. While it is not questioned that defendant was present when the order of dismissal was made, it is insisted that the order remanding him to custody was void for the reason that it was made out of the presence of the defendant. This argument is based upon the constitutional requirement (Section 6) "That in all criminal prosecutions, the accused has a right to be heard by himself and counsel, or either", and the pronouncements of our cases that in prosecutions for felony the prisoner must be personally present in court when the verdict is rendered. Huffman v. State, 35 Ala.App. 607, 51 So.2d 266, and cases collected in 6A Ala.Dig., Criminal Law. But the order here involved is not a verdict, nor even a judgment from which an appeal or writ of error will lie. Willingham v. State, 14 Ala. 539; May v. State, 55 Ala. 164; Smith v. State, 253 Ala. 277, 44 So.2d 250. Proceedings under Title 15, Section 254, Code, wherein dismissal is entered and defendant bound *674 over to answer a new indictment, furnishes no ground for a plea of former jeopardy. White v. State, 49 Ala. 344; White v. State, 86 Ala. 69, 5 So. 674; Mitchell v. State, 16 Ala.App. 635, 80 So. 730; Oliver v. State, 234 Ala. 460, 175 So. 305. Nor can it be said defendant's right to be present "at all important stages of trial" (Kelley v. State, 32 Ala.App. 408, 26 So. 2d 633, 635; 6A Ala.Dig., Criminal Law. As we have shown, making of the questioned order was no part of the trial, the trial having ended with dismissal of the prosecution. What we have said is sufficient upon which to base our conclusion that the writ of mandamus should be denied. We may observe, however, that there is factual conflict on the question whether or not at the time of directing a dismissal of the case the trial judge also ordered the defendant held to the grand juryall this in the presence of the defendant. Mandamus denied.	{ "pile_set_name": "FreeLaw" }
199 P.3d 654 (2008) Aaron Jaydon NOWELL, Petitioner, v. The Honorable Brian S. REES, Judge Pro Tem of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, State of Arizona, Real Party in Interest. No. 1 CA-SA 08-0102. Court of Appeals of Arizona, Division 1, Department C. July 31, 2008. Review Denied January 6, 2009. 656 Office of the Legal Advocate By Frances Gray, Deputy Legal Advocate, Thomas J. Dennis, Deputy Legal Advocate, Phoenix, Attorneys for Petitioner. Andrew P. By Thomas, Maricopa County Attorney By Gerald R. Grant, Deputy County Attorney, Phoenix, Attorneys for Real Party in Interest. OPINION IRVINE, Presiding Judge. ¶ 1 Aaron Jaydon Nowell ("Nowell") contends that the trial efforts to restore his competency to stand trial proved unsuccessful. The issue we must decide is whether Arizona Revised Statutes ("A.R.S.") sections 13-4501 through -4517 (2001 and Supp. 2007)[1] and Rules 11.1 through 11.6 of the Arizona Rules of Criminal Procedure limit restoration efforts to the twenty-one months after a criminal defendant is first found to be incompetent. For the following reasons, we hold that the plain language of the statutes and rules limits the trial court's authority to order restoration to the twenty-one months after the original finding of incompetency. FACTS AND PROCEDURAL HISTORY ¶ 2 Nowell was arrested on February 2, 2004 for allegedly entering and causing damage to an abandoned nursing home. The State charged Nowell with one count of burglary in the second degree, a class 3 felony; and one count of criminal damage, a class 4 felony. On the motion of Nowell's attorney, competency proceedings pursuant to Rule 11 were initiated in the superior court. On November 2, 2004, Commissioner Vatz found Nowell was incompetent but that there was no clear and convincing evidence that he would not be restored within fifteen months. A restoration treatment provider was assigned to work with Nowell. That provider submitted a report to the trial court dated December 20, 2004, opining that Nowell was restored to competency. After an evidentiary hearing on June 17, 2005, Commissioner 657 Vatz disagreed and found that Nowell remained incompetent, so he ordered additional restoration treatment with a new provider, Dr. June Stapleton. ¶ 3 On November 27, 2005, Dr. Stapleton submitted a report opining that Nowell was restored to competency. Nowell requested an evidentiary hearing, which was held on June 9 and 12, 2006, before Commissioner Hintze, who had replaced Commissioner Vatz as the assigned judicial officer. Significantly for our purposes, these hearings took place just over twenty months after the original determination that Nowell was incompetent. Dr. Stapleton was not called to testify, but her opinion was introduced through her written report. Following the hearings, Commissioner Hintze ruled that Nowell was restored to competency and transferred the case to the trial judge to commence regular proceedings. ¶ 4 Nowell, acting through counsel, filed a special action with this Court challenging the finding of competency. After briefing and argument we issued an order on March 22, 2007, vacating the determination of competency and remanding the case for a new competency determination. Our ruling stated that the prior adjudications of incompetency gave rise to a presumption of continued incompetence. Nowell v. Hintze, 1 CA-SA 06-0236 at 2 (Ariz.App. March 22, 2007) (decision order) (citing State v. Hehman, 110 Ariz. 459, 460, 520 P.2d 507, 508 (1974)). Therefore, we stated: For competency to be restored or regained there must be a positive change in the defendant's condition indicating that he is now able to understand the proceedings against him and assist his own defense, whereas he could not previously do so. It is not enough for a new expert to disagree with the previous determination. A new expert must be able to explain that restoration efforts were effective, and the trial court must make findings to that effect. In this case it appears that Dr. Stapleton simply disagreed with the prior experts and concluded that Petitioner was competent. The trial court made no findings concerning the effects of the restoration efforts. Given the presumption of continued incompetence, more was required. Therefore, we vacate the order of July 3, 2006 and order a new determination of competency. Id. ¶ 5 In the trial court, the newly assigned judicial officer, Commissioner Spencer, elected to follow our order by appointing a new expert to opine regarding Dr. Stapleton's conclusion that Nowell had been restored to competency. The new expert submitted a written report to the court dated December 22, 2007, in which he concluded that Dr. Stapleton's reports and documentation did not adequately justify her conclusion that Nowell was restored to competency. On March 5, 2008, following an evidentiary hearing, Commissioner Spencer issued a ruling finding that Nowell remained incompetent, but finding no clear and convincing evidence that he could not be restored to competency within the statutory time frames. ¶ 6 How to calculate those time limits was addressed separately. Nowell had filed a motion to dismiss the charges, arguing that the twenty-one month outer limit for court-ordered restoration treatments had passed. That motion was taken under advisement by Commissioner Spencer, apparently to allow time for the information from the new expert she appointed to be received and evaluated. Pending that decision, the motion to dismiss raising the time limit issue was transferred to Commissioner Rees for decision. ¶ 7 In his motion Nowell argued that A.R.S. §§ 13-4515, 13-4517, and Rule 11.6 mandate dismissal if more than twenty-one months have passed since the original finding of incompetency. Because more than three years had passed in his case, Nowell argued dismissal was required. The State responded that the twenty-one months only included time actually being treated by a restoration provider under a restoration order. The State calculated that Nowell spent approximately two months in restoration treatment with the first provider and approximately six months with Dr. Stapleton, so no more than eight of twenty-one months had been used up. 658 ¶ 8 In a March 7, 2008 ruling the trial court adopted an interpretation of the statutes and rules different from that urged by either party. It stated: The Court's decision is not based upon either the State's or the Defendant's theory for calculating time. Rather, the Court holds that each time a defendant is found not competent and placed into restoration it creates a new period of time for restoration. In other words, it creates a new "original finding of incompetency." This holding is the most consistent with the realities of criminal litigation and Chapter 41 of Title 13, ARS. .... Consistent with ARS section 13-4412(I), the Court hold[s] that once the treatment provider submits a report finding a defendant competent the twenty-one month clock stops. Nonetheless, [u]sing the Defendant's strict calendar time theory would create an unreasonable burden to have rushed hearings in order to complete restoration within 21 months from the initial order. Rather, when a court finds that the doctor's report is not persuasive, the court must make a new finding that the defendant is not competent and restorable, starting the process anew. The Court finds that the Court's order finding the defendant not competent but restorable was no longer "valid" on December 20, 2004 when Dr. Cheifitz submitted a report that the Defendant was competent. The Court then made another finding and order that the Defendant was not competent but restorable on 6/17/05. That order became invalidated on 11/27/05 when Dr. Stapleton issued a report that the defendant was competent to stand trial. Finally, on March 5, 2008, the Court issued a new order finding the defendant not competent but restorable. Therefore, we are now operating from that date. (Emphasis in original.) ¶ 9 The trial court expressly recognized that Nowell's interpretation best fits the plain meaning of the statutes, but concluded that it was unworkable and inefficient because "it does not permit the realities of litigation." Therefore, the trial court now intends to order continued restoration and fresh evaluations, with the only time limit being twenty-one months from the most recent finding of incompetency on March 5, 2008. JURISDICTION AND STANDARD OF REVIEW[2] ¶ 10 Our decision to accept special action jurisdiction is largely discretionary. State ex rel. McDougall v. Superior Court, 186 Ariz. 218, 219, 920 P.2d 784, 785 (App. 1996). Arizona Rule of Procedure for Special Actions 1(a) states that "the special action shall not be available where there is an equally plain, speedy, and adequate remedy by appeal." A trial court's denial of a motion to dismiss is a non-appealable, interlocutory order. Henke v. Superior Court, 161 Ariz. 96, 98, 775 P.2d 1160, 1162 (App.1989). Therefore, we accept jurisdiction of this special action because the denial of a motion to dismiss is a non-appealable order, the issue raised is one of law and is likely to recur, and Nowell does not have an equally plain, speedy, or adequate remedy by appeal. Ariz. R.P. Spec. Act. 1(a); Boynton v. Anderson, 205 Ariz. 45, 46, ¶ 3, 66 P.3d 88, 89 (App.2003). We thus have jurisdiction pursuant to A.R.S. § 12-120.21(A)(4) (2003). ¶ 11 We review a motion to dismiss a criminal prosecution for an abuse of discretion. Taylor v. Cruikshank, 214 Ariz. 40, 43, ¶ 10, 148 P.3d 84, 87 (App.2006). "A trial court abuses its discretion when it misapplies the law or predicates its decision on incorrect legal principles." Id. (quoting State v. Jackson, 208 Ariz. 56, 59, ¶ 12, 90 P.3d 793, 796 (App.2004)). Additionally, we review a trial court's interpretation of statutes and rules de novo as questions of law. See P.M. v. Gould, 212 Ariz. 541, 544, ¶ 12, 136 P.3d 223, 226 (App.2006). 659 DISCUSSION ¶ 12 Nowell argues that the trial court erred by denying his motion to dismiss the criminal charges without prejudice. Specifically, he contends that the trial court erred in its interpretation of the time limit for court-ordered competency restoration efforts contained in the statutes and rules. Nowell interprets the plain meaning of A.R.S. §§ 13-4501 through -4517 and Rules 11.1 through 11.6 as limiting restoration efforts to the twenty-one months after the court's first finding of incompetency. Nowell contends that the trial court deviated from the plain meaning of the statutes and rules by interpreting them in an arbitrary and novel manner. Nowell also argues that the court's ruling deprives him of his rights to due process, equal protection, and a speedy trial. See U.S. Const. amends. VI, XIV; Ariz. Const. art. 2, §§ 4, 13, and 24. ¶ 13 Although the State does not agree with the trial court's interpretation of the statutes and rules, it argues that the court did not err in denying Nowell's motion to dismiss. The State interprets the twenty-one month time period as applying only to the actual time in which a defendant is undergoing restoration treatment, not any time spent waiting for hearings or appointments. It contends that Nowell has spent approximately eight months in court-ordered restoration treatment since the court's initial finding that he was incompetent but restorable. Therefore, the State contends that Nowell has not exceeded the twenty-one month restoration period. It also contends that Nowell's interpretation of the time period allows little or no time for restoration before dismissal would be required. Finally, it argues that Nowell caused numerous delays during the Rule 11 competency proceedings, implying that these should not be counted against the twenty-one months. ¶ 14 This case requires us to interpret the statutes and rules that govern competency in criminal prosecutions. We must determine how to calculate the twenty-one month time period prescribed for restoration treatment. When interpreting statutes and rules, our main goal is to determine and give effect to legislative intent. State v. Ross, 214 Ariz. 280, 283, ¶ 22, 151 P.3d 1261, 1264 (App.2007). We first look to the plain language of a statute or rule; if that language is clear, we apply it. Fragoso v. Fell, 210 Ariz. 427, 430, ¶ 7, 111 P.3d 1027, 1030 (App.2005). If that language is ambiguous, "we attempt to determine legislative intent by interpreting the statutory scheme as a whole and consider the statute's context, subject matter, historical background, effects and consequences, and spirit and purpose." Ross, 214 Ariz. at 283, ¶ 22, 151 P.3d at 1264 (quoting Hughes v. Jorgenson, 203 Ariz. 71, 73, ¶ 11, 50 P.3d 821, 823 (2002)). ¶ 15 Many controversies concerning the competency of a criminal defendant have revolved around when a competency proceeding is required and the standards for determining competency. In this case, however, the relevant statutes and rules are those that address what happens after a defendant is initially determined to be incompetent. Once this initial determination is made the trial court must (1) decide whether to order restoration treatment, (2) evaluate the progress of any ordered restoration, and (3) ultimately conclude the process after the defendant has been restored to competency or remains incompetent. We address each of these stages in turn. ¶ 16 Once a defendant has been found incompetent, the trial court must determine whether treatment should be ordered. Restoration treatment is plainly the preferred course under the statute. The only exception is if "there is clear and convincing evidence that the defendant will not be restored to competency within fifteen months." A.R.S. § 13-4510(C); see also Rule 11.5(b)(3) (the court shall order restoration "unless there is clear and convincing evidence that defendant will not regain competency within 15 months"). The statute allows restoration to be extended for an additional six months "if the court determines that the defendant is making progress toward the goal of restoration." A.R.S. § 13-4510(C). In effect, the statute and rule require restoration treatment unless the evidence shows the defendant will not become competent within twenty-one months. If 660 such evidence exists, the court need not order fruitless treatment. If "there is no substantial probability that the defendant will become competent within 21 months of the date found incompetent" the court may, upon request of any party (1) remand defendant for civil commitment proceedings, (2) order appointment of a guardian, or (3) dismiss the charges without prejudice. Rule 11.5(b)(2); see also A.R.S. § 13-4517. Thus, under some circumstances restoration treatment will not be ordered, but in most cases, such as this one, restoration must be attempted. ¶ 17 Once the trial court decides restoration treatment is appropriate, it must specify the details of that treatment in its order. A.R.S. § 13-4510(D); Rule 11.5(b)(3). The trial court must also order periodic progress reports from the person supervising the restoration treatment. Rule 11.5(d); see also A.R.S. § 13-4514(A) and (B) (detailing treatment provider's reporting obligations). A treatment order is valid for one hundred eighty days. A.R.S. § 13-4512(I); see also Rule 11.5 comment ("No order under this section is to be effective for longer than six months, thereby insuring a frequent review of each incompetent's status and progress."). The statute provides that the order may become invalid if the charges are dismissed, the maximum sentence for the offense charged has expired, a physician determines the defendant is competent to stand trial, or the treating facility submits a report that the defendant has regained competency or there is no substantial probability the defendant will do so within twenty-one months of the original finding of incompetency. A.R.S. § 13-4512(I)(1), (2), (3) and (4). Absent any of these circumstances, the next stage is for the trial court to evaluate the progress of the restoration treatment. ¶ 18 The statutes require that upon receipt of a report from the restoration provider the trial court "shall hold a hearing to determine the defendant's progress towards regaining competency." A.R.S. § 13-4514(C). If the defendant has regained competency, the criminal prosecution resumes its normal course. A.R.S. § 13-4514(D). If the defendant continues to be incompetent, however, the court must determine whether further restoration attempts are warranted. Subsections (E) and (F) of § 13-4514 provide: E. If at the hearing the court finds that the defendant is incompetent to stand trial but that there is a substantial probability that the defendant will regain competency within the foreseeable future, the court shall renew and, if appropriate, modify the treatment order for not more than an additional one hundred eighty days. The court may make this determination without a formal hearing if all of the parties agree. F. If at the hearing the court finds that the defendant is incompetent to stand trial and that there is not a substantial probability that the defendant will regain competency within twenty-one months after the date of the original finding of incompetency, the court shall proceed pursuant to § 13-4517. Consistent with the statute, Rule 11.6(d) provides: Finding of Continuing Incompetency. If the court finds that the defendant is still incompetent, it shall proceed in accordance with rules 11.5(b)(2) and (3) unless the court determines that there is a substantial probability that the defendant will regain competency within the foreseeable future, then the court shall renew and may modify the treatment order for not more than an additional 180 days. See also Rule 11.6(d) comment ("This section directs the trial court upon finding that the defendant is still incompetent to reconsider the alternatives presented in Rule 11.5(b)(2) and (3)."). ¶ 19 Pursuant to these provisions, if a defendant continues to be incompetent but restoration still seems likely, treatment may be extended for an additional one hundred eighty days. If there is not a substantial probability of restoration within twenty-one months of the original finding of incompetency, the statute once again provides that any party may request that the court (1) remand the defendant for civil commitment proceedings, (2) order appointment of a guardian, or (3) dismiss the charges without prejudice. A.R.S. § 13-4517; see also Rule 11.6(d) (incorporating 661 Rule 11.5(b)(2)). Thus, the cycle may continue in one hundred eighty day increments so long as continued treatment seems likely to be successful. ¶ 20 The cycle will not, however, continue indefinitely. See Rule 11.6(e) comment (citing a United States Supreme Court decision as holding "that indefinite suspension of a prosecution violated the petitioner's constitutional right to a speedy trial"). The statutes and rules include an outer limit to the duration of court ordered restoration treatment and the time that treatment may be undertaken. Section 13-4515(A) provides: An order or combination of orders that is issued pursuant to § 13-4512 or 13-4514 shall not be in effect for more than twenty-one months or the maximum possible sentence the defendant could have received pursuant to § 13-604, 13-604.01, 13-702, 13-703 or any section for which a specific sentence is authorized, whichever is less. In making this determination the court shall not consider the sentence enhancements under § 13-604 for prior convictions. This twenty-one month period for restoration efforts is also included in various forms in A.R.S. §§ 13-4510(C), -4512(I)(1), -4514(A)(4) and (F), -4517, and Rule 11.5(b)(2), (3) and (d). Sections 13-4512(I)(1), -4514(A)(4) and (F), and -4517, specifically tie the twenty-one months to "the date of the original finding of incompetency." Rule 11.5(b)(2) ties the twenty-one months to "the date found incompetent," while Rule 11.5(d) refers to within twenty-one months of "the court's finding of incompetence." ¶ 21 We cannot ignore the repeated statutory references to restoration of competency within twenty-one months after the date of the original finding of incompetency. If this time limit is to have any meaning, it must be applied as written and the trial court's ruling that the twenty-one months begins anew with every new finding of incompetency is incorrect. As the trial court itself acknowledged, its interpretation is contrary to the plain meaning of the statutes. Therefore, we find the statutes mean what they say. If a defendant has not regained competency within twenty-one months of the original finding of incompetency, no further attempts at restoration are allowed. At that point the options available to the trial court are to dismiss the charges without prejudice, appoint a guardian, or order the institution of civil commitment proceedings. ¶ 22 We disagree with the trial court's conclusion that it has the implied authority to toll the time or start anew the clock because it makes sense to do so given that the realities of litigation sometime result in justified delays. In effect, the trial court seeks to create a system of time limits similar to Rule 8 of the Arizona Rules of Criminal Procedure, which applies to speedy trial determinations. Rule 8.4, however, expressly provides for excluding time and specifically defines what time may be excluded. No such exclusions are provided in the statutes or rules at issue here. The legislature clearly specified how long restoration efforts should be allowed to continue twenty-one months. On the record before us, we see no reason to read any exclusion into the statutes. ¶ 23 The State argues that twenty-one months of restoration may be insufficient in some cases. The record in this case fails to support the State's argument. Here, there was enough time after the original finding of incompetency for two restoration providers to be appointed, do their work, and report back to the trial court. The trial court had time to hold several hearings to evaluate those reports. On this record, we see no reason to deviate from the plain language of the statutes and rules to extend the time limit.[3] ¶ 24 The trial court was also concerned that the time limit will encourage defendants to delay treatment. Although we recognize this possibility, twenty-one months seems sufficient to accommodate some delay. Moreover, we believe the trial court has authority to deal with such attempts. In any event, that issue is not present in this case. *662 The trial court specifically found that "there are no allegations that any party acted in bad faith." Neither party in this case seemed in a particular hurry to conclude the competency proceedings, so we are not persuaded that any delays caused by Nowell should override the specific time limit contained in the statutes. ¶ 25 Finally, the State argues that the statutes and rules should not be applied to require the dismissal without prejudice of the charges against Nowell because the State can just re-file the charges. Nowell responds that there may be limits on the State's authority to refile the charges. We decline to address that issue. Whether the State re-files is not for us to decide. The only issue before us is the time limit on restoration efforts. Pursuant to the statutes enacted by the Legislature and the rules adopted by the Arizona Supreme Court, if there is no substantial probability that the defendant will become competent within twenty-one months of the original finding of incompetence, restoration efforts must cease. At that point, the defendant continues to be incompetent to stand trial and the trial court has no choice but to dismiss the charges without prejudice. ¶ 26 Our order in the first special action directed the trial court to re-evaluate the evidence concerning Nowell's competency. It did so and concluded that the evidence presented at the July 2006 hearings was inadequate to find that Nowell had been restored to competency. In light of that ruling, the result of the July 2006 hearings was effectively modified to be a finding that Nowell continued to be incompetent. As of July 2006, more than twenty months had elapsed since the original finding that Nowell was incompetent. In other words, less than a month remained for restoration treatment. No one argues that this time was sufficient for additional restoration treatment. Therefore, as a matter of law, we can conclude that as of that time there was no substantial probability that Nowell would regain competency within twenty-one months after the date of the original finding of incompetency.[4] ¶ 27 Under these circumstances, the trial court had no authority to order further restoration efforts. The plain language of these provisions requires that restoration efforts must end within twenty-one months of the original finding of incompetency. If a defendant is not restored to competency within twenty-one months, the statutes provide that the court may dismiss the case without prejudice, refer the defendant for commitment proceedings, or appoint a guardian for the defendant. Neither party argues that the trial court should appoint a guardian or begin commitment proceedings, so the question before us is whether the trial court should dismiss the charges because the time limit for restoration attempts had passed. Given the constitutional prohibition against trying a defendant who is incompetent, we conclude that the trial court's only alternative in this case is to dismiss the charges. Therefore, we grant relief to Nowell. CONCLUSION ¶ 28 For the foregoing reasons we accept jurisdiction and grant relief. Based on the plain meaning of A.R.S. §§ 13-4501 through -4517 and Rules 11.1 through 11.6, we find that the time period during which a defendant may be ordered to undergo restoration services is twenty-one months after the court's original finding of incompetency. If a defendant has not been restored twenty-one months after the original finding of incompetency, the court must follow the statutes and rules and dismiss the case without prejudice, appoint a guardian, or remand the defendant for civil commitment proceedings. Because neither party argues for the latter two options, we order the trial court to dismiss the charges against Nowell without prejudice. CONCURRING: MICHAEL J. BROWN and JOHN C. GEMMILL, Judges. NOTES [1] We cite the current version of A.R.S. §§ 13-4505, -4508, and -4512 because no revisions material to this decision have occurred. [2] Initially, the State argued that we should decline jurisdiction. At oral argument, it changed its position and agreed with Nowell that we should accept jurisdiction of the case to clarify the applicable time limits. [3] We note that the statutes governing competency in juvenile cases limit restoration efforts to 240 days, or approximately eight months. A.R.S. §§ 8-291.09(F), -291.10(F) (2007). If the juvenile cannot be restored to competency, the matter will be dismissed with prejudice. A.R.S. § 8-291.08(D) (2007). [4] Because we count the time from November 2004, when Nowell was originally found to be incompetent, to July 2006, before any appellate proceeding commenced, we need not consider whether the time the issue was pending before this court counts toward the twenty-one month time limit.	{ "pile_set_name": "FreeLaw" }
962 F.2d 592 38 Cont.Cas.Fed. (CCH) P 76,318 UNITED STATES of America, Plaintiff-Appellee,v.Fred H. LANGER, Defendant-Appellant. No. 90-3783. United States Court of Appeals,Seventh Circuit. Argued Sept. 20, 1991.Decided April 28, 1992. Melvin K. Washington, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Milwaukee, Wis., for plaintiff-appellee. David P. Geraghty (argued), Coffey, Coffey & Geraghty, Milwaukee, Wis., for defendant-appellant. Before BAUER, Chief Judge, RIPPLE, Circuit Judge, and FAIRCHILD, Senior Circuit Judge. BAUER, Chief Judge. 1 These facts are the stuff from which a segment on Sixty Minutes could be made: Water, Water Everywhere, Nor Any Drop to Drink: Defense Subcontractor Fraud. The segment opens with interviews of persons familiar with the facts surrounding this defense contract. In July 1983, the United States Air Force, through the Warner Robins Air Logistics Center ("Warner Robins" or "Defense Department") at Robins Air Force Base, Georgia, solicited bids for construction of thirteen 5000-gallon capacity tank-type potable water distributor semitrailers with accompanying technical manuals. The solicitation specified that the trailers were to be built in accordance with Military Specification 62080B ("Mil.Spec. 62080B"). In the simplest possible terms, a single trailer was to consist of a water tank mounted on a chassis, the chassis mounted on wheels, with cabinets attached to the underside of the tank for storage of accessories. The units also were to include a spraybar assembly for spraying water, and a winch to raise and lower the spraybar. Military Specification 62080B set out, in exacting detail, the precise materials and assembly of the trailer and its component parts. The primary purpose of these trailers was to transport potable water to service women and men in the field. For that reason, they were required to be constructed of stainless steel. Other metals are not safe for drinking water. Their secondary purpose was to supply firefighting vehicles with water and to spray water on the ground to control dust. 2 Through the Small Business Administration's ("SBA") minority-owned business set-aside program, Central Manufacturing Corporation of Milwaukee, Wisconsin ("Central"), was awarded the contract in September 1984. Under the terms of the contract, Central was to construct a "First Article" (military jargon for prototype) that complied with Mil.Spec. 62080B. When constructed, the Defense Department would accept it only if it passed a "First Article Test," the results of which would be shown on a "First Article Test Report" ("FATR"). The purpose of the FATR was to ensure that the prototype met Mil.Spec. 62080B. The contract required Central to conduct the First Article Test and to prepare the FATR. After the prototype successfully passed the test and was accepted by the Defense Department, the remaining twelve trailers would be constructed using the prototype as a manufacturing standard: each would be built exactly as the First Article had been built. 3 The contract itself was between the SBA and the Defense Department, and incorporated the SBA contract with Central. The agreed price for all thirteen units was $1,055,529.20, which was increased to $1,078,342.64 after an amendment to the contract in February of 1986. Although the Defense Department would not make progress payments to Central until after the prototype was approved, the SBA could (and did) advance sums to Central in the meantime. When it was paid by the Defense Department, Central then would repay to the SBA the amount advanced. 4 The segment's focus now turns to the building and testing of the water tank trailers. During the time that Central was developing its proposal to the Defense Department, Irvine Palmer, Central's president, became concerned that Central would have some engineering difficulties in building the tank trailers as well as developing the technical manual. While the Defense Department and Central were negotiating the contract, Palmer obtained the government's permission to subcontract certain work, which included engineering and production of the manual. The name Fred Langer, a partner in Magnum International, Ltd. ("Magnum"), came up. Some months earlier, Palmer had been introduced to defendant Langer. At that meeting, Langer told Palmer that he was an engineer, having graduated from the Milwaukee School of Engineering ("MSOE"), which was Palmer's alma mater. (At various times, Langer told people connected with the water tank trailer project that he was a degreed, certified engineer, had attended MSOE for two years, and had a bachelor of science degree in nuclear engineering technology. At trial, however, the evidence showed that Langer had attended MSOE for only one quarter, and for his efforts that quarter received three F's and one C.) 5 Palmer and Langer entered into negotiations on behalf of their respective companies to subcontract certain work to Langer. During the negotiations, Langer proposed to keep the production cost to Central to $810,000. The negotiations resulted in two contracts. Under the first contract, Langer would provide technical and engineering services, management of subcontracting, on-site management of production activities, and development of the technical data and manual. For these services he would be paid a base salary of $81,000 and an additional bonus of $25,000 on the first $25,000 savings under the $810,000 figure, and 30 percent of any further savings after the first $25,000. Among the services Langer agreed to provide under the second contract was procurement of all component parts and subcontracting of all required assemblies, and preparation of the First Article Test Report to applicable military standards. For these services, Langer would receive $105,000. 6 Production on the prototype began. Langer brought Thomas Krill, who had done work for him before, to Central with him to supervise the production. Everything that went into construction of the trailer, except the water tank itself and the spraybar, was procured and assembled at Central. Completed purchase orders from Central to supply houses required the signature of Central's production manager, George Gillis. As time passed, however, Palmer permitted Gillis to sign purchase orders in blank after Langer presented him with a list of needed items. Gillis left it to Langer to fill in the order. Some of the purchase orders showed Magnum (Langer's company) as the supplier. Because Palmer trusted Langer's knowledge and abilities, and because Langer showed Palmer how and where to save money on purchases, Palmer accepted Langer's system of preparing purchase orders in blank. 7 Thomas Krill was more familiar with Langer's use of the purchase orders than anyone at Central. He knew that Langer had Magnum purchase needed items, and then use a Central purchase order to mark up and resell the items to Central. Krill gave two examples at trial. The first was the assembly for the spraybar--Langer doubled its price when he resold it to Central. The second was a fire monitor, which is a length of black pipe with a hole in it into which a pressure gauge was threaded. To obtain the pipe for this item, Langer sent Krill across the street to a hardware store, where Krill paid for it out of pocket, and then Langer marked up the price considerably and resold it to Central. 8 Although not possessing any technical or engineering training, Krill began to question Langer's use of materials for the prototype. Krill and Langer disagreed, several times, about the metals used for the piping and plumbing. Langer used variously aluminum, galvanized steel, or black pipe. Krill, aware that the specifications required stainless steel, questioned Langer about it. But Langer, offering a confusing explanation about piping being different from plumbing, and military specifications that Krill was unaware of, convinced Krill that those metals would be acceptable. Moreover, Langer explained, galvanized steel is much easier to work with than stainless steel. (As Krill later found out, galvanized steel is also eight to ten times less expensive than stainless steel.) 9 Production of the prototype continued and neared completion. Krill continued to be concerned about what he thought was a patchwork of aluminum and galvanized steel and black pipe--a patchwork that would not be visible to the naked eye at the First Article Test because it had been painted over. Krill continued to voice his concerns to Langer. Then, just days before the First Article Test was to occur, Krill discovered that a strainer necessary to prevent foreign objects from getting into the water pump had not been installed on the prototype. He told Langer, who said, essentially, nevermind, there's no time to put one on before the First Article Test, we'll do it later. As it happened, however, the missing strainer was never installed. The First Article Test came off without a hitch. Langer prepared, signed and submitted the FATR, and the Defense Department representatives on hand accepted the prototype. And Langer fired Krill. Krill then went to Palmer with his concerns, but Palmer dismissed Krill as a malcontent who lacked Langer's technical expertise. So Palmer paid no attention to Krill. He should have. 10 The segment's final series of interviews centers around the remaining units. After the Defense Department accepted the prototype, the other twelve units were constructed in conformity with the prototype. During this period, Central requested, and received, progress payments from the government totaling $1,001,646. Finally, the trailers were ready for delivery to the military, but Langer had not yet turned over to Central the final version of the technical manual. So the trailers sat at Central, and sat, and sat. The proceedings were at a stalemate. The contract required Central to turn over the trailers and the manual. But Langer would not turn over the manual, claiming first that the government had to approve two modifications, and more importantly, that Central still owed him $9,000 for work on the manual. (He had already been paid a total of $95,000 for his services. Add to that his profit on the resale of supplies from Magnum to Central.) 11 In the meantime, Krill voiced his complaints to Bob Wetter and Earl Pergande at the Defense Department. The military sent Gary Moyses, a mechanical engineer with the United States Air Force, to inspect the trailers at Central. He determined that the trailers had not been constructed in accordance with Mil.Spec. 62080B. The deficiencies, most of which are not recounted here, included that the plumbing system incorporated short-radius elbows although the contract called for long-radius; the underslung cabinets were not built to the specified dimensions; the battery support brackets in the cabinets were corroding; the exhaust system was mounted in such a way that exhaust gases would be recirculated through the engine compartment; the fuel tank cap was practically inaccessible; the units were not rustproofed; certain of the pipes were galvanized steel rather than stainless; and the winch and spraybar supports were not substantial enough to hold up the spraybar. 12 Ultimately, the government entered into a contract with William Godwin, of Spokane, Washington, to rehabilitate the thirteen trailers. Much of the piping and plumbing had to be replaced because of corrosion, but that which remained was unsafe for use with drinking water. The plumbing system had to be re-installed because it had been positioned incorrectly to allow for suction from a supply of water lower than the pump itself. Godwin completely redesigned the underslung cabinets, and moved the fuel tank for easier access. He also redesigned the spraybar winch and supports. But he could not make the water tank trailers fit for potable water. The work he did simply made the trailers fit for their secondary purpose: firefighting and dust containment. Under his contract, he was paid $225,000. 13 A federal grand jury sitting in Milwaukee, Wisconsin, returned a five-count indictment against Fred Langer. Count one charges mail fraud, in violation of 18 U.S.C. §§ 2 and 1341. Counts two through five charge Langer with fraudulently representing in the FATR that the trailers had been constructed in accordance with Mil.Spec. 62080B, specifically subparagraphs 3.5.1 (material used for piping), 3.1.1.2 (rustproofing), 3.7.7 (material used for plumbing coupling), and 3.7.1 (material used for underslung cabinets), all in violation of 18 U.S.C. § 1001. A jury convicted Langer on all counts. After a hearing, the trial judge sentenced Langer on count one to two years imprisonment, and fined him $10,000.00. Imposition of sentence on counts two through five was suspended, but the trial judge placed Langer on probation for a period of four years, to follow his prison term on count one. The judge also ordered Langer to make restitution to the government in the amount of $251,250.37, payable by him in monthly installments of not less than $300.00. Langer filed a timely notice of appeal. 14 The interviewer would then close the segment with a question posed by the prosecuting attorney in his final argument (Trial Transcript at 830): "The case is a troubling one in many respects, because it no doubt is one that causes you to think, as I did from the commencement of my involvement in this matter to this very moment, and that is why, despite all of the financial rewards that was [sic] in it for this defendant, why would he or anyone, given the noble and the profound opportunity given to them, set out to scam the government and, moreover, why do so in such a way as to cause or risk harm to the safety of other people?" Why indeed. 15 We have presented these facts, taken directly from the trial transcript, as the producers of 60 Minutes might present them to their audience, the court of public opinion. We are, however, a court of law. Therefore, we will address Langer's legal arguments with all due seriousness.I. 16 Langer frames his first two arguments in the alternative, both of which he raises for the first time on appeal. He argues that the government failed to offer sufficient evidence to establish that, as a part of a scheme to defraud, he caused a progress payment check from the government to be delivered through the United States mail, as alleged in count one of the indictment. In the alternative, if the evidence offered was sufficient to establish mail fraud, he claims that that was the direct result of his trial counsel's failure to render effective assistance. 17 Langer's sufficiency challenge, because he failed to raise it below, is waived unless there is a showing of plain error. United States v. Henry, 933 F.2d 553, 558 (7th Cir.1991). See also FED.R.CRIM.P. 52(b). Plain error occurs when there has "been such a miscarriage of justice that, but for the error, [defendant] would have been acquitted." 933 F.2d at 538. The facts here do not reveal a miscarriage of justice. The government offered the testimony of Irvine Palmer, president of Central, to establish, among other things, the mailing necessary for count one. During his direct examination, the following exchange occurred between Palmer and the prosecutor: 18 Q. All right. Now, how did you get the checks from the government? 19 A. The checks were sent--we had an account at a bank for this particular account; and the checks were sent from the government to that account. 20 Q. All right. How was it sent. 21 A. It was mailed. 22 Trial Transcript at 276-77. Standing unchallenged, Palmer's testimony is sufficient evidence to establish the mailing necessary for a conviction of mail fraud. We see no plain error. Accordingly, we deem this argument waived. 23 It is precisely because Palmer's testimony went unchallenged that Langer raises his alternative ineffective assistance of counsel argument. Customarily, however, we would not review a claim of ineffective assistance of counsel raised initially on appeal. United States v. Limehouse, 950 F.2d 501, 503 (7th Cir.1991). We make an exception when the issue is, as here, sufficiently clear-cut. Id. Our review begins with the presumption that Langer received reasonably professional assistance. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). If he can show that trial counsel's assistance failed to meet constitutional requirements and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different[,]" id., he then can overcome that presumption. We proceed mindful that "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068. 24 Langer bases his claim on trial counsel's (1) failure to cross-examine Palmer regarding his personal knowledge that the check was mailed; (2) failure to submit a jury instruction regarding use of circumstantial evidence to prove mailing; and (3) apparent concession regarding mailing in his closing argument. All of this, he argues, significantly prejudiced him. Unhappily for Langer, however, he cannot show that had trial counsel pursued a different strategy it is reasonably probable that a different result would have been obtained. For example, even if Langer's counsel had shown on cross-examination that Palmer had no personal knowledge of the use of the mails to deliver the progress payment checks the government easily could have offered additional witnesses to establish that element of the charge. Similarly, we are not convinced that had the judge given the jury an additional instruction, or had trial counsel not conceded mailing, Langer would not have been convicted on count one. His argument offers only remote possibilities, not the reasonable probabilities Strickland requires. Consequently, because Langer's ineffective assistance claim does not undermine our confidence in the outcome below, his conviction on count one stands.II. 25 Langer next raises three challenges to the sufficiency of the evidence. Specifically, he argues that there was insufficient evidence to prove, beyond a reasonable doubt: (1) that he fraudulently represented the water storage trailers were rustproofed, as alleged in count three of the indictment; (2) that he fraudulently represented the trailer's underslung cabinets were made with specified materials, as alleged in count five; and (3) that he intended to defraud the government, as alleged in counts two, three, four and five. We will consider each of these arguments in turn. A. 26 In his challenges to the sufficiency of the evidence, the onus is on Langer. We view the evidence in the light most favorable to the government, and reverse only if no rational trier of fact could have found, beyond a reasonable doubt, the essential elements of the crime alleged. United States v. Williams, 951 F.2d 853, 859 (7th Cir.1992). In the first of Langer's insufficiency arguments, he maintains that the evidence at trial failed to prove the conduct alleged in count three: that he falsely represented in the FATR that the prototype water trailer conformed with subparagraph 3.1.1.2 of Mil.Spec. 62080B, which required that the water trailer be rustproofed. He concedes that the government proved he prepared the FATR, and he concedes that the prototype vehicle was not rustproofed. So Langer bases his contention on the lack of a specific reference to subparagraph 3.1.1.2 in the FATR's test summary sheets. The test summary sheets contain the results of the tests performed, specification by specification, on the prototype vehicle to establish its conformity with the contract. And Langer is correct, the test summary sheets omit a specific reference to 3.1.1.2, proceeding directly from 3.1.1.1 to 3.1.1.3. FATR at 6, Government Exhibit 14-1. What he overlooks, however, is the reference contained in section 16 of the FATR's report summary sheet, which reads: 27 Semitrailer, Tank submitted for testing and inspection meets or exceeds the requirements of MIL-S-62080B, 8 November 1979, specifically Section 1, paragraph 1-2, Section 3, paragraphs 3.1 thru 3.15.1, Section 4, paragraphs 4.1 thru 4.4, and all amendments as included. 28 Id. at 4 (emphasis added). The reference is to a series of specifications, which includes subparagraph 3.1.1.2. This evidence establishes that the FATR represented that the vehicle had been rustproofed. That, together with the evidence that Langer prepared the FATR and the vehicle was not rustproofed, is sufficient evidence from which a rational trier of fact could have found Langer guilty beyond a reasonable doubt. Langer's conviction on count three, therefore, stands. B. 29 He next challenges the evidence offered on count five, which charged that Langer submitted a "form which falsely ... reflected that the first article water storage trailer ... had been built in accordance with subparagraph 3.7.1 ..., which required that the trailer be built to specific military specifications, among which were that the trailer's underslung cabinets be made with the proper materials." Indictment, Record Document 1, at 14 (italics used to facilitate discussion). 30 We find no evidence showing that the materials required by subparagraph 3.7.1 were not used. There is, however, evidence that various other requirements of subparagraph 3.7.1 were not fulfilled. Defendant treats the italicized language as limiting the charge of falsity to the use of improper materials. The government does not point to evidence that the materials did not comply with subparagraph 3.7.1, but relies on other deficiencies. It seems, without saying so, to treat the italicized language as surplusage, and to read count five as if that language were not present. On appeal, the parties have argued this point by detailing the evidence without specifically addressing the proper interpretation of count five, and the italicized portion of it. 31 Our reading of the record satisfies us that at trial the parties and the court gave the italicized language the limiting effect for which defendant contends.1 We think the government cannot fairly treat the italicized language as surplusage now. Because we have found no evidence at all that the cabinets were constructed with some material other than the required 16-gauge steel, Langer's conviction on this count cannot stand. As to count five, therefore, we reverse. C. 32 In his remaining sufficiency challenge, Langer claims the government's evidence failed to establish that he intended to defraud the Defense Department as alleged in counts two, three and four.2 This argument is meritless. First, as to count three, Langer admitted at trial that the trailer was not rustproofed. There is no evidence that he ever informed any of the government officials present at the First Article Test of that fact. Indeed, by his deliberate omission of a specific reference on the FATR's test summary sheet to the subparagraph that required rustproofing, he concealed its absence and, until his entire scheme was exposed, avoided having to answer any questions about it. 33 As to counts two and four, Thomas Krill, the man defendant hired to supervise on-site production at Central, testified that he had repeated discussions, even disagreements, with Langer about the materials used in the piping and the coupling. Langer insisted on using, variously, aluminum, galvanized steel or black pipe for the piping and coupling. The specifications for both the piping and coupling called for stainless steel. Langer, using some dubious technical double-talk, was successful for a time in convincing Krill that the materials were appropriate. But when Krill continued to object, Langer fired him. Moreover, that inappropriate materials had been used was not visible at the First Article Test because the piping and coupling the defendant installed had been painted over. All of this is overwhelming evidence from which a rational trier of fact could conclude beyond a reasonable doubt that Langer intended to defraud the government. Consequently, his convictions for intent to defraud on counts two, three and four stand. III. 34 In the last of his challenges to his conviction, Langer argues that the trial court committed reversible error when it refused to instruct the jury on the definition of reasonable doubt. He acknowledges that the position this Circuit has taken is that no such jury instruction should be given. See United States v. Mitchell, 957 F.2d 465, 468 (7th Cir.1992); United States v. Hall, 854 F.2d 1036, 1039 (7th Cir.1988); United States v. Dominguez, 835 F.2d 694, 701 (7th Cir.1987); United States v. Allen, 596 F.2d 227, 230 (7th Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 149, 62 L.Ed.2d 97 (1979); United States v. Lawson, 507 F.2d 433, 443 (7th Cir.1974), cert. denied, 420 U.S. 1004, 95 S.Ct. 1446, 43 L.Ed.2d 762 (1975). 35 Langer nonetheless invites us to reconsider our position. We decline the invitation. It has been, and continues to be, "our opinion that any use of an instruction defining reasonable doubt presents a situation equivalent to playing with fire." United States v. Shaffner, 524 F.2d 1021, 1023 (7th Cir.1975), cert. denied, 424 U.S. 920, 96 S.Ct. 1126, 47 L.Ed.2d 327 (1976). Any attempt to define the term requires use of additional terms which themselves require definition. And that would tend to confuse, rather than clarify, matters for a jury. As our Committee on criminal jury instructions stated, "The phrase 'reasonable doubt' is self-explanatory and is its own best definition." Instruction 2.07, Definition of Reasonable Doubt, Federal Criminal Jury Instructions of the Seventh Circuit. There was, therefore, no error in the trial judge's refusal to give an instruction defining reasonable doubt. IV. 36 Defendant's final arguments are directed at the restitution order the district court entered at his sentencing. He claims, alternatively, that he has no restitution obligation, or failing that, the amount of restitution ordered exceeds the scope of his convictions. 37 A district court's authority to order a defendant to pay restitution is found in the Victim and Witness Protection Act, 18 U.S.C. § 3663. Because Langer disputed the amount of restitution at his hearing, the government was required to prove that amount by a preponderance of the evidence. See 18 U.S.C. § 3664(d). Langer claims that any restitution order should encompass only the cost to rustproof the trailers. Any rehabilitation work the government paid for, he continues, was unnecessary because, as constructed under the contract, the trailers were not fit for their primary purpose, i.e. potable water, and as rehabbed, they are still not fit for their primary purpose. What this argument lacks in merit it makes up in arrogance. Langer blindly ignores the overwhelming evidence, offered both at trial and at the sentencing hearing, that until they were rehabilitated, the trailers were nothing more than lawn ornaments sitting in Central's yard, unfit for either their primary or secondary purpose. Thus, the government clearly met its burden. 38 As to his alternative argument, Langer maintains that the restitution imposed was excessive because it disregarded whether the criminal conduct alleged in the indictment caused the loss.3 He specifically challenges the amounts attributable to refurbishing the underslung cabinets and installation of stainless steel pumps. Had Langer not been convicted of mail fraud under 18 U.S.C. § 1341 we would agree with him. 39 In United States v. Hughey, 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990), the Supreme Court held that the Victim and Witness Protection Act requires that a restitution order must be limited to "the loss caused by the conduct underlying the offense of conviction." Id. 110 S.Ct. at 1984. After Hughey, in United States v. Bennett, 943 F.2d 738 (7th Cir.1991), we held that "[p]roof of a scheme is an element of the offense of mail fraud, and therefore, actions pursuant to that scheme should be considered 'conduct that is the basis of the offense of conviction.' " Id. at 740. The conduct that is the basis of Langer's conviction under § 1341 is a scheme to defraud described in the indictment, which specifically alleges that between October 22, 1984 and the date of the indictment Langer 40 knowingly and willfully devised and intended to devise a scheme and artifice to defraud the United States, its departments and agencies, more particularly the United States DOD, the United States Air Force [and other agencies of the United States], and to obtain money from the United States by means of false and fraudulent pretenses, representations, and promises, while fully aware that the pretenses, representations and promises would be, and were false and fraudulent when made.... 41 Further, 42 It was an object and purpose of the scheme and artifice to defraud that the defendant, through false, fictitious, and fraudulent means, would cause the United States, through its various departments and agencies, to pay, through Central to Magnum, money to which the defendant, Central and Magnum were not entitled. 43 Indictment, Record Document No. 1, at 6. The scheme thus described, that between specific dates and by means of specific conduct, Langer defrauded the government out of money to which he was not entitled, meets the requirements of Bennett. See also United States v. Brothers, 955 F.2d 493, 496 (7th Cir.1992) ("The district court had the authority to order restitution for the losses caused by the entire fraud scheme, not merely for the losses caused by the specific acts of fraud proved by the government at trial.").4 The amount of the restitution order properly covers all the losses caused by Langer's scheme and, therefore, is not excessive. V. 44 For the foregoing reasons, Langer's convictions on counts one through four, and the restitution order, are AFFIRMED. His conviction on count five, however, is REVERSED, which requires the case to be REMANDED to the district court for resentencing. 45 RIPPLE, Circuit Judge, concurring. 46 I concur in the judgment and opinion of the court, and write separately only to clarify what I understand to be the court's resolution of two issues. 47 First, with respect to our reversal on count five, I wish to emphasize that the government's fundamental problem was not a lack of evidence that the underslung cabinets were improperly constructed, but a poorly drafted indictment. The final clause of count five, italicized in the opinion, focused the charge on the allegation that the cabinets were not constructed with the required 16-gauge steel. As the opinion notes, the court interpreted this clause as having such a limiting effect. In defense of count five, Mr. Langer introduced testimony from several witnesses that the cabinets were in fact constructed with the proper materials. Indeed, there was no evidence whatsoever that the cabinets were constructed of improper materials. Nevertheless, the jury found Mr. Langer guilty of count five, presumably because the government introduced evidence that the cabinets were defective in several other respects. Thus, the proof at trial varied materially from allegations in the indictment, as construed by the court and Mr. Langer. Mr. Langer thereby received insufficient notice of charges ultimately proved. This variance is fatal to the conviction on count five. Cf. Bae v. Peters, 950 F.2d 469, 479 (7th Cir.1991). 48 Second, with respect to the scope of the restitution order, I wish to emphasize that the scheme alleged in the indictment was broad enough to encompass misrepresentations that were not singled out as separate counts in the indictment, but specific enough to meet the requirements of United States v. Hughey, 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990). As we stated in United States v. Bennett, 943 F.2d 738, 741 (7th Cir.1991), a scheme must be defined with specificity in order to support independently a restitution order: "The scheme concept is an amorphous one, and may only support an award of restitution if it is defined with specificity. A contrary rule would allow vague allegations to support restitution based upon broad, unsubstantiated conduct." The district court was careful to limit the restitution order to repairs necessitated by the scheme alleged in the indictment. From the total cost of retrofitting the vehicles, the court deducted costs associated with the two-year delay in retrofitting, costs stemming from regulatory bidding requirements, and, as noted in footnote 3, the salvage value of galvanized steel parts used by Mr. Langer, which did not meet contract specifications. Finally, because the court did not include costs associated with the materials used in constructing the underslung cabinets, our reversal of the conviction on count five does not require a modification of the restitution order in that respect. 1 At the close of all the evidence the defense moved for a directed verdict of not guilty on all counts. Counsel argued most aggressively that the government had not proved the allegation contained in count five. In ruling, the trial judge stated: I'm not, frankly, disagreeing with your position [regarding count five], particularly when the count charges that the cabinetry was not made out of the proper material as opposed to the right dimensions and improperly ventilated and too close to the fuel cap on the diesel engine and so on and so forth. I think they are two different issues; and I am going to, as with all of the motions to dismiss, reserve ruling on it pending the jury's determination since I don't, as I've just stated, want to send the wrong message to the jury with regard to they [sic] feeling, well, the court took one count away, does that mean the court's putting its imprimatur on Counts One through Four. Trial Transcript at 788-89. We find it curious, however, that after the jury returned a guilty verdict as to all counts, the judge denied the defense motion for judgment notwithstanding the verdict on all counts. Because a transcript of the hearing on the JNOV motion was not included in the Record on Appeal, we have no understanding why the trial judge did not follow his initial inclination to grant the motion as to count five. 2 Langer also challenged the sufficiency of the evidence of his intent to defraud as alleged under count five. Because we reverse his conviction on count five for failure of proof, we need not consider his argument as it relates to that count 3 The specific amounts in the restitution order are: . $102,198.20 for the rehabilitation work directly attributable to the trailers' deficiencies as Langer built them; . $68,289.93 for stainless steel piping; . $95,680.00 for installation of stainless steel pumps; . $357.24 for rustproofing. These figures total $266,525.37. The judge then deducted $15,275.00 for the salvage value of the galvanized pumps, plumbing and valves. Consequently, the total amount of the restitution order is $251,250.37. 4 As we noted in Brothers, 955 F.2d at 497, n. 3, the 1990 amendment to the Act conforms to our holding in Bennett. Amended § 3663(a)(2) reads: For the purposes of restitution, a victim of an offense that involves as an element a scheme, a conspiracy, or a pattern of criminal activity means any person directly harmed by the defendant's criminal conduct in the course of the scheme, conspiracy or pattern.	{ "pile_set_name": "FreeLaw" }
12 B.R. 546 (1981) In re SPECIALIZED INSTALLERS, INC., Debtor. CLIMAX MOLYBDENUM COMPANY, Plaintiff, v. SPECIALIZED INSTALLERS, INC., et al., Defendants, and SPECIALIZED INSTALLERS, INC., Third-Party Plaintiff, v. AVERY CONSTRUCTION COMPANY, Third-Party Defendant. Bankruptcy No. 81 K 0391. United States Bankruptcy Court, D. Colorado. July 16, 1981. 547 548 Christopher Lane and William H. Rutter, Sherman & Howard, Denver, Colo., for plaintiff. Michael A. Berniger, Berniger, Berg & Sterling, Colorado Springs, Colo., for defendants Specialized Installers, Inc., Lester H. Kahler, Jr., and Dorothy A. Kahler. Robert M. Duitch, Duitch, Duitch & Gerig, Colorado Springs, Colo., for defendant Berniger, Berg & Sterling. Terry D. Hendricks, Hendricks & Hendricks, Colorado Springs, Colo., for defendant The Western National Bank of Colorado Springs. J. Royce Renfrow, Colorado Springs, Colo., for defendant Schmidt-Tiago Const. Co. Leon R. Hetherington, Frisco, Colo., for third-party defendant Avery Const. Co. 549 MEMORANDUM GLEN E. KELLER, Jr., Bankruptcy Judge. Plaintiff, Climax Molybdenum Company (Climax), has filed a complaint against the Debtor and others seeking to recover $61,628.03 alleged to be held in trust by the Defendants. The facts are largely undisputed. Climax owns and operates a large mine in Lake County, Colorado. The mine consists of a large open pit, a tailings pond, numerous warehouses and buildings, and a substantial amount of real property. Access to the pit is by means of various gravel roads. Very heavy equipment travels over the roads in summer and winter removing ore for processing. Climax contracts every year with various entities for delivery of "open pit sanding gravel" to be used on the roads. The gravel is used to give the vehicles traction in the winter and to form a surface for the road when the snow melts. It is also used in the pit for road maintenance purposes. Due to the nature of the heavy machinery, only gravel containing rock of more than 3/8 of an inch in diameter is usable. In August, 1980, Climax contracted with Specialized Installers, Inc., the Debtor herein, for delivery of 20 to 60 tons of open pit sanding gravel at $8.35 per ton. The written agreement was in the form of a purchase order with an addendum outlining additional terms of sale and conditions. The Debtor was first able to obtain gravel of the required dimensions from a placer mine near Alma, Colorado, and began delivering it to Climax. However, problems developed between the Debtor, the gravel supplier, and individuals who contracted to haul the rock to the mine. Thereafter, the Debtor entered into an agreement with Avery Construction Company (Avery) whereby Avery would furnish and deliver the gravel for $7.50 per ton. The Debtor, by its agreement dated October 27, was required to pay Avery the same day it received payment from Climax. Climax consented to the substitution of Avery and issued an appropriate change order on November 6. Avery began to perform and delivered a total of 7,326 tons. It was then instructed by Climax not to make further deliveries. Avery was told to stop either because its gravel was nonconforming or because Climax had obtained sufficient material to meet its needs. On November 7, Avery submitted its statement to the Debtor in the amount of $54,949.13. During this time, the Debtor's financial position had been steadily deteriorating. Its account at Western National Bank in Colorado Springs was often overdrawn, and the size of the overdrafts was increasing. By November 21, the deficit had reached $16,082.35. The Bank had previously loaned the Debtor $30,000.00 secured by accounts receivable, equipment, and inventory. The loan was made on a term basis, and a substantial payment was expected by the Bank on December 1. Marc Millison, a representative of the Bank, indicated that the Specialized Installer's loan was considered a problem loan, and he was closely monitoring the Debtor's business. Daily phone contact with the Debtor was not uncommon. The Debtor was also $29,000.00 in arrears on a note it had executed in favor of Schmidt-Tiago Construction Co., a supplier and the lessor of the premises from which the Debtor operated. Schmidt-Tiago was threatening to accelerate Debtor's obligation and to lock Debtor out of the premises. The Debtor consented to Schmidt-Tiago's proposal that its representative assist in the operation of the business. This was done and subsequently all checks from customers of the Debtor were made payable to the Debtor and Schmidt-Tiago jointly. Disputes over the propriety of this tactic prevented these checks from being cashed, further straining Debtor's cash flow. Finally, the Debtor owed substantial taxes to the Internal Revenue Service, the State of Colorado, and local authorities, including employee withholding taxes. Lester Kahler, President of the Debtor corporation, stated that he was aware that such taxes, if not paid, could result in substantial personal liability. 550 The Debtor's financial situation became so serious that Kahler met with Michael Berniger, a Colorado Springs attorney, to discuss possible solutions to the problems that had arisen, particularly Schmidt-Tiago's threatened lockout. This meeting was on November 20, 1980, at the offices of Berniger, Berg & Sterling, P.C., in Colorado Springs. The possibility of filing bankruptcy was discussed. The next day, November 21, Climax issued a check payable to the Debtor in the amount of $61,628.03 as final payment under the gravel contract. Under the agreement between the Debtor and Avery, $54,949.13 of that money should have been paid to Avery that same day. Instead, Les Kahler went to the bank upon which the Climax check was drawn and obtained four cashier's checks. The first was for $5,000.00 and was made payable to Berniger, Berg & Sterling, P.C. The second was in the amount of $6,348.00 payable to Lester Kahler himself. The third check was for $18,861.03 payable to the Debtor corporation as was the fourth check in the amount of $31,519.00. The $5,000.00 was delivered to the Defendant law firm on November 24 as a retainer so that Berniger, Berg, & Sterling could proceed to file a petition under Chapter 11 of Title 11, United States Code, on behalf of the corporation. The $18,861.03 cashier's check was deposited at The Western National Bank of Colorado Springs and removed the overdraft of $16,082.35, plus $645.00 interest on the overdraft. The $31,519.00 cashier's check was deposited at another Colorado Springs bank, and on November 26, the corporation used approximately $24,000.00 of this fund to pay the IRS delinquent taxes. Later, on December 4th and 5th, Kahler transferred $12,147.52 into Specialized Installers' debtor-in-possession account at The Western National Bank of Colorado Springs. On November 26, the Debtor filed a Chapter 11 petition in this Court. Avery, not having received payment from the Debtor, took steps to establish and foreclose a mechanic's lien against the mine at Climax for the $54,949.13 it was owed for handling the gravel. A notice of intent to file a lien was recorded on February 24, 1981. Climax entered into a settlement agreement in order to avoid foreclosure whereby Climax agreed to pay Avery in full in exchange for a release of the lien. Climax then commenced this proceeding against the Debtor, two of its officers, the Bank, and the law firm of Berniger, Berg & Sterling. The complaint seeks to compel the Debtor to perform its trust by paying to Plaintiff any moneys remaining under its control that are traceable to the $61,628.03 Climax check. In addition, the complaint seeks judgment in the amount of $54,949.13, less any trust funds otherwise recovered, plus $50,000.00 in punitive damages against Kahler, his wife, and the Debtor corporation. The corporate debt is alleged to be nondischargeable under 11 U.S.C. § 523(a)(4). Finally, Plaintiff seeks to compel The Western National Bank of Colorado Springs and Berniger to return the funds they received from the Debtor on the theory that the $18,861.03 and the $5,000.00 are also traceable proceeds of the $61,628.03 trust. Plaintiff's trust argument is based on the theory that an express trust arose in this case under § 38-22-127(1), C.R.S.1973. It asserts that the trust can be enforced by the owner of real property that is or may be subject to a mechanic's lien. The statute provides as follows: (1) All funds disbursed to any contractor or subcontractor under any building, construction, or remodeling contract or on any construction project shall be held in trust for the payment of the subcontractors, material suppliers, or laborers who have furnished materials, services, or labor, who have a lien, or may have a lien, against the property, or who claim, or may claim, against a principal and surety under the provisions of this article and for which such disbursement was made. (2) This section shall not be construed so as to require any such contractor or subcontractor to hold in trust any funds which have been disbursed to him for any subcontractor, material supplier, or laborer who claims a lien against the property or claims against a principal and surety 551 who has furnished a bond under the provisions of this article if such contractor or subcontractor has a good faith belief that such lien or claim is not valid or if such contractor or subcontractor, in good faith, claims a setoff, to the extent of such setoff. (3) If the contractor or subcontractor has furnished a performance or payment bond or if the owner of the property has executed a written release to the contractor or subcontractor, he need not furnish any such bond or hold such payments or disbursements as trust funds, and the provisions of this section shall not apply. (4) Every contractor or subcontractor shall maintain separate records of account for each project or contract, but nothing contained in this section shall be construed as requiring a contractor or subcontractor to deposit trust funds from a single project in a separate bank account solely for that project so long as trust funds are not expended in a manner prohibited by this section. (5) Any person who violates the provisions of subsections (1) and (2) of this section commits theft, as defined in section 18-4-401, C.R.S.1973. Courts are not in agreement on whether mechanic's lien statutes and trust lien statutes create express trusts that are enforceable by property owners. Each decision is based, at least in part, on the language of the state statute. In Matter of Dloogoff, 600 F.2d 166 (8th Cir. 1979), it was held that Nebraska's lien law did not create an express trust for dischargeability purposes. The Fifth Circuit has reached a similar result under Louisiana law. Matter of Angelle, 610 F.2d 1335 (5th Cir. 1980); accord, In re Neal, 3 B.R. 330 (B.C.D.Utah 1980) (construing Utah law). However, the Fifth Circuit reached precisely the opposite conclusion in Carey Lumber Co. v. Bell, 615 F.2d 370 (5th Cir. 1980), based on Oklahoma's mechanic's lien statute. In Matter of Kawczynski, 442 F.Supp. 413 (W.D.N.Y. 1977), the court construed the New York lien law to create an express trust in favor of subcontractors. The factors that persuaded the court in Kawczynski included the "unambiguous statutory language" imposing the trust, the clear delineation of the trust res, and the imposition on the contractor-trustee of "extensive affirmative duties" in managing the trust, including the requirements of keeping detailed records and segregating the trust funds. Furthermore, it was noted that the contractor's failure to turn over the trust funds to the beneficiaries was made a larceny by the statute. The trust relationship was imposed by the statute at the time he received money from the owner, regardless of whether there existed any trust beneficiaries at the time. Hence, the trust existed prior to the contractor's misappropriation, consistent with an express, as opposed to a constructive, trust. Finally, the Tenth Circuit Court of Appeals has construed New Mexico law and concluded that it creates a fiduciary relationship based on an express trust that can be asserted by a property owner in a dischargeability action. In re Romero, 535 F.2d 618 (10th Cir. 1976). In Romero, the ruling was based on a statutory provision for the revocation of a contractor's license as a penalty for diversion of funds received for completion of a specific contract. Romero and Kawczynski represent the better rule given the wording of the Colorado statute. Section 38-22-127 is unambiguous in its creation of a trust relationship. The corpus of the trust is unmistakably defined. Every contractor is required to maintain separate records of account for each project. Violation of the statute constitutes the crime of theft. It is of no moment that the property owner seeks to enforce the trust rather than a subcontractor. See Scott, Trusts § 126.1 (3rd ed. 1967). The property owner clearly faces potential double payment. The subcontractor is protected by the mechanic's lien statute itself, §§ 38-22-101 et seq., C.R.S.1973. Thus, it is the property owner who is the principal beneficiary of the statutory trust. Three arguments advanced by the Defendants must be addressed. First, it is 552 contended that § 38-22-127(2) exempts the Debtor from the obligation to hold the $61,268.03 in trust because Kahler had a goodfaith belief that Avery's lien or claim was not valid or that there was a right of setoff against Avery. Based on the evidence, the Court cannot find that Kahler had such a belief. Kahler's testimony that he formed the legal opinion that the provision of sanding gravel to a mine was not lienable under the Colorado mechanic's lien statute implies a level of sophisticated legal analysis beyond Mr. Kahler's ability. As for the existence of a right of offset, it is true that the Debtor has asserted claims against Avery for negligence and breach of contract. There is absolutely no evidence that Kahler thought he had any claim against Avery until the third-party complaint was filed on March 27, 1981, over four months after the Chapter 11 petition had been filed and one month after Climax sued the Debtor. Kahler's testimony clearly shows that the only "legal" reason for his decision not to pay Avery was his counsel's opinion that the payment would be a voidable preference. Furthermore, Debtor's bankruptcy schedules filed on December 12, 1980, listed various claims of creditors as disputed. Avery's was not. Indeed, the precise amount of the debt, $54,949.13, was scheduled. Defendants next argue that no trust arises in this case because Avery failed to perfect its lien under the statute, §§ 38-22-101 et seq., C.R.S.1973. Avery's lien statement was filed on Section 11 of Township 8 South, Range 79 West, 6th P.M., Lake County, Colorado. The evidence was that the gravel was delivered by Avery, stored, and used in Sections 12, 13, and 1. Since none of the gravel served to improve or maintain property located in Section 11, where the lien was filed, Defendants contend that no express trust arises under § 127. The argument is simply that Avery is not a subcontractor who has or "may have a lien, against the property," as required by § 127(1). It is improbable that Avery's failure to file on the precise sections of land where the gravel was used would render its lien void under Colorado law. The cases suggest that the operation at Climax should be viewed as a single unit for purposes of filing a mechanic's lien. First National Bank in Fort Collins v. Sam McClure & Son, Inc., 163 Colo. 473, 431 P.2d 460 (1967). The evidence additionally shows that all of the gravel had to be transported over Section 11 in order to be incorporated into the open pit mine. Section 11 would thus be property lienable pursuant to § 38-22-103 in that so much of the land necessary for the convenient use and occupation of the improvement is subject to the lien. Defendants' final argument that no express trust arose in this case is that the provision of sanding gravel to a mine is not the kind of improvement for which a lien can be asserted in Colorado. The mining lien provision is found at § 38-22-104. It states: The provisions of this article shall apply to all persons who do work or furnish materials, or mining, milling, or other machinery or other fixtures, as provided in section 38-22-101, for the working, preservation, prospecting, or development of any mine, lode, or mining claim or deposit yielding metals or minerals of any kind, or for the working, preservation, or development of any such mine, lode, or deposit, in search of any such metals or minerals; and to all persons who do work upon or furnish materials, mining, milling, and other machinery or other fixtures, as provided in section 38-22-101, upon, in, or for any shaft, tunnel, mill, or tunnel site, incline, adit, drift, or any draining or other improvement of or upon any such mine, lode, deposit, or tunnel site; and to every miner or other person who does work upon or furnishes any coal, power, provisions, timber, powder, rope, nails, candles, fuse, caps, rails, spikes, or iron, or other materials whatever, as provided in section 38-22-101, upon any mine, lode, deposit, mill, or tunnel site. The gravel supplied by Avery clearly falls under the category of "materials for the working and preservation of a mine," and 553 Avery clearly "furnished provisions to a mine." In International Trust Co. v. Lowe, 66 Colo. 131, 180 P. 579 (1919), the Colorado Supreme Court stated: "It is settled law that the work for which a lien on a mine is given is that which is performed in the development and conservation of the mine, and the results of which become incorporated with the mine so as to constitute a part of its value." The sanding gravel provided by Avery was part of the development and conservation of the Climax mine and contributed to its value. The mining lien is broader than the general lien statute in that items consumed in development are lienable as they contribute to the development of the mine. Climax has argued that even if the $61,628.03 check it issued to the Debtor was not held in a statutory trust, $54,949.13 was held in constructive trust pursuant to the common law, since this amount ought to have been paid over to Avery. It has been determined that a statutory trust arose in this case. However, Plaintiff's constructive trust theory is also well taken and can serve equally well as a basis for the tracing Climax is attempting herein. A constructive trust is an equitable remedy devised to prevent unjust enrichment and compel restitution of property that in equity and good conscience does not belong to the Defendant. It does not require an intent to create a trust. Dobbs, Remedies, § 5.3 at 240 (1973 ed.). Neither actual fraud, nor the existence of a fiduciary relationship need be shown. Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979); Weeks v. Esch, 39 Colo.App. 428, 568 P.2d 494 (1977). However, something more than a mere creditor-debtor relationship must be proved. In re Penn-Dixie Steel Corp., 6 B.R. 817 (B.S.D.N.Y.1980). There must be a relationship of trust and confidence between the parties. In Colorado, a confidential relationship arises when one party has justifiably reposed confidence in another. This can occur in numerous ways, but the linchpin is that the transferor of property must be justified in his belief that the transferee will act in his best interests. Page v. Clark, supra. The relationship between Climax and the Debtor was confidential. As transferor of the $61,628.03 check, Climax was entitled to expect that the Debtor would carry out its legal and contractual obligation to remit to Avery $54,949.13, thus protecting Climax from any claim by Avery. This is more than a mere creditor-debtor relationship. The next question which follows is to what extent The Western National Bank of Colorado Springs and Berniger are liable to make restitution of trust proceeds in their possession. The proceeds of a trust, express or constructive, can be traced into the hands of third parties and recovered by the rightful claimant. However, the proceeds must be specifically identifiable as being part or product of the trust res. Furthermore, to the extent that trust proceeds fall into the hands of a bona fide purchaser for value, the rightful owner cannot recover the property. The Court must determine whether the Bank and Berniger knew, or should have known, of the existence of the trust relationship. Dobbs, Remedies, § 5.16 at 423-30 (1973 ed.); Colorado v. Benjamin, et al., 41 Colo.App. 520, 587 P.2d 1207 (1978); Coriell v. Hudson, 563 F.2d 978 (10th Cir. 1977). The Western National Bank of Colorado Springs used the deposit to satisfy the overdraft plus interest. The loan officer, Marc Millison, was aware of the overdraft and was closely monitoring the status of the account, the outstanding loan, and the Debtor's business itself. Millison was aware of the Climax contract with Specialized and of the subcontract with Avery. Copies of both agreements were in his possession. His credit memoranda to the Bank's file make various references to the gravel contract and proceeds thereof that the Bank expected to have deposited in the Debtor's general account. Millison testified at one point that he thought one $9,500.00 account receivable from Climax was the Debtor's "net" from the subcontract. This suggests that Millison was actually aware of the trust situation. At another point, he denied actual knowledge of the trust relationship 554 and stated he had not read the subcontract carefully. Whichever the case may be, the conclusion is inescapable that the Bank either knew, or should have known, of the trust. It had in its possession all the information necessary to learn of it plus ample opportunity to query the Debtor during any of the numerous conversations between Millison and Kahler. That the Bank was on inquiry notice of the wrongful nature of the $18,861.03 cashier's check is likewise undeniable. Millison testified at the deposition that by November, the bulk of Debtor's cash flow was coming from the Climax gravel contract. When the check was deposited by Kahler, Millison was "intrigued" that it was in the form of a cashier's check drawn on an out-of-town bank. In fact, he thought the check interesting enough to cause a xerox thereof to be placed in the Debtor's credit file. He admitted that the check represented a significant and unusually large sum. The Bank was clearly on notice of the true nature of the deposit. Thus, it is not a bona fide purchaser and must restore the $18,861.03 to the Plaintiff. A different result obtains for Berniger, Berg & Sterling. The Court is convinced that Berniger knew of the relationship between the three entities, Climax, Avery, and the Debtor, at the time it received the $5,000.00 retainer on November 24. Kahler testified in his deposition that he informed Berniger that he had a check coming from Climax. Notes taken by Mr. Berniger at the November 20 meeting indicate an account receivable in the amount of $61,000.00 with $54,000.00 owed. However, Berniger testified that he was more concerned with the Debtor's immediate problem with Schmidt-Tiago and that he did not concern himself with the terms of the contracts between Climax, Avery, and the Debtor. Mr. Berniger cannot escape understanding with such ease. All of the facts were before him, and his advice to his client was hasty and without careful analysis. Even though Berniger is chargeable with notice of the trust relationship, Plaintiff has failed to show that any of the $5,000.00 received as a retainer is still available and identifiable. Tracing is only allowed with respect to money when the fund is shown to be intact. If it has been dissipated, there is nothing to recover, and this is so even when the transferee knew all about the trust. In re Dexter Buick-GMC Truck Co., 2 B.R. 247 (B.R.I.1980). The funds were placed in the firm trust account, and as fees were earned, funds were withdrawn and used for general firm purposes. Because there is no evidence that the $5,000.00 the firm received is still available, judgment must enter in favor of Berniger, Berg & Sterling. The claims against Dorothy Kahler and Schmidt-Tiago were dismissed upon their motions at the close of Plaintiff's case. The complaint seeks judgment against Mr. Kahler in the amount of $54,949.13, less any trust funds received, plus exemplary damages. It is clear that Kahler is liable. He is the President of the corporation and controls it. He was as well the principal actor in the breach of trust. By diverting Climax's $61,628.03, he was able to avoid substantial personal liability to the Internal Revenue Service for withholding taxes he had failed to remit. Kahler admitted under oath that he was concerned about the legality of his acts. He was very aware of his personal liability to the I.R.S. That he breached his fiduciary duty to Climax and Avery is clear. However, the evidence falls short of that required to sustain an award of punitive damages. A breach of trust is not necessarily tantamount to a wanton and reckless disregard of the rights of others as this case shows. Section 13-21-102, C.R.S.1973. Hence, no exemplary damages will be awarded. Finally, the complaint seeks judgment against the Debtor for the breach of trust committed by Kahler. In addition, Climax asserts that said judgment should be made nondischargeable pursuant to 11 U.S.C. § 1141(d)(3) and 523(a)(4). Section 523(a)(4) excepts from discharge any debt for fraud or defalcation while acting in a fiduciary capacity. The case law is clear that a constructive trust cannot be the basis for a finding of nondischargeability under *555 § 523(a)(4). A constructive trustee is not necessarily a fiduciary. Page v. Clark, supra. The trust relation must arise prior to the defalcation, not as a result of it. In re Romero, supra. Here the conditions of the Romero case are met. The Debtor clearly committed a defalcation while acting as a fiduciary. The debt owed Climax is nondischargeable pursuant to the provisions of 11 U.S.C. § 1141(d)(3) but, of course, is subject to the other provisions of Chapter 11 in the event the debtor achieves confirmation of a nonliquidating plan and continues in business. DONE at Denver in said District this 16th day of July, 1981.	{ "pile_set_name": "FreeLaw" }
912 N.E.2d 235 (2009) In re COMMITMENT OF Benjamin HERNANDEZ. (The People of the State of Illinois, Petitioner-Appellant, v. Benjamin Hernandez, Respondent-Appellee). No. 2-07-0853. Appellate Court of Illinois, Second District. June 15, 2009. 236 Lisa Madigan, Attorney General, State of Illinois, Michael A. Scodro, Solicitor General, Garson S. Fischer, Assistant Attorney General, Michael M. Glick, Assistant Attorney General, Chicago, IL, for Appellant. David J. Brown, Attorney At Law, Rockford, IL, for Appellee. Justice JORGENSEN delivered the opinion of the court: Respondent, Benjamin Hernandez, was adjudicated a sexually violent person under the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West 2004)) and was to be placed on conditional release. The State appealed. Because the State filed its notice of appeal before the trial court approved the conditional release plan, we lack jurisdiction. We therefore dismiss the appeal. On January 14, 2004, the trial court adjudicated defendant a sexually violent person. See 725 ILCS 207/35(f) (West 2004). The matter was continued for disposition. On April 25, 2007, the State summarized the status of the case: "Judge, as I recall, on September 6, 2005, the Court ordered that ResCare was to propose a conditional discharge plan that meets the minimal qualifications of [the Department of Human Services (DHS)] and provide respondent's attorney said plan and turn it over to the [A]ttorney [G]eneral's office, also. That's by statute. There is in the statute a conditional release plan or requirements of such set out in the statute. We never received anything that addressed the issues that are raised for conditional release plan in the statute." On a final note, defense counsel stated: "If the Court is of the view you are going to place him on a conditional release with certain conditions, then per [the] Sexually Violent Persons Commitment Act[,] DHS is now supposed to provide you a plan in accordance with your wishes. That is their statutory obligation." The case was continued. On July 3, 2007, the court ruled as follows: "I am convinced at this time that I would take the step of ordering conditional release, and I believe the statute requires that the department provide a conditional release plan." The July 3 order reads, "[r]espondent is to be placed on conditional release as disposition." The court continued the matter "for the presentation of a release plan." On July 19, 2007, the State filed a motion to reconsider conditionally releasing respondent, and the motion was denied on July 20, 2007. The State filed its notice of appeal on August 20, 2007. On September 21, 2007, the court accepted and approved a 13-page conditional release plan. The conditional release plan sets forth where respondent will reside and who will provide case management services. The plan also sets forth the conditional release strategy, the conditions of release, monitoring provisions, and the consequences of violating the release plan. We do not have a transcript of the hearing on September 21, 2007, but the docket sheet for that date reads: "The DHS plan is accepted by the Court and [respondent] is advised of the plan. [Respondent] agrees to the plan and is to be released." The State did not file a new notice of appeal. To establish jurisdiction, the State invokes Supreme Court Rules 301 (155 Ill.2d R. 301) and 303 (210 Ill.2d R. 303), which provide for appeals as a matter of right 237 from final judgments.[1] The State submits the July 3, 2007, order as the final judgment and thus concludes that its notice of appeal, filed within 30 days of the denial of its motion to reconsider on July 20, 2007, was timely. We asked the parties to file supplemental briefs, specifically addressing whether the September 21, 2007, order approving the release plan has any impact on our jurisdiction. The State has filed a supplemental brief, arguing that we have jurisdiction because: (1) the July 3 order stating that respondent was to be conditionally released was final pursuant to the plain language of sections 35(g) and 40(b)(2) of the Act (725 ILCS 207/35(g), 40(b)(2) (West 2006)); (2) the July 3 order was final because it adjudicated the ultimate right, namely, whether respondent would be committed or released, and the details of the release plan were merely incidental to this right; and (3) alternatively, Supreme Court Rule 303(a)(1) allows the notice of appeal to be treated as filed on the date of the final order (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 303(a)(1), eff. May 1, 2007). Respondent failed to file a supplemental brief. With exceptions not applicable here, our jurisdiction is limited to appeals from final judgments. 155 Ill.2d R. 301; Puleo v. McGladrey & Pullen, 315 Ill. App.3d 1041, 1043, 249 Ill.Dec. 106, 735 N.E.2d 710 (2000). For purposes of Rule 301, "`[a] final judgment is one that fixes absolutely and finally the rights of the parties in the lawsuit; it is final if it determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment.'" In re M.M., 337 Ill.App.3d 764, 771, 272 Ill.Dec. 115, 786 N.E.2d 654 (2003), quoting In re Adoption of Ginnell, 316 Ill.App.3d 789, 793, 250 Ill.Dec. 117, 737 N.E.2d 1094 (2000). "An order is final for purposes of review when matters left for future determination are merely incidental to the ultimate rights that have been adjudicated by the judgment." In re Detention of Lieberman, 356 Ill.App.3d 373, 377, 292 Ill.Dec. 338, 826 N.E.2d 479 (2005). An order is not final where jurisdiction is retained for matters of substantial controversy. Ginnell, 316 Ill.App.3d at 793, 250 Ill.Dec. 117, 737 N.E.2d 1094. To establish jurisdiction, the State first relies on sections 35(g) and 40(b)(2) of the Act. The State's argument is as follows. Section 35(g) states that the court's finding that a person is sexually violent is interlocutory to the commitment order under section 40. 725 ILCS 207/35(g) (West 2006). Thus, it follows that the commitment order is the final order. Furthermore, pursuant to section 40(b)(2), the commitment order shall specify "either institutional care * * * or conditional release." 725 ILCS 207/40(b)(2) (West 2006). Here, the order entered on July 3 specified conditional release; therefore, it must be a final order. The appealability of an order, however, is dependent upon its substance, not necessarily its form. Altschuler v. Altschuler, 399 Ill. 559, 570, 78 N.E.2d 225 (1948); Harold Butler Enterprises No. 662, Inc. v. Underwriters at Lloyds, London, 100 Ill.App.3d 681, 686, 56 Ill.Dec. 232, 427 N.E.2d 312 (1981). Again, "[t]he ultimate test of finality is whether the judgment appealed from fully and finally disposes of the rights of the parties to the cause so that no material controverted issue remains to be determined." American Federation of State, 238 County & Municipal Employees (AFSCME) v. State of Illinois, 192 Ill. App.3d 108, 111, 139 Ill.Dec. 207, 548 N.E.2d 592 (1989). Here, the July 3 order did not fully and finally dispose of the rights of the parties. Instead, the July 3 order necessitated and contemplated further action by the court to determine the conditions of release. The court expressly retained jurisdiction over the proceedings for approval of the conditional release plan, as required by statute. See In re Detention of Hayes, 321 Ill.App.3d 178, 195, 254 Ill.Dec. 404, 747 N.E.2d 444 (2001) ("under section 40(b)(3) a trial court is required to approve a treatment plan"). We determine that the reservation of jurisdiction for the purpose of entering a conditional release plan shows that not all of the issues in dispute were fully addressed and settled by the July 3 order. Thus, the July 3 order was not final. Furthermore, the approval of the 13-page conditional release plan was not merely incidental to the ultimate rights adjudicated. Rather, the matters left for future determination were essential to the case the terms under which respondent was to be conditionally released. The parties could not enforce the July 3 order until the court specified the conditions of release; that is, without those conditions, there could be no conditional release. See People v. Brown, 137 Ill.App.3d 453, 454, 92 Ill.Dec. 214, 484 N.E.2d 945 (1985) (if a discretionary condition of probation or conditional discharge has not been reduced to writing, a petition to revoke may not be premised upon any alleged violation of such a condition); see also People v. Susberry, 68 Ill.App.3d 555, 561, 25 Ill.Dec. 90, 386 N.E.2d 361 (1979) (the conditions of probation should not be orally stated but should be spelled out in the probation order in clear and unmistakable detail); People v. Einoder, 96 Ill.App.2d 174, 180, 238 N.E.2d 137 (1968) (the order granting probation must contain all the conditions of the probation). And the docket sheet for September 21, 2007, makes clear that only on that date was defendant advised of the release plan and indeed released. The statutorily required provisions for a conditional release plan underscore the importance of a release plan "that is specific and clear in order that it be a final disposition, capable of being interpreted and enforced." In re Marriage of Capitani, 368 Ill.App.3d 486, 487, 306 Ill.Dec. 750, 858 N.E.2d 547 (2006) (joint parenting order not incidental such that dissolution judgment was final). The relevant statute reads in pertinent part: "If the court finds that the person is appropriate for conditional release, the court shall notify the Department. The Department shall prepare a plan that identifies the treatment and services, if any, that the person will receive in the community. The plan shall address the person's need, if any, for supervision, counseling, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. * * The plan shall specify who will be responsible for providing the treatment and services identified in the plan. The plan shall be presented to the court for its approval within 60 days after the court finding that the person is appropriate for conditional release, unless the Department and the person to be released request additional time to develop the plan." (Emphases added.) 725 ILCS 207/40(b)(3) (West 2006). The 13-page conditional release plan entered on September 21, 2007, specified that respondent would be managed by a case management team consisting of Alternative Behavior Treatment Center staff, the 239 Liberty Healthcare Corporation conditional release agent, a polygraph examiner, and DHS Safety 1st conditional release staff. The plan also identified and addressed respondent's specific needs in terms of sex offender treatment and sex offender registration, and it set forth a specific plan to obtain the necessary treatment and assistance in registering as a sex offender. The plan also specified where respondent would reside and addressed his need for supervision by way of a global-positioning-system monitor. Because the plan addressing defendant's needs for treatment and services, identifying the treatment and services he would receive, and specifying who would provide such treatment and services was not realized until September 21, 2007, the July 3 order was not final. The breadth of areas to be covered by the plan and the specificity of the conditions to be included reinforce our conclusion that the conditions of the conditional release plan are not incidental; they are the final order. See Capitani, 368 Ill.App.3d at 488, 306 Ill.Dec. 750, 858 N.E.2d 547; see also Shermach v. Brunory, 333 Ill.App.3d 313, 317, 266 Ill.Dec. 611, 775 N.E.2d 173 (2002) (where petitioner was ordered to pay child support but the case was continued for the parties to present evidence of petitioner's net income in order to determine the specific dollar amount of child support, first order was not final). The State distinguishes Capitani and Shermach on the basis that, in those cases, the court continued the matters for further action by the court, whereas here the case was continued for further action by DHS, namely, preparation of the conditional release plan. But the court still had to review the proposed release plan and approve the conditions it deemed appropriate, and it retained jurisdiction so that it could do so. We also reject the State's argument that approval of the plan was merely incidental because the Act "does not make the details of that plan a matter of dispute between the parties." As the State notes, the Act states that the plan must be "presented to the court for its approval." 725 ILCS 207/40(b)(3) (West 2006). According to the State, because the Act does not specify that a hearing must be held for approval of the plan, the approval process is not a matter of dispute. But the statute does not preclude the parties from contesting the plan, nor does it preclude a hearing to resolve any such issue. Thus, the State's argument fails. Lastly, the State relies on Supreme Court Rule 303(a)(1) to establish jurisdiction. The rule does not apply here. The supreme court amended Rule 303(a)(1), effective May 1, 2007, to state: "A notice of appeal filed after the court announces a decision, but before the entry of the judgment or order, is treated as filed on the date of and after the entry of the judgment or order." Official Reports Advance Sheet No. 8 (April 11, 2007), R. 303(a)(1), eff. May 1, 2007. Rule 303(a)(1) contemplates a situation where the court orally pronounces a final judgment but the written order follows later. In such a situation, the notice of appeal filed after the oral pronouncement but before entry of the written order is treated as filed on the date of the written order. The rule does not apply here, because the court did not orally pronounce a final judgment on July 3 and the release plan was not merely the embodiment of the oral pronouncement. In Eclipse Manufacturing Co. v. United States Compliance Co., 381 Ill.App.3d 127, 319 Ill.Dec. 586, 886 N.E.2d 349 (2007), this court interpreted this new amendment. In Eclipse, Eclipse filed suit against the United States Compliance 240 Company (U.S.Compliance) for faxing advertisements to Eclipse without first obtaining its permission to do so. Eclipse, 381 Ill.App.3d at 128-29, 319 Ill.Dec. 586, 886 N.E.2d 349. U.S. Compliance served its insurance company, Hartford Casualty Insurance Company, with a demand for Hartford to defend U.S. Compliance, based on its commercial general liability insurance policy. Eclipse, 381 Ill.App.3d at 129, 319 Ill.Dec. 586, 886 N.E.2d 349. Hartford denied coverage. Eclipse and U.S. Compliance then settled the claim for $3,999,999.98. Eclipse, 381 Ill.App.3d at 130, 319 Ill.Dec. 586, 886 N.E.2d 349. Eclipse filed a third-party citation proceeding against Hartford in an effort to satisfy the judgment with the insurance proceeds. Eclipse, 381 Ill.App.3d at 131, 319 Ill.Dec. 586, 886 N.E.2d 349. On July 25, 2006, the trial court heard argument on the third-party citation and stated that it would rule for Eclipse and against Hartford. Eclipse, 381 Ill.App.3d at 131, 319 Ill.Dec. 586, 886 N.E.2d 349. The court directed the parties to prepare draft orders incorporating the court's comments, but Eclipse and Hartford could not agree on the language. Eclipse, 381 Ill.App.3d at 131, 319 Ill.Dec. 586, 886 N.E.2d 349. Although the court expressly stated that it had not yet entered a final order, Hartford filed a "`protective'" notice of appeal on August 22, 2006. Eclipse, 381 Ill.App.3d at 131, 319 Ill.Dec. 586, 886 N.E.2d 349. This court found that, under the former Rule 303(a)(1), jurisdiction would be lacking because the trial court's July 25, 2006, order was not final and Hartford's "protective" notice of appeal was premature. Eclipse, 381 Ill.App.3d at 132, 319 Ill.Dec. 586, 886 N.E.2d 349. However, applying the 2007 amendment to Rule 303(a)(1), we concluded that we had jurisdiction over the appeal because the August 22, 2006, "protective" notice of appeal was to be treated as filed on August 25, 2006, the date on which the final judgment was entered. Eclipse, 381 Ill.App.3d at 132-33, 319 Ill. Dec. 586, 886 N.E.2d 349. The final judgment ordered Hartford to pay Eclipse $3,999,999.98, plus costs and statutory postjudgment interest accruing from the July 25, 2006, ruling. Eclipse, 381 Ill. App.3d at 131, 319 Ill.Dec. 586, 886 N.E.2d 349. The facts of Eclipse are distinguishable from our case. In Eclipse, the written order was merely the embodiment of the court's oral pronouncement on July 25, 2006. This conclusion is supported by the court's action of directing the parties to prepare draft orders incorporating the court's comments. The case was continued only for submission of these draft orders, and the court did not reserve jurisdiction for any matters of substantial controversy. This was precisely the situation contemplated by the amendment to Rule 303(a)(1). Here, on the other hand, at the July 3 hearing, the court stated: "I am convinced at this time that I would take the step of ordering conditional release, and I believe the statute requires that the department provide a conditional release plan." The court then continued the matter for presentation of the release plan. The details of the release plan were litigated only after the August notice of appeal was filed. Because the release plan entered on September 21, 2007, was not merely the embodiment of a final judgment orally pronounced on July 3, 2007, but rather was the final judgment itself, Rule 303(a)(1) does not apply here. While we dismiss this appeal for lack of appellate jurisdiction, we share the frustration evident in the words and tenor of the special concurrence. Defendant's history of sexual violence is extensive, dating back to 1990. This is further exacerbated 241 by the escalating nature of defendant's activity and his failure to participate in required treatment. We appreciate the State's desire to have this court review the merits. However, we are a court of review bound by the existing Supreme Court Rules, which circumscribe the jurisdiction of this court. We cannot create jurisdiction where none exists and must apply the current rules without regard to the outcome. Change in the rules of appellate jurisdiction that would allow consideration of the merits in this case must be accomplished in a forum other than this court. Appeal dismissed. SCHOSTOK, J., concurs. Justice O'MALLEY, specially concurring: While I reluctantly concur in the majority's holding that we lack jurisdiction over this appeal, I write separately to voice my concerns with this result. At issue here substantively was the State's contention that the trial court did not properly or sufficiently consider the factors governing whether a sexually violent person (SVP) should be committed to institutional care in a secure facility or whether he should receive conditional release back into the community upon which he has preyed. See 725 ILCS 207/40(b)(2) (West 2006). Thus, the State's position was that respondent should not be released into the community under any conditions; that is the sole issue on which the State seeks review. Evidence in the record shows that respondent has a history of sexual violence beginning in 1990, when he was 14 years of age, when he struck a 7-year-old girl and asked her, "Do you want to get humped?" No charges resulted from that incident. A year later, respondent touched a nine-year-old girl's genitals and, while both were clothed, simulated sex with her while she was held down by another boy. When the victim began screaming and crying, respondent got up and allowed the victim to run away. When this incident was investigated, the police uncovered evidence that respondent had been making repeated, inappropriate sexual comments to young girls and inappropriate sexual comments involving young girls. In 1996, when respondent was 20 years old, he was convicted of a battery that had sexual components. The incident began when respondent reached through a chain-link fence at a public pool and pinched the buttocks of an 11-year-old girl. The girl's 14-year-old brother confronted respondent, and respondent punched the boy in the face. In 1998, respondent was convicted of two separate incidents of aggravated criminal sexual abuse stemming from incidents that occurred in 1997. In one case, respondent's 15-year-old girlfriend reported that respondent had sexual intercourse with her on two occasions. On one of the occasions, the victim was unwilling to participate in sexual intercourse, but respondent "badgered" and "forced" her to have intercourse. Respondent also told the victim that he was 16 years of age, even though he was 21 years old at the time. In the second incident, respondent forced intercourse with his 13-year-old neighbor. Respondent also had convictions of other crimes. One incident involved respondent, who was 20 years old, grabbing the buttocks of a 14-year-old girl, backing her against a wall, and trying to put his hand into her shorts. In addition to the other crimes, respondent has continued to demonstrate an inability to control his urges. For example, while respondent was on parole, he would hang around the local library 242 seeking to establish relationships with young girls. Respondent even had a neighbor write a letter for him (respondent appears to be functionally illiterate) to a 12-year-old girl whom he was apparently grooming to be another victim. This recitation of respondent's history is designed to show that the State had a substantial and legitimate interest in seeking review of the merits of the trial court's decision to place respondent into an out-patient conditional release setting rather than placing him in a custodial secure facility where he might be able to receive treatment and where he would not endanger young girls. Further, the State presented evidence that supported the contention that respondent was an SVP who was a distinct danger to relapse into his predatory ways unless he received treatment. The State also presented evidence showing that respondent would not undertake treatment on his own, having refused to seek treatment while on parole, even though enrolling in and receiving sexual offender treatment was a condition of his parole. The stakes in this case, then, are high. If we could reach the merits, we should, but we are constrained to follow the law as it exists, and not to rewrite the law to allow us to reach a desired outcome. For example, an argument could be made that Supreme Court Rule 303(a)(2) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 303(a)(2), eff. May 1, 2007) affords us an avenue by which to claim jurisdiction. For this argument to succeed, we would have to characterize the July 3, 2007, judgment as a final judgment, ignoring the fact that the conditions of the conditional release had to be approved by the court. Further, we would have to characterize the conditions to be approved by the court as a pending claim in the action. If we take those steps, then Rule 303(a)(2) would give us jurisdiction as follows. If the July 3, 2007, order were deemed a final judgment, then the State's July 19, 2007, motion to reconsider would be a postjudgment motion. On July 20, 2007, the trial court denied the motion to reconsider. On August 20, 2007, the State filed its notice of appeal. On September 21, 2007, the trial court resolved the "remaining claim," namely, approving the conditions of respondent's conditional release. By application of Rule 303(a)(2), the premature notice of appeal would be made valid. Official Reports Advance Sheet No. 8 (April 11, 2007), R. 303(a)(2), eff. May 1, 2007 ("a notice of appeal filed before the * * * final disposition of any separate claim[] becomes effective when the order disposing of said * * * claim is entered"). By twisting the concepts of "final order" and "pending claim" in the action, we could manufacture jurisdiction here. While that course might pass a "straight face" test, it does not bear up under dispassionate consideration. The July 3, 2007, order is nonfinal because it both required and contemplated further action by the trial court. Slip op. at 4. Likewise, the conditions necessary to implement the conditional release are not a separate claim; rather, they are intertwined with the adjudication of conditional release. 725 ILCS 207/40(b)(3) (West 2006). This remains true even though the State was opposed to respondent's release under any conditions. Thus, the State's motion to reconsider cannot reasonably be construed, at least not by the appellate court, to be a postjudgment motion, and Rule 303(a)(2) does not apply. Our jurisdiction in this case is not engaged, because the August 20, 2007, notice of appeal was premature and the State did not file another notice of appeal following the September 21, 2007, final judgment that approved the conditions of respondent's *243 conditional release. This is an unfortunate and unconscionable result due to the hazards and intricacies of appellate jurisdiction. Appellate jurisdiction is rather like taking a stroll in a minefield. People v. Marker, 382 Ill.App.3d 464, 485, 321 Ill.Dec. 71, 888 N.E.2d 590 (2008) (O'Malley, J., dissenting), rev'd, 233 Ill.2d 158, 330 Ill.Dec. 164, 908 N.E.2d 16 (2009); Physicians Insurance Exchange v. Jennings, 316 Ill.App.3d 443, 446, 249 Ill.Dec. 337, 736 N.E.2d 179 (2000). Here, the State stepped on the landmine of a premature notice of appeal a problem that persists notwithstanding our supreme court's effort to eradicate this pitfall by amending Rule 303 (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 303, eff. May 1, 2007). It is noteworthy that neither party recognized the lack of jurisdiction initially, recognized it after we ordered a supplemental statement of jurisdiction, or recognized it even when we later ordered additional briefing on the issue. Rather, we followed the supreme court's admonition regarding the appellate court's most important tasks: "the ascertainment of its own jurisdiction is one of the two most important tasks of an appellate court panel when beginning the review of a case. The other is to determine which issue or issues, if any, have been forfeited." People v. Smith, 228 Ill.2d 95, 106, 319 Ill.Dec. 373, 885 N.E.2d 1053 (2008). While we are constrained to follow this supreme court admonition, it nevertheless remains true that, however important jurisdiction may be, it is, at the appellate level, quite arbitrary. Appellate review of a decision to release a habitual child molester into the community is manifestly important and our system urgently needs a little tweaking so that this equally important concern is not hindered by arbitrary rules governing the important concern of appellate jurisdiction. For example, why cannot all premature notices of appeal be treated like the select ones covered by the recent amendment to Rule 303? If that were the case, we would have jurisdiction over this very important matter, just as the parties thought, quite persistently, we had. Many times the issue of appellate jurisdiction is nothing more than a question of how to count to 30. The cases are legion that discuss the art of counting to 30 whether to count certain holidays, how to treat weekends, when to start counting, etc. And equally arbitrary is the number 30 itself. The period in which to file a notice of appeal could just as logically be 35 days or 28 days or whatever number of days reasonably would allow a party to make the weighty decision to launch an appeal. Another significant issue I see is using the word "jurisdiction" in this context. The notion of whether and when we ought to be reviewing the work of the trial court is important, but it is nowhere nearly as fundamental to our system of justice as is in personam jurisdiction or subject matter jurisdiction in the trial court. In the context of in personam or subject matter jurisdiction, the issue is not just important, but fundamental. In the context of how to count to 30, it is something quite a bit less portentous. It is my sincere hope that the quirks of the law of appellate jurisdiction can be removed so that other important cases like this one do not evade our review on the merits through a technical error on the part of one of the parties. NOTES [1] Proceedings under the Act are civil and the rules of civil practice apply. See 725 ILCS 207/20 (West 2004); People v. Rainey, 325 Ill.App.3d 573, 582, 259 Ill.Dec. 369, 758 N.E.2d 492 (2001).	{ "pile_set_name": "FreeLaw" }
FILED United States Court of Appeals Tenth Circuit January 2, 2008 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 05-4234 v. (D. of Utah) OCTAVIO ROJAS-SILOS, (D.C. No. 2:04-CR-471-DKW) Defendant-Appellant. ORDER AND JUDGMENT * Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges. ** Octavio Rojas-Silos was convicted of possessing methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Before trial, Rojas-Silos moved to suppress the evidence of the methamphetamine. The district court denied the motion. On appeal, Rojas-Silos argues that (1) the district court’s * This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument. ruling on the suppression motion was erroneous, and (2) there was insufficient evidence to support his conviction. We AFFIRM. I. Background Utah trooper Steve Salas pulled over a pickup truck in which Rojas-Silos was a passenger after observing several potential traffic violations. He first noticed a crack in the windshield on the truck’s passenger side, and then observed the truck’s driver change lanes without signaling and change lanes again by signaling for less than three seconds as required by Utah law. After approaching the vehicle, Salas observed one small clothing bag in the bed of the truck for the two adult male occupants. The vehicle had an Iowa license plate and had been traveling eastbound. When Salas asked the driver, Kenneth Slater, for a driver’s license, Slater could not produce one. Slater could not identify the first or last name of his passenger (Rojas-Silos) or the last name of the owner of the vehicle. Salas took Slater to his patrol car to issue a citation and determine whether Slater was licensed to drive the vehicle. While waiting for a vehicle registration check from police headquarters, Salas asked Slater several questions. During their conversation, Slater’s reasons for driving the truck through Utah changed. Slater first claimed he was driving back to Iowa after vacationing in Los Angeles; he next said he had gone to Los Angeles to pick-up his passenger; and he finally -2- said his father had paid him to visit several car-detailing shops in Los Angeles to learn how those shops operated. Slater also told Salas he had departed Iowa on Wednesday, arrived in Los Angeles on Friday, and left Los Angeles on Sunday. Slater and Rojas-Silos shared a motel room Friday and Saturday nights. Slater also stated Rojas-Silos was moving to Iowa, even though he did not have any bag, luggage, or clothing with him. The small duffle bag in the truck belonged to Slater. While Slater was still in the patrol car, Salas returned to the truck to ask Rojas-Silos a few questions. Rojas-Silos stated he was going to Council Bluffs, which was inconsistent with Slater’s statement that they were going to Dennison. Rojas-Silos confirmed the two men did not know each other when he said he did not know Slater’s name. Finally, Rojas-Silos denied that a new-looking cell phone in the truck’s center console belonged to him, even though Slater also denied ownership of the phone. Trooper Salas obtained permission from both Slater and Rojas-Silos to search the vehicle. Within the truck’s tailgate, Salas discovered eight large packages of methamphetamine, totaling 3,400 grams. A small amount of methamphetamine was also found in Slater’s pocket. Salas arrested them, and later learned Rojas-Silos had paid for the motel room and spent Saturday in conversations with suspected drug dealers. -3- Before trial, Slater and Rojas-Silos moved to suppress evidence of the methamphetamine. The district court denied their motions. A jury convicted Slater and Rojas-Silos of the count charged. They were sentenced to 120-months imprisonment and 60-months supervised release. We have already affirmed Slater’s conviction on appeal. United States v. Slater, 184 F. App’x 717 (10th Cir. 2006). We now consider Rojas-Silos’s arguments that (1) the district court should have suppressed the methamphetamine because Rojas-Silos did not validly consent to the search, and (2) there was insufficient evidence to support the jury’s conclusion that Rojas-Silos knowingly possessed the methamphetamine. We reject both arguments. II. Discussion A. Consent Whether Rojas-Silos freely and voluntarily consented to the search of the vehicle is a question of fact based on the totality of the circumstances. United States v. Pena, 143 F.3d 1363, 1366 (10th Cir. 1998). We review for clear error. Id. An individual may consent to a search while being legally detained. “The detention is only one factor to be considered in determining whether consent was voluntarily and freely given based on the totality of the circumstances.” United States v. Contreras, 506 F.3d 1031, 1037 (10th Cir. 2007). The district court did not err in concluding Rojas-Silos validly consented to the search. We have already determined trooper Salas had reasonable suspicion -4- to prolong the initial traffic stop. See Slater, 184 F. App’x at 720 (summarizing facts supporting reasonable suspicion Slater and Rojas-Silos were engaged in transporting drugs). Rojas-Silos was therefore legally detained. See, e.g., United States v. West, 219 F.3d 1171, 1176 (10th Cir. 2000) (noting an officer can extend a traffic stop if “the officer has reasonable articulable suspicion of other crimes”). The record clearly establishes trooper Salas obtained free and voluntary consent from both Rojas-Silos and Slater to search the vehicle. Trooper Salas did not brandish his weapon, physically touch either individual, or use an aggressive tone. In short, Rojas-Silos fails to point to any evidence tending to show his consent was not validly given. We therefore conclude the district court did not err in admitting evidence of the methamphetamine. B. Sufficiency of the Evidence We will uphold a conviction if “viewing the evidence in the light most favorable to the government and drawing all reasonable inferences therefrom, a reasonable jury could have found the defendant guilty beyond a reasonable doubt.” United States v. Muessig, 427 F.3d 856, 861 (10th Cir. 2005). In this case, the government had to prove Rojas-Silos (1) possessed the controlled substance, (2) with knowledge, and (3) intended to distribute or dispense the controlled substance. See United States v. Delgado-Uribe, 363 F.3d 1077, 1084 -5- (10th Cir. 2004); United States v. Lauder, 409 F.3d 1254, 1259 (10th Cir. 2005). Rojas-Silos contests only the second element. 1 Rojas-Silos’s argument that he lacked knowledge of the methamphetamine in the truck is unpersuasive, because there was more than sufficient evidence for the jury to discount his credibility and believe he had knowledge of the drugs. The record establishes the following: (1) Rojas-Silos had conversations with suspected drug dealers in Los Angeles; (2) Rojas-Silos paid for the motel room he and Slater shared in Los Angeles; (3) Salas testified drug organizations often provide a cell phone to a person who is hauling narcotics; (4) Rojas-Silos and Slater both denied ties to the cell phone in the truck’s center console; (5) Rojas- Silos was traveling across the country with another man whose name he did not know; (6) Rojas-Silos and Slater gave inconsistent stories about the purpose of their trip; and (7) Rojas-Silos and Slater named different cities as the destination of their trip. We conclude this evidence, viewed in the light most favorable to the jury’s verdict, leads to a plausible inference Rojas-Silos had knowledge of the drugs in 1 To the extent Rojas-Silos also challenges whether he “possessed” the methamphetamine, we conclude the jury could have so found under the theory of constructive possession. See, e.g., Lauder, 409 F.3d at 1259 (holding “a conviction for constructive possession is properly sustained where the evidence supports at least a plausible inference that the defendant had knowledge of and access to the contraband” (internal quotation marks omitted)). -6- the truck’s tailgate—i.e., Rojas-Silos knowingly possessed the methamphetamine. The jury was not required to believe Rojas-Silos’s alternative version of events. 2 III. Conclusion For the reasons set forth above, we AFFIRM. Entered for the Court, Timothy M. Tymkovich Circuit Judge 2 As the prosecutor pointed out, Rojas-Silos’s explanation for his trip to Los Angeles strains credulity. In closing argument, the prosecutor stated, “Remember that Mr. Silos’s story was that he saved up money from roofing in Iowa to take this vacation to California. You will recall that the only thing he did in California was spend a total of $70 at a Super 8 motel room, to spend the night with a guy that he does not know, and went to a flea market and didn’t buy anything, and there was nothing found in his truck other than the clothes on his back, and then he spent the day with Mr. Slater, who he claims to not know, and claims to not speak English so he can’t even communicate with this guy and that is his vacation. Does that story make sense?” R., Vol. 4, Doc. #96, at 105. -7-	{ "pile_set_name": "FreeLaw" }
459 F.Supp. 313 (1978) Josephine DUCHESNE, Administratrix of Paulina Perez, et al., Plaintiffs, v. Jule M. SUGARMAN, Individually and as Commissioner of New York City's Human Resources Administration, and The New York Foundling Hospital and St. Joseph's Home of Peekskill, Defendants. No. 72 Civ. 3447 (CMM). United States District Court, S. D. New York. October 24, 1978. 314 Lisa H. Blitman, Thomas H. Baer, New York City, for plaintiffs. Allen G. Schwartz, Corp. Counsel, New York City, for defendant Jule M. Sugarman; Bruce Evan Stahl, Asst. Corp. Counsel, New York City, of counsel. Bodell & Magovern, New York City, for defendants The New York Foundling Hospital and St. Joseph's Home of Peekskill; Frederick J. Magovern, New York City, of counsel. METZNER, District Judge: This is a civil rights action (42 U.S.C. § 1983) seeking damages against four individual defendants and two child-caring institutions. Plaintiff Josephine Duchesne, suing as the personal representative of her deceased daughter, Paulina Perez, moves pursuant to Rules 19, 20 and 21 of the Federal Rules of Civil Procedure for an order directing that the complaint be amended to include the City of New York and the New York City Bureau of Child Welfare as defendants. The events which gave rise to decedent's claims occurred between 1969 and 1972. Those claims are seemingly time barred for the purposes of joining new parties under the three-year New York statute of limitations (NYCPLR § 214(2) (McKinney 1972)) applicable to this action. Cates v. Transworld Airlines, Inc., 561 F.2d 1064, 1067, n. 4 (2d Cir. 1977). Plaintiff argues that she should not be barred from joining these new defendants because she was unable to sue them until June of this year when the Supreme Court in Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), overruled Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). She cites United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353 (5th Cir. 1972), for the proposition that a cause of action does not accrue if a plaintiff "had no reasonable probability of successfully prosecuting his claim against the government prior to the enunciation of the new . . . rule." 457 F.2d at 1358. That case involved an attempt in 1972 to recover items seized by the government in 1963 by forfeiture. In 1971 the Supreme Court had ruled such forfeitures illegal. United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434. The Circuit Court overruled the government's argument that, nine years having passed, the six-year statute of limitations had run. This court is not persuaded by the logic of the Red Chevrolet case. The plaintiff here would have us toll the statute of limitations from 1961, when Monroe was decided, until June 6, 1978, when the Supreme Court reversed Monroe in Monell. It is inconceivable that a byproduct of Monell would be to open the courts to claims for damages based on actions taken by municipalities in the intervening years. The answer to plaintiff's contention is found in Versluis v. Town of Haskell, Okl., 154 F.2d 935 (10th Cir. 1946). In that case the court said at 943: "The application of the statute of limitations cannot be made to depend upon the constantly shifting state of the law, and a suitor cannot toll or suspend the running of the statutes by relying upon the uncertainties of controlling law. It is incumbent upon him to test his right and remedy in the available forums. These suits were not commenced until through 315 the labor of others the way was made clear." Plaintiff does not face up to the inconsistency of her position. If her contention as to Monell is correct, then the cause of action did not accrue until June 6, 1978. However, her daughter died in 1975. The survival of a section 1983 cause of action after the death of the original plaintiff is determined by state survivorship laws, Brooks v. Flagg Bros. Inc., 533 F.2d 764, 768, n. 7 (2d Cir. 1977). Under the New York Estates, Powers and Trusts Law § 11-3.2(b) (McKinney 1967), "[n]o cause of action for injury to person or property is lost because of the death of the person in whose favor the cause of action existed." (Emphasis added.) At the time of the death of Mrs. Perez in 1975, she did not have a cause of action against the parties sought to be added by this motion. Consequently, her representative does not have a claim against these defendants today. Motion denied. So ordered.	{ "pile_set_name": "FreeLaw" }
Case: 16-16375 Date Filed: 03/30/2017 Page: 1 of 2 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 16-16375 Non-Argument Calendar ________________________ D.C. Docket No. 2:16-cr-00087-UA-MRM-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JUSTIN HOLIFIELD, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (March 30, 2017) Before TJOFLAT, MARCUS and WILSON, Circuit Judges. PER CURIAM: Case: 16-16375 Date Filed: 03/30/2017 Page: 2 of 2 Meghan Ann Collins, appointed counsel for Justin Holifield in this direct criminal appeal from the revocation of his supervised release, has moved to withdraw from further representation of the appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Our independent review of the entire record reveals that counsel’s assessment of the relative merit of the appeal is correct. Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Holifield’s revocation and sentence are AFFIRMED. 2	{ "pile_set_name": "FreeLaw" }
249 P.3d 1184 (2011) STATE of Idaho, Plaintiff-Respondent, v. Scott Richard HANSON, Defendant-Appellant. No. 37436. Court of Appeals of Idaho. February 25, 2011. Review Denied April 29, 2011. 1185 Molly J. Huskey, State Appellate Public Defender; Jason C. Pintler, Deputy Appellate Public Defender, Boise, for appellant. Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent. MELANSON, Judge. Scott Richard Hanson appeals from the district court's order revoking his probation and executing his previously suspended sentence and the order granting his Idaho Criminal Rule 35 motion for reduction of sentence. For the reasons set forth below, we affirm. 1186 I. FACTS AND PROCEDURE Hanson pled guilty to felony driving under the influence, Idaho Code Sections 18-8004 and 18-8005, and was sentenced to a unified term of ten years, with a minimum period of confinement of four years. However, the district court retained jurisdiction for 180 days pursuant to I.C. § 19-2601(4).[1] Following Hanson's rider, the district court suspended Hanson's sentence and placed him on probation for four years.[2] Hanson's terms of probation required that he refrain from consuming alcohol and that he obtain substance abuse and mental health treatment. Approximately two months after being placed on probation, Hanson submitted to a blood alcohol concentration (BAC) test, which indicated that he had recently consumed alcohol. A motion to revoke probation was filed, and Hanson admitted to violating his probation based on the failed BAC test. The district court agreed to delay disposition on the probation violation and allowed Hanson to be released on his own recognizance if he agreed to obtain a prescription for Antabuse.[3] Two months later, the state moved to revoke Hanson's release because he failed to obtain the prescription as required by the conditions of his release. At disposition on his probation violation, Hanson stated that he was an alcoholic who drank because he was depressed. Hanson also explained that his failure to obtain Antabuse was due to the financial difficulty caused by his drinking and the suspension of his driver's license. The district court recognized that Hanson was depressed and determined that Hanson could not be successfully supervised within the community. As a result, the district court revoked Hanson's probation and ordered execution of his previously suspended sentence. Hanson requested that the court reduce his sentence under I.C.R. 35 so that he may be placed in the substance abuse treatment program while incarcerated. The district court granted Hanson's Rule 35 motion and reduced his sentence to a unified term of ten years, with a minimum period of confinement of two years. Hanson appeals. II. ANALYSIS Hanson argues on appeal that the district court erred when it failed to sua sponte order a mental health examination under I.C. § 19-2524 prior to disposition of his probation violation. Hanson further asserts that the district court abused its discretion by revoking Hanson's probation, ordering execution of his sentence, and declining to further reduce his sentence under Rule 35. A. Mental Health Examination Pursuant to I.C. § 19-2524 Hanson contends that the district court erred when it failed to sua sponte order a mental health examination under I.C. § 19-2524. Hanson concedes that he did not object to the district court's failure to order such an examination prior to disposition of his probation violation. This Court will not address an issue not preserved for appeal by an objection in the trial court. State v. Rozajewski, 130 Idaho 644, 645, 945 P.2d 1390, 1391 (Ct.App.1997). Nevertheless, Hanson urges this Court to apply the same analysis in this case that it has used in previous cases to allow review of a district court's failure to sua sponte order a psychological examination under I.C. § 19-2522. The issue of whether a district court has erred by failing to sua sponte order an I.C. § 19-2524 mental health examination prior to disposition on a probation violation is one of first impression in Idaho. When a defendant has pled guilty to or been found guilty of a felony, or when a defendant who has been convicted of a felony has admitted to or been found to have committed a violation of a condition of 1187 probation, the court, prior to the sentencing hearing or the hearing on revocation of probation, may order the defendant to undergo a substance abuse assessment and/or a mental health examination. (Emphasis added). The statute specifically provides that a court "may" order the defendant to submit to a mental health examination. The word "may" is permissive and denotes an exercise of discretion. See State v. Harbaugh, 123 Idaho 835, 837, 853 P.2d 580, 582 (1993). Thus, a court possesses discretion to order or decline to order a mental health examination prior to sentencing or at disposition pursuant to I.C. § 19-2524. Further, the legislature's Statement of Purpose for I.C. § 19-2524 indicates that the statute broadens a court's sentencing options related to treatment for substance abuse or mental health issues and states: [The statute] allows a judge to order a substance abuse assessment and/or a mental health examination for certain convicted felons and felony parole violators that appear before the court. Based on the results of an assessment or examination, and if the court places the defendant on probation, a judge may order, as a condition of probation, that the defendant undergo treatment consistent with a treatment plan contained in the assessment or examination report. A treatment plan would be subject to modification by the court. Statement of Purpose, SB 1149 (2007). Idaho Criminal Rule 32 governs presentence investigation reports (PSI) and the psychological examinations that may be ordered along with a PSI prior to sentencing. Rule 32(a) provides that the decision to order a PSI lies within the court's discretion and, if a court declines to order a PSI in a felony case, the record must demonstrate why the investigation was not ordered. Rule 32(b) details which elements should be addressed in the PSI, including information about the defendant's health where relevant to the sentencing decision and, where appropriate, the presentence investigator's analysis and recommendation regarding a psychological examination. The rule also provides that a presentence investigator may recommend a psychological examination, but the decision as to whether to order a psychological examination lies with the sentencing court. I.C.R. 32(d) Based on these provisions in Rule 32, Idaho courts have long held that the decision to order a psychological examination is left to the sentencing court's discretion. State v. Wolfe, 124 Idaho 724, 726, 864 P.2d 170, 172 (Ct.App.1993); State v. Puente-Gomez, 121 Idaho 702, 705-06, 827 P.2d 715, 718-19 (Ct. App.1992); State v. Bylama, 103 Idaho 472, 474, 649 P.2d 1228, 1230 (Ct.App.1982). In State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct.App.1982), this Court discussed the parameters of a psychological evaluation when performed as part of the PSI. In that case, the appellant argued that the PSI prepared in his case was deficient because it did not adequately analyze his psychological condition as required under I.C.R. 37 (the predecessor to Rule 32). Toohill did not object to the PSI at sentencing. On appeal, this Court explained the long-standing rule that issues not raised in the trial court generally may not be considered on appeal. Id. at 566, 650 P.2d at 708. Nevertheless, the Court recognized that the contents of a PSI have "a significant bearing upon sentencing" and concluded that manifest disregard for the provisions of Rule 32 and its predecessor would diminish the reputation of the judicial process. Toohill, 103 Idaho at 566, 650 P.2d at 708. As a result, this Court held that a case characterized by manifest disregard for Rule 32 may be reviewed on appeal despite the lack of objection below. Id. As both the state and Hanson acknowledge, previous Idaho cases have recognized the interplay between a psychological examination contemplated under Rule 32 and a psychological examination under I.C. § 19-2522. See State v. Jockumsen, 148 Idaho 817, 822-23, 229 P.3d 1179, 1184-85 (Ct.App. 2010). Idaho Code Section 19-2522(1) states, in relevant part: If there is reason to believe the mental condition of the defendant will be a significant factor at sentencing and for good cause shown, the court shall appoint at least one (1) psychiatrist or licensed psychologist to examine and report upon the mental condition of the defendant. 1188 Where a defendant failed to request a psychological examination under I.C. § 19-2522 or failed to object to the PSI on the ground that an examination had not been performed, we have allowed review when a defendant demonstrated that, by failing to order a psychological examination, the sentencing court manifestly disregarded the provisions of Rule 32. State v. Jones, 132 Idaho 439, 442, 974 P.2d 85, 88 (Ct.App.1999). Hanson urges this Court to apply this same standard to a court's failure to sua sponte order a mental health examination for purposes of his probation violation disposition under I.C. § 19-2524. As mentioned above, Rule 32 describes the standards and procedures governing presentence investigations. Rule 32 does not require ordering a PSI prior to probation violation proceedings. By its definition, a "presentence investigation" occurs prior to sentencing. Although Rule 32 allows a court to order an additional PSI if the judge deems it necessary in considering "the disposition," an additional PSI is not mandatory under the rule, and a court is not required to provide an explanation for failing to order an additional PSI. Therefore, the absence of a court's decision whether to order a mental health examination under I.C. § 19-2524 prior to proceedings on a probation violation does not implicate Rule 32. A court could not manifestly disregard the provisions of Rule 32 by failing to order a mental health examination prior to disposition on a probation violation because the rule does not require an updated PSI or mental health evaluation for probation violation proceedings. As a result, we decline to consider Hanson's argument, raised for the first time on appeal, that the trial court should have ordered a psychological evaluation before the disposition of Hanson's probation violation. Accordingly, we will not address this issue on appeal because it was not properly preserved by an objection below. B. Probation Revocation Hanson also argues that the district court abused its discretion when it revoked Hanson's probation and imposed sentence. It is within the trial court's discretion to revoke probation if any of the terms and conditions of the probation have been violated. I.C. §§ 19-2603, 20-222; State v. Beckett, 122 Idaho 324, 325, 834 P.2d 326, 327 (Ct.App.1992); State v. Adams, 115 Idaho 1053, 1054, 772 P.2d 260, 261 (Ct.App.1989); State v. Hass, 114 Idaho 554, 558, 758 P.2d 713, 717 (Ct.App.1988). In determining whether to revoke probation a court must examine whether the probation is achieving the goal of rehabilitation and is consistent with the protection of society. State v. Upton, 127 Idaho 274, 275, 899 P.2d 984, 985 (Ct.App.1995); Beckett, 122 Idaho at 325, 834 P.2d at 327; Hass, 114 Idaho at 558, 758 P.2d at 717. The court may, after a probation violation has been established, order that the suspended sentence be executed or, in the alternative, the court is authorized under Idaho Criminal Rule 35 to reduce the sentence. Beckett, 122 Idaho at 326, 834 P.2d at 328; State v. Marks, 116 Idaho 976, 977, 783 P.2d 315, 316 (Ct.App.1989). A decision to revoke probation will be disturbed on appeal only upon a showing that the trial court abused its discretion. Beckett, 122 Idaho at 326, 834 P.2d at 328. Hanson was arrested for driving with a blood alcohol level that was five times the legal limit while he was on misdemeanor probation in another case. According to the record, Hanson submitted to substance abuse treatment on at least one occasion prior to his arrest. Hanson completed a successful rider but, after just two months on probation, Hanson failed a BAC test because his blood alcohol level was twice the legal limit. The district court allowed Hanson to be released after his probation violation, but Hanson failed to obtain a prescription as required by the district court and failed to take responsibility for his actions. It appears that Hanson continued to drink after being placed on probation and had difficulty staying sober and complying with his probation terms. Therefore, the district court acted within the boundaries of its discretion and through an exercise of reason when it determined that probation was not achieving the goal of rehabilitation and that Hanson's heavy drinking posed a serious risk to society. Therefore, the district court did not abuse discretion *1189 when it revoked probation and ordered execution of Hanson's sentence. C. Rule 35 Finally, Hanson contends that the district court abused its discretion when it granted his Rule 35 motion, but did not further reduce his sentence. Initially, we note that a lower court's decision to grant or deny a Rule 35 motion will not be disturbed in the absence of an abuse of discretion. State v. Villarreal, 126 Idaho 277, 281, 882 P.2d 444, 448 (Ct.App.1994). Both our standard of review and the factors to be considered in evaluating the reasonableness of the sentence are well established. See State v. Hernandez, 121 Idaho 114, 822 P.2d 1011 (Ct.App.1991); State v. Lopez, 106 Idaho 447, 680 P.2d 869 (Ct.App.1984); Toohill, 103 Idaho 565, 650 P.2d 707. Since the district court later modified Hanson's sentence, pursuant to his Rule 35 motion, we will only review Hanson's modified sentence for an abuse of discretion. See State v. McGonigal, 122 Idaho 939, 940-41, 842 P.2d 275, 276-77 (1992). Hanson has the burden of showing a clear abuse of discretion on the part of the district court in failing to further reduce the sentence on Hanson's Rule 35 motion. See State v. Cotton, 100 Idaho 573, 577, 602 P.2d 71, 75 (1979). At disposition for his probation violation, Hanson requested that the district court reduce his underlying sentence so that he may be immediately admitted to the therapeutic substance abuse treatment program available at the penitentiary. The district court agreed and reduced Hanson's minimum period of confinement from four years to two years. On appeal, Hanson argues that the district court should have further reduced his modified sentence. Hanson has failed to show that the district court abused its discretion by failing to further reduce Hanson's sentence. III. CONCLUSION We decline to address Hanson's contention that the district court erred by failing to sua sponte order an I.C. § 19-2524 mental health examination for purposes of his probation violation disposition because I.C.R. 32 is not implicated. The district court did not abuse its discretion by revoking Hanson's probation or declining to further reduce his sentence under I.C.R. 35. Therefore, the district court's order revoking Hanson's probation and ordering execution of his modified sentence and the district court's order granting Hanson's Rule 35 motion are affirmed. Judge LANSING and Judge GUTIERREZ concur. NOTES [1] The retained jurisdiction program is also commonly referred to as the "rider." [2] The same district court judge presided over Hanson's sentencing hearing and his rider review hearing. However, a different district court judge presided over Hanson's probation violation disposition. [3] Antabuse is a prescription drug which causes unpleasant effects when alcohol is consumed, such as headache, nausea, or vomiting.	{ "pile_set_name": "FreeLaw" }
178 U.S. 321 (1900) WHEELER v. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY. No. 534. Supreme Court of United States. Submitted May 14, 1900. Decided May 28, 1900. ERROR TO THE SUPREME COURT OF ERRORS OF THE STATE OF CONNECTICUT. 322 Mr. William D. Bishop, Jr., for the motion. Mr. Robert E. DeForest and Mr. George P. Carroll opposing. MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court. Plaintiffs assign as error that, in view of the fact that, by the agreement between the city and the railroad company, it was provided that the city should pay one sixth of the entire cost of the land required for the construction of a four-track road, as well as of all damages resulting from the changes of grade, there would be a reimbursement to the company for expenses in doing work and acquiring land not necessary or germane to the work of eliminating crossings at grade of the two present main tracks over the highways; and that, under these circumstances, the condemnation of defendants' property will be in furtherance of a scheme, whereby the city of Bridgeport will contribute and donate to such company the credit, money and property of the city, and of its property owners and taxpayers, in aid of the railroad company, contrary to the provisions of the twenty-fifth amendment to the constitution of 323 the State of Connecticut, and the taking and condemnation of said Wheeler and Howes' said property will be a taking thereof without due process of law, etc. 1. We cannot say that there is no Federal question in this case. In their demurrer to the application of the railroad company, plaintiffs in error relied upon the unconstitutionality of this special act of the Connecticut legislature as contravening the twenty-fifth amendment to the constitution of the State, and the Fourteenth Amendment of the Federal Constitution. The amendment to the state constitution provides as follows: "That no County, City, Town, Borough, or other municipality, shall ever subscribe to the capital stock of any railroad corporation, or become a purchaser of the bonds, or make donation to, or loan its credit, directly or indirectly, in aid of any such corporation." The claim was, not that it was unconstitutional for the city of Bridgeport to pay for a part of the work for grade crossing elimination, but that the pay for work for the benefit of the company, in the construction of a four-track road, which was not necessary or germane to the work of grade crossing elimination, would be contrary to the above amendment to the state constitution; and therefore that, as the land of Wheeler and Howes was to be taken to carry out a part of the project, to be paid for in part by the city, not necessary or germane to the work of grade crossing elimination, their property would be taken without due process of law. The substance of the defence seems to have been that the land was not taken solely for the purpose of abolishing grade crossings, but also for the purpose of laying two extra tracks, and making the road through the city of Bridgeport a four-track road instead of an ordinary double track. It seems that the railroad company had laid a complete four-track road all the way from New York to New Haven, except in that section which lay in the city of Bridgeport a distance of more than four miles, and crossing at grade twenty-four streets, some of them the most frequented in the whole city. There is no doubt that the special act did authorize an increase in the number of tracks, and there was some reason for saying that in requiring the city to pay one sixth of 324 the expenses incurred for this purpose, it was making a donation in aid of the railroad company in violation of the twenty-fifth amendment to the state constitution, and as Wheeler and Howes were property owners and taxpayers of the city, they were incidentally affected by this, and therefore their lands were illegally taken. 2. But assuming that there was color for the motion to dismiss, we are clearly of the opinion that the decree of the Supreme Court of Errors should be affirmed. That court had already decided, not only that the legislature might compel the removal of grade crossings and the payment of the expenses therefor, either by the railroad company or by the city, or by both, Woodruff v. Catlin, 54 Conn. 277, (a case arising under a former act,) and that a statute compelling the removal of grade crossings, as well as imposing upon the railroad the entire expense of the change of grade, was constitutional, N.Y. & N.E.R.R. Co.'s Appeal, 58 Conn. 532; N.Y. & N.E.R.R. v. Bristol, 151 U.S. 556; but the very act in question in this case has also been held to be constitutional. Mooney v. Clark, 69 Conn. 241. That court also held in this case that, whether the land be taken only for the purpose of abolishing grade crossings or to straighten its line and construct additional tracks, the taking is in either case for railroad purposes and for a public use. It also held that the right of the railroad company to condemn defendants' property did not depend upon the validity of any part of the special act of 1895, since by the resolution of the board of directors of the company in July, 1896, and by the approval of the commissioners in June, 1897, both of which were alleged in the application, the railroad company was entitled under section 346 of the General Statutes to take the land for the uses named in the resolution. The plaintiffs in error contended before the Supreme Court of Errors, as they contend here, that the agreement and order made in pursuance thereof, imposing upon the city a proportion of the expense of constructing the two additional elevated tracks, not necessary to the work of eliminating grade crossings, violated the state constitution as well as the Constitution of the United States. "But," said the court, "if the railroad company 325 desires to take this property as one step in carrying out the proposed plan, the defendants cannot prevent it upon the ground that the company may not afterwards be able to obtain reimbursement from the city. The ability of the defendants to obtain payment of their damages does not depend upon the right of the railroad company to collect a part of it from the city. Before taking the land the company must compensate the defendants." It was further said: That even if the employment of appraisers had established the liability of the city to pay a proportion of the expense of laying the additional tracks, such a defence was not open to the defendants, because they have not alleged that they were taxpayers or had any right or authority to represent the city in such proceedings, or that they will be injured in any respect from the payment by the city of its part of the expense of the work as fixed by the agreement and order. "But," says the court, "the appointment of appraisers in this proceeding does not affect the question of the liability of the city to pay that part of the expense ordered by the commissioners. The right of the railroad company to have appraisers appointed and to take this property does not depend upon the obligation of the city to pay a one sixth part of the expense of the whole, or of any portion of the work of this undertaking. The two purposes of the act of 1895 were: First, the removal of all existing grade crossings in Bridgeport, and the construction, in the most feasible manner, after considering the interest of the public, the rights, responsibilities and duties of the railroad company, and of the city, and the rights of other parties concerned, of a four-track railroad through the city, in such a way as to avoid crossing any highway at grade; and, second, a just apportionment of the cost among those who ought to bear the expense of performing the work in the manner determined. These two purposes are so far distinct and separable, and are so intended to be by the act, that neither the right of the railroad company to perform the work according to the plans approved by commissioners, nor the power of the commissioners to compel its performance, depends upon a previous apportionment of the expense between the parties who should bear it. Section 12, as we have already said, provides that if no agreement shall have been made as authorized by section 2, *326 the commissioners, after the work shall have been completed, shall apportion the entire expense among the proper parties." The court intimated no opinion as to whether the agreement and order fixing the proportionate part of the entire expense to be paid by the city was of doubtful validity. It thought the question was one which could not properly be raised in this proceeding. The court held in substance (1) that the right to have appraisers appointed did not depend upon the obligation of the city to pay a part of the expense, and that defendants could not prevent a condemnation by showing that the company might not afterwards be able to obtain reimbursement from the city; and (2) that the defendants, not alleging that they were taxpayers, or specially interested, were not in a position to question the validity of the proceedings. If this be so, it requires no argument to show that they are not in a position to contend that their property has been taken without due process of law. If the court had gone farther, and held that the taking of defendants' property for the purpose, not only of abolishing grade crossings, but of enabling the railroad company to lay additional tracks, was not a violation of the twenty-fifth amendment to the state constitution, that would have been exclusively a local question, and would have involved no question of an unlawful taking of defendants' property within the Fourteenth Amendment. If the fact that the city of Bridgeport contributed to the expense of abolishing grade crossings, and incidentally thereto, to the construction of additional tracks, does no violence to the constitutional provision that no city shall make a donation in aid of a railroad corporation, as held by the Supreme Court of Connecticut, much less does it make a case of taking the property of petitioners, whether as property owners or as taxpayers, without due process of law. The decree of the Supreme Court of Errors of the State of Connecticut is, therefore, Affirmed. MR. JUSTICE GRAY did not sit in this case and took no part in the decision.	{ "pile_set_name": "FreeLaw" }
41 A.3d 168 (2012) COMMONWEALTH of Pennsylvania, Acting by Attorney General Thomas W. CORBETT, Jr. v. John REICHENBACH, Individually, and d/b/a John Reichenbach General Contracting, Appellants. Commonwealth of Pennsylvania, Acting by Attorney General Thomas W. Corbett, Jr., Appellant v. John Reichenbach, Individually, and d/b/a John Reichenbach General Contracting. Nos. 751 C.D. 2010, 843 C.D. 2010 Commonwealth Court of Pennsylvania. Submitted on Briefs January 6, 2012. Decided February 3, 2012. 169 Christopher T. Spadoni, Bethlehem, for appellants John Reichenbach, Individually and d/b/a John Reichenbach General Contracting. Claudia M. Tesoro, Senior Deputy Attorney General, Philadelphia, for appellant Commonwealth of Pennsylvania, Action by Attorney General Thomas W. Corbett, Jr. BEFORE: LEADBETTER, President Judge,[1] and McCULLOUGH, Judge, and COLINS, Senior Judge. OPINION BY Judge McCULLOUGH. Before the court are the cross-appeals filed by John Reichenbach, individually, and doing business as John Reichenbach General Contracting (Reichenbach), and the Commonwealth of Pennsylvania from the April 1, 2010, order of the Northampton County Court of Common Pleas (trial court) which sustained in part and denied in part a contempt petition filed by the Commonwealth. For the reasons that follow, we affirm. The trial court's findings may be summarized as follows. On November 5, 1996, the Commonwealth and Reichenbach entered into a Consent Petition which was adopted by the trial court. Relevant here, in paragraph one of the Consent Petition, the parties agreed that Reichenbach shall include on all contracts for $25 or more signed in the consumer's home a true and correct statement of the buyer's right to rescission as required by section 7 of the Unfair Trade Practices and Consumer Protection Law (UTPCPL).[2] Pursuant to paragraph three, Reichenbach is required to append to all contracts signed in the home "Notice of Cancellation" forms, properly completed in duplicate, as required by section 7 of the UTPCPL. Paragraph four states that Reichenbach shall promptly refund all monies due and owing when a consumer exercises his or her rescission rights pursuant to section 7 of the UTPCPL. In accordance with paragraph nine of the Consent Petition, Reichenbach forfeited his right or franchise to be a home improvement contractor until he 170 paid $1,250 in costs and a penalty to the Commonwealth. (Finding of Fact No. 1.) Reichenbach failed to pay the $1,250 but nevertheless continued to engage in home improvement contracting after signing the Consent Petition. On March 12, 2008, Reichenbach entered into a home improvement contract with Elizabeth Schoenauer (Schoenauer) at her residence. The contract pertained to remodeling her kitchen, including the installation of new cabinets, for a price of $14,400, and did not include a Notice of Cancellation form. Reichenbach began working on that contract approximately one month after it was signed. Reichenbach stopped working on the kitchen without purchasing or installing the new cabinets. Schoenauer contacted Reichenbach on numerous occasions to no avail. On September 22, 2008, Schoenauer, through her attorney, terminated her contract. Reichenbach did not return the $14,400 paid by Schoenauer. (Findings of Fact, Nos. 2-13.) On July 20, 2008, Reichenbach entered into a home improvement contract with Terri Macauley (Macauley) at her residence, which did not include a Notice of Cancellation form. Reichenbach began working on the contract approximately one week after it was signed. Macauley made several adjustments to the contract, and Reichenbach continued to do periodic work on the contract until late November of 2008. Macauley terminated the remodeling contract for dissatisfaction with the work via letter dated March 26, 2009. (Findings of Fact, Nos. 14-20.) In April of 2009, after receiving complaints from Schoenauer and Macauley, the Commonwealth filed a petition to hold Reichenbach in contempt of the existing Consent Petition, alleging violations of paragraphs one, three through six, nine, and eleven of the Consent Petition and seeking fines and restitution in the amount of $242,650. The trial court held hearings in August and November. On April 1, 2010, the trial court issued a decision and order sustaining the contempt petition for violations of paragraphs one, three, four, and nine of the Consent Petition. The trial court ordered Reichenbach to pay fines to the Commonwealth as follows: $1,250 as required by paragraph nine of the Consent Petition; an additional fine of $1,250 for failing to comply with paragraph nine; $2,500 for his failures with respect to Schoenauer; and $1,500 for his failure with respect to Macauley. The trial court stated that its assessment of fines was intended to encourage Reichenbach's future compliance with the UTPCPL and the Consent Petition. Next, relying on Burke v. Yingling, 446 Pa.Super. 16, 666 A.2d 288 (1995), the trial court directed Reichenbach to pay Schoenauer $14,400 in restitution. However, the trial court rejected the Commonwealth's contention that Macauley was entitled to $67,000 in restitution, concluding that the purpose of the UTPCPL did not extend to circumstances where a customer seeks recovery for an alleged breach of contract. The trial court denied the Commonwealth's contempt petition with respect to all other provisions of the Consent Petition. Finally, the trial court concluded that the Commonwealth was entitled to collect costs and attorney's fees associated with the proceedings and ordered Reichenbach to pay the Commonwealth $5,000 in costs and counsel fees. Thereafter, the trial court denied the parties' motions for reconsideration, and Reichenbach and the Commonwealth now appeal to this Court.[3] 171 Reichenbach first argues that the trial court erred in sustaining the contempt petition because the Commonwealth failed to set forth sufficient facts to establish that Reichenbach violated the Consent Petition. According to Reichenbach: he included the required language concerning a customer's right to rescission in the contracts; he appended the required Notice of Cancellation forms to the contracts; he orally advised the customers of their rescission rights; and he performed the vast majority of the contract work but was prevented from completing the work by the actions of the customers. In addition, Reichenbach contends that the customers did not exercise their right to rescission. Thus, Reichenbach asserts that, but for his failure to pay the $1,250 fine, which he describes as merely an oversight, he complied with all of the terms and conditions of the Consent Petition. We disagree. Paragraph one of the Consent Petition specifically states that Reichenbach shall include on all contracts for $25 or more that are signed in the home, a true and correct statement of the buyer's right of rescission "as required by Section 7 of the [UTPCPL]."[4] Section 7(b)(1) of the UTPCPL states that the buyer shall be provided with: A fully completed receipt or copy of any contract pertaining to such sale . . . and which shows the date of the transaction and contains the name and address of the seller, and in immediate proximity to the space reserved in the contract for the signature of the buyer or on the front page of the receipt if a contract is not used and in bold face type of a minimum size of ten points, a statement in substantially the following form: `You, the buyer, may cancel this transaction at any time prior to midnight of the third business day after the date of this transaction. See the attached notice of cancellation form for an explanation of this right.' 73 P.S. § 201-7(b)(1) (emphasis added). Reichenbach included a similar provision in both contracts, in regular font, directly above the space reserved in the contract for the signature of the buyer, as follows: Note: this proposal may be withdrawn by us if not accepted within 30 days. Note: To cancel this transaction, deliver a signed and dated written cancellation note within 3 days after the date of acceptance. Commonwealth's Ex. C-4, Def.'s Ex. 2. Although this statement was substantially similar to the statement quoted in section 7(b)(1), it was not in bold face type as required by section 7(b)(1). Thus, the trial court did not err in finding that Reichenbach violated paragraph one of the Consent Petition. Pursuant to paragraph three of the Consent Petition, Reichenbach "SHALL append to all contracts signed in the home `Notice of Cancellation' forms, properly completed in duplicate, as required by Section 7 of the [UTPCPL]."[5] Section 7(b)(2) of the UTPCPL requires that specific language and statements be set forth in the Notice of Cancellation, including, in relevant part, the following: Notice of Cancellation (Enter Date of Transaction) 172 You may cancel this transaction, without any penalty or obligation, within three business days from the above date. If you cancel, any property traded in, any payments made by you under the contract or sale, and any negotiable instrument executed by you will be returned within ten business days following receipt by the seller of your cancellation notice. . . . 73 P.S. § 201-7(b)(2). Although Reichenbach argues that he gave Schoenauer and Macauley verbal notice of their cancellations rights, he did not append Notice of Cancellation forms to either contract, thereby violating paragraph three of the Consent Petition. Paragraph four of the Consent Petition provides that Reichenbach "SHALL promptly refund all monies due and owing when a consumer exercises his or her rescission rights pursuant to Section 7 of the [UTPCPL]."[6] Section 7(g) of the UTPCPL states as follows: Any valid notice of cancellation by a buyer shall be honored and within ten business days after the receipt of such notice, seller shall (i) refund all payments made under the contract or sale; (ii) return any goods or property traded in, in substantially as good condition as when received by the seller; (iii) cancel and return any negotiable instrument executed by the buyer in connection with the contract or sale and take any action necessary or appropriate to terminate promptly any security interest created in the transaction. 73 P.S. § 201-7(g). The record confirms that Schoenauer provided such notice to Reichenbach,[7] and he admittedly did not refund the payments she made under the contract. Accordingly, Reichenbach violated paragraph four of the Consent Agreement. Paragraph nine of the Consent Petition specifically states that Reichenbach "SHALL forfeit his right or franchise to be a home improvement contractor until he has paid [$1,250] to the Commonwealth of Pennsylvania. . . ."[8] Reichenbach admitted that he has not made the required payment. (Trial court op. at 7.) Thus, the trial court properly found that Reichenbach violated paragraph nine of the Consent Petition. Having rejected Reichenbach's assertion that the fines assessed by the trial court are not supported by evidence of violations of the Consent Petition, we address his assertion that the fines are disproportionate to those violations. In Jackson v. Hendrick, 764 A.2d 1139 (Pa. Cmwlth.2000), we explained that the courts have always possessed inherent powers to enforce their orders and decrees by imposing sanctions. Further, when considering an appeal from a contempt order, a reviewing court must place great reliance upon the discretion of the trial judge. Id. Here, the trial court explained that its assessment of fines was ordered to encourage Reichenbach's future compliance with the UTPCPL and the Consent Petition. Considering the terms of the Consent Petition and Reichenbach's repeated violations of its provisions, we conclude that the trial court was well within its discretion to order Reichenbach to pay a fine of $2500 for the violation of paragraph nine, (which amount includes the original $1250 fine ordered but not paid), and to assess fines of $2500 and $1500 for Reichenbach's multiple violations of the Consent 173 Petition with respect to the Schoenauer and Macauley contracts. Moreover, Reichenbach cites no facts or legal authority to support his assertion that the fines are disproportionate to his violations of the Consent Petition. Reichenbach further argues that the trial court erred or abused its discretion in ordering him to pay the Commonwealth $5,000 in costs and attorney's fees, contending that the Commonwealth failed to establish any violation of the Consent Petition other than paragraph nine, and where his the failure to pay the $1250 fine originally ordered was merely an oversight.[9] Having rejected the underlying contentions, we also reject this argument. Finally, we address Reichenbach's assertion that the trial court erred in ordering him to pay $14,400 in restitution to Schoenauer.[10] In relevant part, Reichenbach complains that he completed most of the work called for before Schoenauer terminated the contract. According to Reichenbach, he completed a significant amount of the work he agreed to perform, and he only failed to complete the cabinet installation because Schoenauer changed her mind as to the color she wanted and then cancelled the contract before the re-ordered cabinets were received. Schoenauer acknowledged that Reichenbach removed the old cabinets, removed soffit, removed a half-wall, repaired drywall, primed and painted the kitchen, ran electrical wires and installed new ceiling lights. (N.T. at 29-32.) However, she stated that, after directing her to a specific store to choose a cabinet and stain color and taking a $5000 deposit to purchase the cabinets, Reichenbach told her to order from a different manufacturer using a catalog. Although he assured her that the stain color would be identical, when the cabinet stain sample arrived approximately five weeks later, the color was not the same. Schoenauer told Reichenbach that the color was wrong, and, ultimately, he stopped working without completing the job. By letter dated September 22, 2008, Schoenauer's attorney informed Reichenbach that he owed Schoenauer the amount of $6550, representing the difference between the amount remaining due under the contract and the cost of purchasing and installing new cabinets and completing the remaining work. (S.R.R. at 30b-31b.) Reichenbach did not respond. Relying on Burke v. Yingling, 446 Pa.Super. 16, 666 A.2d 288 (1995),[11] the trial court ordered 174 Reichenbach to pay $14,400 in restitution, explaining that it considered the award "appropriate to encourage [Reichenbach's] future compliance with the Consent Petition and the UTPCPL." (Trial court op. at 11.) Restitution is an equitable remedy that is permissible under section 8 of the UTPCPL, 73 P.S. § 201-8.[12]Commonwealth v. Ted Sopko Auto Sales and Locator, 719 A.2d 1111 (Pa.Cmwlth.1998) (summarily rejecting a challenge to the propriety of an award of restitution based on the authority conferred by section 8(a) of the UTPCPL). The purpose of this equitable remedy "is to return the parties as nearly as possible to their original positions where warranted by the circumstances of the transaction." Baker v. Cambridge Chase, Inc., 725 A.2d 757, 766 (Pa.Super.1999). Therefore, as in the instant case, "restitution often goes with rescission, and should not be characterized as damages. . . ." Id. As the Superior Court noted in Baker, if a party brings a fraud claim under the UTPCPL, they may be entitled to treble damages and attorney's fees in addition to restitution. Id. Further, even a defaulting party may be entitled to restitution for a benefit conferred by his past performance. Sevast v. Kakouras, 841 A.2d 1062, 1067 (Pa.Super.2003) (citing John Edward Murray, Jr., Murray on Contracts, § 126 at 721 (3d ed.1990)). Under the circumstances, we agree that the trial court erred in awarding Schoenauer restitution in the full amount of $14,400 paid, which we note was more than twice the amount Schoenauer requested. Accordingly, we vacate this portion of the trial court's order and remand to the trial *175 court to calculate a proper award of restitution. The Commonwealth's sole argument on appeal is that Macauley also is entitled to restitution, in the amount of $67,000. The trial court determined that Macauley's complaint was not based on conduct constituting a violation of the UTPCPL, but instead is fairly characterized as a breach of contract claim. After review of the record, we agree. The trial court also opined that allowing a consumer to recover breach of contract damages through a contempt petition brought by the Commonwealth would extinguish the defendant's right to a jury trial; again, we agree. Accordingly, we vacate the trial court's order insofar as it awards Schoenauer $14,400 in restitution and remand for a revised calculation of that award. In all other respects, we affirm. ORDER AND NOW, this 3rd day of February, 2012, we vacate the trial court's order insofar as it awards Schoenauer $14,400 in restitution and remand for a revised calculation of that award. In all other respects, we affirm. Jurisdiction relinquished. NOTES [1] This case was assigned to the author on or before January 6, 2012, when President Judge Leadbetter completed her term as President Judge. [2] Act of December 17, 1968, P.L. 1224, as amended, 73 P.S. §§ 201-1-201-9.3. [3] Our scope of review of the trial court's contempt order is limited to determining whether the trial court abused its discretion or committed an error of law. Township of Lycoming v. Shannon, 780 A.2d 835, 838 n. 1 (Pa.Cmwlth.2001). [4] Supplemental Reproduced Record (S.R.R.) at 12b. [5] S.R.R. at 12b. [6] S.R.R. at 13b. [7] S.R.R. at 30b-31b; Finding of Fact No. 12. [8] S.R.R. at 14b. [9] The Consent Petition states: [Reichenbach] agrees by signing of this Consent Petition that [he] shall be permanently enjoined from the breaching of any and all of the aforementioned provisions of the Petition . . . and that the breach of any and all of the terms shall be sufficient warrant for the Attorney General of Pennsylvania acting in the name of the Commonwealth to petition the [trial court] to hold [Reichenbach] in contempt and to assess penalties, including but not limited to civil, and other penalties, as provided for in this Petition, as well as section 8, 9, and 9.1 of the [UTPCPL], as the court shall determine. S.R.R. at 14b. [10] Section 201-4.1 of the UTPCPL provides for payment of costs and restitution: Whenever any court issues a permanent injunction to restrain and prevent violations of this act as authorized in section 4[] above, the court may in its discretion direct that the defendant or defendants restore to any person in interest any moneys or property, real or personal, which may have been acquired by means of any violation of this act, under terms and conditions to be established by the court. 73 P.S. § 201-4.1. Section 4.1 was added by the Act of November 24, 1976, P.L. 1166. [11] In that case, the buyer, Bryan L. Yingling, M.D., contacted the seller, Joseph Burke t/a d/b/a Audio Video Concepts in May 1991 about the purchase of a customized audio-video system. The parties then met at the buyer's home to discuss the transaction. They continued to negotiate for several months and met at least once more in the buyer's home. In July 1991, the parties executed an agreement for the sale and installation of the custom system at a contract price of $21,533.82. The contract did not include the written notice of the buyer's right to cancel as required by section 7 of the UTPCPL. Over the course of several months, the seller installed the system in the buyer's home. The buyer made payments totaling $19,522.22, but he stopped making payments when he became dissatisfied with the work being performed. In March 1992, the buyer notified the seller of his intent to cancel the transaction pursuant to section 7 of the UTPCPL. The seller brought an action seeking to recover the balance of the contract price plus additional money for extra work allegedly performed; the buyer filed a counterclaim. The trial court granted the seller's motion for summary judgment, reasoning that since the buyer was a sophisticated consumer who had initiated the transaction and conducted lengthy negotiations over the purchase of the product, he was not the type of consumer that section 7 of the UTPCPL was intended to protect. Although our Superior Court found that rationale appealing, it reversed the trial court's order, explaining that the UTPCPL "clearly provides a right to cancel to all buyers even if the buyer is sophisticated, in no way deceived or pressured by the Seller, and takes adequate time to reflect before agreeing to the transaction." Id. at 291. Accordingly, the Superior Court reversed the grant of summary judgment to the seller and remanded the matter to the trial court for further proceedings. [12] Section 8(a) of the UTPCPL states that [a]ny person who violates the terms of an injunction . . . or any terms of an assurance of voluntary compliance duly filed in court. . . shall forfeit and pay to the Commonwealth a civil penalty. . . . For purposes of this section the court issuing the injunction or in which an assurance of voluntary compliance is filed shall retain jurisdiction, and the cause shall be continued; and, in such cases, the Attorney General, or the appropriate District Attorney, acting in the name of the Commonwealth of Pennsylvania, may petition for recovery of civil penalties and any other equitable relief deemed needed or proper. 73 P.S. § 201-8(a) (emphasis added).	{ "pile_set_name": "FreeLaw" }
486 F.2d 1314 159 U.S.App.D.C. 54 Houser, In re23,487 UNITED STATES COURT OF APPEALS District of Columbia Circuit 10/11/73 1 D.C.D.C. AFFIRMED	{ "pile_set_name": "FreeLaw" }
36 So.3d 88 (2010) DISMUKES v. STATE. No. 1D10-0650. District Court of Appeal of Florida, First District. May 6, 2010. Decision Without Published Opinion Affirmed.	{ "pile_set_name": "FreeLaw" }
635 A.2d 339 (1993) Maria E. De LIEDEKERKE, Appellant/Cross-Appellee, v. Patrick E. De LIEDEKERKE, Appellee/Cross-Appellant. Nos. 92-FM-444, 92-FM-614. District of Columbia Court of Appeals. Argued November 12, 1993. Decided December 20, 1993. 340 Diane M. Smith, with whom Robert P. Kaufman, Washington, D.C., was on the brief, for appellant/cross-appellee. Armin U. Kuder, with whom Theresa M. Mihalik, Washington, D.C., was on the brief, for appellee/cross-appellant. Before STEADMAN and SULLIVAN, Associate Judges, and PRYOR, Senior Judge. STEADMAN, Associate Judge: This is an appeal from property division aspects of a trial court judgment of divorce. Both parties are citizens of Belgium and were married in Belgium one week after the execution of a premarital agreement governing their respective property rights. The parties are both current employees of the World Bank entitled to pension benefits on death or on retirement or resignation from the bank. The parties raise two principal issues on appeal. The first is whether the trial court permissibly applied the "when, as, and if" principle to the treatment of the parties' respective interests in the World Bank pension plan. The second is whether the trial court properly divided the parties' marital home in the District under D.C.Code § 16-910(b) (1989) rather than under the premarital agreement, granting the husband seventy-five percent and the wife twenty-five percent. We affirm.[1] I. The trial court applied the provisions of the premarital agreement in determining that each party had a fifty percent interest in 341 the pension plan payments of the other under the World Bank pension plan. Neither party contests this ruling. The only issue is whether the trial court properly refused to make a determination of the present worth of each party's interest in the pension plan and to require a cash settlement based upon such present net worth. Neither party has yet retired from the Bank, and there was considerable disagreement as to the age at which the parties would in fact retire and begin to receive their pension benefits and as to the physical conditions of the parties that might affect normal life expectancies. The trial court determined that instead of attempting to estimate the present value of each party's interest in the plan it would instead apply the "when, as, and if" method. Such a treatment means that the pension payments are divided when, as, and if they are in fact paid out by the employer. This court expressly approved the "when, as, and if" method in Barbour v. Barbour, 464 A.2d 915, 920 n. 6 (D.C.1983) (approving trial court ruling that "a fixed percentage of any future benefits received under appellant's pension should be paid to appellee"). In a divorce proceeding the trial court has discretion over the method by which the division of property will be effectuated. See id. (noting that other methods of valuation and apportionment may be appropriate). The appellant wife, however, asserts that the trial court abused its discretion in making such a determination because of the unenforceability of a qualified domestic relations order against the World Bank. The World Bank is an international organization and is immune from the effects of any decree by a United States court. Imagnu v. Wodajo, 85 Md.App. 208, 582 A.2d 590, 594 (1990). The wife asserts that this fact mandates that the trial court determine the present value of the expected future pension plan benefits.[2] Because such a determination involves certain assumptions as to future events, it is, to some degree, necessarily speculative. Id. 582 A.2d at 592. Although it is possible to assign a present value to future payments and it may be appropriate to do so in some circumstances, Imagnu does not, in our judgment, mandate the use of present value calculations with World Bank pension plans. The decision simply suggests that present value is one of several possible ways in which a trial court could resolve the matter upon a divorce and under the circumstances before the Maryland court, the employee contribution plus interest method was inappropriate. Id. 582 A.2d at 594-95. The parties do not dispute that the agreement controls the pension division. The articles of the agreement contain no provision for contingent rights, showing no intent to require a present distribution of such rights. The agreement merely states that each party owns an undivided one-half interest in acquired property. Moreover, the agreement's requirement of an exact calculation bears upon the options to be considered by the trial court. The court in Imagnu "need[ed] only [to] achieve equity between the parties, not necessarily an equal distribution." Id. 582 A.2d at 595 n. 4. The "when, as, and if" method is appropriate to divide the pensions accurately under the agreement because it "nullifies any risk of error in the evaluation." Id. 582 A.2d at 592. By contrast, the present value method purportedly favored by Imagnu is not likely to provide a precisely equal division because the value is affected by factors which are "impossible to predict with any degree of certainty." Id. Finally, although the husband may leave the United States after retirement,[3] both parties retain their Belgian citizenship and own considerable other assets besides their pension rights.[4] The rights of the parties in 342 the pensions flow ultimately from the premarital agreement, enforceable by any court, and not from a property division percentage decreed by the trial court. There is no requirement that a trial court order a lump sum present value payment whenever a decision affects future rights, any more than with respect to child support or alimony, which may also present enforcement problems. In sum, we conclude that the trial court did not abuse its discretion by applying the "when, as, and if" method to divide the pensions in the circumstances here. II. The second issue raised on appeal is the trial court's treatment of the marital home in the District of Columbia. The wife argues that the trial court correctly found that the property was subject to division under D.C.Code § 16-910(b) (1989), rather than under the premarital agreement, but that the trial court erred in the application of the statutory factors when it granted the wife twenty-five percent instead of a larger interest in the home.[5] The husband in his cross-appeal asserts that the trial court erred in not finding the home to be separate property of the husband within the terms of the premarital agreement and thus entirely owned by him. We are not persuaded by either of these arguments. With respect to the wife's assertions that the trial court improperly weighed the factors of section 16-910(b), we have repeatedly held that the trial court has broad discretion over the division of marital property under that section.[6]Powell v. Powell, 457 A.2d 391, 393 (D.C.1983). As required, the trial court expressly considered the principal factors relevant here as set forth in section 16-910(b). Id. It was undisputed that at least a major portion of the funds which were used to purchase the marital home derived from the separate property of the husband.[7] In dividing the marital home, the court took into account the wife's nonfinancial contributions to the farm which was sold to purchase the disputed property. The court considered that some of the wife's separate funds were used for marital expenses, and also considered the parties' health, occupations, ages, and "positive and negative" nonfinancial contributions to the marriage. On the record before us, we can find no abuse of discretion in the trial court's application of the § 16-910(b) factors. The husband in his cross-appeal claims that the home was his separate property under the premarital agreement and hence not subject to division under section 343 16-910(b). He bases this argument on the first and second articles of the premarital agreement which he reads as providing that separate property must remain separate although titled in both names. We find great difficulty in so interpreting the agreement.[8] Article one does not state whether property titled in both names, such as the parties' marital home, may be separate property. It merely provides that "[e]ach spouse shall retain as his and her sole property all presently owned property and all property acquired in the future by (donation) or inheritance." Article two sheds no light on the issue in its provision that title is irrelevant for acquired property, remaining silent or at least highly ambiguous regarding separate property. It states that acquired property "shall include ... all property acquired during the marriage by the spouses in their individual names or in both names other than for the utilization or re-utilization of personal non-marital assets whether lost o[r] recovered." Thus, the first and second articles are at best ambiguous about the parties' intent with respect to separate property which becomes jointly titled and in which, moreover, the individual owner appears to intend to give the other spouse some interest, as the trial court found here.[9] The law of the relevant jurisdiction will then provide some insight as to the proper treatment of disputed property. We are not cited to any provisions of the law of Belgium governing the interpretation and the scope of the agreement or the ownership of property by married couples. Where foreign law is at issue, but not proven or even argued by either party, the law of the District of Columbia shall apply. Gilper v. Kiamesha Concord, Inc., 302 A.2d 740, 745 n. 5 (D.C. 1973); see Adamsen v. Adamsen, 151 Conn. 172, 195 A.2d 418, 421 (1963) (Norwegian law on modification of custody orders presumed same as Connecticut law absent evidence to the contrary); Pernikoff v. Kennedy, 219 F.Supp. 854, 860 (D.D.C.1963) (foreign law is a question of fact). Here, the marital home was placed into tenancy by the entirety ownership form. Under our decision in Turpin v. Turpin, 403 A.2d 1144, 1146 (D.C.1979), putting even separate property in joint names "for whatever reason" subjects it to division under section 16-910(b). Furthermore, all property, even though separately titled, is treated as acquired during the marriage unless the party who claims separate ownership meets the burden of establishing the separate status of the disputed property. Jordan v. Jordan, 616 A.2d 1238, 1239 (D.C.1992). Considering these principles in light of the record here, we conclude that the husband failed to establish that the home should be treated as separate property under the premarital agreement and hence owned entirely by him alone.[10] Affirmed. NOTES [1] A third issue raised on appeal is whether the trial court properly denied an award of attorney's fees to the wife. We find no abuse of discretion in this regard. "[I]t would require an extremely strong showing to convince the court that an award is so arbitrary as to constitute an abuse of discretion." Rachal v. Rachal, 489 A.2d 476, 478 (D.C.1985). Unlike in Tydings v. Tydings, 567 A.2d 886, 888 (D.C.1989), the trial court in this case found that the proceedings were not burdensome or oppressive. The trial court further had found that both parties had substantial assets prior to the distribution. Tydings does not compel the trial court to consider attorney's fees entirely apart from the property distribution. Id. at 890-91. [2] The appellant also argues that the case must be remanded to the trial court for failing to address expressly the issue of unenforceability. However, in the motion for reconsideration one of the principal arguments of the wife was based upon the unenforceability argument that she now makes. We think that the trial court in refusing to grant the motion for reconsideration effectively ruled against the wife's argument. [3] Appellee holds a G-4 visa which permits him to reside in the United States while employed by the World Bank. [4] In evaluating the parties' financial status prior to the property division, the trial court noted that "[w]hat is determinable on this record is that both parties have substantial assets, which will leave neither of them wanting," and further that "this court has no doubt that even a $90,000 difference in the estimation of plaintiff's assets is negligible." [5] While appellant's brief on appeal asserts a right to forty percent of the marital home, in her proposed findings of fact and conclusions of law before the trial court, she requested thirty-five percent of the home. [6] The wife claims that in addition to the failure to provide her with thirty-five percent of the marital home, the trial court erred in failing to order a sale of the house as part of the property division. We are aware of no authority that requires a trial court to order a partition sale or a sale in kind or the like as part of a judgment of divorce. Section 16-910 simply provides that the trial court shall divide the property between the spouse. Whether the spouses as co-owners choose to sell the property or to effectuate a buyout by one spouse or to otherwise bring a partition action may properly be left for subsequent determination within the discretion of the trial court. We see nothing to the contrary in Carter v. Carter, 516 A.2d 917 (D.C.1986). Likewise we disagree with appellant's contention that the order is ambiguous in providing both a percentage split and a total dollar value for the home. In our judgment, the two orders of the trial court, read in context, provide for a percentage division of ownership. We note also that neither party asked for clarification in the petition for rehearing. [7] The wife argued that even though the source of the funds was the husband's separate property derived from the sale of a farm in Maryland, the purchase of that farm involved a loan of $125,000 which was co-signed by the husband and the wife and that this fact affected the nature of the husband's separate property even though the loan was repaid entirely out of the husband's separate property. That fact alone is not determinative for the division of property, Yeldell v. Yeldell, 551 A.2d 832, 835 (D.C.1988) (mere signing of a mortgage does not transmute separate property into marital property), although when considered with other relevant factors it may have some bearing on the ultimate determination of the nature of the disputed property. [8] As did the trial court, we address an English translation of the agreement submitted as an exhibit by the husband without objection by the wife. [9] The trial court found that the property was titled in both names as a condition to the appellant wife's permission to sell the parties' jointly titled former residence. [10] No claim is made by either party that the house is otherwise subject to the premarital agreement.	{ "pile_set_name": "FreeLaw" }
153 Conn. 377 (1966) CANTERBURY REALTY COMPANY v. HOWARD S. IVES, HIGHWAY COMMISSIONER Supreme Court of Connecticut. Argued November 3, 1965. Decided January 13, 1966. KING, C. J., MURPHY, ALCORN, SHANNON and HOUSE, JS. 379 Alexander Winnick, for the appellant (Saidel). Joseph Adinolfi, Jr., with whom was Frances Allen, for the appellee (plaintiff). ALCORN, J. The lessee of part of a parcel of land condemned by the highway commissioner has appealed from a judgment accepting a referee's amended report, which found the lease to be valueless. The highway commissioner is a bystander in the appeal, which involves only the question what, if any, part of the total damages awarded for the taking of the fee should be paid to the holder of the leasehold interest. On June 14, 1962, the highway commissioner filed a notice of condemnation of all or parts of five parcels of land owned by Canterbury Realty Company, henceforth referred to as Canterbury. The land taken contained altogether about 12.91 acres, and the commissioner assessed damages of $118,800 for the taking. Harry Saidel is the lessee of about 1.7 acres of one of the parcels. The lease was dated in November, 1957. Canterbury appealed to the Superior Court for a reassessment of the damages, and the court appointed a state referee to make the reassessment. General Statutes § 13-150 (now § 13a-76). Saidel appeared in Canterbury's appeal and filed a motion reciting that he had been served with a copy of the notice of the taking and that he had, by virtue of his lease, an interest in the compensation being determined, and he requested the appointment of a referee to value his leasehold and apportion, between Canterbury and him, the amount to be paid by the highway commissioner. The court appointed the same referee to make that determination, and Canterbury and Saidel stipulated 380 that the value of Saidel's leasehold interest be determined in Canterbury's appeal. The referee held hearings on three days in June and July, 1963, following which he found and reported the fair value of Canterbury's fee in the five parcels condemned to be $167,800. He found the value of the 1.7 acres leased by Saidel to be $17,000. Counsel for Saidel attended the two hearings in June but absented himself from the July hearing. He did not, however, object to the referee continuing with that hearing. The referee's report as to the valuation of the fee was accepted by the court, judgment was rendered thereon on December 6, 1963, and no appeal was taken. In October, 1963, the referee had heard further evidence offered by Saidel concerning the value of his lease. On January 10, 1964, the referee filed a separate report, in which he concluded that Saidel's lease had no value. Saidel filed, as permitted by Practice Book § 358, a motion seeking extensive corrections in the report. The referee granted some of them and denied the rest. Saidel then filed exceptions and objections to the acceptance of the amended report, in substance reiterating to the court all of the claims for corrections which the referee had refused to grant. The court accepted the amended report with one minor change and ordered funds which had been held in the hands of the clerk awaiting a determination of the value of the lease paid over to Canterbury. It is from that action that this appeal is taken. Saidel does not pursue, in his brief, any claim concerning corrections in the report, and we treat that subject as abandoned. Mims v. Kingsley, 145 Conn. 7, 10, 138 A.2d 520. The points of attack on the judgment are that the court erred in accepting 381 the referee's report because the appraisal on which it was based was improperly considered, because it made no allowance for the lessee's cost of improving the leased land, and because it adopted a valuation which disregarded renewal options in the lease, including the projected future value of the leased land. The referee's failure to number the paragraphs of his report creates an unnecessary burden in dealing with the appeal. See Research Associates, Inc. v. New Haven Redevelopment Agency, 152 Conn. 137, 139 n., 204 A.2d 833; Wilusz v. Ives, 152 Conn. 352, 354 n.1, 206 A.2d 841. It would have been proper for the trial court to have recommitted the report for this reason. We find the report difficult to follow. At the outset it appears to postulate that Canterbury could have terminated Saidel's lease at any time before the condemnation so that Saidel lost nothing by the taking. It then appears to give consideration to the unexpired portion of the original term of the lease and to fix a value for that without giving effect to renewal options. In sum, we take it that the referee concluded that the lease had until March 1, 1968, to run, that Saidel's option to renew had no value because it was not exercised before the taking, that the value of the fee in the leased land was $17,000, and that the lease was valueless because the economic rent was exceeded by the rent reserved in the lease. It is clear from the report that the valuation of the fee in the leased land was based upon a consideration of evidence offered at the hearings in June and July and that the referee refused to credit the testimony of Saidel's appraiser given at the October hearing. Saidel's claim that the referee erred in considering the expert testimony given during the 382 earlier hearings, at one of which Saidel's counsel was not present to cross-examine, has no merit. Saidel had stipulated that the value of his lease was to be determined in Canterbury's appeal from the highway commissioner's assessment of damages. The amount to be paid for the taking of his leasehold could not exceed the amount to be paid for the fee in the leased land. General Statutes § 48-21. Consequently, the hearings concerned with the valuation of the fee were of the utmost importance to him. Since Saidel's counsel chose not to be present at all of them, he cannot now be heard to complain of the referee's reliance on evidence then offered, found credible, and resulting in a decision from which no appeal was taken. Under the stipulation of the parties, the referee was entitled to utilize the evidence offered at all of the hearings which he held in the case as a basis for arriving at valuations for both the fee and the lease. Nor did the referee err in the rule which he applied for evaluating the leasehold interest in land the value of which he had already determined. The value of the lease is properly arrived at, in the case of a complete taking, by subtracting the rent provided for under the lease from the fair market value of the lease. United States v. Petty Motor Co., 327 U.S. 372, 381, 66 S. Ct. 596, 90 L. Ed. 729; New Jersey Highway Authority v. J. & F. Holding Co., 40 N.J. Super. 309, 316, 123 A.2d 25; Jahr, Eminent Domain, p. 197; 4 Nichols, Eminent Domain § 12.42 [3]. The crucial point is the referee's conclusion, in substance, that Saidel's right to renew the lease was of no value because it was not exercised before the condemnation. The lease, by its terms, ran for a period of ten years from March 1, 1958, or from 383 the date a building to be built on the land by Saidel was ready for occupancy. The latter alternative is irrelevant because no building has been erected. Canterbury reserved the right to terminate the lease at the end of the ten-year period, or at any time thereafter upon compensating Saidel, at stipulated rates, for any buildings constructed on the land by the lessee. Saidel could not assign the lease or sublet the premises without Canterbury's consent, but he had the option to renew the lease for three terms of five years each. This option was required to be exercised in writing not less than sixty days before the end of the term or before the end of any renewal period. The confusing manner in which the report deals with the lessor's right to terminate the lease weakens the force of the conclusion which the referee draws from it. At one point the report states that the lessor had the right to terminate the lease on March 1, 1958. At another point it states that the right to terminate existed as of March 1, 1978. Finally it states: "The right to share in any award by reason of an option is dependent on whether or not the option to renew has been exercised. The right to exercise the options in question had not been exercised by the date of condemnation [June 14, 1962], as provided in the lease." The terms of the lease make it clear, however, that the lessor had no right to terminate the lease on either March 1, 1958, or March 1, 1978. Saidel, on the other hand, had the right to renew the lease at any time up to sixty days before the expiration of the ten-year term, or, in other words, until January 1, 1968. In the event that he exercised that option, he then had two additional renewal options open. On June 14, 1962, when the taking occurred, the 384 original term of the lease had nearly six years to run with the possibility, if the options were exercised, of an extension of fifteen years more. In approving the referee's conclusion that Saidel's lease was of no value because the option to renew had not been exercised before the taking, the court was in error. Every kind of right or interest in property which has a market value must be compensated for in condemnation proceedings. Campbell v. New Haven, 101 Conn. 173, 178, 125 A. 650; Stamford v. Vuono, 108 Conn. 359, 368, 143 A. 245. Saidel, as lessee, was entitled to receive, as nearly as possible, a fair equivalent in money for the loss of his lease. Moss v. New Haven Redevelopment Agency, 146 Conn. 421, 425, 151 A.2d 693; Winchester v. Cox, 129 Conn. 106, 114, 26 A.2d 592; see McGowan v. Milford, 104 Conn. 452, 456, 133 A. 570. In a determination of what this amount should be, all elements legitimately affecting the value of the lease should be considered. See Eljay Realty Co. v. Argraves, 149 Conn. 203, 206, 177 A.2d 677. The renewal options which, if exercised, would serve to convert the lease from one having nearly six years left to run into one having nearly twenty-one years of potential life were, therefore, elements properly to be considered in a determination of the value of the lease. United States v. 425,031 Square Feet of Land, 187 F.2d 798, 800 (3d Cir.); Department of Public Works v. Bohne, 415 Ill. 253, 262, 263, 113 N.E.2d 319; Hercey v. Board of Chosen Freeholders, 99 N.J. Eq. 525, 526, 133 A. 872; New Jersey Highway Authority v. J. & F. Holding Co., 40 N.J. Super. 309, 316, 123 A.2d 25; Oklahoma City v. Garnett, 296 P.2d 766, 769 (Okla.); Jahr, Eminent Domain, p. 197; see also Matter of City of New York (North River Water Front), 118 App. 385 Div. 865, 867, 103 N.Y.S. 908. Since these elements were not considered in the evaluation of Saidel's lease, the case must be remanded for further proceedings. We do not overlook the provisions in the lease under which Canterbury reserved the right to terminate it, under specified conditions, at any time after the expiration of the original ten-year term. We cannot say, as a matter of law, however, that these provisions rendered the lease of no value to Saidel. Hoffman Wall Paper Co. v. Hartford, 114 Conn. 531, 537, 159 A. 346. Whether the lease, including the options to renew, has a value under all the circumstances disclosed and, if so, what that value is is a question of fact for determination under established procedures. The only other claim raised in this appeal is that it was error to refuse to allow Saidel to introduce evidence of the expenses incurred by him in improving the land. These costs arose from filling a low, swampy area to the grade of the abutting highway. The question before the referee was the fair market value of the land. That value as testified to and as considered and found by the referee was based on the land in its filled state. Thus the value of the filled land would necessarily be reflected in any value of the leasehold based on the value of the fee. Matter of City of New York (Delancey Street), 120 App. Div. 700, 707, 105 N.Y.S. 779. The specific items of expense incurred in making the improvement were not pertinent. Carlock v. United States, 53 F.2d 926, 927 (D.C. Cir.). The referee was correct in refusing to consider them. There is error, the judgment is set aside so far as it purports to determine the value of the lease of Harry Saidel and the case is remanded with 386 direction to reject the report concerning the value of that lease and proceed thereafter according to law. In this opinion the other judges concurred.	{ "pile_set_name": "FreeLaw" }

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