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This opinion is subject to revision before final
publication in the Pacific Reporter
2020 UT 25
IN THE
SUPREME COURT OF THE STATE OF UTAH
GREGORY N. JONES,
Appellant/Cross-Appellee,
v.
MACKEY PRICE THOMPSON & OSTLER, MACKEY PRICE, LLC,
RANDALL A. MACKEY, and GIFFORD W. PRICE,
Appellees/Cross-Appellants.
No. 20170604
Heard October 4, 2019
Filed May 14, 2020
On Direct Appeal
Third District, Salt Lake County
The Honorable Richard D. McKelvie
No. 060911956
Attorneys:
James D. Gilson, Lyndon R. Bradshaw, Cole P. Crowther,
Salt Lake City, for appellant/cross-appellee
Gifford W. Price, Salt Lake City, for appellees/cross-appellants
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court,
in which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS,
JUSTICE PETERSEN, and JUDGE POHLMAN joined.
Having recused himself, JUSTICE PEARCE does not participate herein;
COURT OF APPEALS JUDGE JILL M. POHLMAN sat.
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶1 This appeal arises out of a longstanding dispute between
attorney Gregory Jones and his former law firm, Mackey Price
Thompson & Ostler, P.C. (MPTO), over the distribution of litigation
proceeds. Jones claims a right to some of the fees collected by the
firm in personal injury cases arising out of the use of the diet drug
JONES v. MACKEY PRICE THOMPSON & OSTLER
Opinion of the Court
known as Fen-Phen. Jones has asserted claims for quantum
meruit/unjust enrichment, breach of fiduciary duty, and fraudulent
transfer. He also claims a right to an award of punitive damages and
seeks to impose a constructive trust on the funds held by MPTO.
¶2 In 2017, after nearly ten years of litigation (including a
previous appeal to this court), a jury entered a $647,090 verdict
against MPTO on a quantum meruit/unjust enrichment theory. But
the district court dismissed Jones’s claims for breach of fiduciary
duty, fraudulent transfer, and punitive damages after MPTO filed a
motion for directed verdict. It also rejected Jones’s request for a
constructive trust.
¶3 After trial, the district court concluded that the judgment
properly extended to a second entity, Mackey Price, LLC—an entity
that the district court deemed a successor in interest to MPTO under
rule 25 of the Utah Rules of Civil Procedure. Yet the district court
denied Jones’s request to extend joint and several liability (under an
alter ego theory) against Randall Mackey and Gifford Price
individually and against a third entity—Mackey Price Law, a Utah
corporation. And it declined Jones’s request to conclude, in post-
judgment proceedings, that Mackey, Price, and Mackey Price Law
had violated Utah’s LLC and corporation statutes.
¶4 On this appeal, Jones challenges the dismissal of several of
his claims on directed verdict, the denial of his request for a
constructive trust, and the refusal to entertain his alter ego and
statutory violation claims in post-judgment proceedings. On
cross-appeal, MPTO challenges the jury verdict on the quantum
meruit/unjust enrichment claim on the ground that the expert
witness testimony that supported it should have been excluded.
Mackey Price, LLC also cross-appeals, asserting that the district
court lacked jurisdiction to add it to the judgment as a successor in
interest to MPTO.
¶5 We affirm the directed verdict on the fiduciary duty claim
but reverse the dismissal of the fraudulent transfer and punitive
damages claims and reverse and remand for further proceedings on
Jones’s request for imposition of a constructive trust. We also affirm
the denial of Jones’s alter ego and statutory claims against Mackey,
Price, and Mackey Price Law because such claims cannot be asserted
in post-judgment proceedings under Brigham Young University v.
Tremco Consultants, Inc., 2007 UT 17, 156 P.3d 782. And we uphold
the jury verdict on the quantum meruit/unjust enrichment claim on
the ground that the district court did not abuse its discretion in
admitting the testimony of Jones’s expert witness.
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Opinion of the Court
¶6 Finally, we clarify and limit the reach of our decision in
Tremco. We conclude that the district court had the authority to
consider a rule 25 motion for substitution—to add Mackey Price,
LLC as a successor to MPTO—in post-verdict proceedings. But we
nonetheless reverse and remand on the ground that Mackey Price,
LLC was entitled to contest the merits of the proposed substitution
once the district court rejected its jurisdictional arguments.
I. BACKGROUND
A. The Dispute and Jones’s First Appeal
¶7 In 1992 Randall Mackey and Gifford Price formed a
professional corporation to conduct their law practice. Their firm has
had various names over the years but was known as Mackey Price
Thompson & Ostler, P.C., during the period relevant to this case. We
refer to it herein as MPTO.
¶8 Two attorneys associated with MPTO, Jeffrey Thompson
and Russell Skousen, initiated a Fen-Phen program with MPTO to
litigate claims arising from the fallout surrounding the beleaguered
weight-loss pill. Jones also worked for MPTO and focused on
Fen-Phen cases from 2002 to May 2005. At that time, Jones developed
dissociative amnesia, which severely impaired his memory and
prevented him from continuing his work. The Fen-Phen cases
eventually generated over $1 million in fees for MPTO. After Jones
claimed to be entitled to some of the Fen-Phen funds, MPTO
deposited the fee checks into its trust account and agreed as a
“professional courtesy” to let Jones know if any of the funds were to
be distributed.
¶9 Jones sued MPTO over these funds in July 2006, asserting
various claims for relief. MPTO distributed the Fen-Phen funds in
December of that year, purportedly to avoid incurring large tax
liabilities. MPTO paid $328,261 to Thompson and Skousen, $165,000
to Jones, $175,484 each to Mackey and Price, and the rest to other
MPTO creditors. Yet Jones maintained that he was entitled to a
larger share of the funds. In February 2007, he successfully amended
his complaint to add claims for breach of fiduciary duty and
fraudulent transfer.
¶10 Jones’s suit against MPTO, Mackey, Price, Thompson,
Skousen, and various Thompson and Skousen limited liability
companies reached us in 2015. At that time, we affirmed the district
court’s dismissal of Jones’s contract claim, as well as his quantum
meruit and fraudulent transfer claims against Mackey, Price,
Thompson, Skousen, and the LLCs. Jones v. Mackey Price Thompson &
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JONES v. MACKEY PRICE THOMPSON & OSTLER
Opinion of the Court
Ostler (Jones I), 2015 UT 60, ¶¶ 4–5, 355 P.3d 1000. But we reversed
the district court’s denial of Jones’s request for a jury trial, ruling that
Jones was entitled to a jury on his quantum meruit/unjust
enrichment claim against MPTO. Id. ¶ 5.
B. MPTO’s Trial Objections
¶11 A trial followed. In the course of the proceedings, MPTO
objected several times to the testimony offered by Jones’s expert
witness, John Hansen. In part, MPTO objected that Hansen’s trial
drawings, use of notes, and some aspects of his methodology were
not previously disclosed under rule 26 of the Utah Rules of Civil
Procedure and therefore should be excluded from the jury’s
consideration. The district court overruled these objections. MPTO
also objected to Hansen testifying as to what considerations typically
went into a fee-splitting agreement, asserting that they were
irrelevant in light of the dismissal of Jones’s contract claim. The
district court also overruled these objections, citing another portion
of our Jones I decision.
C. MPTO’s Motion for Directed Verdict
¶12 Before the case was submitted to the jury, MPTO sought
directed verdict on several of Jones’s claims, including his claims
that MPTO’s December 2006 transfers breached a fiduciary duty to
Jones and were fraudulent under the Utah Fraudulent Transfer Act.
The district court entered directed verdict against Jones on his claims
for breach of fiduciary duty and fraudulent transfer and his request
for punitive damages.
¶13 Jones opposed MPTO’s motion. On the fiduciary duty claim,
he argued that rule 1.15 of the Utah Rules of Professional Conduct
and MPTO’s alleged agreement to place the funds in a “segregated
account” indicated that MPTO owed Jones a fiduciary duty. Jones
asserted that MPTO had violated that duty by leaving him out of the
process that gave Mackey and Price “much more than they
deserved” and paid others who “didn’t do anything on . . . Fen-
Phen.” The district court disagreed, ruling that no statute created an
independent duty to Jones and that while the Utah Rules of
Professional Conduct might be evidence of a fiduciary duty, they
cannot in and of themselves create such a duty.
¶14 In defending his fraudulent transfer claim, Jones focused on
several factors laid out in the Utah Fraudulent Transfer Act. He
argued that Mackey and Price had received payments “far in excess”
of the reasonable value of their services, that they knew that the
$165,000 paid to Jones was “woefully inadequate,” and that MPTO
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Opinion of the Court
had paid the paltry sum to frustrate Jones’s ability to prosecute his
case. But the district court weighed the various factors laid out in the
statute differently. And it concluded that there was insufficient
evidence for a jury to find by clear and convincing evidence that
MPTO acted with actual intent to hinder, delay, or defraud Jones. In
particular, the court emphasized its belief that MPTO transferred the
funds only to avoid tax liability and that Jones was not actually
harmed by the transfer.
¶15 With respect to his request for punitive damages, Jones
asserted that MPTO had acted in blatant disregard of his rights and
thus he was entitled to punitive damages on both his fiduciary duty
and fraudulent transfer claims. The district court again disagreed,
ruling that there was no evidence of “malicious intent” on the part of
MPTO.
D. The Verdict and Jones’s Request for a Constructive Trust
¶16 On March 7, 2017 a jury awarded Jones a $647,090 verdict
against MPTO on his remaining claims. Jones quickly proposed that
the district court impose a constructive trust to assist him in
obtaining satisfaction of the judgment. MPTO objected, arguing that
Jones I precluded the possibility of a constructive trust (an equitable
remedy) on Jones’s quantum meruit claim (a legal claim). The district
court agreed with MPTO and denied Jones’s request to impose a
constructive trust in connection with the judgment.
E. Jones’s Rule 25 Motion and MPTO’s JNOV Motion
¶17 The post-verdict proceedings continued when Jones sought
to hold another Mackey and Price entity responsible for the
judgment and MPTO asked the district court to reconsider its
decisions on the admissibility of Hansen’s expert testimony.
¶18 Prior to and during trial, Mackey and Price had maintained
a website for the newly named “Mackey Price & Mecham” at the
web address www.mackeyprice.com. The firm listed a phone
number and described itself as a “business law firm” comprised of
four attorneys: Mackey, Price, and two others. But just two days after
the jury verdict, on March 9, 2017, Mackey and Price formed Mackey
Price, LLC. The LLC’s Certificate of Organization listed the same
address as MPTO’s, naming Mackey as the registered agent and
Mackey and Price as co-managers. Mackey and Price also transferred
its website to Mackey Price, LLC, which listed the same phone
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JONES v. MACKEY PRICE THOMPSON & OSTLER
Opinion of the Court
number as before and again described itself as a “business law firm”
comprised of the same four attorneys.1
¶19 In June 2017 the district court held argument on Jones’s
proposed form of judgment. The court expressed concern that MPTO
had reorganized as Mackey Price, LLC to avoid paying the judgment
and wondered whether MPTO was engaged in a game of “legal
whack-a-mole.” At the conclusion of the hearing, the district court
gave MPTO the opportunity to submit a brief on whether Mackey
Price, LLC should be joined as a party under rule 21 of the Utah
Rules of Civil Procedure. MPTO availed itself of that opportunity,
asserting that rule 21 did not obviate the requirement for the court to
exercise personal jurisdiction via service of a summons and
complaint. For its part, Mackey Price, LLC made a special
appearance for the limited purpose of contesting the court’s
jurisdiction. Neither entity addressed the allegation that Mackey
Price, LLC had been formed to avoid the judgment. The district court
entered a judgment against MPTO, including Mackey Price, LLC in
the judgment’s definition of MPTO without any findings of fact or
conclusions of law explaining the basis for that decision.
¶20 A few weeks later, Mackey and Price executed security
agreements in favor of themselves on behalf of Mackey Price, LLC,
whereby Mackey and Price acquired a secured interest in the LLC’s
personal and fixture property, inventory, equipment, instruments,
and other assets in exchange for legal work. Mackey and Price
contend that these security agreements justify their decision to pay
themselves rather than the judgment.
¶21 Jones filed a notice of appeal from the initial judgment on
July 27, 2017. Thereafter, the district court heard argument on
MPTO’s motion for judgment notwithstanding the verdict (JNOV),
which asserted that Jones’s expert witness testimony should have
been excluded on the grounds that elements of his testimony had not
been disclosed prior to trial and that it was contrary to law and
established facts. MPTO reiterated the objections it made at trial. It
_____________________________________________________________
1 Price later testified that he and Mackey immediately began
practicing law and billing their clients through the LLC. It “was
made clear to the clients” which business “was going forward,” and
that services “would be coming from the LLC.” Price also confirmed
that Mackey Price, LLC had been substituted on the lease at Mackey
Price & Mecham’s office and begun operating out of the same space.
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Opinion of the Court
further alleged that previous rulings regarding MPTO’s agreements
with Thompson and Skousen meant that MPTO’s payments to
Thompson and Skousen could not properly be considered part of the
benefit Jones had conferred on MPTO. On September 22, 2017, the
district court denied MPTO’s JNOV motion. But in the same order, it
concluded that its decision to extend the judgment to include
Mackey Price, LLC as a judgment debtor was void under Brigham
Young University v. Tremco Consultants, Inc., 2007 UT 17, 156 P.3d 782.
It ordered Jones to prepare an amended judgment and remove
Mackey Price, LLC. In so doing, however, the court invited Jones to
serve and move to join Mackey Price, LLC under rule 21 or 25 of the
Utah Rules of Civil Procedure.
¶22 Jones filed a motion to do just that and served Mackey Price,
LLC with rule 4 notice.2 MPTO and Mackey Price, LLC both filed
memoranda in opposition to Jones’s motion. Once again, Mackey
Price, LLC made its case in a special appearance. MPTO and Mackey
Price, LLC first argued that the district court lacked subject matter
jurisdiction to rule on the motion. They claimed that once the district
court had denied MPTO’s JNOV motion on September 22, Jones’s
July 27 notice of appeal kicked in, shifting jurisdiction to this court.
They also argued that the district court lacked personal jurisdiction
over Mackey Price, LLC.
¶23 On November 22, 2017, the district court granted Jones’s
motion without oral argument and again joined Mackey Price, LLC
as a party to the judgment, this time under civil rules 21 and 25. In so
doing, the district court ruled that it retained jurisdiction because no
amended judgment had been entered; in the absence of a final
judgment, any notice of appeal was premature. The court also ruled
that it had personal jurisdiction over Mackey Price, LLC because
Jones had served the LLC in accordance with rule 4. In joining
Mackey Price, LLC, the district court noted that it was odd that a
party facing a significant judgment (like MPTO) would oppose the
joinder of another party if the two really were separate entities. It
also stated that if Mackey Price, LLC had disputed the factual
allegations, the court would have held an evidentiary hearing to
determine whether Mackey Price, LLC was in fact a successor to
MPTO. But since Mackey Price, LLC focused “entirely on procedural
_____________________________________________________________
2 Around this time, MPTO filed a notice of appeal from the
district court’s denial of its JNOV motion.
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JONES v. MACKEY PRICE THOMPSON & OSTLER
Opinion of the Court
issues,” the court found that it was entitled to grant Jones’s motion
once those procedural arguments were rejected.3
¶24 On December 1, 2017 the district court entered an amended
judgment that included Mackey Price, LLC as a judgment debtor.
Thereafter, Mackey Price, LLC filed a petition for extraordinary
relief.
F. Jones’s Effort to Extend Liability to Mackey Price Law
¶25 In January 2018 Mackey and Price formed a third entity,
Mackey Price Law. Mackey and Price are the sole shareholders,
officers, and directors of Mackey Price Law. Once again, Mackey
serves as the registered agent. Moreover, Mackey and Price executed
additional security agreements, under which they acquired a secured
interest in “All Assets” of Mackey Price Law.
¶26 Jones had initially filed a motion asking the court to rule
that MPTO, Mackey, Price, and Mackey Price, LLC were abusing the
state’s corporation and LLC statutes and that the parties were alter
egos of one another. Upon discovering the creation of Mackey Price
Law, Jones filed a supplemental motion asking the court to find that
Mackey Price Law was also an alter ego and jointly and severally
liable for the amended judgment. Following a hearing, the district
court relied on Tremco and refused to hear Jones’s new claims for
fraudulent transfer, alter ego, and statutory violations in post-
judgment proceedings, or to add Mackey Price Law to the judgment.
G. The Appeal and Cross-Appeal
¶27 The parties thereafter filed their appeals and cross-appeals,
which we consider below. In Part II we consider the arguments
raised by Jones on his direct appeal. In Part III we take up the issues
on cross-appeal. And in Part IV we synthesize the basis for our
decision in order to clarify the questions presented on remand.
_____________________________________________________________
3 The district court acknowledged that Mackey had filed a
declaration disputing whether certain assets were in fact transferred
from MPTO to Mackey Price, LLC, but concluded that “Mackey’s
testimony fails to challenge the central allegation in the Motion: that
Mackey Price, LLC is simply a continuation of Defendant Mackey
Price Thompson & Ostler.”
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Opinion of the Court
II. JONES’S DIRECT APPEAL
¶28 On direct appeal, Jones challenges the district court’s
(A) entry of a partial directed verdict; (B) denial of a right to seek a
constructive trust in support of the judgment; and (C) refusal to
allow him to assert his fraudulent transfer, alter ego, and statutory
violations claims in post-judgment proceedings. We affirm in part
and reverse in part.
A. Directed Verdict
¶29 Jones first challenges the district court’s decision to take the
issues of breach of fiduciary duty, fraudulent transfer, and punitive
damages away from the jury. We “review[] trial court rulings on
motions for directed verdict for correctness.” Arnold v. Grigsby, 2018
UT 14, ¶ 10, 417 P.3d 606.
¶30 A directed verdict is in order “[i]f a party has been fully
heard on an issue during a jury trial and the court finds that a
reasonable jury would not have a legally sufficient evidentiary basis
to find for the party on that issue.” Id. (alteration in original)
(quoting UTAH R. CIV. P. 50(a)(1)). We affirm the entry of directed
verdict on the fiduciary duty claim but reverse on the fraudulent
transfer and punitive damages claims.
1. Fiduciary Duty
¶31 Jones claims that he was the beneficiary of a trust
relationship and that MPTO owed him a fiduciary duty under
(i) general trust principles, (ii) Utah Rule of Professional Conduct
1.15(e), and (iii) the “law of the case” doctrine. We disagree and
affirm the district court’s dismissal of this claim on MPTO’s motion
for directed verdict.
¶32 Jones first asserts that there was evidence that a trust was
created when MPTO placed the Fen-Phen funds in its trust account.
He claims that he was a beneficiary of that trust because MPTO
knew he claimed an interest in the Fen-Phen proceeds and allegedly
agreed to segregate the funds “on that basis.” Jones claims support
for this view in the fact that MPTO ultimately paid him a portion of
the Fen-Phen funds. Thus, in Jones’s view, MPTO, as trustee,
breached a fiduciary duty to him when it decided “what portion
Jones was entitled” to “rather than awaiting the jury’s verdict.” The
alleged breach is in MPTO “selfishly” paying Mackey and Price “and
[its] creditors the disputed remaining portion” prior to the resolution
of Jones’s claims.
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Opinion of the Court
¶33 We affirm because we find no evidence of a
trustee-beneficiary relationship between Jones and MPTO. Trusts
and corresponding fiduciary relationships are generally created by
contract, statute, judicial decree, or some manifestation of an intent
to create a trust.4 Jones’s situation matches none of these scenarios,
and he has not identified a basis for an exception to the general rule.
¶34 Granted, MPTO notified Jones that it had placed the
disputed funds in its trust account and would inform him of any
decision to distribute funds “reasonably in advance of any
distribution actually being made.” But Jones cites no record basis for
the conclusion that MPTO intended to make or did make a binding
agreement of any kind, let alone a binding agreement to hold the
funds until after the resolution of the case, or to give notice before
making distributions. Jones can likewise point to no statute or
judicial decree that created a trustee-beneficiary relationship.
¶35 We find no authority for the proposition that a party can
unilaterally create a trust and make himself a beneficiary of that trust
by the simple expedient of claiming an interest in a pot of money
and having another agree to keep him apprised of any distributions.
Such a rule would press holders of disputed funds into fiduciary
service without their knowledge or consent. That is not the law. And
for these reasons we find no basis in general trust principles for a
trustee-beneficiary relationship between Jones and MPTO.
¶36 Second, Jones argues that Utah Rule of Professional Conduct
1.15(e) “supports” a finding of a fiduciary duty. Rule 1.15(e) states
that “[w]hen in the course of representation a lawyer is in possession
of property in which two or more persons (one of whom may be the
lawyer) claim interests, the property shall be kept separate by the
lawyer until the dispute is resolved.” According to Jones, this means
that a factfinder could determine that a fiduciary relationship arose
_____________________________________________________________
4 See UTAH CODE § 75-7-401(1)(b) (“A trust may be created by . . .
declaration by the owner of property that the owner holds
identifiable property as trustee . . . .”); id. § 75-7-402(1)(b) (“A trust is
created only if . . . the settlor indicates an intention to create the trust
or a statute, judgment, or decree authorizes the creation of a trust
. . . .”); 24 AM. JUR. PL. & PR. FORMS Trusts § 2 (2020) (“Although
technical words, such as ‘trust’ or ‘trustee,’ are not required in order
to create the trust, the intention to create a trust must nevertheless be
apparent.”).
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Opinion of the Court
once MPTO knew the ownership of the funds was disputed and
agreed to hold them in a trust account.
¶37 But as Jones himself acknowledges, rule 1.15(e) can only
support a finding of fiduciary duty—it can’t create one. The “Utah
Rules of Professional Conduct are not designed to create a basis for
civil liability.” Archuleta v. Hughes, 969 P.2d 409, 414 (Utah 1998). Nor
do the rules create a legal presumption that a duty has been
breached. Id. Without a basis in general trust principles, rule 1.15(e)
alone cannot support Jones’s breach of fiduciary duty claim.
¶38 Finally, Jones argues that the “law of the case” doctrine
mandates a finding of fiduciary duty. This doctrine states that “a
decision made on an issue during one stage of a case” is sometimes
“binding in successive stages of the same litigation.” IHC Health
Servs., Inc. v. D. & K. Mgmt., Inc., 2008 UT 73, ¶ 26, 196 P.3d 588
(citation omitted). Jones contends that the district court had already
determined at the summary judgment stage that Mackey and Price
owed him a fiduciary duty. And he asserts that that determination
should have bound the district court moving forward.
¶39 But the district court made no such finding. Instead, the
court simply concluded, in response to a motion for summary
judgment, that “a fact finder could determine that fiduciary duties
were voluntarily assumed” and “could determine that Rule 1.15(e)
would apply.” (Emphases added.) These were not determinations
that a fiduciary duty in fact existed. In any event, the district court
statements were subject to reconsideration by a successor judge. As
we recently clarified, the law of the case leaves a successor judge
broad discretion to revisit any “nonfinal decision entered
previously.” Build, Inc. v. Utah Dep’t of Transp., 2018 UT 34, ¶ 27, 428
P.3d 995.
¶40 Because neither general trust principles, rule 1.15(e), nor the
law-of-the-case doctrine supports a finding that MPTO owed Jones a
fiduciary duty, we affirm the district court’s entry of partial directed
verdict on Jones’s claim for breach of fiduciary duty.
2. Fraudulent Transfer
¶41 Jones next challenges the dismissal of his fraudulent transfer
claim, arguing that there was sufficient evidence for the jury to find
that MPTO had acted with actual intent to hinder, delay, or defraud
Jones when it distributed the Fen-Phen funds. In dismissing this
claim, the district court went through the list of factors that the
Fraudulent Transfer Act sets forth for determining a defendant’s
“actual intent.” These include whether the transfer was to an insider,
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Opinion of the Court
whether the debtor retained possession or control of the property
after the transfer, and whether the transfer was concealed or made
after the threat of a lawsuit. UTAH CODE § 25-6-5(2) (2016).5 Based on
these factors, the district court concluded that “no reasonable jury
could make a determination [by clear and convincing evidence] that
there was a violation of the Fraudulent Transfer Act or that these
transfers took place [with] an intent to hinder, delay, or defraud
anyone.”
¶42 The district court first acknowledged that some of the
transfer in question was to insiders Mackey and Price, who thus
retained possession or control of some of the funds. But the court
also found that the transfer was disclosed (not concealed), that the
transfer didn’t consist of substantially all of MPTO’s assets, and that
MPTO didn’t abscond, conceal assets, become insolvent, make the
transfer before or after a substantial debt was incurred, or transfer
essential assets—all of which weighed in favor of the defendants.
Because the suit “was filed well in advance of the transfer,” the
district court said that it did not matter that the defendants had been
sued before they made the transfer. In addition, the district court
stated that it didn’t think it “weigh[ed] in favor of either party”
whether Mackey and Price had received their portion of the funds as
reasonable consideration (even if that fact was in dispute) since the
defendants “certainly believe[d]” that it was a reasonable
distribution. Lastly, the district court relied heavily on the notion
that “the only credible evidence in the record with respect to this
transfer [wa]s that the defendants became aware of a potential tax
liability.” The district court concluded that there was “no evidence to
contravene the position of the defendants that they transferred this
money solely in order to avoid paying the taxes on it,” and thus no
way for a jury to conclude that MPTO’s transfers were fraudulent.
¶43 We disagree and reverse. Before reaching the merits, we
address two threshold questions raised in the briefing on this appeal.
_____________________________________________________________
5 We cite the 2016 version of the fraudulent transfer statute
throughout, though it is unclear which version of the statute the
district court applied in its March 2017 analysis. Because the statute
remained the same from the time Jones added the fraudulent
transfer claim to his complaint (February 2007) to the time the court
entered directed verdict (March 2017), it does not matter which
version we cite so long as we do not use the amended version that
went into effect in May 2017. See infra ¶¶ 46–50.
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We first conclude that a “mixed motive” is sufficient to establish an
“actual intent” to hinder, delay, or defraud under the Fraudulent
Transfer Act. We then hold that Jones was required to establish such
actual intent by clear and convincing evidence. With these premises
in mind, we conclude that there was sufficient evidence in the trial
record for a jury to find by clear and convincing evidence that there
was a fraudulent transfer in this case.
a. Mixed motive
¶44 We begin by clarifying the governing legal standard on a
question that has been decided in other states but never in Utah. The
question is whether “actual intent” to hinder, delay, or defraud
requires proof that such intent was the sole or primary purpose of
the defendant, or whether proof of a “mixed motive” is sufficient.
We conclude that there is no requirement that the intent to hinder,
delay, or defraud be the sole or even primary motive of the
defendant. This follows from the text of the statute, which requires
proof only that a defendant act “with actual intent” to hinder, delay,
or defraud. UTAH CODE § 25-6-5(1)(a) (2016). It would add an
unstated qualifier to require that a defendant acting “with actual
intent” act solely or primarily with that actual intent. And such an
addition is foreclosed by our canons of interpretation.6
¶45 Utah cases have not addressed this “mixed motive”
question directly. But they have spoken of an actual intent to hinder,
delay, or defraud when interpreting the Fraudulent Transfer Act or
its variants.7 And courts in other jurisdictions have interpreted
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6 See Nevares v. M.L.S., 2015 UT 34, ¶ 34, 345 P.3d 719 (rejecting an
interpretation of a statute on the ground that it ran afoul of the canon
against “read[ing] into the statute a limitation not expressly stated
on its face”); Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 18, 248 P.3d
465 (declining to “add conditions . . . that are not set forth expressly
by legislation”).
7 See, e.g., Butler v. Wilkinson, 740 P.2d 1244, 1261 (Utah 1987)
(interpreting the Utah Fraudulent Conveyance Act to mean that “the
defendant must have an actual fraudulent intent” (emphasis added));
Selvage v. J.J. Johnson & Assocs., 910 P.2d 1252, 1261–62 (Utah Ct. App.
1996) (stating repeatedly that there was enough evidence to infer “an
actual intent to hinder, delay or defraud” in part because one
witness testified that, “part of the decision regarding the date for
placing Johnson into bankruptcy was to allow the one-year statute of
(continued . . .)
13
JONES v. MACKEY PRICE THOMPSON & OSTLER
Opinion of the Court
parallel language of the Uniform Fraudulent Transfer Act in the
same way—holding that actual intent to hinder, delay, or defraud
may be established on the ground that at least one of the defendant’s
motives was an impermissible one.8 We agree with these holdings
and disagree with the contrary view endorsed in other jurisdictions.9
We conclude that a plaintiff may carry her burden of showing that a
defendant had actual intent to hinder, delay, or defraud without
_____________________________________________________________
limitation to expire,” and thus the defendant’s actions “indicated an
intentional attempt to hinder, delay or defraud rather than merely a
bona fide purpose to reduce Johnson’s debt to [defendant]”
(emphases added)).
8 See, e.g., In re Blatstein, 192 F.3d 88, 97 (3d Cir. 1999) (“Our
inquiry under [the Pennsylvania UFTA] is whether [the] [debtor]
intended to hinder or delay a creditor. If he did, he had the intent
penalized by the statute notwithstanding any other motivation he
may have had for the transfer.” (third alteration in original) (citation
omitted)); In re Tronox Inc., 503 B.R. 239, 279 (Bankr. S.D.N.Y. 2013)
(holding that Oklahoma’s fraudulent transfer law does not require
the plaintiff to show that the “main or only purpose of the transfer
was defendant’s actual intent to damage a creditor” (citation and
internal quotation marks omitted)); In re Stanley, 384 B.R. 788, 799
(Bankr. S.D. Ohio 2008) (ruling that under Ohio’s UFTA, “‘[a]ctual
intent’ may be present whether the transfer was motivated entirely
or merely in part by a desire to hinder, delay or defraud creditors”);
Bertram v. WFI Stadium, Inc., 41 A.3d 1239, 1247 (D.C. 2012) (“[E]ven
if a debtor has at least one non-fraudulent motive for a transaction,
the additional motive of effecting the transaction to hinder a creditor
‘is a sufficient ground for an unassailable conclusion [of] . . .
fraudulent intent.’” (second and third alterations in original)
(citation omitted).
9 See, e.g., Tindall v. H & S Homes, LLC, 757 F. Supp. 2d 1339, 1364
(M.D. Ga. 2011) (“The facts here suggest that . . . Defendants’
dominant intent appears to have been to hinder, delay or defraud
Plaintiff . . . . ‘[Actual] intent will be found if the circumstances
indicate that the main or only purpose of the transfer was to prevent a
lawful creditor from collecting a debt.’” (emphases added) (citations
omitted)); In re Schneider, 417 B.R. 907, 915 (Bankr. N.D. Ill. 2009) (“If
the primary motivation for the transfer is based on fraudulent intent,
other motivations may be urged, but they are irrelevant.” (emphasis
added)).
14
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Opinion of the Court
showing that it was the defendant’s sole or primary motivation.
Thus, the question is whether there existed a legally sufficient
evidentiary basis for a reasonable jury to conclude that MPTO made
the payments from its trust account with an actual intent to hinder,
delay, or defraud Jones.
b. Standard of proof
¶46 We next consider what standard of proof Jones was required
to meet on his fraudulent transfer claim. The standard is clearly set
forth in the statute as it stands today. See UTAH CODE § 25-6-202.
Under the current version of the statute (effective May 2017), a
transfer made with “actual intent to hinder, delay, or defraud” is not
“fraudulent” but merely “voidable.” Id. § 25-6-202(1). And a claim
under this provision requires proof only by a “preponderance of the
evidence.” Id. § 25-6-202(3).
¶47 But this altered the operative burden of proof under Utah
law. The pre-2017 statute treated all transfers made with “actual
intent to hinder, delay, or defraud” as “fraudulent.” See UTAH CODE
§ 25-6-5(1) (2016). Under the old statute, any “transfer made or
obligation incurred by a debtor is fraudulent as to a creditor[] . . . if
the debtor made the transfer or incurred the obligation[] . . . with
actual intent to hinder, delay, or defraud any creditor of the debtor.”
Id. (emphasis added). And under Utah law, a claim of fraud must be
proven by clear and convincing evidence.10
¶48 This highlights an important distinction between the 2017
statute and the one it amended. Under the pre-2017 law, the plaintiff
bore the burden of proving all claims asserting intent to hinder,
_____________________________________________________________
10 See Daines v. Vincent, 2008 UT 51, ¶ 38, 190 P.3d 1269 (“To
prevail on a claim of fraudulent inducement, [the plaintiff] must
present clear and convincing evidence . . . .”); Armed Forces Ins. Exch.
v. Harrison, 2003 UT 14, ¶ 27, 70 P.3d 35 (“[F]raud is a wrong of such
nature that it must be shown by clear and convincing proof and will
not lie in mere suspicion or innuendo.” (alteration in original)
(citation and internal quotation marks omitted)); Lundstrom v. Radio
Corp. of Am., 405 P.2d 339, 341 (Utah 1965) (same); Ferrell v. Wiswell,
143 P. 582, 583–84 (Utah 1914) (“We have no right to overlook the
wholesome rule that where deeds or contracts are sought to be
vacated . . . upon the ground of fraud and deceit, the burden of
proving the alleged fraud is upon him who asserts it; moreover, that
the fraud must be established by clear and convincing evidence.”).
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JONES v. MACKEY PRICE THOMPSON & OSTLER
Opinion of the Court
delay, or defraud by clear and convincing evidence. But under the
statute that went into effect in May 2017, the plaintiff bears the
burden of proving such claims only by a preponderance of evidence.
¶49 This triggers the question of which version of the statute
applies. And that implicates standards set forth in our decision in
State v. Clark, 2011 UT 23, 251 P.3d 829. Under Clark “we apply the
law as it exists at the time of the event regulated by the law in
question.” Id. ¶ 13. “On matters of substance the parties’ primary
rights and duties are dictated by the law in effect at the time of their
underlying primary conduct (e.g., the conduct giving rise to a
criminal charge or civil claim).” Id. ¶ 14. “Thus, if a law regulates a
breach of contract or a tort, we apply the law as it exists . . . at the
time of the event giving rise to [the] cause of action.” Id. ¶ 13. “When
it comes to the parties’ procedural rights and responsibilities,
however, the relevant underlying conduct is different: the relevant
occurrence for such purposes is the underlying procedural act (e.g.,
filing a motion or seeking an appeal).” Id. ¶ 14. “The law governing
th[e] [relevant] procedural occurrence is thus the law in effect at the
time of the procedural act . . . .” Id.
¶50 We have not decided whether a statute altering the standard
of proof in a civil proceeding is substantive or procedural. Nor have
we decided whether a statute effecting such change can or should be
applied retroactively.11 And we need not do so here. The statute
lowering the standard of proof to a preponderance of evidence was
not in effect until May 2017. By then, all the relevant events even
arguably regulated by the statute—whether the substantive
“primary conduct” giving rise to the alleged fraudulent transfer
(December 2006), or the procedural filing of the relevant pleadings
(February 2007) and presentation of proof at trial (March 2017)—had
already taken place. For that reason there is no basis for application
of the new statute to this case. And Jones was thus required to prove
his claim for fraudulent transfer by clear and convincing evidence.
_____________________________________________________________
11 In criminal proceedings, we have held that “statutes which
‘alter the degree, or lessen the amount or measure, of the proof
which was made necessary to conviction when the crime was
committed’” may not be applied retroactively. See State v. Schreuder,
726 P.2d 1215, 1218 (Utah 1986) (citation omitted). But that decision
was based on the Ex Post Facto Clauses of the federal and state
constitutions, id., not the framework laid out in State v. Clark, 2011
UT 23, 251 P.3d 829.
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Opinion of the Court
c. Application of the law to the facts in the record
¶51 We may reverse the district court’s decision dismissing
Jones’s fraudulent transfer claim if we find that the jury had a
“legally sufficient evidentiary basis” to find for Jones on this claim.
UTAH R. CIV. P. 50(a)(1). Under the standards set forth above, we
must decide whether there was a sufficient basis for a reasonable
jury to find by clear and convincing evidence that MPTO had an
actual intent to hinder or delay Jones in seeking his share of the
funds. We reverse because we conclude that there was sufficient
evidence in the record for a reasonable jury to so conclude.
¶52 The district court leaned heavily on its finding that “the only
credible evidence in the record with respect to this transfer is that the
defendants became aware of a potential tax liability.” Conversely,
the court stated that there was “no evidence to contravene the
position of the defendants that they transferred this money solely in
order to avoid paying the taxes on it.” We see the record differently.
The court may have been correct to suggest that the only direct
evidence of MPTO’s motives went to tax avoidance. But
circumstantial evidence may also be considered. And we think there
was ample circumstantial evidence in the record to support a jury
determination (by clear and convincing evidence) that at least one of
MPTO’s motives was to hinder or delay Jones.
¶53 The district court also cited the fact that Jones had filed his
lawsuit several months before MPTO made the transfer. But this
would not have prevented the jury from drawing a negative
inference from the fact that, “before the transfer was made or
obligation was incurred, the debtor had been sued or threatened
with suit.” UTAH CODE § 25-6-5(2)(d) (2016). The fact that Jones filed
his lawsuit several months before the transfer doesn’t categorically
exonerate the defendants’ motivations. A reasonable jury could have
found that the fact the defendants were being sued cut in favor of
Jones. And given that the jury verdict awarded Jones virtually all the
Fen-Phen litigation funds, a reasonable jury could have decided that
the large transfers to Mackey and Price did not constitute “the value
of the consideration . . . reasonably equivalent to the value of the
asset transferred.” Id. § 25-6-5(2)(h). That too would have weighed in
favor of Jones.
¶54 We also think the district court placed too much weight on
MPTO’s supposed tax motivations. A reasonable jury could have
wondered why there was no written or paid advice regarding the
alleged tax problem—a potential weakness that Jones probed at trial.
A reasonable jury also could have found Mackey and Price to be
17
JONES v. MACKEY PRICE THOMPSON & OSTLER
Opinion of the Court
lacking credibility in general. At trial, Jones’s attorney tried to
uncover exactly how Mackey and Price arrived at the $165,000 figure
for Jones, as they did not involve Jones in their calculations. Price
testified that in calculating how many of the Fen-Phen funds to send
Jones, he and Mackey took into account damages that Jones caused
the firm in his handling of two specific cases. But Mackey testified to
just the opposite. Mackey said they did not take into account the fact
that Jones’s work had been “deficient” in certain cases. A reasonable
jury could have discounted Mackey’s and Price’s testimony in light
of this contradiction. At a minimum, a reasonable jury could have
concluded that Mackey and Price were being less than forthcoming
on the issue, as they failed to offer any kind of concrete formula for
MPTO’s payment to Jones and repeatedly insisted that they were
simply trying to “be fair to Mr. Jones” by looking at “various
factors.”
¶55 Any jury may be less inclined to find for a party whose
credibility is called into question. But Mackey’s and Price’s
credibility on this point was especially important. While MPTO’s tax
fears might adequately explain why MPTO distributed the funds
when it did, they do nothing to explain why MPTO paid out the sums
it did or why it chose to pay the entities it did. The decision to pay
Mackey, Price, and other creditors decreased the amount of Fen-
Phen funds in MPTO’s possession, and thus how much and how
quickly Jones could reasonably expect to recover in the event of a
favorable outcome at trial. If the jury believed that MPTO paid Jones
based on a reasonable, good-faith determination of what it believed
Jones was owed, the jury likely would have found that MPTO
simply made the transfers with the intent to avoid taxes and pay off
creditors. But if the jury believed that MPTO was trying to lowball
Jones and divest itself of the rest of the funds, the jury very well
could have inferred that MPTO was also trying to put itself in a
position where it no longer had what Jones claimed (and MPTO
believed) he was owed.
¶56 MPTO’s failure to explain its calculation of Jones’s payment,
as well as its possible offset for Jones’s alleged mishandling of cases,
make it more likely that MPTO also acted to hinder or delay Jones in
his efforts to recover his share of the Fen-Phen fees. We hold that
there was sufficient evidence for a reasonable jury to conclude by
clear and convincing evidence that MPTO acted with actual intent to
hinder or delay Jones. And we accordingly reverse the directed
verdict on this claim.
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Opinion of the Court
3. Punitive Damages
¶57 Jones next challenges the district court’s dismissal of his
claim for punitive damages. By statute, punitive damages are
generally available “only if compensatory or general damages are
awarded and it is established by clear and convincing evidence that
the acts or omissions of the tortfeasor are the result of willful and
malicious or intentionally fraudulent conduct, or conduct that
manifests a knowing and reckless indifference toward, and a
disregard of, the rights of others.” UTAH CODE § 78B-8-201(1)(a); id.
§ 78-18-1(1)(a) (2006). In rejecting Jones’s request for punitive
damages, the district court relied on the notion that there was “no
evidence of malice” on MPTO’s part. We reverse in light of our
decision to reinstate the fraudulent transfer claim. With the
fraudulent transfer claim in place, Jones is entitled to pursue his
claim for punitive damages.
B. Constructive Trust
¶58 Jones also challenges the district court’s ruling denying his
request for the imposition of a constructive trust. In the proceedings
below, Jones asserted that he had established all the prerequisites for
the imposition of a constructive trust. The district court declined to
reach that question, however, because it concluded that our ruling in
Jones I “specifically rejected the availability of a constructive trust as
a potential remedy” in this case.
¶59 We concede that there was a degree of imprecision in our
discussion in Jones I on this point. But we clarify that our analysis in
Jones I did not foreclose the possibility of a constructive trust in this
case and remand to allow the district court to decide in the first
instance whether Jones has established the preconditions for the
imposition of a constructive trust.
¶60 In Jones I we held that Jones had a right to a jury trial
because he sought “only money damages” and requested a “legal
remedy, not an equitable one.” 2015 UT 60, ¶ 51, 355 P.3d 1000. With
this in mind, the district court thought that Jones was seeking to
move the goalposts on remand. It thought it unfair to allow Jones to
“seek[] to obtain an equitable remedy (a constructive trust)” after
convincing this court that “his claim seeks a legal remedy (monetary
relief).”
¶61 We can see how the district court could read our Jones I
opinion in this way. But our analysis in Jones I, though not as precise
as it might have been, was not an indication that Jones could not
seek the imposition of a constructive trust. In Jones I we held only
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JONES v. MACKEY PRICE THOMPSON & OSTLER
Opinion of the Court
that the quantum meruit/unjust enrichment claim itself was legal in
nature. In the briefing in Jones I, Jones never proffered an intent to
forgo an equitable remedy in the aid of the collection on his legal
claim. Indeed, we noted that Jones was not just asserting a claim for
quantum meruit/unjust enrichment but also “ask[ing] the court to
hold the fees received by Mackey Price in constructive trust.” Id. ¶ 51
n.58. And our analysis did not foreclose the availability of such
relief; the question was simply not presented to us.
¶62 We thus conclude that Jones I does not categorically
foreclose Jones from seeking the imposition of a constructive trust.
Our case law supports the availability of equitable remedies in
support of the collection of damages on a legal claim. See Ong Int’l
(U.S.A.) Inc. v. 11th Ave. Corp., 850 P.2d 447, 457 (Utah 1993); see also
RESTATEMENT (THIRD) OF RESTITUTION & UNJUST ENRICHMENT § 4
cmt. d (AM. LAW INST. 2011). Constructive trusts, moreover, have
properly been imposed to aid in collecting on a legal claim.12 And
that is all that Jones has asked for here.
¶63 We reverse on that basis. In so doing we are not endorsing
the propriety of a constructive trust in the circumstances of this case.
See Wilcox v. Anchor Wate, Co., 2007 UT 39, ¶ 34, 164 P.3d 353
(identifying factors for consideration in the imposition of a
constructive trust). We leave the resolution of that question for the
district court on remand.
C. New Claims in Post-Judgment Proceedings
¶64 Jones’s last contention is his challenge to the district court’s
determination that he could not prosecute his claims for fraudulent
transfer, alter ego, and statutory violations in post-judgment
proceedings. The district court held that such claims were foreclosed
under our decision in Brigham Young University v. Tremco Consultants,
Inc., 2007 UT 17, 156 P.3d 782. We agree and affirm.
_____________________________________________________________
12 See Butler, 740 P.2d at 1253, 1262 (ruling that plaintiffs were
entitled to a constructive trust on their fraudulent conveyance claim
to prevent defendants from unjustly enriching themselves from
proceeds not yet received from a land sale); RESTATEMENT (THIRD) OF
RESTITUTION & UNJUST ENRICHMENT § 4 cmt. e, illus. 9–10 (AM. LAW
INST. 2011) (endorsing the availability of a constructive trust in
connection with a claim for collection of embezzled funds).
20
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Opinion of the Court
¶65 Tremco involved a plaintiff who sought to execute a
judgment on the assets of persons not named as parties to the
lawsuit or judgment. Id. ¶¶ 12–13, 36. In that case, the court held that
claims founded on “alter ego” and “fraudulent transfer” are “civil
action[s] that must be prosecuted in the manner prescribed in the
Utah Rules of Civil Procedure, commencing with the filing of a
summons and complaint and not the abbreviated post-judgment
collection procedures of rule 69.” Id. ¶ 39. “In light of the status
conferred through the development of the common law and
legislative action upon alter ego and fraudulent transfer” claims, a
plaintiff may not seek to advance these claims in post-judgment
proceedings in an attempt to extend liability for a judgment to new
parties. Id.; see also id. ¶ 45. Instead, such claims must be initiated and
litigated in the ordinary course under our rules of civil procedure,
with rights of discovery, motion practice, trial, etc. Id. ¶ 40.
¶66 Jones seeks to distinguish this case on the ground that he is
invoking rules 21 and 25 of the Utah Rules of Civil Procedure in an
attempt to “substitute” Mackey, Price, and Mackey Price Law as
“successors” to MPTO. In support of this view, Jones notes that the
district court has already allowed Mackey Price, LLC to be
substituted as a successor entity under rules 21 and 25. Jones claims
that his bid to add Mackey, Price, and Mackey Price Law is no
different.
¶67 We disagree. The proceedings seeking to add Mackey Price,
LLC as a party to the judgment are distinct from the proceedings at
issue here. See infra ¶¶ 91–93. When Jones sought to extend the
judgment to Mackey Price, LLC he was asserting only that Mackey
Price, LLC was a successor to MPTO that should be substituted in as
a named party to the judgment. But the proceedings seeking to add
Mackey, Price, and Mackey Price Law were different. There, Jones
asserted new, substantive common-law and statutory claims—
fraudulent transfer, alter ego, and other statutory violations—against
an unnamed, unjoined party. These are precisely the kinds of claims
that cannot be asserted in post-judgment proceedings under Tremco.
¶68 We affirm on this basis.13 Jones’s claims against Mackey,
Price, and Mackey Price Law are separate civil actions with
_____________________________________________________________
13 For reasons explained below, see infra ¶¶ 89–90, the district
court may have also lacked jurisdiction to allow Jones to assert new
claims for liability against Mackey, Price, and Mackey Price Law.
Jones’s July 27, 2017 notice of appeal became effective, and generally
(continued . . .)
21
JONES v. MACKEY PRICE THOMPSON & OSTLER
Opinion of the Court
common-law or statutory status triggering the need to initiate new
proceedings in accordance with the Utah Rules of Civil Procedure.
Jones has no right to bypass the protections of our rules by tacking
on a brand-new claim in the abbreviated mechanism of a
post-judgment proceeding. This was our holding in Tremco and we
stand by it here. Jones has identified no persuasive basis for
distinguishing our precedent or for departing from it, and we thus
reinforce Tremco and affirm on that basis.
III. CROSS-APPEALS
¶69 Both MPTO and Mackey Price, LLC raise claims on
cross-appeal: (A) MPTO challenges the district court’s decision to
allow Jones’s expert witness to testify in support of his quantum
meruit/unjust enrichment claim; and (B) Mackey Price, LLC asserts
that the district court erred in adding it as a party to the judgment
under rules 21 and 25 of the Utah Rules of Civil Procedure. We
affirm in part and reverse in part.
A. MPTO’s Cross-Appeal
¶70 MPTO challenges the district court’s decision allowing the
jury to consider expert testimony from John Hansen, the expert
witness called by Jones in support of his claim for quantum
meruit/unjust enrichment. In pretrial proceedings, Jones had
produced an expert witness report for Hansen under the
then-applicable version of rule 26 of the Utah Rules of Civil
_____________________________________________________________
deprived the court of jurisdiction over most matters, when the
district court entered its amended final judgment on December 1,
2017, see infra ¶¶ 89–90—before the district court denied Jones’s
request to assert new claims of liability against these parties.
Despite the notice of appeal, however, the district court retained
jurisdiction over certain post-judgment proceedings. See Garver v.
Rosenberg, 2014 UT 42, ¶ 10 n.12, 347 P.3d 380. So the court retained
the power to decide whether it was appropriate to allow Jones to
assert new claims for liability against Mackey, Price, and Mackey
Price Law. It had jurisdiction to determine its own jurisdiction. In
rejecting Jones’s attempt to assert new claims for liability, the district
court was effectively concluding that such claims could not properly
be asserted within a post-judgment proceeding. That would hold
both as a matter of jurisdiction and under Tremco.
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Opinion of the Court
Procedure.14 MPTO had also had the opportunity to depose Hansen.
But at trial in 2017, MPTO made objections (some clearer than
others) that suggested it believed that Hansen’s testimony was going
beyond the scope of the testimony forecast in the report and
deposition and should be foreclosed on that basis. Specifically,
MPTO objected to Hansen’s drawing during his testimony, use of
handwritten notes, and alleged reliance on information and
methodology not cited in his initial report and deposition. The
district court overruled all of MPTO’s objections regarding
inadequate disclosure, although at one point the district judge
appeared to indicate that he had not read Hansen’s report. MPTO
also argued that since Jones no longer had a contract claim, Hansen
could not testify as to what types of considerations typically go into
a fee-splitting arrangement. The district court overruled this latter
point by citing our decision in Jones I.
¶71 After trial in its JNOV motion, MPTO also objected to the
admissibility of Hansen’s testimony on the ground that it was
foreclosed by prior summary judgment rulings that suggested that
the funds MPTO paid to Thompson and Skousen never properly
belonged to MPTO. MPTO argued that these funds therefore could
not be considered part of the benefit Jones conferred on MPTO.
Again, the district court rejected MPTO’s arguments.
¶72 MPTO contends that the quantum meruit/unjust
enrichment jury verdict cannot stand without Hansen’s testimony.
And it seeks to overturn the verdict on the above grounds. We
review the district court’s determinations on the admissibility of
expert testimony for abuse of discretion, Northgate Vill. Dev., LC v.
City of Orem, 2019 UT 59, ¶ 14, 450 P.3d 1117, and affirm.
1. Adequacy of Jones’s Pretrial Disclosures
¶73 The 2006 version of rule 26(a)(3)(B) of the Utah Rules of
Civil Procedure stated that an expert report should contain “the
subject matter on which the expert is expected to testify; the
substance of the facts and opinions to which the expert is expected to
testify; [and] a summary of the grounds for each opinion.” As the
_____________________________________________________________
14 Here, the adequacy of Jones’s pretrial disclosures is judged by
the standard applicable at the time he was required to make them.
See supra ¶ 49.
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JONES v. MACKEY PRICE THOMPSON & OSTLER
Opinion of the Court
language suggests, this was not a demanding standard.15
Nonetheless, MPTO argues that Hansen’s testimony was
inadequately disclosed because his trial testimony strayed too far
from his expert report and deposition. We disagree.
¶74 At trial, MPTO was not always clear about the precise
nature of its objections—or even about the fact that it was making a
rule 26 objection. And the imprecisions in MPTO’s objections had an
effect on the district court’s stated grounds for its rulings. Yet MPTO
did object at least twice that Hansen was straying from his report.
And in the context in which the objections were raised, we affirm the
district court’s rulings.
¶75 MPTO’s first objection—to Hansen making an illustration to
help convey what he was saying—clearly lacked merit. Hansen was
simply mapping out what he was explaining, not introducing a new
exhibit or document. It was in this context that the district court
indicated that it “ha[d]n’t seen the report and ha[d]n’t seen the
exhibit” that Hansen was in the process of drawing.16 The district
court’s statement made sense in this context. This was not an
admission by the court that it had no basis for assessing the viability
of any of MPTO’s objections. It was an acknowledgement that the
expert was entitled to make an illustration expanding on the
testimony in his report, and on that point we agree.
_____________________________________________________________
15 The Advisory Committee Notes to the new rule 26 illustrate
how the old rule operated in practice: “[B]ecause experts often were
allowed to deviate from the opinions disclosed, attorneys typically
would take the expert’s deposition to ensure the expert would not
offer ‘surprise’ testimony at trial, thereby increasing rather than
decreasing the overall cost. The amendments seek to remedy this
and other costs associated with expert discovery by, among other
things, allowing the opponent to choose either a deposition of the
expert or a written report, but not both; in the case of written reports,
requiring more comprehensive disclosures, signed by the expert, and
making clear that experts will not be allowed to testify beyond what
is fairly disclosed in a report . . . .”
16 MPTO did specifically raise the objection that “[t]here’s
nothing in [his report] about the fee split with any clients[,]” but this
was also in the context of the objection to Hansen’s illustration. And
again we affirm the decision to overrule that objection.
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Opinion of the Court
¶76 MPTO’s next objection was to Hansen’s discussion of
Thompson’s and Skousen’s affiliation with “national class counsel.”
But after the district court struck Hansen’s initial answer, MPTO
dropped the matter. To be sure, MPTO also challenged Hansen’s
alleged reliance on documents not disclosed in his report, including
Hansen’s use of some last-minute notes on the stand. But these notes
didn’t stray from the substance of Hansen’s prior disclosures, and
the judge marked Hansen’s notes as an exhibit for MPTO’s counsel
to use. As for Hansen’s other supposed reliance on information “not
in the report,” Hansen’s testimony was based on what he had heard
others testify at trial. The district court was well within its rights to
overrule MPTO’s vague objections on these points.17
¶77 MPTO claims that the district court never conducted a
proper rule 26 analysis because it incorrectly relied on Jones I to
excuse Hansen’s “new,” inadequately disclosed testimony. But the
record belies this. At trial, MPTO’s main—and continuing—objection
apparently went to Hansen’s discussion of fee-splitting
arrangements in general. MPTO’s counsel argued that Hansen’s
testimony on this point was inappropriate since there was “no
agreement” between Jones and MPTO and the trial was focused on
Jones’s quantum meruit/unjust enrichment claim. It was in this
context that the district court finally quoted from Jones I and
reasoned that “[t]o the extent that the [Utah] Supreme Court has
given me some leeway or some discretion in allowing an expert
witness or evidence regarding the other appropriate factors, that’s
what Mr. Hansen is doing. . . . I believe that this not only is
appropriate but, basically, is what the Supreme Court has ordered
me to allow.” We affirm that ruling. The district court was simply
making the point that even though there was no contract between
Jones and MPTO, it was appropriate for Hansen to testify about
what factors usually went into fee-splitting agreements because
those factors were relevant for determining the reasonable value of
Jones’s services. It was not ruling that Jones I allowed Jones to skirt
_____________________________________________________________
17 MPTO also cross-examined Hansen extensively about specific
figures that were not in his report, repeatedly invoking the Utah
Rules of Civil Procedure. But haranguing a witness on
cross-examination about the plaintiff’s obligations under the rules is
not the same as making a specific rule 26 objection for the district
court to rule on.
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Opinion of the Court
rule 26 pretrial disclosure requirements regarding Hansen’s
testimony.
¶78 The district court’s ruling on MPTO’s JNOV motion
confirms that the court relied on Hansen’s testimony at trial and not
on Jones I in overruling MPTO’s rule 26 objections. In that ruling the
court said that it was “not persuaded that Mr. Hansen strayed from
the substance of his expert report at trial,” but rather found that “Mr.
Hansen testified consistent with his pretrial disclosures.”
¶79 We agree. Hansen’s report stated that it was based on his
“evaluation and professional opinion” and his experience as a law
firm shareholder, practicing attorney in the Salt Lake area for
twenty-five years, former managing partner of a law firm, and
former president of the Utah Chapter of the Federal Bar Association.
It explained that he has specific knowledge and experience with
personal injury claims, contingency fees, and fee allocations between
multiple attorneys. It also named factors that Hansen took into
account in concluding that Jones was entitled to 80 percent of the
Fen-Phen fees. These factors included Jones’s unique employment
standing, personal expenses, commitment, leadership, time, and
origination. In his deposition, Hansen likewise highlighted his
professional experience with contingency fee cases and fee-splitting
between attorneys, including how fee splits often depend on the
circumstances surrounding the representation. He said that he
arrived at the 80 percent figure “based on [his] experience in dealing
with contingency fees and fair resolution” and factors such as
risk-taking, leadership, commitment, out-of-pocket expenses, and
work distribution.
¶80 MPTO asserts that Hansen’s trial testimony “deviated
materially” from these pretrial disclosures because he used terms
like “standard practices in the community” and “community
standards” and gave more specific percentage breakdowns and
dollar figures. But Hansen’s testimony included numerous
references to his experience with contingency fee and fee-splitting
cases, based on his personal practice and observations during the
course of his professional career. The bulk of his testimony
concerned the factors listed in his report. All Hansen did at trial was
lump these factors into discrete categories (risks, resources, and
responsibilities). The same factors still led to the same 80 percent
determination.
¶81 Hansen’s experience, methodology, and opinions were all
highlighted in his report and deposition. MPTO was thus on notice
about the substance of Hansen’s trial testimony. There is no undue
26
Cite as: 2020 UT 25
Opinion of the Court
surprise when experts summarize factors listed in their report into
succinct groupings or use slightly different terminology. We hold
that Hansen’s testimony was properly admitted and that Jones’s
disclosure of Hansen’s expert testimony was adequate under the
then-applicable rule 26 of the Utah Rules of Civil Procedure.
2. Hansen’s Inclusion of the Thompson & Skousen Payment
¶82 In post-trial proceedings, MPTO also contended that
Hansen’s testimony should have been excluded because it was
contrary to established facts. Specifically, MPTO argued that
Hansen’s testimony was deficient because it included MPTO’s
payment to Thompson & Skousen as part of the reasonable value of
Jones’s services. According to MPTO, past rulings had “created a
‘ceiling’ on Plaintiff’s damages . . . that Mr. Hansen failed to account
for.”
¶83 The district court was not bound by past district court
judges’ summary judgment rulings. See Build, Inc. v. Utah Dep’t of
Transp., 2018 UT 34, ¶¶ 30–31, 428 P.3d 995. In any case, the past
rulings concerned whether Jones could pursue a claim against
Thompson & Skousen for the payment it received from MPTO. But
whether Jones has a claim against Thompson & Skousen has nothing
to do with how much benefit Jones conferred on MPTO. MPTO
asserts that not accounting for the Thompson & Skousen payment
means that MPTO ultimately lost $59,000 processing the Fen-Phen
suits. This, MPTO, argues, contradicts Jones’s theory that MPTO was
unjustly enriched. But whether MPTO made a good deal when all is
said and done does not affect the value of the benefit that MPTO
received from Jones. Like the district court, this court “does not view
as unreasonable Mr. Hansen’s decision to use the total amount
received by Defendants as the starting point for Plaintiff’s quantum
meruit claim.”
¶84 We have even less trouble affirming on this point because
MPTO could have presented evidence of the Thompson & Skousen
payment to the jury and argued that Jones’s damages should be
reduced accordingly. But it chose not to. In fact, it affirmatively
prevented the jury from hearing evidence of the Thompson &
Skousen payment. Having kept evidence of the payment from the
jury, MPTO cannot now complain that the jury didn’t account for it
in its calculations.
¶85 Hansen’s testimony was adequately disclosed. It was not
contrary to law or established facts. Because Hansen’s testimony was
properly admitted, the jury’s verdict was based on sufficient
evidence and not contrary to law. We affirm the district court’s
27
JONES v. MACKEY PRICE THOMPSON & OSTLER
Opinion of the Court
admission of Hansen’s testimony and its denial of MPTO’s JNOV
motion.
B. Mackey Price, LLC’s Cross-Appeal
¶86 Mackey Price, LLC challenges the district court’s authority
to add it to the judgment as a successor in interest to MPTO. A lower
court’s interpretation of the rules of civil procedure is a question of
law we review for correctness. Belnap v. Howard, 2019 UT 9, ¶ 7, 437
P.3d 355. We reverse in part and remand. We conclude that the
district court retained jurisdiction at the time it considered Jones’s
substitution motion and had the authority to use post-verdict
proceedings to determine whether Mackey Price, LLC should be
added as a successor in interest under rules 21 and 25 of the Utah
Rules of Civil Procedure. But we reverse on the ground that the
district court was required, after it rejected Mackey Price, LLC’s
jurisdictional challenges, to afford Mackey Price, LLC an
opportunity to challenge the assertion that it was in fact a successor
to MPTO.
1. Jurisdiction over Post-Verdict Proceedings
¶87 Mackey Price, LLC argues that the district court lost “subject
matter jurisdiction” once it denied the JNOV motion on September
22, 2017.18 On that date, Mackey Price, LLC claims that Jones’s July
27 notice of appeal became effective and stripped the district court of
jurisdiction over the case. And for that reason Mackey Price, LLC
claims that the district court had no authority to add it to the
judgment on November 16, 2017.
¶88 The district court ruled that it retained jurisdiction over the
case because an amended judgment—which the district court had
also ordered in its September 22 ruling—had yet to be entered. For
that reason, the district court concluded that there was still no final
judgment to effectively appeal.
¶89 We agree with the district court. Granted, the general rule is
that “jurisdiction transfers from the district court to the appellate
court” for most matters “[o]nce a notice of appeal is filed.” Garver v.
Rosenberg, 2014 UT 42, ¶ 10, 347 P.3d 380. But this general rule is
_____________________________________________________________
18 Mackey Price, LLC acknowledges that the district court
retained jurisdiction to rule on its rule 50(b) JNOV motion, filed July
27, 2017. See UTAH R. APP. P. 4(b)(1)(A) (listing a rule 50(b) motion as
one that tolls the time for parties to appeal a judgment).
28
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Opinion of the Court
subject to important exceptions19—including the principle that “a
premature notice of appeal does not effectuate a transfer of
jurisdiction to review the merits of a case.” Id. ¶ 15. And a notice of
appeal is premature (and thus ineffective) if it is filed before the
entry of final judgment. See id. ¶ 12 (“[J]urisdiction transfers from the
district court to the appellate court only where: (1) the district court
has . . . announced its decision, and a subsequent final judgment is
entered in conformity with the announcement; and (2) the appealing
party files a timely notice of appeal.” (emphases added)).
¶90 In its September 22 ruling, the district court rejected MPTO’s
JNOV motion and explicitly directed Jones to prepare an amended
judgment (at that time, to remove Mackey Price, LLC). At that point,
Jones’s July 27 notice of appeal was premature, and the district court
retained jurisdiction. See id. ¶ 10 (“[A]n untimely notice may ‘trigger
stern consequences,’ precluding the appellate court from exercising
jurisdiction.” (citation omitted)). When the district court granted
Jones’s motion to re-add Mackey Price, LLC to the judgment on
November 16, there still had been no appealable “final judgment . . .
entered in conformity with the announcement” the district court had
made in its September 22 ruling. It was not until December 1 that the
district court entered a final, amended judgment. So it was not until
that date that Jones’s July 27 notice of appeal became effective and
deprived the district court of jurisdiction over most matters. See
UTAH R. APP. P. 4(c) (“A notice of appeal filed after the
announcement of a decision, judgment, or order but before entry of
the judgment or order shall be treated as filed after such entry and
on the day thereof.”). On that basis we conclude that the district
court retained jurisdiction to decide Jones’s rule 21/25 motion on
November 16.
_____________________________________________________________
19 Our cases also recognize another exception that could
potentially apply here—district courts retain jurisdiction over some
post-judgment proceedings, including “orders relating to
enforcement of a judgment when a judgment is not stayed pending
appeal.” Garver v. Rosenberg, 2014 UT 42, ¶ 10 n.12, 347 P.3d 380. A
proper motion for substitution of a successor entity could
conceivably fall within a district court’s jurisdiction over certain
post-judgment proceedings. See supra ¶ 68 n.13. We need not decide
the matter here, however, because we conclude that the notice of
appeal did not become effective until after the challenged decision.
29
JONES v. MACKEY PRICE THOMPSON & OSTLER
Opinion of the Court
2. Substitution Under Rules 21 and 25
¶91 “In case of any transfer of interest,” rule 25 provides that an
“action may be continued by or against the original party, unless the
court upon motion directs the person to whom the interest is
transferred to be substituted in the action or joined with the original
party.” UTAH R. CIV. P. 25(c). Under the terms of the rule, the party
seeking to add a successor entity need only “serve the motion and
any notice of hearing . . . upon persons not parties in the manner
provided in Rule 4 for the service of a summons.” Id. 25(a)(1), (c). So
substitution is available under rule 25 after service of a motion,
notice of a hearing, and appropriate proceedings on the question of
whether the new party is an entity “to whom the [original party’s]
interest is transferred.” Id. 25(c). Such a motion, moreover, may be
filed after a jury verdict. See id. 21 (“Parties may be dropped or
added by order of the court on motion of any party or of its own
initiative at any stage of the action and on such terms as are just.”
(emphasis added)).20 These rules thus provide authority for a court
_____________________________________________________________
20 Rule 21 ostensibly deals with the “[m]isjoinder and
[n]on-joinder of [p]arties,” while rule 25 handles the more specific
process of “[s]ubstitution.” But the rules clearly overlap. See UTAH R.
CIV. P. 25(c) (allowing a successor interest to be “substituted in the
action or joined with the original party” (emphasis added)); id. 21
(allowing parties to be generally “dropped or added”). Importantly,
moreover, rule 25(a)(1) places a ninety-day time limit only on the
substitution of successors for deceased parties. And that implies that
there is no similar time limit on substitutions of successors in
interest. See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW 107
(2012) (“The expression of one thing implies the exclusion of
others.”).
Federal authorities applying a parallel federal rule agree. Because
federal rule 25(c) is “wholly permissive,” a leading federal treatise
holds that “there is no time limit on moving to substitute under its
provisions”—so long as the district court otherwise retains
jurisdiction. See 7C CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE & PROCEDURE § 1958 (3d ed. 2018); id. (noting that
the “most significant feature” of the nearly identical federal rule
25(c) is that it “does not require that anything be done after an
interest has been transferred,” because “[t]he action may be
continued by or against the original party, and the judgment will be
binding on the successor in interest even though the successor is not
(continued . . .)
30
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Opinion of the Court
to add a party to a judgment as a successor in interest to a party to
the original proceedings—even after the jury has returned a verdict.
¶92 Where mere substitution of a successor entity is sought,
there is no requirement that the plaintiff initiate a new proceeding by
service of a summons and complaint. Brigham Young University v.
Tremco Consultants, Inc., 2007 UT 17, ¶ 39, 156 P.3d 782, is
distinguishable. Tremco, as noted above, see supra ¶¶ 64–68, requires
an entirely new proceeding where the plaintiff is asserting a new
common-law or statutory claim—like alter ego or fraudulent
transfer—that seeks to establish freestanding, independent liability
for a new party. 2017 UT 17, ¶ 39 (“In light of the status conferred
through the development of the common law and legislative action
upon alter ego and fraudulent transfer, it is apparent that a claim
founded on either theory is a civil action that must be prosecuted in
the manner prescribed in the Utah Rules of Civil Procedure,
commencing with the filing of a summons and complaint and not
the abbreviated post-judgment collection procedures of rule 69.”).
The domain of rule 25 substitution is different. Here we are dealing
not with a new cause of action with its own separate elements but
the extension of liability on an entity properly joined to the suit as a
successor to the existing defendant. As noted, rule 25 specifically
allows for a more truncated process under the umbrella of the initial
proceeding, requiring only that a party seeking to add an alleged
successor “serve the motion and any notice of hearing” under rule 4.
UTAH R. CIV. P. 25(a)(1), (c).
¶93 We reject Mackey Price, LLC’s jurisdictional arguments on
this basis.21 Because Jones was seeking to add Mackey Price, LLC as
_____________________________________________________________
named”). The federal counterpart to our rule 25(c) has thus been
deemed to allow for substitution not just post-verdict, but
post-judgment (usually where necessary to facilitate enforcement of a
judgment). See, e.g., Negrón-Almeda v. Santiago, 579 F.3d 45, 52 (1st
Cir. 2009); Luxliner P.L. Exp., Co. v. RDI/Luxliner, Inc., 13 F.3d 69, 70
(3d Cir. 1993); Panther Pumps & Equip. Co., Inc. v. Hydrocraft, Inc., 566
F.2d 8, 23 (7th Cir. 1977); TFG–Indiana, L.P. v. Hanco, Inc., No. 2:12–
cv–00146 DN, 2014 WL 6473108, at *1 (D. Utah Nov. 18, 2014).
21We also reject Mackey Price, LLC’s suggestion that adding a
successor entity to a judgment under rules 21 and 25 runs afoul of
“due process.” Our opinion in Brigham Young University v. Tremco
Consultants, Inc., does suggest that the unnamed parties in that case
were “denied their requisite measure of due process of law when the
(continued . . .)
31
JONES v. MACKEY PRICE THOMPSON & OSTLER
Opinion of the Court
a successor entity to MPTO, we hold that Jones was not required to
initiate a new proceeding against Mackey Price, LLC by service of a
summons and complaint. Jones was entitled to seek substitution of
Mackey Price, LLC for MPTO under rules 21 and 25.
3. Default of Mackey Price, LLC
¶94 Our conclusion that rule 25 substitution is available in
post-verdict proceedings does not exhaust all of Mackey Price, LLC’s
challenges to the proceedings below. Mackey Price, LLC also claims
that it was entitled to be heard on the merits—on whether it was in
_____________________________________________________________
district court extended liability to them.” 2007 UT 17, ¶ 27, 156 P.3d
782. But Tremco nowhere held that the substitution of a successor
entity is a violation of the Due Process Clause of the Utah
Constitution. Quite the contrary. Our holding in Tremco was rooted
in the language and structure of our rules of civil procedure. See id.
¶ 29 (holding that a party “who pursue[s] civil actions in conformity
with the rules of civil procedure” is presumptively entitled “to
invoke the coercive power of the state to seize property or to
command a party to conform its conduct to the court’s decrees”).
The problem in Tremco was the plaintiff’s failure to pursue civil
litigation in conformance with our rules. While we made general
reference to the principle of “due process,” we never established any
freestanding constitutional right. Instead we held that “[o]ur rules of
civil procedure lend operational expression” to the “abstract”
promise of “due process” and are “‘designed to provide a pattern of
regularity of procedure which the parties and the courts [can] follow
and rely upon.’” Id. (second alteration in original) (citation omitted).
We reiterate those principles here. Mackey Price, LLC’s rights to
due process are given “operational expression” in our rules of civil
procedure. Those rights are adequately protected by the fair and
proper application of rules 21 and 25. And Mackey Price, LLC has
provided no basis for the establishment of a “due process” right that
provides greater protections than those established in our civil rules.
See Neese v. Utah Bd. of Pardons & Parole, 2017 UT 89, ¶ 100, 416 P.3d
663 (explaining that the content of “general, abstract” constitutional
principles like the Due Process Clause must be based on how the
founding generation would have understood those principles); In re
Discipline of Steffensen, 2016 UT 18, ¶ 7, 373 P.3d 186 (“[T]he Due
Process Clause is not a free-wheeling constitutional license for courts
to assure fairness on a case-by-case basis.”).
32
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Opinion of the Court
fact a successor entity to MPTO. On this point we agree, and reverse
and remand.
¶95 Because Mackey Price, LLC was not a party to the original
proceedings, the district court required Jones to serve the motion on
the LLC pursuant to rule 4. Jones did so. That was all the notice to
which Mackey Price, LLC was entitled. But the district court never
required that Jones demonstrate that Mackey Price, LLC was in fact a
successor in interest to MPTO. Instead, the district court considered
a memorandum submitted by Mackey Price, LLC and defaulted the
LLC on the ground that its memo challenged only “procedural
issues” that the district court found unavailing:
To the extent Mackey Price, LLC had disputed the
factual allegations for joinder, the Court was prepared
to schedule an evidentiary hearing to resolve the
disputes. But Mackey Price, LLC does not dispute the
factual allegations and, instead, focuses its opposition
entirely on procedural issues. The Court has now
resolved the procedural arguments against Mackey
Price, LLC. And because Mackey Price, LLC raised no
argument or opposition to the merits of the Motion,
there remains nothing to litigate. Accordingly, the
Court determines that Plaintiff is entitled to all relief
requested in the Motion.
¶96 This was error. Mackey Price, LLC was entitled to appear
specially and challenge the district court’s jurisdiction and then
argue the merits of the rule 25 motion if and when the district court
rejected its procedural challenge. Mackey Price, LLC was not
required to immediately address the merits of the rule 25 motion, as
the district court suggested, or to affirmatively request an
evidentiary hearing for disposition on the merits, as Jones suggests
on appeal. As a threshold matter of procedure, Mackey Price, LLC
had every right to make a special appearance and to challenge the
court’s jurisdiction. Once the district court rejected that challenge, it
should have given Mackey Price, LLC an opportunity to be heard on
the merits.22
_____________________________________________________________
22 In fairness to the district court, this procedure is not clearly set
forth in our rules or case law. We reverse nonetheless, however,
because the prescribed procedure reflects the threshold nature of the
(continued . . .)
33
JONES v. MACKEY PRICE THOMPSON & OSTLER
Opinion of the Court
¶97 The procedure for challenging the attachment of a non-party
as a successor in interest under rule 25 may thus find a parallel in
that for filing a rule 12(b) motion. When a party contests a court’s
jurisdiction under rule 12(b), it is not required to affirmatively
preserve the right to argue the merits of the underlying claim. It may
simply make its 12(b) argument, receive an adverse ruling from the
district court, and then contest the merits. This is the notion of a
special appearance that is baked into rule 12. See UTAH R. CIV. P.
12(a)(1) (“If the court denies the [Rule 12] motion . . . the responsive
pleading shall be served within 14 days after notice of the court’s
action.” (emphasis added)); see also id. 12(d) (“The defenses
specifically enumerated (1)-(7) in subdivision (b) of this rule,
whether made in a pleading or by motion . . . shall be heard and
determined before trial on application of any party, unless the court
orders that the hearings and determination thereof be deferred until
the trial.” (emphasis added)). And we believe that such a process is
appropriate in the context of a rule 25 substitution motion as well—a
point that our advisory committee may wish to take up in a
proposed amendment to this rule.
¶98 This principle should have governed here. Once the district
court determined that it had jurisdiction over Mackey Price, LLC, it
should have required Jones to show that Mackey Price, LLC was in
fact a successor in interest to MPTO. The district court should not
have taken Mackey Price, LLC’s silence during a special appearance
as a concession or endorsement of Jones’s position. We reverse and
remand for a resolution of Mackey Price, LLC’s status on the
merits—under procedures deemed appropriate by the district court
on remand.
IV. CONCLUSION
¶99 We reverse the dismissal of Jones’s fraudulent transfer and
punitive damages claims, the decision that a constructive trust was
categorically unavailable, and the default determination that Mackey
Price, LLC was a successor in interest to MPTO. But we affirm the
district court in all other respects and remand for further
proceedings consistent with this opinion.
_____________________________________________________________
jurisdictional inquiry and parallels how our civil rules handle
analogous procedural matters.
34
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871 F.2d 82
13 O.S.H. Cas.(BNA) 2125
Danny Lee LOCKETT, Appellee,v.INTERNATIONAL PAPER COMPANY, Appellant.
No. 88-2256.
United States Court of Appeals,Eighth Circuit.
Submitted Jan. 11, 1989.Decided March 28, 1989.
R.T. Beard, III, Little Rock, Ark., for appellant.
Winslow Drummond, Little Rock, Ark., for appellee.
Before LAY, Chief Judge, ARNOLD and BOWMAN, Circuit Judges.
LAY, Chief Judge.
1
Danny Lockett was injured on the job in August of 1985 while employed as a laborer by Papco Construction Company (Papco), a wholly-owned subsidiary of International Paper Company (IPC). IPC had contracted with Papco to do demolition work at its bleach plant in Pine Bluff, Arkansas. Lockett and a fellow employee, Dan White, were performing the initial phase of demolition of a cylindrical section of a bleach tower. The section measured approximately 18 feet in length and 14.5 feet in diameter and was lying on its side on the ground. The entire inside surface of the tower section was lined with tile and concrete. Lockett and White, taking turns in rotation with a jackhammer, were inside the felled tower section attempting to cut out a ridge in the tile along the bottom side. As Lockett was attempting to break the last section of tile loose the concrete and tile on the top side of this tower section collapsed and fell on him. Lockett sustained injuries as a result of this collapse, including amputation of the little and ring fingers and a portion of the palm of his left hand.
2
Lockett sued IPC for negligent safety supervision on the job site. The jury awarded him $300,000 in damages. IPC filed a motion for judgment notwithstanding the verdict or in the alternative for a new trial which the district court1 denied. IPC appeals.2
1. Negligence
3
IPC argues that the district court erred in failing to rule that Lockett, as a matter of law, was guilty of negligence equal to or greater than its own.3 IPC contends Lockett's conduct constituted what this court in Rini v. Oaklawn Jockey Club, 861 F.2d 502, 506-07 (8th Cir.1988), labeled Type 4 assumption of risk, i.e., "Implied Secondary Unreasonable Assumption of Risk." Specifically, IPC argues that Lockett voluntarily encountered a known risk in an unreasonable fashion.
4
Arkansas has, by statute, adopted comparative fault. Ark.Code Ann. Sec. 16-64-122 (1987). Where there is evidence of negligence on the part of both plaintiff and defendant, apportionment of fault under Arkansas' comparative fault statute becomes a matter solely within the province of the finder of fact. Scoville v. Missouri Pac. R.R., 458 F.2d 639, 647 (8th Cir.1972). See also Wasson v. Warren, 245 Ark. 719, 434 S.W.2d 51 (1968); Gookin v. Locke, 240 Ark. 1005, 405 S.W.2d 256 (1966). This court must examine the evidence in the light most favorable to the verdict holder and must sustain the jury verdict if there is any substantial evidence to support it. DeWitt v. Brown, 669 F.2d 516 (8th Cir.1982). Furthermore, even assuming arguendo that Lockett's conduct can be characterized as Type 4 assumption of risk, Rini clearly holds that an Arkansas plaintiff's conduct which amounts to Type 4 assumption of risk is no longer a complete bar to recovery, but rather is simply one element to be factored into the comparative fault analysis. Rini, 861 F.2d at 508.
5
As the district court found in reviewing the jury verdict on post-trial motions, there exists substantial evidence of both parties' negligence sufficient to submit the issue to the jury under the comparative fault statute. There is no evidence in the record to indicate that the jury disregarded its instructions on comparative negligence or that it failed to consider all of the evidence relating thereto. Any assessment of fault in this case was for the jury to make. The district court was therefore correct in refusing to assess fault as a matter of law.
2. Jury Instruction
6
In its second point on appeal, IPC contends that the district court erred in giving a damage instruction which allowed the jury to consider loss of ability to earn wages in the future. Timely objection was made by IPC to element five of this instruction which the district court overruled. IPC feels there was no evidence in the record to support the giving of such an instruction. We disagree.
7
The complete damage instruction given by the district court reads:
8
If you should find for Danny Lockett on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following six elements of damage sustained: First, the nature, extent, duration, and permanency of any injury; second, the reasonable expense of any necessary medical care, treatment, and services rendered; third, any pain and suffering and mental anguish experienced in the past and reasonably certain to be experienced in the future; fourth, the value of any earnings lost; fifth, the present value of any loss of ability to earn in the future; and sixth, any scars and disfigurement and visible results of his injury. Whether any of these six elements of damage has been proved by the evidence is for you to determine.
9
In Cates v. Brown, 278 Ark. 242, 645 S.W.2d 658 (1983), the Arkansas Supreme Court specifically addressed the issue of loss of earning capacity and the proof required to sustain such a claim. The Cates court stated:
10
Loss of earnings and loss of earning capacity are two separate elements of damage. * * * Briefly stated, damage resulting from loss of earning capacity is the loss of the ability to earn in the future. The impairment of the capacity to earn is the gravaman [sic] of the element. * * * Proof of this element does not require the same specificity or detail as does proof of loss of future wages. The reason is that a jury can observe the appearance of the plaintiff, his age and the nature of the injuries which will impair his capacity to earn. In addition, proof of specific pecuniary loss is not indispensable to recovery for this element.
11
Cates, 278 Ark. at 245, 645 S.W.2d at 660 (citations omitted).
12
Cates is dispositive of IPC's claim that insufficient evidence existed to support the giving of element five of the damage instruction. Lockett testified to the nature of his injuries and his age. This testimony provided the jury with the ability to personally observe plaintiff and the impact his injury will have on his future earning capacity. In addition, Lockett presented other evidence concerning the extent of his injury. IPC countered with its own evidence of the extent of the impairment to Lockett due to his injury. It was then for the jury to decide whether Lockett as a result of this permanent injury had sustained any loss of ability to earn in the future.
13
Finally, we note that the damage instruction specifically stated that whether any of the six enumerated elements of damage had been proven was for the jury to decide. It must be remembered that the jury was considering six potential forms of alleged damage for which compensation was sought. Sufficient evidence existed under the Cates standard to submit loss of ability to earn in the future as one of these forms of damage.
14
Accordingly, the judgment of the district court is affirmed.
1
The Honorable Bruce M. Van Sickle, Senior United States District Judge for the District of North Dakota, sitting by designation
2
Both sides waived oral argument. This recalls Justice Frankfurter's early statement that: "Every case worthy of an appeal is worthy of an argument." As this author stated several years ago, "[w]aiving the opportunity for oral argument, in my judgment, is advocacy at its poorest level." North Hills Bank v. Board of Gov. of Fed. Res. Sys., 506 F.2d 623, 626 (8th Cir.1974) (Lay, J., concurring). It cannot be stressed enough that oral argument at the appellate level is both meaningful and extremely helpful to the court
3
Appellee Lockett's brief is highly deficient in this regard; it fails to confront or discuss this issue. However, our reading of the record satisfies us that a jury issue existed as to the comparative fault of the respective parties. It is only on rare exception that the court can hold as a matter of law that one party's negligence is greater than that of another. To do so, when there exists conflicting evidence, usurps the role of the jury
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2015-KA-01839-SCT
KELVIN D. ASHFORD a/k/a KELVIN ASHFORD
a/k/a BOOMAN
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 10/27/2015
TRIAL JUDGE: HON. GERALD W. CHATHAM, SR.
TRIAL COURT ATTORNEYS: HELEN BAGWELL KELLY
RHONDA MASON AMIS
COURT FROM WHICH APPEALED: TATE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: JOHN KEITH PERRY, JR.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALICIA MARIE AINSWORTH
DISTRICT ATTORNEY: JOHN W. CHAMPION
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 06/08/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE RANDOLPH, P.J., KING AND BEAM, JJ.
RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:
¶1. Kelvin Ashford was indicted, tried, and found guilty by a Tate County jury on eight
counts of sexual battery and two counts of fondling. Aggrieved by the judgment of
conviction and resulting sentence, Ashford appeals. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. According to N.W.,1 her aunt, Marjorie Willie, had an on-again, off-again relationship
with Kelvin Ashford2 for N.W.’s entire life. N.W. and Marjorie were close, they saw each
other almost every day, and N.W. considered Ashford to be like an uncle. N.W. testified that
the first time anything happened between her and Ashford was in March or April of 2007,
when she was nine years old. Ashford lay in bed with N.W., but nothing happened that first
day. However, Ashford kept trying to touch N.W. For four to six months, she ran from him,
but eventually she got tired of running. Ashford began touching her inappropriately in her
private areas, and he did so for four to five years straight (from ages nine to fourteen).
¶3. In fifty pages of trial testimony, N.W. described in detail the sexual acts that Ashford
forced her to perform during the four-to-five-year span, including numerous acts of vaginal
intercourse, sodomy, fellatio, and cunnilingus.3 When asked how often these acts would take
place, N.W. replied that it depended on how often she went to her aunt’s house or how often
Ashford came to N.W.’s house. Some weeks, it was every day. Ashford regularly babysat
N.W. and her brother, along with Marjorie’s children, while Marjorie and N.W.’s mother
(Marionette4) were working.
1
Initials will be used in place of the child-victim’s full name. N.W. was seventeen
years old at the time of trial.
2
Ashford is often referred to throughout the record by his nickname, “Booman.”
3
Given the specific nature of this case and the age of the victim, suffice it to say that
we have thoroughly reviewed the record, which discloses that the jury heard evidence that
Ashford took liberties against this young lady encompassing multiple types of sexual abuse.
4
Marionette is often referred to throughout the record by her nickname, “Nikki.”
2
¶4. N.W. testified she did not tell anyone earlier because she did not want to experience
the stress of a trial again like she experienced when she was six.5 On May 7, 2012—when
N.W. was fourteen years old—she left a note for her mother on the refrigerator. The note
informed Marionette that the reason N.W. had been behaving badly was because what
happened to her a long time ago had happened again, and it started three years after the first
time. After leaving the note, N.W. finally told her mother that Ashford had been abusing her.
They went to the hospital, where N.W. tested positive for a sexually transmitted disease
(STD). N.W. testified that she was not otherwise sexually active at the time, so Ashford had
to be the person from whom she contracted the disease. N.W. then identified a statement she
had given previously to Detective Lisa Sanders, which was admitted into evidence without
objection after N.W. testified that the events were clearer in her mind at the time she wrote
the statement than they were at the time of trial. In the statement, N.W. claimed she was
sexually abused by Ashford more than one hundred times, that he had done “sexual thing[s]”
to her since she was nine years old. N.W. was asked if she was lying about Ashford because
she really caught the STD from her boyfriend. She said no, that she and her boyfriend were
not sexually active.
¶5. On cross-examination, defense counsel referenced the statement and asked N.W. what
she and Ashford had done “a hundred times,” to which N.W. again described multiple sexual
acts Ashford had committed against her or forced her to perform. N.W. described a time
when Ashford sexually assaulted her in the bed while Marjorie slept beside her. N.W. tried
5
N.W. had been molested by another individual when she was six years old.
3
to wake her aunt to no avail: “I bumped her and didn’t wake up, so. . . I patted her. She didn’t
wake up.” N.W. testified it was not uncommon for the children to sleep with Marjorie on
occasion. When asked where the various incidents took place, N.W. responded wherever and
whenever Ashford decided. She testified the last time Ashford did anything to her was two
to three months before she wrote the letter in May 2012. After the last incident, Ashford
began working with N.W.’s grandfather and was not at home as often. Finally, defense
counsel asked N.W. to describe Ashford’s penis. She did: “The top part of his penis has
a—a—I’d say a bump, mole on top of it. It has hair around it.” Defense counsel then
abandoned that line of questioning.
¶6. Marionette testified that she and Marjorie were close, that they saw each other
regularly. She identified Ashford as Marjorie’s long-time boyfriend who used to keep her
children, including N.W., every day. She testified that after she read the note from N.W., she
took her to the hospital where she was diagnosed with trichomoniasis, an STD. When
Marionette informed Ashford about the allegations, he denied being with N.W. Marionette
testified that she saw Ashford almost every day, that sometimes he stayed with her when he
was angry with Marjorie. He also sometimes stayed with his mother or with another woman.
¶7. The State then called Detective Lisa Sanders, who testified that, when she arrived at
the hospital while N.W. was getting tested, Marionette was on the phone with Ashford.
Sanders had Marionette put Ashford on speaker phone while Sanders prompted Marionette
on what to say. After repeatedly denying ever being with N.W., Ashford stated he would help
take care of the baby if N.W. was pregnant, “just out of kindness.” Sanders testified he even
4
agreed to pay for an abortion. Ashford said he would submit to a DNA test but did not want
the police involved. Four days later, Ashford went to the police station and, after signing an
acknowledgment of rights form, gave a videorecorded statement to Sanders.6 In the video,
Ashford stated he had been with Marjorie off-and-on for about fourteen years. He denied
doing anything sexual with N.W., stating she never even walked in on him while he was in
the bathroom or getting dressed. When told about N.W. having an STD, Ashford said he was
supposed to get tested too as part of the hiring process at North Oak Hospital where he was
trying to get a job. Sanders identified Exhibit 2 as the statement she took from N.W. She also
testified that she had checked, and STD testing was not part of the hiring process at the
hospital—that they check for only drugs and narcotics. On cross-examination, Sanders
admitted that she had never asked Ashford to submit to any DNA or STD testing.
¶8. Next, the State called Dr. Olufemi Adeleye—the physician who treated N.W. at the
hospital—as an expert regarding the examination, bloodwork, and results. On May 7, 2012,
N.W.’s chief complaint was a vaginal discharge. She told the doctor she was molested two
to three months back, that she was fourteen, and that she had been molested since age nine.
Dr. Adeleye diagnosed N.W. with trichomoniasis, a disease that is spread only through sexual
intercourse. He testified that trichomoniasis is treated with a single dose of medication,
which is how N.W. was treated. According to Dr. Adeleye’s testimony, one dose cures the
patient. On cross-examination, Dr. Adeleye testified that he had never tested or treated
Ashford for an STD, but that he could have been treated elsewhere.
6
The video was admitted into evidence without objection as Exhibit 5 and was played
to the jury.
5
¶9. Marjorie testified that she had dated Ashford off-and-on for ten to fifteen years and
that he lived with her during that time. She testified that N.W. came to her house often, that
she sometimes spent the night, and that she sometimes slept in the bed with Marjorie and
Ashford. Marjorie stated she is a heavy sleeper and that it would be hard to wake her. She
testified that in May 2012, she and Ashford were not having a sexual relationship “because
of his infidelities.” When Marjorie told Ashford by phone about N.W.’s allegations, he was
not home. He said he would come by but he never returned. He left all of his belongings in
Marjorie’s house. According to Marjorie, Ashford did not work during the time he and she
were together until the last six months, when he started working with her father. When asked
if she felt like she needed to get tested after the allegations came out, Marjorie said, “No . .
. because me and Kelvin Ashford wasn’t sexually active; so why should I get tested?” On
cross-exaination, Marjorie stated she and Ashford began having a sexual relationship when
she was seventeen (sometime in 1998), but that he did not begin staying with her until 2008.
She again stated that Ashford did not have a job between 2008 and 2012. If Ashford worked
for hospice during the times he would visit his grandfather, Marjorie stated she did not know
it. Marjorie also confirmed she knew Ashford was seeing other women during the time they
were together. She also testified that it was not uncommon for N.W. to stay with her every
night of the week during 2008-2010. Finally, Marjorie testified that the last time she had sex
with Ashford was the middle of April 2012, two to three weeks before the allegations came
out, and that she did not get tested for STDs. On redirect, Marjorie stated there were times
when Ashford stayed with another woman or with his father, but that it was only a couple of
6
periods of four-to-five-days’ duration. Marjorie did not find it impossible that Ashford had
sexually assaulted N.W. with Marjorie asleep in the bed because there were times when all
three of them were in the bed and Marjorie is a heavy sleeper.
¶10. Sonya Graham, the chief executive officer of North Oak Hospital, testified that there
was no record of Ashford applying for a job at the hospital and that STD testing is not part
of the hiring process. The hospital tests potential employees only for tuberculosis, rubella,
and drugs. On cross-examination, she agreed with defense counsel that Ashford may have
gotten an application and just never turned it in, to explain the lack of record.
¶11. N.W.’s other aunt, Jessica Willie, testified that Ashford and Marjorie started living
together in either 2008 or 2009. She stated anytime her family got together for a function,
Ashford was always there. According to her, Ashford did not work, so he stayed home
cooking, cleaning, and taking care of all the children. Jessica described a time when she
walked in on N.W. and Ashford laying in the bed in a “spooning” position, but on top of the
covers, with space between and wearing clothes. She told Marionette and Marjorie about the
incident, but they told her to leave it alone, that they did not think anything was going on.
¶12. N.W.’s grandfather, Willie Willie, testified that when Marjorie was dating Ashford,
he saw Ashford nearly every day. Willie stated Jessica also told him about the incident in the
bed, but that he disregarded it as well because Jessica “likes to keep confusing and deviling
going.”7 Willie got Ashford a job in 2012 with a mowing service. Ashford never returned to
7
Marionette likewise had testified earlier that Jessica “like[s] to keep up messing; so
we didn’t believe her.” She confirmed that “keep up messing” meant “trying to stir
something up.”
7
work after May 7, 2012. Willie admitted on cross-examination that he had made several
statements that could been seen as death threats toward Ashford to explain why he never
retrieved his belongings or returned to work. Willie also testified that Ashford moved in with
Marjorie three to four years before the allegations came out in 2012.
¶13. At this point, the State rested. The defense moved for a directed verdict, arguing the
State had failed to meet its burden of proof. That motion was overruled.
¶14. The defense’s first witness was Ruby Tate, Ashford’s mother. She testified that
Ashford had stayed with her in 2007 and that all his belongings were at her house. Ashford
had stayed with her the first four-to-six months of 2008 because she had been recovering
from a heart attack. In June 2009, Ashford began staying with his grandfather some because
his grandfather had Parkinson’s and Alzheimer’s Diseases, but he continued his residence
at Ruby’s. According to Ruby, Ashford dated Shirley Mabrey for two years beginning in
2007. He then dated Tina Gardner off and on for about two years. Ruby first heard Marjorie’s
name in 2009 or 2010 when Ashford began spending the night at Marjorie’s. Ruby testified
Ashford stayed with another girlfriend, a different Tina, from 2010 to 2012. Ruby was asked
if Ashford worked between 2007 and 2012. She responded that he worked for hospice and
a lawn service. But she testified he worked for hospice for only about six months. While he
was working with hospice, he stayed with his grandfather during the day and returned to
Ruby’s at night “every day.” She testified he worked in lawn service during the summers of
2010 and 2011.
8
¶15. Next, Ashford’s aunt, Gail Hawkins, testified that from sometime in 2007 to sometime
in 2008, Ashford was in and out, helping take care of her father, who suffered from
Parkinson’s and Alzheimer’s. Ashford sometimes sat with him during the day, sometimes
at night, just whenever he was needed. Gail testified that most nights, Ashford stayed with
her helping take care of her father. During the day he was “in and out, back and forth.” Gail
stated she had seen Marjorie, Kelvin, and the children together at Walmart on occasion, but
that to her knowledge, he had continued living with Ruby.
¶16. Ashford’s sister, Crystal Burton, testified he dated Mabrey until 2008, followed by
Tina Gardner and Tina Draper. She said he dated Marjorie as well, but that it was just an
“occasional relationship.” He dated Gardner for two years and then dated Draper and
Marjorie at the same time. According to Crystal, Ashford worked with hospice in 2007
keeping their grandfather and at some point worked in construction with Tony Jones. Crystal
said she knew the Willies very well, that the children called her Aunt Crystal, but that
Ashford never had stayed with Marjorie. Crystal testified that Marjorie had told her Marjorie
was going to get tested for STDs. According to Crystal, Marjorie had told her that she went
to the health department and “didn’t have anything.” On cross-examination, Crystal stated
she never told law enforcement officials about Marjorie saying she had tested negative for
STDs because no one had asked. However, she claimed she told defense counsel back in
2012 when Ashford first sought representation.
¶17. The defense then called Tina Draper, who testified that she had dated Ashford from
April 2010 to August 2012. During that time, Ashford typically stayed with Ruby during the
9
week and with Draper on the weekends. Occasionally, Draper would pick up Ashford at
Marjorie’s house. Draper testified that she and Ashford were sexually active during that time
but that she never had an STD and never knew Ashford to have one. During the time they
dated, Draper knew Ashford worked for a lawn service. Draper testified she sometimes
picked up Ashford at Marjorie’s because he kept the children there. Draper said she was
sexually active only with Ashford and that she tested negative for STDs in July 2012.
¶18. Finally, Ashford testified in his own defense. According to Ashford, he was living
with Ruby in 2007 until late 2010 when he began living with Draper. He denied ever staying
continuously with Marjorie. However, he admitted to staying at Marjorie’s during the week
in 2011 and 2012 because it was closer and more convenient for him to get to work from
Marjorie’s. During that time, he was working seasonally for the lawn service. Ashford
testified that on May 7, 2012, he had gone with one of Marionette’s relatives to get an
application at North Oaks Hospital. While there, Marionette called the relative to pick up
N.W. from school. The relative left the hospital, picked up N.W. at school, and came back
to the hospital to get Ashford. Ashford took the application with him and was dropped off
at Marjorie’s. A friend picked him up and he left. He was gone when he got the call from
Marjorie about N.W.’s allegations. Ashford stayed in Tunica until Crystal told him Detective
Sanders wanted to talk to him. He went to the police station and gave a recorded statement.
According to Ashford, in the early 2000s, he was working for Metro Foods. Then he went
to Lucite International as a forklift operator. After that, he worked in construction for Tony
Jones before taking a job at Walmart in Batesville, where he worked in loss-prevention
10
before being promoted to service manager of the tire and lube express. However, he later
testified that, at the time of his arrest on December 19, 2012, he was working at Tri-Lakes
Hospital. When he got out on bond, he went to work at Walmart, first in the garden center,
then in loss-prevention, and finally as tire and lube service manager.
¶19. Ashford denied having any sexual or inappropriate contact with N.W. He stated
Marjorie was easy to wake up. He denied ever sleeping in the same bed with N.W.,
regardless of whether Marjorie was present or not. He stated he saw N.W. only on holidays,
birthdays, and other special occasions. He denied ever having an STD. Ashford testified he
never spent any time in 2007, 2008, or 2009 with Marjorie. In 2010, he and Marjorie started
talking. Though he was still seeing and staying with Draper, he started going to Marjorie’s
during the week to be closer to work. According to Ashford, he never volunteered to keep
any of the children and was never alone with N.W. However, he did admit to taking
Marionette and her children to Le Bonheur and driving back with just N.W. in the car. This
occurred in either January or February of 2012, when N.W. was fourteen years old. He
denied trying to mess with or touch her in any way or that they were having sex going down
the road. On cross-examination, Ashford denied ever being alone with N.W. He admitted that
N.W. had spent the night at Marjorie’s with Ashford present. He reasserted that he did not
see Marjorie until 2010 and that, even then, they were simply “sex partners.” He testified he
started working for the seasonal lawn service in 2011 and worked in construction as needed
for Tony Jones before that. Ashford denied ever agreeing to pay for an abortion but admitted
to agreeing to help “in any way possible.”
11
¶20. After Ashford’s testimony, the defense rested. Following deliberations, the jury found
Ashford guilty on all counts.8 Ashford then filed a motion on April 28, 2015, for judgment
notwithstanding the verdict (JNOV) as to count three or in the alternative, a motion for new
trial. In the motion, Ashford alleged that the verdict was not supported by evidence, that it
was contrary to the weight of the evidence, and that he had newly discovered evidence that
would produce a different result at a new trial. Ashford alleged that, following trial, N.W.
posted on Facebook that she had been forced to lie. Two days later, he filed a motion
requesting a subpoena duces tecum directed to Facebook to produce Facebook pages
belonging to N.W., Marionette, Marjorie, and Jessica.
¶21. A hearing was held on June 10, 2015, regarding the post-trial motions. At that first
post-trial hearing, the trial court granted the motion for a subpoena duces tecum and held the
motion for JNOV or new trial in abeyance per Ashford’s request. At that hearing, Ashford
offered a post he attributed to N.W. “wherein she recants her testimony and says that she was
lying.” Ashford also claimed to have text messages from Jessica describing a scheme to have
him convicted for leaving Marjorie for another woman. According to Ashford’s counsel, the
Facebook post was provided by some third party to Ashford’s wife, who was hospitalized in
Tennessee and unable to attend the hearing. The State countered that if questioned, N.W.
would deny making the post alluded to by Ashford. In regard to the subpoena requested, the
State requested that the subpoena be expanded to include Crystal’s Facebook page, for
Crystal had acknowledged the existence of fake profiles to create drama between the
8
Each count described specific acts of sexual battery and fondling at specific
ages—the details of which are not necessary to relate in this opinion.
12
families. That request also was granted. The court granted the subpoena duces tecum in the
interest of justice so the evidence could be “properly explored and given whatever value it
ought to be given.” The subpoena was issued on July 7, 2015.
¶22. Facebook responded to the subpoena duces tecum by letter dated July 16, 2015,
informing defense counsel that the Stored Communications Act9 exempted it from state
subpoena powers. In the same correspondence, Facebook informed her of two alternative
means of retrieving the information sought: (1) subpoena the information directly from the
individual users or (2) work with the prosecutor to secure a search warrant. Ashford chose
to issue subpoenas directly to Marjorie, Jessica, Marionette, and N.W. The trial court granted
that request on October 7, 2015. The respondents were to produce the requested pages to the
court on October 16, 2015.
¶23. At the October 16 hearing, Ashford’s counsel acknowledged receipt of the
information requested in the motion for subpoenas duces tecum from everyone except N.W.
The State informed the court that N.W.’s Facebook pages had been placed in the court file.
When those pages could not be found in the court file, the State provided Ashford a printout
of N.W.’s Facebook page that Detective Sanders had obtained voluntarily from N.W. after
Ashford filed his first motion for JNOV or new trial on April 28, 2015. The State had N.W.
review the pages produced by Detective Sanders to determine if they were identical to those
N.W. had brought to the court that day and that N.W. would testify that they were identical.
Defense counsel took issue with those pages. The court specifically asked N.W. if she had
9
18 U.S.C. § 2701, et seq.
13
brought her pages to court that day. She said she did, and she had given them either to
Sanders or to the prosecutor. The court then inquired of the prosecutor what she had done
with N.W.’s pages. She replied that she had furnished N.W.’s pages to the sheriff at
Ashford’s counsel’s request. Ashford’s counsel confirmed the State’s version of events.
¶24. No further action was taken that day other than setting Ashford’s sentencing hearing
for October 27—eleven days later. The court unequivocally stated that the 27th was for
sentencing only and imposed an October 20 deadline for filing any other matters. No other
motions or matters were brought to the court’s attention by the October 20 deadline.
¶25. On the 27th, the court opened the hearing by stating,
The last time we were here, which I believe was October 16, the court
announced that all discovery or any other matters pertaining to this case would
be brought on or before the 20th. Nothing’s been brought to my attention by
the 20th, so the court is ready for sentencing.
The State announced ready. Ashford’s counsel responded to the court that she had filed a
motion to withdraw on the 21st (after the 20th deadline) because a dispute had arisen
between her and Ashford on that date and that Ashford was unwilling to take her advice any
longer. Particularly, counsel stated that had she known that the situation would arise, she
would have filed it on the 20th, “but it didn’t arise before the 21st.” The court denied the
motion to withdraw and instructed the State to proceed:
[The State]: I didn’t know if [defense counsel] was going to go through her
post-trial motions first, Your Honor.
The Court: I announced the other day that we would have sentencing today.
[The State]: Yes, sir.
14
The Court: That’s all I’m going to hear today is sentencing. I’m not going
to hear post-trial motions. I’m not going to hear any other
motions. I’m not going to hear anything but sentencing.
[The State]: Yes, sir.
The Court: I set a date. I meant what I said last time. All right.
[The State]: Will the Court entertain witnesses, Your Honor, or just
argument?
The Court: I’ll allow witnesses if it pertains to sentencing.
¶26. The State called N.W., who testified her trial testimony was true, that she had not
recanted her trial testimony, and that she had not posted anything on Facebook about lying
during trial. When questioned regarding the impact of Ashford’s crimes on her as the victim,
she explained to the court that she was being ridiculed at school, that she feared men, and
that she felt “worthless” as a result of what Ashford had done to her. She requested he
receive the maximum penalty. On cross-examination, N.W. identified Facebook printouts
without the alleged recantation as her pages, and denied posting what Ashford claimed she
had.10 N.W. further maintained that Ashford did not work when he was seeing Marjorie in
2007. On cross-examination, defense counsel had her review a document purportedly
10
The post at issue allegedly read:
I don’t care what happen to me. I hate this other person inside of me. I am
tired of all the nightmares an no sleep because I were made to lie. I am mad
at jessica for posting stuff. This is not about me it about her. No one listen. I
didnt want to go to court and lie on booman. I was happy it got thrown out at
first because I didnt want people talking about me.Jessica fault. I just want
some peace. Yall are the one who make me want to hurt myself. I ask jessica
to take it down but she wont
Sentencing Exhibit 2 (errors in original).
15
showing that Ashford had worked for or through Select Staffing from December 6, 2006, to
January 7, 2008.11 On redirect, the State presented N.W. with printouts containing the same
text identified in footnote 10 but with different pictures and different picture locations. N.W.
agreed that, while she was the person in the pictures, those printouts were not from her
Facebook page. She testified she had seen three other accounts purporting to be hers, but she
did not create or post any of them. N.W. also pointed out that when she typed a person’s
name in Facebook that she was friends with, Facebook would automatically bold that
person’s name. N.W. stated she was friends with Jessica on Facebook. However, in the
disputed posts containing the text identified in footnote 10, Jessica’s name was not bolded.
¶27. Marionette testified that at some point, she received a phone call from someone
identifying herself as Amanda Bailey, claiming to be from the district attorney’s office, and
requesting N.W.’s Facebook information, age, and teachers’ names. She claimed she did not
know an Amanda Bailey, did not know if she worked at the district attorney’s office, and did
not check to see if she worked there.12 With that, the State rested.
¶28. Ashford countered with his sister, Crystal Burton. Crystal testified that Ashford had
resided with Marjorie off-and-on, but she did not know the actual length of time. She also
stated Ashford worked off-and-on at Walmart, doing landscaping, and with Tony Jones. She
did not recall him being with Select Staffing. While he worked with hospice with their
11
The State objected based on relevance and was overruled. Then the State objected
based on authenticity, which went unanswered. The document was not entered into evidence
and is not in the record.
12
Marionette did not say whether she gave the person N.W.’s information.
16
grandfather, he was staying some with the grandfather, some with Ruby, and some with
Marjorie. She then testified to seeing the contested recantation post on Facebook. She also
stated that an envelope was left on her car two days after trial containing an anonymous note
which described a scheme to get Ashford convicted because he was cheating on Marjorie.
Also contained in the envelope was a photocopy of a phone open to text messages implying
that Ashford may be innocent “but no one will ever know.” The messages also stated “[t]hat
mf playboy won’t hurt my sis again.” Crystal believed the phone number the messages came
from belonged to Jessica because the number matched the one Jessica posted as her phone
number on Facebook.
¶29. Crystal testified she gave the packet to defense counsel two days after receiving it, but
that she had no idea where it came from or whose phone was depicted in the photocopy. She
stated she took the documents to Detective Sanders the week before the sentencing hearing
to try and get them fingerprinted. According to Crystal, defense counsel was supposed to be
trying to get the phone records from the number in the photos. On cross-examination, it was
pointed out that there were no reply messages in the text chain. Crystal stated she believed
the person who owned the phone had deleted their messages before copying. Crystal admitted
to posting on Facebook an acknowledgment that someone had created a fake profile “to keep
up drama.” Again, Ashford’s wife allegedly was ill and unavailable to testify as to how she
first acquired the contested recantation post.
¶30. Just before defense counsel began to redirect Crystal, the court interjected:
Y’all would do me a great service if y’all would get off all this Facebook stuff.
I don’t know what good it’s doing. This is not a motion for a new trial. This
17
is not a motion to set aside a verdict. I don’t know where we’re going with all
this, but y’all would service me greatly if you would go on and get off this
Facebook.
The defense rested.
¶31. The trial court sentenced Ashford to twenty years each on counts one through four
and six through nine, and five years each on counts five and ten. The sentence for count five
was to run consecutively to count one. All other sentences ran concurrently. The court denied
Ashford’s post-trial motions. Subsequently, by agreed order, Ashford received substituted
trial counsel, who also filed a new motion for JNOV or, in the alternative, motion for new
trial. That motion likewise was denied. Ashford appealed.
ISSUES
¶32. Ashford raises the following issues on appeal, which have been restated for clarity:
I. Whether the trial court erred in its consideration of the evidence
Ashford sought to present during post-trial hearings.
II. Whether the evidence presented at trial was sufficient to support the
verdict.
III. Whether the verdict was against the overwhelming weight of the
evidence.
IV. Whether Ashford received ineffective assistance of counsel.
ANALYSIS
I. Whether the trial court erred in its consideration of the evidence
Ashford sought to present during post-trial hearings.
¶33. We review a trial court’s denial of a motion for new trial based on newly discovered
evidence for an abuse of discretion. Moore v. State, 508 So. 2d 666, 668-69 (Miss. 1987).
18
If perjury was committed, the defendant will be entitled to a new trial only if
four factors are met. First, it must appear that the perjured testimony will
probably change the result if a new trial is granted. Second, the perjury must
have been discovered after the trial. Third, the perjury must not have been
discoverable before the trial by the exercise of due diligence. Fourth, the
perjury must be on an issue that is material to the case and not be merely
cumulative or impeaching.
Brown v. State, 890 So. 2d 901, 917 (Miss. 2004).
¶34. Ashford argues the trial court abused its discretion when it failed to consider evidence
that N.W. committed perjury and takes issue with the language used by the trial court in its
order. Specifically, the order reads as follows:
This day this matter came on for hearing upon the Defendant’s Motion for
J.N.O.V. or, in the Alternative, Motion for New Trial in the above styled and
numbered cause; and the Court, after hearing argument of counsel, and being
fully advised in the premises, is of the opinion that said motion is not well
taken and should be overruled.
Ashford argues that, because defense counsel was cut off from presenting further Facebook
evidence during the sentencing hearing, the trial court did not in fact hear argument of
counsel and was not fully advised in the premises. According to Ashford, the trial court
denied his motion based on a partial presentation of the evidence and thus abused its
discretion.
¶35. We find the trial court based its ruling on the evidence received throughout the
proceedings, up to and including all filings and argument presented to the court on or before
the October 20, 2015, deadline. The court was explicit that the hearing on October 27 was
a sentencing hearing. The court gave the parties until October 20 to file any additional
motions or bring any other matters to the court’s attention. Furthermore, defense counsel’s
19
statement that she would have presented her motion to withdraw by the twentieth had the
issue arisen in time further evidences her understanding that all nonsentencing matters were
due on or before October 20, 2015. At the hearing on the twenty-seventh, the court again
made clear that it was there for sentencing and sentencing only. The court gave counsel for
both sides considerable leeway when they began introducing evidence of Facebook and
alleged recantation. In time, however, the court reminded the attorneys that they were not
there arguing a motion for a new trial or to set aside the verdict and that it did not see how
the Facebook evidence was relevant to sentencing.
¶36. Prior to October 20, the trial court had been provided a copy of the alleged recantation
post and a copy of Marjorie’s, Jessica’s, Marionette’s, and N.W.’s Facebook pages.13 At the
prior hearing on June 10, the court had been informed that N.W. would deny making the
alleged recantation statement and that Crystal, Ashford’s sister, had knowledge of fake
Facebook pages being created to “continue an ongoing drama between these two families.”
¶37. Throughout these proceedings, the court was informed that N.W. had denied creating
the posts averred by Ashford to be the basis for his motion for a new trial. Thus, the trial
court did not err in denying Ashford’s motion for a new trial based on newly discovered
evidence. Whether based on the information before the court by the October 20 deadline, or
including that which was developed at the October 27 sentencing hearing (there being no
substantive difference), Ashford never established any newly discovered evidence. We
cannot say that the result would be different if a new trial were granted. See Brown, 890 So.
13
The subpoenas directed the pages to be delivered to the trial court. The court was
in possession of the pages at the post-trial-motion hearing on October 16.
20
2d at 917; see also Howell v. State, 989 So. 2d 372, 384 (Miss. 2008) (“As a general rule,
recanted testimony is exceedingly unreliable, and is regarded with suspicion; and it is the
right and duty of the court to deny a new trial where it is not satisfied that such testimony is
true.”). Here, no recanted testimony was established.
¶38. As to Ashford’s argument that the trial court had erred in enforcing the October 20
deadline, this Court affirmed a trial court’s ability and authority to enforce known deadlines:
“It may be that people will miss fewer trains if they know the engineer will leave without
them rather than delay even a few seconds. . . . At some point the train must leave.” Bowie
v. Montfort Jones Mem’l Hosp., 861 So. 2d 1037, 1042 (Miss. 2003) (quoting Guaranty
Nat’l Ins. Co. v. Pittman, 501 So. 2d 377, 388-89 (Miss. 1987)). While the Court was
addressing enforcement of scheduling orders, the language is aptly suited to the case at bar.
II. Whether the evidence presented at trial was sufficient to support the
verdict.
¶39. We review challenges to the legal sufficiency of the evidence de novo. Brooks v.
State, 203 So. 3d 1134, 1137 (Miss. 2016). “[T]he relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Id.
¶40. Ashford argues the State failed to prove that he penetrated N.W.’s vagina as charged
in counts one and six. As to counts seven through ten, he argues the State failed to prove he
fondled or sexually battered N.W. while she was fourteen years old. And regarding count
nine, Ashford further argues the State failed to prove he had performed oral sex on N.W.
21
¶41. Slight penetration of the vulva or labia is sufficient to constitute penetration. Bateman
v. State, 125 So. 3d 616, 623 (Miss. 2013). The jury received evidence detailing the sexual
acts Ashford committed against N.W. or forced her to perform. Her testimony was supported
by her prior statement to Detective Sanders, which was admitted into evidence without
objection. The record contains more than sufficient evidence to dispel the defendant’s
argument and supports his convictions. In addition to her description of the sexual acts, N.W.
stated the last time she and Ashford had sexual contact was two to three months prior to her
May 7, 2012, statement. As further evidence of vaginal penetration, N.W. was diagnosed
with an STD that caused her to have a vaginal discharge. She testified the only person with
whom she was sexually active was Ashford. Dr. Adeleye testified the STD could be
transferred only through sexual intercourse.
¶42. N.W. testified Ashford first started touching and sexually abusing her when she was
nine years old, and that the abuse had continued for four to five years straight, from ages nine
to fourteen. She said he had touched her with his hand and his penis, and that he had kissed
her vagina. In her statement, N.W. indicated the last time she and Ashford were sexually
active was two to three months prior to May 2012, which would have occurred during a time
when N.W. was fourteen years old.14 In addition to testifying that the acts occurred
continuously from the time she was nine to fourteen years old, she also stated she and
Ashford had had some sexual contact together more than a hundred times. N.W. alleged she
14
N.W. turned fourteen on January 20, 2012.
22
and Ashford had some sexual contact in a car going down the road. And Ashford admitted
to being in the car alone with N.W. in either January or February of 2012.
¶43. We find that, viewing the evidence in the light most favorable to the verdict, the
verdict was supported by substantial evidence.
III. Whether the verdict was against the overwhelming weight of the
evidence.
¶44. We review the denial of a motion for a new trial based on an objection to the weight
of the evidence for an abuse of discretion and “will only disturb a verdict when it is so
contrary to the overwhelming weight of the evidence that to allow it to stand would sanction
an unconscionable injustice.” Kirk v. State, 160 So. 3d 685, 697 (Miss. 2015).
¶45. Ashford argues N.W.’s version of events was simply incredible. For one, he asserts
it cannot be believed that he had sex with N.W. while Marjorie and two other children were
in the bed with them, nor that he sexually assaulted her in every room of the house while
people were present. Second, he finds it preposterous that he committed sexual acts against
N.W. every single day from 2007 through March or April of 2012. He also argues N.W.’s
testimony that he did not work was contradicted by his trial witnesses. Finally, he argues the
fact that Marjorie and Draper did not contract an STD from him belies N.W.’s allegations.
¶46. Ashford mischaracterizes N.W.’s testimony. When describing the incident in which
Ashford sexually assaulted N.W. while Marjorie also was in the bed, N.W. never said any
other people were in the bed with them. She did say that, on occasion, the other children slept
in the bed with Marjorie as well. Marjorie confirmed that sometimes the other children slept
with her, and that there were times when she, N.W., and Ashford slept in the bed together.
23
While Ashford testified Marjorie was easy to awaken, both N.W. and Marjorie testified she
was a heavy sleeper. N.W. said she patted and bumped Marjorie but she did not wake up.
Marjorie stated she would be hard to wake up. According to N.W.’s testimony, sometimes
there were people in other parts of the house while Ashford was sexually abusing her;
sometimes it was just the two of them. But when people were present, they were in other
parts of the house or outside playing.
¶47. Nor do we understand N.W.’s testimony to be that Ashford abused her every single
day. She stated he committed sexual acts against her more than a hundred times—
considerably less than every day for four to five years. We read N.W.’s testimony to be that
Ashford committed the acts every chance he had—when he was around N.W. and when the
opportunity presented itself. As to his work history, all agreed that Ashford worked for a
seasonal lawn service in 2011 and 2012. Ashford’s witnesses testified he worked in hospice
for about six months in 2008, but even his own mother remembered him working for hospice
and the lawn service only between 2007 and 2012.
¶48. Crystal, Ashford’s sister, said that Marjorie said she had gotten tested and was
negative. However, Marjorie testified that she never got tested. Draper did not testify as to
the last time she and Ashford had sex but stated she got tested in July 2012. Dr. Adeleye
testified that the STD could be treated and cured with a single dose of medication. Though
Adeleye did not treat Ashford, he testified he easily could have been treated elsewhere.
¶49. The crux of Ashford’s weight-of-the-evidence argument hinges on witness credibility.
“This Court has also held that it is in the province of the jury to determine the credibility of
24
witnesses. Any questions regarding the weight and worth of witness testimony or witness
credibility are for the jury to resolve.” Williams v. State, 757 So. 2d 953, 957 (Miss. 1999)
(internal citations omitted). Viewed in the light most favorable to the verdict, the evidence
does not preponderate so heavily against the verdict that to allow it to stand would sanction
an unconscionable result.
IV. Whether Ashford received ineffective assistance of counsel.
¶50. To succeed on an ineffective-assistance-of-counsel claim, the defendant must show
that (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his
defense. Pucket v. State, 879 So. 2d 920, 935 (Miss. 2004) (citing Strickland v. Washington,
466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). “There is a strong but
rebuttable presumption that trial counsel was competent and performed within the wide range
of reasonable conduct expected from counsel.” Wilson v. State, 194 So. 3d 855, 862 (Miss.
2016). The burden is on the petitioner to rebut the presumption by showing that counsel’s
performance did not meet the constitutional standard established in Strickland. Id.
¶51. Ashford alleges his trial counsel provided ineffective assistance by (1) failing to
investigate newly discovered evidence after trial, (2) failing to present testimony of
Ashford’s work history during trial, (3) failing to present evidence on post-trial motions by
the October 20 deadline, and (4) eliciting damaging testimony on N.W.’s cross-examination.
Ashford argues defense counsel’s failure to obtain search warrants to get posts from
Facebook and the phone records of the phone number that purportedly sent text messages
concerning a scheme to get Ashford convicted was constitutionally deficient performance.
25
According to Ashford, counsel’s decision “prejudicially affected the outcome of his post-trial
motions as a whole, by wholly eliminating his opportunity to present possibly exculpatory
evidence.”
¶52. These claims are without merit. Ashford claims the text messages came from Jessica.
At the sentencing hearing, Crystal testified she knew the number was Jessica’s because it
matched her phone number on Facebook. There was no evidence or testimony to the
contrary. At the same time, trial testimony established that Jessica had a reputation for
causing drama and stirring up trouble. As for counsel’s failure to secure a search warrant for
Facebook, Facebook’s counsel informed defense counsel that she could either secure a search
warrant for the corporate office or subpoena the records from the individual users. Defense
counsel chose the latter option. Facebook provided Ashford’s counsel with two options to
obtain the information. She chose one of those options. We find counsel’s decision did not
amount to deficient performance, nor has Ashford shown the prejudice required by
Strickland.
¶53. Ashford argues defense counsel should have presented the Select Staffing documents
during trial instead of waiting until the sentencing hearing. Had the documents of which
Ashford now complains been admitted into evidence, they offer no probative or relevant
information which would exonerate him from the crimes for which he was convicted. Other
testimony reveals large gaps of undisputed, long-term unemployment. Counsel’s failure to
present the Select Staffing documents during trial does not establish ineffective assistance.
26
¶54. To the extent Ashford argues counsel’s failure to present additional evidence to the
trial court by the October 20, 2015, deadline was ineffective assistance, neither the deficient-
performance nor the prejudice prong has been satisfied. As discussed in Issue I, N.W. denied
posting a recantation. Furthermore, the State presented evidence that fake profiles of N.W.
existed. Ashford failed to offer “newly discovered evidence” sufficient to warrant the
granting of a new trial. He offered no substantive evidence to support a claim of newly
discovered evidence. The trial court conducted three separate post-trial
hearings—culminating in a sentencing hearing. At the first hearing, defense counsel and the
trial court had been informed that N.W. would deny making the post in which she allegedly
recanted her trial testimony. N.W. was available to testify to that effect.15 Thus, defense
counsel knew that the post would, at best, serve only to contest N.W.’s testimony. At the
second hearing, not only were N.W.’s original Facebook pages provided to Ashford by the
State through Detective Sanders, Ashford also received Facebook pages from Jessica,
Marionette, and Marjorie. The court gave Ashford an additional four days to review the
documents and to file any additional motions. We find defense counsel’s decision not to
continue pursuing a new trial based on a disputed recantation post—soundly denied by the
alleged recanter—does not amount to ineffective assistance of counsel. See Liddell v. State,
7 So. 3d 217, 219-20 (Miss. 2009) (“In considering a claim of ineffective assistance of
counsel, an appellate court must strongly presume that counsel’s conduct falls within a wide
15
At the sentencing hearing, N.W. testified that she did not create the post.
27
range of reasonable professional assistance, and the challenged act or omission might be
considered sound trial strategy. In other words, defense counsel is presumed competent.”).
¶55. Finally, Ashford argues defense counsel’s cross-examination of N.W. amounted to
ineffective assistance of counsel by establishing the only evidence in the record that pointed
to vaginal penetration and age. Particularly, Ashford faults defense counsel for asking N.W.
to describe his penis without asking Ashford to confirm or deny that description.
¶56. However, during cross-examination, counsel essentially questioned N.W. line-by-line
on her statement to Detective Sanders, which already had been admitted into evidence. Thus,
that part of the cross-examination did not add anything that was not already before the jury.
Ashford repeatedly denied having any sexual contact with N.W. and stated she never saw
him naked. If that were so, N.W. would not have been able to describe his penis when asked
by defense counsel. But she did. Ashford faults defense counsel for not asking him to
confirm or deny that description. Yet he fails to tell this Court how his description would
differ from that given by N.W. Not knowing what his answer to that question would be, we
cannot say that counsel’s actions prejudiced his defense.16
CONCLUSION
¶57. For the reasons stated, we find Ashford’s claims of error are without merit. The
judgment and sentences of the Tate County Circuit Court are affirmed.
¶58. COUNT I: CONVICTION OF SEXUAL BATTERY OF A CHILD UNDER
THE AGE OF FOURTEEN (14) AND SENTENCE OF TWENTY (20) YEARS IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
16
As we find no errors, any claim by Ashford of cumulative error is without merit. See
Harris v. State, 970 So. 2d 151, 157 (Miss. 2007).
28
AFFIRMED. COUNT II: CONVICTION OF SEXUAL BATTERY OF A CHILD
UNDER THE AGE OF FOURTEEN (14) AND SENTENCE OF TWENTY (20)
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. COUNT III: CONVICTION OF SEXUAL
BATTERY OF A CHILD UNDER THE AGE OF FOURTEEN (14) AND SENTENCE
OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT IV: CONVICTION OF
SEXUAL BATTERY OF A CHILD UNDER THE AGE OF FOURTEEN (14) AND
SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT V: CONVICTION OF
FONDLING AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT VI:
CONVICTION OF SEXUAL BATTERY OF A CHILD AT LEAST FOURTEEN (14)
BUT UNDER SIXTEEN (16) YEARS OF AGE AND SENTENCE OF TWENTY (20)
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. COUNT VII: CONVICTION OF SEXUAL
BATTERY OF A CHILD AT LEAST FOURTEEN (14) BUT UNDER SIXTEEN (16)
YEARS OF AGE AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT
VIII: CONVICTION OF SEXUAL BATTERY OF A CHILD AT LEAST FOURTEEN
(14) BUT UNDER SIXTEEN (16) YEARS OF AGE AND SENTENCE OF TWENTY
(20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. COUNT IX: CONVICTION OF SEXUAL BATTERY
OF A CHILD AT LEAST FOURTEEN (14) BUT UNDER SIXTEEN (16) YEARS OF
AGE AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT X:
CONVICTION OF FONDLING AND SENTENCE OF FIVE (5) YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED. SENTENCES IN COUNTS II, III, IV, VI, VII, VIII, IX, AND X ARE TO
BE SERVED CONCURRENTLY WITH SENTENCE IN COUNT I. SENTENCE IN
COUNT V IS TO BE SERVED CONSECUTIVELY TO SENTENCE IN COUNT I.
SENTENCES IN VIII AND X ARE TO BE SERVED CONCURRENTLY WITH
SENTENCE IN COUNT V. IN COUNT I, APPELLANT SHALL PAY $1,000 TO THE
MISSISSIPPI CHILDREN’S TRUST FUND, $1,000 FINE, $200 TO THE DISTRICT
ATTORNEY’S OFFICE AND ALL COURT COSTS. APPELLANT SHALL
RECEIVE CREDIT FOR 276 DAYS SERVED WHILE AWAITING TRIAL.
WALLER, C.J., DICKINSON, P.J., KITCHENS, KING, COLEMAN,
MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.
29
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121 B.R. 25 (1990)
In re Linda Jane STONE, d/b/a The Broiler, a/k/a Linda Jane Duvick Stone, a/k/a Linda Jane Haskins, Debtor(s).
Linda Jane STONE, Plaintiff(s),
v.
STATE OF ALASKA DEPARTMENT OF REVENUE and Alcoholic Beverage Control Board, Alaska Hotel and Restaurant Trust Funds, Corroon and Black/Dawson and Company, City of Fairbanks, Fairbanks North Star Borough, K & L Distributors, Inc., K & N Meats, C.R. Kennelly, the Odom Company, the United States of America Internal Revenue Service, Alaska Department of Labor Employment Security Division, A & W Wholesale, Alaska Law Enforcement, American Publishers, Inc., Background Music Company, Fairbanks Fuel Supply, Fairbanks Municipal Utilities System, Far North Sanitation, Favco, KIAK Radio, Larson's Inc., Estate of William K. Lavery, Martin's Seafoods, Sharon Pendley, Petrolane, Polar Business Services, Premium Acceptance Corp., Prime Time of Alaska, d/b/a KIAK, Quality Meat Co., Samson Hardware, and Yukon Office Supply, Defendant(s).
Bankruptcy No. 4-80-00031, Adv. No. XXX-XX-XXXX.
United States Bankruptcy Court, D. Alaska.
August 22, 1990.
*26 Barry Jackson, Fairbanks, Alaska, for plaintiffs.
Kay Hill, I.R.S., Anchorage, Alaska, Robert Branman, I.R.S., Washington, D.C., for defendants.
Millard Ingraham, Anchorage, Alaska, for C.R. Kennelly.
Gary Sleeper, Jermain, Dunnagan & Owens, P.C., Anchorage, Alaska, for Alaska Hotel and Restaurant Trust Funds.
John Connolly, Fairbanks, Alaska, for Fairbanks North Star Borough.
Julia Coster, Asst. Atty. Gen., Anchorage, for the State of Alaska.
MEMORANDUM RE PARTIAL SUMMARY JUDGMENT MOTION OF IRS AND DEBTOR'S PROPOSED SETTLEMENT
HERBERT A. ROSS, Bankruptcy Judge.
INDEX
Page
1. RULING ON IRS MOTION FOR PARTIAL SUMMARY JUDGMENT ........................ 26
1.1. Factual Background .................................................. 27
1.2. IRS Partial Summary Judgment Motion ................................. 27
1.3. The Alaska Statute for Transferring Licenses ........................ 27
1.4. Federal Tax Lien Statute ............................................ 27
1.5. Ninth Circuit Precedent ............................................. 28
1.6. Conclusion .......................................................... 29
2. DENIAL OF SETTLEMENT ..................................................... 29
A hearing was held on July 26, 1990 concerning a proposed settlement in this case amongst various creditors and debtor which would have resulted in disbursing most of the $130,000± held by debtor. The court also ruled on the pending motion for partial summary judgment filed by the Internal Revenue Service.
1. RULING ON IRS MOTION FOR PARTIAL SUMMARY JUDGMENT1.1. Factual BackgroundOn January 8, 1980, the IRS filed a Notice of Federal Tax Lien in the Fairbanks Recording District based upon debtor's failure to pay federal employment taxes for the second quarter of *27 1979 and federal unemployment taxes for 1977.
Debtor operated a liquor establishment in Fairbanks. She filed chapter 11 on April 28, 1980. One of the assets of the estate was the Alaska Alcohol Beverage Dispensary license required in order to conduct the liquor business.
On August 29, 1984, the bankruptcy court entered an order authorizing a sale of the liquor license free and clear of liens in Adversary Proceeding No. 4-84-0015. The license has been sold, and the debtor-in-possession holds about $130,000 in proceeds, mostly derived from the sale of the liquor license.
There are competing claims to the proceeds from the sale of the liquor license by trade creditors of the liquor business who have put "holds" on the license under Sec. 04.11.360 of the Alaska Statutes. These creditors claim priority over the federal tax lien. The IRS claims first priority to the funds under the supremacy of the federal tax lien statutes, 26 U.S.C. §§ 6321-6327.
1.2. IRS Partial Summary Judgment MotionThe IRS moved for summary judgment to establish the liquor license was property subject to a federal tax lien because it was valuable and transferable. IRS asked the court to decide the issue of priority of liens only after deciding the issue of whether the lien attaches.
While the liquor license is "property" subject to a federal tax lien, the State of Alaska has imbued it with certain characteristics which subordinate the federal tax lien to liquor license creditors under state law. At least this is a reasonable interpretation of Ninth Circuit case law.
The State of Alaska can legitimately create procedures governing transferability of liquor licenses, barring transfer unless trade creditors of the liquor establishment are paid. While this may have the effect of altering priorities in payment of creditors in both bankruptcy and in relation to federal tax liens, this is a valid exercise of the State of Alaska's authority.
It is appropriate for the court to grant summary judgment against a moving party. Case v. International Brotherhood of Electrical Workers, Local Union No. 1547, 438 F.Supp. 856, 858 (D.C.Alaska 1977), aff'd 587 F.2d 1379 (9th Cir.1978), cert. denied 442 U.S. 944, 99 S.Ct. 2890, 61 L.Ed.2d 315 (1979).
1.3. The Alaska Statute for Transferring LicensesSec. 04.11.360 of the Alaska Statutes concerns the transfer of liquor licenses in Alaska. It provides in part:
An application requesting approval of a transfer of a license to another person under this title shall be denied if
. . . . .
(4) the transferor has not paid all debts or taxes arising from the conduct of the business licensed under this title unless
(A) the transferor gives security for the payment of the debts or taxes satisfactory to the creditor or taxing authority; or
(B) the transfer is pursuant to a promise given as collateral by the transferor to the transferee in the course of an earlier transfer of the license under which promise the transferor is obliged to transfer the license back to the transferee in the event of default in payment for property conveyed as part of the earlier transfer of the license;
1.4. Federal Tax Lien StatuteThe IRS argues that, by virtue of its tax liens, its claims are superior to creditors claiming a "hold" on the license under AS 04.11.360(4). The IRS claims the liquor license is property, and once its lien attaches to that property, the federal tax lien statutes control priority. 26 U.S.C. §§ 6321-6327.
In Aquilino v. United States, 363 U.S. 509, 80 S.Ct. 1277, 4 L.Ed.2d 1365 (1960), the framework for applying the federal tax lien laws was set out. The court held that,
(a) in determining whether and to what extent a taxpayer had property or rights to property to which a federal tax lien could attach, both federal and state courts must look to state law; in application of a federal revenue act, state law controls in determining nature of legal *28 interest which taxpayer had in property sought to be reached by statute, and
(b) once a federal tax lien has attached to a taxpayer's state-created interests, federal law determines priority of competing liens asserted against taxpayer's property or right to property.
See also, United States v. Bess, 357 U.S. 51, 56-57, 78 S.Ct. 1054, 1057-1058, 2 L.Ed.2d 1135 (1958) and In re 21 West Lancaster Corp., 790 F.2d 354 (3rd Cir. 1986).
The scope of the statute is extremely broad. Glass City Bank v. United States, 326 U.S. 265, 267-268, 66 S.Ct. 108, 110, 90 L.Ed. 56 (1945).
1.5. Ninth Circuit PrecedentIn re Anchorage International Inn, Inc., 718 F.2d 1446 (9th Cir.1983) held that AS 04.11.360(4) did not establish a priority of distribution under Alaska law which improperly modified the distribution scheme under the old Bankruptcy Act. The court said at page 1449:
The creditor of an owner of an Alaska liquor license, unlike the holder of a security interest or a mechanic's lien, cannot enforce the lien by self-help or by execution on the license. See C.Y., Inc. v. Brown, 574 P.2d 1274, 1277 (Alaska 1978). Nevertheless, the creditor's interest in the license is an encumbrance superior to the rights of others. The Alaska statute assures the liquor-related creditor that the sale of the license will not occur until his debt is paid or security satisfactory to him is provided. Other creditors whose debts are not related to the licensed business receive no similar assurances. Under Alaska law, the creditors of the liquor business do have a superior right to payment from the license sale proceeds. [footnote omitted]
Although the lien interest created by Alaska Stat. s 04.11.360(4) differs in form from other more typical creditor-protection devices such as a security interest or a materialman's lien, all serve the same function. Regardless of its label, each encourages the extension of credit by providing that, upon the occurrence of certain conditions, the creditor has a priority right to payment from a particular asset.
See also In re Farmers Market, Inc., 792 F.2d 1400, 1403 (9th Cir.1986).
The Ninth Circuit faced the question of priority of a federal tax lien over a state's right to condition transfer of a liquor license on payment of an obligation to the state for its taxes in United States v. California, 281 F.2d 726 (9th Cir.1960). The court said at 727:
The question, however, is not as to the supremacy of the tax lien of the United States. The question is as to the nature of the `property and rights to property' (26 U.S.C. 6321) to which that lien attached. Ordinarily, in determining this question, we look to state law. United States v. Bess, 1957, 357 U.S. 51, 78 S.Ct. 1054, 2 L.Ed.2d 1135.
. . . . .
Here the license existed because the state had issued it. If the license acquired something of value, it was because the state had bestowed it upon him. Whatever value the license, as property, may have had to a purchaser depended upon its transferability. If it was transferable, it was because the state had made it so. If the state had seen fit to impose conditions upon issuance or upon transfer of property it has wholly created, that is the state's prerogative so long as its demands are not arbitrary or discriminatory. The federal government has no power to command the state in this area. It has no power to direct that property be created by the state for purposes of federal seizure.
There are cases contrary to the Ninth Circuit holding that the state created right primes the IRS tax lien on a liquor license. See Business Title Corporation, v. Division of Labor Law Enforcement, 553 P.2d 614 (Cal.1976) and a Sixth Circuit case decided about a week ago, In re Terwilliger's Catering Plus, Inc., 911 F.2d 1168 (6th Cir.1990). Both cases had strong dissents supporting the Ninth Circuit approach. See also In re A.J. Bayless Markets, Inc., 108 B.R. 721, 726 (Bankr.D.Nev.1989).
*29 1.6. ConclusionThe IRS's position that the liquor license is "property" subject to a federal tax lien appears to be correct. In re 21 West Lancaster Corp., supra, In re Terwilliger's Catering Plus, Inc., supra, and United States v. Bess, supra (concerning the cash value of a life insurance policy). But, the federal tax lien has no value without the transfer of the license. That transfer is governed by an Alaskan statute which requires payment of the liquor business creditors. To the extent that the IRS, by virtue of the federal tax lien, attempts to prime those creditors with "holds", the IRS position is subordinate. There is only $130,000± available, and more liens than that to pay. Therefore, the tax lien must trail the state "holds."
2. DENIAL OF SETTLEMENT The debtor proposed a settlement with creditors including not only the proceeds from the liquor license, but from the sale of other property not included in this adversary proceeding. The estate is fully liquidated. There is no reason a simple liquidation plan should not be filed. See In re Air Beds, Inc., 92 B.R. 419 (9th Cir.BAP 1988).
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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
RONALD EUGENE REYNOLDS, No. 08-15-00373-CR
§
Appellant, Appeal from
§
v. County Court at Law No. 4
§
THE STATE OF TEXAS, of Montgomery County, Texas
§
Appellee. (TC # 15-307889)
§
ORDER
The Court has determined that it is necessary to review the original of State’s Exhibits 149
(Client file for Kalisha Keller), 150 (Client file for George Sanchez), 151 (client file for Carolina
Castelan), and 152 (client file for Jose and Destiny Trevino). It is therefore Ordered that Cassandra
McCoy, Official Court Reporter of the County Court at Law Number Four for Montgomery
County, Texas, prepare a supplemental Reporter’s Record to include the original of State’s
Exhibits 149, 150, 151, and 152 and forward the same to this Court on or before June 26, 2017.
IT IS SO ORDERED THIS 12TH DAY OF JUNE, 2017.
PER CURIAM
Before McClure, C.J., Rodriguez, and Palafox, JJ.
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Case: 12-41370 Document: 00512348064 Page: 1 Date Filed: 08/20/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 20, 2013
No. 12-41370
Conference Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANTONIO AGUINAGA-BARRON, also known as Antonio Hernandez,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:12-CR-1330-1
Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
PER CURIAM:*
The Federal Public Defender appointed to represent Antonio Aguinaga-
Barron has moved for leave to withdraw and has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d
229 (5th Cir. 2011). Aguinaga-Barron has not filed a response. We have
reviewed counsel’s brief and the relevant portions of the record reflected therein.
We concur with counsel’s assessment that the appeal presents no nonfrivolous
issue for appellate review. Accordingly, counsel’s motion for leave to withdraw
*
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: 12-41370 Document: 00512348064 Page: 2 Date Filed: 08/20/2013
No. 12-41370
is GRANTED, counsel is excused from further responsibilities herein, and the
APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.
2
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 3 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 98-2184
v. (D. New Mexico)
EULALIO BENAVIDES, (D.C. No. CR-96-419-JC)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.
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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Eulalio Benavides pled guilty to (1) conspiring to possess, with intent to
distribute, cocaine; and (2) distributing cocaine. At his plea hearing, however,
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.
Benavides reserved the right to contest, at sentencing, any responsibility for
trafficking more than 98.5 grams of cocaine. Following his guilty plea, the
district court held a sentencing hearing to determine the amount of cocaine
Benavides and his co-conspirators had possessed and/or distributed. At that
hearing, the district court determined that Benavides was responsible for
trafficking at least 500 grams of cocaine. Based on this determination, the
district court sentenced Benavides to 120 months’ imprisonment—the statutory
minimum—on each count, with the sentences to run concurrently. Benavides
now appeals from the imposition of this sentence, arguing that the district court
erred in determining that Benavides was responsible for trafficking at least 500
grams of cocaine. For the reasons discussed below, we affirm the judgment and
sentence of the district court.
BACKGROUND
On November 7, 1996, a federal grand jury returned a ten-count indictment
against Eulalio Benavides (“Benavides”) and his alleged co-conspirators—his
uncle Rudolfo Benavides (“Rudolfo”), Christopher Rawls, and Jamie Michelle
Ireland. Benavides was mentioned in two of the ten counts. Count I charged all
four alleged conspirators with conspiring to possess, with intent to distribute,
more than 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
-2-
(b)(1)(B), and 846. Count IV charged Benavides and his uncle with distributing
less than 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C).
On that same day, a warrant was issued for Benavides’ arrest.
Approximately a year later, in November 1997, Benavides was arrested and
arraigned before a United States magistrate judge, where he entered an initial
plea of not guilty. On February 6, 1998, the government filed an enhancement
information, pursuant to 21 U.S.C. § 851, informing the court that Benavides had
a prior state felony conviction for trafficking in cocaine. This prior conviction
would have the effect of increasing Benavides’ sentences, if Benavides were to
be convicted of the pending charges against him. For instance, the charge in
Count IV—distributing less than 500 grams of cocaine—carries no minimum
sentence and a maximum of 20 years’ imprisonment, but for offenders with a
prior felony drug conviction, the sentence is increased to a prison term of “not
more than 30 years.” 21 U.S.C. § 841(b)(1)(C). And the charge in Count
I—conspiracy to possess, with intent to distribute, more than 500 grams of
cocaine—increases, with a prior felony drug conviction, from “not less than 5
years and not more than 40 years” to “not . . . less than 10 years and not more
than life imprisonment.” 21 U.S.C. § 841(b)(1)(B). By introducing the prior
felony drug conviction, the government hoped to take advantage of the 10-year
statutory minimum sentence prescribed in 21 U.S.C. § 841(b)(1)(B).
-3-
To do so, however, the government would have to show that Benavides
was responsible for the possession and/or distribution of more than 500 grams of
cocaine. See 21 U.S.C. § 841(b)(1)(B). From the outset, Benavides has denied
responsibility for more than five ounces—approximately 125 grams—of cocaine. 1
On February 9, 1998, Benavides agreed to plead guilty, without a written plea
agreement or any concessions from the government, to Count IV in its entirety,
and to all of Count I except the drug quantity. That is, Benavides pled guilty to
(1) distributing less than 500 grams of cocaine, and (2) conspiring with Rudolfo,
Rawls, and Ireland, to possess, with intent to distribute, a disputed amount of
cocaine. At his plea hearing, Benavides expressly reserved the right to contest, at
1
One ounce is equal to 28.35 grams. See USSG § 2D1.1, comment. (n.10)
(measurement conversion table). However, throughout this case, the parties have
referred to one ounce as equal to 25 grams. See III R. at 14 (defense counsel
referring to 25 grams as “a Mexican ounce,” and the prosecutor agreeing to use 25
grams as “the conservative number”).
At his plea hearing and in his initial objections to the presentence report,
Benavides insisted that he was responsible for only four ounces—approximately
98.5 grams—of cocaine. See II Supp. R. at 153; II R. at 47. However, on appeal,
Benavides concedes that he is responsible for selling “one ounce of cocaine on
June 11, 1996, and four ounces on June 13, 1996 for a total of 125 grams.”
Appellant’s Br. at 7.
-4-
the sentencing hearing, the amount of drugs for which he was responsible. 2
The
district court accepted Benavides’ plea, and scheduled a sentencing hearing.
At the sentencing hearing, the government presented two witnesses:
Special Agent Dennis Kintigh of the Federal Bureau of Investigation (FBI); and
Jamie Michelle Ireland, one of Benavides’ co-conspirators, who had entered into
a plea agreement with the government. Kintigh confirmed that Benavides was
involved in selling five ounces of cocaine to undercover agents on June 11 and
13, 1996. Kintigh also stated, however, that at the June 13th cocaine transaction
and during a telephone call the next day, Benavides and the undercover agent
discussed another deal for 500 grams of cocaine, to be consummated on June
14th. At a meeting on June 14th, Benavides stated that “he had the
merchandise,” and invited the undercover agent to get into his car to finish the
deal. III R. at 16. The agent, fearing for his safety, refused to get into
Benavides’ car, and the deal fell through.
In addition, Kintigh stated that in late June 1996, Benavides was arrested
on domestic disturbance charges, and, while incarcerated, he told local
2
We have approved of similar plea agreements. See United States v.
Silvers , 84 F.3d 1317, 1320 (10th Cir. 1996). We have stated that because drug
quantity is not a substantive element of a drug offense, “a defendant is not
entitled to have the issue decided by a jury,” and “the government is required only
to prove the quantity of drugs attributable to the defendant by a preponderance of
the evidence at sentencing,” rather than beyond a reasonable doubt, “in order to
trigger the mandatory minimum sentences prescribed in 21 U.S.C. § 841(b).” Id.
-5-
authorities that he and his uncle, together, “dealt on average . . . 250 grams [of
cocaine] per week.” III R. at 20. These approximate amounts were confirmed by
Rudolfo, who, after his arrest, told the FBI that he and Benavides had “provided
[one specific customer] Mark Sanders [with] an estimated two kilograms of
cocaine during their business together.” III. R. at 21.
Kintigh also testified that the other participants in the conspiracy had been
apprehended with narcotics in their possession. In March 1996, Rawls was
stopped at a Border Patrol checkpoint, and officers discovered 225 grams of
cocaine in his possession. Rudolfo later told authorities that this particular
shipment of cocaine “was intended for [Benavides] in Hobbs, New Mexico.” III
R. at 22. And in late June and July 1996, Rudolfo, Ireland, or both were
discovered on several occasions in the possession of drugs. On June 26th,
Rudolfo sold 112 grams of cocaine to an undercover agent; on June 28th,
Rudolfo and Ireland sold 84 grams of cocaine to an agent; and on July 30th,
Rudolfo sold 42 grams of cocaine and 168 grams of heroin to an agent.
Benavides was not personally involved in the March, late June, or July
transactions.
The government’s next witness was Ireland, who stated that she had begun
her association with Rudolfo as a maid and a chauffeur, but was soon asked to
function as a sort of bookkeeper for the conspirators. She stated that she kept
-6-
careful records of how much cocaine was bought, used, and sold by the group,
including Benavides. She stated that when she started working with Rudolfo in
March 1996, Benavides was already part of the group. She described Benavides
as Rudolfo’s “middle man” and his “connection to most of the [customers] in
Hobbs[, New Mexico].” III R. at 39. When Rudolfo would travel to Hobbs to
sell drugs, Benavides would either place the customers, some of whom he had
recruited, in contact with Rudolfo, or he would take some of Rudolfo’s cocaine
and sell it directly to the customers himself. She stated that a “conservative
estimate” of the amount of drugs Rudolfo brought to Hobbs for distribution was
“about three ounces [or 75 grams] a week” over a twelve-week period. III R. at
45.
Benavides did not call any witnesses of his own at the sentencing hearing,
but his attorney did cross-examine both Kintigh and Ireland, attempting to
impugn the credibility of those witnesses. At the conclusion of the evidence, the
district court “conclude[d] that the evidence has established that [Benavides] was
involved in a conspiracy that resulted in the distribution of at least 500 grams of
cocaine and that there’s substantial evidence to establish that that is the amount.”
III R. at 61. Therefore, based on this finding, the district court was required to
apply the statutory minimum sentence prescribed by 21 U.S.C. § 841(b)(1)(B).
-7-
The district court found that Benavides’ total offense level was 28 under
the Sentencing Guidelines, and that his criminal history category was IV. 3
Under
these circumstances, the applicable guideline range is 110-137 months, but the
statutory minimum sentence, from 21 U.S.C. § 841(b)(1)(B), alters the allowable
range to 120-137 months. The district court sentenced Benavides to 120 months’
imprisonment on each count, and to five years’ supervised release on Count I and
three years’ supervised release on Count IV, with the sentences to run
concurrently.
3
In his appellate brief, Benavides appears to challenge the computation of
his criminal history. However, as Benavides points out in his brief, because he
did not raise this issue before the district court, we would review it only for plain
error. See United States v. Alessandroni , 982 F.2d 419, 420 (10th Cir. 1992).
And, factual questions regarding sentencing which are not raised below, such as
whether the district court counted the same offense twice in calculating criminal
history, are not appropriate for plain error review, because “we have no factual
record by which to review the application of the guidelines.” United States v.
Saucedo , 950 F.2d 1508, 1518 (10th Cir. 1991). Thus, we have held that a
defendant’s failure to raise a factual sentencing issue below constitutes waiver of
that issue for the purposes of direct appeal. See United States v. Deninno , 29
F.3d 572, 580 (10th Cir. 1994); Saucedo , 950 F.2d at 1518.
In any event, the issue is mooted by our resolution of Benavides’ challenge
to the drug quantity. If he was involved in trafficking more than 500 grams of
cocaine, and if he has a prior felony drug conviction, he must serve a minimum of
10 years in prison, see 21 U.S.C. § 841(b)(1)(B), regardless of whether the
remainder of his criminal history points were correctly tallied.
-8-
Benavides now appeals from the imposition of this sentence, arguing that
the district court erroneously concluded that he was responsible for the
possession and/or distribution of more than 500 grams of cocaine.
DISCUSSION
In a case such as this one, where the total amount of drugs the defendant is
charged with distributing or possessing was not seized by the government, the
sentencing court must estimate the amount of drugs involved. This estimate may
be “based on a variety of circumstances, so long as they have ‘some basis of
support in the facts of the particular case’” and “possess a ‘minimum indicia of
trustworthiness.’” United States v. Nieto , 60 F.3d 1464, 1469 (10th Cir. 1995)
(quoting United States v. Garcia , 994 F.2d 1499, 1508 (10th Cir. 1993)). This
estimate is a finding of fact, which, as Benavides correctly points out, we review
only for clear error. See United States v. Garcia , 78 F.3d 1457, 1462 (10th Cir.
1996) (stating that “[w]e review the factual findings of a district court relating to
sentencing issues for clear error”) . A factual finding is not clearly erroneous
“unless the court’s finding was without factual support in the record, or if after
reviewing all the evidence we are left with the definite and firm conviction that a
mistake has been made.” United States v. Smith , 133 F.3d 737, 744 (10th Cir.
1997) (citation and quotation marks omitted).
-9-
In this case, the district court’s factual finding that Benavides, or the
conspiracy between Benavides, Rudolfo, Rawls, and Ireland during the months
Benavides was a part of the conspiracy, was responsible for the possession and/or
distribution of more than 500 grams of cocaine was not clearly erroneous. This
finding was amply supported by evidence presented at the sentencing hearing,
and, in the end, we are not left with the impression that a mistake has been made
here. For instance, the following evidence was relied on by the district court in
making its finding that more than 500 grams of cocaine were involved: (1)
Benavides’ admission that he was involved in the sale of 125 grams of cocaine;
(2) Kintigh’s testimony that Benavides entered into a deal with an undercover
agent for the sale of 500 grams of cocaine, although the deal fell through at the
last minute; (3) Kintigh’s testimony that Benavides told local drug officers that
he and Rudolfo distributed approximately 250 grams of cocaine per week; (4)
Kintigh’s testimony that Rudolfo, in discussions with authorities following his
arrest, stated that one of their best customers in Hobbs, New Mexico, purchased
approximately 2,000 grams of cocaine from him and Benavides; (5) Ireland’s
testimony that Rudolfo and Benavides distributed, in Hobbs, approximately 75
grams per week over a twelve-week period, for a total of 900 grams; (6)
Kintigh’s testimony that other members of the conspiracy were caught with the
equivalent of over 1,000 grams of cocaine at various times, including Rawls’ 225
-10-
grams which Rudolfo stated were expressly earmarked for Benavides to distribute
in Hobbs.
Even if we were to discount one or even several of these episodes, there
would still be sufficient evidence for the district court to have concluded that
Benavides was involved in trafficking more than 500 grams of cocaine.
Benavides, however, argues that the evidence presented at the sentencing
hearing, especially Ireland’s testimony, was not reliable. In support of this
argument, he cites United States v. Richards , 27 F.3d 465 (10th Cir. 1994), a case
in which we held that a trial court’s drug quantity determination, based solely on
the testimony of one witness who offered contradictory testimony, was clearly
erroneous and without support in the record. That case is easily distinguishable
from the case at hand. Here, the district court’s drug quantity determination was
supported by two witnesses, both of whom offered coherent and uncontradictory
testimony. This case differs from Richards in that Ireland’s testimony was not
contradictory and was therefore stronger than the testimony discounted in
Richards , and in that here, even if we were to totally discount Ireland’s
testimony, there is still sufficient evidence, introduced through the testimony of
Agent Kintigh, to support the district court’s drug quantity determination. See
Nieto , 60 F.3d at 1469-70 (holding that a district court’s drug quantity
determination, which was based solely only the uncorroborated but credible
-11-
testimony of a single witness, was supported by the evidence and therefore not
clearly erroneous).
In short, we think that there was sufficient evidence introduced at the
sentencing hearing to support the district court’s finding that Benavides was
involved in trafficking more than 500 grams of cocaine, and that this evidence
possesses at least minimal indicia of trustworthiness. Accordingly, we hold that
the district court’s finding was not clearly erroneous.
The judgment and sentence of the district court are AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
-12-
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414 B.R. 764 (2009)
In re WINN-DIXIE STORES, INC., et al., Reorganized Debtors.
IRT Partners, L.P., et al., Appellants/Cross-Appellees,
v.
Winn-Dixie Stores, Inc., Appellee/Cross-Appellant.
Bankruptcy No. 3:08-cv-391-J-12. Adversary No. 3:05-bk-03817-3F1.
United States District Court, M.D. Florida, Jacksonville Division.
April 10, 2009.
OPINION AND ORDER
HOWELL W. MELTON, Senior District Judge.
This case presents an appeal pursuant to 28 U.S.C. § 158(a) and Rule 8001 of the Federal Rules of Bankruptcy Procedure, from the United States Bankruptcy Court for the Middle District of Florida. On February 7, 2008, the Bankruptcy Court entered its Order Sustaining Debtors' Objection to Claims Filed By IRT Partners, L.P. and Equity One (Hunter's Creek) Inc. (Doc. 1-5).[1] That same date, the Bankruptcy Court's Findings of Fact and Conclusions of Law (Doc. 1-4) were entered. *765 Throughout this Opinion and Order, the Court will refer to the Bankruptcy Court's Order Sustaining Debtors' Objection to Claims Filed By IRT Partners, L.P. and Equity One (Hunter's Creek) Inc. (Doc. 1-5) and its Findings of Fact and Conclusions of Law (Doc. 1-4) collectively as the Bankruptcy Court's Order (Docs. 1-5 and 1-4).
Appellants, IRT Partners, L.P. (IRT) and Equity One (Hunters Creek), Inc., (Equity One) (Appellants) filed this appeal. The Reorganized Debtors, Winn-Dixie Stores, Inc., et al., (Winn-Dixie), have filed a cross-appeal.
FACTS AND PROCEDURAL HISTORY
This appeal arises out of a Chapter 11 proceeding involving Winn-Dixie which commenced February 21, 2005. The facts and procedural history leading to the Bankruptcy Court's Order (Docs. 1-5 and 1-4), entered February 7, 2008, are not in dispute, and the Court will summarize them briefly. During the course of the Chapter 11 proceedings, the Bankruptcy Court authorized Winn-Dixie to reject its leases with both Appellants. See Doc. 1-16. Winn-Dixie sent Notices of Rejection of its leases to both Appellants (Docs. 1-17 and 1-18), and on November 15, 2005, both Appellants filed proofs of claim (Docs. 1-38 and 1-39) (original claims).[2] IRT's original claim sought rejection damages for unpaid real estate taxes that had accrued since 2004 (Doc. 1-38), and Equity One's original claim sought rejection damages for unpaid common area maintenance expenses, real estate taxes and insurance premiums that had accrued since 2004 (Doc. 1-39). In ruling on objections to those original claims filed by Winn-Dixie (see Doc. 1-22), the Bankruptcy Court reduced Appellants' original claims, disallowing any amounts exceeding the reduced claims (see Doc. 1-25 at ¶ 6 and Exhibit E), without objection, appearance, or appeal by Appellants.
After notice to all interested parties, without objection by either Appellant, on November 9, 2006, the Bankruptcy Court entered an Order (Doc. 1-23) confirming the Joint Plan of Reorganization of Winn-Dixie Stores, Inc. and Affiliated Debtors (the Reorganization Plan) (Doc. 1-20), which provided among many other things, that unsecured claims would be paid by distribution of New Common Stock issued by Winn-Dixie. On December 22, 2006, and January 9, 2007, Winn-Dixie distributed and Equity One and IRT accepted shares of New Common Stock in satisfaction of their reduced original claims. Doc. 19 at p. 7 ¶ 23.[3]
*766 On January 5, 2007, each Appellant filed an Amended Proof of Claim (Docs. 1-40 and 1-41) (amended claims) which included the reduced original claim amount and additional claims for rejection damages for unpaid rent. Equity One's original claim (Doc. 1-39) was for $87,498.59, reduced to $16,913.96 (see Doc. 1-25 at ¶ 6 and Exhibit E), and its amended claim (Doc. 1-41) was for $878.478.41; IRT's original claim (Doc. 1-38) was for $20,364.24, reduced to $11,636.71 (see Doc. 1-25 at ¶ 6 and Exhibit E), and its amended claim (Doc. 1-40) was for $185,244.67.[4] Winn-Dixie filed objections (Doc. 1-27) to the amended claims and the Bankruptcy Court's Order (Docs. 1-5 and 1-4) sustained its objections, disallowing the amended claims (Docs. 1-41 and 1-40).
ANALYSIS
The sole issue presented on appeal is whether the Bankruptcy Court erred in not utilizing the five-part test set forth in In re International Horizons, Inc., 751 F.2d 1213, 1216 (11th Cir.1985) in sustaining Winn-Dixie's objections to the Appellants' amended claims. Appellants seek either reversal of the Bankruptcy Court's Order (Docs. 1-5 and 1-4) or remand to allow the Bankruptcy Court to apply the International Horizons test. Winn-Dixie asks that the Court consider it's cross-appeal, which presents the issue of whether the Bankruptcy Court erred as a matter of law in considering the amended claims as amendments rather than as new and therefore untimely claims, only in the event that it determines that the Bankruptcy Court erred in not applying the *767 International Horizons test. For the reasons set forth below, the Court finds that the Bankruptcy Court's Order (Docs. 1-5 and 1-4) is due to be affirmed, and so will not consider the issue presented on cross-appeal.
The United States District Court functions as an appellate court in reviewing decisions of the United States Bankruptcy Court. In re Colortex Industries, Inc., 19 F.3d 1371, 1374 (11th Cir.1994). This Court reviews de novo the legal conclusions of the Bankruptcy Court, In re JLJ, Inc., 988 F.2d 1112, 1113 (11th Cir. 1993), and accepts the Bankruptcy Court's findings of fact unless they are clearly erroneous, In re Goerg, 930 F.2d 1563, 1566 (11th Cir.1991); Bankr.Rule 8013. The issue presented on appeal is a purely legal issue, therefore the Court reviews it de novo.
In considering Winn-Dixie's objections to the Appellants' amended claims, the Bankruptcy Court framed the issue before it as whether the doctrine of res judicata barred the amended claims, and examined the specific language contained in Winn-Dixie's Reorganization Plan, the law concerning the effect res judicata has on confirmed plans, and applicable policy considerations. Doc. 1-4 at p. 4.
The Bankruptcy Court first examined the Reorganization Plan (Doc. 1-20) language of § 4.3(g) which provides that distributions of New Common Stock were intended to be "in full satisfaction, settlement, release, and discharge of and in exchange of" allowed claims. Doc. 1-20 at p. 18. Section 12.13 of the Reorganization Plan also provides that:
"all consideration distributed under the [Reorganization] Plan shall be in exchange for, and in complete satisfaction, settlement, discharge and release of, all Claims of any nature whatsoever against the Debtors ... not limited to ... debts of the kind specified in Section 502 of the Bankruptcy Code [which includes rejection damages] ... [and] all Persons shall be precluded from asserting against the Debtors ... any other or further claims, debts, rights, ... based upon any act, omission, transaction, occurrence or other activity of any nature that occurred prior to the Effective Date [of the Reorganization Plan] ..."
Doc. 1-20 at p. 43. The Bankruptcy Court primarily relied on two cases in support of its conclusion that based upon this Reorganization Plan language, the doctrine of res judicata precluded the Appellants from asserting additional amounts of rejection damages: In re New River Shipyard, Inc., 355 B.R. 894 (Bankr.S.D.Fla.2006), and Holstein v. Brill, 987 F.2d 1268 (7th Cir. 1993).
The court in New River considered whether the claimant should be allowed to amend its claim after the confirmation of the debtor's plan. That court cited International Horizons for the rule that "[a]mendments to claims are generally allowed where the purpose is to cure a defect in the original claim, to describe the claim with greater particularity, or to plead a new theory of recovery on the facts set forth in the original claim." 355 B.R. at 908-909, citing International Horizons, 751 F.2d at 1216. It also noted that post-bar date amendments must be viewed with careful scrutiny to assure that the amendment is not an attempt to file a new claim under the guise of an amendment, and that case law mandates a significantly higher degree of scrutiny when amendment is sought after confirmation. Id. at 909, citing In re Enron Corp., 419 F.3d 115 (2nd Cir.2005). The New River court identified several relevant factors in the analysis: whether there was a timely assertion of a similar claim evidencing an intention to hold the debtor's estate liable, and whether under the facts of the case, it would be equitable to allow the amendment, *768 considering such matters as any prejudice to the debtor or other creditors, any windfall to creditors by disallowing the amendment, and whether the late claimant acted in good faith and the delay in seeking amendment was justified. Id. at 909.
The New River court concluded that amendment was improper on three separate grounds: waiver, estoppel, and res judicata. Id. at 909-912. In its analysis under res judicata, the court explained that
"[a] creditor's treatment under a confirmed plan of reorganization creates a contractual relationship between the debtor and the creditor. The creditor's pre-confirmation claim is subsumed in and replaced by the new contract created by the confirmed plan; `each claimant gets a `new' claim based upon whatever treatment is accorded to it in the plan itself."
Id. at 912, citing Holstein, 987 F.2d at 1270. The court noted that the doctrine of res judicata bars re-litigation of issues previously litigated as well as litigation of issues that may have been litigated, and that despite ample opportunity to amend its claim prior to plan confirmation the claimant waited until two months after confirmation, therefore under those circumstances the doctrine of res judicata barred amendment of its claim.
New River is distinguishable from the case before the Court in two ways. The court in New River found first that the amendment sought in that case did not arise out of the same conduct, transaction or occurrence as the original claim, and second that the debtor and other creditors would be highly prejudiced by the amendment. The Bankruptcy Court did not make either finding regarding Appellants amended claims. Nevertheless, the Court cannot find that it erred in applying the res judicata principles set forth in New River.
The Court agrees with the Bankruptcy Court that International Horizons does not stand for the proposition that amendments to claims must be freely permitted at any time during the bankruptcy proceedings, as it did not involve a post-confirmation amendment, so did not discuss or address the effect of the confirmation plan language or the applicability of the doctrine of res judicata to the amended claim at issue. In a situation like the case at bar, involving a post-confirmation amendment, the Court is of the opinion that it would have been error not to consider the Reorganization Plan language as well as the effect of res judicata on Appellants' original claims in determining whether amendment of those claims should be permitted.
Appellants attempted to amend their claims after they had been reduced by the Bankruptcy Court without objection from them, and after Winn-Dixie's Reorganization Plan had been confirmed without objection from them. The Reorganization Plan language explicitly sets forth that the effect of accepting New Common Stock is to fully satisfy the claims.
In this case, although their original claims included language reserving the right to amend and supplement those claims, Appellants were in sole possession of the information regarding the amount of their amended claims for lost rent, and the record reveals no basis for waiting until after the original claims had been reduced, and after confirmation of the Reorganization Plan to attempt to assert their claims for lost rent. The Reorganization Plan was confirmed on November 9, 2006, their claims were reduced on November 30, 2006, and Appellants filed their amended claims on January 5, 2007. At the time the Bankruptcy Court was considering the Reorganization Plan and the claims reductions, Appellants certainly would have *769 been aware that their original claims significantly understated their total rejection damages claims because they included no amounts for damages resulting from lost rent. Based on these facts, the Bankruptcy Court properly concluded that res judicata barred amendment.
Holstein also supports the Bankruptcy Court's conclusion. The Holstein court observed that while leave to amend a claim should be freely given early in a bankruptcy case, amendment is less appropriate with passing milestones in the case such as the claims bar date and plan confirmation. 987 F.2d at 1270. That court held that once the milestone of plan confirmation has been reached, amendment to a claim should only be allowed for compelling reasons, because the confirmation of the plan is equivalent to final judgment in an ordinary civil action and to permit amendment post-confirmation without a compelling reason runs the risk of rendering the plan infeasible or altering the distribution to other creditors. Id. The court noted it could find no other court that had permitted a claim to be increased for any reason post-confirmation. Id. at 1271.
The record before the Court does not indicate that Appellants' purported claims amendments would have rendered the Reorganization Plan infeasible or otherwise have affected other creditors, but neither does it demonstrate any compelling reason for allowing the amended claims based on the facts discussed above. The Court finds nothing inequitable, much less compelling, about the circumstances of the case that call into question the Bankruptcy Court's sustaining of Winn-Dixie's objections to the amended claims. In other words, the Court cannot find that the Bankruptcy Court erred as a matter of law in considering and applying Holstein and other cases involving res judicata, to the facts before it. The Bankruptcy Court did not establish a bright-line rule that no claim may ever be amended post-confirmation, but examined the facts and circumstances of the case before it and found nothing compelling or inequitable that would warrant refusal to apply the doctrine of res judicata.
The Bankruptcy Court also carefully considered a case cited by Appellants, In re Telephone Company of Central Florida, 308 B.R. 579 (Bankr.M.D.Fla.2004), which did permit a post-confirmation claim amendment. The Telephone Company court permitted the IRS to amend its claim post-confirmation for the same taxes covering the same time periods, finding that the IRS had provided adequate notice that the examination regarding the claim amount was pending, had not intentionally or negligently delayed in seeking an amendment, and that it may well have filed the claim earlier had the debtor cooperated with the IRS. 308 B.R. at 582-583. The court noted that "[a] proof of claim for unpaid taxes that effectively increases the amount sought does not bar amendment, unless the claim asserts a different tax or a different fiscal time frame." Id. at 582 (citation omitted).
The Court is of the opinion that the facts regarding Appellants' claims are sufficiently distinguishable from those at issue in Telephone Company to warrant a different result. The most important factual distinction is that at all relevant times, the necessary information to calculate the full amounts of their claims for rejection damages remained with Appellants. There is no indication from the record that any conduct of Winn-Dixie contributed to Appellants' delay in seeking amendment. Moreover, Appellants had at least two opportunities, when their claims were reduced and when the Reorganization Plan was confirmed, to advise the Bankruptcy Court and Winn-Dixie that their claims *770 would need to be amended to reflect a significantly higher amount. Finally, both Appellants accepted shares of New Common Stock in satisfaction of their original claims, which under the express terms of the Reorganization Plan, extinguished their claims. Based on these factual distinctions, and the fact that the Telephone Company court did not consider the issue of res judicata in reaching its conclusion to permit amendment post-confirmation, the Bankruptcy Court did not err declining to consider Telephone Company sufficient authority to control the result in this case.
The Bankruptcy Court determined that the fact that the Appellants sought to amend their claims post-confirmation was significant in determining whether to permit such amendment and implicated res judicata concerns regarding Winn-Dixie's confirmed Reorganization Plan. The Bankruptcy Court did not use the five-factor analysis set forth in International Horizons because it concluded that the res judicata effect of the confirmed plan dictated the result on the specific facts before it, including such facts as the language of the Reorganization Plan, and the basis for delay in seeking amendment. This Court agrees that the amendments should not have been permitted under the circumstances of this case and cannot find that the Bankruptcy Court erred in not undertaking the five-factor International Horizons analysis.
The Court has carefully reviewed the briefs submitted by the parties as well as the applicable law, considered the argument of counsel presented at oral argument held on March 11, 2009, and reviewed the entire record on appeal. For the reasons set forth above, the Court will affirm the Bankruptcy Court's Order (Docs. 1-5 and 1-4).
CONCLUSION
The decision of the Bankruptcy Court is AFFIRMED as to the issue presented on appeal for the reasons set forth herein.
DONE AND ORDERED.
NOTES
[1] The entire record on appeal was submitted to this Court electronically and is found at Document 1 in the record of this Court. In citing to the record on appeal, the Court uses the Document number that appears at the top of each printed page of a document, "Doc. 1-x." In order to locate those documents on the electronic record, one must go to Document 1 on the docket and look for attachment number × minus 1, as Document 1, the Bankruptcy Court's Transmittal of Record to District Court cover sheet, is in effect Doc.1-1. For example, the Court refers to the Bankruptcy Court's Order Sustaining Debtors' Objection to Claims Filed By IRT Partners, L.P. and Equity One (Hunter's Creek) Inc. as Doc. 1-5, which is the document number that appears at the top of the printed page. That document, Doc. 1-5, is found in the electronic record of this Court as Document 1, at attachment 4, which is Doc. 1-(x minus 1).
[2] On page 2 of its Findings of Fact and Conclusions of Law (Doc. 1-4), the Bankruptcy Court noted that the Notices of Rejection were filed on September 14, 2005, and on October 31, 2005, Appellants filed a motion to extend the Rejection Claims bar date to November 15, 2005, but a hearing was never sought on the motion nor was a ruling made. The Bankruptcy Court considered Winn-Dixie's objections to Appellants' amended claims without further comment or discussion of this matter.
[3] This document is Winn-Dixie's Answer Brief and Initial Brief on Cross-Appeal. The portions of the Bankruptcy Court record cited by Winn-Dixie are not part of the record on appeal. However, the Court notes that Appellants' brief (Doc. 10 at p. 4, n. 5) states that Winn-Dixie transferred shares of New Common Stock to Equity One on December 22, 2006, as payment for its reduced original claim. This fact appears to be uncontested as there is no indication otherwise in the record that Appellants did not accept payment of New Common Stock in satisfaction of their reduced original claims as stated by Winn-Dixie.
[4] Both Equity One's original claim (Doc. 1-39) and its amended claim (Doc. 1-41) are designated as claims for lease rejection damages. Equity One's original claim sought damages for unpaid common area maintenance expenses, real estate taxes and insurance that had accrued since 2004 ($87,498.59) through November 11, 2005, and reserved the right to amend and supplement its rejection damages claim as estimated amounts became fixed and additional information became available. Its amended claim sought the amount remaining after the Bankruptcy Court reduced the amount of that claim ($16,913.96), plus an additional amount for unpaid rent ($861,564.45).
Similarly, both IRT's original claim (Doc. 1-38) and its amended claim (Doc. 1-40) are designated as claims for lease rejection damages. IRT's original claim sought damages for unpaid real estate taxes that had accrued since 2004 ($20,364.24) through November 11, 2005, and reserved the right to amend and supplement its rejection damages claim as estimated amounts became fixed and additional information became available. Its amended claim sought the amount remaining after the Bankruptcy Court reduced the amount of that claim ($11,636.71), plus an additional amount for unpaid rent ($173,607.96).
The Bankruptcy Court's Order treats the amended claims as amendments to the original claims for rejection damages without discussion or analysis. Winn-Dixie argues on cross-appeal that the amended claims are really time-barred new claims, citing In re Lee Way Holding Company, 178 B.R. 976 (Bankr. S.D. Ohio 1995). While this argument may have some merit, the Court does not address this issue, as it finds that the Bankruptcy Court's Order is due to be affirmed on the issue presented on appeal as discussed below, and Winn-Dixie requested consideration of its cross-appeal only in the event the Court were to determine that the Bankruptcy Court's Order was due to be reversed or that remand should be required.
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FILED
NOT FOR PUBLICATION MAY 22 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBERT VAN ZANDT, No. 12-15479
Plaintiff - Appellant, D.C. No. 3:11-cv-04098-SI
v.
MEMORANDUM *
RUSSELL STANALAND,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Submitted May 14, 2013 **
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
Robert Van Zandt appeals pro se from the district court’s judgment
dismissing his action alleging that defendant Russell Stanaland, an attorney,
violated the Fair Debt Collection Practices Act (“FDCPA”) and the Fair Credit
Reporting Act (“FCRA”) by recording an abstract of a state court judgment. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
have jurisdiction under 28 U.S.C. § 1291. We review de novo. Knievel v. ESPN,
393 F.3d 1068, 1072 (9th Cir. 2005). We affirm.
The district court properly dismissed Van Zandt’s FDCPA claim because
Van Zandt failed to allege facts showing that the abstract of judgment was a “debt”
under the FDCPA. 15 U.S.C. § 1692a(5) (defining “debt” as “any obligation or
alleged obligation of a consumer to pay money arising out of a transaction in
which the money, property, insurance, or services which are the subject of the
transaction are primarily for personal, family, or household purposes”); see also
Turner v. Cook, 362 F.3d 1219, 1226-28 (9th Cir. 2004) (a tort judgment was not a
debt within the meaning of the FDCPA, and the FDCPA did not apply, because the
judgment did not arise from a consumer transaction).
The district court properly dismissed Van Zandt’s FCRA claim because Van
Zandt failed to allege facts showing that Stanaland furnished inaccurate
information to a credit reporting agency. See 15 U.S.C. § 1681s-2(a) (prohibiting a
person from knowingly furnishing inaccurate information relating to a consumer to
a credit reporting agency).
The district court did not abuse its discretion in dismissing without leave to
amend because the deficiencies in Van Zandt’s complaint could not be cured by
amendment. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc)
2 12-15479
(setting forth standard of review and explaining that leave to amend should be
given unless the deficiencies in the complaint cannot be cured by amendment).
The district court did not abuse its discretion in denying Van Zandt’s motion
for relief from judgment because the intervening order in the underlying state court
action has no bearing on the merits of Van Zandt’s claims. See Sch. Dist. No. 1J,
Multnomah Cnty, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993)
(setting forth standard of review and grounds for relief from judgment under Fed.
R. Civ. P. 60(b)).
AFFIRMED.
3 12-15479
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818 P.2d 1264 (1991)
312 Or. 157
Emmett Woodrow MARTIN, Petitioner On Review,
v.
PSYCHIATRIC SECURITY REVIEW BOARD, Respondent On Review.
PSRB 89-1015; CA A61474; SC S37641.
Supreme Court of Oregon, In Banc.
Argued and Submitted April 3, 1991.
Decided October 10, 1991.
Harris S. Matarazzo, Salem, argued the cause and filed the petition for petitioner on review.
Diane Sue Lefkow, Asst. Atty. Gen., Salem, argued the cause for respondent on review.
VAN HOOMISSEN, Justice.
Petitioner seeks review of a Court of Appeals' decision that affirmed an order of the Psychiatric Security Review Board (PSRB). PSRB concluded that petitioner continued to suffer from a mental disease or defect and, therefore, that he continued to be under the agency's jurisdiction. Martin v. PSRB, 103 Or. App. 385, 797 P.2d 401 (1990). The sole issue presented is whether there is substantial evidence in the record to support PSRB's finding that petitioner was affected by a mental disease or defect at the time of the hearing. We review under ORS 183.482(8). ORS 161.385(8)(c). Because we conclude that the evidence on which PSRB expressly relied in making its finding was not substantial, we reverse and remand to the agency for further consideration.
*1265 FACTS
In December 1987, petitioner was indicted for kidnapping (2 counts), robbery (2 counts), assault (2 counts), sexual penetration with a foreign object, and ex-convict in possession of a firearm, all felonies. In January 1988, Dr. Gardner performed a psychiatric examination and evaluation of petitioner (exhibit 9). Gardner reported that petitioner did not "evidence a mental disease or defect which would tend to exculpate him under Oregon statutes," understood the charges against him, and could participate in own defense.
In March 1988, Dr. Gardner re-examined petitioner (exhibit 10). At that time, Gardner reported that petitioner possessed "a mental disease of such magnitude to interfere with his ability to perceive the criminality of his behavior and to conform his behavior to the requirements of the law." Gardner's diagnosis was "Delusional Disorder; Schizotypal Personality Disorder." Gardner added, however, that petitioner understood the charges against him and could participate in his defense.
After a "stipulated facts" trial to the court on January 31, 1989, petitioner was found "guilty except for insanity" of kidnapping and assault. The remaining six charges were dismissed by the trial court. See ORS 161.295(1).[1] That same day, the trial court found that petitioner presently was affected by mental disease or defect and that he presented a substantial danger to others requiring commitment to a state mental hospital. As a result, petitioner was placed under PSRB's jurisdiction for a maximum period of 30 years and was committed to the Oregon State Hospital (OSH). See ORS 161.327.[2]
In a February 9, 1989 case summary (exhibit 14), Dr. Meyer, petitioner's OSH treating psychiatrist, provisionally diagnosed petitioner as "paranoid personality." Meyer thought that petitioner could be a "potential danger" to the public, adding that "[t]he basis for this, however, seems to be a personality disorder and not a major mental illness or major affective disorder." Meyer recommended that petitioner "be monitored by the Corrections system and [that he] not be involved in inpatient treatment in the Mental Health Division."
In a February 14 progress report, Meyer noted that petitioner's OSH treatment team did not think petitioner was appropriately placed at OSH, "because he does not have major mental illness." In a March 27 progress report, Meyer noted that the treatment team did not see petitioner "as having a major mental illness at this time." In an April 7 progress report, Meyer opined that "[petitioner] suffers from paranoid personality disorder with possible psychotic decompensation in the past. He has been stable on Ward 48B, with no evidence of psychosis." (Emphasis supplied.)
On April 7, 1989, PSRB held a hearing to determine whether petitioner should be discharged, conditionally released, or retained in a state hospital. ORS 161.341. At the hearing, the state opposed petitioner's discharge *1266 and also opposed his conditional release on the terms that he proposed. The state took no position on a conditional release "if a plan that provided adequate supervision were offered." Without objection, PSRB received 30 exhibits in evidence. PSRB also heard the testimony of Dr. Meyer, Dr. Johansen, an OSH clinical psychologist, and other witnesses, including petitioner. Petitioner does not challenge the admissibility of any of the evidence in the record. He challenges only the substantiality of the evidence to support PSRB's finding that he "is affected by a mental disease or defect."
At the hearing, Dr. Meyer characterized petitioner's condition as a "paranoid personality disorder." Petitioner's attorney asked Meyer, "Do you believe [petitioner] suffers at this time from a mental disease or defect as defined by the Oregon statutes?" Meyer replied, "Not at this time." (Emphasis supplied.) Meyer added that he had discussed his diagnosis with Dr. Shannon, another OSH psychiatrist, who agreed with it. Later, petitioner's attorney asked Dr. Johansen "Do you believe that [petitioner] presently suffers from a mental disease or defect as defined by the Oregon statutes?" Johansen replied, "No, I do not." In response to a question from a PSRB member, Johansen stated that he did not have "any clear evidence" that petitioner had a tendency to experience "episodic psychotic disorder, delusional disorder at times, given the right stress." Still, Johansen did not feel "absolutely confident to say no."
Following the hearing, the three PSRB members present were unable to reach a consensus, and the hearing was continued to permit the other two PSRB members to review the exhibits and the recorded transcript before voting. Thereafter, PSRB found as facts that petitioner continued to be "affected by a mental disease or defect" that "is now in a state of partial remission."[3] Based on all its findings, PSRB concluded as a matter of law that:
"1. [Petitioner], being affected by a mental disease or defect which, when active, renders him a substantial danger to others, is under the jurisdiction of [PSRB]."
PSRB ordered that petitioner "be continued in commitment at a state hospital * * * for care and treatment pending the availability of a verified conditional release plan." Petitioner sought judicial review of PSRB's final order. On review, the Court of Appeals affirmed. Martin v. PSRB, supra.
We allowed review to examine whether there is substantial evidence in the record to support PSRB's finding that petitioner continued to be affected by a mental disease or defect at the time of the hearing. Petitioner argues that at the time of the hearing he was suffering from a "personality disorder," which is not a mental disease or defect, ORS 161.295(2),[4] and, therefore, that he was entitled to a discharge. He relies primarily on the reports of Drs. Meyer *1267 and Shannon, and Dr. Johansen's psychological assessment, and on the testimony of Drs. Meyer and Johansen at the hearing. All three experts opined that petitioner suffered from a personality disorder, but not from a mental disease or defect.
The state argues that in April 1989 petitioner continued to suffer from the same mental disease or defect that had relieved him of criminal responsibility for kidnapping and assault at his January 1989 trial. We understand the state's theory to be that petitioner's mental disease or defect was in a state of remission. See ORS 161.327(3); 161.336(3); 161.351(2) (a person affected by a mental disease or defect in a state of remission is considered to have a mental disease or defect requiring supervision when the disease may, with reasonable medical probability, occasionally become active and, when active, render the person a danger to others). The state relies primarily on Dr. Gardner's March 1988 report; on Dr. Meyer's report and testimony; on Dr. Johansen's psychological assessment and testimony; and on police reports of petitioner's 1987 crimes and police observations of him while he was in custody pending trial.
ORS 183.482(8)(c) provides that this court:
"shall set aside or remand the order if it finds that the order is not supported by substantial evidence in the record. Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding."
If PSRB's finding is supported by substantial evidence in the record, it must be sustained. ORS 161.385(8)(c); 183.482(8)(c). We review any factfinding for its legal correctness, not for whether we agree with it.
ORS 161.346(3) provides that, in conducting a hearing:
"[PSRB] shall consider all evidence available to it which is material, relevant and reliable regarding the issues before the board. Such evidence may include but is not limited to the record of trial, the information supplied by the attorney representing the state or by any other interested party, including the person, and information concerning the person's mental condition and the entire psychiatric and criminal history of the person. All evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs shall be admissible at the hearings."[5]
See OAR 859-50-030 (similar).
ANALYSIS
In its opinion affirming PSRB's final order, the Court of Appeals characterized petitioner's argument as follows:
"Petitioner does not contend that the mental condition that he claimed at his trial, and which resulted in his commitment, no longer exists or has changed; he merely challenges the classification of his condition, claiming that it is, and always has been, a personality disorder rather than a mental disease or defect." Martin v. PSRB, supra, 103 Or. App. at 388, 797 P.2d 401.
The court viewed this argument to be "an impermissible collateral attack" on the determination that was made by the trial court that ordered petitioner's original commitment to PSRB after his January 1989 conviction. We, however, do not understand that to be petitioner's argument.
During his opening statement at the hearing, petitioner's attorney clearly stated his position: "I think there is insufficient evidence in the record to indicate that [petitioner] suffers from a mental disease or defect." He asked that petitioner be "discharged" *1268 from PSRB's jurisdiction. In his Court of Appeals brief, petitioner argued that the burden was on the state to prove that he continued to be affected by a mental disease or defect at the time of the hearing. In his petition for review, petitioner states that he "cannot, and does not, contest * * * that he was properly placed under the jurisdiction of [PSRB] by the [trial court]." Thus, petitioner does not argue that he was not suffering from a mental disease or defect in January 1989.
Petitioner first argues that, contrary to statements in PSRB's order, Dr. Meyer's report and testimony at the hearing do not support PSRB's finding that petitioner continued to be affected by a mental disease or defect at the time of the hearing. We agree. For example, in exhibit 14, written in February 1989, Meyer states:
"[Petitioner] is a person, because of his feelings of being abused, nonsupported, persecuted and the anger and anxiety that accompanies these when he attempts to do something about these feelings, he can provide a potential danger to the public. The basis for this, however, seems to be a personality disorder and not a major mental illness such as a psychosis or major affective disorder. For this reason and the reason that he has apparently done well on probation in the past and has spent some jail time before, I would recommend that he be monitored by the Correction system and not be involved in inpatient treatment in the Mental Health Division." (Emphasis supplied.)
More importantly, Meyer testified unequivocally at the hearing that he did not believe that petitioner suffered from a mental disease or defect at that time. He also stated that Dr. Shannon agreed with his diagnosis.
Meyer further testified that a paranoid personality disorder can "decompensate," i.e., "deteriorate into a psychotic state," and that there was a "possibility [that petitioner] had experienced some psychotic decompensation in the past." Meyer added, however, "I'm not sure that he has actually decompensated and gotten psychotic." As we understand it, "decompensation" is the deterioration of an individual's mental condition from one state into another, qualitatively worse, state.[6]
Because the relevant inquiry under ORS 161.327(1) (procedure following finding of "guilty except for insanity") was whether petitioner was affected by a mental disease or defect at the time of sentencing, PSRB's finding in this case is not supported if the evidence shows only that at the time of the hearing petitioner suffered from a personality disorder accompanied by a past or future possibility of decompensation to mental disease or defect. Conversely, if the evidence shows that petitioner continued to be affected by a mental disease or defect in a state of remission, petitioner was affected by a mental disease or defect for the purposes of the statutory scheme.[7] ORS 161.351(2). We conclude that Dr. Meyer's report and his testimony at the hearing do not support PSRB's finding that petitioner was affected by a mental disease or defect at the time of the hearing. That evidence appears to us to support petitioner's position.
Petitioner next argues that Dr. Gardner's March 1988 report, which concluded that petitioner was suffering from a mental disease, should be disregarded, because Gardner had concluded in January 1988 that petitioner suffered only from a personality *1269 disorder and, thus, Gardner's conclusions cancel each other out. Here, we disagree with petitioner. Gardner's reports were written in sequence, and PSRB was entitled to read them in that context. Gardner qualified his initial diagnosis as follows:
"It is * * * my opinion that [petitioner] does not evidence a mental disease or defect which would tend to exculpate him under Oregon statutes. However, there is some question about his ability to conform his conduct; which question could be better answered after a question could be better answered after a longitudinal-type evaluation. It would be my opinion that this would be best served by an additional interview by myself with [petitioner]."
After Gardner re-examined petitioner, he concluded that petitioner was affected by a mental disease or defect. Gardner's second report and his revised diagnosis, after evaluating all the pertinent data, is certainly evidence that PSRB was entitled to consider. See ORS 161.346(3) (PSRB may consider information concerning petitioner's mental condition and psychiatric history); OAR 859-50-030(4) (same).
Petitioner also argues that, because Dr. Gardner's March 1988 report was written more than a year before PSRB's April 1989 hearing, it does not deserve the weight of the more current reports and testimony of Drs. Meyer, Shannon, and Johansen.[8] We decline petitioner's invitation to weigh the evidence anew. That task is exclusively within the province of PSRB, and this court will not substitute its judgment for PSRB's on such a consideration. We also reject petitioner's implicit argument that one expert witness' opinion may not be found to outweigh the contrary opinions of several other experts. PSRB does not count the witnesses; it weighs the evidence.
In discounting Dr. Johansen's report and testimony and Dr. Shannon's report and diagnosis, PSRB stated that it was more persuaded by Dr. Meyer's report and his testimony at the hearing and by Dr. Gardner's reports. Therein lies the difficulty that we have with PSRB's analysis. As noted above, PSRB's reliance on Dr. Meyer's report and his testimony was misplaced. Essentially, that leaves only Dr. Gardner's reports as the expressly identified basis for PSRB's finding. However, contrary to PSRB's finding of fact, Gardner's first report does not show that petitioner continued to be affected by a mental disease or defect at the time of the hearing. It states that petitioner was not affected by a mental disease or defect. Likewise, Gardner's second report does not show that petitioner continued to be affected by a mental disease or defect at the time of the hearing. It states only that petitioner suffered from a "delusional disorder" in November 1987, the month of his crimes (or, perhaps, in March 1988, when it was written). PSRB did not reason that a person who was affected by a mental disease or defect in November 1987 necessarily continued to be affected with the same condition in April 1989.
The question is whether the evidence on which PSRB expressly relied supports what the agency did. Although there may be other evidence in the record that could provide a basis for PSRB's order,[9] because we conclude that the evidence on which PSRB expressly relied in finding that petitioner *1270 "is" affected by a mental disease or defect is not substantial, the agency must reconsider its order. See OSAA v. Zohner, 71 Or. App. 575, 576, 692 P.2d 641 (1984) (generally, when an appellate court determines that an agency has made a finding of fact that is not supported by substantial evidence, and the court concludes that the finding may have influenced a conclusion of law, the court will remand to the agency for reconsideration).
The decision of the Court of Appeals is reversed. The case is remanded to Psychiatric Security Review Board for further consideration.
NOTES
[1] ORS 161.295(1) provides:
"A person is guilty except for insanity if, as a result of mental disease or defect at the time of engaging in criminal conduct, the person lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law."
[2] ORS 161.327 provides in part:
"(1) Following the entry of a judgment pursuant to ORS 161.319 and the dispositional determination under ORS 161.325, if the court finds that the person would have been guilty of a felony, * * * and if the court finds by a preponderance of the evidence that the person is affected by mental disease or defect and presents a substantial danger to others requiring commitment to a state mental hospital * * * or conditional release, the court shall order the person placed under the jurisdiction of the Psychiatric Security Review Board for care and treatment. The period of jurisdiction of the board shall be equal to the maximum sentence provided by statute for which the person was found guilty except for insanity.
"(2) The court shall determine whether the person should be committed to a state hospital * * * or conditionally released pending any hearing before the board as follows:
"(a) If the court finds that the person presents a substantial danger to others and is not a proper subject for conditional release, the court shall order the person committed to a state hospital * * * for custody, care and treatment pending hearing before the board in accordance with ORS 161.341 to 161.351."
[3] PSRB found in part:
"2. [Petitioner] is affected by a mental disease or defect, as demonstrated by the underlying facts shown by the evidence, including the reports of Hugh Gardner, M.D., as found in Exhibits 9 and 10, and the report of John E. Meyer, M.D., as found in Exhibit 14. The Board carefully considered the testimony of Clifford Johansen, Ph.D., to the effect that [petitioner] suffers from a personality disorder rather than a major mental illness; however, the Board was more persuaded by the testimony of John E. Meyer, M.D., at the hearing and the reports of Dr. Gardner. The Board also considered the report of Alice Shannon, M.D., which diagnoses [petitioner] as suffering from alcohol abuse, in remission, by history and possible post-traumatic stress disorder delayed. However, again, the Board was persuaded by the report of Dr. Gardner which is found in Exhibit 10.
"3. Although [petitioner's] mental disease or defect is now in a state of partial remission, it does require supervision because with reasonable medical probability, it occasionally will become active and when active, it will render [petitioner] a danger to others. This conclusion is based on the underlying facts shown by the evidence, particularly the circumstances surrounding the crimes which resulted in his placement under the jurisdiction of the Psychiatric Security Review Board, as noted in Exhibit 6; his criminal history, as noted in Exhibit 13; as well as the information contained in Exhibits 3, 11 and 14."
[4] ORS 161.295(2) provides in part:
"[T]he terms `mental disease or defect' do not include * * * any abnormality constituting solely a personality disorder."
[5] PSRB's members must evaluate the evidence found in the record. In so doing, they may employ their experience and expertise to evaluate and understand the officially noticed facts and evidence offered and made part of the record. ORS 182.450(2), (4). PSRB's members, however, may not use their special knowledge as a substitute for evidence presented at a hearing. See Rolfe v. Psychiatric Security Review Board, 53 Or. App. 941, 948-49, 633 P.2d 846, rev. den. 292 Or. 334, 644 P.2d 1127 (1981) (the evaluation of evidence is a necessary part of PSRB's duties; the insertion into the record of new evidence is impermissible).
[6] Stedman's Medical Dictionary 364 (4th ed 1976), defines decompensation as "[t]he appearance or exacerbation of a mental disorder due to failure of defense mechanisms."
[7] In contrast, a finding that a person is "guilty except for insanity" of a crime determines only that the person suffered from a mental disease or defect at the time of the crime. See ORS 161.295(1) ("A person guilty except for insanity if, as a result of mental disease or defect at the time of engaging in criminal conduct * * *") (emphasis supplied). Likewise, a trial court's decision to commit an individual to the jurisdiction of PSRB after the person has been found "guilty except for insanity" of a crime determines only that the person suffered from a mental disease or defect at the time of the sentencing. See ORS 161.327(1) (court must find that the person is affected by mental disease or defect).
[8] Petitioner does not argue that Dr. Gardner's reports were inadmissible as too "stale." For that reason, we need not determine whether the passage of time alone might render an inference of continued mental disease or defect unsupported by substantial evidence. See OEC 311(1)(w) (a thing once proved to exist continues as long as is usual with things of that nature); State v. Weller, 285 Or. 457, 461, 591 P.2d 732 (1979) (when the prior factual condition is identified, it is up to the parties to introduce evidence on how long it is usual for the previously diagnosed condition to continue). See also City of Roseburg v. Roseburg City Firefighters, 292 Or. 266, 271, 639 P.2d 90 (1981) (methodology in reviewing findings that embody inferences).
[9] We recognize, of course, that the record contains thirty exhibits and that eight witnesses testified at the hearing. Nevertheless, and notwithstanding PSRB's all encompassing statement that its finding was "shown by the evidence," we conclude that PSRB relied primarily on Dr. Gardner's reports and on Dr. Meyer's report and his testimony at the hearing.
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3 N.Y.3d 758 (2004)
PEOPLE v. LEWIS (ROMMEL)
Court of Appeals of the State of New York.
November 19, 2004.
Application in criminal cases for leave to appealDenied. (Kaye, Ch.J.) (Appeal No. 1)
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J-A19014-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: B.R., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: S.K., BIRTH MOTHER
No. 2006 WDA 2014
Appeal from the Order Entered November 12, 2014
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): TPR082 OF 2014
IN RE: A.R., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: S.K., BIRTH MOTHER
No. 2007 WDA 2014
Appeal from the Order Entered November 12, 2014
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): TPR083 OF 2014
BEFORE: BENDER, P.J.E., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 25, 2015
S.K. (“Mother”) appeals from the orders involuntarily terminating her
parental rights to B.R. (born in July of 2007), and A.R. (born in March of
2010) (collectively “the Children”), pursuant to 23 Pa.C.S. § 2511(a)(2),
(a)(5), (a)(8), and (b).1 We affirm.2
____________________________________________
1
The parental rights of M.R., the Children’s father (“Father”), were also
involuntarily terminated. Father filed a separate appeal which is docketed at
Nos. 2048 WDA 2014 and 2049 WDA 2014.
2
By order dated January 5, 2015, this Court consolidated these appeals sua
sponte.
J-A19014-15
In its opinion, the orphans’ court set forth the following history of this
case:
The family first came to the attention of CYF[3] in October
2011 following allegations that the children were alone outside.
There were also concerns that the family was being evicted and
that the parents were using drugs. When CYF arrived, they were
not given access to the children. Crisis-in-home services were
obtained to assist the parents on stabilizing their housing
situation. CYF opened a case at that time. The service provider
closed out unsuccessfully a month later in November 2011, but
first wanted to verify the children’s safety. The children and
Mother had been staying with grandparents. In early April 2012,
CYF learned of Mother’s attempted suicide. CYF sought and
obtained an Emergency Custody Authorization (“ECA”) on April
2, 2012.
The children were removed from their Mother’s care;
Father had left the home months prior. Mother was in the I.C.U.
after attempting to end her life, and Father could not be a
caregiver as he did not have housing, was [a] perpetrator of
domestic violence, as well as a Suboxone addict. The children
were temporarily placed in an Auberle foster home while
awaiting a shelter hearing, as their grandparents had criminal
histories and did not pass CYF’s emergency clearances. But at
the shelter hearing, it was determined that B.R. could be placed
with his Paternal Grandmother … and that A.R. could be placed
with Maternal Step-Grandmother …. There the children have
remained. The children were adjudicated dependent on April 30,
2012. The petition to involuntarily terminate the parents’ rights
was filed on May 13, 2014.
Orphans’ Court Opinion (O.C.O.), 1/26/15, at 3-4 (citations to the record
omitted).
A hearing on the termination of parental rights petition was held on
November 12, 2014. In addition to Mother’s testimony, the court heard
____________________________________________
3
The Allegheny County Office of Children, Youth and Families (“CYF”).
-2-
J-A19014-15
testimony from Mary Hughes, a CYF caseworker, from psychologist, Dr. Neil
Rosenblum, and from the Children’s Paternal Grandmother, Anna Ritter.
Based upon the evidence and testimony provided, the orphans’ court
entered its orders terminating Mother’s parental rights to the Children.
Mother filed timely notices of appeal and a concise statement of errors
complained of on appeal in compliance with Pa.R.A.P. 1925(a)(2)(i) and (b).
She now raises the following issue for our review:
Did the trial court abuse its discretion and/or err as a matter of
law in concluding that CYF met its burden of proving by clear and
convincing evidence that termination of Mother’s parental rights
would best serve the needs and welfare of the children pursuant
to 23 Pa.C.S. § 2511(b)?
Mother’s Brief at 7.
Our standard of review regarding orders terminating parental rights is
as follows:
When reviewing an appeal from a decree terminating parental
rights, we are limited to determining whether the decision of the
trial court is supported by competent evidence. Absent an abuse
of discretion, an error of law, or insufficient evidentiary support
for the trial court’s decision, the decree must stand. Where a
trial court has granted a petition to involuntarily terminate
parental rights, this Court must accord the hearing judge’s
decision the same deference that we would give to a jury
verdict. We must employ a broad, comprehensive review of the
record in order to determine whether the trial court’s decision is
supported by competent evidence.
In re S.H., 879 A.2d 802, 805 (Pa. Super. 2005). In termination cases, the
burden is upon the petitioner to prove by clear and convincing evidence that
-3-
J-A19014-15
the asserted grounds for seeking the termination of parental rights are valid.
Id. at 806. We have previously stated:
The standard of clear and convincing evidence is defined as
testimony that is so “clear, direct, weighty and convincing as to
enable the trier of fact to come to a clear conviction, without
hesitance, of the truth of the precise facts in issue.”
In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).
The trial court is free to believe all, part, or none of the evidence
presented and is likewise free to make all credibility determinations and
resolve conflicts in the evidence. In re M.G., 855 A.2d 68, 73-74 (Pa.
Super. 2004). If competent evidence supports the trial court’s findings, we
will affirm even if the record could also support the opposite result. In re
Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003). Additionally,
this Court “need only agree with [the trial court’s] decision as to any one
subsection in order to affirm the termination of parental rights.” In re
B.L.W., 843 A.2d 380, 384 (Pa. Super. 2004) (en banc), appeal denied, 863
A.2d 1141 (Pa. 2004).
The termination of parental rights is controlled by 23 Pa.C.S.A. § 2511.
Under this statute, the trial court must engage in a bifurcated process in
which it initially focuses on the conduct of the parent under Section 2511(a).
See In the Interest of B.C., 36 A.3d 601 (Pa. Super. 2012). If the trial
court determines that the parent’s conduct warrants termination under
Section 2511(a), it must then engage in an analysis of the best interests of
the child under Section 2511(b). See id.
-4-
J-A19014-15
In the instant case, Mother does not challenge the trial court’s analysis
as it relates to her conduct under Section 2511(a); but rather she limits her
argument to the trial court’s analysis of the best interests of the Children
under Section 2511(b).
Section 2511(b) provides, in pertinent part:
(b) Other considerations.—The court in terminating the rights
of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child. The rights of a parent shall not be terminated solely on
the basis of environmental factors such as inadequate housing,
furnishings, income, clothing and medical care if found to be
beyond the control of the parent.
23 Pa.C.S. § 2511(b).
Pursuant to Section 2511(b), the trial court must take into account
whether a natural parental bond exists between child and parent, and
whether termination would destroy an existing, necessary and beneficial
relationship. In re. C.S., 761 A.2d 1197, 1202 (Pa. Super. 2000) (en banc).
In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), this
Court stated, “Intangibles such as love, comfort, security, and
stability are involved in the inquiry into needs and welfare of the
child.” In addition, we instructed that the orphans’ court must
also discern the nature and status of the parent-child bond, with
utmost attention to the effect on the child of permanently
severing that bond. Id. However, the extent of the bond-effect
analysis necessarily depends on the circumstances of the
particular case. In re K.Z.S., 946 A.2d 753, 763 (Pa. Super.
2008).
While a parent’s emotional bond with his or her child is a major
aspect of the Subsection 2511(b) best-interest analysis, it is
nonetheless only one of many factors to be considered by the
court when determining what is in the best interest of the child.
The mere existence of an emotional bond does not preclude the
-5-
J-A19014-15
termination of parental rights. Rather, the orphans’ court must
examine the status of the bond to determine whether its
termination “would destroy an existing, necessary and beneficial
relationship.” As we explained in In re A.S., 11 A.3d 473, 483
(Pa. Super. 2010):
[I]n addition to a bond examination, the trial court can
equally emphasize the safety needs of the child, and
should also consider the intangibles, such as the love,
comfort, security, and stability the child might have with
the foster parent. Additionally, this Court stated that the
trial court should consider the importance of continuity of
relationships and whether any existing parent-child bond
can be severed without detrimental effects on the child.
In re N.A.M., 33 A.3d 95, 103 (Pa. Super. 2011) (citation omitted).
Mother argues that the termination of her parental rights “may
unnecessarily and permanently terminate the loving relationship between
these children and their mother.” Mother’s Brief, at 13. Mother asserts that
she has a strong bond with her Children and that they benefit from contact
with her. Id. at 17. Mother further avers that she was in substantial
contact with Children outside the purview of CYF and that “[t]he impact of
this contact was not properly assessed by the trial judge who completely
ignored [her] credible and unrefuted testimony that A.R. was living with her
for many months.” Id. at 17. She claims to also have had substantial
contact with B.R. Id. Mother expresses concern over the impact on her
visitations with B.R. in the event that her relationship deteriorates with
Paternal Grandmother. Id. at 19. Finally, Mother argues that termination of
her parental rights also jeopardizes the Children’s relationship with each
other. Id. at 13, 18.
-6-
J-A19014-15
In support of its conclusion that termination is in the Children’s best
needs and welfare, the court referenced some of Dr. Rosenblum’s testimony
concerning the Children individually, their bond with Mother, and the
Children’s individual relationships with Paternal Grandmother and Maternal
Step-Grandmother. O.C.O. at 7-9. The court also addressed Mother’s
current addictions and mental state. Id. at 8-9. Specifically, the court
reasoned:
Dr. Rosenblum conducted five evaluations with five reports.
When he first met B.R., soon after he came into Paternal
Grandmother’s care, the child showed signs [of] delays. The
child appeared somewhat unsocialized. He had a very short
attention span and would become very easily distracted. He also
demonstrated aggressive behavior. The child was not even able
to engage in much conversation with Dr. Rosenblum. Dr.
Rosenblum testified that B.R. showed signs of Addition [sic]
Deficit Hyperactivity Disorder (ADHD) and a Disruptive
Behavioral Disorder, demonstrated by impulse control
difficulties. His global assessment of his mental health
functioning reflected a moderate level of impairment. Dr.
Rosenblum referred the child to individual counseling and
advised Paternal Grandmother how to best address his needs.
Only seven months later, at his second evaluation, B.R. “very
definitely” showed signs of behavioral improvement. He had
much better self-control, better social skills, and had a much
more productive personal adjustment. Dr. Rosenblum testified
that his caregiver and pre-adoptive foster mother, Paternal
Grandmother, is “highly responsible for the improvements….”
As far as A.R. was concerned, Dr. Rosenblum found her to
be very age appropriate in her behavior. Dr. Rosenblum testified
that in her case with her pre-adoptive foster mother, Maternal
Step-Grandmother – much as Dr. Rosenblum found with B.R.
and his caregiver – that A.R. was receiving excellent care and
developing well. Dr. Rosenblum testified that there was very
definitely an attachment between A.R. and her foster mother.
-7-
J-A19014-15
Dr. Rosenblum testified that the bond between the children
and their Mother is not that of a caregiver relationship. He
testified that the children know who she is and that they love
her, but that it is not a bond … in which there is a representation
of Mother meeting the children’s needs. They do not emotionally
depend on Mother, and therefore, according to Dr. Rosenblum,
the attachment is far less relevant than it was when the children
first left their Mother’s care. According to Dr. Rosenblum, the
attachment is not so necessary and beneficial that the
termination should not occur. In his opinion, the children will
have a sense of closure, and the level of contact with Mother will
continue but simply not in a primary parenting capacity.
Insofar as Mother’s case is concerned, credible expert
testimony was proffered to suggest that termination would not
deprive the children of love, companionship and affection of their
biological mother. It is clear, by virtue of the generally positive
familial relationship that Mother has with both children’s
respective pre-adoptive foster parent that her presence in the
children’s lives will continue. What a legal termination of
Mother’s rights accomplishes is that it will allow the children to
develop in a healthy and safe environment while in the care of
the person they each identify as their primary emotional
caregiver. Mother simply cannot offer this environment, and she
cannot be this type of caregiver.
Mother still has drug addiction problems. She testified that
she was still using as of June 2014. Apart from addiction issues,
Mother has issues with depression. Dr. Rose[n]blum testified
that in addition to her opioid addiction, Mother also presented a
major depressive disorder, with which she still struggles. Dr.
Rosenblum testified that Mother “really has made no progress in
the past two years.” She still uses Suboxone, which she has
bought off the street. Her mental health “has not at all
remained consistent.” Mother still struggles with panic attacks
and anxiety. Dr. Rosenblum testified that she presented herself
“even more depressed than she ha[d] been two year prior.”
Mother’s mental health problems led to a suicide attempt in
2012, and they were the initial cause that the children were
removed from her care. It is simply in the children’s best
interest that their primary caregivers are their pre-adoptive
foster parents. To rule otherwise would be so detrimental to the
children and to their Mother, that it borderlines the irresponsible.
-8-
J-A19014-15
As far as the relationship between the children and their
siblings, this Court cannot believe that such a relationship is
even remotely in jeopardy. It is true that the children will
[grow] up in different homes, but truly there is no alternative.
Meanwhile, both B.R. and A.R. regularly see one [an]other. To
be clear, there was testimony that B.R.’s foster mother – who is
Father’s mother – and A.R.’s foster mother – who is Mother’s
step-mother – do not always see eye-to-eye, especially during
the time immediately preceding the TPR trial. That said, the
caseworker testified very credibly that the disagreements which
have occurred were likely motivated by the stress of the TPR
hearing. The caseworker elaborated in detail that she was not
concerned about contact going forward.
Id. at 7-9. (citations to the record omitted).
In response to Mother’s argument on appeal, we note that the mere
existence of a bond or attachment of a child to a parent will not necessarily
result in the denial of a termination petition. See In re K.K.R.-S., 958 A.2d
529. (Pa. Super. 2008). It is clear from the court’s discussion, quoted
above, that the court valued Mother’s relationship with Children.
Nonetheless, the court concluded that termination of Mother’s parental rights
was in the Children’s best interests.
Our review of the record reveals that the court’s findings are
supported by evidence presented at the hearings. Furthermore, we defer to
the court’s credibility determinations, and discern no abuse of discretion in
its findings as to credibility. See In re Adoption of S.P., 47 A.3d 817,
826-27 (Pa. 2012). Accordingly, we conclude that the court did not abuse
its discretion in terminating Mother’s parental rights to the Children pursuant
to section 2511(b). Thus, we affirm the court orders terminating her
parental rights.
-9-
J-A19014-15
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2015
- 10 -
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534 A.2d 359 (1987)
Neil D. MacKERRON
v.
Thomas R. DOWNING.
Supreme Judicial Court of Maine.
Submitted on Briefs November 2, 1987.
Decided December 10, 1987.
*360 Neil D. MacKerron, Bridgton, pro se.
Jeffrey Thaler, Berman, Simmons & Goldberg, P.A., Lewiston, for defendant.
Before McKUSICK, C.J., and NICHOLS, ROBERTS, WATHEN, SCOLNIK and CLIFFORD, JJ.
PER CURIAM.
The plaintiff, Neil D. MacKerron, appeals from a judgment of the Superior Court, Cumberland County, dismissing his complaint. MacKerron contends that an attorney counseling one spouse in a potential divorce matter has a duty to notify the adverse spouse of the attorney's representation before advising the client to take actions that would economically affect the adverse spouse. We find no merit to MacKerron's claim and affirm the judgment.
On February 24, 1987, Neil D. MacKerron filed a complaint in the Superior Court alleging the following facts. On or about November 7, 1982, the plaintiff's wife, Beverly MacKerron, left the plaintiff, asserting that she wished to obtain a divorce. Several weeks later the plaintiff realized that jointly-owned certificates of deposit and a joint bank account book were missing from the plaintiff's private safe. The plaintiff alleges that those assets were taken by his wife and placed in her name alone, upon the advice of the defendant, Thomas R. Downing, Esq. According to the complaint, "[s]ince that date of November 7, 1982, and prior thereto, the Defendant has acted as attorney and advisor to the Plaintiff's wife, yet the Plaintiff has had no notice from the Defendant of any kind that he was, in fact, representing and advising the Plaintiff's wife, Beverly MacKerron, in a divorce action against the Plaintiff until ... December 31, 1982...." (Emphasis in original.) This behavior on the part of the defendant is alleged to have interfered with the advantageous relationship between the plaintiff and his wife, caused financial disruption of the plaintiff's law practice, violated the plaintiff's civil and constitutional rights and caused the plaintiff severe emotional distress. The complaint prays for compensatory and punitive damages.
On June 15, 1987, the defendant's motion to dismiss for failure to state a claim was granted and the plaintiff appealed.
I.
Dismissal of a complaint for failure to state a claim is in order only when it appears beyond doubt that a plaintiff is entitled to no relief under any set of facts that he might prove in support of his claim. Hall v. Board of Environmental Protection, 498 A.2d 260, 266 (Me.1985). In reviewing the dismissal of a complaint for failure to state a claim, the Law Court examines the complaint in the light most favorable to the plaintiff to determine whether it sets forth the elements of a cause of action or alleges facts that could entitle the plaintiff to relief on some legal theory. Id. at 267.
We find the plaintiff's complaint, even when viewed in this favorable light, utterly lacking in merit. MacKerron argues that Downing is liable to him in tort for negligence. The plaintiff urges this court to recognize a duty owing from an attorney to a client's adversary. It is impossible to reconcile the duty of an attorney to advocate zealously the interests of his client, as recognized by our bar rules, the law of fiduciary relationships and implicit *361 in our adversary legal system, and the duty that MacKerron would have us impose. An attorney has no duty to notify a client's adversary of the attorney's representation before counseling the client, and the failure so to notify results in no breach. To hold otherwise would be to create an unacceptable conflict of interest that would seriously compromise an attorney's effectiveness as counsel for his client. Beecy v. Pucciarelli, 387 Mass. 589, 441 N.E.2d 1035, 1040 (1982). Cf. Finn v. Lipman, 526 A.2d 1380, 1383 (Me.1987).
MacKerron's claim that the failure of his wife's counsel to notify him before advising her violates his due process rights under the United States and Maine Constitutions is so lacking in substance as to require no discussion.
II.
We find this appeal, prosecuted by an attorney representing himself, so lacking in merit as to be frivolous and intended for delay. 14 M.R.S.A. § 1802 (1980); M.R. Civ.P. 76(f). See Boothbay Register, Inc. v. Murphy, 415 A.2d 1079, 1080 (Me.1980); see also M.Bar R. 3.7(a). We therefore impose sanctions in the amount of $300 for attorney fees payable to Thomas R. Downing, Esq., or his attorney, plus treble costs.
The entry is:
Judgment affirmed.
Appellant MacKerron is ordered to pay treble costs and attorney fees of $300 to Appellee Downing or his attorney.
All concurring.
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652 F.2d 196
209 U.S.App.D.C. 203
Pearsonv.Sill
79-2130
UNITED STATES COURT OF APPEALS District of Columbia Circuit
3/13/81
1
D.C.D.C.
AFFIRMED
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50 F.Supp.2d 1320 (1999)
Marie MANDEVILLE, Plaintiff,
v.
CITY OF CORAL GABLES, a municipality, and Ana Baixauli, officially and individually, Defendants.
No. 98-1972-CIV.
United States District Court, S.D. Florida.
June 11, 1999.
*1321 *1322 *1323 George Ware Cornell, Jr., Ft Lauderdale, FL, for plaintiff.
*1324 James C. Crosland, Denise Heekin, Miami, FL, Michael Fertig, Miami, FL, for defendants.
ORDER GRANTING DEFENDANT CITY OF CORAL GABLES' MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT ANA BAIXAULI'S MOTION FOR SUMMARY JUDGMENT
JAMES LAWRENCE KING, District Judge.
THIS CAUSE comes before the Court on the Motion For Summary Judgment filed by Defendant City of Coral Gables ("City") on May 14,1999. Defendant Ana Baixauli ("Baixauli") also filed a Motion For Summary Judgment on May 14,1999. Plaintiff submitted a single response to both Motions on June 1, 1999.
I. Factual and Procedural Background
Plaintiff began her employment with Defendant City's Police Department ("Department") approximately in March 1980. See Aff. of Marie Mandeville, at ¶ 2. Except for a brief assignment in the Detective Bureau, she served as a Police Officer in the Patrol Division until 1989. See id. In 1989, she was promoted to the position of Sergeant. See id. In approximately September 1995, Plaintiff was promoted once again, this time to the position of Lieutenant, and was assigned to the Field Training Program ("FTP") within the Patrol Division. See id. Plaintiff alleges that she received satisfactory and above satisfactory reviews throughout her employment with the Department and that she had not been the subject of an Internal Affairs ("IA") complaint until the occurrence of the events which led to this lawsuit. See id. at ¶ 3, 11.
Defendant Baixauli was a Major in the Department, who was promoted to Deputy Chief on October 6, 1997. See Decl. of Ana Baixauli, at ¶ 2. In addition, she was Commander of the Patrol Division, which gave her policy-making authority over that division. See id. at ¶ 5.
In or about December 1994 or January 1995, Plaintiff was subpoenaed as a witness in a sexual harassment lawsuit brought by Sergeant Deena Paris against Police Chief James Butler. In her testimony, Plaintiff discussed the sexual advances Chief Butler made towards her. See Mandeville Aff., at ¶ 5. After she gave testified in the Paris lawsuit, Plaintiff alleges that Chief Butler warned her that "they are going to come after you now." See id. at ¶ 9. Plaintiff alleges that Chief Butler's words rang true and that she became subject to non-stop harassment at work and unwarranted discipline for actions that were not penalized when done by other officers. See id. at ¶ 10. Despite this alleged adverse treatment, Chief Butler promoted Plaintiff from Sergeant to Lieutenant in September 1995, eight months after she testified against him in the Paris lawsuit. See Dep. of Marie Mandeville, at 7. As FTP Lieutenant, Plaintiff was responsible for conducting meetings with trainers, reviewing the work performance of officers and trainees, scheduling officers and trainees, interviewing and selecting candidates for trainer positions, managing the use of overtime, and filing complete and accurate reports in a timely manner. See Baixauli Decl., at ¶ 7.
In April 1995, the Department created the Women's Issue Committee ("WIC") in order to address the concerns of its female employees. See Mandeville Aff., at ¶ 7. Chief Butler appointed then-Major Baixauli as the WIC's first Chairperson. See id. The WIC held its first meeting on April 4, 1995. See id. at Ex. 1. In a May 2, 1995 memorandum to Chairperson Baixauli, Plaintiff complained that the minutes distributed throughout the Department were not the ones she had drafted. See id. at ¶ 8, Ex. 2. Plaintiff expressed her further *1325 concern that the minutes did not reflect the discussion that had taken place at the WIC's first meeting. See id. The WIC held its last meeting in August 1995, while then-Major Baixauli was still Chairperson. See Baixauli Decl., at Ex. 3. Sometime thereafter, Plaintiff was appointed the WIC's Chairperson. See Mandeville Dep., at 286.
In January 1996, when Plaintiff was serving as a Lieutenant in the Patrol Division, then-Major Baixauli became her immediate supervisor. See Mandeville Aff., at ¶ 12. As Commander of the FTP, Plaintiff submitted two reports to Major Baixauli concerning the FTP's progress in achieving its goals and objectives. See id. In her first memorandum, dated February 25, 1997, Plaintiff simply stated that "[t]he goals for the Field Training Program are coming along nicely." See Baixauli Decl., at ¶ 12, Ex. 4. Major Baixauli returned the memorandum to Plaintiff, with the following admonition and further instruction: "This is unacceptable. Submit a more detailed memorandum listing goals met or not met." Id. Plaintiff responded to Major Baixauli's request with another memorandum on February 26, 1997. In her second report, Plaintiff included some sarcastic remarks regarding certain of the FTP's goals and objectives. For example, regarding the goal of ensuring and maintaining the integrity of the Department and meeting its ever-changing needs through the on-going improvement and maintenance of the FTP, Plaintiff responded, "In as far as the FTP is concerned, this subjective goal has not yet been met due to the possible negligent retention of certain officers by higher authorities than this writer." Id. at Ex. 5. Regarding the objective of maintaining and allocating four active Field Training Officers per patrol shift, Plaintiff reported that "[t]his objective has not been met because it is a pipe dream." Id. Finally, regarding the objective of conducting at least one meeting with all Field Training Officers and Sergeants every four months in the proximity of scheduled shift changes, Plaintiff answered, "This objective has not been met due to the cheapskates who ultimately control overtime pay and compensatory time." Id. Given the nature of Plaintiff's second memorandum, Major Baixauli initiated an IA complaint against Plaintiff, containing one count of insubordination and one count of breach of duty. See id. at ¶ 11. Following a two-month investigation into Major Baixauli's charges (I.A.97-09), on or about April 16, 1997, Police Chief James Harley (who had replaced Chief Butler upon his retirement in March 1997) sustained the two counts, and issued Plaintiff a written reprimand. See id. On or about April 21, 1997, Plaintiff was removed from her position as Commander of the FTP. See id. at ¶ 12. Lieutenant Kevin Condon, a male who already had one special assignment as Commander of the Crisis Management Team (Negotiations), replaced Plaintiff as Commander of the FTP. See id. at ¶ 13.
In March 1997, Sergeant Paul Miyares filed an IA complaint against Plaintiff, alleging that she had inappropriately ordered him to work despite the fact that he was sick. See Mandeville Aff., at ¶ 14. As a result of Plaintiff's orders, Sergeant Miyares had to be hospitalized for dehydration and exhaustion. See Decl. of Katherine Sours, at ¶ 4, Ex. 2. In her sworn statement taken for purposes of the IA investigation (I.A.97-13), Plaintiff admitted that she told Sergeant Miyares to come to work. See id. Plaintiff alleges that she ordered Sergeant Miyares to report to duty notwithstanding his illness because Major Baixauli previously had instructed Plaintiff not to allow staffing levels on the midnight shift to reach the minimum level. See id. On June 12, 1997, Chief Harley sustained Sergeant Miyares' IA complaint, and suspended Plaintiff for ten days. See id. On August 7, 1997, David Brown, Assistant *1326 City Manager, upheld the imposition of Plaintiff's ten-day suspension. See id.
In April 1997, Plaintiff applied for a Lieutenant position in the IA unit. See Mandeville Aff., at ¶ 16. The position required that the person selected have the following minimum qualifications: (1) investigative experience, (2) no sustained IA investigations for the preceding two years and no pending IA investigations likely to be sustained, and (3) credibility and integrity. See Sours Decl., at ¶ 7. On April 21, 1997, Chief Harley promoted Sergeant Dennis Colbert to Lieutenant and selected him for the position in the IA unit. See id., at ¶ 8. Lieutenant Colbert had five and one-half years of investigative experience as a detective with the Department, and had no recent IA complaints. See id.
In September 1997, Defendant Baixauli filed another IA complaint against Plaintiff for the procedure she advised certain officers to follow in transporting a female arrestee. See Baixauli Decl., at ¶ 14. Plaintiff allegedly ordered the officers to transport the arrestee without conducting a search, allegedly advising them that she would search the prisoner upon their arrival to the police station. See id. Defendant Baixauli believed that Plaintiff had violated Department arrest procedures, which state that "[a]ll prisoners will be searched by an officer of the same sex prior to being placed in the transport vehicle, if possible." See id. at Ex. 7. Plaintiff emphasizes the "if possible" portion of the procedure, arguing that the male officers could and should have conducted the pat-down search, given the unavailability of a female officer. See Mandeville Aff., at ¶ 18; see also Decl. of Linda Miller, at ¶ 4 ("[T]he procedure specifically authorizes a pat-down by officers of the opposite sex to the subject being taken into custody.").
Also in September 1997, Plaintiff was on the scene when a riot broke out at the University of Miami Rathskeller. See Mandeville Aff., at ¶ 20. Plaintiff called and reported the incident to Police Chief Skinner, who had replaced Chief Harley. See id. Plaintiff alleges that Chief Skinner instructed her to call him back in the morning, offering no additional advice on how to handle the situation. See id. Plaintiff allegedly called other officers to the scene in order to prevent the incident from escalating, and the incident eventually subsided. See id. However, Chief Skinner later criticized Plaintiff's performance in handling and reporting the incident, and put her on emergency suspension on September 29, 1997. See Baixauli Decl., at 15, Ex. 8. In January 1998, Chief Skinner demoted Plaintiff from Lieutenant to Sergeant. See id.
On or about October 8, 1997, Plaintiff satisfied the conditions precedent to bringing this lawsuit by filing a charge of discrimination with the Florida Commission on Human Relations ("FCHR") and the federal Equal Employment Opportunity Commission ("EEOC"). See Compl., at ¶ 7, Ex. 1. In her charge, Plaintiff alleged that she had been discriminated against on the basis of her sex and had been retaliated against for protesting an unlawful employment action. See id. On or about December 31, 1997, the FCHR issued Plaintiff a letter notifying her that they were forwarding her charge of discrimination to the EEOC for processing. See id. at ¶ 8. The EEOC sent Plaintiff a Dismissal and Notice of Rights letter on May 20, 1998, authorizing her to institute a federal civil rights action. See id. at ¶ 9, Ex. 2. Plaintiff properly filed the above-styled lawsuit within ninety days of receiving the EEOC's letter. See id. at ¶ 10.
In her August 18, 1998 Complaint, Plaintiff brought suit against City and Deputy Chief Baixauli, in her individual and official capacities. In Counts I and II, Plaintiff alleges that Defendant City treated her disparately based on her gender in violation *1327 of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., and the Florida Civil Rights Act of 1992 ("FCRA"), Fla. Stat. § 760.10(1) by removing her as Commander of the FTP, denying her promotion to Commander of the IA unit, and demoting her to Sergeant, all while treating similarly situated male employees differently. See Compl., at ¶¶ 27-41. In Counts III and IV, Plaintiff claims that Defendant City violated the same statutes when it retaliated against her for testifying in the Paris lawsuit and filing a charge of discrimination, in the form of increased hostility and complaints, removal as Commander of the FTP, denial of a promotion to Commander of the IA unit, and demotion to Sergeant. See id. at ¶¶ 42-54. Finally, in Count V, Plaintiff alleges that Defendants City and Baixauli retaliated against her for exercising her First Amendment right to free speech, in violation of 42 U.S.C. § 1983. See id. at ¶¶ 55-59. Plaintiff seeks restitutionary and compensatory damages including, but not limited to, damages for mental pain and suffering, anguish, injury of reputation and loss of capacity to enjoy life, back pay, and front pay. In addition, she seeks costs, including attorneys' and expert fees, and any other equitable relief deemed appropriate by this Court.
II. Legal Standard
Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c) (West 1998); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court must view the evidence in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. If the movant meets this burden, the burden then shifts to the nonmoving party to establish that a genuine dispute of material fact exists. See Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 918 (11th Cir.1993). If the evidence relied on is such that a reasonable jury could return a verdict in favor of the nonmoving party, then the Court should refuse to grant summary judgment. See id. at 919. However, a mere scintilla of evidence in support of the nonmoving party's position is insufficient to defeat a motion for summary judgment. See Anderson, 477 U.S. at 252, 106 S.Ct. 2505. If the evidence is merely colorable or is not significantly probative, summary judgment is proper. See id. at 249-50, 106 S.Ct. 2505.
III. Analysis
A. Sex Discrimination by Defendant City in Violation of Title VII and FCHR
In Counts I and II of the Complaint, Plaintiff alleges that Defendant City discriminated against her on the basis of sex, in violation of Title VII and the FCRA.[1] Specifically, Plaintiff alleges that she was treated disparately from similarly situated males when she was removed as Commander of the FTP, denied a promotion to Commander of the IA unit, and demoted to Sergeant. In addition, Plaintiff alleges that the Department discriminated against her due to her involvement with the WIC. Defendant City disputes the allegations that it discriminated against Plaintiff on the basis of sex in any of these matters. Defendant City also contests Plaintiff's ability to bring her sex discrimination claim to this Court, in light of the retaliation-focused allegations of the charge of *1328 discrimination she filed with the EEOC and the FCHR. The Court will consider the arguments of Plaintiff and Defendant City in turn, in the following order: (1) Defendant City's argument that Plaintiff's sex discrimination lawsuit is beyond the scope of her charge, (2) Plaintiff's allegation of sex discrimination based on her involvement with the WIC, and (3) Plaintiff's allegations of disparate treatment for certain adverse employment actions taken against her.
1. Presence of Allegation of Sex Discrimination in Plaintiff's Charge
The scope of any Title VII lawsuit is limited to the allegations raised in or those that "can be reasonably expected to grow out of" the charge of discrimination filed by the plaintiff with the EEOC. See Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir.1988). In other words, "[a]n aggrieved employee may not complain to the EEOC of only certain instances of discrimination, and then seek judicial relief for different instances of discrimination." Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir.1992).
Defendant City alleges that Plaintiff's sex discrimination claims should be dismissed because the statement of facts accompanying her charge alleges only acts of retaliation. See Def. City's Mem., at 13. Plaintiff contests Defendant City's reading of the charge, arguing that Plaintiff indeed did allege therein that she was discriminated against because of her sex. See Pl.'s Mem., at 12-13.
Plaintiff indicated two causes of discrimination on her charge of discrimination filed with the EEOC and the FCHR: sex and retaliation. See Compl., at Ex. 1 ("I believe I have been discriminated against [on] account of my sex in violation of the Florida Civil Rights Act of 1992 as well as retaliated against for my previous testimony regarding sexual advances from the Chief."). Any EEOC investigation into Plaintiff's case therefore would have extended to her sex discrimination claims. As such, the Court finds that Plaintiff's allegation of sex discrimination is within the scope of her charge.
2. Plaintiff's Alleged Discrimination Based on Her Involvement with the WIC
Plaintiff alleges that Defendant City discriminated against her on the basis of sex for her vocal support for and active participation in the WIC. See Pl.'s Mem., at 13-14. Plaintiff provides two concrete factual examples to demonstrate discrimination suffered by her and, more generally, "the disdain the Department had for women's issues." See id. at 14. First, she notes that someone scrawled "BULL!" onto Chief Butler's February 27, 1995 memorandum announcing the organizational meeting of the WIC. See Mandeville Aff., at Ex. 1. Second, she points to her May 2, 1995 memorandum to Defendant Baixauli, in which she expressed her concern that the minutes of the first WIC meeting had been sanitized and did not reflect the complete discussion that had taken place. Plaintiff argues that these instances sufficiently evidence Defendant City's contempt for women's issues, which she suggests may be considered probative of a discriminatory attitude against women. See Pl.'s Mem., at 14, citing Lynn v. Regents of Univ. of Cal., 656 F.2d 1337, 1343 n. 5 (9th Cir.1981) ("A disdain for women's issues, and a diminished opinion of those who concentrate on those issues, is evidence of a discriminatory attitude towards women.").
Defendant City rebuts Plaintiff's claim on two fronts. First, Defendant City challenges Plaintiff's involvement in the WIC, stating that no WIC meetings were held after August 1995, even after Plaintiff's appointment as the WIC's Chairperson. See Def. City's Mem., at 13. Second, Defendant *1329 City notes that Chief Butler promoted Plaintiff from Sergeant to Lieutenant after the creation of the WIC. See id. Defendant City states further that the fact that other members of the WIC were promoted subsequent to their involvement contravenes Plaintiff's negative characterization of the Department's attitude towards the WIC or women's issues generally. See id.
The instances relied on by Plaintiff in support of her claim, looked at separately or combined, are not at all significantly probative of Plaintiff's position. The fact that someone, presumably a Department employee, wrote the word "BULL!" on the February 27, 1995 memorandum does not mean that Defendant City had or endorsed any disdain for women's issues; at best, it indicates that some individual may have harbored such a discriminatory attitude. Plaintiff's reliance on her memorandum to Defendant Baixauli regarding the minutes of the WIC meeting also is misguided. Plaintiff's memorandum presents her view that the Department was disdainful of women's issues; it cannot and does not provide probative evidence that the Department indeed was disdainful of women's issues. Even viewing the evidence in the light most favorable to her, no reasonable jury could return a verdict in favor of Plaintiff with respect to this component of her sexual discrimination claim. As such, summary judgment in favor of Defendant City is proper.
3. Plaintiff's Alleged Disparate Treatment due to Adverse Employment Actions
In order to establish a prima facie case for violation of Title VII's prohibition against disparate treatment, Plaintiff must establish that (1) she is a member of a protected class, (2) she was subjected to an adverse employment action, (3) her employer treated similarly situated male employees more favorably, and (4) she was qualified to do the job. Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). The Maniccia Court advised that "[i]n determining whether employees are similarly situated for purposes of establishing a prima facie case, it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways." Id. Summary judgment is appropriate where a plaintiff is unable to show the existence of a similarly situated male employee that was treated more favorably by the employer. See Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997).
Plaintiff alleges that the Department treated her differently from similarly situated male employees by removing her as Commander of the FTP, denying her promotion to Commander of the IA unit, and demoting her to Sergeant. Defendant City concedes that Plaintiff is a member of a class protected under Title VII, and that all three of the aforementioned actions qualify as adverse employment actions. However, with respect to each employment decision, Defendant City contends that the relevant male employee was not similarly situated and/or that Plaintiff was not qualified for the position.
a. Plaintiff's removal as Commander of the FTP
Deputy Chief Baixauli describes the responsibilities of Commander of the FTP to include conducting meetings with officers, reviewing the work performance of officers and trainees, scheduling officers and trainees, interviewing and selecting candidates for trainer positions, managing the use of overtime, and filing complete and accurate reports in a timely manner. See Baixauli Decl., at ¶ 7. Defendant Baixauli submits that Plaintiff was unable successfully to fulfill many of these responsibilities. See id. at ¶ 8. For example, presumably due to her discomfort with reviewing the work of *1330 her co-employees, Plaintiff stated that her signature on Probationary Police Officer Monthly Evaluation Forms was intended only to indicate her receipt thereof, rather than her concurrence with the evaluations. See id. at ¶ 10, Ex. 3. Defendant City also provides various memoranda that evidence Plaintiff's difficulty with scheduling the FTP's officers and trainees. See id. at ¶ 8, Ex. 2. Finally, Defendant City contends that Plaintiff's memorandum reporting on the FTP's progress in meeting its goals and objectives was insufficient, insubordinate, and in breach of her duty. See id. at ¶ 11, Ex. 4, 5. In apparent contrast to Plaintiff, Lieutenant Kevin Condon had demonstrated himself able to fulfill similar responsibilities in his position as Commander of the Crisis Management Team.
Plaintiff fails to contest any of Defendant City's evidence regarding her inability successfully to meet the demands of the position of Commander of the FTP. Furthermore, Plaintiff does not argue with Defendant City's statement that Lieutenant Condon was senior to Plaintiff or successful in his position as Commander of the Crisis Management Team. Instead, Plaintiff rests this part of her disparate treatment claim on one statement: "With respect to the Field Training Program, she was removed from her role as Commander and replaced with a man, Lieutenant Condon." Pl.'s Mem., at 15.
Plaintiff has not met her burden of establishing that a genuine issue of material fact exists as to whether she was discriminated against on the basis of sex in violation of Title VII with respect to her removal. By failing to counter Defendant's evidence of Plaintiff's lack of qualifications or Lieutenant Condon's qualifications, Plaintiff effectively has conceded that she is unable to make out a prima facie case for violation of Title VII on this allegation. As such, the Court finds that summary judgment in favor of Defendant is proper.
b. Plaintiff's denial of promotion to Commander of the IA unit
Katharine Sours, Major in the Professional Standards Division of the Department and custodian of IA investigation records, describes the minimum qualifications for the position of Lieutenant in the IA Division as investigative experience, no sustained IA investigations for the preceding two years and no pending IA investigations likely to be sustained, and credibility and integrity. See Sours Decl., at ¶ 7. When Plaintiff applied for the position, she was the subject of two IA investigations, I.A. 97-09 and I.A. 97-13. See id. Defendant City therefore argues that Plaintiff was denied the promotion because she did not meet one of the requisite qualifications, not because of her sex. In contrast to Plaintiff, Lieutenant Dennis Colbert had no recently-sustained IA investigations. See id. at ¶ 8.
Plaintiff does not dispute Major Sours' characterization of the minimum qualifications for the position of IA Lieutenant. Plaintiff certainly cannot deny that she was subject to two IA investigations, given that the commencement of those proceedings constitute part of her retaliatory discrimination claims. Plaintiff also does not contest Defendant City's description of Lieutenant Colbert's qualifications. Once again, Plaintiff's argument is brief: "With respect to the Internal Affairs position, she was denied the job and a less senior male, Lt. Dennis Colbert, was selected." Pl.'s Mem., at 15.
Plaintiff has not met her burden of establishing that a genuine issue of material fact exists as to whether she was discriminated against in violation of Title VII on the basis of sex with respect to her denial of the promotion. Plaintiff has presented no evidence that would counter Defendant City's position that Plaintiff lacked a requisite qualification for the position of IA Lieutenant or its record that Lieutenant Colbert had that qualification. Plaintiff effectively has conceded that she is unable to make out a prima facie case for violation of Title VII on this allegation. As such, the Court finds that summary judgment in favor of Defendant is proper.
*1331 c. Plaintiff's demotion to Sergeant
Defendant City argues that Plaintiff's demotion resulted from the accumulation of IA complaints against her, compounded by Chief Skinner's observations of her performance in handling the Rathskeller incident. See Def. City's Mem., at 9-10. By the time of her demotion, Plaintiff had the following IA investigations against her either completed or pending: (1) for her memorandum improperly reporting on the FTP's progress in meeting its goals and objectives (I.A.97-09), (2) for inappropriately ordering Sergeant Miyares to work despite the fact that he was sick (I.A.97-13), and (3) for inappropriately advising two male officers to transport a female arrestee without first conducting a patdown search of her person (I.A.97-50). Perhaps more important, after outlining specific problems with Plaintiff's handling and reporting of the Rathskeller incident, Chief Skinner concluded a memorandum as to Plaintiff's job performance as follows: "Lt. Mandeville's overall actions in this incident left many gaps in her performance and demonstrated poor judgment in supervising and approving the completion of reports that did not reasonably address all details of what occurred." Baixauli Decl., at ¶ 15, Ex. 8. David Brown, Assistant City Manager, upheld Chief Skinner's decision to demote Plaintiff. Defendant City reasons that all of these inadequacies in Plaintiff's performance made her no longer qualified to hold the position of Lieutenant; accordingly, Defendant City argues she was not demoted to Sergeant on the basis of her sex.
Plaintiff offers no argument whatsoever in support of her sex discrimination claim with respect to her demotion to Sergeant. Since Plaintiff has provided no evidence in support of her contention that her demotion violated Title VII's prohibition on sex discrimination, she has not met her burden of establishing that a genuine dispute of material fact exists with respect to this issue. Summary judgment in favor of Defendant therefore is appropriate.
The Court concludes that Defendant is entitled to summary judgment on Counts I and II of the Complaint, representing Plaintiff's claims of discrimination on the basis of sex in violation of Title VII and the FCRA.
B. Retaliatory Discrimination by Defendant City in Violation of Title VII and FCHR
Title VII makes it an unlawful employment practice for an employer to retaliate against an employee either "because [s]he made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]" or "because [s]he has opposed any practice made an unlawful employment practice by [Title VII]." 42 U.S.C. § 2000e-3(a) (West 1998). In order to establish a prima facie case for violation of Title VII's prohibition against retaliation, a plaintiff must establish that (1) she was engaged in a statutorily-protected activity, (2) she suffered an adverse employment action, and (3) the adverse employment action was causally related to the plaintiff's protected activity. See Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 959 (11th Cir.1997). Once a plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to rebut the presumption of retaliation by producing a legitimate, non-retaliatory reason for its employment decision. See Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1196 (11th Cir.1997). If the defendant proffers a legitimate, non-retaliatory reason for its employment decision, then the presumption of retaliation is rebutted, and the burden shifts back to the plaintiff to show that the employer's proffered reason is pretextual. See id.
1. Retaliation Against Plaintiff for Testifying in Paris Lawsuit
In Counts III and IV of the Complaint, Plaintiff alleges that Defendant *1332 City retaliated against her for testifying in the Paris lawsuit in the form of increased hostility and complaints, removal as Commander of the FTP, and denial of a promotion to Lieutenant of the IA unit. See Compl., at ¶ 43. Although the Court regrets that Plaintiff feels she suffered increased hostility and complaints subsequent to her testimony in the Paris lawsuit, Title VII only protects individuals from retaliation in the form of concrete adverse employment actions. As such, the Court only will consider Plaintiff's allegations that she was retaliated against by being removed as Commander of the FTP and being denied a promotion to Lieutenant of the IA unit.
a. Plaintiff's removal as Commander of the FTP
Plaintiff testified in the Paris lawsuit in December 1994 or January 1995, and was removed from her position as Commander of the FTP effective April 21, 1997. The passage of more than two years between Plaintiff's testimony and her removal attenuates the line of causation between the two incidents considerably. See Maniccia, 171 F.3d at 1369 (holding that fifteen months and twenty-one months between the protected activity and the adverse actions were too long to demonstrate causation). Furthermore, several notable events occurred in that two-year period, further weakening the causal connection. First, Plaintiff was promoted by Chief Butler to Lieutenant in September 1995, eight months after she testified against him in the Paris lawsuit. See Def. City's Mem., at 4. This fact is significant because Plaintiff would not have become Commander of the FTP had she not been promoted to the position of Lieutenant. Second, Plaintiff served as Commander of the FTP for one and one-half years, during which time Defendant City has presented a great deal of evidence that demonstrates Plaintiff was unable successfully to discharge her duties. See id. at 6-7. Third, the February 26, 1997 memorandum, taken in the context of Plaintiff's inability adequately to perform, gives Defendant City a legitimate, non-retaliatory reason for removing Plaintiff as Commander of the FTP. See id. Plaintiff has provided no evidence to demonstrate that Defendant City's reason was pretextual. Finally, the Court notes that Plaintiff's IA complaint stemming from her February 26, 1997 memorandum was sustained by Chief Harley, not Chief Butler or Major Baixauli. For all of the aforementioned reasons, the Court concludes that Plaintiff has not demonstrated that she can establish a prima facie case for retaliatory discrimination based on her removal as Commander of the FTP.
b. Plaintiff's denial of promotion to Lieutenant of the IA unit
Plaintiff was denied a promotion to Lieutenant of the IA unit also in April 1997, two years after she testified in the Paris lawsuit. Again, the Court notes that Plaintiff's retaliatory discrimination claim for the denial rests on shaky ground, given the passage of time between the two incidents. Moreover, Defendant City once again has offered a legitimate, non-retaliatory reason for the adverse employment action that Plaintiff did not satisfy the minimum qualifications due to the number pending IA investigations against her. See id. at 8. Plaintiff argues that using prior disciplines to subject her to another adverse employment action renders Defendant City's action unfair. See Pl.'s Mem., at 10. The Court disagrees with Plaintiff. Plaintiff applied for a position in Internal Affairs; it is imminently reasonable to require prospective employees for such a confidential and quasi-judicial division not to be subject to pending IA investigations. Furthermore, the Court does not sit to second-guess the employment qualifications deemed necessary by the Department. *1333 Since Plaintiff has failed to offer any concrete evidence that Defendant City's proffered legitimate, non-retaliatory reason is pretextual, the Court will grant summary judgment in Defendant City's favor on Plaintiff's retaliatory discrimination claim for her denial of promotion to Lieutenant of the IA unit.
2. Retaliation Against Plaintiff for Filing Charge of Discrimination
In Counts III and IV of the Complaint, Plaintiff also alleges that Defendant City retaliated against her by demoting her to Sergeant after she filed her charge of discrimination on October 8, 1997. See Compl., at ¶ 44. Chief Skinner demoted Plaintiff to Sergeant on January 20, 1998, following a third IA investigation and his observance of Plaintiff's performance in handling and reporting the Rathskeller incident.
In its role as the forum in which individuals who have suffered discrimination may receive justice, this Court takes very seriously any allegations that an individual suffered adverse employment action by filing a charge of discrimination. However, given the facts of this case, the Court does not find that Plaintiff has provided sufficient evidence on which a reasonable jury could find that Defendant City retaliated against her by demoting her to Sergeant. Plaintiff has provided no evidence that any of the legitimate reasons proffered by Defendant City are pretextual; at best, Plaintiff merely has shown that the adverse employment actions suffered by her came within reasonable temporal proximity to her filing of the charge. Because the Court finds that this evidence is not significantly probative, summary judgment in favor of Defendant City is proper.
The Court concludes that Defendant is entitled to summary judgment on Counts III and IV of the Complaint, representing Plaintiff's claims of retaliatory discrimination in violation of Title VII and the FCRA.
C. Retaliation for Exercise of First Amendment Rights by Defendant City and Defendant Baixauli in Violation of Section 1983
In Count V of the Complaint, Plaintiff alleges that the City and Deputy Chief Baixauli, in her official and individual capacities, retaliated against Plaintiff for exercising her First Amendment right to free speech, in violation of 42 U.S.C. § 1983. Plaintiff alleges that Defendants removed her as Commander of the FTP, denied her a promotion to Lieutenant of the IA unit, demoted her to Sergeant, and suspended her for ten days, all in response to her exercise of a constitutional right. The Parties disagree significantly over the threshold question of which speech Plaintiff is alleging that Defendant retaliated against her for making. The Court first will address this matter, and then will proceed with an analysis of whether each Defendant violated Plaintiff's First Amendment rights.
1. Speech For Which Defendants Allegedly Retaliated Against Plaintiff
Defendants disagree with Plaintiff as to which speech Plaintiff is claiming caused Defendant City to retaliate against her. Defendant City operates on the assumption that Plaintiff is claiming that it retaliated against her for the memorandum she wrote to Major Baixauli regarding the FTP's progress towards meeting its goals and objectives. See Def. City's Mem., at 16. Defendant Baixauli similarly believes Plaintiff's February 26, 1997 memorandum to be the speech at issue for purposes of Plaintiff's Section 1983 claim. See Def. Baixauli's Mem., at 3. Plaintiff argues that both Defendants misconstrue the underlying subject of Plaintiff's claim; Plaintiff states that the speech at issue is Plaintiff's May 2, 1995 memorandum to Major Baixauli regarding the distribution of a sanitized version of the minutes of the WIC's first meeting. See Pl.'s Mem., at 16.
*1334 Plaintiff's deposition testimony makes clear that Defendants' position is correct. The following exchange took place during Plaintiff's deposition:
Q. Are you aware that the complaint that your attorneys filed in this case also includes a claim that you have been retaliated as a result of First Amendment speech?
A. Yes.
Q. What was the speech that you claim should receive First Amendment protection?
A. Memorandum that I wrote with reference to the FTO program.
Q. What memorandum was that?
A. There was a memorandum that I wrote addressing the goals, of the progress of the goals.
Mandeville Dep., at 232-33. In further confirmation of Defendants' view is the following exchange:
Q. Were there any other statements or any other form of speech by you other than this memorandum that you think caused Chief Baixauli to take any employment action against you?
A. In this regard, no. But she made numerous complaints and I couldn't do anything right to please her in any way, shape or form.
Q. My question to you is, was there any other speech on your part that you think motivated her to take those actions against you?
A. In this regard I don't know without looking at the file. I believe those were the two that got her upset.
Id. at 234-35. It is the Court's position that Plaintiff clearly brings her Section 1983 claim for Defendants' alleged retaliation in response to her February 26, 1997 memorandum.
With respect to the above testimony, Plaintiff urges the Court to find that the deponent's uncertainty in the final answer mandates a conclusion that the speech at issue is Plaintiff's involvement in the WIC. Plaintiff argues that since Count V of the Complaint incorporates by reference all the factual circumstances laid out in Part I of this Order, Plaintiff's WIC involvement necessarily becomes the speech at issue. Reading Count V in this broad manner would produce absurd results, given that the factual allegations incorporated consist of many other examples of Plaintiff's exercise of First Amendment rights, such as her testimony in the Paris lawsuit and her application for Commander of the IA unit. Given the Complaint's ambiguity, Defendants specifically deposed Plaintiff as to exactly what First Amendment speech she believed Defendant had retaliated against her for making. Since Plaintiff clearly cites to the FTP memorandum as the speech at issue, the Court will undertake its Section 1983 analysis with respect only to that speech.
2. Defendant City's Violation of Plaintiff's First Amendment Rights
The Eleventh Circuit has developed a four-step test to determine whether a governmental employer has taken action in violation of the First Amendment rights of an employee. See Vista Community Servs. v. Dean, 107 F.3d 840, 844-45 (11th Cir.1997). First, the court examines whether the employee engaged in speech that may be "fairly characterized as speech on a matter of public concern." Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th Cir.1989). If the speech does address a matter of public concern, the court considers whether the employee's First Amendment interests are outweighed by the governmental employer's interest in "promoting the efficiency of the public services it performs through its employees." Id. If the employee prevails on the balancing test, the court determines whether the employee's speech played a *1335 "substantial part" in the governmental employer's challenged employment decision. See id. Finally, if the employee shows that the speech was a substantial motivating factor in the state's employment decision, the state must prove by a preponderance of the evidence that it would have made the same employment decision in the absence of the protected speech. See id. at 1566.
a. Speech as matter of public concern
In order to decide whether a statement involves a matter of public concern, the court must analyze the content, form, and context of the speech in order to determine its purpose. See Rankin v. McPherson, 483 U.S. 378, 384-85, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987); Johnson v. Clifton, 74 F.3d 1087, 1092 (11th Cir.1996). If the speech is only of purely personal concern, it is not protected by the First Amendment. See Badia v. City of Miami, 133 F.3d 1443, 1445 (11th Cir. 1998). Absent extraordinary circumstances, the protections of the First Amendment are not available to a public employee who is "speak[ing] not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest." Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The determination of whether a given speech is a matter of public concern is a question of law to be determined by the court. See id. at 148 n. 7, 103 S.Ct. 1684.
In her February 26, 1997 memorandum to Major Baixauli, Plaintiff expresses her frustration with the operation of the FTP, calling one of its objectives "a pipe dream" and those in charge of overtime pay and compensatory time "cheapskates." While the bureaucratic inadequacies of an arm of municipal government may indeed be content worthy of public interest, Plaintiff's personal misgivings especially in the sarcastic form in which they were expressed clearly are not. The context of the speech was a memorandum addressed only to Major Baixauli, which means it likely would not even be presented to other members of the FTP or the Department, let alone the interested public. Indeed Plaintiff admits that she had no intention for anyone aside from Major Baixauli to read her report. See Mandeville Dep., at 232-38. The Court finds that the content, form, and context of Plaintiff's speech demonstrate that she was expressing her personal grievances, rather than matters of public concern.
Because Defendant City has prevailed on the first part of the Bryson test, the Court need not analyze how it would fare against Plaintiff with respect to the other three parts. As such, summary judgment in favor of Defendant City as to Count V is proper. However, the Court nevertheless will analyze the remaining three parts of the Bryson test and offer its view on the Parties' respective positions.
b. Balance of Plaintiff's First Amendment interests with interests of Defendant as government employer
When acting as an employer, the government has wide discretion and control over the management of its personnel and its internal affairs. See Williams v. Alabama State Univ., 102 F.3d 1179, 1184 (11th Cir.1997). In analyzing a government employer's use of this discretion to take action against an employee for her exercise of free speech, the court must consider the time, place, and manner of the employee's speech, as well as its context. See Rankin, 483 U.S. at 388, 107 S.Ct. 2891.
Plaintiff's First Amendment interests clearly are weighty, as are those of all United States citizens. In this case, however, Defendant City's interest in "promoting the efficiency of the public services it *1336 performs through its employees" necessarily outweighed Plaintiff's free speech rights. The brevity and sarcasm with which Plaintiff discussed the FTP's progress on achieving its goals and objectives could severely compromise not only the program's success, but also its continued viability. Had Plaintiff criticized the FTP in a constructive manner, the Court would have a very difficult time concluding that Plaintiff's First Amendment interests were outweighed. Plaintiff, however, chastised her superiors and ridiculed her employer's goals and objectives. This Court cannot say that Defendant City exceeded the great degree of discretion afforded it by law when it subjected Plaintiff to an IA investigation, gave her a written remand, and/or removed her as Commander of the FTP due to her February 26, 1997 memorandum. Because Plaintiff's speech clearly could have had an adverse impact on the Department's achievement of its business, the Court concludes in this situation that Defendant City's interests as a government employer outweighed Plaintiff's First Amendment interests.
c. Speech as "substantial part" of Defendant City's decisions
Defendant City argues that there were legitimate business reasons for removing Plaintiff as Commander of the FTP, suspending her for ten days, denying her a promotion to Lieutenant of the IA unit, and demoting her to Sergeant, such that her speech was not a "substantial part" of any of these adverse employment actions. See Def. City's Mem., at 18. Since she wrongly characterized the speech at issue, Plaintiff failed to address Defendant City's arguments concerning the February 26, 1997 memorandum.
With respect to two of the adverse employment actions identified by Plaintiff, the Court finds that it is unlikely that Plaintiff's speech was even a significant part of Defendant City's decisions. Plaintiff's ten-day suspension resulted from an IA investigation of Sergeant Miyares' complaint against Plaintiff, not from Plaintiff's speech. Plaintiff's demotion to Sergeant, while perhaps influenced by the speech at issue because it resulted in one of three IA investigations against Plaintiff, was proximately caused by Chief Skinner's evaluation of Plaintiff's handling and reporting of the Rathskeller incident.
Plaintiff's speech indeed played a significant part in her removal as Commander of the FTP and the subsequent denial of her promotion to Lieutenant of the IA unit; whether it was a substantial part in these decisions is less clear. Defendant City has entered into evidence several documents which indicate that Plaintiff was not successfully discharging her responsibilities as Commander of the FTP. However, Plaintiff's memorandum alone led to the IA complaint, which seems to have proximately caused Plaintiff's demotion. And that very complaint, in addition to Sergeant Miyares' complaint, together prevented Plaintiff from meeting the minimum qualifications for the position of IA Lieutenant.
The Court finds that Plaintiff's exercise of her First Amendment rights played a substantial part in Defendant City's decisions to remove her as Commander of the FTP and deny her a promotion to Lieutenant of the IA unit. However, having prevailed in the first part of the Bryson test as well as the second part, assuming this Court erred in finding Plaintiff's speech not a matter of public concern summary judgment in favor of Defendant City remains appropriate.
d. Decision in absence of speech
In the last part of the Bryson test, the government employer must show that its legitimate reasons for making the adverse employment decision, standing alone, would have induced it to make the same *1337 decision. See Bryson, 888 F.2d at 1566, citing Price Waterhouse v. Hopkins, 490 U.S. 228, 250-52, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).
Similar to this Court's analysis in Part III.C.2.b above, Defendant City likely would have suspended Plaintiff notwithstanding her speech, in light of her allegedly inappropriate decision to order Sergeant Miyares to work despite being sick. Defendant City also has presented legitimate reasons including, but not limited to, her handling and reporting of the Rathskeller incident for why Plaintiff was demoted to Sergeant. Furthermore, Defendant City denied Plaintiff a promotion because of the number of IA complaints pending against her, not because of the subject of those complaints. Defendant City has sufficiently demonstrated that it would have made these three decisions in the absence of Plaintiff's speech.
Defendant City has not presented sufficient evidence to demonstrate that Plaintiff's shortcomings in discharging her responsibilities, standing alone, would have led to her removal as Commander of the FTP. Given this Court's finding that Plaintiff's speech was not a matter of public concern and that, even if it was, Defendant City's interests outweighed her First Amendment interests, summary judgment in favor Defendant City nevertheless remains proper.
3. Defendant Baixauli's Violation of Plaintiff's First Amendment Rights
In Count V of the Complaint, Plaintiff sues Defendant Baixauli, in her individual and official capacities, for retaliating against her for exercising her First Amendment rights. The Court will examine Defendant Baixauli's liability in each capacity separately.
a. Defendant Baixauli in her individual capacity
Under well-established federal law, government officials performing discretionary functions are immune from suit if their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); see also Vista Community Servs., 107 F.3d at 844 (11th Cir.1997). The plaintiff bears the burden of establishing that the government official violated clearly established law of which a reasonable person would have known. See Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997). Summary judgment is appropriate even where the Court finds that the only conclusion a rational jury could reach is that reasonable officers would disagree about the legality of plaintiff's conduct under the circumstances. See Johnson v. City of Fort Lauderdale, Fla., 126 F.3d 1372, 1378 (11th Cir.1997). Although decisions regarding qualified immunity are made on a case-by-case basis, federal decisions "tilt strongly in favor of immunity by recognizing that only in the rarest of cases will reasonable government officials truly know that the termination or discipline of a public employee violated `clearly established' federal rights." Hansen v. Soldenwagner, 19 F.3d 573, 576 (11th Cir.1994).
The Court already has determined that Defendant City did not violate Plaintiff's First Amendment rights when it removed her as Commander of the FTP, denied her a promotion to Lieutenant of the IA unit, suspended her for ten days, and demoted her to Sergeant. See Part III.C.2. Defendant Baixauli was not directly responsible for three out of four of these adverse employment actions Plaintiff has presented no evidence that Defendant Baixauli was the decision-making authority regarding promotions and/or had any supervisory role in the IA unit, Chief Harley recommended Plaintiff's ten-day suspension on the basis of the complaint instituted by Sergeant Miyares, and Chief Skinner demoted Plaintiff based primarily on his own *1338 evaluation of her handling and reporting of the Rathskeller incident. As to these three adverse employment actions, the Court finds that Defendant Baixauli did not violate Plaintiff's First Amendment rights.
Plaintiff admits that it was within Defendant Baixauli's authority to initiate the IA complaint for insubordination and breach of duty in light of Plaintiff's February 27, 1997 memorandum. See Mandeville Dep., at 82-83. Given the content, form, and context of Plaintiff's speech a progress report in which she belittles the objectives of the FTP and derides officers in the Department the Court finds that Defendant Baixauli did not violate Plaintiff's First Amendment rights by filing the IA complaint. Furthermore, the ultimate decision to remove Plaintiff as Commander of the FTP was made by an individual with higher authority than Defendant Baixauli, Chief Harley. For these reasons, the Court finds that Defendant Baixauli did not violate Plaintiff's First Amendment rights with respect to her removal as Commander of the FTP.
Because the Court concludes that Defendant Baixauli did not violate Plaintiff's First Amendment rights with respect to any of the adverse employment actions suffered by her, summary judgment in favor of Defendant Baixauli (in her individual capacity) is proper.
b. Defendant Baixauli in her official capacity
The Supreme Court has held that "[t]here is no longer a need to bring official-capacity actions against local government officials, for under Monell, [] local government units can be sued directly for damages and injunctive or declaratory relief." Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 87 L.Ed.2d 114, discussing Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
Since Plaintiff also is suing Defendant City in Count V of the Complaint, she may not also maintain her suit against Defendant Baixauli in her official capacity with respect to the same claim. As such, Defendant Baixauli is entitled to summary judgment with respect to Plaintiff's claim against her in her official capacity.
The Court concludes that both Defendants are entitled to summary judgment on Count V of the Complaint, representing Plaintiff's claim of retaliation for exercise of her First Amendment rights, in violation of Section 1983.
IV. Conclusion
Accordingly, after a careful review of the record and the Court being otherwise fully advised, it is
ORDERED and ADJUDGED that Defendant City of Coral Gables' Motion For Summary Judgment be, and the same is hereby, GRANTED. Final judgment is hereby ENTERED in favor of Defendant City of Coral Gables and against Plaintiff Marie Mandeville. It is further
ORDERED and ADJUDGED that Defendant Ana Baixauli's Motion For Summary Judgment be, and the same is hereby, GRANTED. Final judgment is hereby ENTERED in favor of Defendant Ana Baixauli and against Plaintiff Marie Mandeville.
NOTES
[1] Florida courts have held that decisions construing Title VII are applicable when considering claims under the FCRA. See Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1387 (11th Cir.1998). No Florida court has found the FCRA to impose substantive liability where Title VII does not. See id.
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733 So.2d 581 (1999)
Michael Ray DONN, Appellant,
v.
Theresa Allison DONN, Appellee.
No. 97-3992.
District Court of Appeal of Florida, Fourth District.
May 26, 1999.
*582 Robert L. Bogen of the Law Offices of Robert L. Bogen, Boca Raton, and Gordon C. Brydger of Gordon C. Brydger, P.A., Fort Lauderdale, for appellant.
No brief filed for appellee.
PER CURIAM.
Appellant, Michael Donn ("Former Husband") appeals his final judgment of dissolution. Because of the excessive delay and inconsistencies between the final hearing and final judgment of dissolution, we reverse.
The final evidentiary hearing in the case was held over three days. Ten months later the final judgment of dissolution was entered, including an award of permanent periodic alimony and an equitable distribution scheme.
On appeal, the Former Husband asserts numerous errors in the equitable distribution scheme and in the amount of alimony awarded. In addition, the Former Husband argues that he is entitled to a rehearing because of the excessive delay between the final hearing and the final judgment of dissolution. Moreover, the Former Husband contends that the numerous discrepancies between the evidence and the terms of the final judgment suggest that the trial judge did not appropriately recall the evidence presented. We agree.
"An excessive delay between a trial and entry of final judgment may require reversal." Walker v. Walker, 719 So.2d 977, 978 (Fla. 5th DCA 1998)(citing Caswell v. Caswell, 674 So.2d 861 (Fla. 2d DCA 1996)). The Florida Rules of Judicial Administration require that "every judge has a duty to rule upon and announce an order or judgment on every matter submitted to that judge within a reasonable time." Fla. R. Jud. Admin. 2.050(f). Yet, there is no bright line rule as to what constitutes a "reasonable time." Tunnage v. Bostic, 641 So.2d 499, 500 (Fla. 4th DCA 1994).
However, when dealing with delayed rulings by a trial judge, "a key factor in such cases is whether or not there is any conflict or inconsistency between the judge's statements or findings at the time of trial and the ultimate judgment entered later, or if there is a factual finding in the final judgment unsupported by the trial evidence." Florida Air Academy v. McKinley, 688 So.2d 359, 360 (Fla. 5th DCA 1997). For example, in McKenzie v. McKenzie, 672 So.2d 48 (Fla. 1st DCA *583 1996), the final judgment entered a year after the final hearing was reversed because "[i]nconsistencies in the final judgment suggest[ed] that the trial judge may not have recalled the evidence presented at the hearing." McKenzie, 672 So.2d at 49.
In the present case, there was a ten month delay between the final hearing and the final judgment of dissolution. Further, there are numerous inconsistencies between the final judgment and the facts as presented in the final hearing. Moreover, the trial judge failed to make pertinent findings of fact regarding the parties' ability to pay and financial need. As such, we conclude that the excessive delay and inconsistencies, coupled with the failure to include specific findings regarding the award of alimony, warrant a reversal and remand for another evidentiary hearing.
On remand, we would like to remind the trial court that prior to an award of permanent periodic alimony it should consider both the financial need and ability to pay of the parties, and specific findings of fact are necessary for meaningful appellate review. See Segall v. Segall, 708 So.2d 983, 987 (Fla. 4th DCA 1998); Moreno v. Moreno, 606 So.2d 1280, 1281 (Fla. 5th DCA 1992). Furthermore, we would encourage the trial court to recalculate the equitable adjustment for the payment of the Former Husband's attorney's fees, as it seems from the record that the Former Husband may have been charged twice for the same amount.
REVERSED AND REMANDED.
GUNTHER, FARMER and TAYLOR, JJ., concur.
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352 S.W.3d 297 (2011)
The STATE of Texas, Appellant,
v.
Howard Lee GRIGGS, Appellee.
No. 14-11-00084-CR.
Court of Appeals of Texas, Houston (14th Dist.).
October 25, 2011.
*299 Michelle R. Townsend, Houston, for appellant.
Sarah Vernier Wood, Houston, for appellee.
Panel consists of Justices BROWN, BOYCE and McCALLY.
OPINION
JEFFREY V. BROWN, Justice.
Appellee Howard Lee Griggs was indicted by a Harris County grand jury for the felony offense of possession of a controlled substance, namely cocaine. The appellee moved to suppress the evidence on the grounds that the officer's affidavit in support of the application for the search warrant that lead to the appellee's arrest and indictment lacked substantial evidence that any contraband or illegal drugs would be found inside the premises to be searched. The trial court granted the motion. The State appeals, contending that the trial court erred by failing to allow for the magistrate's reasonable inferences and show appropriate deference to the magistrate's determination that probable cause existed based on the fact contained in the affidavit. We reverse and remand.
*300 I
On September 16, 2010, a magistrate found that probable cause existed to support the issuance of a search warrant for a residence located at 4811 Eppes in Houston. The magistrate's determination was based on the affidavit of Houston Police Department Officer B.T. Craig. In relevant part, the affidavit recited the following:
4. It is the belief of the affiant, and the affiant hereby charges and accuses that the suspected party, more fully described in paragraph III, are in possession of the above listed controlled substance (Cocaine), having the intent to deliver said dangerous drug to person or persons unknown.
5. My belief of the aforesaid statement is based on the following facts: I received information from a confidential informant that crack cocaine was being stored and sold from within the residence located at 4811 Eppes, Houston, Harris County, Texas. Within the past 48 hours, myself, and Officer C. Scales met with a credible and reliable confidential informant for the purpose of making a controlled buy from within the residence located at 4811 Eppes, Houston, Harris County, Texas. The credible and reliable confidential informant has given your affiant information on illegal narcotics trafficking on at least three occasions and on each and every occasion the information has proved to be accurate and has led to the arrest of persons and/or the seizure of illegal narcotics. The credible and reliable confidential informant will remain anonymous for security reasons and will herein be called informant.
I checked the informant and found that he/she was void of any contraband or money. The informant was given [a] sum of city money and instructed to attempt a purchase of Crack Cocaine from within the residence located at 4811 Eppes, Houston, Harris County, Texas. I drove the informant to the target location. The informant exited my vehicle and walked to the front of the target location. The informant walked out of my sight for approximately two minutes. I observed the informant walk away from the target location. The informant walked back to my vehicle and handed me [a] beige colored chunk substance (Crack Cocaine). The informant was again checked and found to be void of any contraband or money.
The informant stated that he/she walked to the front door of the target location and met with the suspected party, described above in paragraph III, in the front of the location. Informant stated that he/she asked the suspected party for some crack. Informant stated that he/she handed the suspected party the buy money. Informant stated that the suspected party walked into the target location and then returned. Informant stated that the suspected party handed him/her the crack. Informant stated that he/she advised the suspected party that he/she would be back later. Informant stated that the suspected party advised him/her to come back. Informant stated that he/she then walked back to Officer Craig and handed Officer Craig the crack. The informant was again checked and found to be void of any contraband or money.
. . .
Based on the fact that your affiant received information that Crack Cocaine was being stored and sold from within residence located at 4811 Eppes, Houston, Harris County, Texas and based on the fact that the informant was able to make a purchase of Crack Cocaine from the accused within the last 48 hours and *301 based on the fact that the informant was invited to return to make future purchases I believe that there is probable cause to believe that the suspected party is in possession of a quantity of the controlled substance, (Cocaine) for the purpose of sale to person or persons unknown.
In the affidavit, the "suspected party" was identified as "[a] Black male, 48 to 52 years old, 210 to 230 pounds, 5'07" to 5'09" tall, having short length hair, and dark brown complexion, and going by the name "`Howard.'" The affidavit was sworn to on September 16, 2010, and the search warrant based on the affidavit issued that same day. The following day, the appellee was arrested and crack cocaine and other items were seized.
The appellee moved to suppress the evidence, arguing that the affidavit was insufficient to support the issuance of the search warrant. At a hearing on the motion, the trial court granted the motion, concluding that the affidavit lacked any information to support an inference that additional narcotics would be found in the residence. This appeal followed.
II
A
A search warrant may not legally issue unless it is based on probable cause. U.S. Const. amend. IV; Tex. Const. art. I, § 9; Tex.Code Crim. Proc. art. 1.06. When reviewing a trial court's decision on a motion to suppress, we normally use a bifurcated standard of review. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We defer to the trial court's determination of historical fact or questions of mixed fact and law when they involve credibility determinations. Id. But, we review de novo the application of law to the facts, or mixed questions that do not turn on the determination of credibility. Id. As to search warrants, however, "[b]oth appellate courts and trial courts alike must give great deference to a magistrate's implicit finding of probable cause." State v. McLain, 337 S.W.3d 268, 271-72 (Tex. Crim.App.2011). The issuing magistrate's determination of probable cause will be sustained if the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
When reviewing a magistrate's determination, we "`should interpret the affidavit in a commonsensical and realistic manner, recognizing that the magistrate may draw reasonable inferences. When in doubt, we defer to all reasonable inferences that the magistrate could have made.'" McLain, 337 S.W.3d at 271 (quoting Rodriguez v. State, 232 S.W.3d 55, 61 (Tex.Crim.App.2007)). A "grudging or negative attitude" by reviewing courts toward warrants is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant. Gates, 462 U.S. at 236, 103 S.Ct. 2317. Whether the facts alleged in a probable-cause affidavit sufficiently support a search warrant is determined by examining the totality of the circumstances. Id. at 230-31, 103 S.Ct. 2317. A search warrant is supported by probable cause when the facts set out within the "four corners" of the affidavit are "sufficient to justify a conclusion that the object of the search is probably on the premises to be searched at the time the warrant is issued." Davis v. State, 202 S.W.3d 149, 154 (Tex.Crim.App. 2006).
B
In its sole issue, the State contends that the trial court failed to accord proper deference to the reasonable inferences the *302 magistrate could have drawn from the facts contained in the affidavit and to the magistrate's determination that probable cause existed to support the issuance of a search warrant. The appellee responds that the trial court correctly determined the search warrant was invalid because the tip from the confidential informant is silent as to when or how the information was obtained, the controlled buy described in the affidavit was not "controlled" because the officers did not perform surveillance on the informant, and the affidavit was insufficient because it did not provide a connection between illegal drugs and the residence. The appellee raises numerous sub-issues within these complaints.
The appellee's arguments invite us to scrutinize discrete parts of the affidavit and find each deficient so that the affidavit as a whole cannot support the magistrate's probable-cause finding. But we are not to analyze the affidavit in a "hyper-technical manner." McLain, 337 S.W.3d at 271. The proper inquiry for reviewing courts, including this court and the trial court, is whether, under the totality of the circumstances, there are sufficient facts, coupled with inferences from those facts, to establish a "fair probability" that evidence of a particular crime will likely be found at a given location. Id. at 272; Rodriguez v. State, 232 S.W.3d 55, 62 (Tex.Crim.App. 2007). The issue is not whether there are other facts that could have, or even should have, been included in the affidavit; we focus instead on the combined logical force of facts that are in the affidavit. Rodriguez, 232 S.W.3d at 62. If in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded warrants. Lopez v. State, 535 S.W.2d 643, 647 (Tex.Crim.App.1976) (citing United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)).
Turning to the affidavit itself, it identifies the affiant as Officer B.T. Craig, an officer of the Houston Police Department. It reflects that Craig received information from a confidential informant that crack cocaine was being "stored and sold" from within the residence to be searched. The affidavit also reflects that Craig and another officer met with a credible and reliable confidential informant for the purpose of making a controlled buy from within the residence. Craig avers that this informant is credible and reliable because the informant has given him accurate information on illegal narcotics trafficking on at least three occasions and the information has led to the arrest of persons and the seizure of illegal narcotics.
Describing the controlled buy, Craig averred that he first checked the informant and confirmed that the informant did not possess any contraband or money. He gave the informant an unspecified amount of city money and instructed the informant to attempt to buy crack cocaine from the residence. He drove the informant to the residence, and the informant got out and walked to the front door. Craig was not able to see the informant "for approximately two minutes," after which time he saw the informant walk away from the residence and return to Craig's vehicle. The informant handed Craig a "beige colored chunck substance" believed to be crack cocaine. Craig again checked the informant to confirm the informant had no contraband or money. The substance was later tested and was found to be positive for cocaine.
Craig further avers that the informant told him that the controlled buy took place at the front of the residence. After the informant gave the appellee the buy money, *303 the appellee went inside the residence to retrieve the crack cocaine. The appellee returned with the crack cocaine to complete the transaction. The informant told Craig that the appellee said he would be back later and he "advised" the informant to return as well. Craig averred that he believed he had probable cause to believe the appellee possessed cocaine for sale to others based on the following: (1) he received information that crack cocaine was being stored and sold at the residence located at 4811 Eppes; (2) the informant was able to make a purchase of crack cocaine from the appellee at the residence "within the last 48 hours"; and (3) the informant was invited to return to make future purchases.
Thus, the affidavit reflects the following: Craig received a tip that narcotics were being stored and sold out of a residence at 4811 Eppes. Craig identified the suspected party in charge of or controlling the residence as a Black male going by the name "Howard." Craig investigated the tip by conducting a controlled buy using a credible and reliable confidential informant. Although Craig did not witness the transaction, the informant told Craig that the transaction took place in front of the residence, which Howard entered to retrieve the crack cocaine. Howard also told the informant he would be back later and the informant should return too, presumably to buy more narcotics. The informant returned to Craig with a substance later determined to be cocaine. The controlled buy occurred no more than forty-eight hours before the affidavit was submitted and the search warrant issued. Based on the totality of these facts and the inferences drawn from them, we conclude the affidavit supported the magistrate's probable-cause finding.
As noted above, the appellee challenges the affidavit on numerous grounds. First, the appellee contends the original tip that "crack cocaine was being stored and sold from within the residence located at 4811 Eppes" is stale, because the affidavit fails to state when Craig received the information, when the confidential informant received the information, or when the alleged activity took place. Thus, the appellee urges, it is "impossible to determine whether the tip is from ten years or ten minutes" before the affidavit. See Sherlock v. State, 632 S.W.2d 604, 607-08 (Tex. Crim.App.1982) (holding affidavit was insufficient to support search warrant when it failed to state when the acts forming the basis for a finding of probable cause occurred).
Facts stated in an affidavit must be so closely related to the time of the issuance of the warrant that a finding of probable cause is justified at that time. Lockett v. State, 879 S.W.2d 184, 188-89 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd). The proper method to determine whether the facts supporting a search warrant have become stale is to examine, in light of the type of criminal activity involved, the time elapsing between the occurrence of the events set out in the affidavit and the time the search warrant was issued. Hafford v. State, 989 S.W.2d 439, 440 (Tex.App.-Houston [1st Dist.] 1999, pet.ref'd).
In this case, although the affidavit does not state when Craig received the information that "crack cocaine was being stored and sold" from within 4811 Eppes, the affidavit does reflect that "[w]ithin the past 48 hours" Craig and another officer met with a confidential informant and conducted the controlled buy. Thus, no more than forty-eight hours elapsed between the controlled buy and the request for and issuance of the warrant on September 16, 2010. Contrary to the appellee's assertion, then, the affidavit does provide a current *304 time frame from which the magistrate could determine that the evidence sought would be at the residence when the warrant issued. See McLain, 337 S.W.3d at 273; State v. Cantu, 785 S.W.2d 181, 183-84 (Tex.App.-Houston [14th Dist.] 1990, pet. ref'd).
The appellee also contends the original tip is invalid because it contains no foundation, detail, or background data on which a court could make a valid probable-cause determination. Alone, the tip that cocaine was being "stored and sold" at the residence is no more than a bare assertion, but the tip combined with the subsequent controlled buy provides facts from which a magistrate could reasonably infer that the sale of cocaine was an ongoing enterprise rather than an isolated incident. This conclusion is further supported by the appellee's statement that he would be back later and the informant should return also. Therefore, the relevant information contained in the affidavit was not stale. See Hafford, 989 S.W.2d at 440-41 (holding affidavit not stale when affiant averred informant made controlled buy at defendant's residence and witnessed other narcotics transactions at defendant's residence between date of controlled buy and date affidavit was submitted three days later); Lockett, 879 S.W.2d at 189 (stating that when the affidavit recites facts indicating activity of a protracted and continuous nature, the passage of time becomes less significant).
Although the appellee contends the affidavit provides no indication why the informant should return, and therefore it would be improper to infer that the appellee was encouraging the informant to return to buy additional narcotics, we conclude from the context of the conversation, which occurred immediately after the successful conclusion of the illicit transaction, that a magistrate could reasonably infer that the appellee was encouraging the informant to return to buy more narcotics. See Rodriguez, 232 S.W.3d at 61 ("When in doubt, we defer to all reasonable inferences that the magistrate could have made."). Certainly, Officer Craig, to whom the informant recounted the appellee's statements, understood the conversation that way, as one of reasons he believed probable cause existed was that "the informant was invited to return to make future purchases."
Considering all the facts in the affidavit along with reasonable inferences from those facts, we conclude that there was a fair probability that additional illegal drugs continued to be stored and sold at the residence just as the original tip indicated. See Davis v. State, 27 S.W.3d 664, 667-68 (Tex.App.-Waco 2000, pet. ref'd). Moreover, although the affidavit did not reflect that the informant had seen additional narcotics in the residence, the magistrate could have inferred that additional narcotics were in the residence from the facts provided. See Bodin v. State, 782 S.W.2d 258, 259-60 (Tex.App.-Houston [14th Dist.] 1989), rev'd on other grounds, 807 S.W.2d 313 (Tex.Crim.App.1991) ("That the affidavit in the case before us fails to allege the informant saw methamphetamine in appellant's apartment does not diminish the probable cause supporting the issuance of the search warrant. The information in the affidavit that methamphetamine was purchased in appellant's apartment provides a reasonable basis to infer that methamphetamine was located in the apartment.").
The appellee also argues the original tip is not credible because it is impossible to determine the identity of the informant or whether he or she was credible, and the affidavit does not contain any facts describing how the he informant acquired his or her knowledge of the information. See Hennessy v. State, 660 S.W.2d 87, 91 (Tex. *305 Crim.App.1983) ("Hearsay-upon-hearsay may be utilized to show probable cause as long as the underlying circumstances indicate that there is a substantial basis for crediting the hearsay at each level."). The appellee argues the affidavit referred to two different informants, one who gave the tip ("a confidential informant") and another who later performed the controlled buy ("a credible and reliable confidential informant"). The appellee maintains that a common-sense reading of the affidavit's plain language shows that two informants exist, and "[o]nly a hyper-technical interpretation would assume that there was only one informant."
We do not agree that, based on the plain language of the affidavit, the magistrate could not have reasonably believed there was only one informant. See Blake v. State, 125 S.W.3d 717, 727 (Tex. App.-Houston [1st Dist.] 2003, no pet.) (holding magistrate could have interpreted affidavit in common-sense and realistic manner to reasonably infer that only one informant was involved). But even assuming the appellee's assertion is correct, under the totality-of-circumstances test, an informant's credibility is simply a factor to be considered. See Gates, 462 U.S. at 232-33, 103 S.Ct. 2317. Here, the affidavit does address the credibility of the informant who participated in the controlled buy, and the appellee does not challenge this informant's credibility and reliability. The circumstances of a controlled buy, standing alone, may corroborate an informant's tip and provide probable cause to issue a warrant. See Ford v. State, 179 S.W.3d 203, 212 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd); Sadler v. State, 905 S.W.2d 21, 22 (Tex.App.-Houston [1st Dist.] 1995, no pet.).
The appellee also contends the controlled buy was not "controlled" because the officers did not maintain surveillance on the informant during the controlled buy and did not observe the informant enter the residence. See Harris v. State, 184 S.W.3d 801, 813 (Tex.App.-Fort Worth 2006), rev'd on other grounds, 227 S.W.3d 83 (Tex.Crim.App.2007) ("Controlled buys that have constituted sufficient corroboration of an informant's statement have been those in which officers either have seen the transaction itself or have, at the very least, seen the informant enter the door of the specific house or apartment and come out with the drugs."). The appellee argues that the informant "could easily have retrieved drugs from behind a bush or from a nearby co-conspirator and then simply lied to officers." We disagree that, given the totality of the circumstances in this case, the officer's failure to keep the informant in view at all times undercuts a finding of probable cause.
Craig averred that when conducting the controlled buy, he first checked the informant to make sure the informant possessed no money or contraband. He then drove the informant to the residence, where the informant got out of the car, walked to the front of the location, and was out of Craig's sight "for approximately two minutes." The informant returned with crack cocaine and described the transaction with the appellee. Craig again checked the informant to confirm the informant possessed no money or contraband. Although it may have been preferable for the officer to maintain constant surveillance in some way, it is not necessary that an officer maintain constant surveillance on an informant during a controlled buy to present a magistrate with sufficient facts to reasonably conclude that the object of the search would probably be on the premises at the time the warrant is executed. See Williams v. State, 37 S.W.3d 137, 140-41 (Tex.App.-San Antonio 2001, pet. ref'd) (affirming denial of motion *306 to suppress when informant not searched before or kept in view during buy); Orlando v. State, No. 14-06-00912-CR, 2008 WL 1795028, at *4 (Tex.App.-Houston [14th Dist.] Apr. 22, 2008, no pet.) (mem. op., not designated for publication) (noting "constant surveillance" was not required and holding affiant's averment that he maintained "sporadic" surveillance of informant and townhome during controlled buy was sufficient to supporting probable-cause finding). On these facts, the brief interval when Craig could not see the informant does not render the circumstances of the controlled buy in this case insufficient to support a finding of probable cause.
Turning to the appellee's remaining contentions that the drugs were not sufficiently linked to the place to be searched, but instead only to the "suspected party," and that the suspected party is not described in the affidavit, the record reflects otherwise. The physical description and first name of the "suspected party" is set out in the affidavit and he is described as being in charge or control of 4811 Eppes, the place to be searched. The suspected party was present at 4811 Eppes when the informant arrived to purchase narcotics, conversing with the informant at the front door of the residence and retreating into the residence to retrieve the requested cocaine. As such, the suspected party was described in the affidavit and the probability that cocaine would be found inside the residence at 4811 Eppes, not simply on the person of the suspected party, was sufficiently established. See Washington v. State, 902 S.W.2d 649, 654 (Tex.App.-Houston [14th Dist.] 1995, pet. ref'd) (holding informant's tip that appellant was selling crack cocaine from his business, corroborated by controlled buys, was sufficient to support probable-cause finding even though exact location where cocaine was stored was not independently verified by officers).
The appellee argues that "[t]he sale of drugs outside a house can be likened to the discovery of drugs outside a house in the garbage." See State v. Davila, 169 S.W.3d 735, 739-40 (Tex.App.-Austin 2005, no pet.) (holding informant's conclusory tip combined with officer's discovery of marijuana in plastic bag inside garbage can set out by the curb for pick up at suspected premises was insufficient to support probable cause, noting that "garbage containers left outside for collection are readily accessible to the public"). But the illegal drugs sold to the informant in this case were retrieved from within the residence, not from the suspected party's person or from a garbage can on the curb. There is no basis to conclude that the facts presented in the affidavit at issue here bear any resemblance to the discovery of narcotics in the garbage at the street curb of a residence.
We conclude the affidavit sufficiently established probable cause justifying the issuance of the warrant and therefore sustain the State's issue.
* * *
We reverse the trial court's judgment and remand this case for further proceedings consistent with this opinion.
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578 F.2d 567
Joe Oliver CAVETT, Plaintiff-Appellant,v.Tom ELLIS, County Clerk of Dallas County, and Bill Shaw,District Clerk of Dallas County, Defendants-Appellees.
No. 76-3118.
United States Court of Appeals,Fifth Circuit.
Aug. 17, 1978.
Michael Lowenberg, Dallas, Tex. (Court-appointed not under Act), for plaintiff-appellant.
John B. Tolle, Asst. Dist. Atty., Henry Wade, Crim. Dist. Atty., Dallas, Tex., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Texas.
Before THORNBERRY, RONEY, and HILL, Circuit Judges.
THORNBERRY, Circuit Judge.
1
The appellant, Joe Oliver Cavett, brought this suit under 42 U.S.C. § 1983 seeking (1) a declaratory judgment that five state criminal convictions obtained against him1 are unconstitutionally invalid, and (2) an order directing clerks of various courts to expunge the records of conviction. The appellant has fully discharged the sentences resulting from the five challenged convictions.2 The district court dismissed the complaint for failure to state a claim on which relief can be granted. See Rule 12(b)(6), Fed.Rules Civ.Proc. Finding ourselves bound by Fifth Circuit precedent, we affirm.
2
Although previous Fifth Circuit cases have not always distinguished between the two distinct forms of relief requested by the appellant, we will discuss the request for expungement separate from the request for a declaratory judgment.
3
A. Expungement.
4
In Rogers v. Slaughter, 469 F.2d 1084 (5 Cir. 1972), the plaintiff argued that a state criminal conviction had been unconstitutionally obtained because he had not been advised of the right to counsel. The district court, agreeing with the plaintiff, ordered that the record of conviction be struck and expunged from various public records.3 In vacating this part of the district court's order we said:
5
The District Court, nevertheless, went too far in ordering the expunction of the official public records. This remedy gave the defendant more relief than if he had been acquitted.
6
Carrying and discharging a concealed weapon does constitute a crime in Jacksonville, and the Court's privilege to expunge matters of public record is one of exceedingly narrow scope. See, e. g., Herschel v. Dyra, 365 F.2d 17 (7th Cir. 1966); Severson v. Duff, 322 F.Supp. 4 (M.D.Fla.1970); Parducci v. Rutland, 316 F.Supp. 352 (M.D.Ala.1970). Public policy requires here that the retention of records of the arrest and of the subsequent proceedings be left to the discretion of the appropriate authorities. The judicial editing of history is likely to produce a greater harm than that sought to be corrected.
7
469 F.2d at 1085.
8
It is therefore clear that the Rogers holding prohibits a lower federal court from ordering the editing of public records in the general case. Since Cavett has alleged no special circumstance that would take him out of the Rogers rule, the district court was clearly correct in dismissing Cavett's request for the expunction of public records.
9
B. The Declaratory Judgment.
10
We believe that the district court was also correct in dismissing the request for a declaratory judgment since under Fifth Circuit precedent an action under 42 U.S.C. § 1983 cannot be used to attack the integrity of a state criminal conviction.
11
In Carter v. Hardy, 526 F.2d 314 (5 Cir. 1976) (Carter I), cert. denied, 429 U.S. 838, 97 S.Ct. 108, 50 L.Ed.2d 105 (1976), the plaintiff had been convicted of two state criminal offenses and had satisfied the sentences. The plaintiff sought an "order requiring defendants to expunge the . . . convictions from all official records within his custody and for declaratory relief judgment that such convictions are constitutionally invalid, as well as such other and further relief as may appear just and proper." 526 F.2d at 314. While we only discussed the expungement request in the body of the opinion, we nonetheless affirmed the dismissal of the entire complaint.
12
In Carter v. Hardy, 543 F.2d 555 (5 Cir. 1976) (Carter II), the plaintiff argued that he was entitled to expunction and a declaratory judgment because the state convictions were predicated on an unconstitutional statute. We again held that Carter's complaint failed to state a cause of action.
13
Finally, in Hill v. Johnson, 539 F.2d 439 (5 Cir. 1976), the plaintiff under 42 U.S.C. § 1983 sought to have a discharged state conviction declared unconstitutionally invalid and have it expunged from the court's records. We held that on the basis of Carter I the complaint failed to state a cause of action.
14
It is apparent to us that the plaintiff in the instant case stands precisely in the same shoes as did the plaintiff in Carter I, Carter II, and Hill v. Johnson, supra. Since the facts of the instant case are identical in all pertinent respects to these cases, our previous decisions control, as under our rule, one panel cannot overrule another panel. We cannot, in good faith, distinguish the present case from the ones cited above.
15
Although we are compelled by the other cases, we feel it necessary to point out that the other cases affirmed without comment the failure to grant declaratory relief. Recognizing this, we wish to make a few comments in an attempt to supply a rationale for our previous decisions.
16
Stripped to the bone, the plaintiff's action under § 1983 is little more than a habeas corpus action without a custody requirement. We do not believe that § 1983 was meant to be a substitute for habeas corpus when there is no custody. Under 28 U.S.C. § 2254, we have authority to grant habeas corpus relief to persons in custody pursuant to judgments of state courts. This is the Great Writ, and we endeavor to make it available to those suffering under unconstitutional imprisonment. We have, however, refused to extend habeas corpus relief to those not in custody.4 Under his theory of § 1983, the appellant would have us sit in perpetual review of all criminal decisions. We will not make the appellant's § 1983 action the greater writ by avoiding the custody requirement of § 2254 indirectly while refusing to extend the custody requirement directly. Cf. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1972).
17
Despite our belief that the plaintiff's § 1983 action is an improper attempt to avoid the custody requirements of § 2254, we believe the arguments against the use of § 1983 for the purpose of impeaching a completed state criminal conviction far outweigh the possible salutory benefits of such an action.5 First, we are concerned with finality. The convictions complained of occurred years ago. Cavett apparently did not appeal his convictions nor did he seek collateral review while he was in custody. After Cavett had the opportunity to appeal and collaterally attack the convictions in both state and federal court, and after the sentences had been discharged, the state has a legitimate expectation that it will not be called upon to defend the integrity of convictions that occurred years before. It is certainly possible, if not probable, that during the years, records of past proceedings become lost or destroyed and witnesses become missing or dead. Given this possibility, even a properly convicted felon could wait out the records of a case and then bring his action. This is a luxury that is not allowed in habeas corpus, see Rule 9(a), Rules Governing § 2254 cases, but would be available if this action were allowed. Second, we think it is self evident that these suits would consume valuable judicial time better given to other cases.6 We find that this is especially true since apparently the Texas Court of Criminal Appeals is willing to hear Cavett's suit under its habeas corpus jurisdiction. See Ex parte Guzman, 551 S.W.2d 387 (Tex.Cr.App.1977), Ex parte Langston, 510 S.W.2d 603, on resubmission, 511 S.W.2d 936 (Tex.Cr.App.1974), Ex parte Burt, 499 S.W.2d 109 (Tex.Cr.App.1973). See also Parris v. State, 232 Ga. 687, 208 S.E. 493 (1974).
18
Against these considerations is the plaintiff's argument that if we do not do as he requests, he will be left without a remedy in federal court to contest the validity of the five convictions. We believe this argument begs the question. The question is not whether the plaintiff will be left without a remedy, the question is whether the plaintiff is entitled to a remedy here and now. The plaintiff could have appealed and collaterally attacked each of his convictions, but apparently did not do so. It is simply too much to forego these opportunities and now claim that if we do not entertain his suit, he will go without a remedy.
19
Since there is no theory upon which the plaintiff can prevail, the district court is affirmed.
20
AFFIRMED.
1
Cavett attacks four state criminal convictions on the grounds that he was not represented by counsel and that the Texas burglary statute was unconstitutional. He attacks a fifth state conviction on the basis of inadequate representation of counsel
2
Cavett is presently incarcerated as a result of a sixth felony conviction wholly unrelated to the five convictions challenged here
3
Apparently, the district court also issued a declaratory judgment but the issuance of the judgment was not complained of by the defendants
4
For example, in Carter I the plaintiff sought relief under 42 U.S.C. § 1983, similar to the relief sought in the instant case. The district court thought that the plaintiff's remedy was properly by way of the writ of habeas corpus. In rejecting this view we stated:
Moreover, we find that habeas corpus is not a practical alternative to Carter under the circumstances of this case. Habeas corpus lies essentially to challenge illegal restraint; the writ is not available where the sentence challenged has been fully served and is not being used for enhancement purposes. E. g., Diehl v. Wainwright, 423 F.2d 1108 (5 Cir. 1970); United States ex rel. Stewart v. Yeager, 434 F.2d 1308 (3 Cir. 1970); see Hudson v. State of Alabama, 361 F.Supp. 1102 (M.D.Ala.1973), rev'd on other grounds, 493 F.2d 171 (5 Cir. 1974). Since, according to Carter's allegations, he is not presently confined as a direct or indirect result of either the 1963 or 1965 conviction, remission of his claim to habeas corpus would be remission to a dead end.
526 F.2d at 315.
See also Ellis v. Dyson, 421 U.S. 426, 95 S.Ct. 1691, 1699, 44 L.Ed.2d 274 (1975); Westberry v. Keith, 434 F.2d 623 (5 Cir. 1970), Theriault v. United States ex rel. State of Mississippi, 433 F.2d 990 (5 Cir. 1970).
Additionally, we have refused to allow collateral attack upon state convictions via the writ of error coram nobis. Although the writ of error coram nobis has been abolished in the civil context, see Fed.Rules Civ.Proc. 60(b), the writ still survives with respect to federal criminal convictions under the All Writ Statute, 28 U.S.C. § 1651(a). Correa-Negron v. United States, 473 F.2d 684 (5 Cir. 1973), Rener v. United States, 475 F.2d 125 (5 Cir. 1973), Rodgers v. United States, 451 F.2d 562 (5 Cir. 1971). But since the writ can be issued only by the original sentencing court, Grene v. United States, 448 F.2d 720, 721 (5 Cir. 1971), it is unavailable to review state court decisions. Theriault v. State of Mississippi, 390 F.2d 657 (5 Cir. 1968), Thomas v. Cunningham, 335 F.2d 67, 69 (4 Cir. 1964); Rivenburgh v. State of Utah, 299 F.2d 842 (10 Cir. 1962).
5
Supposedly, a potential employer would be more likely to hire the six-time felon Cavett because Cavett could produce a judgment from this court declaring that five of those convictions were unconstitutionally obtained. Cavett's argument that five felony conviction bar his voting and holding a state license must fall because he has been convicted of a sixth felony which alone presents these collateral consequences. See Shepherd v. Trevino, 575 F.2d 1110 (5 Cir. 1978)
6
We have grave doubts that the clerks of various courts have a real interest in defending the integrity of past criminal convictions, their job being primarily ministerial. See, e. g., Tex.Rev.Civ.Stat.Ann. arts. 1894-1905 (district clerk's duties); arts. 1935-1948 (county clerk's duties); Tex.Code Crim.Proc.Ann. art. 2.21 (duties of district or county clerks in criminal proceedings). Since we hold that the plaintiff's complaint fails to state a cause of action, we need not decide if an Art. III case or controversy exists. See United States v. Perry County Bd. of Ed., 567 F.2d 277, 280 n. 5 (5 Cir. 1973)
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96 F.2d 482 (1938)
HENRY H. CROSS CO.
v.
SIMMONS.
No. 10965.
Circuit Court of Appeals, Eighth Circuit.
April 26, 1938.
*483 Henry S. Yocum and Charles E. Wright, both of El Dorado, Ark. (Neill C. Marsh, Sr., Neill C. Marsh, Jr., and Joe K. Mahony, all of El Dorado, Ark., on the brief), for appellant.
Tom W. Campbell, of Little Rock, Ark. (Frank Pace and Wallace Davis, both of Little Rock, Ark., Bert Steeper, of Kansas City, Mo., and S. E. Gilliam, of El Dorado, Ark., on the brief), for appellee.
Before GARDNER, SANBORN, and THOMAS, Circuit Judges.
GARDNER, Circuit Judge.
This is an action at law brought by appellee, as administrator of the estate of Charles Austin Soars, deceased, to recover damages for the death of Charles Austin Soars, alleged to have been caused by the negligence of appellant. The parties will be referred to as they appeared below.
The complaint alleges an invitation to the deceased "to come to the plant of the defendant at Smackover, Arkansas, for consultation and advice about certain refining operations and constructions," and that while there as such invitee he received injuries from which he subsequently died. Prior to 1933, the defendant had operated a skimming plant oil refinery at Smackover, Ark., in which crude petroleum was distilled and its products taken off with a minimum of heat and without any pressure. In the spring of 1933, an engineering company under contract with defendant built for defendant a cracking plant, in which heavy petroleum, mainly a residue from the skimming plant, was to be treated under greater heat and pressure to produce additional gasoline. Defendant operates one of two petroleum refineries at Smackover, Ark., the other being known in the record as the Simms refinery.
Soars was a petroleum or refining engineer of experience, residing at Kansas City, Mo., who had been engaged in such work for a number of years. He had been called to Smackover to supervise a new installation in the Simms refinery. In company with R. C. Burns, who was superintendent of the Simms refinery, and C. L. Murphy, superintendent of defendant's refinery, Soars entered defendant's plant, and while he was there a caustic tank containing naphtha exploded, bursting the tank and throwing the naphtha which it contained to such distance as to bring it and its vapors in contact with fire and *484 flames, causing fire to spread throughout the refinery, enveloping the three men in flames and so severely burning them that they died as the result of their injuries. The administrator of the estate of R. C. Burns, deceased, recovered judgment for damages for his death, which was caused by the same alleged negligence as is here charged, and we affirmed the judgment for plaintiff in the case of Henry W. Cross Company v. Burns, 8 Cir., 81 F.2d 856.
At the close of all the evidence in the instant case, the defendant moved for a directed verdict, which motion was denied, and the case was sent to the jury on instructions to which certain exceptions were saved. The jury returned a verdict for $51,000, upon which judgment was entered. Defendant seeks reversal on the grounds: (1) That the court erred in not directing a verdict for it; (2) that the court erred in refusing to instruct the jury that defendant did not willfully or wantonly injure the deceased; (3) the court erred in admitting and refusing to exclude certain evidence, which is sufficiently preserved in its specification of errors.
The denial of defendant's motion for a directed verdict involves two questions: (1) Was there substantial evidence of negligence on the part of defendant which was the proximate cause of Soars' death; and (2) was there substantial evidence that Soars, at the time of receiving his injuries, was on defendant's premises at its invitation?
In the action in which Burns' administrator recovered damages against defendant for wrongful death, we affirmed the judgment, holding that the evidence as to defendant's negligence and as to whether Burns was an invitee was of such substantial character as to entitle plaintiff to go to the jury on those questions. 8 Cir., 81 F.2d 856, 858.
So far as the question of negligence is concerned, the record in the instant case is substantially the same as in the Burns Case. A recital of the testimony bearing upon that issue would seem therefore to be quite unnecessary. Here, as in that case, we think the evidence on this issue was of such substantial character as to entitle plaintiff to go to the jury on it.
The evidence as to whether or not Soars was an invitee, however, differs very materially from the evidence with reference to the status of Burns. First, it should be noted that plaintiff alleges that Soars had been "invited to come to the plant of the defendant at Smackover, Arkansas, for consultation and advice about certain refining operations and constructions." This is the only allegation with reference to the invitation alleged to have been extended to Soars. The evidence bearing upon this question is substantially as follows: The firm of engineers of which Soars was a member was doing some construction work for the Simms refinery at Smackover. He had never been in defendant's refinery prior to his entry there about 2 o'clock in the afternoon of July 13, 1933, just before the explosion and fire. About 1:30 p. m. on that day, he followed Burns into the office of the Simms refinery just as a Mr. Williamson, an employee of the Simms refinery, was talking on the telephone to Murphy, the superintendent of defendant's refinery. Murphy told Williamson he wanted to speak to Burns, and, when told he was not there, said he wanted to get hold of Burns, that they were not getting along "so good." At this point in the conversation, Burns and Soars walked into the office. Williamson then handed Burns the telephone and Burns talked to Murphy over the telephone. Williamson heard Burns say, "We'll be right over." Following this conversation, Burns and Soars left the office of the Simms refinery together and went in the direction of the defendant's refinery. They appeared at the door of the office of the defendant at about 2 p. m., and stood there while Burns discussed with Cartwright, defendant's office manager, the matter of the delivery of some naphtha, and at the conclusion of that conversation, Murphy appeared. There was some conversation, the character of which is not disclosed, and then Murphy, Burns, and Soars walked away from the office toward defendant's refinery area. Lechtenburg, a witness on behalf of plaintiff, testified that Murphy, Burns, and Soars came through the boiler house where he was working, and passed out through the refinery area, and Murphy remarked, "We are going to look at the cracker," or, "see what is wrong with the cracker," or, as the witness summarized it, "something to that effect." A few moments later the explosion and resulting fire occurred. Soars was badly burned and was taken to a hospital in El Dorado. A nurse assigned to his care testified that she was in attendance on him from about *485 3 o'clock p. m. to 6:30 p. m. on the afternoon of July 13, 1933, when Soars died; that before his death, and while he was conscious of the fact that he was going to die, he attempted to talk, and inquired for Murphy, and then said: "Well, if it hadn't been for him calling, that he wouldn't have been in that condition," or, "If he hadn't called him, he wouldn't have been in this condition."
This evidence was admitted under the provisions of an Arkansas statute, Acts Ark. 1935, No. 45, p. 90, Pope's Dig. Ark. § 5201, which provides as follows: "In all suits for the recovery of damages for fatal injury or death of any person, the dying declarations of the person for whose fatal injury or death such suit has been brought in respect to the facts or circumstances pertaining to such fatal injury or death of such person or the cause thereof may be proved and admitted in evidence in like manner as dying declarations are now allowed to be proved and admitted in evidence in homicide cases in this State." (Italics supplied.)
There was also evidence introduced by the defendant that Mr. Grogan, the pipe line superintendent of the Simms refinery, had been asked about noon on the day of the accident by Burns to accompany Soars and Burns on a visit to defendant's refinery, but that he had declined to accompany them.
This in substance is the evidence bearing upon the question of the invitation alleged in the complaint to have been extended to Soars.
We are putting aside, for the present, the challenge of the defendant to the admissibility of the testimony relative to the conversation which Burns had over the telephone with Murphy.
The statute under which the declaration of deceased was received specifically limits the character of the declarations which shall be received. In the first place, the declarations must be "in respect to the facts or circumstances pertaining to such fatal injury or death." Had the deceased survived, he could have testified to such facts and circumstances, but if he had survived he could not have testified that, "If it hadn't been for him (Murphy) calling, that he wouldn't have been in that condition." That had no bearing either upon the facts or circumstances pertaining to the fatal injury, nor did it have any bearing upon the cause of it. It was simply the conclusion or opinion of the declarant. Doubtless, it was introduced on the theory that it had a bearing upon whether or not Soars had been invited to defendant's plant, but we think the declaration could not include matters to which the declarant, had he survived, could not have testified. He may have been of the opinion that Murphy's invitation to Burns included him, but there is no basis in the record for such a conclusion. As said by the Supreme Court of Arkansas in Rhea v. State, 104 Ark. 162, 147 S.W. 463, 469: "It is equally well settled that the declarations of the deceased are admissible only as to those things about which he would have been competent to testify if sworn as a witness in the case. They must therefore relate to facts only, and not be mere matters of opinion or belief."
Under the facts disclosed here, the declarant was at best giving expression to his conclusion, suspicion, or conjecture as to whether Murphy had included him in the invitation to Burns, and not to any known facts. To let the declaration in as evidence, or to give it probative force, the evidence must show that there was knowledge or the opportunity for knowledge as to the acts or facts that are declared. Wigmore, § 1445(2). We are therefore of the view that this testimony should have been excluded; but on analysis it is clear that it has no probative force, even if the error in admitting it should be disregarded. If any invitation came to Soars, it must have come to him from Murphy through Burns. All that is produced from that conversation is the statement of Burns, "We'll be right over."
In Henry W. Cross Co. v. Burns, supra, we said: "An invitation to enter upon property of another may be either express or implied, and the rights of the invitee and the duties of the inviter are the same in either case. The oral testimony, when considered in connection with the surrounding facts and circumstances, tended to prove that Burns was not a trespasser; that he was more than a bare licensee. He entered the premises on the invitation of the person in charge on a mission supposed to be beneficial to the owner."
But the relations existing between Burns and Murphy were very different *486 from those existing between Murphy and Soars. So far as appears from the testimony, Murphy had never met Soars, and while Williamson, produced as a witness for plaintiff, was present when Burns was talking with Murphy over the telephone, all of the conversation which he reproduces is included in the words. "We'll be right over." Had Burns said anything to Murphy about Soars, it would seem that Williamson should have heard it. But the statement is entirely consistent with the thought that Burns had in mind taking Williamson or Grogan over with him. It is, of course, not inconsistent with the theory that he had in mind taking Soars with him.
To submit to a jury a choice of possibilities is but to permit the jury to conjecture or guess, and where the evidence presents no more than such choice it is not substantial, and where proven facts give equal support to each of two inconsistent inferences, neither of them can be said to be established by substantial evidence and judgment must go against the party upon whom rests the burden of sustaining one of the inferences as against the other. Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L. Ed. 819; Liggett & Meyers Tobacco Co. v. De Parcq, 8 Cir., 66 F.2d 678; Eggen v. United States, 8 Cir., 58 F.2d 616; Fidelity & Deposit Co. v. Grand National Bank, 8 Cir., 69 F.2d 177. The impossibility of proof of material facts, while a misfortune, does not change rules of evidence, but leaves the one having the burden of proof with a claim that is unenforceable. Burnet v. Houston, 283 U.S. 223, 51 S.Ct. 413, 75 L.Ed. 991.
The jury would have to infer from the conversation between Burns and Murphy that Murphy asked Soars to come over. As against this there is absolutely no evidence that Murphy knew Soars, or knew that he was in Smackover at the time. Soars lived in Kansas City, Mo. Murphy was looking for and wanted Burns. There is some evidence introduced by the defendant that Soars wanted to see the defendant's refinery. The remarks of Murphy to Lechtenburg do not indicate that an invitation had been extended to Soars or that he was any more than a curious visitor for his own benefit and pleasure. If the jury might properly have considered the dying declaration, they might, by conjecture, have construed it to mean that Soars went over to defendant's plant because Murphy asked him over, but they might equally, and, we think, with more reason, have inferred that he went along with Burns without invitation, hoping to see the plant. One who accompanies an invitee to the premises of another for his own pleasure or for his own purpose is not an invitee. Rhode v. Duff, 8 Cir., 208 F. 115; Morse v. Sinclair Automobile Service Corp., 5 Cir., 86 F.2d 298.
As has been observed, the only invitation alleged in the complaint is an invitation "for consultation and advice about certain refining operations and constructions." If he were there for any other purpose than that alleged in the complaint, that would not warrant a recovery in this action. But it is argued that, even if Soars were a bare licensee, there might still be a recovery because it is said defendant's negligence was "active." But the case was not tried on that theory below, and, hence, it cannot be urged here. Bovay v. Fuller, 8 Cir., 63 F.2d 280. The so-called active negligence was not pleaded, and the case was submitted to the jury in response to the issues made by the pleadings upon the theory that Soars was an invitee. In effect the jury was instructed that, if Soars were not an invitee, they should find for the defendant.
As the case must be reversed and remanded for a new trial, we should perhaps say something more with reference to this contention made in this court but not urged below. The negligence here complained of is the closing of a valve while a pump was pumping naphtha into the tank which exploded. This valve, if it were closed at all, was closed an hour or two before Soars entered the plant. There was no act performed after he entered the plant which increased the hazard, except perhaps the failure of defendant to stop the pump, which we think would be an act of omission rather than an act of commission.
On this phase of the case, we conclude that the court committed error in not granting defendant's motion for a directed verdict.
It is next urged that the court erred in refusing to instruct the jury in effect that "the defendant did not wilfully *487 or wantonly injure the deceased." There was no evidence to sustain such a contention, but no such contention was made by the plaintiff, and, while we think the instruction might well have been given so that it would be clear that there could be no recovery if Soars were a mere licensee, the other instructions in substance told the jury that, unless he were an invitee, no recovery could be had, so that a refusal to give this requested instruction could not have been prejudicial.
Complaint is made with reference to the ruling of the court in admitting evidence of the dying declaration of Soars. We have already adverted to this, and we think the objection to that testimony should have been sustained.
It is also contended that the testimony of the witness Williamson, who heard Burns say to Murphy on the telephone, "We'll be right over," was inadmissible because hearsay. Both Burns and Murphy were dead. There was testimony by Williamson that Murphy had called for Burns over the telephone and had said in effect that they were having trouble with the plant, and it seems clear that he wished at least to talk with Burns about it. While Murphy was still on the line, Williamson advised him that Burns had come in, and he thereupon turned the receiver over to him. The fact that Burns was heard to say in his telephone conversation with Murphy, "We'll be right over," was in effect a statement made to Murphy, defendant's superintendent. The fact that he made it was material, and, we think, under the circumstances, competent. It was verbal conduct in which the defendant, through Murphy, participated. While we think it was not sufficient to show an invitation to Soars, it was properly admitted as a circumstance, which, had it been properly connected up, might have warranted such a finding by the jury.
The other contentions of appellant with reference to the rulings of the court on the admissibility of evidence do not impress us as being of controlling importance, and, as the same questions may not arise on a retrial of the case, we pretermit any discussion of them.
The judgment appealed from must therefore be reversed, and the cause is remanded to the lower court, with directions to grant the defendant a new trial.
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12 N.Y.3d 919 (2009)
PEOPLE
v.
ODOM.
Court of Appeals of New York.
June 19, 2009.
Application in criminal case for leave to appeal dismissed. (Jones, J.).
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690 S.W.2d 231 (1985)
COCKE COUNTY BOARD OF HIGHWAY COMMISSIONERS, Plaintiff-Appellee,
v.
NEWPORT UTILITIES BOARD, et al., Defendants-Appellees, and
Pierce Ditching Company, Defendant-Appellant.
Supreme Court of Tennessee, at Knoxville.
May 6, 1985.
*232 William O. Shults, Campbell, Hooper & Shults, Newport, for defendant-appellant.
William M. Leibrock, Fred L. Myers, Jr., Edward F. Hurd, Newport, for plaintiff-appellee.
James C. McSween, Jr., Newport, for defendants-appellees.
BROCK, Justice.
The Cocke County Board of Highway Commissioners ("Board") brought this action to recover damages for injury to roads in their county. In 1977 Pierce Ditching Company ("Pierce") entered into a contract with the Newport Utilities Board ("Newport") to install sewage pipes. The instant *233 litigation arose because Pierce had to "cut" the pavement of several Cocke County roads in order to install the pipes and the Board was not satisfied with the repairs which were effected on its roads after the pipe had been installed.
When construction on the sewer project began in 1977, no one notified the Board that some of its roads would be "cut." After a highway commissioner demanded an explanation for the ongoing construction on county roads, the General Manager of Newport, Jim Franks, wrote a letter dated May 16, 1977, to Jack Phillips, the Superintendent of Roads for Cocke County, which stated, in pertinent part, that:
"We apologize for not contacting you earlier regarding proposed locations of sewer pipeline extensions on county roads ...
"Wherever sewer lines are installed on county roads, the roads will be restored to their original condition at the conclusion of the project."
Attached to the May 16, 1977, letter was a copy of the provisions of the contract between Newport and Pierce which pertained to the cutting and replacing of pavement on the project. The pertinent parts of the contract on this subject follow:
"A. Restore to at least the conditions which existed before excavation, all surfaces which have been disturbed by the pipeline installation, as specified below ...
"B. The maximum width of all pavement and all other surface repairs allowable for payment by the owner shall be the maximum trench width at the TOPS of the pipes (as specified hereinbefore) plus 12" or 6" beyond each side of the specified maximum trench width at the tops of the pipes. At contractor's expense, make all repairs outside of this limit . .. Replace with new surfaces all existing surfaces which are cut, removed, or otherwise damaged by the work under this contract, as specified below. All new surfaces shall conform accurately to the elevations and contours of the existing adjacent undisturbed surfaces ...
"(2) Existing asphalt (`black top') surfaces: replace these with a 6" thick compacted base course of new road gravel, and a 2" minimum thickness surface course of hot lay plant mix type asphaltic concrete conforming to the applicable road or street paving specifications of the area in which the work is located ...
"(3) Existing double bituminous surface treatment surfaces: replace these with a 6" thick compacted base course of new road gravel, and a double bituminous surface treatment course to match the existing surface course and conforming with the applicable road or street paving specifications of the area in which the work is located ...
"F. County approvals: All repairs to county roads shall be subject to the approval of each county road department involved. FINAL PAYMENT WILL NOT BE MADE UNTIL THE CONTRACTOR HAS OBTAINED ALL NECESSARY COUNTY ROAD DEPARTMENT APPROVALS AND SUBMITTED ACCEPTABLE WRITTEN EVIDENCE THEREOF." [Emphasis as in contract.]
After receiving the May 16, 1977, letter, the Board permitted the construction project to continue. Pierce "cut" and installed sewer pipe under sections of Carson Springs Road, Clevenger's Cut-Off Road, Runnion Addition Road and various roads in Broad Acres and Wood Acres in Cocke County, Tennessee. In 1979, a dispute arose between Pierce, Newport and the Board over repairs which had been made to roads which had been cut during the course of the project. The Board refused to approve any of the repairs made by Pierce to the roads in Cocke County which had been cut.
In regard to the acceptability of completed work under the contract between Pierce and Newport, the contract provides that:
"The ENGINEER shall in all cases determine the amount, quality, acceptability *234 and fitness of the several kinds of finished work and materials which are to be paid for hereunder, and shall decide all questions which may arise as to the fulfillment of this contract on the part of the CONTRACTOR, and the ENGINEER'S interpretation of the contract and the ENGINEER'S determination and decision thereon shall be final and conclusive; such determinations and decisions, in case any question arises shall be a condition precedent to the CONTRACTOR'S right to receive any money hereunder . .."
Allen & Hoshall, Inc., the engineer on the project, determined that Pierce had complied with the terms of the contract in repairing the Cocke County roads which had been cut and recommended that Pierce be paid in accordance with the terms of the contract.
The Board filed suit against Pierce and Newport and this case was tried in the Circuit Court for Cocke County, Tennessee, without the intervention of a jury. The trial court issued a memorandum opinion which exonerated Pierce but found Newport liable to the Board in the amount of $60,000.00. In so holding, the trial court determined that the May 16, 1977, letter which Newport sent to the Board had the same meaning in regard to restoring the roads cut during the course of the project as the terms of the Newport-Pierce contract in that the defendants were obligated to restore the roads to the same condition which existed before any excavation had taken place. The trial court further found that the roads were not restored to the condition which had existed before excavation had occurred. However, the trial court exonerated Pierce and held Newport liable to the Board, stating that:
"In view of all of the above, the court finds that the Newport Utility Board should have had a better understanding with the County Highway Commissioners and the Road Department with reference as to precisely and exactly what was to have been done before their having entered upon the roads in question and excavating eight (8) to ten (10) foot trenches down the center of certain roads and along the edges of certain other ones. Additionally, in view of the representations made and the assurances given to the Cocke County Commissioners and in view of the objections and the statements made with reference to what would be approved by the commissioners, the Newport Utility Board solely and alone is liable for any damages to the roads in question by not having restored them to their original condition."
As is noted above, judgment was entered against Newport in the amount of $60,000.00.
The Court of Appeals concurred in the trial court's construction of the Newport-Pierce contract vis a vis the May 16, 1977, letter and in the trial court's finding that roads which had been cut by Pierce had not been returned to the condition which they were in prior to excavation. However, the Court of Appeals reversed the trial court, holding that Newport was entitled to be indemnified by Pierce in the amount of the judgment rendered to the Board. This holding was predicated upon an indemnification provision in the Newport-Pierce contract.
The following issues are presented in the instant appeal:
(1) Did the trial court err in finding that the defendants failed to restore the roads in accordance with their duty to the plaintiff?
(2) Did the trial court err in awarding damages to the plaintiff in the amount of $60,000.00?
(3) Does the evidence preponderate in favor of the finding of the Court of Appeals that the defendant contractor contractually agreed to indemnify the defendant utility for this loss?
(4) Did the trial court err in dismissing Newport's cross-claim for breach of contract against Pierce?
Since this case was tried before the trial court without the intervention of a jury and has been reviewed by the Court of Appeals, *235 the appropriate standard of review to be applied in this appeal was stated in City of Columbia v. C.F.W. Const. Co., Tenn., 557 S.W.2d 734 (1977):
"Thus, to the extent that the findings of fact of the trial judge and the Court of Appeals concur, they shall be conclusive upon this Court if there be any evidence to support them. But, to the extent that the findings of the trial judge and the Court of Appeals do not concur, the facts are open to a de novo examination in this Court with the presumption, however, that the judgment of the trial judge was correct unless the evidence preponderates against it." 557 S.W.2d at 740. See T.C.A., § 27-1-113.
Pierce argues that the trial court erred in disregarding expert witness testimony presented by the defendants in finding that the roads in question were not returned to their condition prior to excavation. Pierce's brief states: "[t]his case is particularly frustrating to the defendants because all of the painstakingly gathered expert witness testimony presented by Pierce and its co-defendant fall by the wayside when confronted with the testimony elicited by the plaintiff from witnesses who to a very great extent, were layment with no particular expertise in either evaluating or constructing modern roadways."
The issue before the trial court was whether the roads which had been cut by Pierce were returned to the condition they were in prior to excavation. Expert testimony is necessary when the subject under examination is one that requires that the court and jury have the aid of knowledge or experience such as men not specially skilled do not have and such, therefore, as cannot be obtained from ordinary witnesses. Casone v. State, 193 Tenn. 303, 246 S.W.2d 22 (1952). The issue involved in this case would appear to be within the ken of ordinary laymen. See Lawrence County Bank v. Riddle, Tenn., 621 S.W.2d 735 (1981). Certainly, testimony from fact witnesses describing the before and after condition of these roads would be highly relevant evidence. "Expert opinions are not ordinarily conclusive in the sense that they must be accepted as true on the subject of their testimony, but are generally regarded as purely advisory in character; the jury may place whatever weight they choose upon such testimony and may reject it, if they find that it is inconsistent with the facts in the case or otherwise unreasonable." 31 Am.Jur.2d Expert and Opinion Evidence § 138 (1967). Accord: Gibson v. Ferguson, Tenn., 562 S.W.2d 188 (1976); Act-o-Lane Gas Service Co. v. Hall, 35 Tenn. App. 500, 248 S.W.2d 398 (1951). Under T.C.A., § 65-27-106, Newport was obligated to return the roads in question to substantially the same condition they were in prior to excavation. A review of the evidence discloses that there is material evidence in the record that the roads which had been cut by Pierce were not returned to the condition they were in prior to excavation by Pierce. Accordingly, the trial court's finding that the roads in question were not restored to the condition they were in prior to excavation and that Newport is liable to the Board must be affirmed.
The defendants argue that the trial court improperly awarded damages in the amount of $60,000.00 when the plaintiff failed to present any evidence of the cost of adequately patching the roads in question. All of the plaintiff's proof of damages was predicated upon the assumption that the roads would be paved from ditchline to ditchline. Newport's statutory obligation was to return the roads substantially to their pre-excavation condition. See T.C.A., § 65-27-106. The proof further demonstrated that it was the standard custom in pipeline installation to repave only the disturbed areas of the road excavated for pipeline installation. Finally, the Newport Pierce contract provided that: "[t]he maximum width of all pavement and all other surface repairs ... shall be the maximum trench width at the TOPS of the pipes (as specified hereinbefore) plus 12" or 6" beyond each side of the specified maximum trench width at the tops of the pipes."
*236 Neither under T.C.A., § 65-26-105, nor under the terms of the Newport-Pierce contract is the Board entitled to have the roads in question repaved from ditchline to ditchline. There is no material evidence in the record pertaining to the cost of adequately patching the roads in question and returning them to substantially the same condition they were in prior to excavation. Accordingly, there is no material evidence in the record to support the $60,000 judgment which the trial court rendered against Newport. It is necessary to remand this case to the trial court for a hearing on damages consistent with the guidelines set forth above. See, T.C.A., § 27-3-128.
The other issues involved in the instant appeal involved Newport's indemnification claim against Pierce. The trial court dismissed Newport's cross-claim against Pierce. In this regard, the Court of Appeals reversed the trial court and determined that Newport was entitled to be indemnified by Pierce for any judgment rendered against it in the instant litigation.
Pierce asserts that it cannot be held liable to indemnify Newport for any judgment rendered for the Board because Newport negligently raised the Board's expectations regarding the repavement of cut roads by virtue of the May 16, 1977, letter and that the May 16, 1977, letter was the basis for the judgment rendered by the trial court. This argument assumes that the May 16, 1977, letter created a greater obligation in regard to repaving the "cut" roads than existed under the Newport-Pierce contract and that the judgment rendered by the trial court resulted from the fact that the "cut" roads were not repaved from ditchline to ditchline. The trial court determined that the May 16, 1977, letter had the same meaning as the terms and provisions of the Newport-Pierce contract. Moreover, liability was predicated upon a finding by the trial court that the roads in controversy were not returned to the condition which they were in prior to excavation. Accordingly, Pierce's arguments that Newport's conduct resulted in the judgment rendered by the trial court and that Newport cannot recover under a theory of indemnity because of its "concurrent negligence" have no factual bases in the record.
Similarly, Pierce's argument that Newport is equitably estopped from seeking indemnification because it instructed Pierce to disregard the Board's refusal to approve repairs on the cut roads because those roads were not repaved from ditchline to ditchline and to conform with the requirements of the construction contract has no factual predicate in the record. The judgment rendered in the trial court was not predicated upon Pierce's failure to repave the roads from ditchline to ditchline, it was predicated upon Pierce's failure to adequately patch the roads so that they were in substantially the same condition which they were in prior to excavation.
Pierce further asserts that the Engineer's determination that its completed work was acceptable under the contract and recommendation that Pierce be paid under the terms of the contract precludes it from being held liable to indemnify Newport for any judgment rendered in favor of the Board in the case at bar. The construction contract provides that:
"2 ENGINEER'S DECISION
"A. The ENGINEER shall in all cases determine the amount, quality, acceptability and fitness of the several kinds of finished work and materials which are to be paid for hereunder, and shall decide all questions which may arise as to the fulfillment of this contract on the part of the CONTRACTOR, and the ENGINEER'S interpretation of the contract and the ENGINEER'S determination and decision thereon shall be final and conclusive; such determinations and decisions, in case any question arises, shall be a condition precedent to the CONTRACTOR'S right to receive any money hereunder."
Under Tennessee law, a clause in a construction contract making the Engineer's decision concerning the acceptability and fitness of work performed under that contract "final and conclusive" is binding on *237 the parties to the contract unless there is fraud or the decision is so unjust as to imply bad faith or gross neglect. Railroad v. Central Lumber, etc., Co., 95 Tenn. 538, 11 Pickle 538, 32 S.W. 635 (1895). However, arbitration clauses are not binding on third parties who are not parties to the contract. Jackson v. Chambers, Tenn., 510 S.W.2d 74 (1974).
Pierce argues that if the Board received a judgment against Newport as a third-party beneficiary of the construction contract, the Board's rights under the contract can rise no higher than Newport's and the Engineer's approval of Pierce's work precludes Pierce from being held liable.
The trial court rendered a judgment against Newport in favor of the Board. As has been noted, the factual predicate of this judgment was not the May 16, 1977, letter or the failure to repave the roads in controversy from ditchline to ditchline. The issue is whether, in light of the Engineer's determination that Pierce's work was acceptable, Newport can require Pierce to indemnify it for that judgment. Newport relies upon the indemnification clause in the contract, which provides that:
"The CONTRACTOR (Pierce) shall indemnify and save harmless the OWNER (Newport), the ENGINEER, their agents and employees from all claims, suits or proceedings of any nature whatsoever which may be brought against the OWNER, the ENGINEER, their agents, or their employees on account of any injuries to persons or property received from the CONTRACTOR or his agents or servants. See also paragraph 26C hereinafter."
Paragraph 26C referred to in the indemnification clause pertains to Pierce's obligation to purchase public liability insurance and property damage insurance to protect Newport. Pierce argues that the scope of the indemnification clause is determined by its reference to paragraph 26C and that that clause is limited to liability suits for personal injury and property damages.
It is the Court's duty to enforce contracts according to their plain terms. Bob Pearsall Motors, Inc. v. Regal Chrysler-P., Inc., Tenn., 521 S.W.2d 578 (1975). In construing a contract, the entire contract should be considered in determining the meaning of any or all its parts. Crouch v. Shepard, 44 Tenn. 384, 4 Cold. 383 (1867). It is the universal rule that a contract must be viewed from beginning to end and all its terms must pass in review, for one clause may modify, limit or illuminate another. Associated Press v. WGNS, Incorporated, 48 Tenn. App. 407, 348 S.W.2d 507 (1961). "As a rule, where there are, in a contract, both general and special provisions relating to the same thing, the special provisions control. Thus, where there is uncertainty between general and specific provisions, the specific provisions ordinarily qualify the meaning of the general provisions, although this is not universally or necessarily so." 17 Am.Jur.2d Contracts § 270 (1964).
By its very terms the indemnification clause includes but is not limited to liability suits. The clause applies to "all ... suits ... of any nature whatsoever" brought against Newport "on account of any injuries to persons or property received from the CONTRACTOR (Pierce)." [Our emphasis.] In the case at bar the roads of Cocke County were damaged by Pierce. The trial court held Newport liable for Pierce's failure to restore those roads to the condition they were in prior to excavation. The indemnification clause specifically applies to litigation in which Newport is held liable for Pierce's damages to property. Thus, the indemnification clause prevails over the general arbitration clause which has no reference to litigation and judgments obtained against Newport. Accordingly, the indemnification clause of the construction contract governs the case at bar and requires that Pierce indemnify Newport for the judgment obtained by the Board.
Contrary to Pierce's protestations of unfairness, this result is fully compatible with the principles of indemnification. "The right of indemnity rests upon the principle that everyone is responsible for the consequences *238 for his own wrong, and, if another person has been compelled to pay the damages which the wrongdoer should have paid, the latter becomes liable to the former." Southern Coal and Coke Co. v. Beech Grove Mining Co., 53 Tenn. App. 108, 381 S.W.2d 299 (1964). Liability in the case at bar was not predicated upon the May 16, 1977, letter, but upon Pierce's failure to return the roads in controversy to their pre-excavation condition. While Newport can be held liable under T.C.A., § 65-27-106, to the Board for Pierce's failure to comply with the terms of the contract, Pierce can be held liable to indemnify Newport for this liability under the indemnification clause of the Newport-Pierce contract and under common law principles of indemnification.
Pierce asserts that Newport presented no evidence of Pierce's failure to perform under the contract. The factual issue before the trial court was whether the roads in controversy were returned to the condition they were in prior to excavation. The trial court determined that the Board had proved by a preponderance of the evidence that these roads were not returned to the condition they were in prior to excavation. The Court of Appeals concurred in this finding. There is material evidence in the record to support this finding of fact. This Court is bound to accept the finding of fact. Regardless of Newport's proof, there has been a factual finding that Pierce breached its contract and a judgment was returned against Newport because of that breach. Newport can rely upon this fact-finding in seeking indemnification from Pierce. Pierce has no complaint. It has the opportunity to litigate and did litigate the factual issue of whether the roads in question were returned to the condition they were in prior to excavation. Having lost that issue, Pierce is now obligated to indemnify Newport under the terms of the contract and under common law principles of indemnification.
The Board's judgment, except for the amount of damages, is affirmed, Newport's judgment against Pierce, except for the amount of damages, is affirmed and this case is remanded to the trial court for a new determination of damages. Costs are taxed equally against Pierce Ditching Company and the Cocke County Board of Highway Commissioners.
COOPER, C.J., and FONES, HARBISON and DROWOTA, JJ., concur.
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Order entered October 17, 2017
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00416-CR
JOEY MARQUEL HINES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F14-60278-I
ORDER
On October 16, 2017, the State filed a First Motion for Extension of Time to File Brief.
We GRANT the motion and ORDER that the State’s brief be filed on or before October 30,
2017.
/s/ ELIZABETH LANG-MIERS
JUSTICE
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Case: 08-41272 Document: 00511027120 Page: 1 Date Filed: 02/12/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 12, 2010
No. 08-41272
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JACKIE JOHNSON,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:07-CR-44-1
Before GARZA, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:*
The attorney appointed to represent Jackie Johnson has moved for leave
to withdraw and has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967). Johnson has not filed a response. Our independent review of
the record and counsel’s brief discloses no nonfrivolous issue for appeal.
Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is
excused from further responsibilities herein, and the APPEAL IS DISMISSED.
See 5 TH C IR. R. 42.2.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-13328
March 14, 2006
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00026-CV-CWH-5
EMBERY J. MCBRIDE,
Plaintiff-Appellant,
versus
WILLIE C. RIVERS, Sergeant, Macon State Prison,
OFFICER DEMONDO, CERT Team, Macon State Prison,
OFFICER JERKINS, CERT Team, Macon State Prison,
OFFICER SNIPES, Macon State Prison,
OFFICER FOX, CERT Team, Macon State Prison,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(March 14, 2006)
Before MARCUS, WILSON and FAY, Circuit Judges.
PER CURIAM:
Embery J. McBride, a Georgia state prisoner, appeals pro se the district
court’s grant of summary judgment, pursuant to Fed.R.Civ.P. 56(c), in his civil
rights action, filed pursuant to 42 U.S.C. § 1983, in favor of the defendants,
Sergeant Willie C. Rivers, Officer Domenico Demundo, Officer Robert Judkins,
Officer Jeffery Snipes, and Officer Christopher Fox. McBride argues on appeal
that the court (1) erred in concluding that no genuine issue of material fact existed
as to any of McBride’s claims, and (2) abused its discretion in ruling on McBride’s
discovery motions. For the reasons set forth more fully below, we affirm.
McBride asserted in his pro se § 1983 complaint that the defendants violated
his Eighth Amendment rights while he was incarcerated in the Macon State Prison
(“MSP”), in Macon, Georgia, by (1) not taking reasonable measures to protect him
from another inmate, and (2) subjecting him to excessive force. McBride
specifically alleged that, on March 6, 2003, while Defendants Rivers, Demundo,
Judkins, and Fox were escorting him to the J-2 Building, Isolation/Segregation, for
a disciplinary infraction, McBride asked them not to place him in a cell with
anybody with whom he had problems. When McBride saw that the defendants
were going to place him in a cell with Inmate Michael Holmes, McBride told them
that he did not want to be placed in the same cell because he feared for his life.
2
McBride further asserted in his complaint that, despite this request,
Defendants Fox, Demundo, Judkins, and Snipes forced McBride into the cell with
Inmate Holmes, while Defendant Rivers watched. After McBride and Inmate
Holmes started fighting and the defendants restrained McBride, the defendants
punched McBride in the back of his head, on his back, and on his left side; kneed
him four to six times on the left side of his face; or watched these acts without
intervening. As a result, McBride suffered face contusions, knots behind his right
ear and on his forehead, bruises to his back and left-rib side, a swollen right knee,
and a sprained right ankle.1
After the defendants answered this complaint, McBride filed a motion to
compel responses to some of his requests for the production of documents,
including, among other things:
Any and all writing, drawings, graphs, charts, photographs (including
still frame) phono records and other data compilations from which
information can be obtained or produced to plaintiff.
(“Request No. 2"). Moreover, McBride sought to compel the production of:
1
The district court subsequently granted McBride’s unopposed motion to amend this
complaint, whereby McBride added that Rivers was deliberately indifferent to his needs by
(1) aiding others in forcing McBride into a cell with Inmate Holmes, and (2) failing to intervene
to prevent the other defendants from using excessive force.
3
Any and all memorandums, complaints, or other court order
concerning the defendant use of excessive force within the past two
years to the present.
(“Request No. 4").
The defendants responded that they objected to these discovery requests as
being either “vague and unduly burdensome,” or “irrelevant to the present action
and not calculated to lead to discovery of admissible evidence.” The defendants
further explained that (1) they could not respond to McBride’s general request for
documents in Request No. 2, due to “the vast records which the Department of
Corrections maintains”; (2) any complaints described in Request No. 4, which
involved allegations that the defendants had used excessive force in the past, would
not establish the claims at issue in the instant case; (3) any court documents or
orders described in Request No. 4 were matters of public record and, thus,
otherwise accessible to McBride; and, (4) due to the defendants’ system of
organizing and filing inmate grievances under the names and numbers of prisoners,
it would be unduly burdensome, if not impossible, to obtain a list of grievances and
complaints filed against an individual defendant by prison inmates.2 The
2
Further expanding on this last response, the defendants explained that, unless some
action is taken by the Department of Corrections against a specific officer in response to a
complaint, no record would be available regarding the complaint or grievance. Moreover, the
defendants verified that they had no knowledge of any such actions being taken against any of
4
magistrate judge denied McBride’s motion to compel, concluding that McBride’s
Requests Nos. 2 and 4 were overly broad and burdensome and would not lead to
the discovery of admissible evidence.
After the magistrate issued this order, but apparently before McBride
received a copy of it, McBride replied to the defendants’ response to his motion to
compel, arguing that, to the extent the defendants were contending that Request
No. 2 was too vague, he subsequently had revised this request.3 McBride also
asserted that the evidence requested in Request No. 4 might be admissible to show
intent, motive, opportunity, preparation, plan, knowledge, identity, or absence of
mistake or accident, pursuant to Fed.R.Evid. 404(b). McBride explained that two
of the defendants might have a history of using excessive force against prisoners,
and that at least one officer might have been forced to resign because of his
conduct. Furthermore, McBride argued that (1) copies of complaints should be
them regarding the claim of excessive use of force.
3
McBride attached to his original motion to compel a revised Request No. 2, dated
October 25, 2004, which included as follows:
Any and all writings including but not limited to H-Building and J-Building
Logbook based on plaintiff disciplinary reports given to plaintiff on March 6,
2003[,] as well as photographs including still frame photographs showing
plaintiff’s use of force claim and being escorted from J-2 until placed in J-115
cell.
5
recoverable from each officer’s personnel file, and (2) a videotape of the
altercation would reflect that the defendants used excessive force.
Additionally, McBride filed a motion requesting a copy of the transcript of
his deposition, pursuant to Fed.R.Civ.P. 30(e), and objecting to the manner in
which the deposition had been conducted, pursuant to Fed.R.Civ.P. 26(c)(5).
McBride asserted that, (1) during his deposition, he objected to the presence of two
CERT Team officers; and (2) the continued presence of these CERT officers
caused him fear, intimidation, and embarrassment, to the extent that he could not
concentrate on the deposition questions or make further objections. McBride also
argued that, because the CERT team of officers had a history of using force, he
feared that his further objecting to the officers’ presence would result in him being
placed in “lock down.” McBride contended that, if these officers had not been
present, he would have objected to (1) questioning as to his conviction, (2) defense
counsel’s repeated interruptions of his answers, and (3) the introduction of a
photograph of McBride and a copy of a follow-up examination. Moreover,
McBride argued that he was entitled to a copy of the deposition transcript so he
could make any necessary “changes in form or substance.”
The defendants then filed a combined motion for summary judgment and a
supporting memorandum of law. The defendants argued that McBride’s claims
6
against Defendant Rivers were not viable because (1) a § 1983 claim may not be
based solely upon a theory of respondeat superior, and (2) McBride did not allege
that Defendant Rivers either was personally involved, or had created any policies
that had caused McBride’s alleged constitutional violations. The defendants
contended that the remaining defendants were entitled to summary judgment on
McBride’s claim of excessive force because any force (1) was de minimus,
(2) caused only minimal injury, and (3) was taken in a good-faith effort to maintain
a safe and orderly prison. The defendants also argued that they were entitled to
summary judgment on McBride’s claim of deliberate indifference because
McBride had neither established an excessive risk to his health and safety, nor that
he had suffered injuries as a result of being placed in a cell with Inmate Holmes.
In support of their motion for summary judgment, the defendants submitted
McBride’s deposition, in which McBride testified that, sometime around March 6,
2003, while Defendants Dumundo, Fox, Judkins, and Snipes were escorting him to
the J-2 Building, Isolation/Segregation, for a disciplinary infraction, McBride
stated “please don’t put me in a cell with nobody that I may have problems with.”
When McBride saw that Inmate Holmes was in the cell to which McBride was
being taken, he further informed these defendants that “me and that dude had
7
problems. I’m in fear for my life. Don’t put me in the cell with him.” The
defendants, nevertheless, forcibly placed McBride in the cell with Inmate Holmes.
McBride further stated during his deposition that, immediately after he was
placed in this cell, Inmate Holmes began walking towards McBride. McBride then
pushed Inmate Holmes, thereby starting a fight between the two of them. Within
seconds of this fight commencing, Defendants Demundo, Judkins, and Fox entered
the cell and separated the inmates. In the process, the defendants used force
against McBride, including kneeing him in the back of the head. The defendants
then took Holmes to the medical office for treatment. McBride’s injuries from this
incident, that is, a scratch on the side of his face, a bruise on his right cheek, injury
to his knee, and pain in his ribs, knees, and ankles, healed quickly, other than his
knee injury. His knee injury, however, also might have been the result of “old
age.” Moreover, McBride conceded that he was suing Defendant Rivers because
of his position as supervisor, rather than based on any personal acts.
After the magistrate notified McBride that his failure to respond to the
defendants’ motion for summary judgment could result in the magistrate entering a
final judgment against him, McBride filed a motion to stay summary judgment
pending the magistrate’s consideration of his reply to the defendants’ response to
his motion to compel. McBride also responded to the defendants’ summary
8
judgment motion, arguing that, although the defendants were justified in using
some force in ending the altercation between himself and Inmate Holmes, the
defendants’ assault of him after he was restrained was excessive, intentionally
conducted to inflict pain, and resulted in multiple injuries. Additionally, McBride
contended that Defendant Rivers should not be granted summary judgment because
(1) he ordered that McBride be placed in a cell with Inmate Holmes, despite (i) his
knowledge of a substantial risk of danger, and (ii) Standard Operating Procedure
(SOP) 11B09-0001, which McBride claimed instructed that “[c]ell occupancy,
except in emergenc[ies], shall not exceed design capacity”;4 and (2) he failed to
stop other officers from using excessive force.5
4
In contrast, Officer Demundo stated in response to McBride’s first interrogatories that
the MSP segregation cells, which contain two beds, are designed for two prisoners.
5
In support of his response opposing summary judgment, McBride attached (1) his own
declaration, (Exh. A); (2) copies of internal grievance responses, denying his grievance but
forwarding it to internal affairs, (Exhs. B, C); (3) a declaration by Isaiah Heard, another inmate,
containing hearsay evidence on the amount of force used in the instant offense, (Exh. D);
(4) Defendant Rivers’s witness statement, in which he stated that he operated a camera when the
use of force was used on McBride, (Exh. E); (5) McBride’s witness statement, repeating the
allegations he included in his civil complaint, (Exh. F); (6) McBride’s medical report following
the instant alleged acts, which confirmed that he suffered minor contusions and abrasions, (Exh.
G); (7) an unidentified photograph, (Exh. H); (8) a declaration by Paul Tyner, another inmate at
MSP, relating to past violence that had resulted from placing inmates with other unwanted cell-
mates in segregation; and (9) a declaration by Sarah McBride, McBride’s mother, which
included that, while visiting McBride within days of the altercation, she observed that he had
(i) a swollen face, (ii) a scratch on his right cheek, (iii) small holes on the inside of his left and
right wrists, and (iv) knots behind his right ear and in the back of his head, (Exh. I).
9
Determining that he should have considered McBride’s reply to the
defendants’ response to the motion to compel before ruling on McBride’s motion
to compel, the magistrate subsequently vacated his prior order denying this motion,
granted McBride additional time to file his reply, and stayed consideration of the
defendants’ motion for summary judgment. Moreover, after McBride re-filed his
reply, the defendants filed a “sur reply,” to which they attached as an exhibit a
copy of a letter they previously had sent to McBride, informing him that (1) his
disciplinary report he had requested had been expunged from his record and, thus,
no longer was available; and (2) the defendants had been unable to locate the
photographs to which Defendant Rivers had referred in his witness statement.
The defendants also filed a reply brief in support of their motion for
summary judgment, arguing that their responses to McBride’s interrogatory
questions revealed they did not use excessive force in responding to the prison
altercation. The defendants alternatively contended that summary judgment was
warranted as to McBride’s claim of excessive force because the injuries that
McBride identified during his deposition, that is, a scratch on his right cheek, a
scrape on the back of his right forearm, a knot behind his right ear and on the back
of his head, pain in his ribs and ankles, and problems with his right knee, either
were insubstantial, temporary, or attributable to “getting old.” Additionally, the
10
defendants contended that McBride had failed to show that they acted with a
sufficiently culpable state of mind. McBride replied, arguing, among other things,
that (1) his injuries were not minimal; and (2) a material issue existed as to whether
the defendants’ use of force, after they restrained him, was excessive and in
violation of the defendants’ policies and procedures.
On reconsideration of McBride’s motion to compel, the magistrate again
denied it, concluding that the defendants had adequately responded to McBride’s
discovery requests. The court also summarily stated that, to the extent McBride
primarily was seeking the production of Request Nos. 2 and 4, these requests were
“overly broad and burdensome and [would] not lead to the discovery of admissible
evidence.”
The magistrate also granted the defendants’ motion for summary judgment
and entered judgment in favor of the defendants as to all of McBride’s claims. In
doing so, the magistrate explained that, to the extent McBride was attempting to
invoke liability against Defendant Rivers based on a theory of respondeat superior,
McBride neither alleged a causal link between Defendant Rivers and a denial of his
constitutional rights, nor that Defendant Rivers was responsible for a policy
designed to deny McBride his constitutional rights. The magistrate discussed that,
although the remaining defendants had a duty to protect McBride from violence at
11
the hands of other prisoners, McBride could not show that Inmate Holmes posed a
substance risk to his safety by alleging only that they previously had a verbal
altercation. The magistrate determined that summary judgment also was warranted
on McBride’s claim of excessive force because (1) his allegations did not support
“a reliable inference of wantonness in the infliction of pain”; and (2) the injuries he
suffered as a result of the defendants’ use of force reflected that the defendants’ use
of force was de minimus.
Issue 1: Grant of Summary Judgment
We review de novo a district court’s grant of summary judgment. Mercado
v. City of Orlando, 407 F.3d 1152, 1156 (11th Cir. 2005). Summary judgment is
appropriate when “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Id. (quoting Fed.R.Civ.P. 56(c)). When making this
determination, we view all facts in the light most favorable to McBride, the non-
moving party. See id.
a. Deliberate Indifference
McBride argues that the district court erred in granting summary judgment
on his claim of deliberate indifference because, accepting his allegations as true,
12
material issues of fact existed. The Eighth Amendment prohibits the infliction of
cruel and unusual punishment. U.S. Const. amend. VIII.6 “A prison official’s
‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates
the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828, 114 S.Ct. 1970,
1974, 128 L.Ed.2d 811 (1994). Accordingly, “‘prison officials have a duty . . . to
protect prisoners from violence at the hands of other prisoners.’” Id. at 833, 114
S.Ct. at 1976-77 (quotations and citations omitted).
“It is not, however, every injury suffered by one inmate at the hands of
another that translates into a constitutional liability for prison officials responsible
for the victim’s safety.” Id. at 834, 114 S.Ct. at 1977. “An Eighth Amendment
violation will occur when a substantial risk of serious harm, of which the official is
subjectively aware, exists and the official does not ‘respond[] reasonably to the
risk.’” Marsh v. Butler County, Ala., 268 F.3d 1014, 1028 (11th Cir. 2001) (en
banc) (quoting Farmer, 511 U.S. at 844, 114 S.Ct. at 1982-83). Thus, a claim
based on deliberate indifference contains three components: “(1) subjective
knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that
6
The Eight Amendment’s ban on cruel and unusual punishment is made applicable to
the states by virtue of the Fourteenth Amendment. See Carter v. Galloway, 352 F.3d 1346, 1347
n.1 (11th Cir. 2003) (citing Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758
(1962)).
13
is more than mere negligence.” McElligott v. Foley, 182 F.3d 1248, 1255 (11th
Cir. 1999).
In determining subjective knowledge, a court is to inquire whether the
defendant was aware of a “particularized threat or fear felt by [the plaintiff].”
Carter, 352 F.3d at 1350. The defendant “must be aware of specific facts from
which an inference could be drawn that a substantial risk of serious harm
exists—and the [defendant] must also draw that inference.” Id. at 1349 (quotation
and marks omitted).
In Carter, an inmate asserted a claim of deliberate indifference after prison
officials failed to protect him from an attack by his cell mate. See id. at 1348. In
affirming the grant of summary judgment for the officials, we acknowledged that
(1) the officials knew that the plaintiff’s cell mate was a “problem inmate,” who
had a well-documented history of prison disobedience and violence; and (2) the
plaintiff had notified the officials that his cell mate was acting crazy, including
roaming his cell like a “caged animal.” See id. at 1349. We, however, explained
that, before a defendant’s awareness rises to a sufficient level of culpability, there
must be much more than mere awareness of an inmate’s generally problematic
nature. See id. Thus, we concluded that, although the defendants arguably should
14
have placed the plaintiff elsewhere, their “merely negligent failure to protect” him
from the attack did not justify liability under § 1983. See id. at 1350.
In the instant case, in responding to the defendants’ motion for summary
judgment, McBride argued that the defendants knew of the risk of serious harm in
placing him in the same cell as Inmate Holmes because, immediately before being
placed in a cell with Inmate Holmes, he told them that he feared for his life.
McBride, however, testified during his deposition that his only statements to the
defendants relating to his safety included his general request that they not place
him in a cell with anyone whom he might have problems, and his statement, upon
seeing Inmate Holmes, that “me and that dude had problems. I’m in fear for my
life. Don’t put me in the cell with him.” McBride did not identify a specific prior
incident, from which the defendant could infer that a substantial risk existed. See
Carter, 352 F.3d at 1349. Indeed, McBride conceded that, after he was placed in
the cell, he started the altercation by pushing Inmate Holmes. Thus, similar to the
facts in Carter, McBride failed to show that the defendants had subjective
knowledge of a risk of serious harm. The court, therefore, did not err in granting
the defendants summary judgment on McBride’s claim of deliberate indifference.
See McElligott, 182 F.3d at 1255; see also Carter, 352 F.3d at 1349-50.
b. Excessive Force
15
McBride also argues that the district court erred in granting the defendants
summary judgment on his claim of excessive force because the defendants, in
restraining him during the fight with Inmate Holmes, acted “maliciously and
sadistically to cause harm.” McBride contends that, even if some force was
necessary to end the altercation, the defendants exceeded their authority by using
force against him after the fighting stopped and he was restrained. Additionally,
McBride contends that he produced evidence showing that he sustained more than
de minimus injuries from this excessive force.
In addition to prohibiting ‘deliberate indifference’ to a substantial risk of
serious harm to an inmate, the Eight Amendment’s proscription of cruel and
unusual punishment governs prison officials use of force against convicted
inmates. Campbell v. Sikes, 169 F.3d 1353, 1374 (11th Cir. 1999). Under the
Eighth Amendment, force is deemed legitimate in a custodial setting only as long
as it is applied “in a good faith effort to maintain or restore discipline [and not]
maliciously and sadistically for the very purpose of causing harm.” Hudson v.
McMillian, 503 U.S. 1, 6, 112 S.Ct. 995, 998, 117 L.Ed.2d 156 (1992). Moreover,
an officer who is present and who fails to take reasonable steps to protect the
victim of another officer’s use of excessive force can be held personally liable for
his nonfeasance. Skrtich v. Thornton, 280 F.3d 1295, 1301 (11th Cir. 2002).
16
Five factors relevant to ascertaining whether force was used “maliciously
and sadistically” for the purpose of causing harm include (1) the extent of the
injury, (2) the need for application of force, (3) the relationship between the need
and the amount of force used, (4) any efforts made to temper the severity of a
forceful response, and (5) the extent of the threat to the safety of staff and inmates,
as reasonably perceived by the responsible officials on the basis of facts known to
them. Campbell, 169 F.3d at 1375.
Furthermore, we have explained that, “once the necessity for the application
of force ceases, any continued use of harmful force can be a violation of the Eighth
Amendment, and any abuse directed at the prisoner after he terminates his
resistance to authority is an Eighth Amendment violation. “ Williams v. Burton,
943 F.2d 1572, 1576 (11th Cir. 1991). Indeed, “[o]nce restraints are initially
justified, it becomes somewhat problematic as to how long they are necessary to
meet the particular exigent circumstances.” Id. at 1575. However, if force was
applied in a good faith effort to maintain discipline, courts should give great
deference to acts taken by prison officials in applying prophylactic or preventative
measures intended “to reduce the incidence of riots and other breaches of prison
discipline.” Id. at 1576.
17
Applying the Campbell factors in Skrtich, we affirmed the denial of a
motion for summary judgment that correctional officers filed in response to a
prisoner’s claim of excessive force. See Skrtich, 280 F.3d at 1302. This claim
arose out of the officers’ use of an electronic shield to shock and incapacitate the
prisoner, after the prisoner refused to be handcuffed during a search of his cell, and
the officers’ subsequent punching, kicking, and beating the prisoner to the extent
he had to be airlifted from the prison to a hospital. See id. at 1299-1300.
Conceding that some degree of force was lawful in light of his non-compliance
with the officers’ order to submit to handcuffing, the prisoner challenged as
excessive the assault that occurred after he had been incapacitated by the shock of
the electronic shield. See id. at 1301-02.
We determined in Skritch that, although the officer may have been justified
in taking extra precautions in performing the cell extraction because of the
prisoner’s status as a “disciplinary problem,” it was constitutionally impermissible
for the officers to beat the prisoner after he had been shocked with the shield. See
id. at 1302. Moreover, we concluded that, although a de minimus use of force does
not support a claim of excessive force, the kinds of injuries the prisoner suffered,
including rib fractures, back injuries, lacerations to the scalp, and abdominal
18
injuries that required nine days of hospitalization and months of rehabilitation,
could not have been the result of de minimus use of force. See id.7
McBride conceded during his deposition that, immediately after the
defendants placed him in the cell with Inmate Holmes, McBride started an
altercation by pushing Inmate Holmes. McBride also conceded that the defendants
immediate entering of the cell and separating the inmates was justified as a
measure to restore safety within the prison. Thus, the only force at issue here
involves McBride’s allegation that, after the officers secured and handcuffed him,
they (1) repeatedly punched him in the back of his head, on his back, and on his
left side; and (2) kneed him four to six times on the left side of his face.
Accepting these allegations as true, Defendants Fox, Demundo, Judkins, and
Snipes, who were responsible for protecting the safety of both McBride and Inmate
Holmes, knew that they were escorting McBride to the segregation unit due to a
separate disciplinary infraction. McBride did not allege that, in applying force, the
officers used language that was threatening or abusive. See Bozeman v. Orum,
422 F.3d 1265, 1271 n.11 (11th Cir. 2005) (explaining that, although words, alone,
are not determinative of bad faith on the part of officers in their use of force,
7
We note that the absence of serious injury alone is insufficient to dismiss a plaintiff’s
Eighth Amendment claim; only de minimus uses of force are beyond constitutional recognition.
See Hudson, 503 U.S. at 4-8, 112 S.Ct. at 997-99.
19
“threatening language as part of the totality of the circumstances can be relevant to
what is constitutionally reasonable,” or in the determination of reasonable
inferences about the officers’ subjective state of mind). Moreover, unlike the
prisoner in Skritch, McBride was not stunned during the altercation. Cf. Skrtich,
280 F.3d at 1302. McBride also agreed that his injuries from this force were not
permanent, other than his knee injury, and that his continuing knee injury, instead,
might have been the result of “old age.”
Thus, although the defendants in the instant case arguably could have used
less force after restraining McBride, McBride failed to produce evidence showing
that these measure were taken “maliciously and sadistically for the very purpose of
causing harm.” See also Hudson, 503 U.S. at 6, 112 S.Ct. at 998; see also
Campbell, 169 F.3d at 1374 (explaining that “force does not violate the Eighth
Amendment merely because it is unreasonable or unnecessary”). Furthermore, to
the extent that Defendant Rivers was present during the alleged use of force and
failed to intervene, no constitutional violation occurred because the other officers
did not use excessive force. See Skrtich, 280 F.3d at 1301. The district court,
therefore, also did not err in concluding that no genuine issue existed on whether
the defendants used excessive force in violation of the Eighth Amendment.
c. Defendant Rivers’ Liability
20
McBride argues, as well, that the court should not have granted Defendant
Rivers summary judgment on McBride’s claim of deliberate indifference because,
based on his eight years of employment at MSP and McBride’s statement that he
feared being placed in the same cell as Inmate Holmes, Defendant Rivers should
have been aware of the substantial risk of his ordering McBride to be placed in the
same cell with Inmate Holmes. McBride contends that Defendant Rivers should
not have been granted summary judgment on McBride’s claim of excessive force
because he should have exercised his supervisory duties by intervening.
Additionally, McBride argues that the court erred in concluding that Defendant
Rivers could not be held liable under a theory of respondeat superior because he
(1) was aware of the “widespread abuses” that previously had occurred in the
segregation unit, and (2) had ignored a standard operating procedure by ordering
that McBride be placed in a cell with another inmate, and (3) had caused a
violation of McBride’s civil rights.
“It is well established in this Circuit that supervisory officials are not liable
under § 1983 for the unconstitutional acts of their subordinates on the basis of
respondeat superior or vicarious liability.” Cottone v. Jenne, 326 F.3d 1352, 1360
(11th Cir. 2003). Supervisory liability under § 1983 occurs only when “the
supervisor personally participates in the alleged unconstitutional conduct or when
21
there is a causal connection between the actions of a supervising official and the
alleged constitutional deprivation.” Id. A causal connection may be established
only when (1) a “history of widespread abuse” puts the responsible supervisor on
notice of the need to correct the alleged deprivation, and he or she fails to do so;
(2) a supervisor’s custom or policy results in deliberate indifference to
constitutional rights; or (3) facts support an inference that the supervisor directed
subordinates to act unlawfully or knew that subordinates would act unlawfully and
failed to stop them from doing so. Id. (internal marks, quotations, and citations
omitted).
As discussed above, the district court did not err in concluding that no
genuine issue of material fact existed as to whether Defendants Fox, Demundo,
Judkins, and Snipes violated McBride’s Eighth Amendment rights either by failing
to take reasonable measures to guarantee his safety, or in using excessive force in
restraining him. However, even if we were to conclude that a constitutional
violation occurred, the district court did not err in determining that Defendant
Rivers was not liable in his supervisory capacity for the acts of the other prison
employees. Although McBride generally argues on appeal that Defendant Rivers
should have been liable because he “was well aware of the history of widespread
abuses” in the MSP segregation wing, McBride did not identify in his response to
22
the motion for summary judgment any evidence showing a “history of widespread
violence.” See Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990) (explaining
that plaintiff must show that the past abuses were “obvious, flagrant, rampant and
of continued duration, rather than isolated occurrences”).
To the extent McBride is arguing that Defendant Rivers was liable because,
in ordering the other defendants to place McBride in a segregation cell with
another inmate, he violated SOP IIB09-0001, he asserted that this policy only
states that “[c]ell occupancy, except in emergency, shall not exceed design
capacity.” Although McBride has interpreted this policy as limiting occupancy in
segregation cells to one prisoner, he has not cited to evidence in support of this
argument. To the contrary, Officer Demundo stated in his response to Demundo’s
First Interrogatories that the MSP segregation cells, which contain two beds, are
designed for two prisoners.
Additionally, any orders Defendant Rivers gave for the other defendants to
place McBride in a cell with Inmate Holmes did not constitute deliberate
indifference because McBride’s general statement that he feared being placed in
this cell was insufficient to show that Defendant Rivers had a subjective
knowledge of a risk of serious harm. See McElligott, 182 F.3d at 1255. Finally, as
discussed above, to the extent that Defendant Rivers was present during the alleged
23
use of force and failed to intervene, no constitutional violation occurred because
the other officers did not use excessive force. See Skrtich, 280 F.3d at 1301.
Thus, the district court did not err in determining that Defendant Rivers was not
liable in his supervisory capacity.
Issue 2: McBride’s Discovery Motions
In addition to challenging the district court’s grant of summary judgment,
McBride argues that the court abused its discretion in denying his motion to
compel because the evidence he was seeking, that is, a videotape of the incident at
issue, other complaints or grievances relating to the defendants’ excessive use of
force, and the logbook for the J-Building, was relevant and its production would
not have been unduly burdensome. McBride also contends that the district court
erred in granting summary judgment without ruling on McBride’s objection to his
deposition, and in not excluding this deposition, when (1) guards were present
during the deposition, and (2) the defendants failed to produce a copy of a
transcript of the deposition for McBride’s review.
District courts are entitled to broad discretion in managing pretrial discovery
matters. Klay v. All Defendants, 425 F.3d 977, 982 (11th Cir. 2005). Thus, we
review a district court’s discovery rulings, including the denial of a motion to
compel, only for abuse of discretion. Hinson v. Clinch County, Ga. Bd. of Educ.,
24
231 F.3d 821, 826 (11th Cir. 2000). “A district court abuses its discretion if it
applies an incorrect legal standard, follows improper procedures in making the
determination, or makes findings of fact that are clearly erroneous.” Chicago
Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1309 (11th Cir. 2001).
We also “will not overturn discovery rulings unless it is shown that the [d]istrict
[c]ourt’s ruling resulted in substantial harm to the appellant’s case.” Iraola & CIA,
S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1286 (11th Cir. 2003) (internal
quotations omitted).
Additionally, although courts “do and should show a leniency to pro se
litigants not enjoyed by those with the benefit of a legal education,” this leniency
“does not give a court license to serve as de facto counsel for a party.” GJR
Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir.
1998) (internal citations omitted). Once a pro se litigant is in court, “he is subject
to the relevant laws and rules of the court, including the Federal Rules of Civil
Procedure.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989).
To the extent the district court denied McBride’s motion to compel
discovery in response to his Request Nos. 2 and 4, “[t]he scope of allowable
discovery is determined by the claims (and defenses) raised in the case.”
25
Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1368 n.37 (11th Cir. 1997).
Under Fed.R.Civ.P. 26:
Parties may obtain discovery regarding any matter, not privileged, that
is relevant to the claim or defense of any party, including the
existence, description, nature, custody, condition, and location of any
books, documents, or other tangible things and the identity and
location of persons having knowledge of any discoverable matter. For
good cause, the court may order discovery of any matter relevant to
the subject matter involved in the action. Relevant information need
not be admissible at the trial if discovery appears reasonably
calculated to lead to the discovery of admissible evidence.
Fed.R.Civ.P. 26(b)(1).
In denying McBride’s motion to compel the defendants to produce, among
other things, (1) a videotape of the altercation, and (2) evidence relating to any
other complaints filed within the past two years alleging that the defendants had
used excessive force, the magistrate explained that either the defendants had
adequately responded to McBride’s discovery requests, or McBride’s requests
were “overly broad and burdensome and [would] not lead to the discovery of
admissible evidence.” Indeed, McBride failed to offer evidence rebutting the
defendants’ argument that they had informed McBride that they had been unable to
locate the photographs or videotape to which Defendant Rivers referred in his
witness statement.
26
The defendants also argued in response to McBride’s motion to compel that,
due to the manner in which the defendants compiled and stored records, it would
be unduly burdensome, if not impossible, to obtain a list of grievances and
complaints filed against each individual defendants by other inmates. See Wright
v. AmSouth Bancorporation, 320 F.3d 1198, 1205 (11th Cir. 2003) (concluding
that the district court did not abuse its discretion in denying plaintiff’s request for
the court to compel the production of copies of all word-processing files created or
accessed by five of the defendant’s employees over a two-and-a-half year period
when the plaintiff neither identified particular items within his expansive request,
nor provided a theory of relevance that narrowed the scope of his request).
Additionally, other than generally arguing that this evidence would have
established the defendant’s subjective intent, McBride failed to explain how he was
“substantially harmed” by the court’s refusal to compel the production of this
evidence. See Iraola, 325 F.3d at 1286. Thus, the district court did not abuse its
discretion in denying McBride’s motion to compel. See Hinson, 231 F.3d at 826.
To the extent McBride is challenging on appeal the district court’s failure to
rule on his motion to exclude his deposition testimony, prior to granting the
defendants’ motion for summary judgment, “[f]ailure to consider and rule on
significant pretrial motions before issuing dispositive orders can be an abuse of
27
discretion.” Chudasama, 123 F.3d at 1367. Depositions, however, are generally
admissible provided that the party against whom they are admitted was present,
represented, or reasonably noticed, pursuant to Fed.R.Civ.P. 32(a). Nippon Credit
Bank, Ltd. v. Matthews, 291 F.3d 738, 751 (11th Cir. 2002). Moreover,
depositions are specifically allowed in consideration of summary judgment,
pursuant to Fed.R.Civ.P. 56(c). Id.
As discussed above, citing to Rule 26(c)(5), McBride argues that the court
should have excluded his deposition testimony because the CERT officers were
present while the deposition was being conducted. However, if a party objects to
opposing counsel’s manner of conducting discovery, including depositions, the
proper remedy is to seek a protective order. Thomas v. Tenneco Packaging Co.,
Inc., 293 F.3d 1306, 1325 (11th Cir. 2002). Indeed, Rule 26(c) specifically
provides that a party may file a motion for a protective order:
to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including . . . that discovery
be conducted with no one present except persons designated by the
court.
Fed.R.Civ.P. 26(c)(5).
Here, McBride never moved for a protective order asking for this relief.
Moreover, other than generally stating that, if these officers had not been present,
he would have objected to (1) questioning as to his conviction, (2) defense
28
counsel’s repeated interruptions of his answers, and (3) the introduction of a
photograph of McBride and a copy of a follow-up examination, McBride failed to
explain why his case was substantially harmed by the officer’s presence. See
Iraola, 325 F.3d at 1286. Indeed, McBride conceded during the deposition that the
CERT officers did not work at the prison at issue when McBride was present.
Furthermore, to the extent McBride moved to exclude his deposition
testimony because he was not provided with a copy to review, and he cited to Rule
30(e), this rule provides:
If requested by the deponent or a party before completion of the
deposition, the deponent shall have 30 days after being notified by the
officer that the transcript or recording is available in which to review
the transcript or recording and, if there are changes in form or
substance, to sign a statement reciting such changes and the reasons
given by the deponent for making them.
Fed.R.Civ.P. 30(e). McBride’s deposition, however, does not reflect that, prior to
the completion of the deposition, he requested to review it. Moreover, McBride
has failed to explain why his case was substantially harmed by the denial of an
opportunity for him to review this testimony. See Iraola, 325 F.3d at 1286. Thus,
the court did not abuse its discretion in failing to rule on McBride’s motion to
exclude his deposition testimony, or in relying on this testimony in granting
summary judgment. See Hinson, 231 F.3d at, 826; Chudasama, 123 F.3d at 1367.
29
Accordingly, we conclude that the district court did not err in finding that no
material issues of fact existed as to whether the defendants either failed to protect
McBride, or used excessive force in restraining him. The court did not err in
concluding that Defendant Rivers could not held liable under a theory of
respondeat superior. Furthermore, the court did not abuse its discretion either in
denying McBride’s motion to compel the production of additional evidence, or in
failing to rule on McBride’s motion to exclude his deposition testimony before
granting the defendants summary judgment. We, therefore, affirm.
AFFIRMED.
30
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May 30, 2013
JUDGMENT
The Fourteenth Court of Appeals
FREDDIE ORLANDO REYES, Appellant
NO. 14-12-01028-CR V.
THE STATE OF TEXAS, Appellee
________________________________
This cause was heard on the transcripts of the record of the court below, and
having inspected the record, the Court holds there was no error in the judgment
requiring reversal, but there was error in the judgment as entered, which is capable
of reformation by this Court. Therefore, the judgment is REFORMED, to delete
the specific amount of court costs.
The Court orders the judgment AFFIRMED as REFORMED.
We further order this decision certified below for observance.
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45 F.2d 641 (1930)
RYLEY
v.
LAFFERTY.
No. 1131.
District Court, D. Idaho, N. D.
November 6, 1930.
CAVANAH, District Judge.
Plaintiff, as mother and guardian ad litem of Bertram James Ryley, both citizens and subjects of the Dominion of Canada, bring this action against A. B. Lafferty and wife, citizens and residents of Idaho, to recover damages for injuries sustained by her minor child in being struck and beaten by the minor child of defendants.
The statement of the cause of action, which is challenged by defendants' demurrer, is: "That Elmer Lafferty is the minor son of defendants of the age of about sixteen years, and that at all the times herein mentioned he lived and resided with the defendants at their home in Cur d'Alene, Idaho, and that at all of said times the said Elmer Lafferty had a vicious and malignant disposition and the habit of persuading and inveigling smaller boys into secluded places and away from older and adult people and of beating, bruising, maiming, and punishing such smaller boys, and that the defendants at all the times herein mentioned well knew of such habit and disposition on the part of their said son, Elmer Lafferty, and that, notwithstanding such knowledge and information, they allowed him to go alone among smaller boys and to continue to inveigle and persuade them into places of secrecy and into secluded places and to beat, bruise, and maim them, and that the defendant A. B. Lafferty encouraged the said boy in such conduct by resenting any resistance or admonition made by other adult persons when such acts were committed by said *642 boy and in knowing of such disposition and acts of said minor and in failing to protect other boys from such acts of his said minor son. That, with full knowledge of the disposition, trait and habit of the said boy, and on or about the 10th day of March, 1930, at Cur d'Alene, Idaho, defendants allowed and permitted their said son, Elmer Lafferty, to go at large upon the streets and alleys and commons at and about the city of Cur d'Alene, and that on or about the said date he, the said Elmer Lafferty, persuaded and inveigled the plaintiff Bertram James Ryley, to go with him to a secluded place in the forest on what is known as Tubbs Hill, contiguous to the city of Cur d'Alene and Lake Cur d'Alene, and did then and there wrongfully, unlawfully, and maliciously cause and force plaintiff to undress and did then and there wrongfully, unlawfully and maliciously strike, beat and bruise plaintiff with switches, sticks and straps, and thereby lacerated plaintiff's back and hips and arms and buttock and caused him great pain and rendered him helpless for a time and thereby caused him to become sick and ill, so that he was obliged to remain in bed and to miss school for two weeks and to be under medical attendance during said time."
The pivotal issue, according to defendants' contention, is that it is not stated in what manner the defendants knew of the vicious and malignant disposition on the part of defendants' minor child, or that they knew that he contemplated attacking plaintiff, and inflicting injuries upon him. It is clear from the complaint that it is charged that the defendants well knew of such habit and disposition on the part of their minor son, and that they encouraged him in such conduct by resenting any resistance or admonition made by other adult persons, and failing to protect other boys from such acts; that notwithstanding such knowledge and information allowed him to go alone among smaller boys and to continue to inveigle and persuade them into places of secrecy, and there beat, bruise, and maim them; that with full knowledge of such disposition and habit of their minor son they did, on March 10, 1930, allow and permit him to go upon the public streets of Cur d'Alene, which resulted in the acts causing the injuries in question.
While it is true that parents are not liable for torts committed by their minor children without their consent and knowledge, yet the principle applicable to the facts alleged in this case is that the parents are liable if it appears that they knew that their child was guilty of committing the particular kind of tort habitually and encouraged the child, as alleged, and made no effort to correct or restrain him. Under such circumstances as alleged the child's tort was committed with the parents' knowledge and implied acquiescence, and such knowledge and consent may be expressed or implied, rendering the parents liable without proof of their actual knowledge of the tort sued upon. Having full knowledge of their child's habits, traits, and vicious disposition, and encouraging him in the manner charged to continue such acts, would constitute assent and participation on the part of the parents in the tort alleged, and, if so, it would be regarded as negligence upon the parents' part. It may be a question of fact as to whether the child knew of his parents resenting any resistance or admonition made by other adult persons whose children were also beaten and maimed, for to encourage the child the parents must signify their consent to a continuation of their child's conduct, or direct or ratify the act, or that the child was at the time acting as their agent or servant in their interests or for their benefit. Under such circumstances the parent would be liable under the doctrine of adoption of tort. 29 Cyc. 1667; Norton v. Payne et ux., 154 Wash. 241, 281 P. 991; Thibodeau v. Cheff, 24 Ont. L. Rep. 214, Ann. Cas. 1912A, 582.
As to the manner of the parents obtaining knowledge of the disposition and habit of their minor son, it appears by the complaint that the son committed similar acts before upon small boys, and that they had knowledge of it and had failed to take steps to restrain him from continuing the same.
The demurrer to the complaint will be overruled, and defendants given ten days in which to answer.
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In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-19-00070-CR
_______________________
RILEY WADE RICHARDSON, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 411th District Court
Polk County, Texas
Trial Cause No. 25,668
__________________________________________________________________
MEMORANDUM OPINION
On January 15, 2019, the trial court sentenced Riley Wade Richardson on a
conviction for theft. Richardson filed a notice of appeal. The district clerk has
provided the trial court’s certification to the Court of Appeals. The trial court
certified that the defendant has waived the right of appeal. See Tex. R. App. P.
25.2(a)(2).
On March 4, 2019, we notified the parties that we would dismiss the appeal
unless we receive a response that establishes that the certification is incorrect. No
1
response has been filed. Because the certification in the record states that the
defendant waived his right of appeal and the defendant has failed to establish that
the certification is incorrect, we dismiss the appeal. See Tex. R. App. P. 25.2(d).
APPEAL DISMISSED.
________________________________
LEANNE JOHNSON
Justice
Submitted on April 2, 2019
Opinion Delivered April 3, 2019
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
2
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765 P.2d 162 (1988)
115 Idaho 137
STATE of Idaho, Plaintiff-Respondent,
v.
John HOCKER, Defendant-Appellant.
No. 17145.
Court of Appeals of Idaho.
December 6, 1988.
*163 Terry S. Ratliff, Mountain Home, for defendant-appellant.
Jim Jones, Atty. Gen. by David R. Minert, Deputy Atty. Gen., Boise, for plaintiff-respondent.
BURNETT, Judge.
The sole issue in this appeal is whether the district court abused its discretion by refusing to allow a criminal defendant to withdraw his guilty plea. Holding that the defendant did not present a just reason to withdraw the plea, we uphold the court's decision and affirm the judgment of conviction.
The facts may be summarized briefly. John Hocker was charged with three counts of delivering a controlled substance, methamphetamine, in violation of I.C. § 37-2732. By negotiated agreement, he pled guilty to one count; the others were dismissed. When Hocker entered his guilty plea, the judge questioned him extensively to ascertain that the plea was made knowingly, intelligently, and voluntarily. Later, on the day set for sentencing, Hocker moved to withdraw the plea. He presented two grounds for his motion. First, he expressed a desire to confront an informant who had told law enforcement officers about his drug activities. Second, he claimed that he had not admitted his guilt unconditionally. The motion was denied.
Motions to withdraw guilty pleas fall into three categories, depending upon the stage of the judicial process at which *164 they are made. The least favored category consists of motions filed after sentencing. Defendants making these motions must demonstrate that manifest injustice will result if their pleas are not withdrawn. I.C.R. 33; State v. Freeman, 110 Idaho 117, 714 P.2d 86 (Ct.App. 1986). At the other end of the spectrum, motions made before sentencing invoke the broad discretion of the court. State v. Henderson, 113 Idaho 411, 744 P.2d 795 (Ct.App. 1987). The judge is encouraged to exercise his discretion liberally in these cases. State v. Freeman, supra. The defendant need only advance a just reason to withdraw his plea. State v. Ballard, 114 Idaho 799, 761 P.2d 1151 (1988). When such a reason is presented, relief will be granted absent a strong showing of prejudice by the state.
Finally, a third category represents a hybrid of the other two. It consists of motions made before sentencing but after the defendants have read presentence reports or otherwise have received information about their probable sentences. In this type of case the court will exercise broad discretion, but may temper its liberality by weighing the defendant's apparent motive. State v. Howell, 104 Idaho 393, 659 P.2d 147 (Ct.App. 1983).
In this case, as noted, Hocker submitted his motion on the day of sentencing. The record suggests that he may have anticipated a substantial prison sentence, arguably bringing his motion into the third, hybrid category.[1] However, we need not resolve the categorization issue today, for we believe that Hocker has failed to establish a just reason for plea withdrawal which would entitle him to relief under even the most lenient standard.
In support of his motion, Hocker has argued that his desire to confront the informant was a sufficient ground, by itself, to withdraw his plea. We disagree. Hocker has not identified any questions he might have asked, or any other benefit his defense might have gained, if the informant had testified at trial. Indeed, Hocker voluntarily waived the right to confront the informant, or any other potential witness, when he entered his plea. Thus, Hocker's argument boils down to his bare desire to exercise a voluntarily waived right. We hold that, without more, this does not constitute a just reason to withdraw a valid, carefully entered plea.[2]
Moreover, if Hocker's argument were accepted, it would enable a defendant, at any time before sentencing, to cancel a plea bargain unilaterally by expressing a wish to exercise rights which he relinquished in exchange for concessions by the state. In effect, the state would be the only party bound by the plea-bargain agreement. We acknowledge that the practice of plea bargaining is not universally favored; but it cannot be gainsaid that where the practice exists, it demands mutuality of obligation under the agreements reached.
Hocker's second argument is that when he entered his plea, he allowed his attorney to summarize the details of his offense, rather than stating them himself. Consequently, he contends, his admission of guilt was not full and unconditional. Hocker relies upon State v. Jackson, 96 Idaho 584, 532 P.2d 926 (1975). In Jackson, the defendant pled guilty, but conditioned his plea with a statement that he did not admit the facts of the charge. Id. at 588, 532 P.2d at 930. Our Supreme Court held that the trial court's denial of the defendant's motion to withdraw such a conditional plea was an abuse of discretion.
In our view, Jackson is inapposite here. Hocker did not make a statement refusing *165 to admit the facts showing commission of the crime charged. Rather, he freely admitted his guilt on each element of the crime. Moreover, when asked whether he believed he was innocent, he stated that he was guilty. We hold that the district judge correctly treated Hocker's plea as unconditional.
We conclude that the district judge acted within his sound discretion in denying Hocker's motion to withdraw a valid guilty plea. The judgment of conviction is affirmed.
WALTERS, C.J., and SWANSTROM, J., concur.
NOTES
[1] After denying Hocker's motion to withdraw the plea, the judge conducted the sentencing hearing. Hocker ultimately received an indeterminate sentence of three years in prison.
[2] In presenting Hocker's motion to withdraw the plea, defense counsel made a vague allusion to "newly discovered evidence" of possible criminal activity by the informant. However, this evidence was never described. We think the attorney's passing comment was insufficient to demonstrate a just reason for withdrawing Hocker's plea. Of course, we do not suggest that newly discovered evidence never can be an adequate ground to withdraw a plea. We simply hold that the nature of the evidence, and its potential relevance to this case, were not sufficiently established on the record.
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284 F.2d 455
AIRSTREAM TRAILERS, INC., an Ohio Corporation, Airstream Trailers, Inc., a California Corporation, Wallace M. Byam, Appellants,v.Loren CAYO, Lawrence Zuhl, Allen Grams, and Avion Corporation, a Michigan Corporation, Appellees.
No. 14147.
United States Court of Appeals Sixth Circuit.
December 13, 1960.
Winston E. Miller, Lansing, Mich., and Erwin J. Garmhausen, Sidney, Ohio, E. J. Garmhausen and Carroll V. Lewis, Garmhausen & Lewis, Sidney, Ohio, and Winston E. Miller and George P. Pappas, Miller, Morriss & Pappas, Lansing, Mich., on brief, for appellants.
Austin A. Webb, Earl & Webb, Kalamazoo, Mich., for appellee.
Before MARTIN, CECIL and WEICK, Circuit Judges.
PER CURIAM.
1
This appeal is from an order of the District Court denying appellants' motion for entry of judgment in accordance with a stipulation of the parties.
2
The action in the District Court was to enjoin appellees from copying the external overall appearance of appellants' trailer and from other acts of unfair competition. Appellees filed a counterclaim against appellants for damages.
3
During the pendency of the action in the District Court, the parties worked out a settlement of their differences, the terms of which were reduced to writing in the form of a stipulation which provided for the entry of a consent decree by the Court embodying the provisions of the stipulation. Before the decree in conformity therewith had been submitted to the Court for approval, appellees refused to approve the decree and objected to the entry thereof by the Court claiming the appellants had violated one of the thirteen provisions of the stipulation.
4
Appellants then moved the Court to enter the decree pursuant to the terms of the stipulation. Upon hearing, the Court denied the motion on the ground that there had been a material breach of the stipulation by appellants.
5
At the threshold of this case, we are met with the question whether the order denying the motion for the entry of judgment is a final appealable order under the provisions of Title 28 U.S.C. § 1291. The denial of the motion for judgment has not affected the principal case for unfair competition which is pending in the District Court and has not been terminated. Appellants claim that this case comes within "that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellant consideration be deferred until the whole case is adjudicated." Cohen, Executrix v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528.
6
We disagree. In our opinion, this case is not substantially different from one involving an order denying a motion for summary judgment, which has been held not to be appealable. Jones v. St. Paul Fire & Marine Insurance Co., 5 Cir., 1939, 108 F.2d 123. To allow an appeal in this case would defeat the longstanding statutory policy against piecemeal appeals. Kowalski v. Holden, 6 Cir., 1960, 276 F.2d 359. The order sought to be appealed in this case is an interlocutory order which may not be reviewed on appeal until a final judgment has been entered in the case.
7
The appeal is, therefore, dismissed for lack of jurisdiction.
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902 F.2d 27Unpublished 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.George H. CLEAVER, Plaintiff-Appellant,v.Mr. HUFFMAN, Warden, Defendant-Appellee.
No. 90-6785.
United States Court of Appeals, Fourth Circuit.
Submitted April 2, 1990.Decided April 18, 1990.
Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. J. Calvitt Clarke, Jr., District Judge. (C/A No. 89-615-N)
George H. Cleaver, appellant pro se.
E.D.Va.
AFFIRMED.
Before ERVIN, Chief Judge, and PHILLIPS and CHAPMAN, Circuit Judges.
PER CURIAM:
1
George H. Cleaver appeals the district court's dismissal of this 42 U.S.C. Sec. 1983 action for failure to pay the assessed filing fee. Finding that the district court properly complied with the procedures approved in Evans v. Croom, 650 F.2d 521 (4th Cir.1981), cert. denied, 454 U.S. 1153 (1982), and did not abuse its discretion in dismissing the action without prejudice, 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
*
Although the district court stated that the assessed partial filing fee was 20% of the total deposits in the six months preceding the filing of suit, the amount assessed was only 15% of these deposits, which was explicitly approved in Evans v. Croom
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178 F.2d 182
L. ALBERT & SONv.ARMSTRONG RUBBER CO.
No. 6.
Docket 21183.
United States Court of Appeals Second Circuit.
Argued October 5, 1949.
Decided November 29, 1949.
COPYRIGHT MATERIAL OMITTED Abraham S. Ullman, Irving Sweedler and William L. Beers, New Haven, Conn., for plaintiff.
Albert H. Barclay and William L. Hadden, New Haven, Conn., with whom on the brief were Albert H. Barclay, Jr. and John W. Barclay, New Haven, Conn., for defendant.
Before L. HAND, Chief Judge and SWAN and CLARK, Circuit Judges.
L. HAND, Chief Judge.
1
Both sides appeal from the judgment in an action brought by the Albert Company, which we shall speak of as the Seller, against the Armstrong Company, which we shall call the Buyer. The action was to recover the agreed price of four "Refiners," machines designed to recondition old rubber; the contract of sale was by an exchange of letters in December, 1942, and the Seller delivered two of the four "Refiners" in August, 1943, and the other two on either August 31st or September 8th, 1945. Because of the delay in delivery of the second two, the Buyer refused to accept all four in October, 1945 — the exact day not being fixed — and it counterclaimed for the Seller's breach. The judge dismissed both the complaint and the counterclaim; but he gave judgment to the Seller for the value without interest of a part of the equipment delivered — a 300 horse-power motor and accessories — which the Buyer put into use on February 20th, 1946. On the appeal the Seller's position is that its delay was not too long; that in any event the Buyer accepted delivery of the four "Refiners"; and that they were in accordance with the specifications. As an alternative it insists that the Buyer is liable, not only for the value of the motor, but for interest upon it; and, as to the counterclaim, that the Buyer proved no damages, assuming that there was a breach. The judge found that all four "Refiners" conformed to the specifications, or could have been made to do so with slight trouble and expense; that the contract was inseparable and called for four not two and two; that the delivery of the second two was too late; and that, as the Buyer rejected all four, it was not liable on the contract at all. On the other hand, as we have said, he found that the Buyer's use for its own purposes of the motor, although not an acceptance of the "Refiners," made it liable for the value of the motor in quasi contract, but without interest. He dismissed the Buyer's counterclaim because it had failed to prove any damages.
2
The first issue is whether the Seller's delivery of the second two "Refiners" was too late, and justified the Buyer's rejection of all four in October of that year. The Seller does not — at least on this appeal — seek to recover the purchase price of the first two "Refiners" on the ground that the parties had at any time severed the contract into two separate ones, each for two. It follows that the Buyer was entitled in October, 1945, to reject the four, if the delivery of the second two was too late. The evidence as to this was as follows. Although the Buyer had suggested cancellation of the contract in the spring of 1943, by April first of that year it was pressing for delivery, and, when the Seller wrote at the end of July that it would ship the first two in "a couple of weeks," and the other two probably within four weeks, the Buyer not only did not protest against the delay, but in August accepted the two which the Seller did deliver. Moreover, when the Seller did not ship the other two within the time mentioned, the Buyer on October first, 1943, recognized the contract as still in existence. True, by the end of that year it began to complain of the performance of the two machines delivered, and it suggested that the Seller take them back; but, when the Seller answered by offering to put these two in proper condition, an active correspondence followed, resulting in a personal interview between the heads of the two parties in July, 1944. At this there was an inconclusive discussion of settlement, after which in August the Buyer agreed to install the two; and in September the Seller recognized the original contract as still in existence. Although in December the Buyer did declare its doubts whether it would be able "to keep these machines in production without considerable maintenance expense," and proposed a resale of them to the Seller, apparently the Seller did not reply; and in any event this proposal lapsed, for on February 23d, 1945, the Buyer wrote that it "would like to have you ship the two remaining Refiners at once." This demand the Seller answered by complaining that the two already delivered had never been paid for, to which on March 28th the Buyer rejoined that nothing was due on the contract until "30 days after the delivery of the complete order." It continued: "We want to complete the installation of this refiner line and are again requesting you to ship the two remaining refiners if they are in good operating condition."
3
Thus it appears that, whatever may have been the Seller's delay up to that time, the Buyer would have been bound to accept a delivery of the second two within a reasonable time after March 28th, and to pay for the four, assuming that they conformed to the specifications, as the judge found that they did. As we understand it, the parties are not at variance so far, except for the finding as to conformity, just mentioned, which turns out to be irrelevant, as will appear. Since the Seller did not deliver the second two machines until five months after the demand of March 28th, the first question is whether the judge was right in holding that that was too late. When the Seller in July, 1943, said that it would ship the second two machines within four weeks, we will assume that that was the proper measure of a reasonable time for their delivery, and would have been conclusive, had it not been for the conduct of the parties during the following eighteen months. However, although during that period the Buyer had been in doubt whether it could make operative the two already delivered, it had never even intimated an objection to the delay in the delivery of the second two. If the circumstances had not changed as much as they did during the five months after March 28th, it might therefore be plausibly argued that the long drawn negotiations showed that further delay was not of vital consequence, in spite of the fact that in mercantile contracts, time is ordinarily "of the essence."1 Nevertheless, we think it impossible to excuse the delay, because the circumstances did greatly change after March 28th, 1945. The judge found that "the great demand at the time of the commencement of this program for lowgrade reclaimed rubber was of a temporary nature"; it could not compete with any other rubber if that appeared in "sufficient" quantities. That did not mean that rubber was not still "reclaimed" and sold in the open market; but "obviously market conditions for second-hand rubber-machinery changed between the days of acute shortage in which the contract was made and the time of delivery." We accept his summing up of the situation in the following words: "at approximately the date of delivery * * * the fighting war came to an end, the prospect of future availability of rubber was altered, and any loss from change in conditions in that period may well fall upon the party whose unexcused delay prevented prompt delivery on the final demand." We agree that the delivery was too late.
4
The Seller answers that in any event the Buyer accepted the "Refiners" because (1) it "intimated" that it had done so; (2) it had done an "act in relation to them * * * inconsistent with the ownership of the seller"; and (3) it had without objection retained them for more than "a reasonable time."2 The supposed intimation was a letter of the Buyer on October 11th, 1945, in which it asked the Seller to confirm to the Buyer's accountants the amount of the Seller's claim against it as of September 30th, 1945; and in which it stated that claim as $25,500; the full purchase-price. It must be conceded that this was a most unhappy statement, vis-à-vis the Buyer, for, taken at its face, it surely presupposed acceptance of the "Refiners." Nor would it be any excuse that the Buyer's practise was to charge itself upon its books with the cost of goods as soon as they were delivered, and by way of precaution to check its figures with those with whom it dealt. Nevertheless, although the Buyer could not excuse the letter by any undisclosed practice or intent of its own, and although judged by itself it might have constituted an "intimation" of acceptance, we think that, when it is read with what had passed between the parties before it was written, it is not susceptible of that understanding. These were the facts. After the Seller had delivered the first two "Refiners" in August, 1943, the Buyer on October 1st, 1943, complained that the Seller had billed it for four machines, although it had delivered only two, and asked for "corrected invoices covering only the portion you have shipped." A year later, on October 24th, 1944, after the Seller had on September 2d, 1944, made it clear that it was going on with the contract, in a letter in precisely the same terms, mutatis mutandis, as the letter of October 11th, 1945, the Buyer asked the Seller to confirm the charge in its favor on the Buyer's books of $15,500, the price of the first two "Refiners." While matters stood in this posture it could be argued with considerable plausibility that the contract had been severed, or "split," into two contracts, each for two machines, and that the letter of October 24th, 1944, was an acceptance of the first two. However, it soon transpired, if it was not already known, that the Buyer had no such intent, and that not only did the contract remain single as it had been at the start; but that the inquiry of October 24th, 1944, was not an acceptance of anything, but had been made because of the way the Buyer kept its books. Hence, when the Seller received the letter of October 11th, 1945, couched in the same terms, it had no warrant for assuming that its meaning was different from its predecessor of a year before.
5
Besides, the issue is irrelevant for another reason. It does not appear whether the telephone talk in which the Buyer repudiated the contract was before or after October 11th, 1945. If the letter was after the talk, it would not have affected the rights of the parties because, however broadly one may construe it, it certainly could not be understood as a retraction of the express repudiation; only in case it came before the talk, could it be deemed an acceptance. If the Seller had the burden of proof, it failed, for the issue remains undecided; and it is plain that it did have the burden, for the delivery, being too late, had to be excused by showing that some conduct of the Buyer condoned it.
6
Second, as an act inconsistent with its "ownership," the Seller puts forward the Buyer's write-off on its books — as a loss deductible from its income tax — of a depreciation in value of the "Refiners." Whether this was done before or after the telephone talk, also does not appear; and, as in the case of the letter of October 11th, 1945, the question is irrelevant for that reason; but it is insufficient on the merits as well. It is of course true that, as an indication of the Buyer's state of mind, the entry was unequivocal, and could not be reconciled with any other conclusion than that the Buyer regarded the machines as its own — unless it was preparing a fraud on the Treasury which is not to be presumed. Yet that did not make the entry an act "inconsistent" with the rights of the Seller, as we understand that word in the statute. It is true that two decisions of the intermediate court of appeals of Illinois3 have held that it is an acceptance for a buyer to collect insurance on the delivered goods, and it may be that that is a sufficient act of dominion. At any rate it is not the same as the Buyer's conduct here. The decisions are not very helpful; for the most part they concern situations where the buyer has done something to the goods themselves, which would be an invasion of some interest of the seller, although apparently it is enough to offer them for sale, since that asserts a right to dispose of them.4 Be that as it may, it does not interfere with a seller's ownership to make an entry upon the buyer's books that the goods are the buyer's. Nor would it be so, though the buyer were to claim a deduction for depreciation in his income tax return, or were even to succeed in getting the claim allowed.
7
A much more doubtful question arises from the Buyer's use of the motor and its accessories which began on February 20th, 1946. Had that been before the telephone talk, instead of four months later, it would have brought the situation strictly within the Act; but it does not follow that the result is the same when the use follows an unequivocal rejection of all the goods. In the case at bar the use of the motor was no basis for inferring that the Buyer in fact meant to retract its rejection and to accept the goods; and that is true whether we regard as controlling the private intent of the Buyer, or the assumed intent of a "reasonable" buyer in his circumstances. If use of the motor is to be treated as an acceptance, it is not because the Buyer so intended, but because otherwise the use was an unlawful invasion of the Seller's rights. In Connecticut two decisions5 have dealt with situations which, though closely akin, did not involve the point. The buyer had received the goods, had found them unsatisfactory, but had continued to use a part of them — all before he rejected them as eventually he did. In such cases the use of the goods is merely one circumstance — perhaps enough in itself — among those facts which together constitute acceptance. However, in Modern Home Utilities, Inc. v. Garrity,6 although the buyer had rejected a beer cooling apparatus as not in conformity with the contract, she continued to make use of one part of it — a beer pump — and she was held for the price of the whole apparatus. This was on two grounds: that her original rejection was in any event unjustified; and, as an alternate, that, even if it had not been, the rejection made her a bailee, and, "if she used the equipment or a part of it she ceased to be bailee and made that part her own and could not claim rescission." The contract being indivisible, the buyer "had no right to accept one part and to reject the rest." It must be owned that, if this is to be understood to lay down an absolute doctrine, the Buyer's use of the motor in the case at bar constituted a retraction of its rejection.
8
The Uniform Sales Act7 has somewhat modified the consequences of a buyer's acceptance of any part of the goods8; and we are disposed to believe that there may be situations, in which the buyer's eventual use of a part, even though it may be strictly a violation of his duties as bailee, will not impose upon him in invitum a retraction of an earlier rejection. In the case at bar any other result would be to the last degree harsh; for, as has already appeared, the Seller had delayed delivery until the "Refiners" had lost the greater part of their value anyway; and after the Buyer had unequivocally rejected them the Seller had allowed them to lie unclaimed for four months. When the Buyer finally did use the motor, it was not for its intended purpose, but in salvage of what would otherwise have been a total loss. Finally, the Seller's indifference for the four months, although it may not have altogether justified the inference that it had abandoned the property, at least gave some color for that conclusion. Considering that the retraction of a buyer's rejection is not derived from his consent, but is a legal duty imposed upon him as a consequence of the wrong of meddling with goods of which he is only a bailee, we hold that in the circumstances at bar that consequence should not follow. To impose a liability of $25,500 for goods which had certainly by February 20th, 1946, become substantially valueless, seems to us to impose a penalty.
9
Third, is the question whether the Buyer should have allowed the "Refiners" to remain in its possession for a month "without intimating" that it had "rejected them." We limit the time to a month because, as we have said, the Seller had the burden, because the "Refiners" were delivered at least not before the end of August, and because the repudiation may have been at the beginning of October. On the whole we are disposed to agree with the judge that the Buyer's delay in declaring its position did not prejudice, and could not have prejudiced, the Seller, because, the prime market for the "Refiners" having already gone when delivery was made, with it disappeared any immediate call upon the Buyer to declare itself. We hold therefore that the Seller failed to excuse its breach under any of the three statutory grounds for imputing acceptance to the Buyer. The dismissal of its complaint upon the contract was correct.
10
Upon the Seller's appeal there remains only the question whether it was entitled to interest upon the value of the motor and its accessories, which the judge denied. The Buyer's use of this property was indeed a conversion, for which the Seller might sue in quasi-contract, as it did; and the judge found that the motor, although it was secondhand machinery originally, had a "fair market value of $4,590." We follow the law of Connecticut upon the point, and we read Regan v. New York & New England R. Co.9 and Healy v. Fallon10 as establishing the principle that, when the value of goods can be "ascertained with reasonable certainty as of a definite time," interest should be recovered. Hence we hold that the Seller should have been awarded interest on the value of the motor and its accessories from the date of the Buyer's appropriation — February 20th, 1946.
11
Coming next to the Buyer's appeal, it does not claim any loss of profit, but it does claim the expenses which it incurred in reliance upon the Seller's promise. These were of three kinds: its whole investment in its "reclaim department," $118,478; the cost of its "rubber scrap," $27,555.63; the cost of the foundation which it laid for the "Refiners," $3,000. The judge in his opinion held that the Buyer had not proved that "the lack of production" of the reclaim department "was caused by the delay in delivery of plaintiffs' refiners"; but that that was "only one of several possible causes. Such a possibility is not sufficient proof of causation to impose liability on the plaintiffs for the cost of all machinery and supplies for the reclaim department." The record certainly would not warrant our holding that this holding was "clearly erroneous"; indeed, the evidence preponderates in its favor. The Buyer disposed of all its "scrap rubber" in April and May, 1945; and, so far as appears, until it filed its counterclaim in May, 1947, it never suggested that the failure to deliver two of the four "Refiners" was the cause of the collapse of its "reclaim department." The counterclaim for these items has every appearance of being an afterthought, which can scarcely have been put forward with any hope of success.
12
The claim for the cost of the foundation which the Buyer built for the "Refiners," stands upon a different footing. Normally a promisee's damages for breach of contract are the value of the promised performance, less his outlay, which includes, not only what he must pay to the promisor, but any expenses necessary to prepare for the performance; and in the case at bar the cost of the foundation was such an expense. The sum which would restore the Buyer to the position it would have been in, had the Seller performed, would therefore be the prospective net earnings of the "Refiners" while they were used (together with any value they might have as scrap after they were discarded), less their price — $25,500 — together with $3,000, the cost of installing them. The Buyer did not indeed prove the net earnings of the "Refiners" or their scrap value; but it asserts that it is nonetheless entitled to recover the cost of the foundation upon the theory that what it expended in reliance upon the Seller's performance was a recoverable loss. In cases where the venture would have proved profitable to the promisee, there is no reason why he should not recover his expenses. On the other hand, on those occasions in which the performance would not have covered the promisee's outlay, such a result imposes the risk of the promisee's contract upon the promisor. We cannot agree that the promisor's default in performance should under this guise make him an insurer of the promisee's venture; yet it does not follow that the breach should not throw upon him the duty of showing that the value of the performance would in fact have been less than the promisee's outlay. It is often very hard to learn what the value of the performance would have been; and it is a common expedient, and a just one, in such situations to put the peril of the answer upon that party who by his wrong has made the issue relevant to the rights of the other.11 On principle therefore the proper solution would seem to be that the promisee may recover his outlay in preparation for the performance, subject to the privilege of the promisor to reduce it by as much as he can show that the promisee would have lost, if the contract had been performed.
13
The decisions leave much to be desired. There is language in United States v. Behan12 which, read literally, would allow the promisee to recover his outlay in all cases: the promisor is said to be "estopped" to deny that the value of the performance would not equal it. We doubt whether the Supreme Court would today accept the explanation, although the result was right under the rule which we propose. Moreover, in spite of the authority properly accorded to any decision of that court, we are here concerned only with Connecticut law; and the decisions in that state do not seem to be in entire accord. In the early case of Bush v. Canfield13 the buyer sued to recover a payment of $5,000 made in advance for the purchase of 2,000 barrels of flour at $7.00 a barrel. Although at the time set for delivery the value of the flour had fallen to $5.50, the seller for some undisclosed reason failed to perform. The action was on the case for the breach, not in indebitatus assumpsit, and the court, Hosmer, J., dissenting, allowed the buyer to recover the full amount of his payment over the seller's objection that recovery should be reduced by the buyer's loss. The chief justice gave the following reason for his decision which we take to be that of the court, 2 Conn. page 488: "The defendant has violated his contract; and it is not for him to say that if he had fulfilled it, the plaintiffs would have sustained a great loss, and that this ought to be deducted from the money advanced." If there is no difference between the recovery of money received by a promisor who later defaults, and a promisee's outlay preparatory to performance, this decision is in the Buyer's favor. However, when the promisor has received any benefit, the promisee's recovery always depends upon whether the promisor has been "unjustly enriched"; and, judged by that nebulous standard, there may be a distinction between imposing the promisee's loss on the promisor by compelling him to disgorge what he has received and compelling him to pay what he never has received. It is quite true that the only difference is between allowing the promisee to recover what he has paid to the promisor and what he has paid to others; but many persons would probably think that difference vital.
14
In any event, unless this be a valid distinction, it appears to us that Santoro v. Mack14 must be read as taking the opposite view. The plaintiff, the vendee under a contract for the sale of land, had paid an electrician and an architect whom he had employed in reliance upon the promised conveyance. These payments he sought to recover, and was unsuccessful on the ground that they had not benefited the vendor, and that they had been incurred without the vendor's knowledge or consent. Yet it would seem that such expenses were as much in reasonable preparation for the use of the land, as the cost of the foundation was for the use of the "Refiners." The point now before us was apparently not raised, but the decision, as it stands, seems to deny any recovery whatever. Three other Connecticut decisions — the only ones which at all approach the question — do not throw any light upon the point.15
15
The result is equally inconclusive if we consider the few decisions in other jurisdictions. The New Jersey Court of Errors and Appeals in Holt v. United Security Life Insurance & Trust Co.16 recognized as the proper rule that, although the promisor had the burden of proving that the value of the performance was less than the promisee's outlay, if he succeeded in doing so, the recovery would be correspondingly limited. In Bernstein v. Meech17 the promisee recovered his full outlay, and no limitation upon it appears to have been recognized, as may be inferred from the following sentence: "It cannot be assumed that any part of this loss would have been sustained by the plaintiff if he had been permitted to perform his contract." In Reynolds v. Levi18 the promisee was a well digger, who had made three unsuccessful efforts to reach water, and the promisor — a farmer — stopped him before he had completed his fourth. The court limited the recovery to the amount earned on the fourth attempt, but for reasons that are not apparent. It appears to us therefore that the reported decisions leave it open to us to adopt the rule we have stated. Moreover, there is support for this result in the writings of scholars. The Restatement of Contracts19 allows recovery of the promisee's outlay "in necessary preparation" for the performance, subject to several limitations, of which one is that the promisor may deduct whatever he can prove the promisee would have lost, if the contract had been fully performed. Professor McCormick thinks20 that "the jury should be instructed not to go beyond the probable yield" of the performance to the promisee, but he does not consider the burden of proof. Much the fullest discussion of the whole subject is Professor Fuller's in the Yale Law Journal.21 The situation at bar was among those which he calls cases of "essential reliance," and for which he favors the rule we are adopting. It is one instance of his "very simple formula: We will not in a suit for reimbursement of losses incurred in reliance on a contract knowingly put the plaintiff in a better position than he would have occupied, had the contract been fully performed."
16
The judgment will therefore be affirmed with the following modifications. To the allowance for the motor and accessories will be added interest from February 20th, 1946. The Buyer will be allowed to set off $3,000 against the Seller's recovery with interest from October, 1945, subject to the Seller's privilege to deduct from that amount any sum which upon a further hearing it can prove would have been the Buyer's loss upon the contract, had the "Refiners" been delivered on or before May 1st, 1945.
17
Judgment modified as above, and affirmed as so modified.
Notes:
1
Restatement of Contracts, § 276 (b)
2
§ 48, Uniform Sales Act; § 4668, General Statutes of Connecticut, Revision of 1930
3
Telford v. Albro, 60 Ill.App. 359; Foley & Co. v. Excelsior Stove & Mfg. Co., 265 Ill.App. 78
4
Ostman v. Lee, 91 Conn. 731, 101 A. 23; Lilly White v. Devereux, 15 Meeson & Welsly, 285; Brown v. Foster, 108 N.Y. 387, 393, 15 N.E. 608; Eagle Manufacturing Co. v. Arkell & Douglas, Inc., 197 App.Div. 788, 189 N.Y.S. 140
5
Thompson Machines & Supply Co. v. Graves, 91 Conn. 71, 98 A. 331; Loveland v. Aymett's Auto Arcade, Inc., 121 Conn. 231, 184 A. 376
6
121 Conn. 651, 186 A. 639
7
§ 44, subd. 3
8
Portfolio v. Rubin, 233 N.Y. 439, 135 N.E. 843
9
60 Conn. 124, 22 A. 503, 25 Am.St.Rep. 306
10
69 Conn. 228, 37 A. 495
11
Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S.Ct. 248, 75 L.Ed. 544
12
110 U.S. 338, 345, 346, 4 S.Ct. 81, 28 L.Ed. 168
13
2 Conn. 485
14
108 Conn. 683, 145 A. 273
15
Edward DeV. Tompkins, Inc., v. City of Bridgeport, 94 Conn. 659, 110 A. 183, 191; Kastner v. Beacon Oil Co., 114 Conn. 190, 158 A. 214, 81 A.L.R. 97; Jordan v. Patterson, 67 Conn. 473, 35 A. 521
16
76 N.J.L. 585, 72 A. 301, 21 L.R.A., N.S., 691;
17
130 N.Y. 354, 360, 29 N.E. 255, 257;
18
122 Mich. 115, 80 N.W. 999
19
§ 333 (d)
20
McCormick on Damages, § 142, p. 584
21
46 Yale Law Journal, 752, pp. 75-80
| {
"pile_set_name": "FreeLaw"
} |
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0069p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
FAMILY SERVICE ASSOCIATION ex rel. James W. ┐
Coil, II, │
Plaintiff-Appellee, │
│ No. 14-4020
│
v. >
│
│
WELLS TOWNSHIP, et al., │
Defendants, │
│
│
JEFFREY JAMES KAMERER, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:12-cv-00135—Michael H. Watson, District Judge.
Decided and Filed: April 16, 2015
Before: NORRIS, SUTTON, and DONALD, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Gregory A. Beck, BAKER, DUBLIKAR, BECK, WILEY & MATHEWS, North
Canton, Ohio, for Appellant. Neal E. Shapero, Abby L. Botnick, SHAPERO ROLOFF CO.,
LPA, Cleveland, Ohio, for Appellee.
_________________
OPINION
_________________
SUTTON, Circuit Judge. Christmas Day 2011 was an unfortunate day for Jimmy Coil
and Officer J.J. Kamerer. At around 10:00 p.m. that night, Coil and his boyfriend Barry Starcher
1
No. 14-4020 Family Serv. Ass’n v. Wells Twp., et al. Page 2
were walking home from a friend’s house in Brilliant, Ohio. They stopped for a moment to rest
near a gas station. While they sat on a guardrail along the Third Street exit from State Route 7,
Officer J.J. Kamerer approached them in his police cruiser. Concerned for their safety, Kamerer
asked if anything was wrong.
What happened next remains a mystery—in part. According to Starcher, he and Coil told
Officer Kamerer that nothing was wrong and that they were heading home. Kamerer asked for
their names, but Starcher hesitated to answer. “I’m not sure I should give you that,” he replied.
R. 44-1 at 22. “What do you need that for?” he added. R. 45-1 at 8. Coil then got up and started
walking away, saying he was going home. That caused Kamerer to “go[] off on [them] like a
crazy person.” Id. Kamerer jumped out of the cruiser after Coil, screaming in his face, “You
better do what the f[**]k I tell you when I tell you! You’re going to give me your f[**]king
name or I’m going to put you down on the ground!” Id.; R. 44-1 at 27. The men gave their
names. Coil handed the officer a prescription bottle to prove who he was and turned to go,
yelling “Police brutality!” as he walked away a second time. R. 44-1 at 34. Kamerer ordered
Coil to stop and held his flashlight up as he approached Coil as if to hit him. After Coil held out
his arms “to protect himself,” he and the officer began “grabbing at each other.” Id. at 39; R. 45-
1 at 45. Coil never hit Kamerer. The same was not true in the other direction. Kamerer
“slammed” Coil to the ground, pepper-sprayed him, and left him handcuffed facedown in the
street. R. 44-1 at 46.
During the scuffle, Starcher says he stood just a step or two behind Officer Kamerer,
pleading with him not to hurt Coil and trying to separate the two. Starcher never hit Kamerer
either. That also did not make a difference. As soon as Kamerer was done with Coil, he
whipped around and pepper-sprayed Starcher, forcing him back several feet to the neighboring
grass. The next thing Starcher remembers is opening his eyes and seeing Kamerer running back
to the road and getting hit, along with Coil, by an oncoming SUV.
Officer Kamerer gives a different account. After he asked whether everything was
alright, Coil and Starcher “began cussing” and “bec[ame] combative toward [him].” R. 42-1 at
28. They told him to “get the f[**]k away” and would not calm down. Id. After Coil shoved
him, Kamerer told Coil that he was under arrest and asked each man for his identification. They
No. 14-4020 Family Serv. Ass’n v. Wells Twp., et al. Page 3
refused and became “combative.” Id. at 29. Coil threw a pill bottle at the officer and said,
“There’s my f[**]king ID!” Id. He then “charg[ed]” Kamerer “like a football player.” Id.
Starcher joined in, and the two men slapped, punched, and pushed him “all the way up the road.”
Id. at 57. When Kamerer tried to handcuff Coil on the ground, Starcher continued to punch and
slap the back of his head. After pepper-spraying Coil, Kamerer briefly left him handcuffed
facedown “in the road” to spray and tackle Starcher, who charged as soon as Kamerer stood up.
Id. at 31. “Within seconds,” he returned to retrieve Coil from the road, and a car struck both of
them. Id. at 33. Kamerer radioed for help.
Cynthia Devore, who lived nearby, witnessed some of the incident. She confirmed that it
was a dark night, that Coil had dark clothes on, and that Kamerer’s cruiser did not have its
flashing or regular lights on. She saw “two men fighting in the middle of the street.” R. 46-1 at
17. Officer Kamerer already had Coil on the ground, but Starcher was lightly “pushing at”
Kamerer’s back to get him away from Coil. Id. at 24, 69. After the officer handcuffed Coil and
got Starcher to back away from him, Devore saw headlights coming down the road. Kamerer
rushed back to the road to grab Coil, and as soon the officer stood Coil on his feet the car struck
them both.
The crash caused a severe traumatic brain injury to Coil, leaving him with limited
cognitive function and requiring around-the-clock care for the rest of his days. Kamerer broke
his left shoulder and two bones in his left leg, and it took 30 days in a hospital to recover from
his injuries. The Family Service Association, Coil’s legal guardian, filed this § 1983 action
against Officer Kamerer on Coil’s behalf, alleging a baseless seizure in violation of the Fourth
Amendment and deliberate indifference to his safety in violation of the Fourteenth Amendment.
Officer Kamerer moved for summary judgment on qualified immunity grounds. The district
court denied the motion. It ruled that a reasonable jury could find that Kamerer
unconstitutionally seized Coil without reasonable suspicion based on Starcher’s account of the
evening’s events. And it ruled that a reasonable jury could find that Kamerer was deliberately
indifferent to Coil’s safety based on Starcher’s account as well as the length of time Kamerer left
Coil handcuffed and facedown in the road.
No. 14-4020 Family Serv. Ass’n v. Wells Twp., et al. Page 4
A few familiar principles orient this appeal. Qualified immunity protects Officer
Kamerer from this lawsuit unless Coil establishes that Kamerer violated his constitutional rights
and that those rights were clearly established. Pearson v. Callahan, 555 U.S. 223, 231 (2009).
Officer Kamerer is entitled to summary judgment if no reasonable jury could find in Coil’s favor.
See Fed. R. Civ. P. 56(a); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). And Coil receives the benefit of the doubt in assessing the factual record. In considering
whether an officer violated a citizen’s constitutional rights, we “may not call off the trial merely
because an officer says he or she acted reasonably in the face of competing testimony. We
instead consider the facts in the light most favorable to the plaintiff.” Greco v. Livingston Cnty.,
774 F.3d 1061, 1064 (6th Cir. 2014).
Fourth Amendment improper seizure claim. Officer Kamerer’s seizure of Coil implicates
several cornerstones of Fourth Amendment law. Police officers may not stop citizens minding
their own business on a public street in the absence of reasonable suspicion that they have
committed, or are about to commit, a crime, Terry v. Ohio, 392 U.S. 1, 21–22 (1968), and they
may not arrest them in the absence of probable cause that they have committed a crime, Henry v.
United States, 361 U.S. 98, 102 (1959). Unsuspicious pedestrians remain free “to ignore the
police and go about [their] business.” Illinois v. Wardlow, 528 U.S. 119, 125 (2000). And
“refusal to cooperate, without more, does not furnish the minimal level of objective justification
needed for a detention or seizure.” Florida v. Bostick, 501 U.S. 429, 437 (1991). All of this
establishes that “walking away from an officer does not create . . . reasonable suspicion.” United
States v. Beauchamp, 659 F.3d 560, 570 (6th Cir. 2011); see Brown v. Texas, 443 U.S. 47, 52
(1979).
A jury could reasonably believe that Kamerer did not adhere to these requirements during
his encounter with Coil. According to Starcher’s account of the evening, Coil never committed a
crime or gave Kamerer any reason to think he had. Sitting on a guardrail is not illegal. Doing so
at night, whether on Christmas night or any other, does not transform this innocent activity into
nefarious conduct. Walking away from an officer without answering his questions or revealing
one’s name does not establish reasonable suspicion for a Terry stop. And an individual’s late-
night presence in a high-crime area by itself does not establish reasonable suspicion of anything
No. 14-4020 Family Serv. Ass’n v. Wells Twp., et al. Page 5
other than the probability that the individual lives in a high-crime area. That leaves the absence
of a nearby car or any open store or business that might explain the men’s presence. But walking
without evident purpose remains an innocent, even enjoyable, activity in this country, whether in
a high-crime area or a suburban park. Papachristou v. City of Jacksonville, 405 U.S. 156, 163–
64, 171 (1972). Even after considering “the whole picture,” Navarette v. California, 134 S. Ct.
1683, 1687 (2014) (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)), no reasonable
officer could find a basis to stop Coil, let alone probable cause to arrest him on this record. See
United States v. Johnson, 620 F.3d 685, 692–95 (6th Cir. 2010).
What of the officer’s testimony that Coil hit him during the encounter and attempted to
flee afterwards? The problem is, it is just that—the officer’s testimony—and it does not stand
alone. Starcher denies that Coil reacted violently or attempted to flee. From his vantage point,
Coil never hit the officer and only walked away—“‘the opposite’ of flight.” Id. at 695 (quoting
Wardlow, 528 U.S. at 125). Whether we believe Starcher or not makes no difference because a
jury reasonably could believe him. “At this phase of the case, we need not choose whom to
believe; the summary judgment standard picks the appropriate viewpoint for us.” Greco,
774 F.3d at 1062.
What of Hiibel v. Sixth Judicial District Court, 542 U.S. 177, 187–88 (2004), which held
that officers sometimes may compel individuals to give their names? Hiibel held that States may
require suspects to disclose their names “in the course of a valid Terry stop.” Id. at 188. What
makes a Terry stop valid is reasonable suspicion—something that existed in Hiibel but did not
exist here. Hiibel indeed relied on the quarter-century-old holding of Brown v. Texas that police
may not detain pedestrians to obtain their identity without “specific, objective facts establishing
reasonable suspicion [of] criminal activity.” Id. at 184 (citing Brown, 443 U.S. at 51–52).
Because a jury could reasonably believe that Coil did nothing suspicious that evening, Coil had a
clearly established right to refuse Kamerer’s questions.
What of Kamerer’s allegation that Starcher resembled a suspect wanted by police?
Kamerer forfeited the argument by failing to raise it before the district court. See Barner v.
Pilkington N. Am., Inc., 399 F.3d 745, 749 (6th Cir. 2005). Starcher’s likeness at any rate cannot
support the officer’s seizure of Coil. “[M]ere propinquity to others independently suspected of
No. 14-4020 Family Serv. Ass’n v. Wells Twp., et al. Page 6
criminal activity does not, without more,” support a Terry stop or a seizure. Ybarra v. Illinois,
444 U.S. 85, 91–93 (1979); see Sibron v. New York, 392 U.S. 40, 63–64 (1968). The district
court properly allowed this claim to go to a jury.
Fourteenth Amendment substantive due process claim. The state-action requirement of
the Fourteenth Amendment means that the Due Process Clause does not impose liability on the
State when one private individual injures another. See DeShaney v. Winnebago Cnty. Dep’t of
Soc. Servs., 489 U.S. 189, 195–96 (1989). But when the State takes an individual into custody—
into its control—substantive due process prevents state actors from intentionally or recklessly
injuring the individual, whether that individual has been temporarily seized by an officer or is
more permanently housed in a prison. See Collins v. City of Harker Heights, 503 U.S. 115, 127–
28 (1992); Davis v. Brady, 143 F.3d 1021, 1024 (6th Cir. 1998). Where an arrestee suffers
injury at the hands of a private party while detained by the State, “a constitutional claim arises
when the injury occurred as a result of the state’s deliberate indifference to the risk of such an
injury.” Davis, 143 F.3d at 1026; see Stemler v. City of Florence, 126 F.3d 856, 870 (6th Cir.
1997). Davis and Stemler illustrate the contours of the rule: Davis held that a jury could infer
deliberate indifference when the police took a drunk individual into custody, then abandoned him
on a dark, busy highway, and an accident resulted. 143 F.3d at 1026–27. Stemler held that a
jury could infer deliberate indifference when the police forced a woman, under threat of arrest, to
drive off with her obviously drunk boyfriend, and an accident resulted. 126 F.3d at 867–70.
The record in this case permits a reasonable inference of deliberate indifference. Officer
Kamerer took Coil into custody. He then left him facedown, pepper-sprayed and handcuffed, in
the middle of a lane open to traffic. Why he felt the need to leave him in the middle of the street
in such a state is difficult to fathom. The area was dark. Coil wore dark clothing. Kamerer had
not turned his police car’s regular or flashing lights on. If Coil remained there for any
appreciable amount of time, the risk that Coil might get struck by a passing car was painfully
obvious. And the 911 dispatch recordings show a two-minute gap between when Kamerer
radioed that he had both men “chemically restrained” and when he called for an ambulance,
which occurred “immediately” after the car struck him and Coil. See R. 42-1 at 34; R. 55
(recording). During that window Kamerer faced no threat, and common experience and common
No. 14-4020 Family Serv. Ass’n v. Wells Twp., et al. Page 7
sense suggested a strong likelihood that a car might pass—and its driver would not be able to see
Coil.
What of Kamerer’s statement that he was unsure at the time whether he had left Coil in
the road or the nearby grass? The obvious difference between asphalt and grass, together with
the officer’s failure to check on Coil for over two minutes after he had restrained Starcher, would
allow a jury to infer deliberate indifference to the risk he had created. Cf. Estate of Owensby v.
City of Cincinnati, 414 F.3d 596, 603 (6th Cir. 2005).
What of the reality that Kamerer could not have meant to injure Coil given that he
exposed himself to serious injury—and indeed was seriously injured—when he raced back into
the road to try to save Coil from the approaching car? No doubt, this feature of the case shows
that, when the officer realized what he had done, he quickly and bravely tried to remove Coil
from harm’s way. But it does not eliminate the possibility that the officer behaved recklessly, as
opposed to negligently, in handcuffing Coil facedown in the street. That is precisely the kind of
question—did the officer behave recklessly (creating liability) or negligently (preventing
liability)—that we expect juries, as opposed to judges, to answer.
What of Lombardo v. Ernst, No. 14-1216, 2014 WL 7243329 (6th Cir. Dec. 22, 2014),
which rejected a claim by a suspect who was hit by a car during an officer’s mid-street arrest?
The key problem with the officer’s reliance on this unpublished decision is that the plaintiff in
that case, not the officer, “put himself in the street[].” Id. at *4 n.1. Here by contrast the officer
pepper-sprayed Coil, took him from a place of safety to the street, handcuffed him behind his
back, and left him in the street. Nor was this such a fast-paced encounter that the officer had no
time to deliberate—no time in other words to be deliberately indifferent to Coil’s safety. See
Cnty. of Sacramento v. Lewis, 523 U.S. 833, 853–54 (1998) (holding that higher standard of fault
applies only when “unforeseen circumstances demand an officer’s instant judgment”). Officer
Kamerer did not suddenly face an out-of-control driver that he suddenly had to chase. By
Starcher’s account, both individuals were minding their own business when the officer initiated
the encounter—and created the peril. Officer Kamerer had ample time at each step along the
way to avoid the risk he created.
No. 14-4020 Family Serv. Ass’n v. Wells Twp., et al. Page 8
That would be the end of this appeal but for one loose end. Coil claims we should
dismiss this interlocutory appeal for want of jurisdiction rather than affirm the district court’s
decision. See Johnson v. Jones, 515 U.S. 304 (1995). Coil takes a narrow jurisdictional
requirement and tries to turn it into something it is not. Johnson applies to interlocutory appeals
that solely contest the plaintiff’s account of the facts. Id. at 319–20. That is not this case.
Officer Kamerer maintains that, even “accept[ing] a review of the record in a light most
favorable to [Coil],” his conduct still does not violate the Fourth or Fourteenth Amendments.
Reply Br. at 3. He may be wrong on the merits but that does not deny us jurisdiction to say so—
or for that matter deny Coil the benefit of a merits ruling that establishes on this record that a jury
reasonably could rule for him. Appeals contesting whether the undisputed facts support
reasonable suspicion or deliberate indifference do not run afoul of Johnson. See Gardenhire v.
Schubert, 205 F.3d 303, 312 (6th Cir. 2000) (reasonable suspicion); Williams v. Mehra, 186 F.3d
685, 690 (6th Cir. 1999) (en banc) (deliberate indifference). And in this setting Johnson does not
prevent appellate courts from performing their customary function of determining whether a
material fact dispute precludes summary judgment. See Plumhoff v. Rickard, 134 S. Ct. 2012,
2019 (2014).
For these reasons, we affirm.
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0298n.06
No. 09-6372 FILED
May 05, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE MIDDLE
v. ) DISTRICT OF TENNESSEE
)
MANUEL CAMPOS-CHAVEZ, aka Amador )
Castro-Chavez, ) OPINION
)
Defendant-Appellant. )
BEFORE: McKEAGUE and STRANCH, Circuit Judges; and MAYS, District Judge.*
PER CURIAM. Manuel Campos-Chavez pled guilty to one count of illegal reentry and was
sentenced to seventy months in prison. He now argues that the district court abused its discretion
when it imposed a sentence within the sentencing range, which was based in part on a sixteen-level
enhancement that, according to Campos-Chavez, was not supported by empirical evidence. For the
reasons that follow, we affirm.
I. BACKGROUND
Campos-Chavez was indicted on and pled guilty to one count of illegal reentry after having
been previously deported following a conviction for an aggravated felony, in violation of 8 U.S.C.
§ 1326. A presentence report (“PSR”) was completed, which determined that Campos-Chavez’s
*
The Honorable Samuel H. Mays, Jr., United States District Judge for the Western District
of Tennessee, sitting by designation.
No. 09-6372
United States v. Campos-Chavez
base offense level was eight, pursuant to U.S. Sentencing Guidelines Manual § 2L1.2(a) (“USSG”).
It also determined that Campos-Chavez was subject to a sixteen-level enhancement, pursuant to
USSG § 2L1.2(b)(1)(A)(i), because he had been previously deported following a conviction for a
drug trafficking offense for which the sentence imposed exceeded thirteen months. With a three-
level reduction for acceptance of responsibility, Campos-Chavez’s total offense level was twenty-one
and he had a criminal history category of V. Accordingly, the resulting Guidelines range of
imprisonment was seventy to eighty-seven months. Campos-Chavez filed no objections to the PSR.
At his sentencing hearing, Campos-Chavez again stated that he had no objections to the PSR,
and the court adopted the PSR and its resulting Guidelines range of seventy to eighty-seven months.
Campos-Chavez requested a below-Guidelines sentence, arguing that § 2L1.2 resulted in an
excessive sentence and that the Sentencing Commission failed to articulate a “considered rationale
for either the use of prior convictions to increase offense level [sic] and any considered rationale for
the 16-level increase based on those prior convictions.” The district court acknowledged that it had
the authority to sentence him below the Guidelines range. However, the court explained:
In the view of the [c]ourt, a guideline sentence is appropriate. I understand Mr.
Camp’s arguments about we would all benefit from further articulated rationale by
the Sentencing Commission, but in this [c]ourt’s view, it is not unreasonable to have
a 16-level enhancement as it relates to return of drug traffickers to the United States
illegally. That’s a reasonable sentencing goal particularly as it relates to deterrence.
The Commission may not have articulated it very well, but it is reasonable and makes
common [sense]. And the need to deter further crimes.
The court then sentenced Campos-Chavez to seventy months in prison and he timely appealed.
II. ANALYSIS
-2-
No. 09-6372
United States v. Campos-Chavez
“The touchstone of appellate review of a district court’s sentencing decision is
reasonableness, a concept that has both a procedural and a substantive component.” United States
v. Ruvalcaba, 627 F.3d 218, 221 (6th Cir. 2010) (internal quotation marks omitted). However,
Campos-Chavez does not allege any procedural error, and instead challenges only the substantive
reasonableness of his sentence. Accordingly, we must determine whether the length of the sentence
is “sufficient, but not greater than necessary, to comply with the purposes” of § 3553(a). 18 U.S.C.
§ 3553(a). To determine if a sentence is substantively reasonable in light of the § 3553(a) factors,
we “take into account the totality of the circumstances, including the extent of any variance from the
Guidelines range.” United States v. Jimenez, 605 F.3d 415, 420 (6th Cir. 2010) (quoting Gall v.
United States, 552 U.S. 38, 51 (2007)) (internal quotation marks omitted). Where, as here, the
Guidelines range is properly calculated and the defendant’s sentence falls within that range, we apply
“a presumption of substantive reasonableness.” United States v. Wettstain, 618 F.3d 577, 591 (6th
Cir. 2010). However, that presumption is rebuttable. See Jimenez, 605 F.3d at 420. In undertaking
this review, we use an abuse of discretion standard. See Wettstain, 618 F.3d at 591.
On appeal, Campos-Chavez argues that the district court abused its discretion by imposing
a within-Guidelines sentence, because it failed “to conduct an appropriate evaluation of the evidence
presented by the parties at sentencing.” Specifically, he asserts that the court “failed to hold the
Government to its burden of proving that the sentence for which it advocated furthered § 3553(a)’s
sentencing goals,” and that his sentence was excessive. He claims that the district court improperly
“abdicated its independent sentencing role and presumed the guidelines to be reasonable” when it
assumed a deterrent effect without sufficient supporting evidence of this conclusion.
-3-
No. 09-6372
United States v. Campos-Chavez
Although the government bears the burden of proof regarding the application of a particular
enhancement, it need only establish the factual basis for the enhancement’s application. See United
States v. Bernal-Aveja, 414 F.3d 625, 627 (6th Cir. 2005) (explaining that “[t]he government bears
the burden of proving that [the defendant] was previously convicted of a crime of violence” under
§ 2L1.2(b)(1)(A)). Here, Campos-Chavez was previously convicted in federal court for drug
trafficking, and he did not dispute the validity of that conviction. The existence of a valid, prior drug
trafficking conviction, for which Campos-Chavez was sentenced to fifteen months’ imprisonment,
was sufficient to satisfy the government’s burden of proving the factual basis for the enhancement
by a preponderance of the evidence. There is no support for Campos-Chavez’s contention that, if
a defendant presents evidence challenging whether a sentencing enhancement serves its intended
policy purpose, the government must also come forward with evidence to rebut that presented by the
defendant. There is no case law in this circuit, nor does Campos-Chavez cite to any in this or any
other circuit, that imposes such a burden of proof or a duty to respond on the government, and we
decline the invitation to impose such a requirement.
Moreover, application of the enhancement, despite the absence of empirical evidence
supporting that enhancement, was not an abuse of discretion by the district court. Although this
court has not addressed Campos-Chavez’s argument specifically in the context of
§ 2L1.2(b)(1)(A)(i), it has done so in the context of another provision of the Sentencing Guidelines.
In United States v. Brooks, 628 F.3d 791 (6th Cir. 2011), Brooks argued that USSG § 2G2.2 was
“not based on empirical data and therefore led to a disproportionately harsh sentence.” Id. at 797.
This court ruled that “[a] district court may indeed disagree with a Guideline for policy reasons and
-4-
No. 09-6372
United States v. Campos-Chavez
may reject the Guidelines range based on that disagreement,” but that “does not mean that the court
must disagree with that Guideline or that it must reject the Guidelines range if it disagrees.” Id. at
799–800. Additionally, like Campos-Chavez, “Brooks cite[d] no authority to support the proposition
that a district court must, on its own initiative, examine the underlying bases for a Guideline before
imposing a sentence.” Id. (citing United States v. Aguilar-Huerta, 576 F.3d 365, 367–68 (7th Cir.
2009) (explaining that a judge is not required to consider “an argument that a guideline is unworthy
of application in any case because it was promulgated without adequate deliberation”)).
The same reasoning is applicable here, foreclosing Campos-Chavez’s claim on appeal. See
also United States v. Hall, 632 F.3d 331, 338 (6th Cir. 2011) (“Under the presumption of
reasonableness that we give to a district court’s within-Guidelines sentence, we will not second-
guess a district court’s decision simply because the particular Guideline is not empirically-based.”)
(internal quotation marks and alterations omitted); United States v. Lopez-Reyes, 589 F.3d 667, 671
(3d Cir. 2009) (explaining that a district court is not required “to reject a particular Guidelines range
where that court does not, in fact, have disagreement with the Guideline at issue” or “to engage in
‘independent analysis’ of the empirical justifications and deliberative undertakings that led to a
particular Guideline”); United States v. Talamantes, 620 F.3d 901, 902 (8th Cir. 2010) (same);
Aguilar-Huerta, 576 F.3d at 367–68. We also note that, in light of the principles established in
Brooks, if the district court is not required to “‘delve into the history of a guideline’” in order to be
satisfied “‘that the process that produced it was adequate to produce a good guideline,’” Brooks, 628
F.3d at 800 (quoting Aguilar-Huerta, 576 F.3d at 367–68), correspondingly there is no reason that
the government must come forward with its own evidence if the defendant challenges the policy
-5-
No. 09-6372
United States v. Campos-Chavez
rationale behind or lack of empirical evidence supporting a specific Guidelines provision. It is for
the district court to decide, on the basis of its own discretion, if it agrees with or rejects the policy
rationale behind the Guidelines provision being challenged by the defendant.
Here, Campos-Chavez did not object to application of the enhancement or the resulting
Guidelines range, and the district court considered the § 3553(a) factors, considered and rejected
Campos-Chavez’s policy argument, and found that the goal of deterrence was well-served by the
enhancement, despite the lack of empirical evidence. Campos-Chavez’s resulting sentence was
within the Guidelines range, and therefore is entitled to a presumption of reasonableness on appeal.
Campos-Chavez has presented nothing to rebut this presumption of reasonableness, nor has he
otherwise challenged the substantive reasonableness of his sentence. See United States v. Alvarez-
Bernabe, 626 F.3d 1161, 1167 (10th Cir. 2010). Accordingly, Campos-Chavez has failed to
demonstrate that the district court abused its discretion in sentencing him to a within-Guidelines
sentence.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the sentence imposed by the district court.
-6-
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Fourth Court of Appeals
San Antonio, Texas
November 21, 2014
No. 04-14-00734-CV
Sandra SAKS, Lee Nick McFadin, III and Margaret Landen Saks,
Appellants
v.
BROADWAY COFFEEHOUSE, LLC,
Appellee
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2013-CI-17001
Honorable Antonia Arteaga, Judge Presiding
ORDER
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Sandee Bryan Marion, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
The court has considered the appellants' motion to reconsider en banc motion to suspend
the judgment and to review order setting the amount of supersedeas bond, and the motion is
DENIED.
_________________________________
Catherine Stone, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 21st day of November, 2014.
___________________________________
Keith E. Hottle
Clerk of Court
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183 F.2d 515
BIGGS et al.v.JOSHUA HENDY CORPORATION.
No. 12257.
United States Court of Appeals Ninth Circuit.
June 28, 1950.
Mohr & Borstein and Perry Bertram, Los Angeles, Cal., for appellants.
Thelen, Marrin, Johnson & Bridges, Robert H. Sanders, Los Angeles, Cal., for appellee.
Before HEALY, ORR and POPE, Circuit Judges.
ORR, Circuit Judge.
1
Appellants brought this action under § 16(b) of the Fair Labor Standards Act, as amended, 29 U.S.C.A. § 216(b), hereinafter referred to as the Act, to recover overtime compensation allegedly due from appellee under § 7(a) of the Act, 29 U.S.C.A. § 207(a)1 Appellants were employed by appellee pursuant to the provisions of a collective bargaining agreement, the pertinent provisions of which appear in the footnote.2 The trial court found that during the period here involved appellants, in addition to working the hours specified by the contract, were required by appellee to work through their lunch periods of one-half hour each day. The parties stipulated, and the trial Court found, that appellee did not compensate appellants for lunch periods. Appellant Hector and other plaintiffs below, not parties to this appeal, were awarded overtime wages for each lunch period worked on the day shift. Appellants were denied recovery, however, for the lunch periods worked on the second, or swing, and third, or graveyard, shifts. The Court gave as its reason for denying recovery, the payment to appellants of a half-hour premium per day on the swing shift and a one-hour premium per day on the graveyard shift, pursuant to paragraph 5(c) of the contract existing between the Union, of which appellants were members, and Joshua Hendy Corporation. This approach failed to give a proper construction to 29 U.S.C.A. § 207(a), which required payment for employment in excess of 40 hours per week to be at a rate not less than one and one-half times the regular rate at which appellants were employed. The Supreme Court of the United States, in the case of Bay Ridge Operating Co. v. Aaron, 1948, 334 U.S. 446, 68 S.Ct. 1186, 92 L.Ed. 1502, defined the "regular rate" under this section as the total compensation received for any week, minus overtime premiums, divided by the total number of hours worked during the week. This definition assumes, however, that the total compensation received was in return for all hours worked as regular shifts. The regular hours of work in the plant at which appellants were employed was 7½ hours on the swing and seven on the graveyard, exclusive of the half hour worked and to which appellants were entitled as lunch periods. On the swing shift appellants worked and were compensated for a scheduled 45 hours per week and, in addition, worked three hours during lunch periods for which no compensation was received, or a total of 48 hours. On the graveyard shift a scheduled 42 hours was worked and compensation paid therefor. They also worked three extra hours during lunch periods for which no compensation was received. Hence, on the swing and graveyard shifts the three uncompensated hours must be added to a workweek which, before such addition, totaled more than forty hours. Appellants are therefore entitled to overtime compensation for three extra hours worked each week, except to the extent that such overtime compensation is offset by overtime premium paid by appellee in excess of that required by the Act. In computing such overtime compensation, consideration must be given to §§ 7(d) (6) and 7(g), 29 U.S.C.A. § 207(d) (6), (g), which were added retroactively by the amendments of October 26, 1949, 29 U.S.C. A. 216b.3 Under § 7(d) (6), appellants' regular hourly rate of pay on the swing shift should be determined by taking the total compensation paid for the normal 45-hour workweek, including the daily half-hour and 10% "shift premium," subtracting the total half-time premium paid for work on Saturday, and dividing the result by 45, the total compensated hours on swing shift. Similarly the regular hourly rate on the graveyard shift should be determined by subtracting the total Saturday half-time premium from the total compensation paid for the normal 42 hour workweek, including the daily one-hour and 15% "shift premium," and dividing the result by 42, the total compensated hours on graveyard shift. To compute the compensation due appellants for each week in which all lunch periods were worked, the regular hourly rate should be multiplied by three (weekly hours of lunch period), multiplied by one and one-half, which is the overtime rate. From the resulting product should be subtracted the amount of credit due appellee under § 7(g) for overtime premium paid in excess of that required by the Act.
2
On the swing shift, appellants were compensated for 45 hours. Of these hours, 7½ were paid as overtime. The Act required only five of these hours to be paid as overtime. Therefore, appellee is entitled under § 7(g) to credit for 2½ hours excess overtime premium per week. Since the overtime premium was one-half the regular hourly rate, the excess overtime premium was 2½ × ½, or 1¼ times the regular hourly rate per week. The gross amount due appellants for each week in which they worked through lunch periods is the regular hourly rate times 3 times 1½, or the rate times 4½. Subtracting 1¼ from 4½ leaves 3¼ times the regular hourly rate as the net amount due appellants for each week in which they worked through lunch periods on the swing shift.
3
On graveyard shift, appellants were compensated for 42 hours. Of these hours, 7 were paid as overtime. The Act required only two of these hours to be paid as overtime. Therefore, appellee is entitled under § 7(g) to credit for 5 hours excess overtime premium per week. Since the overtime premium was one-half the regular hourly rate, the excess overtime premium was 5 × ½, or 2½ times the regular hourly rate per week. The gross amount due appellants for each week in which they worked through lunch periods is the regular hourly rate times 3 times 1½, or the rate times 4½. Subtracting 2½ from 4½ leaves 2 times the regular hourly rate as the net amount due appellants for each week in which they worked through lunch periods on the graveyard shift.
4
Of course, if part of appellants' work during the weeks here in question were performed on Sundays or holidays, for which work they were paid double the regular hourly rate in accordance with the contract, the amount of credit due under § 7(g) would necessarily be adjusted accordingly. To illustrate the proper method of computation, assume an employee on the graveyard shift at a contract hourly rate of $1.50 per hour who has been compensated for the 42 hours of work per week, Monday through Saturday, as required by the contract but who has worked three extra hours per week during lunch periods without compensation. The overtime compensation due each week under § 7 should be computed as follows:
5
A. Regular hourly rate.
$1.50 × 8 = $12.00+15% premium = $13.80 per day (straight time)
$13.80 × 5 = 69.00 (paid for Monday through Friday)
$13.80 × 1½ = 20.70 (paid for Saturday)
______
$89.70 (total weekly compensation)
Less $13.80 × ½ = 6.90 (Saturday premium, § 7(d) (6))
______
$82.80 (weekly compensation includible in regular rate under
§ 7(a))
$82.80 = $1.971 (regular hourly rate under § 7(a))
__________________________
42 (total compensated hours)
B. Credit under § 7(g).
Saturday hours compensated at time and one-half under § 7(d) (6) = 7
Less hours compensable at time and one-half under § 7(a) 42 — 40 = 2
____
Hours for which half time premium is creditable under § 7(g) 5
C. Net overtime compensation due.
Gross overtime due per week under § 7(a) = 3 × 1½ × $1.971 = $8.87
Less excess overtime creditable under § 7(g) = 5 × ½ × $1.971 = 4.93
_____
Net overtime compensation due per week under § 7 $3.94
6
The same result arrived at by the foregoing illustration of a method of computation is reached by the following alternative method.
7
Taking the sum of $82.80 as the weekly compensation includible in the regular rate pursuant to the wage agreement as made, it is apparent that since the employee on the graveyard shift actually worked three additional hours, the weekly compensation includible in the regular rate for a week including three additional hours would be
8
45
--- of $82.80 or $88.71 +.
42
9
Dividing 88.71 + by 45 (actual number of hours worked) equals $1.971 + (regular hourly rate).
10
The amount required to be paid under the Act would therefore be calculated as follows:
11
40 hours × $1.971 + = $78.86.
12
5 hours overtime requires 5 × 1½ × $1.971 +, or $14.78 (amount due for overtime).
13
$78.86 + $14.78 = $93.64 (amount required
by the Act).
$89.70 (amount actually
paid)
______
$ 3.94 Net amount due
per week.
14
Appellee has cross-appealed, advancing several contentions in which we find no merit. First, appellee contends that it was not subject to the Act because it (appellee) was a cost-plus contractor under the United States Maritime Commission Wage Statute, 40 U.S.C.A. § 326 (1946), which, it is urged, precluded applicability of the Fair Labor Standards Act. Appellee further contends that because the ships it built were all delivered to the Government in the same State in which they were manufactured, none of appellee's employees were engaged in commerce or in production of goods for commerce within the meaning of the Fair Labor Standards Act, notwithstanding the fact that the Government had procured the ships for use in interstate and foreign commerce in carrying on the war. These contentions were answered by the Supreme Court adversely to appellee in Powell v. United States Cartridge Co., 339 U.S. 497, 70 S.Ct. 755.
15
Cross-appellants further contend that work performed by appellants during lunch periods cannot be the basis for recovery under the Fair Labor Standards Act by reason of § 2 of the Portal-to-Portal Act, 29 U.S.C.A., § 252, because such work is not made compensable by the express provision of a contract within the meaning of § 2(a) (1). That section is directed against claims for compensation for activities, such as dressing for work, traveling within the plant to the job location, etc., which are different from the activities which comprise the regular, normal part of the employment. The section has no application where, as here, the work for which compensation is being claimed is the same kind of work as was performed throughout the remainder of the workweek.
16
Appellee's final contention on cross-appeal is that there is insufficient evidence to support the finding of the trial court that appellant Biggs worked during all of his lunch periods. We think the evidence sustains the finding. He was on call at all times and time thus spent was compensable under the Fair Labor Standards Act. Armour & Co. v. Wantock, 1944, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118; Skidmore v. Swift & Co., 1944, 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124.
17
It is apparent from the record that the trial Judge understood and had in mind the correct approach to a proper solution of this case but felt he should follow the case of Joshua Hendy Corporation v. Mills, 9 Cir., 169 F.2d 898. We are convinced that Joshua Hendy Corp. v. Mills, insofar as it related to the swing and graveyard shifts, was incorrectly decided and to the extent it conflicts with this opinion it is overruled.
18
What we have here said would call for a reversal of the judgment below. However, when this case was argued before us the parties did not argue the question of the constitutional validity of the retroactive provisions of § 216b of Title 29. We think that before the judgment of this court shall become final the parties should have an opportunity to be heard on the question. Accordingly, each party shall be granted until the 1st day of August, 1950, within which to file a supplemental brief upon such question, should either be so advised. The parties may, if they so choose, file typewritten briefs.
Notes:
1
"§ 207. Maximum hours
"(a) Except as otherwise provided in this section, no employer shall employ any of his employees who is engaged in commerce or in the production of goods for commerce for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed."
2
"4. Hours of Employment and Overtime
"* * * Overtime at the rate of one and one-half times the established hourly rate shall be paid for all work performed in excess of eight (8) hours per day and forty (40) hours per week. Since this agreement is based on the intent of six-day-per-week operation, all work performed on Saturdays shall be paid for at one and one-half times the established hourly rate. Overtime at double the established rate shall be paid for all work performed on Sundays and holidays. * *
"5. Shift Work.
* * *
"(b) * * * When irregular or broken shifts are worked, overtime rates shall apply before the regular starting time and after the regular quitting time of the shift on which the employee is regularly employed.
"(c) First or regular daylight shift: An eight and a half (8½) hour period less thirty minutes for meals on the employee's time. Pay for a full shift period shall be a sum equivalent to eight (8) times the regular hourly rate with no premium. "Second Shift: An eight (8) hour period less thirty minutes for meals on employee's time. Pay for a full second shift period shall be a sum equivalent to eight (8) times the regular hourly rate plus ten per cent (10%).
"Third Shift: A seven and one-half (7½) hour period less thirty minutes for meals on employee's time. Pay for a full third shift period shall be a sum equivalent to eight (8) times the regular hourly rate plus fifteen per cent (15%).
"(d) For work on any shift less than the full shift period, pay shall be the corresponding proportionate part of the pay for the full shift period, * * *."
3
29 U.S.C.A. § 207. Maximum hours. (d) (6): "(6) extra compensation provided by a premium rate paid for work by the employee on Saturdays, Sundays, holidays, or regular days of rest, or on the sixth or seventh day of the workweek, where such premium rate is not less than one and one-half times the rate established in good faith for like work performed in nonovertime hours on other days; * * *
"(g) Extra compensation paid as described in paragraphs (5)-(7) of subsection (d) shall be creditable toward overtime compensation payable pursuant to this section.
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758 F.Supp. 572 (1990)
Virginia CLARK, et al., Plaintiffs,
v.
Kenneth KIZER, Defendant.
No. Civ. S-87-1700 LKK.
United States District Court, E.D. California.
October 3, 1990.
*573 John K. Van de Kamp, Atty. Gen., Dennis Eckhart, Supervising Atty. Gen., John R. Pierson, Deputy Atty. Gen., State of Cal., Sacramento, Cal., for defendant.
Robert D. Newman, Western Center on Law & Poverty, Inc., Los Angeles, Cal., Eugenie Denise Mitchell, Marla L. Scharf, Legal Services of N. California, Sacramento, Cal., Ray Fuller, Legal Services of N. Calif., Inc., Chico, Cal., Veronika Kott, Legal Services of N. Calif., Woodland, Cal., Tamara Dahn, Solano Co. Legal Assistance Agency, Vallejo, Cal., Ralph Santiago Abascal, California Rural Legal Assistance, San Francisco, Cal., Standley L. Dorn, Jane Perkins, National Health Law Program, Los Angeles, Cal., Abby H. Lassen, Calif. Rural Legal Assistance, Inc., San Luis Obispo, Cal., Anne Miller, Legal Services of N. Calif., Inc., Redding, Cal., David Grabill, California Rural Legal Assistance, Santa Rosa, Cal., Ellen Jacobs, Andrea Zigman, Legal Aid Soc. of Orange County, Santa Ana, Cal., for plaintiffs.
ORDER
KARLTON, District Judge.
This matter is before the court on plaintiffs' motion for partial summary judgment. *574 For the reasons I explain below, the motion is GRANTED in part and DENIED in part.
I
SUMMARY JUDGMENT STANDARDS UNDER FED.R.CIV.P. 56
Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Poller v. Columbia Broadcast System, 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962); Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir.1985); Loehr v. Ventura County Community College Dist., 743 F.2d 1310, 1313 (9th Cir.1984).
Under summary judgment practice, the moving party
[A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the `pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322, 106 S.Ct. at 2552. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323, 106 S.Ct. at 2552.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986); First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968); Ruffin v. County of Los Angeles, 607 F.2d 1276, 1280 (9th Cir.1979), cert. denied, 445 U.S. 951, 100 S.Ct. 1600, 63 L.Ed.2d 786 (1980).
In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Rule 56(e); Matsushita, 475 U.S. at 586 n. 11, 106 S.Ct. at 1355 n. 11; First Nat'l Bank, 391 U.S. at 289, 88 S.Ct. at 1592; Strong v. France, 474 F.2d 747, 749 (9th Cir.1973). The opposing party must demonstrate that the fact in contention is material, i.e., a fact 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); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Anderson, 477 U.S. at 248-49, 106 S.Ct. at 2510-11; Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir.1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at *575 trial." First Nat'l Bank, 391 U.S. at 290, 88 S.Ct. at 1593; T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to `pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (quoting Fed.R.Civ.P. 56(e) advisory committee's note on 1963 amendments); International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); Poller, 368 U.S. at 468, 82 S.Ct. at 488; SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 255, 106 S.Ct. at 2513, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam)); Abramson v. University of Hawaii, 594 F.2d 202, 208 (9th Cir.1979). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F.Supp. 1224, 1244-45 (E.D.Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987).
Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356 (citation omitted).
II
EQUAL ACCESS PROVISION
Plaintiffs first contend that MediCal recipients have been denied equal access to dental care in violation of 42 C.F.R. § 447.204. Under federal law, states which participate in the Medicaid program must operate an early and periodic screening, diagnosis and treatment ("EPSDT") program, which includes dental care, for needy children under the age of 21. 42 U.S.C. § 1396d. States also have the option to cover dental care for adults. 42 U.S.C. § 1396d(a)(10). Once a state determines that it will provide optional services, however, the optional services become part of the state Medicaid plan which is subject to the requirements of federal law and federal regulations. 42 U.S.C. § 1396a; Schweiker v. Gray Panthers, 453 U.S. 34, 36-37, 101 S.Ct. 2633, 2636-37, 69 L.Ed.2d 460 (1981). Thus, Denti-Cal (the dental component of California's Medicaid program) must comport with the requirements of federal law and federal regulations.
The equal access regulation, 42 C.F.R. § 447.204, provides that:
The agency's payments must be sufficient to enlist enough providers so that services under the plan are available to recipients at least to the extent that those services are available to the general population.
This regulation was originally adopted in 1966 and has been in its present form since 1978. In December 1989, Congress codified this regulation, adding the phrase "in the geographic area" at the end. 42 U.S.C. § 1396a(a)(30)(A).
Whether the State is violating the equal access provision turns upon interpreting the language "available to recipients at least to the extent that those services are available to the general population." As I have previously noted, the first step in statutory construction is to determine whether there is binding authority construing the statute. Tello v. McMahon, 677 F.Supp. 1436, 1441 (E.D.Cal.1988). The parties have cited no binding authority construing § 1396a(a)(30)(A) nor has the court's independent research revealed such binding authority.
Turning, therefore, to the language of the statute, it appears that the language is *576 not clear and unambiguous. See INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). It is unclear from the text of the statute what constitutes the "general population" to whose access recipients' is to be compared. The legislative history, however, does illuminate this issue. According to the House Budget Committee report, the test for evaluating access is to compare the access of Medicaid recipients living in a specific geographic area with the access of individuals in the same area who have private or public insurance coverage. H.R.Rep. No. 247, 101st Cong., 1st Sess. 390, reprinted in 1989 U.S.Code Cong. & Ad.News at 1906, 2116. Construing "general population" to mean "population with insurance" is also consonant with the Secretary of Health and Human Services, regulations which have consistently measured access by comparing that of recipients of Medicaid to that of the insured population. See generally Department of Health, Education and Welfare, Handbook of Public Assistance Administration, Supplement D: Medical Assistance Programs (1966-67) Part 7-5340 (Plaintiffs' Ex. F) (hereinafter "Handbook"); see also Draft State Medicaid Manual, Part 6306.1 (Amicus Ex. B) (comparison between medicaid rates and payment rates of private insurers used as criterion for assessing adequacy of access).
Defining equal access does not, however, resolve the question of how to measure compliance with the regulation. Under the circumstances of this case, it appears that determining the means of measuring compliance with the federal Medicaid program falls within the expertise of the agency charged with its administration. Accordingly, under ordinary principles of administrative law, this court will use the factors established by the agency for measuring compliance. See White Memorial Medical Center v. Schweiker, 640 F.2d 1126, 1129 (9th Cir.1981).
The Secretary of Health and Human Services in his amicus brief suggests a multi-factor approach for measuring compliance with the equal access regulation. Two major factors used frequently by the Secretary of Health and Human Services and the courts are the level of physician participation in the Medicaid program and the level of reimbursement to participating physicians. As to the first factor, a long-standing criterion used by the Department of Health and Human Services and its predecessor agency, the Department of Health, Education and Welfare, for implementing the equal access requirement is a two-thirds participation ratio. Although this is not a mandatory requirement, it is a useful figure to use for guidance in measuring compliance with the equal access provision. The undisputed facts in this case establish that less than 40% of the licensed dentists in the state treat any Denti-Cal recipients. See Kizer's Response to Interrogatories at 6-33 (Ex. A). This is substantially below the two-thirds participation criterion. Defendant asserts the court should use the number of active dentists, rather than licensed dentists, for measuring participation. However, neither case law nor the regulations suggests that the calculation of provider participation rate should be based on active, rather than licensed, dentists. Even if the court were to use the number of active dentists, the participation ratio would only rise to 54%,[1] which is still significantly low. Moreover, the 54% figure includes dentists who treat only one Denti-Cal recipient. In the draft State Medicaid Manual, currently being circulated for comment from the states, a minimum participation ratio of 50% is set as the standard. The 50% standard refers to full participation i.e., accepting all Medicaid patients who present themselves for treatment. It is undisputed that the majority of participating providers are not full participants, with only 12.5% of active dentists accepting new patients through the toll-free referral line and many of these dentists placing restrictions on their Denti-Cal practices (see Plaintiffs' Exs. A, D). Eleven percent of the participants treated *577 only one Denti-Cal recipient during the entire year; 21% treated two to five recipients; and 21% treated 6 to 19 recipients. These figures stand in stark contrast to the 1,300 different patients a year typically treated by a general practitioner. See Department of Health Services Report No. MR-MFR 185-R002 (Plaintiffs' Ex. B); Schoen Decl. at paras. 8, 9. Since the Denti-Cal population comprises approximately 10% of the population (see Plaintiffs' Ex. Q), the minimal participation by 54% of the dentists who treat fewer than 20 recipients simply cannot be characterized as full participation where their proportionate share should be 130 recipients per participating dentist. No matter how one massages the statistics, the level of dentist participation in Denti-Cal falls dismally below the administrative standard established to measure participation at an acceptable level.
The second major factor that may be used in assessing compliance with the equal access provision is the level of reimbursement. From the record before the court, it appears that this factor weighs heavily against the State. It is undisputed that Denti-Cal dentists are reimbursed approximately 40% of their usual rates. Plaintiffs' Ex. H at 3. From 1972 to 1986, the Dental Consumer Price Index increased by an average of 7.42% per year but the maximum reimbursement rates set for the Denti-Cal program increased only 2.91% per year. Plaintiffs' Ex. O at 11. Less than 1% of all dentists statewide filing usual fees with Delta Dental's private insurance program were equal to or less than the Denti-Cal maximum allowance. In addition, several Denti-Cal providers have filed declarations, which are undisputed by defendant, averring that Denti-Cal rates are not even enough to meet overhead expenses. See, e.g., Mallory Decl. (# 72) at paras. 6-7; Huber Decl. (# 73) at para. 6. Finally, defendant Kizer in a memo to Clifford Allenby, Secretary of Health and Welfare Agency, stated:
The situation has become so severe that it is no longer unusual to find procedures for which the rates paid are far below any reasonable estimate of what it actually costs providers to render the services.[2]
Although there is not a set number for determining how narrow the differential should be between Denti-Cal reimbursement rates and that for private rates, the gap in the instant case appears to be inordinately large.[3] The California Policy Seminar, in a report prepared for the State Legislature, concludes that at the minimum, a 50% increase would be needed in reimbursement rates just to meet Denti-Cal providers' overhead. See Access to Dental Care for Medi-Cal Recipients at 33 (1990). The uncontroverted evidence in the record before the court thus establishes that the present rates are not even adequate to meet overhead, let alone allowing for some marginal profit. As a matter of common sense, reimbursement rates as woefully inadequate as in the instant case strongly indicate that Denti-Cal recipients' access to dental care is not available "to the extent that those services are available to the general population." 42 C.F.R. § 447.204.
As the Secretary of Health and Human Services in his amicus brief suggests, various other factors can be used to measure compliance with the equal access provision. First, are providers widely opting out of the program or restricting their Medicaid caseloads? It is undisputed that providers *578 are opting out of the program. Between 1974 and 1984, the percentage of licensed dentists participating in Denti-Cal fell from 83% to 55%. Plaintiffs' Ex. O at 8. Between 1985 and 1988, one-third of the dentists previously participating dropped out of the program. The Secretary also suggests that another factor to consider is whether there is a steady stream of reports that recipients are having difficulty obtaining care. Plaintiffs have filed several declarations which indicate that Denti-Cal recipients cannot find dental treatment. See, e.g., Decl. # 27, Decl. # 25 at para. 3, Decl. # 24 at para. 2, Decl. # 21 at para. 2, Decl. # 1 at paras. 1, 24, Decl. 3 at para. 3.[4] Another factor that may be considered, although not dispositive, is the utilization rate. Using an unduplicated count,[5] Denti-Cal recipients have a 32% utilization. Compared to the 67% utilization rate for the insured population propounded by defendant's own expert, the gross disparity is apparent.
Finally, Department of Health Services personnel have admitted that reimbursement rates are inadequate and that the equal access provision is being violated. See Isman Depo. at 89:16-20 ("principle [of equal access] is being violated by the current program"); Taylor Depo. I at 61:8-13 ("all the evidence that I would see and hear about would indicate they probably certainly on the average would not have in general the same access as a middle class dentally insured person in all probability"); Range Depo. at 103:22-104:19 ("I believe that ... something happened with the fees or they haven't been raised, and since then there has been increasing difficulty ... [i]n keeping dentists or finding dentists who will see Medi-Cal children in those areas, particularly where there is a shortage of dentists, anyway.").
Weighing all these factors, it is beyond cavil that defendant has not complied with the equal access provision. Defendant asserts that other considerations, such as discomfort in having minorities as patients, may affect the level of provider participation in the Denti-Cal program. Those other considerations, however, are irrelevant. The mandate of the law is clear: the State must assure that "payments ... are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent ... [as to] the general public." 42 U.S.C. § 1396a(a)(30)(A). Thus, the focus of the law is on the State's ability to encourage participation by setting adequate reimbursement rates. Although other factors may affect provider participation, the statute directs the State's attention to reimbursement levels. Regardless of the interplay of other factors, if the reimbursement levels are not enough to ensure equal access to dental care, then the State has failed in its statutory duty. Moreover, from the record before the court, it is undisputed that the major concern with the Denti-Cal program on the part of dentists is the low reimbursement level. See Plaintiffs' Ex. H at 2-3; Blain Decl. # 70 at paras. 2-5 (survey showed 97% listed low reimbursement rates as reason for not accepting Denti-Cal recipients).
I conclude that from the record taken as a whole, a rational trier could not find for *579 defendant and therefore summary judgment must be granted in favor of plaintiffs on the equal access issue.[6]
III
FREE CHOICE OF PROVIDER
As their fifth cause of action, plaintiffs assert that the State is violating 42 U.S.C. § 1396a(a)(23), which provides that a recipient may obtain medical care from "any institution, agency, community pharmacy, or person, qualified to perform the service or services required ... who undertakes to provide him such services." Based on their briefs and oral arguments, plaintiffs apparently contend that this provision requires that Denti-Cal recipients must be free to choose whom they will go to for dental care. Applying the sequential analysis for statutory construction previously discussed, I note that this provision has not been authoritatively construed. I must, therefore, undertake an interpretation of the language.
Looking at the plain language of the statute, there appears to be an ambiguity in one clause, but not in another. The term "qualified" is undefined in the statute and is susceptible to at least three interpretations: (1) qualified in the sense of capable or competent to render the services, or (2) qualified in the sense that the State has certified the dentist as a Medi-Cal provider,[7] or (3) qualified in the sense that the provider may only provide those services which are compensable under the State plan.[8] Whatever meaning is ascribed to "qualified," however, it is contained in a clause modified by "who undertakes to provide him such services." This clause is clear and unambiguous. The free choice to be provided to Denti-Cal recipients is to be among those dentists who choose to participate in the program.[9]
The legislative history does not appear to illuminate congressional intent on the free choice provision. Since this provision of the statute is unambiguous, however, resort to extrinsic aids of construction, such as agency interpretations, would be inappropriate. See Catholic Social Services, Inc. v. Meese, 664 F.Supp. 1378, 1383 (E.D. Cal.1987). I note, however, that the implementing regulation mirrors the statutory language except it does not include the modifying language "who undertakes to provide him such services." See 42 C.F.R. § 431.51. The guidelines, however, published by the Department of Health and Human Services, State Medicaid Manual, §§ 2100-02 (August 1985) (Plaintiffs' Ex. N), which interpret the regulation, do include modifying language, to wit:
The purpose of the free choice provision is to allow title XIX recipients the same opportunities to choose among available providers of covered health care and services as are normally offered to the general population.
See Guidelines para. 2100.15 (emphasis added). Thus, the Secretary's interpretation of the statute supports this court's interpretation of the language of the statute, i.e., that the free choice is not to be among all possible dentists from which a recipient *580 might want to choose, but rather is a free choice among those dentists participating in the Denti-Cal program. Regardless of whatever ambiguity inheres in the term "qualified," therefore, plaintiffs' contention that recipients must have the same opportunity to obtain care from a dentist of their choice as do persons who are financially independent simply cannot lie. Since no evidence has been tendered to the court on whether recipients are denied free choice as among the dentists who participate in the Denti-Cal program, summary judgment must be denied on plaintiffs' fifth cause of action.
IV
STATEWIDE AVAILABILITY, TIMELY CARE, AND COMPARABLE SERVICES
A. Statewide Availability
As their second cause of action, plaintiffs assert that defendant is in violation of the statewide availability requirement of the Medicaid Act. 42 U.S.C. § 1396a(a)(1) provides that the State Medicaid plan "shall be in effect in all political subdivisions of the State." The implementing regulation requires that each state plan must "be in operation statewide." 42 C.F.R. § 431.50. The plain meaning of "be in effect" would appear to be that the Denti-Cal program shall be "in existence, operational and functioning." See Smith v. Vowell, 379 F.Supp. 139 (W.D.Tex.), aff'd, 504 F.2d 759 (5th Cir. 1974). See also Morgan v. Cohen, 665 F.Supp. 1164 (E.D.Pa.1987) (under statewideness provision, services must operate uniformly across the state).
It is undisputed in the instant case that Denti-Cal services do not operate uniformly across the State. No dentists will accept referrals of new Denti-Cal patients through the telephone referral service in twelve counties. Plaintiffs' Ex. D. Specialists routinely reject Denti-Cal patients in 27 counties and only accepted limited referrals in another 21 counties. See Decls. 46-69. It thus appears from the record before the court that the Denti-Cal program is not in existence and functioning on a statewide basis, and accordingly, the state is out of compliance with the statewide availability provision.
B. Timely Care
As their fourth cause of action, plaintiffs assert that the State is violating the timely care provisions. 42 U.S.C. § 1396a(a)(8) requires that dental care be provided "with reasonable promptness" to all eligible individuals and under § 1396a(a)(19), the care must be provided in a manner consistent with the best interests of the recipients. The undisputed declarations of several county public health officials demonstrate that class members frequently experience delays in obtaining appointments for regular and emergency dental care with those providers participating in Denti-Cal. Defendant has not tendered any evidence supporting a factual dispute regarding the untimeliness of the dental care currently suffered by plaintiffs under the Denti-Cal program.
C. Comparable Services
Finally, as their sixth cause of action, plaintiffs assert that the State has violated the comparable services among recipients provision. 42 U.S.C. § 1396a(a)(10)(B) requires that the services made available to one recipient shall not be "less in amount, duration, or scope than the medical assistance made available" to other recipients. Defendant has admitted that "the availability of dental services for Medi-Cal eligibles and the historical utilization rates of dental services by Medi-Cal eligibles vary from county to county." See Plaintiffs' Ex. A. There is thus no dispute of fact regarding whether comparable services are available to all recipients.
As there are no material issues of fact in dispute regarding the statewide availability, timely care, and comparable services provisions and as the record before the court demonstrates the State's lack of compliance, I conclude that summary judgment is appropriate in favor of plaintiffs on their second, fourth, and sixth causes of action.
*581 V
INJUNCTIVE RELIEF
Plaintiffs have submitted a proposed order that would permanently enjoin defendant from continuing to violate the Medicaid provisions that are the subject of the motion for partial summary judgment. Defendant has not objected to the proposed order. The court is unwilling, however, to presume that defendant's lack of objection to the proposed order indicates that injunctive relief is appropriate without briefing on this issue from either party.
Injunctive relief is not a matter of right but a matter of balancing the equities and committed to the court's sound discretion. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 1803, 72 L.Ed.2d 91 (1982). Even where statutory violations are found, the court must "consider the effect on each party of the granting or withholding of the requested relief." Amoco Production Co. v. Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 1402, 94 L.Ed.2d 542 (1987). Since there is nothing in the record to inform my equitable discretion, I cannot grant the injunctive relief proposed by the plaintiffs at this time.
In the event that defendant concedes the propriety of the injunctive relief requested by plaintiffs, defendant shall file with the court, not later than October 12, 1990, a statement of non-opposition. In the event that defendant does not concede the propriety of the injunctive relief requested by plaintiffs, plaintiffs shall file supplemental briefing on this issue not later than October 19, 1990. Defendant's supplemental opposition briefing on this issue shall be filed not later than October 26, 1990.
In accordance with the above, plaintiffs' motion for partial summary judgment on the first, second, fourth, sixth, and tenth causes of action is GRANTED. Plaintiffs' motion for partial summary judgment on the fifth cause of action is DENIED.
IT IS SO ORDERED.
NOTES
[1] The 54% figure is based on the declaration of Robert Martinez, Chief of the Dental Contract Section, who avers that based on his experience and research, there are approximately 21,000 licensed dentists, of whom approximately 6,000 are non-active licensed dentists.
[2] Although defendant objects to the use of this statement as being taken out of the context of the anticipated budgetary surplus in which it was made, this is an admission relating to the inadequacy of reimbursement rates. The motive for making the statement (i.e., anticipated budgetary surplus) does not vitiate the force of the admission.
[3] In the draft State Medicaid Manual currently being circulated to the states for comment, the Department of Health and Human Services sets a standard of reimbursement rates at least equal to 90% of the average allowance of private insurers. Even if the 90% rate is viewed as only a suggested rate, the record evidence demonstrates that the present reimbursement rate allowed to Denti-Cal providers is only a small percentage of the average allowance of private insurers and certainly does not even remotely approach 90%.
[4] Defendant has filed a declaration of David Bierman, the person responsible for researching the declarations of class members filed by plaintiffs in support of the motion for partial summary judgment. Declarant Bierman avers that all of the declarations filed by class members could not be properly researched because social security numbers were not provided by the plaintiffs. However, using the name of the class member declarant, declarant was able to locate the apparent service history of certain class members. As to those class members whose service history defendant was able to research, the averments in the declarations are uncontroverted by defendant's declaration. Compare, e.g. Decl. # 1 with Bierman Decl. at para. 4(a) and compare Decl. # 3 with Bierman Decl. at para. 4(b)(4). Plaintiffs have also submitted the declarations of various individuals responsible for public health at the county level. These uncontroverted declarations indicate that dental care is unavailable to Denti-Cal recipients. See, e.g., Decls. #'s 21, 24, 25, 27.
[5] This figure is based on defendant's quantifiable utilization figures, viewed in the light most favorable to defendant. Thus, in calculating the utilization rate, the court added in 51,000 visits made to alternative delivery sites which were not included in the statistical data relied upon by plaintiffs.
[6] Defendant asserts that proposed improvements (a beneficiary complaint response team, mobile dental clinics, and claims submission and processing improvements) will remedy the equal access problems in the Denti-Cal program. These assertions are simply not supported by any evidence and cannot be given weight.
[7] Under California Welfare and Institutions Code § 14110, providers are certified by the State for participation in the Medi-Cal program.
[8] The third interpretation of "qualified" has been used by the District of Columbia District Court. Reasoning that the states are given wide latitude in determining what services will be compensable under the State plan, the court concluded the phrase "qualified to perform the service" could only mean that a provider is "qualified" if the service is a compensable one. See Dist. of Col. Pod. Soc. v. District of Columbia, 407 F.Supp. 1259, 1266 n. 32 (D.D.C.1975).
[9] Although the court did not find any binding authority construing this provision, the Ninth Circuit case has construed this provision in a case which was subsequently withdrawn as moot. The court construed the phrase "who undertakes to provide him such services" to mean that recipients' free choice rights are limited to those providers who wish to participate in the program. See Bumpus v. Clark, 681 F.2d 679, 682-83 (9th Cir.1982), withdrawn as moot, 702 F.2d 826 (1983).
| {
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NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
INVENTIO AG,
Plaintiff-Appellant,
v.
OTIS ELEVATOR COMPANY,
Defendant-Cross Appellant.
__________________________
2011-1615, 2012-1108
__________________________
Appeals from the United States District Court for the
Southern District of New York in case no. 06-CV-5377,
Judge Colleen McMahon.
__________________________
Decided: November 27, 2012
__________________________
JOSEPH R. RE, Knobbe, Martens, Olson & Bear, LLP,
of Irvine, California, argued for the plaintiff-appellant.
With him on the brief were JON W. GURKA, JOSEPH S.
CIANFRANI and CHERYL T. BURGESS; and KAREN V. WEIL
and REZA MIRZAIE, of Los Angeles, California.
ANDREW C. BAAK, Bartlit Beck Herman Palenchar &
Scott, LLP, of Chicago, Illinois, argued for the defendant-
INVENTIO AG v. OTIS ELEVATOR 2
cross appellant. With him on the brief were MARK L.
LEVINE and KATHERINE G. MINARIK. Of counsel was
STEPHEN J. COWEN.
__________________________
Before LINN, REYNA and WALLACH, Circuit Judges.
REYNA, Circuit Judge.
Inventio AG and Otis Elevator Co. (“Otis”) both seek
review of different parts of a judgment entered by the
United States District Court for the Southern District of
New York which followed a jury trial where Otis was
found to infringe Inventio’s patent. Because we conclude
that Inventio’s asserted patent is obvious as a matter of
law, and that the district court improperly denied Otis’
motion to that effect, we reverse-in-part, vacate-in-part,
and remand.
I. Background
In 1992, Schindler Elevator Corp., and its intellectual-
property holding company, Inventio AG (collectively
“Inventio”), introduced an elevator “destination dispatch-
ing” system where a user enters a destination floor on a
10-button keypad in the lobby or hallway before being
directed to a particular elevator to travel to that floor.
This obviated conventional requirements of pushing the
“up” or “down” button to call the elevator and pushing the
button for a particular floor once inside.
Before Inventio introduced its system, its head of re-
search and development, Dr. Joris Schroeder, published
an article in the March 1990 issue of Elevator World
entitled “Advanced Dispatching” (“the Schroeder Article”),
which described destination dispatching. Joint App’x at
4807-10. In addition to 10-button keypads, Dr. Schroe-
3 INVENTIO AG v. OTIS ELEVATOR
der’s article described a system where “cards are entered
into readers and will automatically register a destination
call for a specific floor.” Id. at 4808. By 1994, in addition
to the integrated circuit (IC) cards and magnetic-strip
cards disclosed in the Schroeder Article, other recognition
devices had been developed, including backscatter Radio
Frequency Identification (RFID), bar code, proximity card,
remote control, and capacitive coupling. Also in 1994,
Inventio refined its destination dispatching system,
replacing the cards with passenger-carried RFID trans-
mitters that allow the system to automatically recognize
the user and dispatch an elevator. Inventio named this
new system utilizing RFID cards “Schindler ID.”
In 1995, Inventio filed a patent application on its im-
proved destination dispatching system using RFID
transmitters. The patent, covering an “Elevator Installa-
tion,” issued as U.S. Patent No. 5,689,094 (“the ’094
patent”) on November 18, 1997. According to the ’094
patent, once the passenger brings an information trans-
mitter (e.g., a RFID transmitter) within range of a recog-
nition device,1 the device activates the transmitter, and
the transmitter sends a unique passenger identification
code to the device. ’094 patent col. 3 l. 22 to col. 4 l. 34.
Using an information storage device and a control device,
the system then identifies the user’s default destination
floor, calls an elevator, and informs the passenger of
which elevator to board. Id. The storage device can also
1 This court construed “information transmitter” to
mean “a device that communicates with a recognition
device via electromagnetic waves, after being actuated by
that recognition device,” and likewise “recognition device”
to mean “a device that actuates and reads data transmit-
ted by an information transmitter.” Schindler Elevator
Corp. v. Otis Elevator Co., 593 F.3d 1275, 1280, 1286
(Fed. Cir. 2010).
INVENTIO AG v. OTIS ELEVATOR 4
identify whether the passenger has access to certain
floors. Id. col. 4 ll. 58-63. Claim 1 of the ’094 patent is
illustrative:
An elevator installation having a plurality of ele-
vators comprising:
a recognition device for recognizing elevator calls
entered at an entry location by an information
transmitter carried by an elevator user, initializ-
ing the entry location as a starting floor of a jour-
ney;
a control device receiving the recognized elevator
call and allocating an elevator to respond to the
elevator call, through a predetermined allocating
algorithm;
a call acknowledging device comprising one of a
display device and an acoustic device to acknowl-
edge recognition of the elevator call and to com-
municate a proposed destination floor to the
elevator user;
the recognition device, mounted in the access area
in the vicinity of the elevators and spatially lo-
cated away from elevator doors, actuating the in-
formation transmitter and comprising a unit that
independently reads data transmitted from the in-
formation transmitter carried by the elevator user
and a storage device coupled between the unit and
the control device:
the recognition device one of transmitting pro-
posed destination floor data, based upon the data
transmitted from the information transmitter, to
the control device, and, transmitting elevator user
5 INVENTIO AG v. OTIS ELEVATOR
specific data. [sic] based upon individual features
of the elevator user stored in the storage device, to
the control device.
Id. at col. 6 ll. 10-36.2
In late 2002, Inventio’s competitor, Otis began devel-
oping its own destination dispatching system. Its engi-
neers reviewed a definitive article by Mr. Leo Port, who
first proposed the idea of destination dispatching in 1968.
In the fall of 2003, at the request of the site developer,
Larry Silverstein, Otis substituted its newly-developed
destination dispatching system, “Compass with Seamless
Entry,” for the conventional elevator installation Mr.
Silverstein had ordered for 7 World Trade Center. Otis
completed installation of this Compass system in 2006,
which made it the first destination-dispatching elevator
installation in the United States. Otis subsequently
installed Compass with Seamless Entry into seven other
buildings across the country.
In 2006, Inventio sued Otis for infringement of the
’094 patent, asserting independent claims 1 and 14 as
well as dependent claims 2, 7, 9, 11, 12, and 13. The court
construed the claims and granted Otis’ motion for sum-
mary judgment of noninfringement based on its construc-
tion. See Schindler Elevator Corp. v. Otis Elevator Co.,
586 F. Supp. 2d 231 (S.D.N.Y. 2008). This court reversed
the pertinent portions of the district court’s claim con-
2 The other independent claim at issue, claim 14,
only differs from claim 1 in that the last limitation (i.e.,
“the recognition device one of . . .”) is replaced by the
following limitation: “the recognition device transmitting
the data through the storage device and to the control
device.” Compare ’094 patent col. 6 ll.10-36, with col.7 l.3
to col.8 l.11.
INVENTIO AG v. OTIS ELEVATOR 6
struction and vacated its corresponding noninfringement
decision. Schindler Elevator Corp. v. Otis Elevator Co.,
593 F.3d 1275 (Fed. Cir. 2010).3
On remand, the district court bifurcated the liability
and damages phases of the trial. In the first phase of the
trial dealing with infringement and validity, Otis at-
tempted to show that the ’094 patent was obvious in view
of the Schroeder Article in combination with prior art
teaching the use of RFID card readers (“RFID prior art”).
Both parties treated the validity of the dependent claims
as rising and falling with the independent ones.
The RFID prior art Otis offered included U.S. Patent
Nos. 5,030,807 (“Landt”), which discloses a toll collection
system (e.g., EZPass) using backscatter RFID tags, and
4,822,990 (“Tamada”), which describes the use of cards
that communicate via electromagnetic waves to open
admissions gates at events like the Olympics To the
extent the other references did not disclose a “storage
device coupled between the [recognition device] and the
control device” as required by claims 1 and 14, Otis of-
fered Yamagishi, a published Japanese patent applica-
tion, which discloses incorporating a database that stores
passenger details into a system that uses cards to place
elevator calls.
Inventio’s expert, Dr. Eric Dowling, opined that the
’094 patent was nonobvious, but admitted that the RFID
prior art would have been known to persons of ordinary
skill in the art when the patent was filed in 1994. In this
3 This court did not consider the district court’s con-
struction of “coupled between” to mean “linked directly”
because the district court did not reach Otis’ alternative
noninfringement theory based on this construction.
Schindler, 593 F.3d at 1287.
7 INVENTIO AG v. OTIS ELEVATOR
regard, the court charged the jury: “To qualify as prior art
relative to the ’094 patent[,] references must be reasona-
bly related to the claimed invention in the patent. A
reference is reasonably related if it is in the same field as
the claimed invention or is from another field to which a
person of ordinary skill in the art would look to try to
solve a known problem.” Joint App’x at 1135. According
to the court, Inventio did not dispute that a number of
items qualified as prior art, including Landt, Tamada,
and Yamagishi. Notwithstanding the court’s charge, the
jury upheld the validity of the ’094 patent as nonobvious.
The jury also found that Otis infringed every asserted
claim, literally and under the doctrine of equivalents, and
that Otis induced or contributed to infringement at each
infringing installation. Otis moved for judgment as a
matter of law (JMOL) concerning invalidity and nonin-
fringement, but the court denied those motions.
While the jury was deliberating following the liability
trial, the court reaffirmed an earlier damages ruling that
effectively eviscerated Inventio’s damages case. Inventio
had no alternative theories on which to rely. Rather than
pursue a de minimis damages award, Inventio opted to
forgo the damages trial. The court also refused to enter a
broad injunction proposed by Inventio, instead adopting
Otis’ narrower proposal. Dissatisfied with the damages
ruling and the scope of the district court’s injunction,
Inventio appealed to this court.4 Otis cross-appealed the
judge’s denial of its JMOL motions on invalidity and
noninfringement. We have jurisdiction over these con-
solidated appeals pursuant to 28 U.S.C. §§ 1291,
1292(c)(1), and 1295(a)(1).
4 Because we conclude that the ’094 patent is inva-
lid, we do not address the issues Inventio raises related to
the damages calculation and the scope of the injunction.
INVENTIO AG v. OTIS ELEVATOR 8
II. Standard of Review
Obviousness is a question of law, so this court “re-
view[s] the jury’s conclusions . . . without deference, and
the underlying findings of fact, whether explicit or im-
plicit within the verdict, for substantial evidence.” Boston
Scientific Scimed, Inc. v. Cordis Corp., 554 F.3d 982, 990
(Fed. Cir. 2009). Because a special verdict or interrogato-
ries were not used, this court must review the jury’s
implicit factual findings for substantial evidence and
assume that the jury found all factual questions in favor
of Inventio. Kinetic Concepts, Inc. v. Smith & Nephew,
Inc., 688 F.3d 1342, 1359–60 (Fed. Cir. 2012); see also
Kinetic Concepts, Inc. v. Blue Sky Med. Grp., 554 F.3d
1010, 1021 (Fed. Cir. 2009). Otis is challenging the jury’s
nonobviousness determination on a JMOL motion so it
must show that “there [is] no legally sufficient evidentiary
basis for a reasonable jury to find in favor of the non-
moving party.” Nimely v. City of New York, 414 F.3d 381,
390 (2d Cir. 2003) (quoting Fed. R. Civ. P. 50(a)) (internal
quotation marks omitted).
III. Discussion
“A claimed invention is unpatentable if the differences
between it and the prior art are such that the subject
matter as a whole would have been obvious at the time
the invention was made to a person having ordinary skill
in the pertinent art.” Tokai Corp. v. Easton Enters. Inc.,
632 F.3d 1358, 1366 (Fed. Cir. 2011) (citing 35 U.S.C.
§ 103(a) (2006)). While the ultimate ruling on this issue
is a matter of law, that ruling necessarily depends on
factual findings. See Boston Scientific, 554 F.3d at 990.
The underlying factual inquiry in an obviousness deter-
mination includes four factors: the scope and content of
the prior art; the differences between the prior art and
9 INVENTIO AG v. OTIS ELEVATOR
the claims at issue; the level of ordinary skill in the
pertinent art; and secondary conditions of nonobviousness
such as commercial success, long-felt but unsolved need,
and the failure of others. Graham v. John Deere Co., 383
U.S. 1, 17 (1966). Other factual questions concern the
presence or absence of a motivation to combine, and
whether a reference constitutes analogous prior art. See
In re Bigio, 381 F.3d 1320, 1324 (Fed. Cir. 2004). Obvi-
ousness must be proven by clear and convincing evidence.
Microsoft Corp. v. i4i Ltd. P’ship, 131 S. Ct. 2238, 2242
(2011). The parties focus their arguments on the scope
and content of the art, the differences between the prior
art and the claims, and secondary considerations. We
address each in turn.
Inventio argues that the Schroeder Article makes no
mention of RFID cards, so it discloses neither an informa-
tion transmitter nor a recognition device as required by
the independent claims. But as Inventio’s expert admit-
ted, RFID card readers were widely known when the ’094
patent was filed, and Otis introduced examples such as
Landt and Tamada. Inventio contends, however, that
Landt and Tamada are nonanalogous art, do not concern
the same problem addressed by the ’094 patent, and thus
are not eligible prior art. As we have observed, “[a]
reference qualifies as prior art for an obviousness deter-
mination under § 103 only when it is analogous to the
claimed invention.” In re Klein, 647 F.3d 1343, 1348 (Fed.
Cir. 2011). When a reference is from a field of endeavor
different from the patent, it must be “reasonably perti-
nent to the particular problem with which the inventor is
involved.” Innovention Toys, LLC v. MGA Entm’t, Inc.,
637 F.3d 1314, 1321 (Fed. Cir. 2011) (quoting In re Bigio,
381 F.3d at 1325). As Inventio’s expert admitted, a
skilled artisan would no doubt be aware of the RFID prior
art that disclosed seamlessly controlling access to sport-
INVENTIO AG v. OTIS ELEVATOR 10
ing events and toll roads. So how could it not “logically . .
. commend[] itself to [the ’094] inventor’s attention in
considering his problem” of seamlessly controlling access
to elevators? See id.; see also Wyers v. Master Lock Co.,
616 F.3d 1231, 1238 (Fed. Cir. 2010). We need not decide
the question because, based on the jury charge, a reason-
able juror could not conclude that the RFID prior art was
nonanalogous.
After instructing the jury on the standard for prior
art, and within that definition, analogous prior art, the
court clearly stated that “the parties don’t dispute a
number of items of prior art . . . [including] . . . the Landt
patent, the Tamada patent, . . . and Yamagishi patent
application.” Joint App’x at 1135–36 (emphasis added).
In light of this instruction, a reasonable juror would have
to find that not only were Landt and Tamada prior art,
they were also analogous prior art. Inventio maintains
that it only agreed to the “prior-ness” of the art; that is,
that it existed before the ’094 patent’s critical date. But
its stipulation reflected in the court’s jury instruction
suggests otherwise, and it is to that stipulation Inventio
is bound. Fisher v. First Stamford Bank & Trust Co., 751
F.2d 519, 523 (2d Cir. 1984) (“[A] stipulation of fact that is
fairly entered into is controlling on the parties and the
court is bound to enforce it.”). Furthermore, Inventio did
not object to the court’s clear jury instruction, thereby
waiving any later challenge. John Wiley & Sons, Inc. v.
Kirtsaeng, 654 F.3d 210, 223 (2d Cir. 2011) (“[F]ailure to
object to a jury instruction . . . prior to the jury retiring
results in a waiver of that objection.” (alteration in origi-
nal)), cert. granted, 132 S. Ct. 1905 (2012); Funai Electric
Co. v. Daewoo Elecs. Corp., 616 F.3d 1357, 1374 (Fed. Cir.
2010); see also Fed. R. Civ. P. 51.
11 INVENTIO AG v. OTIS ELEVATOR
Because the jury should have found the RFID prior
art analogous, the conclusion becomes inescapable that
’094 patent is a clear example of a “combination of famil-
iar elements according to known methods [yielding] no
more than . . . predictable results.” KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 415 (2007). In particular, the
Schroeder Article discloses a destination dispatching
system using card reader technology while the RFID prior
art discloses the required information transmitter and
recognition device in the form of a RFID transmitter and
receiver. Because RFID, along with IC, bar code, prox-
imity, magnetic strip, remote control, and capacitive
coupling, were among the “number of identified, predict-
able solutions, a person of ordinary skill ha[d] good reason
to pursue the[se] known options within his or her techni-
cal grasp.” Id. at 421. Replacing the older card reader in
the Schroeder Article’s destination dispatching system
with the modern RFID transmitter was well within the
abilities of a person of ordinary skill in the art. Leapfrog
Enters. v. Fisher-Price, Inc., 485 F.3d 1157, 1161 (Fed.
Cir. 2007) (“Applying modern electronics to older me-
chanical devices has been commonplace in recent years.”);
see also Western Union Co. v. MoneyGram Payment Sys.,
626 F.3d 1361, 1369–70 (Fed. Cir. 2010) (overturning a
jury’s nonobviousness verdict when the claimed invention
simply replaced a fax machine with a more sophisticated
keypad and interface in an otherwise known system for
making money transfers). Rather than a product of
innovation, the ’094 patent becomes an application “of
ordinary skill and common sense” that was obvious to try
and had a reasonable expectation of success. KSR, 550
U.S. at 421; Wyers, 616 F.3d at 1242. A reasonable juror
could not conclude otherwise.
To the extent Inventio argues that the jury could have
found that the combination of the Schroeder Article and
INVENTIO AG v. OTIS ELEVATOR 12
the RFID prior art does not disclose a “storage device
coupled between the [recognition device] and the control
device,” it is incorrect. The Schroeder Article itself dis-
closed the idea of integrating a security database into the
destination dispatching system, which could be linked to
the elevator supervisory controller. Another prior art
reference Inventio stipulated to, Yamagishi, unquestiona-
bly discloses a database that stores passenger details into
a system that uses cards to place elevator calls. Inventio
cannot overcome this art by suggesting that the claim
limitation requires a particular arrangement of elements
when the district court construed “coupled between” to
mean “linked directly,” which is the precise arrangement
disclosed in the Schroeder Article. See Schindler Elevator
Corp. v. Otis Elevator Co., 561 F. Supp. 2d 352, 365
(S.D.N.Y. 2008). A juror could not reasonably conclude
that the prior art does not disclose this limitation.
Secondary considerations do not alter our conclusion.
Inventio asserts that commercial success, industry praise,
and failure of others suggest that the ’094 patent is
nonobvious. Regarding commercial success, Inventio
merely identified the number of Schindler ID® units sold,
but “evidence related solely to the number of units sold
provides a very weak showing of commercial success, if
any.” In re Huang, 100 F.3d 135, 140 (Fed. Cir. 1996). It
also failed to establish a nexus between the patented
invention and either commercial success or industry
praise. Western Union, 626 F.3d at 1372–73 (Fed. Cir.
2010) (“[T]he patentee must establish a nexus between
the evidence of commercial success and the patented
invention.”). In particular, Inventio did not link the sales
or praise directly to the patented feature as opposed to
destination dispatching more generally. Inventio’s evi-
dence of failure of others is likewise insubstantial, point-
ing to a single contemporaneous patent application filed
13 INVENTIO AG v. OTIS ELEVATOR
by an Otis employee claiming something other than
destination dispatching with RFID technology. Whatever
this may be evidence of, it is not substantial evidence of
failure of others. In sum, we conclude that the ’094
patent is obvious as a matter of law and the jury’s verdict
to the contrary lacks substantial evidentiary support.
IV. Conclusion
Because the ’094 patent is invalid for obviousness as a
matter of law, we reverse the district court’s denial of
Otis’ JMOL motion. Given our holding on the issue of
obviousness, the other issues appealed by the parties are
moot. Accordingly, we vacate the remainder of the dis-
trict court’s decision and remand for further proceedings
consistent with this opinion.
REVERSED-IN-PART, VACATED-IN-PART, AND
REMANDED
COSTS
Costs to Otis.
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333 N.W.2d 402 (1983)
214 Neb. 209
Mervin McKENZIE, Appellee,
v.
LADD TRUCKING COMPANY, a corporation, Appellant.
No. 82-603.
Supreme Court of Nebraska.
April 29, 1983.
*403 Michael W. Pirtle of McCormack, Cooney, Mooney & Hillman, Omaha, for appellant.
Robert C. Guinan of Guinan & Kolenda, Omaha, for appellee.
KRIVOSHA, C.J., and BOSLAUGH, McCOWN, WHITE, HASTINGS, CAPORALE, and SHANAHAN, JJ.
HASTINGS, Justice.
This was an action for damages resulting from a March 26, 1981, collision between trucks owned by the plaintiff, Mervin McKenzie, and the defendant, Ladd Trucking Company. It was brought in the municipal court of Omaha. Trial to the court alone, held on February 11, 1982, resulted in a judgment in favor of the defendant on its counterclaim, in the amount of $811.23. On appeal the District Court entered an order reversing the judgment of the municipal court and remanding the case with directions to enter judgment in favor of the plaintiff in the stipulated amount of damages of $2,835. The defendant has appealed to this court.
The rule as to this type of an appeal is found in Neb.Rev.Stat. § 24-541.06 (Cum. Supp.1982), which provides in part as follows: "(1) In all cases other than appeals from the Small Claims Court, the district court shall review the case for error appearing on the record made in the county or municipal court. The district court shall render a judgment, which may affirm, affirm but modify, or reverse the judgment or final order of the county or municipal court. If the district court reverses, it may enter judgment in accordance with its findings, or remand the case to the county or municipal court for further proceedings consistent with the judgment of the district court."
The parties seem to be in agreement as to the standard of our review. In a law action the findings of fact made by the trial court have the effect of a jury verdict and will not be set aside on appeal unless clearly wrong. Atlas Steel & Wire Corp. v. L & M Constr. Chemicals, Inc., 212 Neb. 16, 321 N.W.2d 64 (1982). Conversely, it is elementary that when a judgment is clearly against the weight of the evidence it should be set aside. Pospichal v. Wiley, 163 Neb. 236, 79 N.W.2d 275 (1956). The error urged by the defendant, and obviously found to exist by the District Court, was that the judgment of the municipal court was clearly against the weight of the evidence.
The facts are not complicated, but are somewhat difficult to describe with any degree of brevity. The accident occurred on the premises of Conagra, located south of "C" Street and west of 29th Street in Omaha. *404 The plaintiff arrived at these premises with his 2½-ton International straight truck loaded with wheat. He entered the area from the east on "C" Street, headed west, then backed into the probing area located just south and parallel to "C" Street. Samples of his wheat were taken for testing and he then awaited his turn to unload. The scale, which was to have been his next stop, was located more or less directly in front of him, to the west, and to drive through the scale it necessitated the plaintiff, or anyone in his position, to drive north and west in a semicircle, pulling across "C" Street extended, before heading straight south across the scale.
While waiting to unload, the plaintiff testified that he observed the defendant's truck, a Kenworth semitractor and trailer, facing east on "C" Street, parallel with the plaintiff's truck and approximately 15 feet to the north, and with the rear end of the defendant's rig approximately 30 feet to the east of the rear end of the plaintiff's truck. When a truck immediately ahead of the plaintiff pulled onto the scale to commence the unloading process, the plaintiff started forward so as to be the next in line. The plaintiff said that before he moved he knew that the Ladd rig was stopped. He proceeded forward at about 2 miles an hour, when he heard the impact, which turned out to be between the right front of the plaintiff's box and the right rear of the corner of the defendant's trailer. The plaintiff stated that he heard no horn honking and was not able to see the defendant's vehicle moving toward him because it was on his blind side.
On cross-examination the plaintiff said he had first seen the defendant's rig when it came off the scale and pulled into the position that he had described earlier. He also admitted that he knew that empty trucks have preference on the scale and that there was an area to the northwest where trucks back into in order to be loaded with wheat. He stated that he had traveled about 50 feet before being struck by the defendant's vehicle.
The defendant's driver testified that he too drove into the Conagra lot on "C" Street, proceeding in a westerly direction, and stopped to await his turn to drive onto the scale. He claims that the plaintiff came over to him and asked if he was trying to cut into the line. He testified he explained to the plaintiff that he was waiting to get his truck weighed, and would then pull off the scale, up the street, and back in to get loaded. The defendant's driver said he explained to the plaintiff just what maneuvers he was going to make after coming off the scale, including the backing to the northwest to get loaded. He stated that he then pulled onto the scale, pulled off, and saw the vehicle ahead of the plaintiff pull onto the scale behind him. He then drove back to his original position, heading east, immediately shifted to reverse, and started back. He claims that the plaintiff then left his position and the accident occurred. He agreed that although the plaintiff was parked just before he, the defendant's driver, started to back up, he could not see him while he was backing. He thought he only backed approximately 5 feet before the collision. He also gave as his opinion that when he pulled into position to back up, his vehicle was about 15 feet north of the plaintiff, parallel, and with the front end of the plaintiff's truck being about even with the back end of his.
Each of these drivers was obligated to maintain a proper lookout while operating his vehicle. Clark Bilt, Inc. v. Wells Dairy Co., 200 Neb. 20, 261 N.W.2d 772 (1978). The duty to look implies the duty to see what is in plain sight. Thomas v. Owens, 169 Neb. 369, 99 N.W.2d 605 (1959). Conditions blocking visibility impose upon a driver the duty to exercise a degree of care commensurate with the existing conditions, including waiting to proceed until it can be done in safety. Central Constr. Co. v. Republican City School Dist. No. 1, 206 Neb. 615, 294 N.W.2d 347 (1980). When a motorist, being in a place of safety, sees, or by the exercise of reasonable care could have seen, the approach of a moving vehicle and moves from the place of safety into the path of such vehicle and is struck, such motorist's *405 own conduct constitutes negligence more than slight, as a matter of law, and precludes recovery. Thomas v. Owens, supra.
In this case each driver was aware of the presence and location of the other's vehicle. Each driver knew the general custom of usage of the premises. Each driver proceeded to move into the path of the other at a time when each admitted that his visibility in that direction was blocked. Each driver was guilty of contributory negligence more than slight, as a matter of law, and should not recover in this instance.
The judgment of the District Court is reversed and the cause is remanded with directions to dismiss both the petition and the counterclaim.
REVERSED AND REMANDED WITH DIRECTIONS.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 95-5462
ANDRE R. SMITH, a/k/a Erko,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-94-79)
Submitted: February 27, 1996
Decided: May 23, 1996
Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.
_________________________________________________________________
Vacated and remanded for resentencing by unpublished per curiam
opinion.
_________________________________________________________________
COUNSEL
Helen F. Fahey, United States Attorney, William G. Otis, Senior Liti-
gation Counsel, Alexandria, Virginia, for Appellant. David P. Baugh,
Richmond, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Andre Smith pled guilty to conspiracy to possess with intent to dis-
tribute and to distribute cocaine base and heroin, see 21 U.S.C.A.
§ 841(a), 846 (West 1981 & Supp. 1995), money laundering, see 18
U.S.C.A. §§ 2, 1956(a)(1)(B)(i) (West 1969 & Supp. 1995), and using
or carrying a firearm during and in relation to a drug trafficking
crime, see 18 U.S.C.A. § 924(c)(1) (West Supp. 1995). The Govern-
ment appeals Smith's sentence, arguing that the district court erred in
basing a downward departure on a proposed amendment to § 2D1.1
of the sentencing guidelines.* We vacate and remand for resentenc-
ing.
The district court granted Smith's motion for a downward depar-
ture based on a proposed amendment to U.S.S.G. § 2D1.1 that would
have eliminated the 100:1 ratio of powder cocaine to cocaine base,
pursuant to which Smith's guideline range had been calculated. The
district court reasoned that the Sentencing Commission's decision to
propose the amendment indicated its view that the 100:1 ratio was not
adequately considered when adopted by the Commission, and,
accordingly, that the proposed amendment provided a valid basis for
departure. See United States v. Dorsey, 61 F.3d 260, 262 (4th Cir.
1995) (noting that in order to depart the district court must first iden-
tify a circumstance not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines), cert. denied,
116 S. Ct. 732 (1996). We review de novo the district court's determi-
nation that a factor was not adequately considered by the Commis-
sion. See United States v. Hummer, 916 F.2d 186, 192 (4th Cir. 1990),
cert. denied, 499 U.S. 970 (1991).
We conclude that the mere fact that the Sentencing Commission
amends (or proposes to amend) a guideline does not necessarily mean
that the guideline was not adequately considered when adopted. And,
consistent with our repeated affirmations of the validity of the 100:1
ratio of powder cocaine to cocaine base, see, e.g., United States v.
_________________________________________________________________
*United States Sentencing Commission, Guidelines Manual (Nov.
1994).
2
Wallace, 22 F.3d 84, 88 (4th Cir.) (collecting cases), cert. denied, 114
S. Ct. 281 (1994), we conclude that the Commission's proposed
amendment to § 2D1.1 does not indicate that the 100:1 ratio was inad-
equately considered by the Sentencing Commission when it was
adopted. See also United States v. Anderson, ___ F.3d ___, 1996 WL
174568, at *2 (D.C. Cir. April 16, 1996) (holding that Commission's
proposed amendment to § 2D1.1 does not show that the Commission
failed to consider adequately the 100:1 ratio when it was adopted).
The proposed amendment therefore does not furnish a basis for down-
ward departure. Accordingly, we vacate Smith's sentence and remand
for resentencing.
VACATED AND REMANDED FOR RESENTENCING
3
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147 U.S. 623 (1893)
LOVELL MANUFACTURING COMPANY
v.
CARY.
No. 110.
Supreme Court of United States.
Argued January 17, 18, 1893.
Decided March 6, 1893.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
*624 Mr. W. Bakewell and Mr. Thomas W. Bakewell for appellant. Mr. James K. Bakewell and Mr. J.K. Hallock were also on the brief.
Mr. William H. Kenyon for appellees. Mr. W.C. Witter was with him on the brief.
MR. JUSTICE BLATCHFORD delivered the opinion of the court.
This is a suit in equity, brought March 14, 1885, in the Circuit Court of the United States for the Western District of Pennsylvania, by Alanson Cary and Edward A. Moen against the Lovell Manufacturing Company, Limited, an association under the laws of the State of Pennsylvania, to recover for the alleged infringement of letters patent No. 116,266, granted to Alanson Cary, June 27, 1871, for an improvement in modes of tempering springs.
The specification of the patent is as follows: "Be it known that I, Alanson Cary, of city, county, and State of New York, have invented a now and useful improvement in furniture springs; and I do hereby declare that the following is a full, clear, and exact description thereof, which will enable others skilled in the art to make and use the same. This invention relates to spiral springs, usually made in a conical form, of steel wire, and extensively used in upholstering sofas and chairs and for bed bottoms, etc., and consists in subjecting the spring to a tempering process after it has been completed in the usual manner, whereby its strength, elasticity, and durability are greatly increased. The ordinary furniture spring is made of hard-drawn wire, coiled and forced to the proper shape, and when this is done the spring is considered finished, without having been subjected to any tempering process other than what is incidental to the drawing of the wire. To give them a finished appearance, however, copper or other material is frequently applied by suitable means. The metal being greatly condensed and hardened in the process of drawing the wire, a good degree of elasticity is given the wire thereby; *625 but in bending or coiling the wire into the proper shape the metal is unavoidably weakened, the outer portion of the wire coil is drawn or stretched, while the inner portion is crushed or shortened. When straight bars or wire is subjected to the bending process, the stretching or drawing of the outer and crushing of the inner portions are inevitable results. This greatly reduces the elasticity, strength, and durability of the spring. Being a manufacturer of furniture springs and aware of this difficulty, I have tried many experiments with a view of restoring the wire, after being bent or formed into springs, to its normal condition. This, I have discovered, can be done by subjecting the spring to a degree of heat known as `spring-temper heat,' which is about 600°, more or less, and that a subjection to this temperature for about eight minutes is sufficient to produce the result desired. This temperature I have found to be sufficient to so far relax or produce a complete homogeneity of the metal of the spring as to add from twenty to thirty per cent to the value of the spring consequent on its increased powers of resistance. Thus treated the spring will bear much heavier pressure, and its strength and elasticity are much less impaired than the ordinary spring after long-continued use. For carrying out and putting in practice my discovery I have invented a tempering oven, for which I have an application for letters patent now pending."
The claim is as follows: "The method of tempering furniture or other coiled springs, substantially as hereinbefore described."
The answer set up various defences, and among them want of novelty and noninfringement. It averred that the process set forth in the specification of the patent was merely a method of increasing the elasticity of steel, applicable not only to furniture springs and other coiled springs, but also springs and other articles made of steel, whether coiled, bent, twisted or straight; that the same was old, well known and in common use or practice for many years prior to the alleged invention by Cary, and for more than two years before he filed his application for the patent; that said process or method had been so practised on coiled springs, uncoiled *626 springs, hard-drawn steel wire, and other articles of steel in various forms, for the purpose of increasing their elasticity; and that the patent was, therefore, void. It also set forth the names of many persons to whom the process described in the patent, whether considered as a restoring process or as a tempering process merely, was known, and by whom it was practised, prior to the alleged invention thereof by Cary; and it averred that by reason of such prior knowledge and use the patent was void. It also averred that it was a common practice to subject furniture springs and other coiled springs, made of hard-drawn steel wire, to 600° of heat, more or less, in the process of finishing such springs; that the same was practised long prior to the alleged invention by Cary, by sundry persons, whose names were given in the answer; that there was not, at the time of the grant of the patent or of the alleged invention by Cary, any patentable novelty in the process described and claimed in the patent, or in the application of the process to the tempering of coiled springs for furniture, and that the patent was, therefore, void. It also set up various United States and English patents, and various printed publications, in which the alleged invention of Cary was said to have been described prior to the making of his alleged discovery and prior to his application for the patent. A replication was filed to the answer, and proofs were taken.
Prior to the filing of the bill in this suit, the patent had been sustained by a decision made by Judge Wheeler, on February 7, 1885, in the Circuit Court of the United States for the Southern District of New York, in Cary v. Wolff, 24 Fed. Rep. 139. On the basis of that decision a preliminary injunction was granted in the present suit by Judge Acheson, on June 12, 1885, 24 Fed. Rep. 141. In Cary v. Domestic Spring-Bed Co., in the Circuit Court for the District of New Jersey, on July 28, 1885, in a suit on the same patent, Judge Nixon, following Judge Wheeler and Judge Acheson, granted a preliminary injunction, 27 Fed. Rep. 299. On January 6, 1886, 26 Fed. Rep. 38, Judge Nixon dissolved the injunction in the New Jersey suit, on the presentation of new affidavits relating to the novelty of the invention, and on February 2, *627 1886, the preliminary injunction in the present suit was suspended on the giving by the defendant of a bond.
After the proofs were taken in the present suit, it was brought to a final hearing before Judges McKennan and Acheson, and they sustained the patent, following Judge Wheeler's decision. Their opinions are reported in 31 Fed. Rep. 344, 347. On August 3, 1887, the court entered an interlocutory decree, holding the patent to be valid and to have been infringed, awarding to the plaintiffs a recovery of profits and damages, with costs, referring it to a master to take the account of profits and damages, and granting a perpetual injunction. The master reported six cents damages and costs in favor of the plaintiffs. The plaintiffs excepted to his report, and the court, on a hearing of the exceptions, entered a final decree, on February 16, 1889, awarding to the plaintiffs a recovery of $8745.34, and costs. The opinion of the court on the exceptions is found in 37 Fed. Rep. 654. The defendant has appealed to this court.
The invention claimed, as appears from the specification, is a method of restoring steel wire which has been mechanically strained, by subjecting it to a temperature of 600°, more or less, whereby its disturbed and disarranged molecules are allowed to assume their normal relation. The claim limits the method to its application to "furniture or other coiled springs;" but it appears from the evidence that the process, as applied to those springs, is in no respect different, in method or effect, from the same process when applied to any mechanically strained wire, or to steel made in straight pieces or strips, or otherwise. The claim covers broadly the described method of tempering, applied to any coiled springs as well as coiled springs for furniture, and if the evidence shows that, prior to Cary's invention, the method had been used for the restoration of any springs of strained steel, or other articles of strained steel having the resiliency which is a well-known property of steel, the claim is substantially anticipated. Particularly, if the method claimed had been used by others to restore articles of coiled spring steel, even though they were not used for-furniture springs, the claim is anticipated.
*628 In the testimony for the plaintiffs, it appears to be contended that, in order to establish the charge of infringement, the patent is to be construed so as to cover the restoring of strained steel springs by the application of any temperature, less than a red heat, which will produce in the metal a blue color. If that be true, the patent must be so construed also in comparing it with the prior state of the art. Mr. Brevoort, an expert for the plaintiffs, says that if a coiled spring is attempted to be used, without further treatment, for a furniture spring, the wire will take a set and lose its resilient properties, and its usefulness will be lost. He adds: "To cure this defect the spring must be tempered, as it is called in the trade, and the way of doing this upon such springs constitutes the process of the Cary patent. The process described in the patent gives to the spring apparently the same qualities as would be imparted to steel by tempering. But I do not know that the process is really one of tempering strictly so called, although it produces like results."
The date of Cary's alleged invention is December, 1870, and the question is, what was the state of the art at that date. Mr. Brevoort explains "the ordinary tempering process" as follows: "Steel is ordinarily tempered substantially in the following way: The steel is first best heated to a cherry red; it is then suddenly cooled either in water or oil; it is then in a very brittle and exceedingly hard condition and is extremely liable to be warped or bent during the hardening as well as during the heating. The next step is to reheat the article carefully and gradually and watch the appearance of a bright portion of the surface of the article, when certain colors will be noticed following one another in succession; first a very light yellow, then a deeper yellow, shading into purple, then a deeper purple, until finally the purple merges into blue, and lastly a blue color, yellow, purple and blue being the three prominent colors; the colors indicate different degrees of hardness in the steel and act as guides, telling when the proper degree of temper has been reached for any desired article; thus, for example, when the yellow just begins to shade into the purple the proper degree of hardness for a penknife has been reached, and the *629 further drawing of the temper is stopped; thus, if a spring is to be made the temper is drawn until a blue color shows, when the further drawing of the temper is stopped; the above is an outline of the ordinary tempering process as I have known it for the last twenty years." The metal is partially restored to its original condition, by heating it to a blue heat, if the condition of spring temper is desired, or to a red heat if it is wished to have a perfect restoration of the metal. In making wire, the metal is rolled into the form of a rod, which is drawn, when cold, through successively smaller holes in a draw-plate. It is thus gradually reduced in diameter, and the effect of the strain is to compact it and make it very hard, increasing its elasticity up to a certain point, and finally weakening the material. For many years, in drawing wire to small sizes, it has been the practice to heat it to a red heat between successive drawings, and thus to completely restore it, rendering it less brittle and preventing the fracture of it by the strain of the drawing process. At the conclusion of the drawing operation, when the wire has passed through the dies several times, and is hardened and elastic, the wire is called "hard-drawn," and in that state it comes to the hands of the makers of furniture springs. It is shown by the evidence to have been well known in the art that wire weakened and strained by drawing, could be completely restored to its original soft state by heating it to a red heat and gradually cooling it, producing thus, by the operation of annealing, the opposite of the "hard-drawn wire," of which Cary speaks in his specification. It was also known that if such strained and weakened hard-drawn wire was heated to a temperature less than red heat, but sufficient to blue it, a partial process of restoration would be effected, which would add strength and elasticity to the wire and fit it for making springs and corset steels. The defendant's witnesses, Roberts and Booth, state that, prior to the date of Cary's alleged invention, they practised this method of blueing hard-drawn wire, so as to increase its strength and elasticity. The testimony shows the prior use of the Cary process applied to wire to effect the same results, and to correct the same undesirable, consequences of mechanical strain, which are described in the Cary specification.
*630 The two principal matters relied on by the defendant to show the invalidity of the patent are (1) the prior use of what are called the New England wire clock-bells; and (2) the blued hair-springs. It is clearly shown by the witnesses for the defendant that, prior to Cary's alleged invention, wire clock-bells and hair-springs had been subjected to heat in the manner described in the Cary specification, and with the same blueing effect. The treatment to which the articles were subjected was in all respects the same in the prior use as in the patented process. The only contention of the plaintiffs is that the purpose of the prior use was not the same, and that the results, so far as they were those of the patent, were accidental.
Higgins, a witness for the defendant, thus describes the way in which wire clock-bells were made, prior to Cary's alleged invention. He says that "the untempered steel wire was taken from the hank and straightened by machinery, cut off at the proper length, and then tumbled in sawdust to clean the oil from it. Then the brass collet was driven on to one end, a small coil of silver was put on for the purpose of brazing the steel and brass together, then borax and water were put on, and they were brazed together, and then were tumbled in sawdust to clean off the borax, and then was wound on a wooden block, then turned by a pair of plyers to the proper shape, then was blued and oiled, and then they were ready for use." He also says that the method of "blueing" was this: "They were put in piles of a hundred each, and then spread on to a sheet-iron pan, and then put into an oven and there kept until the heat blued them, and then taken out and oiled ready for use. They were cooled in the air;" that the object of the winding was to put them into a "bell" form; that the effect of the winding was to make the vibration to give them the sound; that the blueing stiffened them and gave them the tone; and that the bell, when struck by a clock hammer before blueing had no sound, while after blueing it had a good tone.
Horton, a witness for the defendant on the same subject, says that he used to make bells of untempered steel wire, although some of it was drawn harder than others; that some of it was hard-drawn steel wire; and that the object of heating *631 the coiled wire was to make it sound and to stiffen it. He also describes the manufacture by him, during the ten or twelve years succeeding 1846, of wire clock-bells of a spiral form, not helical, which were blued in the same way and for the same purpose.
Andrews, a witness for the defendant, gives testimony to the same effect, and says that the coiling of the wire, to give it the shape of a "bell," weakens the spring and causes it to lose its elasticity, while subjecting it to heat makes it more springy and elastic.
Thomas, a witness for the defendant, states that he had known the wire clock-bells for forty years; that they were made from hard, untempered steel wire, straightened, cut into lengths, then wound on a form, and subjected to the blueing process to make the spring; and that there was no spring to the wire until it was blued.
Warner, a witness for the defendant, states that the wire was steel wire, used just as it was drawn; that the coiling of the wire upon a block to give it the form of a wire bell stretched the outside and upset the inside, and weakened the wire; and that the blueing process restored it and gave it more elasticity.
Broomhead, a witness for the defendant, states that as early as about 1863 he saw hard-drawn steel wire used in the manufacture of clock-bells.
Higgins also testifies that he discovered, as early as 1866, that the blueing process made the steel stiffer than it was before; and that he had known since 1866 that the tendency of the spring to keep its shape, and to restore itself to its proper shape when the coils were drawn apart or pressed together, was increased by the blueing process.
Gardiner testifies that he knew that heating of strained bell steel stiffened it, making it stronger and more elastic, and that he would have known that the process of blue-heating steel wire in the form of furniture springs would have increased its stiffness and elasticity in a measure.
As to the hair-springs, they are used in marine clocks, to control the balance, and are steel springs made of steel wire, *632 rolled down. Hubbell, a witness for the defendant, made them as early as 1848. He describes the way in which they were made by him in 1848 as follows: "The first process was taking the wire in the coil and passing it between two steel rolls to a required thickness. They were cut up to the proper lengths, fastened to a hub, wound on a disc, and wound down solid. We wound them down according to the tension of the wire, so that when they were let loose the outside coils were of about or nearly the right diameter. The next process was twisting them into a snail of a required form and blueing them. I blued them on an iron placed over a fire. They were then removed from the snail. All the inequalities were remedied by bending and twisting by a pair of plyers into the proper shape. They were then ready for use." He says that he used steel wire, untempered; that the object of blueing the spring after it had been so wound, was to equalize the density the elasticity; that the blueing process had that effect; and that he had repeatedly tested blued hair-springs and unblued hair-springs, to compare their elasticity with each other, and that the blued spring would sustain double the tension or strain that the unblued one would, without bending.
Wright, a witness for the defendant, describes the use of the same process by him on hair-springs for seven years following 1848; and says that the steel wire was untempered, just as it came from the wiremaker; and that the blueing increased its elasticity.
Testimony to the same effect was given by the witness W.B. Barnes, who said that the steel wire was hard-drawn and untempered; and that the blueing had the effect of keeping the spring near the shape of the snail, and also giving it temper or elasticity.
Hendrick, another witness for the defendant, testified to the same effect.
It is contended for the plaintiffs that the bell-making process was for a different purpose from that contemplated by Cary in his specification; that the results were not analogous; and that, therefore, the patent was not anticipated. But we are of opinion that in the Cary process and the bell-making *633 process the operations are precisely the same. In both, the operator is dealing with wire which is strained by being bent past the elastic limit, and is deadened thereby. The wire is blued by subjecting it to a degree of heat sufficient for the purpose, and is then allowed to cool. The result in both cases is the same, namely, the restoration, stiffening and equalizing of the wire, and the only difference is in the use to which the resulting article is put. In both, the wire is made stiffer and more spring-like, these qualities being utilized, in one case in a furniture spring, and in the other in a clock-bell. Cary observed that, in winding furniture springs, the wire, already weakened by the drawing process, was still further strained and deadened, so as to impair the quality of the spring. The question was, how to equalize and stiffen the mechanically strained steel wire. The same problem had been solved by the clock-bell makers, and the solution of the problem was merely the use of the knowledge possessed by those skilled in the art. The wire used in making the clock-bells was also hard-drawn wire; but it does not appear that the process of the patent acts differently, when applied to strained hard-drawn wire, from what it would if applied to strained wire that was not hard-drawn.
The difference contended for by the plaintiffs, between the process of blueing wire clock-bells and the process of blueing furniture springs, in that one deals with spiral articles and the other with articles of a helical form, is not a difference in the process, but is at most a difference in the articles to which the process is applied. If the straining of furniture springs is peculiarly aggravated because of their shape, the difference is merely one of degree, not of kind. Moreover, the Cary claim describes the process as applicable to the manufacture of furniture springs "or other coiled springs." A coiled wire bell, although not a furniture spring, is a coiled spring; and it appears from the evidence that any wire drawn through dies, although not coiled, is, when heated to a blue color, stiffened and its elasticity increased.
In rebuttal of the defendant's evidence as to wire clock-bells and hair-springs, it is admitted that the plaintiffs show that *634 sundry witnesses would not have known that the blueing process was applicable to the treatment of such heavy material as furniture springs, and that it was not used in tempering clock-springs of wide, flat steel, but there was applied to such springs what is called in the record the old process of tempering. But, in the first place, these witnesses were not manufacturers of furniture springs; and, in the second place, the reason why the old process of tempering is not used on furniture springs, is that their upright shape, like an hour-glass or the half of an hour-glass, precludes them from being heated to a red heat without their sagging and becoming distorted. The clock-springs can be laid flat upon a support, so as not to sag while heated, and there is no reason, in regard to them, for changing the old process of tempering for another. In addition, even some of the plaintiffs' witnesses admitted, on cross-examination, that they knew that the treatment of the wire bells stiffened the steel, and allowed its molecules to return to their proper relations, and that they would have expected the application of the blueing process to furniture springs to increase their elasticity to some extent. But it does not amount to invention to discover that an old process is better in its results, when applied to a new working, than would have been expected, the difference between its prior working and the new working being only one of degree and not one of kind. It has been often held that the mere fact that one who uses a patented process finds it applicable to more extended use than has been perceived by the patentee, is not a defence to a charge of infringement. It follows necessarily that the public cannot be deprived of an old process because some one has discovered that it is capable of producing a better result, or has a wider range of use than was before known.
In Smith v. Nichols, 21 Wall. 112, it was held that a mere carrying forward, or new or more extended application, of the original thought, a change only in form, proportions, or degree, the substitution of equivalents, doing substantially the same thing in the same way, by substantially the same means, with better results, was not such invention as would sustain a patent; and in Roberts v. Ryer, 91 U.S. 150, it was held that *635 it was no new invention to use an old machine for a new purpose, and that the inventor of a machine was entitled to the benefit of all the uses to which it could be put, no matter whether he had conceived the idea of the use or not.
It is contended, as against the wire bells, that the evidence does not show the application of the patented process to an article designed to be used as a spring. But the clock hair-springs are quite as truly springs as the furniture springs, for they require the exercise and use of the resiliency of tempered steel. Both are subjected to the same strains in coiling; both for the same reasons need restoration; and in both the application of a blue heat produces the same desirable results.
Within the rule laid down by this court in Hollister v. Benedict Mfg. Co., 113 U.S. 59, there was nothing more than mechanical skill in arriving at the alleged invention, in view of the state of the art. Cary says, in his specification, that "in bending or coiling the wire into the proper shape, the metal is unavoidably weakened;" that "this greatly reduces the elasticity, strength, and durability of the spring;" that "being a manufacturer of furniture springs, and aware of this difficulty," he had made many experiments with a view to restoring the wire, after being bent or formed into springs, to its normal condition; and that he had discovered that that could be done "by subjecting the spring to a degree of heat known as `spring-temper heat,' which is about 600°, more or less, and that a subjection to this temperature for about eight minutes is sufficient to produce the result desired."
It is contended, however, by the plaintiffs that the applicability of the former processes is contradicted by the fact that no one had used them for the manufacture of furniture springs, and that as soon as Cary's process was made known the art of making furniture springs was revolutionized. But, it was said by this court in McClain v. Ortmayer, 141 U.S. 419, 428: "That the extent to which a patented device has gone into use is an unsafe criterion even of its actual utility, is evident from the fact that the general introduction of manufactured articles is as often effected by extensive and judicious advertising, activity in putting the goods upon the *636 market and large commissions to dealers, as by the intrinsic merit of the articles themselves;" and (p. 429) that while, "in a doubtful case, the fact that a patented article had gone into general use is evidence of its utility, it is not conclusive even of that, much less of its patentable novelty."
In the present case, it appears that it was not until a short time before 1870 that furniture springs began to be commonly made of steel wire. It was not until 1868, when the general introduction of Bessemer steel and open-hearth steel afforded a cheap substitute for iron, that the use of steel became general in the art in question. It was then natural that there should be introduced into that art methods of treatment which were well known as applied in allied arts. The method of the patent, already in use, thus occurred to Cary; but he was appropriating a method which was common property. When steel was adopted for the first time in any art, it was natural that existing methods of treating it should be applied to its new use in the given art. The case is merely one of a double use. Nor is it of force that experts expressed surprise that the process in question was applicable to furniture springs.
Cary was not the first to discover the process described in his specification, for the restoration of steel. He claims only the process; and the use made of the article after it is subjected to the process does not affect the nature of the process itself. As a process, there is nothing new in the subject-matter of the claim. The claim does not cover an improvement in furniture springs or other coiled springs, as a new article of manufacture; and the "coiled springs," to which, by the claim, the method of tempering is to be applied, include all such springs, irrespective of the use to which they are to be applied. The method or process claimed is substantially the old method of restoring mechanically strained steel.
The present case is covered by the cases of Vinton v. Hamilton, 104 U.S. 485; Stow v. Chicago, 104 U.S. 547; Locomotive Truck Case, 110 U.S. 490; Blake v. San Francisco, 113 U.S. 679; Thompson v. Boisselier, 114 U.S. 1; Miller v. Foree, 116 U.S. 22; Dreyfus v. Searle, 124 U.S. 60; Brown v. *637 District of Columbia, 130 U.S. 87; Aron v. Manhattan Railway, 132 U.S. 84; Watson v. Cincinnati, Indianapolis &c. Railway, 132 U.S. 161; Marchand v. Emken, 132 U.S. 195; Royer v. Roth, 132 U.S. 201; Hill v. Wooster, 132 U.S. 693, 701; Burt v. Evory, 133 U.S. 349; Howe Machine Co. v. National Needle Co., 134 U.S. 388; Florsheim v. Schilling, 137 U.S. 64; Consolidated Roller-Mill Co. v. Walker, 138 U.S. 124; Ansonia Co. v. Electrical Supply Co., 144 U.S. 11; Ryan v. Hard, 145 U.S. 241. The principle deducible from those cases is that it is not a patentable invention to apply old and well-known devices and processes to new uses, in other and analogous arts. The decision in Ansonia Co. v. Electrical Supply Co., supra, is very pertinent. In the opinion in that case, the cases were reviewed which establish (1) that the application of an old process or machine to a similar or analogous subject, with no change in the manner of application, and no result substantially distinct in its nature, will not sustain a patent, even if the new form of result had not before been contemplated; and (2) that, on the other hand, if an old device or process be put to a new use, which is not analogous to the old one, and the adaptation of the old process to the new use is of such a character as to require the exercise of the inventive faculty to produce it, such new use will not be denied the merit of patentability.
In the case of Cary v. Wolff, 24 Fed. Rep. 139, Judge Wheeler remarked that the discovery of Cary was that the application of heat would restore the lost strength and elasticity of the wire, consequent on the displacement of its particles; that the application of heat for that purpose was not known until it was applied to that kind of springs in their peculiarly weakened state; that the discovery was of a new application of an old process, which produced a new and highly useful result; that wire bells for clocks were made to have sonorous properties by the same process in kind, but for a different purpose and with a different result; that what seemed to be the nearest to it was the method of shaping and spacing the coils of hair-balance-springs for marine clocks, by coiling the wire into a mould of the required shape, called a snail, *638 and subjecting it to heat while there in place, to make it retain its shape, but there was no displacement of the particles of which the wire was composed, by distortion, and the process was not a restoration of any lost quality, but a mere shaping of the wire into the article desired; that the discovery of that effect of restoration by Cary's mode was new; that experts called by the defendants admitted that they had not believed the result would be produced, until they saw the process tried in connection with that litigation; and that such production of a new and useful result, although by a new application of an old process, was patentable; citing Crane v. Price, 1 Webster's Pat. Cas. 393; Smith v. Goodyear Vulcanite Co., 93 U.S. 486; and Loom Co. v. Higgins, 105 U.S. 580.
In the present case, in the opinion of Judge Acheson granting the preliminary injunction, 24 Fed. Rep. 141, the court cited and followed the decision of Judge Wheeler.
In the opinion of Judge Nixon in Cary v. Domestic Spring-Bed Co., 26 Fed. Rep. 38, he stated that, in ordering the preliminary injunction, he had followed the decision of Judge Wheeler; and that is shown also by his opinion granting such injunction. 27 Fed. Rep. 299.
In the opinion of Judge Acheson in the present case, on final hearing, 31 Fed. Rep. 344, concurred in by Judge McKennan, 31 Fed. Rep. 347, it is stated that the process of the patent is based on the fact that the evils resulting from the distortion of hard-drawn steel wire, in the ordinary operation of coiling it into springs for furniture, can be removed by a single application of heat, as set forth in the specification, so as to result in a greatly improved spring; that furniture springs so treated came into immediate and very general use, on their introduction into the market, largely superseding springs not subjected to that treatment; and that experts and others practically familiar with the treatment and behavior of steel were greatly surprised at the result effected by the patented process, it being contrary to all their previous conception and experience. The opinion then cites and quotes from the opinion of Judge Wheeler, and states that the latter opinion held that the Cary process was new and patentable, although previously, in the *639 manufacture of wire bells for clocks, heat had been applied to them for the purpose of giving them the desired sound and tone, and hair-balance-springs for marine clocks were subjected to heat while coiled in the grooves of a metallic plate, for the purpose of permanently setting the coils in proper relation to each other. The opinion of Judge Acheson further said that, after giving to the subject-matter an independent investigation, the court saw no reason to doubt the correctness of Judge Wheeler's conclusions, and added: "The purpose, object, and result of the application of heat in the practice of the Cary invention are so entirely different from those aimed at and attained by the application of heat in the manufacture of wire clock-bells, hair-balance-springs for marine clocks, and the other shown instances of its prior use, that we do not hesitate to adopt the conclusion of Judge Wheeler upon this branch of the case."
But we are of opinion that the same principle set forth in the patent was developed in the manufacture of the wire bells for clocks and of the hair-balance-springs; that there was no patentable invention in applying that principle to the springs mentioned in the specification, and that the case is merely one of a double use.
It results that the decree of the Circuit Court must be
Reversed, and the case be remanded to that court with a direction to dismiss the bill, with costs.
MR. JUSTICE BREWER did not sit in this case or take any part in its decision.
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐2643
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
ALI AL‐AWADI,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana.
No. 15 CR 0072 — Tanya Walton Pratt, Judge.
____________________
ARGUED JANUARY 17, 2017 — DECIDED OCTOBER 13, 2017
____________________
Before EASTERBROOK, WILLIAMS, and SYKES, Circuit Judges.
WILLIAMS, Circuit Judge. While he was the only adult in a
room of napping children at the daycare where he worked,
Ali Al‐Awadi pulled back the underwear of one young girl
and took pictures. He claimed at trial that he did so because
she injured herself on his watch while she was playing on his
lap and he was checking for injury. The jury did not believe
him and convicted him of making and attempting to make
child pornography. He appeals his convictions. Several of his
2 No. 16‐2643
arguments concern evidence the jury heard that Al‐Awadi
also digitally penetrated the young girl, an act for which he
was not charged in this case. Although he argues the jury re‐
ceived the wrong standard when it was instructed to deter‐
mine whether it was “more likely than not” that Al‐Awadi
had molested the girl, the pattern jury instruction given to the
jury accurately told the jury how to assess evidence of acts
other than charged crimes. The jury was also instructed that
the government had to prove the elements of the charged
crimes beyond a reasonable doubt for Al‐Awadi to be found
guilty. Al‐Awadi also argues that the jury heard too much ev‐
idence of the molestation. However, the evidence was permis‐
sible because he placed his intent in taking the pictures at is‐
sue, the molestation evidence was relevant to his intent, and
the government’s evidence was not unduly repetitive. Finally,
sufficient evidence supports the jury’s conclusion that Al‐
Awadi used the young girl to engage in sexually explicit con‐
duct for the purpose of producing a visual depiction of the
conduct.
I. BACKGROUND
Soon after he began working at a daycare, other teachers
expressed concern about twenty‐year‐old Ali Al‐Awadi’s in‐
teractions with young female children there. Al‐Awadi was
cautioned about sitting children on his lap in the classroom,
picking up children who could walk, and taking female chil‐
dren into the bathroom.
Al‐Awadi took a particular interest in one young girl in
the kindergarten room, four‐year‐old Child Victim One
(“CV1”). On August 21, 2014, the daycare was shorthanded of
staff, and Al‐Awadi took advantage. Al‐Awadi was sent to
cover the kindergarten room during the substitute teacher’s
No. 16‐2643 3
lunch. While he was the only adult in the room and it was
darkened for the children to nap, he sat down next to CV1.
When she fell asleep, Al‐Awadi opened her pants and pulled
her underwear away from her. He then took two pictures of
her vagina. He thought the quality of the pictures was poor
so he took two more. Al‐Awadi then placed his finger in
CV1’s vagina. This woke up the young girl.
When the teacher returned to the classroom, Al‐Awadi
went to his car for about thirty minutes. At some point, he
deleted the pictures from his cellphone.
While Al‐Awadi was still out of the room, CV1 told the
teacher, “It hurts down there,” while pointing to her vagina.
When the teacher asked why, CV1 responded, “It hurts down
there because Mr. Ali touched it.” The teacher reported this to
the school secretary, who for some reason asked Al‐Awadi to
return to the kindergarten room. The teacher asked CV1 to
repeat what she had said, which she did. Al‐Awadi then
picked CV1 up, sat her on his lap, and said, “no, thank you.”
CV1 left his lap.
The secretary also informed the daycare’s assistant direc‐
tor, who then spoke with Al‐Awadi. He claimed that he and
CV1 had been playing, that she jumped on his lap and
wrapped her legs around his arm, and that when he pushed
her off, she pinched her vagina on his watch.
After daycare, CV1 told her mother she had pain in her
vagina and later informed her of what Al‐Awadi had done.
At the hospital, the nurse who examined CV1 noted swelling
and several areas of redness that were consistent with digital
penetration. A pediatrician who later examined CV1 said it
was unlikely that her injury was caused by a watch.
4 No. 16‐2643
Law enforcement recovered the deleted images from Al‐
Awadi’s phone, and a DNA test concluded that Al‐Awadi’s
DNA was consistent with that found on CV1’s underwear.
Law enforcement also discovered that Al‐Awadi had viewed
child pornography in the past.
A second superseding indictment charged Al‐Awadi with
four counts of sexual exploitation of a minor through the pro‐
duction of child pornography, in violation of 18 U.S.C.
§ 2251(a), and four counts of attempted production of child
pornography, in violation of 18 U.S.C. § 2251(e). Before trial,
the government filed notice of its intent to use evidence of Al‐
Awadi’s molestation of CV1, and the district court admitted
this evidence under Federal Rules of Evidence 404(b) and
414(a).
Multiple witnesses testified for the government at trial, in‐
cluding CV1 who was then six years old. Al‐Awadi testified
in his own defense. A jury convicted Al‐Awadi on three
counts of sexual exploitation by producing child pornogra‐
phy and on all four of the attempt counts. The district court
vacated three of the attempt convictions because they were
lesser included offenses of the completed offenses. The judge
sentenced Al‐Awadi to concurrent terms of 324 months’ im‐
prisonment and fifteen years of supervised release on each
count. Al‐Awadi appeals.
II. ANALYSIS
A. No Error in Jury Instructions
Al‐Awadi first argues that the jury should not have re‐
ceived the instruction that reads as follows, with our under‐
line added to the words with which Al‐Awadi especially
takes issue:
No. 16‐2643 5
You have heard testimony and evidence that the
Defendant committed crimes, acts and/or
wrongs other than the ones charged in the In‐
dictment. Before using this evidence, you must
decide whether it is more likely than not that the
Defendant did the crimes, acts, and/or wrongs
that are not charged in the Indictment. If you de‐
cide that he did, then you may consider this ev‐
idence to help you decide the Defendant’s intent
to produce or attempt to produce child pornog‐
raphy, absence of mistake in dealing with the al‐
leged victim or opportunity. You may not con‐
sider it for any other purpose. Keep in mind that
the Defendant is on trial here for sexual exploi‐
tation and attempted sexual exploitation of a
child, not for the other crimes, acts, or wrongs.
This instruction is our Seventh Circuit Pattern Criminal Jury
Instruction 3.11, “Evidence of Other Acts by Defendant,” with
Al‐Awadi’s case‐specific information added. Al‐Awadi main‐
tains that the “more likely than not” language in the instruc‐
tion improperly directed the jury to apply the preponderance
of the evidence standard to intent, which is an element of the
charged offenses. Especially because the evidence of molesta‐
tion had been admitted as direct evidence of the charged
crimes, Al‐Awadi maintains that the result of the instruction
was that the jury could find the intent element of the charged
crimes satisfied by a preponderance standard rather than by
the constitutionally required standard of beyond a reasonable
doubt.
Al‐Awadi did not object at trial to this instruction. The
government first contends that Al‐Awadi waived any right to
6 No. 16‐2643
our review of the instruction. “The touchstone of waiver is a
knowing and intentional decision.” United States v. Jaimes‐
Jaimes, 406 F.3d 845, 848 (7th Cir. 2005). The trial transcript re‐
flects a discussion between the district court and counsel out‐
side the presence of the jury before closing arguments in
which the judge stated, “earlier this morning we talked about
the final instructions,” and then asked the government and
Al‐Awadi’s counsel whether each “had any objections to any
of the final instructions.” Al‐Awadi’s counsel responded, “No
objection to the final instructions, Your Honor.”
In arguing that counsel’s response constitutes waiver of
any review of the instruction at issue, the government points
to cases including our decision in United States v. Natale, 719
F.3d 719 (7th Cir. 2013). But even Natale recognized the harsh‐
ness of a waiver result in cases where defense counsel simply
says “no objection” during a rote colloquy with a judge, and
we further noted there that we may review even waived ar‐
guments when “the interests of justice” require it. Id. at 730–
31. More recent cases follow in the same vein. See United States
v. Ajayi, 808 F.3 1113, 1121–22 (7th Cir. 2015) (reviewing chal‐
lenged jury instruction for plain error even though counsel
stated “no objection” during rote colloquy where government
stated instruction was a pattern instruction but did not dis‐
close that language was missing); United States v. Pust, 798
F.3d 597, 602 (7th Cir. 2015) (reviewing admission of chal‐
lenged statements for plain error where counsel at times said
“no objection” or “no” when asked if objection to admission).
Waiver is, after all, an intentional relinquishment of a known
right, while merely “negligently bypassing” an argument al‐
lows for our review on appeal, albeit under the demanding
standard of plain error review. Pust, 798 F.3d at 602. Here, the
contents of the discussion earlier in the morning regarding the
No. 16‐2643 7
jury instructions are not in the transcript; had they been and
depending on their content we might have more comfort in a
finding that Al‐Awadi intentionally relinquished his review
of Instruction No. 12.
In any event, at the least, it is clear that Al‐Awadi forfeited
his contest to the instruction by failing to object before the dis‐
trict court, and our review of forfeited arguments is for plain
error. United States v. Christian, 673 F.3d 702, 708 (7th Cir.
2012). That means we will grant relief only if there was an er‐
ror; the error was plain, meaning clear or obvious; the error
affected the defendant’s substantial rights in that he probably
would not have been convicted absent the error; and the error
seriously affected the fairness, integrity, or public reputation
of judicial proceedings. Id.
Because it is a pattern instruction, the instruction at issue
is presumed to accurately state the law. United States v. Marr,
760 F.3d 733, 744 (7th Cir. 2014). While the government cer‐
tainly had the burden of proving beyond a reasonable doubt
that Al‐Awadi committed the charged crimes, on its face In‐
struction No. 12 is directed at acts “other than the ones
charged in the Indictment” and repeats again at the end of the
instruction that the “Defendant is on trial here for sexual ex‐
ploitation and attempted sexual exploitation of a child, not for
the other crimes, acts, or wrongs.” The sentence with which
Al‐Awadi takes issue only speaks of the preponderance of the
evidence standard for uncharged conduct, as it states:“ … you
must decide whether it is more likely than not that the De‐
fendant did the crimes, acts, and/or wrongs that are not
charged in the Indictment.” So the instruction makes clear
that it is not about the charged crimes or elements of the of‐
fense, and it only directs the “more likely than not” standard
8 No. 16‐2643
to apply to the jury’s determination of whether Al‐Awadi mo‐
lested CV1. See United States v. Gomez, 763 F.3d 845, 854 (7th
Cir. 2014) (en banc).
For the elements of the charged crimes including intent,
on the other hand, the jury was instructed that the standard it
must apply was that of beyond a reasonable doubt. That is
important because we review challenges to jury instructions
like Al‐Awadi’s challenge to Instruction No. 12 by examining
the jury instructions as a whole and in the context of the entire
proceeding. See United States v. Fiedeke, 384 F.3d 407, 411 (7th
Cir. 2004). When it came to the charged crimes, the instruc‐
tions were clear that the government’s burden of proof was
that of beyond a reasonable doubt. The elements instruction
stated that to find the defendant guilty of sexual exploitation
of a minor, “the Government must prove each of the follow‐
ing elements beyond a reasonable doubt” and then listed the
elements. The instruction directed that if the jury found the
government had proved the “elements beyond a reasonable
doubt,” it should find the defendant guilty, but if it found “the
Government has failed to prove any of these elements beyond
a reasonable doubt,” it should return a not guilty verdict. The
next instruction gave identical directions for the crime of at‐
tempted sexual exploitation of a minor.
Non‐elements instructions also reminded the jury of the
constitutionally required burden of proof. Instruction No. 3
stated that the defendant is presumed innocent of each of the
charges, and that this presumption is not overcome unless the
jury is “convinced beyond a reasonable doubt that the De‐
fendant is guilty as charged.” This same instruction further
stated that the “Government has the burden of proving the
No. 16‐2643 9
Defendant’s guilt beyond a reasonable doubt.” The penulti‐
mate instruction included the direction, “Your sole interest is
to determine whether the Government has proved its case be‐
yond a reasonable doubt.” The instructions also told the jury
the government had to prove beyond a reasonable doubt that
the defendant is the person who committed the charged
crime. The instructions correctly informed the jury of the
standard of proof for the elements, which was a higher stand‐
ard than for non‐charged crimes, acts, or wrongs. We find no
error, plain or otherwise, in the jury’s receipt of Instruction
No. 12.1
B. Admission of Evidence of Molestation
Al‐Awadi makes several arguments on appeal regarding
the admission of the evidence of the alleged digital molesta‐
tion of CV1. At trial, Al‐Awadi objected to the cumulative ef‐
fect of testimony from multiple witnesses about the molesta‐
tion. He repeats that argument now, so we review the district
court’s decision to allow all the evidence of the molestation
that it did for an abuse of discretion. United States v. Fifer, 863
F.3d 759, 767 (7th Cir. 2017). He also makes several new argu‐
ments on appeal that he did not raise before the district court,
and for those our review is for plain error. See United States v.
Schrode, 839 F.3d 545, 554 (7th Cir. 2016).
We address first whether evidence of CV1’s alleged mo‐
lestation was admissible at all at trial. The government
1 The government also points out on appeal that under Rule 414 (“Similar
Crimes in Child Molestation Cases”), evidence may be considered “on any
matter to which it is relevant,” which overrides the propensity bar in Rule
404, United States v. Stokes, 726 F.3d 880, 896 (7th Cir. 2013), so Instruction
No. 12 may have been more favorable to Al‐Awadi than the law required.
10 No. 16‐2643
needed to prove as an element of the charged crime of making
child pornography that Al‐Awadi took the photographs with
the requisite intent. See 18 U.S.C. § 2251(a). And in this trial,
Al‐Awadi’s intent was the principal dispute. He did not con‐
test that he had taken the photographs. Instead, his position
throughout trial was that he had not taken the pictures with a
sexually motivated intent. His counsel argued in opening
statements that Al‐Awadi had another valid reason to take the
pictures, albeit a “stupid reason,” and Al‐Awadi took the
stand and testified he was worried he had hurt CV1 so he took
the pictures to check for injury. While saying it was the
“dumbest thing” he had ever done, Al‐Awadi maintained he
had not taken the four photographs with sexual intent.
Al‐Awadi therefore placed his intent at issue. The district
court allowed evidence of the molestation at trial as direct ev‐
idence of the charged crimes, and the government introduced
the evidence of molestation that was within seconds of when
Al‐Awadi took the photographs as evidence that Al‐Awadi’s
intent in taking the pictures was a sexually motivated one.
The molestation made Al‐Awadi’s criminal intent in taking
the photographs more probable than it would have been
without the evidence of molestation, so the molestation was
relevant. See Fed. R. Evid.401, 402.
Repeating an argument he made before the district court,
Al‐Awadi argues that too much evidence of the molestation
was admitted. He emphasizes that he was charged with mak‐
ing child pornography, not with the crime of child molesta‐
tion. The jury heard evidence of the molestation from the sub‐
stitute kindergarten teacher, who was the first person CV1
told; the daycare’s assistant director, who interviewed both
No. 16‐2643 11
CV1 and Al‐Awadi; CV1’s parents, who uncovered the mo‐
lestation and took CV1 to the hospital; and from people who
investigated the allegations—the nurse who examined CV1,
the lead detective, the pediatrician who did a follow‐up ex‐
amination, and two forensic scientists who examined CV1’s
clothing for DNA and bodily fluids. We do not find an abuse
of discretion in the district court’s decision to admit the testi‐
mony from the multiple witnesses. The witnesses added dif‐
ferent meaningful pieces to the account, and we do not see
here an improper “drum beat repetition” of a victim’s story,
cf. Stone v. State, 536 N.E.2d 534, 541 (Ind. Ct. App. 1989), or
the admission of “gruesome and unnecessary details,” United
States v. Ostrowsky, 501 F.2d 318, 323 (7th Cir. 1974), as in the
cases to which Al‐Awadi points, especially in light of Al‐
Awadi’s defense at trial.
Al‐Awadi also argues that the district court failed to con‐
duct a proper Rule 403 analysis that balanced the evidence’s
probative value with its potential for unfair prejudice. See Fed.
R. Evid. 403 (“The court may exclude relevant evidence if its
probative value is substantially outweighed by a danger
of … unfair prejudice … .”); United States v. Loughry, 660 F.3d
965, 972 (7th Cir. 2011) (finding district court erred by failing
to explain how it balanced the Rule 403 considerations). We
disagree. The district court first stated why it found the evi‐
dence admissible: it was direct evidence of guilt, and if not, it
was admissible under Rule 414 subject to Rule 403’s balancing
test. It then explained why it concluded the molestation evi‐
dence was not unfairly prejudicial, stating that Al‐Awadi had
not objected to most of it, the details were probative to
demonstrate CV1’s credibility, and the evidence was not so
graphic that its prejudicial impact outweighed its probative
value.
12 No. 16‐2643
Al‐Awadi makes other arguments regarding admissibility
issues, all of which we review for plain error because they are
raised for the first time on appeal. He argues that the govern‐
ment failed to establish a temporal connection between CV1’s
reports of pain and the alleged molestation. For example, the
substitute kindergarten teacher testified that on the day at is‐
sue, CV1 told her Al‐Awadi had touched her “all the way
down there and it really hurts. And Mommy said that I can’t
take a bubble bath no more because it’s going to hurt worse.”
Because CV1’s mother was not at the day care that day, Al‐
Awadi argues that the conversation about a bubble bath be‐
tween CV1 and her mother must have taken place before Al‐
Awadi had any contact with CV1 on the day at issue.
There was no plain error in the district court’s finding of
sufficient evidence of a temporal connection between the al‐
leged molestation and CV1’s reports of pain to warrant ad‐
mission of the molestation evidence. Among other evidence,
CV1 said that she was not hurting before Al‐Awadi inserted
his finger in her, and the medical evidence supported an in‐
ference that her pain was from the molestation. Discrepancies
in the conflicting testimony about timing go to the evidence’s
weight, not to its admissibility. See United States v. Mokol, 646
F.3d 479, 484 (7th Cir. 2011). Al‐Awadi’s attorney had the op‐
portunity to, and did, cross examine witnesses regarding con‐
tradictions in the timing. We find no plain error.
Al‐Awadi also argues that the videotaped statement CV1
gave to law enforcement should not have been admitted at
the trial that took place two years after the events. CV1 testi‐
fied at trial and appeared for cross examination, so the Con‐
frontation Clause did not bar the introduction of her prior
statement. See Crawford v. Washington, 541 U.S. 36, 59 n.9
No. 16‐2643 13
(2004) (“[W]hen the declarant appears for cross‐examination
at trial, the Confrontation Clause places no constraints at all
on the use of his prior testimonial statements.”). He also
seems to suggest a due process violation in the admission of
the videotaped statement, but his argument is difficult to dis‐
cern. We find no plain error in the admission of the statement
or of any other challenged evidence.
C. Sufficiency of the Evidence
Al‐Awadi also argues that it is not clear which body part
is depicted in the pictures he took so the evidence at trial was
insufficient to support his convictions. We will only set aside
a guilty verdict on the basis of insufficient evidence “if the
record contains no evidence from which a reasonable juror
could have found the defendant guilty.” United States v. Long‐
street, 567 F.3d 911, 918 (7th Cir. 2009).
To sustain Al‐Awadi’s convictions under 18 U.S.C.
§ 2251(a), the statute requires that he must have used CV1 to
engage in “sexually explicit conduct for the purpose of pro‐
ducing [a] visual depiction of such conduct.” The statute de‐
fines “sexually explicit conduct” to include the “lascivious ex‐
hibition of the genitals or pubic area,” 18 U.S.C.
§ 2256(2)(A)(v), but it does not define “lascivious exhibition.”
We have said that a lascivious exhibition “is one that calls at‐
tention to the genitals or pubic area for the purpose of eliciting
a sexual response in the viewer.” United States v. Russell, 662
F.3d 831, 843 (7th Cir. 2011). More than mere nudity is neces‐
sary. United States v. Miller, 829 F.3d 519, 524 (7th Cir. 2016).
Instead, “the focus of the image must be on the genitals or the
image must be otherwise sexually suggestive.” Id. at 524–25
(quotation omitted). Whether pictures reflect a lascivious ex‐
hibition is “an intensely fact‐bound question,” United States v.
14 No. 16‐2643
Schuster, 706 F.3d 800, 806 (7th Cir. 2013), so “the question is
left to the factfinder to resolve, on the facts of each case, ap‐
plying common sense.” Russell, 662 F.3d at 843.
Al‐Awadi does not contest that the photographs he took
were of CV1’s pubic area. Instead, he argues that his convic‐
tions cannot stand because he contends that it is difficult to
tell only from looking at the pictures the body part that is de‐
picted.
Sufficient evidence supports the convictions here. Al‐
Awadi does not dispute that the pictures are in fact of CV1’s
nude genital area, and he acknowledged at trial that he pulled
back CV1’s clothing to focus on her genital area when taking
the pictures. The jury also heard that he had previously
shown an interest in CV1—the two called each other “Little
Baby,” for example—and that he had prior interest in child
pornography. See Schuster, 706 F.3d at 807. The latter facts
were relevant in assessing the images and in particular in de‐
termining whether the images were “for the purpose of elicit‐
ing a sexual response in the viewer” because Al‐Awadi had
“disclaimed any intent to create a sexually suggestive image.”
Russell, 662 F.3d at 843; see also Schuster, 706 F.3d at 806. There
was sufficient evidence for the jury to conclude that Al‐Awadi
took the photographs of CV1’s genital area for the purpose of
eliciting a sexual response in him. Cf. Russell, 662 F.3d at 843
(explaining that subjective intent and motive of the creator of
the photographer can be a relevant consideration); Schuster,
706 F.3d at 806.
That it may be difficult for some viewers to tell from the
pictures alone which part of the body is depicted does not
preclude conviction here. The pictures for which Al‐Awadi
was convicted of making child pornography clearly show
No. 16‐2643 15
CV1’s skin, and Al‐Awadi does not dispute that the pictures
are of CV1’s genital area. Cf. United States v. Levy, 385 Fed.
App’x 20, 23 n.4 (2d Cir. 2010) (unpublished) (declining to de‐
cide whether a blurry image can support a § 2251(a) convic‐
tion for making child pornography). The Fourth Circuit has
even affirmed a § 2251(a) conviction when no visual depiction
resulted because a videotape stopped before the victim un‐
dressed, reasoning that the crime was complete when the de‐
fendant induced the victim to engage in sexually explicit con‐
duct “for the purpose of” making a visual depiction. United
States v. Buculei, 262 F.3d 322, 327–28 (4th Cir. 2001). We need
not consider that scenario, though, because pictures of CV1’s
genital area were in fact taken. The jury was justified in find‐
ing that Al‐Awadi used CV1 to engage in sexually explicit
conduct for the purpose of producing a visual depiction of the
conduct.
III. CONCLUSION
The judgment of the district court is AFFIRMED.
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Cite as 2017 Ark. 92
SUPREME COURT OF ARKANSAS
No. CV-16-185
ELIZABETH ANN WILLIAMSON, Opinion Delivered March 16, 2017
ADMINISTRATOR OF THE ESTATE
OF CYNTHIA FRAZIER APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT
APPELLANT [NO. 60CV-2012-930]
V.
HONORABLE CHRISTOPHER
BAPTIST HEALTH MEDICAL CENTER PALMER, JUDGE
APPELLEE APPEAL DISMISSED;
COURT OF APPEALS OPINION
VACATED.
JOSEPHINE LINKER HART, Justice
Elizabeth Ann Williamson, administrator of the estate of Cynthia Frazier, appeals from
a judgment entered and from the denial of a new-trial motion in a wrongful-death suit against
Baptist Medical Center (Baptist). On appeal, she argues that the jury award omitted loss-of-
life damages, rendering the award inadequate and contrary to the preponderance of the
evidence. She also argues that the circuit court abused its discretion by substituting its verdict
for that of the jury, and that the judgment entered grants Baptist an “unconscionable
quadruple reduction in liability.” In her supplemental argument, Williamson asserts that she
did not waive the issue of the circuit court’s misinterpretation of the verdict and, alternatively,
the judgment on its face is not a final order. Baptist cross-appeals, contingent on this court
ordering a new trial. It argues that the circuit court erred in giving certain jury instructions
and in making some evidentiary rulings. We dismiss this appeal for lack of a final order.
Cite as 2017 Ark. 92
Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(e) (2016), as we
granted a petition for review filed by Williamson after the Arkansas Court of Appeals affirmed.
Williamson v. Baptist Health Med. Ctr., 2016 Ark. App. 78. When we grant a petition for
review, we consider the appeal as though it had been originally filed in this court. Lagios v.
Goldman, 2016 Ark. 59, 483 S.W.3d 810.
Cynthia Frazier was fatally injured when she was struck by a car driven by fellow
Baptist employee Cassandra Johnson as she walked from an employee parking lot across
Emergency Drive on the Baptist campus. Frazier’s estate sued Baptist for wrongful death.
At the request of Baptist, the case was submitted to the jury on interrogatories. Interrogatory
No. 5 contained the following language, “State the amount of damages, if any, which you
find from the preponderance of the evidence was sustained by the Plaintiff in this case.” The
jury returned the following findings:
Answer:
$72,400.00 awarded to the Estate of Cynthia Frazier
$250,000.00 awarded to Elizabeth Williamson
$250,000.00 awarded to Emily Blohm
$250,000.00 awarded to Katherine Frazier
The jury was also instructed to determine the percentage of fault to be apportioned between
Baptist, Johnson, and Frazier. It fixed the percentages at 20 percent, 62 percent, 18 percent,
respectively.
Before we consider the arguments on appeal, we must first determine whether this
2
Cite as 2017 Ark. 92
court has jurisdiction to consider the merits. Denney v. Denney, 2015 Ark. 257, 464 S.W.3d
920. With the exception of certain interlocutory appeals listed in Rule 2 of the Arkansas
Rules of Appellate Procedure–Civil, this court’s appellate jurisdiction in civil matters is
limited to final orders or judgments. Ark. R. App. P.–Civ. 2(a)(1). We have said that the
requirement of a final judgment is the “cornerstone of appellate jurisdiction.” Ark. State
Claims Comm’n v. Duit Constr. Co., Inc., 2014 Ark. 432, at 10, 445 S.W.3d 496, 503.
Accordingly, determining whether we have jurisdiction requires us to construe the judgment.
“As a general rule, judgments are to be construed like other written instruments, and
the legal effect of a judgment must be declared in light of the literal meaning of the language
used.” Am. Jur. 2d Judgments § 74 (2006). However, in Ford Motor Co. v. Washington, 2013
Ark. 88, this court held that a judgment is not final unless it sets forth the specific dollar
amount owed by the defendant. When a judgment requires interpretation based on
information not manifest on the face of the judgment, it is not a final order for appellate
purposes. Id.
In Ford, as in the case before us, the case was submitted to the jury on interrogatories
that asked the jury to both apportion fault and determine damages. The original judgment
entered by the circuit court and placed before this court in Ford merely reproduced the
interrogatories without further interpretation by the circuit court. Id. Accordingly, there
existed on the face of the judgment an ambiguity—whether the jury had apportioned the fault
in making its damages award or whether the apportionment had yet to be done. Id. That is
exactly the situation we have in the case before us. Here, the jury found, and the circuit court
3
Cite as 2017 Ark. 92
copied verbatim, the jury’s response to the interrogatories wherein its apportionment of fault
and the damages was expressed. Accordingly, our decision in Ford controls, and we must
dismiss this appeal.
Appeal dismissed; court of appeals opinion vacated.
BAKER, J., concurs.
KAREN R. BAKER, Justice, concurs. I concur in the decision to dismiss the appeal
for lack of a final order. Although we are constrained to follow our holding in Ford Motor Co.
v. Washington, 2013 Ark. 88, at 5 (Ford II), I write separately to point out that the circuit court
may simply review the Ford opinions to remedy the order.
In Ford II, we explained that “the judgment is not final because it does not set forth
a specific dollar amount owed by Ford. Instead, the circuit court merely reproduced the
jury’s answers to the interrogatories and gave no further guidance.” Id. After our remand in
Ford II, Ford returned to the circuit court for entry of a final order. After entry of a revised
order, Ford appealed, and the case returned for a third time to this court. Upon its return,
in Ford Motor Co. v. Washington, 2013 Ark. 510, at 20, 431 S.W.3d 210, 222 (Ford III), in
challenging the damages award, Ford sought a reduction in the compensatory-damages award.
We disagreed and affirmed the circuit court’s order. In our holding, we reviewed the jury
instructions and determined that the jury had stated in the interrogatory the damages due only
from Ford Motor Company. Based on this, the circuit court entered its final order and the
amount due from Ford Motor Company. We affirmed and held that “[a]bsent evidence to
the contrary, the jury is presumed to obey the instructions.”
4
Cite as 2017 Ark. 92
Here, Williamson’s case is the same as presented on remand in Ford II, which we
affirmed in Ford III. From the plain wording of the instructions in Williamson’s case, the jury
was directed to record in interrogatory no. 5 the damages that were attributable to Baptist
Health Medical Center and no other party. However, because circuit court judgments are
the judgments that are executed on to recover money damages, we must dismiss this appeal
so that the circuit court can enter a judgment that conforms with the majority’s opinion.
HART, J., joins.
Appellate Solutions, PLC, by: Deborah Truby Riordan; Law Offices of Eric D. Wewers,
PLLC, by: Eric D. Wewers; and Rochelle & McCullough, LLP, by: Greg Bevel and Kathryn Reid,
pro hac vice, for appellant.
Munson, Rowlett, Moore & Boone, P.A., by: Bruce Munson, Jane M. Yocum, and Ashleigh
Phillips, for appellees.
5
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510 F.3d 1054 (2007)
GLOBAL HORIZONS, INC.; Global Horizons Manpower Inc.; Mordechai Orian, Plaintiffs-Appellants,
v.
U.S. DEPARTMENT OF LABOR, an Agency of the United States of America; Elaine L. Chao, in her capacity as Secretary of the U.S. Department of Lagbor; Does 1 through 10, inclusive, Defendants-Appellees.
No. 07-55116.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted September 26, 2007.
Filed December 13, 2007.
*1055 Kari E. Hong, Law Offices of Kari E. Hong, Portland, OR, for the appellants.
*1056 Ira A. Daves and Jonathan B. Klinck, Assistant U.S. Attorneys, Los Angeles, CA, for the appellees.
Before: J. CLIFFORD WALLACE, T.G. NELSON, and N. RANDY SMITH, Circuit Judges.
WALLACE, Senior Circuit Judge:
Global Horizons, Inc., Global Horizons Manpower, Inc., and Mordechai Orian (collectively, Global Horizons) appeal from the district court's denial of their request entitled "ex parte Application for Temporary and Preliminary Restraining Orders Staying the Effective Date of Administrative Action." We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), and we affirm.
I
Global Horizons is a labor contractor in the business of providing temporary alien agricultural workers to United States farmers pursuant to the H-2A worker program. For Global Horizons to receive government permission to provide the alien workers, it must show in its application that there are insufficient United States workers to perform the labor involved and that the employment will not adversely affect wages and working conditions of the United States workers similarly employed. 8 U.S.C. § 1188(a); see generally 20 C.F.R. Part 655. It was in its application that Global Horizons ran into difficulty.
On July 27, 2006, the United States Department of Labor (DOL) sent Global Horizons a "Determination and Notice" stating that it would deny all future H2-A labor certification applications from the company for a period of three years. The DOL gave two reasons for its decision. First, it found that Global Horizons improperly sought certification of 200 workers for which it had neither the agricultural work nor the requisite contractual relationship with a United States farmer. Second, the DOL found that Global Horizons "knowingly provided false information regarding the termination of the employment of U.S. workers."
The final paragraph of the notice advised Global Horizons its sole method to challenge the DOL action: It had "the right to request an expedited administrative review or a de novo hearing" before an Administrative Law Judge (ALJ). The notice specified, however, that such a request must be made "within seven calendar days of the date of this Determination and Notice."
Global Horizons acknowledges that it did not file a request for hearing within the stipulated time. Indeed, when Global Horizons filed its request, it was even eight days after it contends it actually received the DOL notice. Its excuse is that there was an internal delay forwarding the notice to the legal department.
The ALJ ordered the parties to submit supplemental briefs on the issue of equitable tolling. Subsequently, the ALJ issued a 19-page administrative order denying Global Horizons' request for a hearing as untimely. The ALJ held that Congress intended H2-A matters to be handled in an expedited manner, and the DOL had set numerous tight deadlines to achieve that end. The ALJ also found that Global Horizons was no stranger to this expedited process, having requested ALJ review at least 18 times since 2003. The ALJ then engaged in a lengthy discussion of the proper standard of equitable tolling to be applied. Finally, the ALJ held that the facts of the case failed to qualify for equitable tolling, given Global Horizons' failure to offer any satisfactory explanation for its delay in responding.
*1057 Global Horizons then filed its application for preliminary injunctive relief in the United States District Court for the Central District of California, which the district court denied. Global Horizons timely appealed.
II
We recognize two sets of criteria for preliminary injunctive relief. Under the "traditional" test, a party must demonstrate "(1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff if the preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest (in certain cases)." Johnson v. Cal. State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir.1995) (citation and internal quotation marks omitted). "Alternatively, a court may issue a preliminary injunction if the moving party demonstrates either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor." Id. (citations, emphasis, and internal quotation marks omitted).
Global Horizons sought review of the ALJ's decision in the district court pursuant to the Administrative Procedures Act. 5 U.S.C. § 701 et seq. Under this statute, the district court could set aside the ALJ's decision only if it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Under this narrow standard, the ALJ needed only to "articulate a rational connection between the facts found and the conclusions made." Nat'l Wildlife Fed'n v. U.S. Army Corps of Eng'rs, 384 F.3d 1163, 1170 (9th Cir.2004) (quotation marks and citation omitted).
A.
Global Horizons argues that the ALJ was "charting new and unexplored ground" when it determined that equitable tolling would be the standard to apply in the circumstances of this case, and the district court therefore abused its discretion when it denied injunctive relief because there were no serious legal issues in the action before it. The question for the district court, however, was not whether Global Horizons had raised serious legal issues with respect to the substance of the ALJ's equitable tolling analysis. Instead, the court considered whether Global Horizons had raised serious questions as to whether the analysis was arbitrary and capricious. The only real issue, then, was whether the ALJ articulated a sufficiently rational explanation for the decision. See id. at 1170. The district court correctly held that Global Horizons had not raised serious questions going to the merits of this issue, given the 19-pages of in-depth rational analysis provided by the ALJ in its administrative order.
B.
The district court then held, in a footnote, that "[b]ecause Plaintiffs have failed to demonstrate either a likelihood of success on the merits, or the existence of serious questions going to the merits, it is unnecessary to address the possibility of irreparable injury or the relative hardships." Global Horizons takes issue with this holding. It argues that the district court was required to give at least some consideration to both the threat of irreparable harm and the threat to the public interest before it could deny the preliminary injunction.
We have described the relationship between success on the merits and irreparable harm as "a sliding scale in which the required degree of irreparable harm increases *1058 as the probability of success decreases." Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867, 874 (9th Cir.2000). To reach this sliding scale analysis, however, a moving party must, at an "irreducible minimum," demonstrate some chance of success on the merits. Arcamuzi v. Cont'l Air Lines, Inc., 819 F.2d 935, 937 (9th Cir.1987). When, as here, a party has not shown any chance of success on the merits, no further determination of irreparable harm or balancing of hardships is necessary. See Sports Form, Inc. v. United Press Int'l, Inc., 686 F.2d 750, 752-53 (9th Cir.1982); see also Leary v. Daeschner, 228 F.3d 729, 739 fn. 3 (6th Cir.2000); The Pitt News v. Fisher, 215 F.3d 354, 366 (3d Cir.2000).
This rule applies with equal force to the public interest element of our preliminary injunction analysis. We have recognized that, in certain situations, we must consider the public interest when making a preliminary injunction determination. See Natural Res. Def. Council, Inc. v. Winter, 502 F.3d 859, 862 (9th Cir.2007). However, there is no reason to treat this required showing any differently than that of irreparable harm. Once a court determines a complete lack of probability of success or serious questions going to the merits, its analysis may end, and no further findings are necessary. That is true here.
C.
Global Horizons also argues that the district court abused its discretion by failing to address specifically several substantive arguments that the company raised in its application for preliminary relief. First, Global Horizons argues that the DOL's debarment notice was in conflict with the regulations, since 20 C.F.R. § 655.110 provides for a two-year debarment if a company has committed two violations, and a three-year debarment only if a company has committed three or more violations. This is precisely the sort of argument that Global Horizons could have raised with the ALJ had the company filed a timely request for a hearing. Because it missed the seven-day deadline, however, the only issue before the district court was whether the ALJ abused its discretion in refusing to grant equitable tolling. Any dispute as to the length of debarment, therefore, would have been irrelevant to the district court's analysis.
Global Horizons also made a number of constitutional arguments before the district court, including that the relevant regulations were void for vagueness, lacked proper due process safeguards, and were promulgated in excess of statutory authority. Although the district court potentially had jurisdiction to hear these claims, Global Horizons provided only a conclusory one-sentence argument for each, and the district court did not abuse its discretion when it did not address them specifically in its order.
III
Finally, we recognize that in the eleven months since Global Horizons filed the present appeal, the company has taken very few steps to move its application for permanent injunction forward in the district court. The government filed an answer on April 20, 2007, but Global Horizons entered into two continuances. This delayed the district court from holding a scheduling conference until November 5, 2007. Twenty-five years ago in Sports Form, we admonished parties for appealing a preliminary injunction "in order to ascertain the views of the appellate court on the merits of the litigation." 686 F.2d at 753. We repeat our concern. Because of our limited scope of review and the paucity of the factual record on a preliminary injunction application, our disposition "may provide little guidance as to the appropriate *1059 disposition on the merits" and will often "result in unnecessary delay to the parties and inefficient use of judicial resources." Id. Given the purported urgency of Global Horizons' claims, the company would have been better served to pursue aggressively its permanent injunction claim in the district court, rather than apparently awaiting the outcome of this appeal.
AFFIRMED.
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567 F.3d 871 (2009)
NATIONAL CASUALTY COMPANY, Plaintiff-Appellee,
v.
FORGE INDUSTRIAL STAFFING INCORPORATED, Defendant-Appellant.
No. 08-3110.
United States Court of Appeals, Seventh Circuit.
Argued February 10, 2009.
Decided June 3, 2009.
*873 Shaun M. Baldwin, Tressler, Soderstrom, Maloney & Priess, LLP, Chicago, IL, Thomas H. Crouch, Meagher & Greer, Scottsdale, AZ, for Plaintiff-Appellee.
Robert B. Baker, Surdyk & Baker, Chicago, IL, for Defendant-Appellant.
Before CUDAHY, WILLIAMS, and TINDER, Circuit Judges.
WILLIAMS, Circuit Judge.
Fearful that its insurer, National Casualty Corporation ("NCC"), would surreptitiously control its defense in a way that would preclude coverage under the insurance policy, Forge declined to accept insurer-appointed counsel to defend it against claims brought before the Equal Opportunity Employment Commission ("EEOC"). The parties then filed cross-claims for declaratory judgment seeking to resolve whether an actual conflict of interest existed requiring NCC to reimburse Forge for the costs of retaining independent counsel to defend against these EEOC charges.
Because we find that the EEOC charges do not contain mutually exclusive claims (one of which would be covered under the policy and one of which would not), and we fail to detect any other evidence that NCC would provide a less than vigorous defense on behalf of Forge, we find that under Illinois law, appointment of conflict counsel was not required. Therefore, we affirm the district court's judgment.
I. BACKGROUND
This suit arises out of a dispute regarding the burden of bearing the defense costs of an insured's privately retained counsel in an action before the EEOC. NCC issued an insurance policy to Forge Industrial Staffing, Inc. Forge is a staffing company that places temporary, and occasionally permanent, employees at companies throughout the United States. Among other things, the policy insured Forge against any legal damages stemming from intentional acts, including intentionally discriminating against any of its employees. The parties do not dispute any of the following facts.
During February and April 2006, four of Forge's former employees filed anti-discrimination charges with the EEOC. The gist of their complaints was that Forge fired them: (1) due to their race and/or gender; and/or (2) in retaliation for complaining about Forge's staffing practices, which allegedly included honoring its clients' requests not to staff employees that were African-American, Hispanic, and/or female.
As a result of these charges, NCC agreed to defend Forge under the Employment Practices Liability Part of the insurance contract and assigned NCC's own counsel to do so. At the same time, NCC reserved the right to later deny coverage based on any of the exclusions in the policy. Most notably, the policy did not provide coverage for "punitive damage awards" or for any claim arising out of Forge's "willful failure ... to comply with any law ... or regulations relating to employment *874 practices." The policy defined "willful" as "acting with intentional or reckless disregard for such employment-related laws, orders or regulations."
After receiving this reservation-of-rights letter, Forge requested that NCC provide independent counsel for Forge because a purported conflict of interest existed as a result of NCC's reservation of rights. Specifically, Forge asserted that whether the policy would indemnify Forge for its alleged conduct depended on how the EEOC charges were defended with respect to the issues of punitive damages and Forge's knowledge of the applicable anti-discrimination laws. When NCC refused to provide independent counsel, Forge hired its own counsel. Subsequently, NCC filed this declaratory judgment action to resolve the conflict of interest issue as well as a dispute regarding the appropriate deductible under the policy. Forge cross-filed, requesting that the district court order NCC to cover Forge's defense costs. The district court found that no actual conflict existed and determined that Forge had to bear the costs of retaining its own counsel. The district court also found that only the Employment Practices Liability Part of the policy applied, requiring Forge to pay a $25,000 deductible to NCC. Forge now appeals.
II. ANALYSIS
A. Conflict of Interest Determination
In Illinois, an insurer has a broad duty to defend its insured in any action where the allegations in the complaint are even potentially within the scope of the policy's coverage. Guillen v. Potomac Ins. Co. of Ill., 203 Ill.2d 141, 271 Ill.Dec. 350, 785 N.E.2d 1, 7 (2003); Am. Family Mut. Ins. Co. v. W.H. McNaughton Builders, Inc., 363 Ill.App.3d 505, 300 Ill.Dec. 234, 843 N.E.2d 492, 497 (2006). Along with an insurer's obligation to defend its insured comes its right to control and direct the defense. Am. Family, 300 Ill.Dec. 234, 843 N.E.2d at 498. Policy dictates that an insurer has this right so that it "may protect its financial interest in the litigation's outcome and minimize unwarranted liability claims." Stoneridge Dev. Co. v. Essex Ins. Co., 382 Ill.App.3d 731, 321 Ill.Dec. 114, 888 N.E.2d 633, 644 (2008); see also Clemmons v. Travelers Insurance Co., 88 Ill.2d 469, 58 Ill.Dec. 853, 430 N.E.2d 1104, 1108 (1981). Insurer-appointed counsel has an ethical obligation to both the insurer and the insured. Stoneridge, 321 Ill.Dec. 114, 888 N.E.2d at 644; Am. Family, 300 Ill.Dec. 234, 843 N.E.2d at 498. However, in reality this counsel may have a closer relationship with the insurer and a greater desire to protect the insurer's interests. Ill. Masonic Med. Ctr. v. Turegum Ins. Co., 168 Ill.App.3d 158, 118 Ill.Dec. 941, 522 N.E.2d 611, 613 (1988). This is of no import when the interests of the insurer and its insured are aligned, but when they diverge, a conflict of interest arises. Am. Family, 300 Ill.Dec. 234, 843 N.E.2d at 498.
If there is an actual conflict of interest between the insurer and insured, the insured has the right to obtain independent counsel at the insurer's expense. See id.; Md. Cas. Co. v. Peppers, 64 Ill.2d 187, 355 N.E.2d 24, 31 (1976). An actual, not merely potential, conflict is required to trigger the insured's right to conflict counsel. See, e.g., Murphy v. Urso, 88 Ill.2d 444, 58 Ill.Dec. 828, 430 N.E.2d 1079, 1083-84 (1981); Am. Country Ins. Co. v. Williams, 339 Ill.App.3d 835, 274 Ill.Dec. 857, 791 N.E.2d 1268, 1276 (2003). An actual conflict does not arise merely because the insurer has an interest in negating coverage as to every count of the underlying complaint. See, e.g., Tews Funeral Home, Inc. v. Ohio Cas. Ins. Co., 832 F.2d 1037, 1047 (7th Cir.1987); Turegum, 118 Ill.Dec. 941, 522 N.E.2d at 613-14. *875 Conversely, it is not dispositive that insurer and insured have a shared interest in a finding of no liability; in that case, "the question becomes whether the insurer's interest would be equally protected by a finding that would not be in the interest of the insured." Am. Family, 300 Ill.Dec. 234, 843 N.E.2d at 499; Murphy, 58 Ill.Dec. 828, 430 N.E.2d at 1083-84.
In order to determine if a conflict exists, the court "must compare the allegations of the underlying complaint against the insured to the terms of the insurance policy at issue." Am. Family, 300 Ill.Dec. 234, 843 N.E.2d at 498. If, after comparing the complaint against the insured to the insurance policy, "it appears that factual issues will be resolved in the underlying suit that would allow insurer-retained counsel to `lay the groundwork' for a later denial of coverage, then there is a conflict between the interests of the insurer and those of the insured." Id. (citations omitted).
Illinois courts have held that conflict counsel must be appointed when the underlying complaint contains two mutually exclusive theories of liability, one which the policy covers and one which the policy excludes. See, e.g., Maneikis v. St. Paul Ins. Co. of Ill., 655 F.2d 818, 825 (7th Cir.1981) (collecting Illinois cases). This situation typically arises when the insurance policy covers negligent but not intentional conduct. Id. In this instance, the insurer would have the incentive to lay the groundwork during discovery to show that the insured acted intentionally, removing the possibility of coverage. See Am. Family, 300 Ill.Dec. 234, 843 N.E.2d at 498 ("[I]f, in the underlying suit, insurer-retained counsel would have the opportunity to shift facts in a way that takes the case outside the scope of policy coverage, then the insured is not required to defend the underlying suit with insurer-retained counsel."). More generally, courts have found that conflict counsel should be appointed whenever the insurer's "interests would be furthered by providing a less than vigorous defense to those allegations." Turegum, 118 Ill.Dec. 941, 522 N.E.2d at 613-14; see also Am. Country, 274 Ill.Dec. 857, 791 N.E.2d at 1276.
B. The Mere Possibility that Punitive Damages Might Be Sought in Future Litigation Does Not Create an Actual Conflict of Interest
Forge asserts, relying on Nandorf, Inc. v. CNA Insurance Cos., 134 Ill.App.3d 134, 88 Ill.Dec. 968, 479 N.E.2d 988 (1985), that the possibility that the EEOC charges could result in lawsuits in which the plaintiffs might request punitive damages that dwarf the possible compensatory damages creates an actual conflict of interest mandating the appointment of conflict counsel. In Nandorf, each underlying plaintiff requested $5,000 in compensatory damages and $100,000 in punitive damages. Id. at 990. As here, the policy in question did not cover punitive damage awards. See id. The court reasoned that an insurer may not have an incentive to provide a "vigorous defense" to its insured when the amount of punitive damages sought greatly outweighs the amount of compensatory damages sought. Id. at 992. Essentially, the court believed that the insurer (and by extension insurer-appointed counsel) might find it more economically efficient to put on a less than vigorous defense and pay the $5,000, rather than spending excess legal fees to put on a full defense. Id. Such conduct would leave the insured unfairly exposed for $100,000 in punitive damages.
Although the court cautioned that its finding was not "meant to imply that an insured is entitled to independent counsel whenever punitive damages are sought in *876 the underlying action," it found that "under the peculiar facts and circumstances of this litigation," the great disparity between the punitive and compensatory damages possible in the underlying litigation created an actual conflict warranting the appointment of conflict counsel. Id. at 993-94; see also Ill. Mun. League Risk Mgmt. Ass'n v. Seibert, 223 Ill.App.3d 864, 166 Ill.Dec. 108, 585 N.E.2d 1130, 1138 (1992) (finding that where insurer "could benefit from presentation of defense in manner justifying punitive damages award" and insured faced "grave economic consequences" as a result, appointment of conflict counsel was warranted).
As the district court correctly found, this case does not present "peculiar facts" analogous to Nandorf requiring the appointment of independent counsel. Punitive damages may not be sought in an EEOC proceeding. See West v. Gibson, 527 U.S. 212, 217-18, 119 S.Ct. 1906, 144 L.Ed.2d 196 (1999). Further, there was no evidence that the underlying plaintiffs would seek punitive damages if and when they actually filed suit. Moreover, even if they filed suit, there is no evidence that the punitive damages requested would be so disproportionate to the compensatory damages requested such that a Nandorf conflict would ensue. Therefore, the specter of punitive damages in this case is merely speculative and does not create an "actual" conflict. See Littlefield v. McGuffey, 979 F.2d 101, 108 (7th Cir.1992). To find otherwise would violate the principles underlying Nandorf by immediately mandating the appointment of conflict counsel in every case in which punitive damages potentially might be requested. Not until punitive damages are actually requested (or an actual conflict appears on the face of the complaint as discussed infra at 876-79), and upon a determination that the nature of the damages creates a conflict (i.e., when the conflict changes from speculative to actual), should a court order the appointment of independent counsel. See Shelter Mut. Ins. Co. v. Bailey, 160 Ill. App.3d 146, 112 Ill.Dec. 76, 513 N.E.2d 490, 496 (1987).
In addition, unlike in Siebert, there is no evidence that Forge and NCC's interests are not aligned on the issue of punitive damages. In the event that the EEOC charges evolve into lawsuits, both punitive and compensatory damages would be tied to the same underlying conduct, namely Forge's alleged discrimination against its employees. Thus, in defending Forge's actions generally, NCC would necessarily be protecting Forge's interests with respect to both compensatory and punitive damages. See Vill. of Lombard v. Intergovernmental Risk Mgmt. Agency, 288 Ill.App.3d 1003, 224 Ill.Dec. 106, 681 N.E.2d 88, 95 (1997) ("the compensatory and punitive damages sought in the underlying suit arise out of the same factual occurrence" and did not present a actual conflict). The mere potential for massive punitive damages requests in future litigation does not give rise to an actual conflict warranting the appointment of independent counsel.
C. Independent Counsel Need Not Be Appointed Because Mutually Exclusive Theories of Liability Do Not Appear on the Face of the EEOC Charges
It is undisputed that the policy provides Forge liability coverage for intentional acts, including intentional torts such as intentionally discriminating against one of its employees. As noted above, however, the policy does not cover Forge if it "willfully failed" to adhere to anti-discrimination laws. If a jury was to find that Forge both intentionally discriminated against its employees and did so in willful violation of anti-discrimination laws, Forge's conduct would fall within the policy's *877 "willful" exception, and NCC would not have to indemnify Forge. Forge argues that appointment of independent counsel at the inception of the EEOC charges was necessary because NCC's counsel would have the incentive and ability to shift the facts such that it appeared that Forge willfully violated the law, removing the action from the policy's coverage. As the district court aptly noted, whether NCC-appointed counsel's ability to frame facts before the Commission creates an actual conflict triggering the need for conflict counsel presents "a difficult question" under the facts of this case.
After the district court determined that NCC had a duty to defend Forge in the EEOC proceedings, it stated that if an actual conflict existed at the EEOC level, conflict counsel must be appointed.[1] The district court then found that no actual conflict existed because: (1) the EEOC charges did not specifically accuse Forge of "willfully violating any law"; and (2) in any event, "intentional claims" and any "willfully violating the law claims" would not be mutually exclusiveby generally defending Forge against discrimination charges, the district court found that the NCC-supplied defense would encompass both "intentional claims" and "willful claims."
On appeal, building on the district court's rationale, NCC first argues that there is no conflict between the intentional conduct alleged in the EEOC charges and the "willfulness" exception in the policy. NCC claims that in defending Forge against a claim for intentional discrimination, it will necessarily be defending Forge against allegations that Forge willfully violated anti-discrimination laws.
Although correct, this argument does not dispositively settle the question of whether conflict counsel must be appointed for the EEOC proceedings. At trial before a district court, it is certainly true that if counsel proves that Forge did not intentionally discriminate against its employees then it necessarily proves that Forge did not willfully violate the law, which would negate any tension with the policy's exceptions.[2] Further, any attempt to shift the focus to Forge's knowledge of the applicable anti-discrimination laws during trial would be plain to see, rendering counsel's violation of his ethical duty apparent. That said, an examination of the manner in which counsel would defend this action at trial is not the complete, nor even the most pertinent, inquiry. Rather, Illinois law counsels us to examine whether insurer-appointed counsel could feasibly "flesh out" certain facts during investigation, discovery, or trial that would remove the action from the policy's coverage. See Am. Family, 843 N.E.2d at 500-01; Turegum, 522 N.E.2d at 614; Murphy, 58 Ill. Dec. 828, 430 N.E.2d at 1083-84.
During its defense of the charges in the EEOC proceeding, it is certainly possible for NCC-appointed counsel to subtly elicit facts tending to show that Forge had knowledge of the applicable anti-discrimination laws, which would negate NCC's obligation to insure Forge in the event that Forge is found liable for discrimination. That said, the danger this presents to Forge is quite minimal given that this information is highly likely to be discovered *878 anyway. As an employment placement company, one would assume that Forge has strong knowledge of employment laws and, as such, the underlying plaintiffs or the Commission itself will likely inquire about Forge's knowledge of those laws during the EEOC process. Or, if NCC decided to initiate a separate action against Forge claiming that the policy did not apply, NCC would certainly inquire about Forge's knowledge of the law during discovery. Therefore, NCC-appointed counsel's ability to solicit this information during his defense of the EEOC charges is of little import.
In any event, given that there are no allegations present in the EEOC charges that Forge willfully violated the law, this case presents neither mutually exclusive theories of liability nor factual allegations which when resolved would preclude coverage. In fact, only one theory is presentedForge committed an intentional tort by intentionally discriminating against its employees based on race and gender. So, the requirements for appointment of independent counsel under Illinois law have not been met.
A similar situation arose in Shelter Mutual Insurance Co. v. Bailey, 160 Ill. App.3d 146, 112 Ill.Dec. 76, 513 N.E.2d 490 (1987). In Shelter Mutual, an insured asked the court to order the appointment of conflict counsel in a case where the insured was charged with negligence and the policy excluded coverage for intentional acts. Id. at 496-97. The insured argued that insurer-appointed counsel could elicit facts tending to show that the insured acted intentionally, thus negating coverage. Id. The court found that no actual conflict of interest existed because only one theory of liability, negligence, was alleged on the face of the complaint. Id. at 496-97 ("Plaintiff was not confronted with alternative theories of recovery and, therefore, could not shift the liability from one theory, such as negligence, which would have been covered, to another theory, such as battery or intentional conduct, for which there was no coverage."). Finding that there was nothing on the face of the complaint indicating that insurer-appointed counsel would give less than a vigorous defense, the court denied the insured's request for independent counsel. Id. The court noted, however, that if the underlying plaintiff was to file an amended complaint featuring an intentional tort, an actual conflict might ensue requiring the appointment of conflict counsel. Id.
The court's decision was wise because, as it noted, a contrary ruling would require the appointment of independent counsel any time a complaint could foreseeably be amended to assert a non-covered theory. Id. Such a rule would extend the requirement for appointment of independent counsel to any situation that presents merely a potential conflict, which is clearly antithetical to what Illinois law dictates.
Simply put, if no fact issues appear on the face of the underlying complaint that can be conclusively resolved in such a way that insurance coverage is necessarily precluded under the policy, then appointment of independent counsel is not warranted. Id.; Am. Family, 300 Ill.Dec. 234, 843 N.E.2d at 498. In this case, the EEOC charges do not contain any specific fact issues that could conclusively be resolved such as to preclude coverage under the policy. The EEOC charges do not contain any claims that Forge willfully violated the law nor do they contain any fact allegations regarding Forge's knowledge of anti-discrimination laws. As such, an actual conflict is not present that requires the appointment of conflict counsel. Forge seems to argue that NCC-appointed counsel's ability to inquire into Forge's knowledge of the applicable laws puts it at some sort of advantage. This is not the *879 case. In the cases in which Illinois courts have required the appointment of independent counsel, there have been crucial facts alleged on the face of the complaint which, if proven true, completely and irreparably took the matter out of the scope of the insurance policy's coverage. See, e.g., Am. Family, 300 Ill.Dec. 234, 843 N.E.2d at 498; Turegum, 118 Ill.Dec. 941, 522 N.E.2d at 613-14; Murphy, 58 Ill.Dec. 828, 430 N.E.2d at 1082-83.
If, in this case, there was an allegation in the EEOC charges that Forge willfully violated the law in the process of discriminating against its employees, the fact that Forge's knowledge of the law may be unearthed as part of the EEOC grievance process may warrant the appointment of conflict counsel because it is conceivable that a finding on this issue could be reached that dispositively determines that the policy does not indemnify Forge. Without such an allegation present on the face of the complaint, however, any theory that may shift the facts in such a manner as to foreclose coverage is entirely speculative and presents, at most, a potential (and not actual) conflict. Moreover, the fact that NCC can use information garnered in the course of this EEOC proceeding in a parallel proceeding alleging noncoverage is irrelevant because the same information could be obtained through the normal discovery process in the parallel suit. Id. at 496, 58 Ill.Dec. 828, 430 N.E.2d 1079 ("A conflict cannot be inferred merely because an insurance company is asserting noncoverage in a separate suit. The test is whether or not there are conflicting interests based upon the allegations found in the complaint."). In this case, only in the event that these EEOC charges are amended to include allegations of willfulness, or evolve into actual lawsuits whose complaints contain allegations regarding Forge's willfulness, will an actual conflict arise. Until that time, the appointment of conflict counsel is not warranted under Illinois law.
D. Only the Employment Practices Liability Part of the Insurance Policy is Applicable
NCC provided insurance coverage under the Employment Practices Liability Part of the insurance policy, which carried a $25,000 deductible. Forge claims that the Professional Liability Coverage Part also applied, which only carried a $5,000 deductible. As the district court correctly found, the Professional Liability coverage does not apply because "Exclusion 13" in the Professional Liability Part exempts from coverage any claims alleging "wrongful termination," "actual discrimination," or "retaliatory treatment."
In its opening brief, Forge makes no attempt to refute the district court's finding. In its reply brief, Forge argues, without citation or support, that this exclusion was only meant to apply to the employees Forge placed at outside companies and not its in-house employees. A plain reading of Exclusion 13 fails to support this premise. So, Forge must pay the $25,000 deductible applicable under the Employment Practices Liability Part.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
NOTES
[1] Although not disputed on appeal, we note that due to the adversarial nature of the EEOC process, the conflict counsel doctrine is equally applicable to EEOC charges/proceedings as it is to a formal lawsuit.
[2] NCC's contention that defending against intentional discrimination will always be the same as defending against a willful violation of the law is without merit. If that was the case, then the willfulness exclusion in the policy would serve no purpose.
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-13467 MARCH 8, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 1:09-cv-02493-SCJ
KASIB JARVIS,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
SIEMENS MEDICAL SOLUTIONS USA, INC.,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 8, 2012)
Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.
PER CURIAM:
Kasib Jarvis, an African-American, appeals from the district court’s grant of
summary judgment in favor of Siemens Medical Solutions USA, Inc., (“Siemens”)
in his lawsuit alleging employment discrimination based on race and retaliation
under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e,
and 42 U.S.C. § 1981. For the reasons set forth below, we affirm.
I. Facts
During the relevant time period, Jarvis worked as a “network consultant” for
Siemens under the supervision of Roger Robinson and Robinson’s superior, Steve
Wagman. Jarvis’s duties essentially consisted of assisting customers in
implementing Siemens’s medical equipment. Another network consultant
working under Robinson was Andrew Akery, a Caucasian. Both Jarvis and Akery
worked from their homes in different parts of the country; Jarvis lived and worked
in an Atlanta suburb, while Akery was based near Dallas. When Robinson started
supervising Jarvis and Akery near the end of 2007, he placed more emphasis on
customer consulting rather than the purely technical aspects of their jobs.
On April 7, 2008, Robinson sent an email to Jarvis, stating that his
performance did not meet Robinson’s expectations. According to the email,
Jarvis’s deficiencies included consistently missing deadlines and failing to meet
various work-related objectives, such as assisting in the development of new
services and communicating with customers. Robinson outlined a 30-day plan for
improvement that Jarvis needed to accomplish to avoid being placed on an official
2
performance improvement plan (“PIP”).
On June 2, 2008, Robinson sent Jarvis a memorandum, officially placing
him on a PIP. Robinson wrote that, while Jarvis improved in some areas, he
continued to have problems in others, including the “most critical” aspect of his
job—providing network consulting to customers. The PIP listed specific
objectives that Jarvis needed to achieve, including the completion of design
specifications for the “Customer Satisfaction Survey” and the “Project Tracking
Tool” by June 30, 2008. The PIP also scheduled a review of Jarvis’s progress in
30 days and stated that a failure to meet the outlined requirements could lead to
termination.
Sometime towards the end June 2008, Jarvis complained of racial
discrimination to Wagman and Ellen Johnston, a staff employee in the human
resources department. Robinson received notice of the complaint in late June.
On July 10, 2008, Robinson sent an email to Jarvis, summarizing their
recent meeting regarding Jarvis’s 30-day PIP review. According to the email,
Jarvis’s overall performance improved, but he still failed to complete certain
requirements, including the design specifications for the project tracking tool and
the customer satisfaction survey. Thus, Robinson extended the PIP for another 30
days and scheduled a progress review for mid-August. On July 14, 2008, Jarvis
3
provided Robinson with the design specifications for the project tracking tool and
the customer satisfaction survey.
The aforementioned design specifications were not assigned to any other
employee. In fact, Robinson often assigned Jarvis projects that he did not assign
to other network consultants. Robinson testified that he did so because Jarvis
volunteered for the tasks, no other resources were available, and Jarvis was the
only one with the necessary skills. In his own deposition, Jarvis agreed that
Robinson assigned him the extra tasks because he was more able than others.
Jarvis also stated that being assigned such tasks may have been a compliment and
that Robinson did not make him do too much work.
Between the end of July and early September 2008, Jarvis communicated
with Johnston about applying to a position with Siemens Government Services in
Virginia. Johnston guided him through the application process and reviewed his
resume.
On August 28, 2008, Robinson emailed Jarvis a summary of their
conversation regarding the most recent PIP progress review. Robinson wrote that
Jarvis’s performance “gradually and continually improved” since the original PIP
was issued, but again, problems remained. Specifically, Jarvis submitted partial
design specifications for the project tracking tool and the customer satisfaction
4
survey, but the specifications did not contain the required information. Robinson
stated that the specification for the project tracking tool was no longer needed, but
an appropriate specification was still required for the customer survey. Thus,
Robinson extended the PIP for another 30 days.
Around this time, Jarvis emailed Robinson, asking to take several
certification exams related to Jarvis’s job. Robinson forwarded Jarvis’s email to
Wagman, stating that the exams were “certainly in line” with Jarvis’s position and
“in accordance with his performance objectives.” However, Robinson felt that
“Siemens would be paying for [Jarvis] to take his certifications elsewhere” and
sought Wagman’s advice on how to proceed. Robinson ultimately denied Jarvis’s
training request and testified at his deposition that he did so due to budgetary
concerns.
On the evening of October 2, 2008, a Thursday, Jarvis flew to Virginia to
attend a scheduled job interview with Siemens Government. Earlier that day,
Robinson called Jarvis for a telephone conference. Robinson inquired about
Jarvis’s location, and Jarvis replied that he was at his home office. However,
Robinson testified that, during the conference call, he could hear traffic noises in
the background on Jarvis’s end, from which Robinson surmised that Jarvis was not
at home. Jarvis testified that he was at home during the call, but acknowledged
5
that the window might have been open or the television might have been turned
on, rendering the background noise. Jarvis testified that the call occurred at 4:00
or 4:30 p.m. and that, shortly afterwards, he drove to the airport to catch the flight
to Virginia. Jarvis returned to Atlanta on Sunday, October 5th, and took approved
vacation leave the following week, starting Monday.
Jarvis was required to inform Robinson about his absence from the office
on Friday, October 3rd. Moreover, according to company policy, if an employee
was to have an in-person interview with another division of the company, as in
Jarvis’s case, he had to inform his manager of that interview. Jarvis never
disclosed to Robinson that he would be away from his home office the entire day
on Friday or that he was attending a job interview with Siemens. The day before,
on October 2nd, Jarvis had notified Robinson that he would “step out briefly” on
Friday around 1:00 p.m. to attend an appointment, and that otherwise he would be
available for work.
Around the time of Jarvis’s trip to Virginia and his subsequent vacation,
Robinson and Wagman decided to commence Jarvis’s termination. As part of
Siemens termination procedure, Johnston prepared a “delegation of authority”
document with input from Robinson. The document stated that Jarvis had “a
history of documented disciplinary issues and failure to meet the expectations of
6
the job as outlined by management” and that his “latest infraction occurred
October 2 and 3, 2008 when [he] took unexcused vacation days and submitted
them as regular work days” on his timecard. The document listed numerous
specific instances (51 total) of Jarvis’s poor performance, separated into five
categories: failing to timely submit status reports, missing assigned due dates,
failing to follow prescribed procedures, exhibiting deficient consulting skills, and
failing to pay attention to details. The document was then submitted for review
and signature to the general counsel and three members of executive management.
On October 14, 2008, Robinson sent a termination letter to Jarvis. The
letter provided essentially three reasons for Jarvis’s discharge: (1) unsatisfactory
performance, (2) insubordination, and (3) falsification of a timecard. The letter
contained only one specific example of poor performance, namely, failing to
complete the design specification for the customer satisfaction survey, as required
by the PIP. Regarding insubordination, the letter stated that Jarvis did not request
permission to take time off on October 2nd and 3rd. Moreover, during the
conference call on October 2nd, Jarvis lied to Robinson about being at home
because Robinson could hear traffic noises in the background of the call and later
discovered that Jarvis was en route to the airport to fly to a job interview. Finally,
the letter stated that Jarvis submitted a falsified timecard showing that he had
7
worked a full eight hours on October 2nd and 3rd. After Jarvis’s termination,
Siemens hired a Caucasian employee to replace him.
With regard to Akery’s performance, the record shows that Akery
repeatedly failed to submit weekly status reports on time, occasionally failed to
include proper content in those reports, and failed to submit other requested items.
In fact, Akery noted some deficiencies in his own performance evaluation,
including a failure to timely submit expense reports and timecards, an overdue
completion of required courses, an apparent failure to complete “assessments per
the new SP process,” and a failure to follow “escalation procedures.” Akery also
testified in his deposition that, on at least one occasion, Robinson expressed
concern about his failure to return voicemails in a timely manner and talked to him
about being proactive in discussing projects with customers. However, Robinson
never placed Akery on a PIP.
After being discharged, Jarvis filed a complaint against Siemens, alleging
racial discrimination and retaliation under Title VII and 42 U.S.C. § 1981. The
district court granted summary judgment to Siemens on all claims. The court
found that Jarvis had established a prima facie case of discrimination but that he
failed to show pretext in Siemens’s legitimate, non-discriminatory reasons for
discharging him. The court denied Jarvis’s retaliation claim on the ground that he
8
failed to establish a causal connection between his June 2008 complaints and his
termination, and also because he failed to establish pretext.
On appeal, Jarvis argues that Siemens’s proffered reasons for terminating
him were a pretext for discrimination because Siemens could not have believed
that he was guilty of the misconduct set out in his termination letter. He also
argues that Akery was guilty of similar misconduct but received more favorable
treatment, which further undermined Siemens’s reasons for the discharge. With
regard to retaliation, Jarvis contends that he suffered adverse employment actions
when Robinson placed him on the PIP, assigned him extra duties, and denied him
job-related training. He further asserts that a causal connection existed between
his complaints of discrimination and the adverse actions.
II. Analysis
We review the granting of summary judgment de novo. Robinson v. Tyson
Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010). A district court shall grant
summary judgment “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). We draw all factual inferences in a light most favorable to the
non-moving party. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008).
Nevertheless, the non-moving party cannot create a genuine issue of material fact
9
through speculation, id., or evidence that is “merely colorable” or “not
significantly probative,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50,
106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
A. Discrimination
Under the governing framework laid out in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), if a
plaintiff establishes a prima facie case of discrimination,1 “the burden of
production shifts to the employer to articulate a legitimate, nondiscriminatory
reason for its actions.” Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1174 (11th
Cir. 2010). If the employer articulates one or more reasons, “then the presumption
of discrimination is rebutted, and the burden of production shifts to the plaintiff to
offer evidence that the alleged reason of the employer is a pretext for illegal
discrimination.” Id. (quotation omitted).
1
To establish a prima facie case of employment discrimination, a plaintiff must show (1)
that he is a member of a protected class; (2) that he was qualified for his position; (3) that he was
subjected to an adverse employment action, and (4) that his employer treated “similarly situated”
employees outside his class more favorably. Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir.
2008). Where, as here, a plaintiff claims discriminatory discharge, he may also establish the
fourth element by showing that he “was replaced by someone outside the protected class.”
Cuddeback v. Fla. Bd. of Educ., 381 F.3d 1230, 1235 (11th Cir. 2004). Siemens argues that
Jarvis failed to establish the fourth element of the prima facie case because he failed to show that
Akery was a similarly situated employee. However, it is undisputed that Jarvis was replaced by a
Caucasian worker, which suffices to establish the fourth element. See Cuddeback, 381 F.3d
1235. Accordingly, we conclude that Jarvis has established a prima facie case of discrimination.
10
The plaintiff may demonstrate pretext “by revealing such weaknesses,
implausibilities, inconsistencies, incoherencies or contradictions in [the
employer’s] proffered legitimate reasons for its actions that a reasonable factfinder
could find them unworthy of credence.” Springer v. Convergys Customer Mgmt.
Group Inc., 509 F.3d 1344, 1348-49 (11th Cir. 2007) (quotation omitted). In other
words, a plaintiff must produce “sufficient evidence to allow a rational trier of fact
to disbelieve the legitimate reason proffered by the employer, which permits, but
does not compel, the trier of fact to find illegal discrimination.” Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir. 2004). Evidence of pretext may
include the same evidence offered to establish the prima facie claim. Id.
In this case, Siemens proffered three legitimate, non-discriminatory reasons
for terminating Jarvis: (1) poor job performance, (2) insubordination, and (3) the
knowing falsification of his timecard. Jarvis challenges the first reason by arguing
that no unresolved performance issues remained at the time of his termination, as
he had completed the design specification for the customer satisfaction survey by
July 14, 2008. Jarvis’s argument fails in two respects. First, while Jarvis did
submit a design specification for the customer satisfaction survey on July 14th,
and Robinson acknowledged as much in the August PIP review, there is no
evidence that Jarvis ever completed the revised design specification as requested
11
by Robinson. More importantly, a failure to complete the design specification was
not the only problem with Jarvis’s performance. The delegation-of-authority
document listed numerous specific performance deficiencies which Jarvis failed to
rebut. For example, Jarvis exhibited problems with his consulting skills as late as
September 22, 2008, almost a month after his latest PIP review at the end of
August. Thus, Jarvis failed to show that poor performance was not a real reason
for his termination.
Jarvis also failed to rebut Siemens’s second reason for discharging him, that
is, insubordination. The termination letter listed two instances of insubordination:
lying to Robinson about being in the office on October 2nd and failing to inform
Robinson of his absence on October 2nd and 3rd. Jarvis testified at his deposition
that he was, in fact, at his home office during the October 2nd conference call.
However, to show pretext, it is not enough for Jarvis to show that he was actually
at home, as long as Robinson subjectively believed that Jarvis was lying about
being at home. See Holifield v. Reno, 115 F.3d 1555, 1565 (11th Cir. 1997) (“The
inquiry into pretext centers upon the employer’s beliefs, and not the employee’s
own perceptions of his performance.”). Robinson believed that Jarvis was lying in
part because traffic noises were audible in the background of the call. At his own
deposition, Jarvis acknowledged that Robinson could have heard the television or
12
outside noise. Thus, Jarvis failed to show that Robinson did not actually believe
that Jarvis was lying to him. See Holifield, 115 F.3d at 1565. Furthermore,
regarding unauthorized absences, even if Jarvis left for the job interview after
working hours on October 2nd, he testified that he failed to inform Robinson of
his absence from the home office on October 3rd, despite being required to do so.
In his email to Robinson on October 2nd, Jarvis only stated that he would “step
out briefly” for a 1:00 p.m. appointment, not that he would be absent for the entire
day. Thus, Jarvis has failed to show that Siemens’s second reason for terminating
him was false.
Because Jarvis failed to rebut two of the reasons that Siemens proffered for
his termination, we need not decide whether a genuine issue of fact exists
regarding the third reason—timecard falsification. A showing that Siemens
fabricated this reason for firing Jarvis would not overcome summary judgment.
See Crawford v. City of Fairburn, 482 F.3d 1305, 1308 (11th Cir. 2007) (“If the
employer proffers more than one legitimate, nondiscriminatory reason, the
plaintiff must rebut each of the reasons to survive a motion for summary
judgment.”).
Nevertheless, even where a plaintiff fails to rebut all of the employer’s
proffered reasons for taking the adverse action, he may still establish pretext by
13
showing that a similarly situated coworker was treated more favorably. See Rioux
v. City of Atlanta, 520 F.3d 1269, 1279-80 (11th Cir. 2008); Rojas v. Florida, 285
F.3d 1339, 1343-44 (11th Cir. 2002). To establish that a comparator was similarly
situated, the plaintiff must show that “the quantity and quality” of the
comparator’s misconduct was “nearly identical” to his own. Rioux, 520 F.3d at
1280.
In this case, Jarvis’s alleged comparator was Akery.2 The record shows that
Akery exhibited some of the same problems as Jarvis, such as failing to timely
submit weekly status reports and failing to complete assigned work projects.
However, the record also shows several significant deficiencies in Jarvis’s
performance that are not seen with respect to Akery. First, as mentioned above,
Jarvis exhibited problems with consulting skills, and network consulting was the
“most critical” aspect of Jarvis’s job. Second, unlike Akery, Jarvis was placed on
a formal PIP but repeatedly failed to comply with all of the PIP requirements.
Finally, as discussed above, Jarvis failed to inform Robinson that he would be
taking time off on October 3, 2008, and Robinson perceived that Jarvis lied to him
2
In a footnote of his brief, Jarvis states that he was similarly situated to two other
employees besides Akery for purposes of timecard and attendance procedures. However, he
makes no further arguments in this regard and, thus, has abandoned the issue. See Davis v. Coca-
Cola Bottling Co. Consol., 516 F.3d 955, 972 (11th Cir. 2008) (“[A]n argument not included in
the appellant’s opening brief is deemed abandoned.”).
14
about being in the office on October 2nd. Thus, we cannot say that Akery’s
misconduct was “nearly identical” to Jarvis’s. See Rioux, 520 F.3d at 1280 (“The
standard for similar conduct is a fairly rigorous one.”).
In sum, Jarvis has failed to show that a reasonable factfinder could find all
of Siemens’s legitimate, non-discriminatory reasons for his termination to be
“unworthy of credence.” See Springer, 509 F.3d at 1348-49. Moreover, Jarvis has
not shown that Akery was guilty of nearly identical misconduct but was
disciplined differently. See Rioux, 520 F.3d at 1280. Thus, Jarvis failed to
establish that Siemens’s reasons for discharging him were a pretext for
discrimination. Accordingly, we affirm the district court’s grant of summary
judgment to Siemens on Jarvis’s discrimination claim.3
B. Retaliation
To establish a prima facie case of retaliation under Title VII, a plaintiff may
show that (1) he engaged in statutorily protected activity, (2) he suffered a
“materially adverse action,” and (3) there was a causal link between the two
events. Butler v. Ala. Dep’t of Transp., 536 F.3d 1209, 1212-13 (11th Cir. 2008).
3
We acknowledge that satisfying the elements of the McDonnell Douglas framework is
not “the sine qua non for a plaintiff to survive a summary judgment motion.” Smith v. Lockheed-
Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). “Rather, the plaintiff will always survive
summary judgment if he presents circumstantial evidence that creates a triable issue concerning
the employer’s discriminatory intent.” Id. However, in this case, Jarvis presented no such
evidence of discriminatory intent.
15
A “materially adverse action” in the context of a retaliation claim means that the
action “might have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Crawford, 529 F.3d at 974 (quoting Burlington
Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 2415, 165
L.Ed.2d 245 (2006)). As with claims of discrimination, we apply the McDonnell
Douglas burden-shifting analysis to retaliation claims. Brown, 597 F.3d at
1181-82.
Jarvis argues that his placement on the PIP, being assigned extra duties, and
denial of training constituted adverse actions. We disagree. With respect to being
placed on the PIP, Jarvis asserts that it hampered his ability to apply for jobs
within the company. However, Siemens’s policy allowed, but did not require, the
PIP to affect an employee’s eligibility for a transfer, and nothing in the language
of Jarvis’s PIP limited his employment opportunities within Siemens. In fact,
while on the PIP, Jarvis sought and received assistance from the human resources
department in applying for another Siemens position. As to extra duties, Jarvis
testified at his deposition that Robinson did not make him do too much work, that
being assigned extra tasks may have been a compliment, and that Robinson asked
him to perform those tasks because Jarvis was more competent than others.
Finally, regarding the denial of training, nothing in the record shows how this
16
action adversely affected Jarvis. Robinson’s statement in an email to Wagman
that the training would be useful to Jarvis does not, by itself, establish that the
denial of such training “might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” See Crawford, 529 F.3d at 974.
Accordingly, only Jarvis’s termination qualified as an adverse action.
In this light, we need not decide whether any causal connection existed
between Jarvis’s June 2008 complaints and his termination in October 2008. Even
if Jarvis had established a prima facie case of retaliation, he failed to show that
Siemens’s proffered legitimate reasons for discharging him were pretextual, as
discussed above. See Butler, 536 F.3d at 1212-13; Brown, 597 F.3d at 1181-82.
Accordingly, we affirm the district court’s grant of summary judgment on Jarvis’s
retaliation claim.4
AFFIRMED.
4
We affirm Jarvis’s 42 U.S.C. § 1981 claims for the same reasons as his Title VII
claims. See Brown, 597 F.3d at 1174 n.6 (stating that the analysis of an employment
discrimination claim under § 1981 “mirrors that under Title VII”).
17
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59 F.3d 173NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.
Keith LARANCE, Petitioner-Appellant,v.Charles E. WRIGHT, Respondent-Appellee.
No. 94-1613.
United States Court of Appeals, Seventh Circuit.
Submitted June 16, 1995.*Decided June 26, 1995.
Before Bauer, Easterbrook and Manion, Circuit JUdges.
ORDER
1
The Conduct Adjustment Board (CAB) at Westville Correctional Center found inmate Keith LaRance guilty of battery and ordered LaRance to be segregated for three years and to reduce LaRance's credit class from class II to class III. LaRance appealed this decision to the prison superintendent and then to the Indiana Department of Correction. Each appeal affirmed the CAB's order. LaRance then brought this petition for habeas corpus relief pursuant to 28 U.S.C. Sec. 2254 arguing (a) the CAB's verdict was not supported Lane, 939 F.2d 409, 411 (7th Cir. 1991), cert. denied sub. nom., Farrel v. McGinnis, 502 U.S. 944 (1991). Furthermore, LaRance failed to demonstrate adequate cause to excuse his failure to raise the claim and actual prejudice resulting from that default. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 2506 (1977).
AFFIRMED
*
After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed. R. App. P. 34(a); Cir. R. 34(f). No such statement having been filed, the appeal is submitted on the briefs and record
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102 B.R. 143 (1988)
In re Robert G. DITTMER, Luella Dittmer, Debtors.
Steven E. SIEBERS, Trustee, Plaintiff,
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, Robert G. Dittmer and Luella Dittmer, Defendants.
Bankruptcy No. 87-70781, Adv. No. 87-7271.
United States Bankruptcy Court, C.D. Illinois.
May 12, 1988.
*144 Steven E. Siebers, Quincy, Ill., trustee.
Thomas W. O'Neal, Carthage, Ill., Hubert Staff, Quincy, Ill., for debtor.
Dennis W. Gorman, Quincy, Ill., for Federal Deposit Ins. Corp.
OPINION
LARRY L. LESSEN, Chief Judge.
This matter is before the Court on the complaint of the Trustee objecting to the secured claim of the FDIC. The Trustee, the Debtors and the FDIC have filed motions for summary judgment.
The material facts, which are undisputed, are as follows:
The Debtor, Robert G. Dittmer, executed security agreements dated April 14, 1982, and April 30, 1982, in favor of the Mendon State Bank, pledging as security his equipment, livestock, crops, feed, seed, fertilizer and other supplies then owned or thereafter acquired. A financing statement reflecting the Bank's security interest was recorded on April 19, 1982, with the Recorder of Deeds for Adams County, Illinois.
On August 20, 1986, the Commissioner of Banks for the State of Illinois found the Bank to be insolvent and assumed possession and control pursuant to Ill.Rev.Stat. 1985, Ch. 17, para. 361-365. After posting notice of the Bank's failure at the Bank, the Commissioner appointed the FDIC as Receiver. From August 20, 1986, through November 11, 1986, notice that the Bank had been placed in receivership and the FDIC had been appointed receiver was published in the local weekly newspaper.
The FDIC as Receiver filed a petition in State Court seeking approval of a proposed sale of certain assets and transfer of liabilities formerly owned by the Bank. The assuming bank named in the petition was the First Midwest Bank/Quincy, National Association. The petition further proposed that any remaining assets not purchased by First Midwest Bank be sold to FDIC in its corporate capacity for a price of $7,067,000.00.
An Order was entered by the State Court on August 20, 1986, approving the petition filed by the FDIC authorizing the purchase and assumption by First Midwest Bank of the proposed assets and liabilities and the sale of the remaining assets, including the Debtor's loan, to the FDIC in its corporate capacity.
A written agreement was executed between FDIC as Receiver and FDIC in its corporate capacity to transfer those assets of the Bank not purchased by First Midwest Bank. The agreement provided that the FDIC as Receiver was to prepare a schedule of the assets subject to the agreement, to be incorporated, once completed, in the agreement.
On December 29, 1986, a continuation statement naming Robert G. Dittmer as *145 Debtor and "FDIC liquidator of Mendon State Bank" as secured party was filed with the Adams County Recorder.
On March 26, 1987, a continuation statement naming Robert G. Dittmer as Debtor and "Federal Deposit Insurance (sic) as Receiver for Mendon State Bank" as secured party was filed with the Adams County Recorder.
On May 4, 1987, the Debtor filed a petition for bankruptcy under Chapter 12 of the Bankruptcy Code.
On July 13, 1987, the FDIC filed a proof of claim in the amount of $179,939.30 for the balance due on the Debtor's loan, claiming a security interest in the Debtor's "equipment, livestock, crops and feeds as more fully described in the attached loan documentation."
The Trustee contends that the FDIC's security interest lapsed as a result of the FDIC's failure to comply with Sec. 9-403(3) of the Illinois Commercial Code, the provision governing the filing of a continuation statement, because no valid continuation statement was filed by April 19, 1987, five years from the date the original financing statement was filed.
Under Illinois law, a financing statement is effective for five years from the date of filing. Ill.Rev.Stat.1985, Ch. 26, Sec. 9-403(2). Section 9-403(3) provides that a continuation statement filed within six months prior to the expiration of the financing statement operates to continue the statement in force and effect for another five years. A continuation statement signed by a person other than the secured party of record must be accompanied by a separate written statement of assignment signed by the secured party of record and setting forth the name of the secured party of record and the debtor, the file number and date of filing of the financing statement, the name and address of the assignee, and a description of the collateral assigned. Ill.Rev.Stat.1985, Ch. 26, Sec. 9-403(3) and 405(2).
The Trustee's position is that the FDIC, having failed to attach a statement of assignment to the continuation statements it filed, has not perfected its security interest. The FDIC maintains that it has an effective security interest, advancing four arguments: 1) the FDIC obtained the status of secured party of record for purposes of Sec. 9-403(3) and 9-405(2) as a consequence of having been appointed Receiver; 2) the FDIC need not comply with Sec. 9-403(3) and 9-405(2) to continue its perfected security interest; 3) the FDIC complied with the spirit of Sec. 9-403(3) and 9-405(2); and 4) strict compliance with Sec. 9-403(3) and 9-405(2) would have been impossible because the transfer from Mendon State Bank to the FDIC was not a consensual, voluntary transfer.
The Court first addresses the question of whether the FDIC had to comply with Sec. 9-403(3) in order to continue its perfected security interest as against the Trustee in bankruptcy. This question has two subparts: 1) is the filing of a written statement of assignment by a secured party other than the secured party of record a condition precedent to a continuing perfected status? 2) if so, is the FDIC a secured party other than the secured party of record?
The Court finds that the requirement set forth in Sec. 9-403(3) that an assignee file a statement of assignment together with a continuation statement is a condition precedent to preserving perfected status. The purpose underlying this requirement is "to ensure that the authority of a person (other than an existing secured party of record) filing a continuation statement would be clear from the record. See Sec. 9-405 and Illinois Code Comments thereto, and cf. Illinois Code Comments to Sec. 9-404(1) and 9-406." Illinois Code Comment to Sec. 9-403(3). Secs. 9-404(1) and 9-406 parallel 9-403(3), requiring the filing of a statement of assignment with a termination statement and a statement of release, respectively, if filed by someone other than the secured party of record. It is true that if a security interest perfected by filing is assigned, it remains perfected against the debtor and his creditors or transferees even though no statement of assignment is filed. See Ill.Rev.Stat.1985, Ch. 26, Sec. 9-302(2) and 9-405. However, *146 only the secured party of record can effectively file a continuation statement, release, termination statement or amendment. See Hawkland, Lord & Lewis UCC Series Sec. 9-405:02 (Art. 9). By filing a written statement of assignment with any of these filings, an assignee in effect becomes the secured party of record. Ill.Rev. Stat., Ch. 26, Sec. 9-405. Without filing such a statement establishing that he is the secured party of record, however, an assignee cannot file an effective continuation statement. See Hawkland, Lord & Lewis, supra. This is a mandatory provision. Thus, unless the FDIC can establish that it somehow became the secured party of record without filing a written statement of assignment, the continuation statement it filed is ineffective to continue its perfected status beyond the expiration of the original financing statement.
The FDIC maintains that it "stepped into the shoes" of the Bank when it was appointed Receiver, that this transfer was non-consensual and that compliance with Sec. 9-403(3) was not necessary and in fact would have been impossible. It further maintains that by virtue of this transfer the FDIC became the secured party of record, obviating any necessity to attach a written statement of assignment to the continuation statement it filed with the Adams County Recorder.
Without ruling on whether the FDIC as Receiver became the secured party of record by stepping into the shoes of the Bank, the Court finds that the FDIC in its corporate capacity failed to perfect its security interest by filing the requisite statement of assignment with its continuation statement.[1] The FDIC itself asserted in its petition to sell assets from itself as Receiver to itself as federal insurer of deposits that it operates in two separate, legally distinct capacities:
In the context of a closed bank, the deposits of which are insured by the Federal Deposit Insurance Corporation, the FDIC operates in two capacities. Pursuant to state law it operates as the Receiver of such bank. It simultaneously operates as the federal insurer of the Bank's deposits. Consequently, the courts have specifically held that these capacities are separate and legally distinct. See e.g., Federal Deposit Insurance Corporation v. Ashley, 585 F.2d 157 (6th Cir.1978); Federal Deposit Insurance Corporation v. Godshall, 558 F.2d 220 (4th Cir.1977); Federal Deposit Insurance Corporation v. Glickman, 450 F.2d 416 (9th Cir.1971); Freeling v. Sebring, 296 F.2d 244 (10th Cir.1961). So distinct are these capacities that federal statutes recognize the right of the Receiver to contract with the Corporation, 12 U.S.C. Section 1823(c)(2)(A) and (d). Brief in Support of Petition approving sale (filed with Adams County Circuit Court August 20, 1986, made part of Bankruptcy Court record) at 2.
A written contract of sale supported the transfer of the assets from the FDIC as Receiver to the FDIC in its corporate capacity. The contract was signed by two different people, one on behalf of the FDIC as Receiver and the other on behalf of the FDIC in its corporate capacity. Consideration of $7,067,000.00 was paid. The contract provided for the incorporation of a schedule of the assets covered, once completed by the Receiver. The FDIC could have attached this document reflecting the ultimate disposition of these assets including the Debtor's loan to the continuation statement filed. That would have been simple enough, and would have constituted substantial compliance with Sec. 9-403(3). Or the same two parties who signed the contract of sale could have executed a statement of assignment, attaching the schedule of assets to show what was covered. The Court is not charged with devising a method by which the FDIC could comply with Sec. 9-403(3). These options are mentioned to illustrate that compliance could have been effected.
*147 In a case involving the filing of a second financing statement, alleged to constitute substantial compliance with the requirement to file a continuation statement, an Ohio Bankruptcy Court held that the "second financing statement fails to include essential statutory elements of a continuation statement. Such disregard of a positive legislative enactment prescribing the conditions necessary for the preservation of a statutory lien cannot be overlooked." In re Hays, 47 B.R. 546 (Bankr.N.D.Ohio 1985), citing Eastern Indiana Production Credit Association v. Farmers State Bank, 31 Ohio App.2d 252, 287 N.E.2d 824 (1972). While the issue here is slightly different, the same reasoning applies the positive legislative enactment requiring attachment of a written statement of assignment as an essential element of a continuation statement filed by a party other than the secured party of record cannot be overlooked. Even assuming, arguendo, that the FDIC as receiver became the secured party of record by being appointed receiver, the FDIC in its corporate capacity did not automatically acquire that status. It acted independently, executing a contract with the FDIC as receiver for the purchase of certain assets. The FDIC in its corporate capacity never established of record that it ultimately took ownership of those assets.
Thus, the FDIC in its corporate capacity failed to establish itself as secured party of record for purposes of filing a continuation statement. Because it filed as a party other than the secured party of record, the FDIC was required to attach a statement of assignment to the continuation statement filed. This was not done. Therefore, the continuation statements upon which the FDIC relies are ineffective to continue its perfected status. Summary judgment is granted in favor of the Trustee.
This Opinion is to serve as Findings of Fact and Conclusions of Law pursuant to Rule 7052 of the Rules of Bankruptcy Procedure.
NOTES
[1] In fact, the record reflects that the FDIC in its corporate capacity never filed a continuation statement at all. The Court does not purport to rule, however, on whether, had a statement of assignment been attached as required, the continuation statement filed would have been effective.
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United States Court of Appeals
Fifth Circuit
F I L E D
October 31, 2006
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_____________________
No. 06-20358
(Summary Calendar)
_____________________
IN THE MATTER OF: ROBERT W. MOERS,
Debtor
- - - - - - - - - -
ROBERT W. MOERS,
Appellant
versus
NANCY PREMAZON,
Appellee
---------------------
Appeal from the United States District Court
for the Southern District of Texas
(4:05-CV-2107)
---------------------
Before SMITH, WIENER and OWEN, Circuit Judges.
PER CURIAM:*
Debtor-Appellant Robert W. Moers seeks reversal of the
Bankruptcy Court’s summary judgment in an adversary proceeding
brought by his ex-wife, Appellee Nancy Premazon, in which she
sought non-discharge of the Debtor’s state court judgment debt to
*
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.
Premazon for attorneys’ fees incurred and awarded in connection
with these parties’ child custody disputes. Moers contends on
appeal that the Bankruptcy Court erred (and thus too the district
court sitting in appeal by affirming the Bankruptcy Court) in
ruling that —— irrespective of the classification for purposes of
Texas law by the family court and the state appellate court
regarding the nature of these attorneys’ fees —— under federal
bankruptcy law, the entire amount of the attorneys’ fees for which
Moers is indebted by judgment to Premazon is non-dischargeable.
Both parties submitted to this court that, given the
essentially undisputed facts and the entirely legal nature of the
issue presented by this appeal, oral argument would not aid in our
disposition of the case. We agree. Having now carefully reviewed
the briefs of the parties and the record on appeal, including,
without limitation, the exhaustive explication of the case by the
Bankruptcy Court in its Memorandum of Decision dated April 1, 2004,
we are convinced —— as was the district court —— that the
Bankruptcy Court ruled correctly when it granted partial summary
judgment that $120,000 in attorneys’ fees, plus interest, owed by
Moers to Premazon is non-dischargeable, subject to any offset Moers
may establish, and denying Premazon’s $45,000 conditional award of
attorneys’ fees; at the same time denying Moers’s motion for
summary judgment. Accordingly, for the reasons set forth in the
Bankruptcy Court’s Memorandum of Decision, that court’s partial
summary judgment is, in all respects,
2
AFFIRMED.
3
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 13-022V
(Not to be published)
*************************
*
AUSTIN DIXON, *
* Filed: November 23, 2015
Petitioner, *
*
v. * Hepatitis A (“hep A”) Vaccine;
* Meningococcal (“Menactra”) Vaccine;
SECRETARY OF HEALTH AND * Guillain-Barré Syndrome (“GBS”);
HUMAN SERVICES, * Attorney’s Fees and Costs
*
Respondent. *
*
*************************
Ronald Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for Petitioner.
Ryan Pyles, U.S. Dep’t of Justice, Washington, D.C., for Respondent.
DECISION GRANTING ATTORNEY’S FEES AND COSTS AWARD1
On January 10, 2013, Tina Dixon and Jerry Dixon, as parents of their minor child A.D.,
filed a petition seeking compensation under the National Vaccine Injury Compensation Program.2
Thereafter, A.D. reached the age of majority and became the formal Petitioner in this case.
Petitioner alleges that he suffered from Guillain-Barré syndrome as a result of receiving the
hepatitis A and meningococcal vaccinations on February 12, 2010.
1
Because this decision contains a reasoned explanation for my action in this case, it will be posted on the website of
the United States Court of Federal Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347,
§ 205, 116 Stat. 2899, 2913 (Dec. 17, 2002 (current version at 44 U.S.C. § 3501 (2014)). As provided by 42 U.S.C. §
300aa-12(d)(4)(B), however, the parties may object to the inclusion of certain kinds of confidential information. To
do so, Vaccine Rule 18(b) provides that each party has 14 days within which to request redaction “of any information
furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the decision will be available to the public. Id.
2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat.
3755 (codified as amended, 42 U.S.C.A. ' 300aa-10 – 34 (2012)) [hereinafter “Vaccine Act” or “the Act”]. Individual
sections references hereafter will be to ' 300aa of the Act.
Respondent conceded entitlement in the matter, and then the parties filed a stipulation to
damages, which was reduced to a judgment on April 17, 2015 (ECF No. 66). Thereafter
Petitioner’s counsel filed an application for fees and costs, amending that application on October
13, 2015 (ECF No. 72).3 Petitioner requests an award of fees and costs for his counsel in this case
– the law firm of Conway, Homer & Chin-Caplan, PC [the “Homer Firm”] – in the total amount
of $51,696.22. (ECF No. 72). This sum reflects attorney’s fees of $42,844.00, plus costs of
$8,852.22. ECF No. 72, Tabs A and B. In addition, pursuant to General Order No. 9, Petitioner
has filed a signed notice (ECF No. 70) stating that he did not personally incur any out-of-pocket
litigation expenses in proceeding on the petition.
Respondent filed a document responding to the original fees application on October 2, 2015
(ECF No. 71). In it, she incorporated by reference objections she has raised in parallel cases4 also
featuring disputes about the proper hourly rate to be awarded the Homer Firm, but deferred to my
discretion the resolution of the present fees application.
As Respondent is aware, in a recent fees decision, McCulloch v. Sec’y of Health & Human
Servs., No. 09-293, ECF No. 148 (Fed. Cl. Spec. Mstr. Sept. 1, 2015), reconsid. den’d, ECF No.
151 (Fed. Cl. Spec. Mstr. Sept. 21, 2015), Special Master Gowen extensively considered
appropriate hourly rates for the Homer Firm attorneys in Vaccine Program cases, based on (i) the
prevailing rate for comparable legal work within the forum of Washington, D.C.; (ii) the prevailing
rate for cases in the Vaccine Program; (iii) the experience of the attorney both generally and within
the Vaccine Program more specifically; (iv) the quality of their work; and (v) their reputation in
the legal community and the community at large. Although (by invoking arguments made in a
different case) Respondent lodges some objection to the hourly rates requested herein, in light of
McCulloch she declines to further litigate the matter. Respondent further indicated that “nothing
contained in this response should be construed as an admission, concession, or waiver by
respondent as to any of the matters raised by the instant Fee Application, including but not limited
to, the hourly rates requested, the number of hours requested, and other litigation related costs”
3
Petitioner’s original fees and costs application was filed on September 18, 2015 (ECF No. 69). Petitioner filed an
amended version of the application in October in order to take into account relevant legal developments (as discussed
herein in more detail) regarding the proper rates to be paid to the attorneys in this case. It is the amended version that
fully states Petitioner’s fees and costs request.
4
In particular, Respondent references arguments made in the separate fees dispute in the case Dolloff v. Sec’y of
Health & Human Servs., No. 13-731V. In Dolloff, I considered the rates requested by the Homer Firm, and despite
Respondent’s objections, accepted the reasoning and rates established in a different matter. Dolloff v. Sec’y of Health
& Human Servs., No. 13-731, slip. op., at *3 (Fed. Cl. Spec. Mstr. Nov. 23, 2015) (citing McCulloch v. Sec’y of Health
& Human Servs., No. 09-293V, 2015 WL 5634323 (Fed. Cl. Spec Mstr. Sept. 1, 2015), reconsid. den’d, 2015 WL
6181910 (Fed. Cl. Spec. Mstr. Sept. 21, 2015)).
2
(Id. at 2, fn. 1), but did not actually raise any objection in her response to the number of hours
billed by petitioner’s counsel or to any of the costs attributed to either petitioner or her counsel.5
The Vaccine Act permits an award of reasonable attorney’s fees and costs to prevailing
petitioners. Section 300 aa-15(e). I find the reasoning of McCulloch persuasive as to the proper
hourly rates to be applied to the work of Homer Firm attorneys, and see no independent reason in
the file to limit the award, either because the hours expended were unreasonable or on any other
basis. I approve the requested amount for attorney’s fees and costs as reasonable.6
Accordingly, an award should be made in the form of a check in the amount of $51,696.22,
representing attorney’s fees and costs, payable jointly to Petitioner and Petitioner’s counsel,
Conway, Homer & Chin-Caplan, PC. In the absence of a motion for review filed pursuant to RCFC
Appendix B, the clerk of the court SHALL ENTER JUDGMENT in accordance with the terms
of this decision.7
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
5
Respondent raised specific objections in Dolloff. Dolloff, ECF No. 35. While Respondent references those arguments,
she does not indicate any specific reason for cutting the hours in this case. I am not obligated to engage in a line-by-
line analysis of the billing record, and do not see any reason to reduce the number of hours billed in this case. Saxton
v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521-22 (Fed. Cir. 1993) (approving the special master's elimination
of fifty percent of the hours claimed).
6
I have in other cases reduced hours billed for fees related to fees disputes given the overlap between this case and
the similarly-situated case of McCulloch, among others. However, the total time billed for litigating this fees dispute
is .9 hours. Given the modest amount billed for this issue (less than one hour), I will allow Petitioner’s counsel to
recover for this work.
7
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their
right to seek review.
3
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[Cite as Reister v. Gardner, 2019-Ohio-4720.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
JOHN J. REISTER, RECEIVER ON :
BEHALF OF CERTIFIED STEEL STUD
ASSOCIATION, INC., : CASE NOS. CA2019-01-010
CA2019-01-011
Appellant and Cross-Appellee, : CA2019-01-020
: OPINION
- vs - 11/18/2019
:
WILLIAM A. GARDNER, :
Appellee and Cross-Appellant, :
- and - :
EDWARD R. SLISH, :
Appellee, :
:
- vs -
:
CLARKWESTERN DIETRICH BUILDING :
SYSTEMS, LLC dba CLARKDIETRICH,
:
Appellant and Cross-Appellee,
:
- vs - :
:
CERTIFIED STEEL STUD
ASSOCIATION, INC., :
Intervenor-Plaintiff. :
Butler CA2019-01-010
CA2019-01-011
CA2019-01-020
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CV2018-02-0442
Millikin & Fitton Law Firm, Steven A. Tooman, Heather Sanderson Lewis, 9032 Union
Centre Boulevard, Suite 200, West Chester, Ohio 45069; Helmer, Martins, Rice & Popham
Co., L.P.A., James B. Helmer, Jr., Robert M. Rice, Jennifer L. Lambert, B. Nathaniel
Garrett, for appellant and cross-appellee, John J. Reister, Receiver
Taft, Stettinius & Hollister LLP, Daniel R. Warncke, Aaron M. Herzig, Donnell J. Bell, 425
Walnut Street, Suite 1800, Cincinnati, Ohio 45202; Fox Rothschild LLP, Jeffrey M. Pollock,
Robert J. Rohrberger, Allison L. Hollows, 997 Lenox Drive, Lawrenceville, New Jersey,
08648, for appellee and cross-appellant, William A. Gardner
Dinsmore & Shohl LLP, Peter J. Georgiton, Justin M. Burns, 191 W. Nationwide Boulevard,
Suite 300, Columbus, Ohio 43215; Chamberlain Hrdlicka White Williams & Aughtry, Scott
M. Ratchick, John C. Guin, 191 Peachtree Street, NE, 46th Floor, Atlanta, Georgia 30303,
for appellee, Edward R. Slish
Frost Brown Todd LLC, Matthew C. Blickensderfer, 3300 Great American Tower, 301 East
Fourth Street, Cincinnati, Ohio 45202; Cohen & Grigsby, P.C., Anthony Cillo, Fridrikh V.
Shrayber, 625 Liberty Avenue, Pittsburgh, Pennsylvania, 15222, for appellant and cross-
appellee, Clarkwestern Dietrich Building Systems LLC
Faruki Ireland Cox Rhinehart & Dusing PLL, D. Jeffrey Ireland, Stephen A. Weigand, Jason
W. Palmer, 201 East Fifth Street, Suite 1420, Cincinnati, Ohio 45202, for Intervenor-
Plaintiff, Certifed Steel Stud Association, Inc.
RINGLAND, P.J.
{¶ 1} Appellants, Clarkwestern Dietrich Building Systems LLC, DBA ClarkDietrich,
and John Reister ("the Receiver"), appeal the decision of the Butler County Court of
Common Pleas, granting judgment on the pleadings in favor of certain members of the
board of directors for the Certified Steel Stud Association, Inc., ("the Association").1 For the
1. Henri Jung, the director associated with Phillips Manufacturing was initially named a party to this action
and subsequent appeal. However, all claims against Jung have since been settled or otherwise resolved.
Reister v. Gardner, 12th Dist. Butler No. CA2019-01-010 (Entry Granting Motion to Dismiss Against Appellee
Henri Jung) (August 15, 2019). As such, we have removed reference to the assignments of error relating to
Jung.
-2-
Butler CA2019-01-010
CA2019-01-011
CA2019-01-020
reasons detailed below, we affirm.
{¶ 2} The underlying issues in this appeal have previously been before this court.
Clarkwestern Dietrich Bldg. Sys., L.L.C. v. Certified Steel Stud Assn., Inc., 12th Dist. Butler
No. CA2016-06-113, 2017-Ohio-2713; Clarkwestern Dietrich Bldg. Sys., L.L.C. v. Certified
Steel Stud Assn., Inc., 12th Dist. Butler No. CA2017-04-040, 2017-Ohio-8129.2
{¶ 3} The Association is a nonprofit corporation and trade association in the steel
stud industry organized under Delaware law. The founding members of the Association,
who were also codefendants in the underlying action, are Marino/Ware Industries, Inc.
("Ware"), California Expanded Metal Products Company ("CEMCO"), and Telling
Industries, LLC ("Telling").
{¶ 4} At the time of the events giving rise to the underlying action, the Association's
Board was comprised of one employee from each of its founding corporate members, as
well as a fourth director from a fourth Corporation that joined the Association after its
founding, Phillips Manufacturing ("Phillips").
{¶ 5} In pertinent part, appellees William Gardner and Edward Slish were members
of the Association's Board at all times relevant to this action. According to the complaint in
the underlying matter, the Association released a publication allegedly making derogatory
assertions that ClarkDietrich's products did not comply with various codes and regulations.
This publication was disseminated by the Association to 9,560 customers and others
involved in the nonstructural steel framing industry. After the publication was distributed,
ClarkDietrich alleged that it lost projects and millions of dollars in revenue.
2. Another appeal involving the Ohio Valentine Act is not directly relevant to the instant appeal involving the
jury verdict. Clarkwestern Dietrich Bldg. Sys., L.L.C. v. Certified Steel Stud Assn., Inc., 12th Dist. Butler No.
CA2016-05-098, 2017-Ohio-1091.
-3-
Butler CA2019-01-010
CA2019-01-011
CA2019-01-020
{¶ 6} ClarkDietrich brought claims against the Association for violation of the Ohio
Deceptive Trade Practices Act, unfair competition, disparagement, defamation, and civil
conspiracy. ClarkDietrich asserted these claims against the Association, and three other
defendants who were later dismissed.
{¶ 7} On September 15, 2015, the matter proceeded to an 11-week jury trial. On
the eve of closing, ClarkDietrich offered to dismiss its claims against the Association with
prejudice. The Association refused the settlement offer. Next, ClarkDietrich filed a motion
to dismiss its claims against the Association with prejudice, pursuant to Civ.R. 41(A)(2),
which the Association opposed. The trial court denied ClarkDietrich's motion to dismiss
and the matter proceeded to closing argument.
{¶ 8} On November 16, 2015, the jury returned a unanimous verdict in favor of
ClarkDietrich, awarding the company $49.5 million, $43 million of which was apportioned to
the Association. The trial court subsequently entered a judgment against the Association
in the amount of $43 million.
{¶ 9} The Association stipulated it has insufficient tangible assets to satisfy the
judgment. ClarkDietrich filed a motion for assignment of the Association's possible breach
of fiduciary duty claim against its officers, directors, and agents, based on their decision to
decline ClarkDietrich's offer to dismiss by stipulation, oppose ClarkDietrich's motion to
dismiss, and proceed with the case through the jury determination. The trial court held a
hearing on the matter and, at the suggestion of the trial court, ClarkDietrich withdrew its
motion for assignment and filed a motion for the appointment of a receiver.
{¶ 10} On March 29, 2017, over the Association's objection, the trial court appointed
a receiver "to investigate and, if he determines it to be appropriate, bring, prosecute, and
manage claims against [the Association's] officers, directors and agents arising from the
-4-
Butler CA2019-01-010
CA2019-01-011
CA2019-01-020
decisions to reject ClarkDietrich's settlement offer and oppose ClarkDietrich's motion to
dismiss."
{¶ 11} The instant appeal involves the action for damages and declaratory judgment
brought by the Receiver on behalf of the Association against the individual directors
Gardner and Slish.3 The Receiver alleges Gardner and Slish breached their fiduciary duties
to the Association causing the Association to lose a $43 million jury verdict. Reister claims
that by either accepting the offer to dismiss or by not opposing the motion to dismiss,
Gardner and Slish would have eliminated any chance that the Association would lose,
thereby ensuring that the Association would be insulated from further litigation on the same
claims. In rejecting the offer and opposing the motion to dismiss, the Receiver claims
Gardner and Slish caused the Association professional and financial ruin.
{¶ 12} In Count One of his complaint, the Receiver sought damages against Gardner
and Slish for breach of fiduciary duties arising from their roles as directors of the
Association. In Count Two, the Receiver sought declaratory judgment to prevent Gardner
and Slish from claiming the protections of the business judgment rule.
{¶ 13} Gardner and Slish moved to dismiss, or in the alternative, for judgment on the
pleadings. Both Gardner and Slish argued that the litigation privilege rule and the business
judgment rule shield them from any liability. The Receiver opposed the motions, arguing
that any privilege related to the underlying proceedings applied only to "defamatory
comments" made before or during judicial proceedings and did not shield them from their
obligations as directors to protect the corporation.
{¶ 14} In its judgment entry, the trial court found that both Gardner and Slish were
3. ClarkDietrich was designated an interested party and is participating in this appeal.
-5-
Butler CA2019-01-010
CA2019-01-011
CA2019-01-020
protected from liability by application of the litigation privilege doctrine and granted their
motions for judgment on the pleadings. In so doing, the trial court found "even when
assuming the facts in the complaint to be true, and drawing all reasonable inferences in
favor of the Receiver, as the court must, [Gardner and Slish] are entitled to judgment as a
matter of law." Finally, the trial court dismissed Gardner and Slish's counterclaims seeking
indemnification from the Association for the expenses incurred in defending this action. The
Receiver and ClarkDietrich appealed the trial court's decision, raising two assignments of
error. Subsequently, Gardner filed a cross-appeal, raising two cross-assignments of error.
{¶ 15} The Receiver's Assignment of Error:
{¶ 16} THE TRIAL COURT ERRED BY GRANTING JUDGMENT ON THE
PLEADINGS FOR DIRECTORS GARDNER AND SLISH.
{¶ 17} ClarkDietrich's Assignment of Error:
{¶ 18} THE TRIAL COURT ERRED BY GRANTING THE DEFENDANT SLISH'S
AND DEFENDANT GARDNER'S MOTIONS FOR JUDGMENT ON THE PLEADINGS.
{¶ 19} The Receiver and ClarkDietrich both argue the trial court erred in granting
judgment on the pleadings in favor of Gardner and Slish. Based on our review of the record,
we find both Gardner and Slish are shielded from liability in this action due to operation of
the litigation privilege doctrine and therefore the trial court appropriately granted judgment
on the pleadings.
{¶ 20} A trial court's decision on a Civ.R. 12(C) motion for judgment on the pleadings
is reviewed by an appellate court de novo. Whitehead v. Skillman Corp., 12th Dist. Butler
No. CA2014-03-061, 2014-Ohio-4893, ¶ 7. Pursuant to Civ.R. 12(C), a judgment on the
pleadings is appropriate if the court finds that the plaintiff can prove no set of facts in support
of his claim that would entitle him to relief. In ruling on the Civ.R. 12(C) motion, the court
-6-
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CA2019-01-011
CA2019-01-020
construes as true all the material allegations in the complaint, with all reasonable inferences
to be drawn therefrom, in favor of the nonmoving party. Shaw v. Aberdeen, 12th Dist. Brown
No. CA2016-06-012, 2016-Ohio-8229, ¶ 11. Civ.R. 12(C) motions are specifically for
resolving questions of law. Whitehead at ¶ 7. "The determination of a motion for judgment
on the pleadings is limited solely to the allegations in the pleadings and any writings
attached to the pleadings." Golden v. Milford Exempted Village School Bd. of Edn., 12th
Dist. Clermont No. CA2008-10-097, 2009-Ohio-3418, ¶ 6.
{¶ 21} A statement made in a judicial proceeding enjoys an absolute privilege
against a defamation action as long as the allegedly defamatory statement is reasonably
related to the proceeding in which it appears. Surace v. Wuliger, 25 Ohio St.3d 229 (1986),
syllabus; Hecht v. Levin, 66 Ohio St.3d 458, 461 (1993). This absolute privilege applies
whether or not the purportedly defamed party was a party to the underlying action.4 Surace
at 234; Krakora v. Gold, 7th Dist. Mahoning No. 98 CA 141, 1999 Ohio App. LEXIS 4699,
at *6 (Sep. 28, 1999) ("An absolute privilege applies to allegations referring to parties and
non-parties alike.") Although the Ohio Supreme Court recognized that the rule could cause
some hardship to a defamed party, the court reasoned that "the cogent public policy of
guaranteeing the free flow of information in a judicial proceeding outweighed the hardship"
to an aggrieved party. Hecht at 461.
{¶ 22} The genesis of the Surace case involved a civil racketeering case. Surace at
229. The plaintiff, Daniel Dzinga, and his attorney, William Wuliger, filed a complaint in
federal court predicated on the Racketeer Influenced and Corrupt Organizations Act
4. The dissent attempts to challenge the soundness of Surace as binding precedent because of its age. Yet
withstanding the test of time does more to credit Surace's soundness than discredit it. Until the Ohio Supreme
Court states otherwise, we follow its lead as stated in Surace.
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("RICO"). Id. The complaint alleged that several of the named defendants had attempted
to reduce competition in the refuse disposal business by operating their companies through
a pattern of racketeering activity. Id. Though Joseph Surace was not a party to that action,
with respect to the RICO portion of the action, the complaint alleged:
In 1975 or 1976, defendant James Palladino, who was already
operating defendant Ohio Bulk, gathered together certain
investors to form defendant Inland and purchase and operate a
sanitary landfill located in 6705 Richmond Road, Glenwillow,
Ohio. Said investors included defendant James Palladino
himself, defendants Harry Fedele, and Albert Seymour. Also
said investors included such known underworld figures as
Danny Greene, Joseph Surace, John Nardi, Harvey Reiger and
Frank Embrecia.
Id. at 229-230. Subsequently, Surace filed a complaint against Dzina and Wuliger, alleging
that the abovementioned pleading in the RICO action was libelous, false and malicious, and
its import was neither relevant nor pertinent to the RICO action. Id. at 230.
{¶ 23} The trial court granted a motion to dismiss on the basis that the alleged
defamatory pleading was absolutely privileged. Id. The court of appeals reversed after
applying an "alternative remedies" theory, concluding that Surace's complaint was
actionable because there was no alternative remedy to clear his name in the RICO action
since he was not a party. Id. The Ohio Supreme Court then reversed the court of appeals
and reinstated the trial court's order of dismissal. Id. In so doing, the Court specifically
rejected the argument that absolute privilege only applies to parties in a litigation. Id. at
943. Rather, the Court held "as a matter of public policy, under the doctrine of absolute
privilege in a judicial proceeding, a claim alleging that a defamatory statement was made in
a written pleading does not state a cause of action where the allegedly defamatory
statement bears some reasonable relation to the judicial proceeding in which it appears."
Id. at 942-943.
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{¶ 24} While the privilege historically was raised to defeat defamation claims, the
modern version has broadened in most states to include multiple tort claims. See Nationstar
Mtge., L.L.C. v. Ritter, 10th Dist. Franklin Nos. 14AP-1000 and 14AP-1002, 2015-Ohio-
3900, ¶ 15 (privilege applied to claims of fraud, slander, and intentional infliction of
emotional distress). The federal 11th Circuit stated that "'[a]bsolute immunity must be
afforded to any act occurring during the course of a judicial proceeding, regardless of
whether the act involves a defamatory statement or other tortious behavior * * * so long as
the act has some relation to the proceeding.'" Jackson v. BellSouth Telecommunications,
372 F.3d 1250, 1274 (11th Cir. 2004), quoting Levin, Middlebrooks, Mabie, Thomas, Mayes
& Mitchell, P.A. v. United States Fire Ins. Co., 639 So.2d 606, 608 (Fla.1994). This is
consistent with Ohio law, which provides that litigation privilege operates to protect both
actions and statements made in the course of a judicial proceeding that "bears some
reasonable relation to the judicial proceeding in which it appears." See Surace at 233;
Mootispaw v. Kiger, 12th Dist. Fayette Case No. CA96-11-025, 1997 Ohio App. LEXIS
1461, at *3 (Apr. 14, 1997) ("There is an absolute privilege or immunity for statements made
in a judicial proceeding that extends to every step in the proceeding, from beginning to
end.") Other Ohio courts have expanded the litigation privilege to apply to statements made
in quasi-judicial proceedings and to testimony provided during disciplinary hearings. Savoy
v. Univ. of Akron, 10th Dist. Franklin No. 13AP-696, 2014-Ohio-3043, ¶ 20-21 (student
judicial proceedings).
{¶ 25} The rationale for providing immunity to "actions" as opposed to merely
"statements" is consistent with the purposes of the litigation privilege rule. "Just as
participants in litigation must be free to engage in unhindered communication, so too must
those participants be free to use their best judgment in prosecuting or defending a lawsuit
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without fear of having to defend their actions in a subsequent civil action for misconduct."
Jackson at 1274, quoting Levin at 608. See Opperman v. Klosterman Equip. L.L.C., 3d
Dist. Mercer No. 10-14-09, 2015-Ohio-4621, ¶ 75 ("privilege is necessary to protect litigants
and potential litigants from the possibility of a flood of defamation suits").
{¶ 26} Although we are aware of no decision in this state where the privilege has
been applied to a corporate board of directors for actions taken in the negotiation of
ongoing, protracted litigation as is the case here, we note that other state and federal courts
have applied similar litigation privileges to settlement activities. See, e.g., Jackson at 1275,
citing Petty v. Gen. Accident Fire & Life Assurance Corp., 365 F.2d 419, 421 (3d Cir.1966)
(negotiation of a settlement is a part of a judicial proceeding); Arochem Internatl., Inc. v.
Buirkle, 968 F.2d 266, 271-72 (2d Cir.1992) (statements made to encourage settlement of
litigation absolutely privileged under California's litigation privilege).
{¶ 27} Since this matter is before this court following judgment on the pleadings, we
are necessarily limited to the allegations set forth in the pleadings. Golden, 2009-Ohio-
3418 at ¶ 6. See Civ.R. 7(A) (Pleadings); Civ. R. 12(C) (Motion for Judgment on the
Pleadings). Nevertheless, following review, we find that judgment on the pleadings is
appropriate in this case because the Receiver and ClarkDietrich can prove no set of facts
in support of their claim that would entitle them to relief. The actions taken and statements
made by Gardner and Slish in the underlying matter are protected and provided immunity
under the litigation privilege rule.
{¶ 28} In the present case, it is undisputed that the claims against Gardner and Slish
arise entirely from their decision as directors of the Association to reject ClarkDietrich's
settlement offer and oppose ClarkDietrich's motion to dismiss. According to the Receiver's
complaint, Slish and Gardner "breached their fiduciary duty to [the Association] when they
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unanimously decided: (1) to reject an offer by the plaintiff ClarkDietrich near the end of trial
by which all claims brought against [the Association] would be dismissed with prejudice and
no costs would be owed by [the Association]; and (2) to oppose a subsequent motion by
plaintiff ClarkDietrich to dismiss the claims against [the Association] with prejudice and
without payment of costs." The complaint alleges that had the directors accepted the offer
or motion to dismiss, the directors would have "eliminated any chance that [the Association]
would lose" and "ensured that [the Association] could declare victory and be insulated from
further litigation."
{¶ 29} Though the Receiver claims that the Gardner and Slish's actions resulted in
the $43 million verdict against the Association, we find it contrary to the purposes of the
litigation privilege rule to second-guess the litigation strategy employed by the directors and
the Association's counsel. Gardner and Slish cannot be held liable for actions and
statements in the prior case that are "reasonably related to the proceeding in which it
appears." Hecht, 66 Ohio St.3d at 460. Consistent with the purposes of the litigation
privilege rule, directors Slish and Gardner should be free to use their best judgment in
defending the underlying lawsuit without fear of having to defend their action in a
subsequent civil action for those decision. As a result, the trial court appropriately granted
judgment on the pleadings to Gardner and Slish. Therefore, we find the assignments of
error raised by the Receiver and ClarkDeitrich are without merit and hereby overruled.
{¶ 30} Gardner's Cross-Assignment of Error No. 1:
{¶ 31} THE TRIAL COURT ERRED IN DISMISSING GARDNER AND SLISH'S
COUNTERCLAIMS.
{¶ 32} In his first cross-assignment of error, Gardner argues the trial court erred by
denying his request for indemnification from the Association for his expenses in defending
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this action.5 However, as correctly found by the trial court, the parties stipulated to Delaware
law controlling substantive questions of law while Ohio law would apply "elsewhere,
including application of the * * * litigation privilege." Pursuant to 8 Del.Code Ann., 145(c):
To the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in
defense of any action * * * such person shall be indemnified
against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
The Court of Chancery is vested with "exclusive jurisdiction" to hear and determine such an
action. 8 Del.Code Ann., 145(k). Thus jurisdiction for this issue is in the Delaware Court of
Chancery. Moreover, the Receiver was appointed for the limited purposes under R.C.
2732.01 "to investigate and, if he determines it to be appropriate, bring, prosecute, and
manage claims against [the Association's] officers, directors and agents arising from the
decisions to reject ClarkDietrich's settlement offer and oppose ClarkDietrich's motion to
dismiss." Under those terms, the Receiver's appointment was premised on limited
authority, none of which involves the authorization to pay indemnification claims. As a
result, Gardner's first cross-assignment of error is without merit.
{¶ 33} Gardner Cross-Assignment of Error No. 2:
{¶ 34} THE TRIAL COURT ERRED IN DENYING GARDNER'S MOTION TO
DISMISS FOR LACK OF PERSONAL JURISDICTION.
{¶ 35} In his second assignment of error, Gardner argues the trial court erred by
denying his motion to dismiss for lack of personal jurisdiction. As noted by the Ohio
Supreme Court, "[a]bsent a patent and unambiguous lack of jurisdiction, a post-judgment
appeal from a decision overruling a motion to dismiss for lack of personal jurisdiction will
5. Slish is not involved in the cross-appeal.
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provide an adequate legal remedy[.]" State ex rel. Toma v. Corrigan, 92 Ohio St.3d 589,
591 (2001); Jones v. Gori, 12th Dist. Warren No. CA2018-07-068, 2018-Ohio-4655, ¶ 6.
However, as noted above, the trial court did not grant judgment in favor of Reister or
ClarkDietrich. Instead, the trial court granted Gardner and Slish's judgment on the
pleadings based on the litigation privilege rule. This court affirmed the trial court's decision
in resolution of Reister and ClerkDietrich's assignments of error. As a result, we now find
Gardner's second cross-assignment of error with respect to personal jurisdiction is moot.
{¶ 36} Judgment affirmed.
PIPER, J., concurs.
S. POWELL, J., dissents.
S.POWELL, J., dissenting.
{¶ 37} Citing to the Ohio Supreme Court's statement in Surace v. Wuliger, 25 Ohio
St.3d 229 (1986), that the absolute privilege afforded to a defendant by the litigation
privilege rule "applies to allegations referring to parties and non-parties alike," the majority
has taken a now three-decade old blanket statement of law that established an absolute
privilege only as to defamatory statements in litigation to extend the litigation privilege rule
beyond its originally intended scope. Contrary to the majority's holding, and as explained
more fully below, I believe the scope of the litigation privilege should return to its roots and
provide a defendant with immunity only where the lawsuit is brought by the defendant's
party opponent in the underlying action giving rise to the suit. Therefore, because the
majority's decision in this case has now stretched the privilege to a point where litigants are
conceivably free to engage in any form of tortious conduct so long as the conduct occurred
in a judicial or quasi-judicial proceeding, I must dissent.
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{¶ 38} "The doctrine of absolute privilege is a form of immunity." Lacey v. Ohio
Auditor of State, 10th Dist. Franklin No. 19AP-110, 2019-Ohio-4266, ¶ 15, citing Marcum v.
Rice, 10th Dist. Franklin No. 98AP-717, 1998 Ohio App. LEXIS 5385 (Nov. 3, 1998). To
that end, it is now well established in Ohio that "[a] statement made in a judicial proceeding
enjoys an absolute privilege against a defamation action as long as the allegedly
defamatory statement is reasonably related to the proceeding in which it appears." Hecht
v. Levin, 66 Ohio St.3d 458, 460, citing Surace, 25 Ohio St.3d at syllabus. It is equally well
established that the privilege also applies to "statements" and "actions" in "quasi-judicial
proceedings" such as "when university officials reported alleged illegal conduct of a student,
when a bank reported alleged illegal conduct of an employee, and when an individual
reported alleged illegal conduct of another individual." Lacey at ¶ 16, citing Savoy v. Univ.
of Akron, 10th Dist. Franklin No. 13AP-696, 2014-Ohio-3043; Lee v. Upper Arlington, 10th
Dist. Franklin No. 03AP-132, 2003-Ohio-7157; and Haller v. Borror, 10th Dist. Franklin No.
95APE01-16, 1995 Ohio App. LEXIS 3312 (Aug. 8, 1995). This privilege extends to "'every
step in the proceeding, from beginning to end.'" Mootispaw v. Kiger, 12th Dist. Fayette No.
CA96-11-025, 1997 Ohio App. LEXIS 1461, *3 (Apr. 14, 1997), quoting M.J. DiCorpo, Inc.
v. Sweeney, 69 Ohio St. 3d 497, 506 (1994).
{¶ 39} I agree with the majority's decision finding the litigation privilege rule should
apply to both "statements" and "actions" made in judicial and quasi-judicial proceedings.
However, as noted above, I believe the majority has now expanded the privilege beyond its
originally intended scope that established an absolute privilege only as to defamatory
statements in litigation by providing litigants with a safe haven to engage in tortious conduct
against third parties that would otherwise be actionable had that conduct occurred
anywhere other than in a judicial or quasi-judicial proceeding. Therefore, contrary to the
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majority's holding in this case, I believe the privilege should not be applied to provide a
defendant with immunity for the defendant's "statements" or "actions" made in a judicial or
quasi-judicial proceeding brought in a lawsuit by anyone other than the defendant's party
opponent in the underlying suit. Or, as it applies to the facts of this case, the litigation
privilege rule should not apply to absolve a director serving on a party corporation's board
of directors from liability for an alleged breach of a fiduciary duty to that party corporation
as a matter of law.
{¶ 40} I reach this decision notwithstanding the Ohio Supreme Court's now three-
decade-old statement in Surace that the absolute privilege afforded to a defendant by the
litigation privilege rule "applies to allegations referring to parties and non-parties alike[.]" In
Surace, unlike in this case, the Ohio Supreme Court was addressing only whether the
litigation privilege rule should apply to both parties and non-parties where a "defamatory
statement was made in a written pleading[.]" Therefore, because the Ohio Supreme Court's
decision in Surace addressed only whether the litigation privilege rule applied equally to all
parties and nonparties where a defamatory statement was made as part of a written
pleading, I disagree with the majority's assertion that Surace stands for the proposition that
the absolute privilege applies to all parties and nonparties under any and all circumstances
as a matter of law. This is particularly true as it relates to claims where, as here, a director
serving on a party corporation's board of directors is alleged to have breached his or her
fiduciary duty to that party corporation. Accordingly, because the Ohio Supreme Court's
decision in Surace addressed a wholly separate issue than what is at issue here, the Ohio
Supreme Court's decision in Surace is distinguishable from the case at bar and holds
significantly less precedential value than what the majority suggests.
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{¶ 41} "A claim of a breach of fiduciary duty is basically a claim of negligence, albeit
involving a higher standard of care." Puhl v. U.S. Bank, N.A., 12th Dist. Butler No. CA2014-
08-171, 2015-Ohio-2083, ¶ 27. A claim alleging a breach of a fiduciary duty is one of the
only causes of action that a corporation may levy against its board of directors to hold the
board accountable for their individual or collective negligence. Stripping a corporation of
that right through the application of the litigation privilege rule severely limits (if not outright
negates) a corporation's ability to hold its board of directors accountable for that breach.
This was clearly not the intent behind the litigation privilege rule. Rather, as noted by the
majority, the original intent behind the privilege rule was to advance the "cogent public policy
of guaranteeing the free flow of information in a judicial [or quasi-judicial] proceeding[.]"
Hecht, 66 Ohio St.3d at 461. This guarantee can be satisfied without the need to limit the
recourse available to an aggrieved party who was otherwise not involved in the underlying
judicial or quasi-judicial proceeding where the tortious conduct occurred. This holds true
even in cases where the director's conduct resulted in a less egregious and financially
disastrous decision than was made by Gardner and Slish in this case. That is to say the
litigation privilege rule is not, and never has been, an all-encompassing privilege that the
majority asserts.
{¶ 42} In light of the foregoing, unless and until the Ohio Supreme Court holds
otherwise, I must dissent from the majority's decision. I believe the absolute privilege
afforded to a defamation suit defendant by the litigation privilege rule should be limited to
defamatory statements or actions made in the course of the initial litigation. And further
limited to just the parties of that initial litigation. Therefore, because I believe the majority
has now expanded the privilege beyond its originally intended scope that established an
absolute privilege only as to defamatory statements in litigation to now provide immunity to
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a director on a corporation's board of directors for a breach of a fiduciary duty that would
have been actionable had the breach occurred anywhere other than in a judicial or quasi-
judicial proceeding, I would reverse and remand the trial court's decision finding the litigation
privilege rule shields Gardner and Slish from liability as a matter of law.
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| {
"pile_set_name": "FreeLaw"
} |
700 F.2d 433
112 L.R.R.M. (BNA) 2813, 96 Lab.Cas. P 14,085,4 Employee Benefits Ca 1081
Loran W. ROBBINS, Marion M. Winstead, Harold J. Yates,Robert J. Baker, Howard McDougall, Thomas F. O'Malley, andR.V. Pulliam, Trustees of the Central States, Southeastand Southwest Areas Pension Fund, Appellants,v.PROSSER'S MOVING AND STORAGE COMPANY, a Missouricorporation, Appellee.Loran W. ROBBINS, Marion M. Winstead, Harold J. Yates,Robert J. Baker, Howard McDougall, Thomas F. O'Malley, andR.V. Pulliam, Trustees of the Central States, Southeast andSouthwest Areas Health and Welfare and Pension Funds, Appellants,v.SCHNEIDER MOVING AND STORAGE COMPANY, a Missouricorporation, Appellee.
Nos. 80-2116, 80-2117.
United States Court of Appeals,Eighth Circuit.
Submitted Oct. 13, 1982.Decided Feb. 16, 1983.
Russell N. Luplow, Diana L.S. Peters, Bloomfield Hills, Mich., Donald J. Weyerich, Clayton, Mo., for appellants.
Charles W. Bobinette, Bruce M. Wurmser, Uthoff, Wurmser & Graeber, St. Louis, Mo., for appellee Prosser's Moving & Storage Co.
David F. Yates, St. Louis, Mo., for appellee Schneider Moving & Storage Co.; Suelthaus, Krueger, Cunningham, Yates & Kaplan, P.C., St. Louis, Mo., of counsel.
Before LAY, Chief Judge, HEANEY, BRIGHT, and ROSS, Circuit Judges, HENLEY, Senior Circuit Judge, and McMILLIAN, ARNOLD, and JOHN R. GIBSON, Circuit Judges, en banc.
ARNOLD, Circuit Judge.
1
These cases present important questions of labor law touching on the rights and obligations of trustees of Taft-Hartley Act pension and welfare funds in disputes with employers over their contributions to the funds. The trustees in these cases filed suits as third-party beneficiaries of the collective-bargaining agreements between the employers and the union. The District Court, relying largely on Central States, Southeast & Southwest Areas Pension Fund v. Howard Martin, Inc., 625 F.2d 171 (7th Cir.1980), held in both cases that the trustees were obligated by the collective-bargaining agreements to submit their differences to arbitration. A divided panel of this Court reversed, holding that the trustees could sue in the District Court without resort to arbitration. Robbins v. Prosser's Moving & Storage Co. & Schneider Moving & Storage Co., Nos. 80-2116, 80-2117 (8th Cir. March 24, 1982) (per curiam). Because that decision appeared to conflict with prior decisions of this Court, we granted rehearing en banc. We now reverse the District Court and overrule those prior decisions to the extent of any inconsistency with this opinion. Our conclusion is that the national pension policy embodied in the Labor Management Relations Act (LMRA), the Employee Retirement Income Security Act (ERISA), and the Multiemployer Pension Plan Amendments Act (MPPAA), together with the terms of the collective-bargaining agreement and accompanying trust instruments, dictate that these trustees not be bound by the arbitration procedure, which they have no right to initiate.
I.
2
The facts of these two cases differ somewhat. The plaintiffs are trustees of the Central States, Southeast and Southwest Areas Pension Fund and Central States, Southeast and Southwest Areas Health and Welfare Fund, both of which were established pursuant to Sec. 302(c)(5) of the Labor Management Relations Act of 1947 (commonly referred to as the Taft-Hartley Act), 29 U.S.C. Sec. 186(c)(5). The complaints, which were filed against Prosser's Moving & Storage Company and Schneider Moving & Storage Company, are based on collective-bargaining agreements between the defendants and Local 610 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
3
The complaint in No. 80-2117 alleged that Schneider had been a party to successive collective-bargaining agreements with Local 610 from March 1, 1970, through February 28, 1979, which required Schneider to make certain contributions to the Pension Fund and the Health and Welfare Fund for each employee covered by the agreement.1 According to the complaint, the agreement required contributions to be made by the fifteenth day of each month and obligated Schneider to furnish the trustees with a monthly contribution report containing the names of and hours worked by each employee and the contributions required on behalf of each. The plaintiffs further claimed authorization under the collectivebargaining agreements and the trust agreements to audit the employer's records to determine if all required contributions had been made. Schneider was alleged to have violated the agreement by refusing to allow the trustees to audit its payroll records, by failing to furnish the required monthly report, and by repeatedly failing to submit the monthly reports and payments on their respective due dates. Designated Record (D.R.) 3-5. The trustees prayed for an accounting and for all sums determined to be due, together with costs and attorneys' fees as provided in the agreements. D.R. 6-7. The complaint in No. 80-2116 against Prosser was almost identical.
4
The cases seem to differ in two respects: In February of 1979, a decertification election was held at the Schneider Company, and the Union was decertified as the representative of Schneider's employees. Second, as to the defendant Prosser the real controversy seems to revolve around the trustees' right to conduct an audit of the company's records. Schneider has already submitted to an audit. Schneider has sought to emphasize that its dispute with the plaintiffs is a question of coverage of some employees under the agreement, not the right of the plaintiffs to conduct the audit.
5
The defendants moved to dismiss both actions on the ground that the controversy should have been submitted to arbitration under the terms of the collective-bargaining agreements. The District Court, relying on Central States v. Howard Martin, supra, agreed with the defendants and dismissed both complaints without prejudice pending the outcome of arbitration. The Court's opinion accepted Howard Martin's dichotomy of such suits into "simple collection matters," for which arbitration is not a prerequisite to suit, and more complex actions requiring interpretation of the collective-bargaining contract, in which arbitration is required. Both suits were found by the District Court to involve questions of coverage of certain employees under the agreement and therefore held to present questions of contract interpretation.
II.
6
Defendants' argument for compulsory arbitration is based on provisions in the collective bargaining contract, on the national labor policy favoring arbitration embodied in the Steelworkers Trilogy,2 and on precedent. Close examination reveals that none of these supports will bear the weight of the defendants' position. Moreover, other important considerations, which we will discuss presently, militate against requiring arbitration.
A.
7
First, Prosser and Schneider contend that since the plaintiffs sue as third-party beneficiaries of the union contract, they should be bound by the grievance-arbitration procedures contained in the contract. The argument is based on traditional notions of third-party-beneficiary contract law: The third party seeking to enforce the agreement is bound by the terms of the contract and subject to the same defenses as the original promisee would be. Defendants are correct as a general proposition that "[t]he promisor may ... usually assert against the beneficiary any defense which he could assert against the promisee if the promisee were suing on the contract." Calamari & Perillo, Contracts 623 (2d ed. 1977). This rule is, however, not without exception, and the Supreme Court has held collective-bargaining agreements to be such an exception. Lewis v. Benedict Coal Corp., 361 U.S. 459, 80 S.Ct. 489, 4 L.Ed.2d 442 (1960), was a suit by pension-fund trustees seeking to compel an employer to contribute to the fund. The issue before the Supreme Court was "whether the agreement is to be construed as making performance by the union [which had been made a third-party defendant] of its promises a condition precedent to Benedict's promise to pay royalty to the trustees." Id. at 465, 80 S.Ct. at 493. The Court held that collective-bargaining agreements are not typical third-party-beneficiary contracts and rejected Benedict's assertion, noting that "[i]f Benedict and other coal operators having damage claims against the union for its breaches may curtail royalty payments, the burden will fall in the first instance upon the employees and their families across the country." Id. at 469, 80 S.Ct. at 495.3
8
While Lewis is arguably distinguishable from the instant case in that it dealt with a proffered substantive defense to the suit rather than the procedural defense of arbitration, the case is recognized as establishing an exception to the general rule that defenses good against the promisee are good against donee beneficiaries such as the Funds. Calamari & Perillo, supra, at 624 n. 26. See also Todd v. Casemakers, 425 F.Supp. 1375 (N.D.Ill.1977); Wishnick v. One Stop Food & Liquor Store, 359 F.Supp. 239 (N.D.Ill.1973). And while Lewis alone may not be dispositive of Schneider's and Prosser's cases, it does refute their argument that the trustees, as third-party beneficiaries, are subject to the same defenses as could be asserted against a suit by the union.
B.
9
Second, defendants argue that the well-established national policy favoring arbitration as a means of resolving labor disputes compels the conclusion that arbitration is required in disputes such as these. The Steelworkers Trilogy, supra, is cited as favoring arbitration of all industrial labor disputes. The defendants, however, overlook certain limitations inherent in the Court's decisions in those cases. First, as Justice Douglas pointed out, "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Steelworkers v. Warrior & Gulf Co., 363 U.S. at 582, 80 S.Ct. at 1353. The arbitral process is, moreover, part of the collective-bargaining process. Steelworkers v. American Mfg. Co., 363 U.S. at 570, 80 S.Ct. at 1364 (Brennan, J., concurring). The arbitration clause and the "no strike" clause are generally each quid pro quo for the other. Id. at 567, 80 S.Ct. at 1346. And, as we shall explain, other important policies, such as the enforcement of federal statutory rights, may in a particular case have to be balanced against the policy favoring arbitration.
10
We recognize that defendants' position has support in past decisions of the Seventh Circuit and of panels of this Court. This very type of dispute has been held subject to arbitration by the Seventh Circuit in Central States v. Howard Martin, supra. The facts in Howard Martin are essentially the same as in Schneider's case. The opinion divides such suits into "simple collection matters," in which arbitration is unnecessary, and all those others in which some issue of contract interpretation is raised in defense. The precise meaning of the phrase "simple collection matters" is unclear, but it seems to mean something like cases of clear liability. See Health Care Employees v. Constant Care Community Health Center, 669 F.2d 213, 215 (4th Cir.1982) (adopting the Howard Martin dichotomy but refusing arbitration where no substantive contractual defense was raised). The Howard Martin court, sensitive no doubt to the objection that the trustees have no right to invoke arbitration, replied that
11
[t]o trigger the arbitration process, the Funds need only inform the Union, the members of which the Funds exist to serve, that Martin disputes the coverage of certain workers and ask the Union, the organization of primary interest, to file a grievance against Martin.
12
Central States, Southeast & Southwest Areas Pension Fund v. Howard Martin, Inc., supra, 625 F.2d at 173 (footnote omitted).
13
The defendants also aptly cite Farmer v. Fisher, 586 F.2d 1226 (8th Cir.1978), in which three union-appointed trustees brought an action in a district court to secure the appointment of "an impartial umpire" under Sec. 302(c)(5)(B) of the LMRA, 29 U.S.C. Sec. 186(c)(5)(B), to break a deadlock between them and the three employer-appointed trustees. The deadlock was over whether the trust should sue the employer to collect certain allegedly delinquent contributions. The question of delinquency vel non depended on interpretation of the collective-bargaining agreement. The district court appointed the impartial umpire as requested, but this Court reversed. It held that questions of contract interpretation had to be resolved by the arbitration procedure set forth in the collective-bargaining agreement. The very trust agreement involved provided that "[n]o dispute or question arising under this Trust ... shall be subject to the grievance or arbitration procedure provided for in any collective bargaining agreement." Id. at 1228. But the Court nevertheless held that arbitration was required, on the ground that the case did not involve trust "administration," as contemplated by the LMRA's deadlock provision, but rather an extraordinary, non-trust issue of contract interpretation. Foreshadowing the Howard Martin distinction, the Court said that "[t]he right of trustees as a body to sue for contributions under other circumstances, as, for example, where the right to contributions is undisputed, is not before us." Id. at 1229 n. 4. The only effect of the decision, it was said, was to change the initial forum in which the trust's rights would be decided from a court to an arbitration proceeding. No substantive rights of trustees or beneficiaries would be affected.
14
Similarly Prosser emphasizes, and quite properly, this Court's decision in Central States, Southeast & Southwest Areas Pension Fund v. CRST, 641 F.2d 616 (8th Cir.1981). There the Court affirmed the dismissal of a suit by trustees to compel inspection of employment and earnings records of all the employees of CRST. The trustees were entitled to see only the records of covered employees, the Court said, as that term is defined in the collective-bargaining agreement, and if a dispute arises as to who is covered, the grievance and arbitration procedure provided in that agreement should be used. The Funds have no right to invoke those procedures, but "it would appear that in the event a dispute should arise respecting coverage, the duty of fair representation would impel the Union to invoke the grievance machinery if the Funds were to request such action." Id. at 618.
15
Also part of this line of authority is Layne-Western Co. Inc. v. Int'l Union of Operating Eng'rs, 650 F.2d 155 (8th Cir.1981), which holds, relying on Howard Martin and Farmer v. Fisher, supra, "that the issue of whether contributions are due to the funds for certain types of work performed under the collective bargaining agreements ... presents a question of interpretation of the collective bargaining agreement and therefore an issue for the arbitrator." Id. at 158. Layne-Western is not so closely in point as Howard Martin, Farmer v. Fisher, and CRST. It was not an action by trustees against the employer to collect contributions claimed to be delinquent. It was a suit by the employer against the union to enjoin a strike called to protest the company's failure to make certain disputed payments. There was not even a potential divergence between the views and interests of the trustees and those of the union. It was clear that the union, which had gone to the length of striking over the issue, could be depended on to pursue arbitration vigorously, if that should turn out to be the indicated remedy. In addition, the Court stressed that once the arbitrator had determined what work was covered under the contract the trustees would have a right to "audit the appropriate payroll records of any Employer." Id. at 158 n. 4.
16
There is no doubt that these cases support defendants' position. Farmer and Layne-Western, if not CRST, are closely in point and would normally govern our conclusion. On reflection, however, we believe that they were not correctly decided. Stare decisis is an important aspect of the judicial process, but sometimes it is more important to be correct than to be consistent. After carefully considering the implications of several recent cases, all of them decided after Howard Martin, and after analyzing the relationship between unions and Sec. 302(c)(5) funds, we are convinced that we should depart from the panel opinions described above.
C.
17
The national pension policy embodied in Sec. 302(c)(5), of the LMRA, 29 U.S.C. Sec. 186(c)(5), in the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. Secs. 1001 et seq., and in the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA), Pub.L. 96-364, 94 Stat. 1295, 29 U.S.C.A. Secs. 1132a et seq. (1976-81 Supp.), confers statutory rights on beneficiaries of funds like those that brought this case. Although these rights of course originate in the private contract between union and employer, Congress has chosen to give them considerably more protection than the traditional state-law action for breach of contract would afford. Recent Supreme Court cases illuminate the nature of this protection and underscore the important differences between unions and trust funds.
18
In NLRB v. Amax Coal Co., 453 U.S. 322, 101 S.Ct. 2789, 69 L.Ed.2d 672 (1981), the Court emphasized that ERISA codified the trustee's obligations at common law:
19
ERISA essentially codified the strict fiduciary standards that a Sec. 302(c)(5) trustee must meet. See 29 U.S.C. Sec. 1002(1) & (2) ... Section 404(a)(1) of ERISA requires a trustee to "discharge his duties ... solely in the interest of the participants and beneficiaries ...." [citations omitted]. Section 406(b)(2) declares that a trustee may not "act in any transaction involving the plan on behalf of a party (or represent a party) whose interests are adverse to the interests of the plan or the interests of its participants or beneficiaries." 29 U.S.C. Sec. 1106(b)(2).
20
Id. at 332-33, 101 S.Ct. at 2795-96. The incorporation of common-law principles into the statute was further described in Justice Stewart's opinion for the Court:
21
Under principles of equity, a trustee bears an unwavering duty of complete loyalty to the beneficiary of the trust, to the exclusion of the interests of all other parties. Restatement (Second) of Trusts Sec. 170(1) (1957); 2 A. Scott, Law of Trusts Sec. 170 (1967). To deter the trustee from all temptation and to prevent any possible injury to the beneficiary, the rule against a trustee dividing his loyalty must be enforced with "uncompromising rigidity." Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545, 546 (Cardozo, C.J.).
22
Id. at 329, 101 S.Ct. at 2794.
23
The question presented in Amax was whether employer-appointed trustees of a Sec. 302(c)(5) fund were "representatives" of the employer "for the purposes of collective bargaining or the adjustment of grievances" within the meaning of Sec. 8(b)(1)(B) of the National Labor Relations Act, 29 U.S.C. Sec. 158(b)(1)(B). The union had struck in an attempt to get the employer to continue contributing to national trust funds for the benefit of employees. The company wanted to establish its own trust fund for the employees at one of its mines, and to name the management trustees of that fund. The national funds, on the other hand, were contributed to by many employers. Amax, as a member of the Bituminous Coal Operators Association, had had a voice in selecting the management trustees of the national funds, but if its contributions were to go to a separate, one-mine fund, it alone would select all the management trustees of that fund. Amax claimed that the union's efforts were an unfair labor practice under Sec. 8(b)(1)(B), on the theory that trustees were collective-bargaining representatives of management, and that the union was trying to coerce Amax in the selection of these representatives. The Court rejected this argument. It noted that "nothing in the language of Sec. 302(c)(5) reveals any congressional intent that a trustee should or may administer a trust fund in the interest of the party that appointed him ...." 453 U.S. at 330, 101 S.Ct. at 2794. It stressed the separateness of the fund and its trustees from both the union and the employer. And it referred approvingly to the following remarks by one of the two sponsors of Sec. 302(c)(5):
24
Senator Ball stated that "all we seek to do by [Sec. 302(c)(5) ] is to make sure that the employees whose labor builds this fund and are really entitled to benefits under it shall receive the benefits; that it is a trust fund, and that, if necessary, they can go into court and obtain the benefits to which they are entitled." 93 Cong.Rec. 4753 (1947) ....
25
Id. at 331, 101 S.Ct. at 2795.
26
We also find language in Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 102 S.Ct. 851, 70 L.Ed.2d 833 (1982), of some relevance. There, the Court referred to the MPPAA, which added a new Section 515 to ERISA, 29 U.S.C.A. Sec. 1145 (1976-81 Supp.), reading as follows:
27
Every employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall, to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of such plan or such agreement.
28
Id. at 86, 102 S.Ct. at 861 (footnote omitted). The Court referred to a passage from the legislative history of this new section:
29
The provision which was eventually enacted as [Sec. 515] was added to S. 1076 by the Senate Committee on Labor and Human Resources. The Committee explained that the provision was added because "simple collection actions brought by plan trustees have been converted into lengthy, costly and complex litigation concerning claims and defenses unrelated to the employer's promise and the plans' entitlement to the contributions," and steps must be taken to "simplify delinquency collection." Senate Committee on Labor and Human Resources, S. 1076--The Multiemployer Pension Plan Amendments Act of 1980: Summary and Analysis of Consideration, 96th Cong., 2d Sess., 44 (Comm. Print, Apr. 1980) (1980 Senate Labor Committee Print) (emphasis added). During floor debate, Senator Williams and Representative Thompson explained the purpose and meaning of [Sec. 515] in the same language used in the Senate Labor Committee Print.
30
Id. at 87, 102 S.Ct. at 861 (footnote omitted). The disapproving reference to what complicated defenses raised by employers have done to "simple collection actions" is striking in light of the Howard Martin court's use of the same phrase.4
31
The Court recently underscored again the importance of the funds' independence from the union, and the distinctions between the union's interests and those of the beneficiaries. In United Mine Workers of America Health & Retirement Funds v. Robinson, 455 U.S. 562, 102 S.Ct. 1226, 71 L.Ed.2d 419 (1982), the following description appears of Sec. 302(c)(5):
32
The section was meant to protect employees from the risk that funds contributed by their employers for the benefit of the employees and their families might be diverted to other union purposes or even to the private benefit of faithless union leaders. Proponents of this section were concerned that pension funds administered entirely by union leadership might serve as "war chests" to support union programs or political factions, or might become vehicles through which "racketeers" accepted bribes or extorted money from employers.
33
Id. at 1232. The Court also remarked, id. at 1233, that "potential beneficiaries [of Sec. 302(c)(5) funds] are [sometimes] not members of the bargaining unit" that the union is obligated to represent. "[F]ormer members and their families may suffer from discrimination ... because the union need not 'affirmatively ... represent [them] or ... take into account their interests in making bona fide economic decisions in behalf of those whom it does represent.' Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 181 n. 20 [92 S.Ct. 383, 398 n. 20, 30 L.Ed.2d 341]." Id. at 1233-34 (footnote omitted).5
34
The Supreme Court has, moreover, recently reemphasized that certain statutory labor rights, for example rights under the Fair Labor Standards Act, are not subject to waiver under a grievance-arbitration clause. Barrentine v. Arkansas Best Freight System, 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981). Although Barrentine involved a different right from those under consideration here, it at least shows that the presumption in favor of arbitration is not, of itself, sufficient to place statutory rights or obligations, such as those imposed on trustees and employers by ERISA and MPPAA, under the arbitral process. Cf. Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) (Title VII cause of action not subject to arbitration).
35
The notion of nondelegability and non-waiver of the trustees' responsibilities has also received pointed support in the Third Circuit's recent decision in Rosen v. Hotel & Restaurant Employees, 637 F.2d 592 (3d Cir.1981). Rosen is particularly important because of the difficult, if not untenable, position in which it would place the trustees if Howard Martin were followed. In that case a retired employee sued his union and the pension fund to recover his pension under the collective bargaining agreement. The fund asserted that Rosen did not have the required years of credited service because his employer had failed to make contributions for some years of his employment. The Court of Appeals held Rosen entitled to a pension because the trustees had a fiduciary obligation to notify him, as a future beneficiary of the fund, that his pension was in jeopardy by reason of his employer's failure to contribute. The court found this duty in the trustees' common-law obligations, as codified in ERISA.6 Crucial to the present discussion was this statement by the Third Circuit:
36
In addition, defendants' status as fiduciaries requires them to take action against employers who fail to contribute to the fund as required by the plan. This obligation could require the trustees to commence suit, or to picket the non-contributing employer; but some action must be taken to safeguard beneficiaries' credited service.
37
Id. at 600. It seems that the trustees of Taft-Hartley pension funds are in danger of being whipsawed by the decisions in Rosen and Howard Martin. In the Third Circuit they are under a probable duty to sue for delinquent contributions, and in the Seventh Circuit they are prevented from doing so in many cases.
D.
38
We do not claim that these recent Supreme Court opinions require us to depart from our prior panel opinions, or that Rosen is logically irreconcilable with them. The cases we have summarized all arose in different contexts, and none of them focused on the precise question presented here. But they are suggestive enough to raise serious questions about the rationale of Farmer, CRST, and Layne-Western. Basically, those cases say fund trustees can easily get the union to pursue arbitration, or sue it for not doing so. We cannot agree that unions can be expected to act so readily in the funds' interests.
39
The union's and the funds' interests will not always be in harmony. The union's primary interest, and properly so, is in keeping as many of its members as possible working, with the best possible wages and working conditions. Arbitration costs money, and the union may have better or more pressing uses for its limited funds.7 It may not wish to bear its half of the cost of an arbitration proceeding. In addition, the pressing of a claim for, say, an audit of the employer's books may irritate the employer in a way incompatible with the union's own legitimate goals. A pension-fund claim can result in a liability of many thousands of dollars for the employer. The union may prefer for that money to be available to pay the wages of its members who are now working, rather than to support former employees, or the families of deceased former employees. Worries about the present are for most union members (and for most other people, too) more pressing than worries about the future. The union may be inclined to trade off a potential pension-fund claim against some other bone of contention in its relations with the employer. And such a decision may be completely legitimate. In order to succeed in a suit against a union for an alleged breach of the duty of fair representation, the trustees would have to show something more than a mere refusal to take an arguably meritorious pension or welfare claim to arbitration. "[A] union does not breach its duty of fair representation, and thereby open up a suit by the employee for breach of contract, merely because it settled the grievance short of arbitration." Vaca v. Sipes, 386 U.S. 171, 192, 87 S.Ct. 903, 918, 17 L.Ed.2d 842 (1967). As the Supreme Court has held, moreover, Allied Chem. & Alkali Workers v. Pittsburgh Plate Glass Co., supra, the union has no affirmative duty to represent those who are no longer members. It may not even (as in Schneider's case) represent the employer's current employees. Defendants suggest that the trustees, in addition to asking the union to invoke arbitration, could also seek administrative or criminal remedies, but those avenues are even more remote and uncertain than the second-hand access to arbitration that is put forward as the funds' main recourse.
40
The union and a pension fund are both fiduciaries. But they represent groups and interests that only partly coincide. We conclude that the national pension policy described above, and the rights of plan beneficiaries, can be vindicated as Congress seems to have intended only if trustees are given a direct right of access to the courts.
III.
41
Certainly it is true that arbitration, pension funds, and health and welfare funds, are all matters of contract. They either exist or not as the parties have agreed in the collective-bargaining contract and related documents. If the agreements in the cases before us provided in express words that trustees' claims could not come to court before questions of contract interpretation had been settled by arbitration, this would be quite a different case. But they do not. In fact, Article III, Sec. 5 of both trust indentures give the trustees the right to "examine pertinent records of each employer ... whenever such examination is deemed necessary or advisable by the Trustee in connection with the proper administration of the trust," and Article III, Sec. 4, reads as follows:
42
[the] Trustees shall take such steps, including institution and prosecution of, and intervention in, any legal proceedings that the Trustees in their discretion deem in the best interest of the fund to effectuate the collection or preservation of contributions or other amounts which may be owed to the trust fund, without prejudice, however, to the rights of the Union to take whatever steps which may be deemed necessary for such purposes." (emphasis supplied).8
43
Whatever else may be said about these provisions, one thing is clear: they do not unambiguously subject the trustees' rights and obligations to the union's privilege of invoking the arbitration process under the collective-bargaining agreement. The union may choose to assist the funds by invoking this process. Our holding in no way obstructs that alternative avenue of redress. Nor need we decide in the cases before us how to accommodate the judicial and arbitral processes and their results if both are invoked with respect to the same pension or welfare claim.9 We hold only that the trustees may come into court without first getting the union to invoke the machinery of arbitration. To the extent that Farmer, Layne-Western, and CRST are inconsistent with this holding, they are overruled.
44
We leave all other questions, including possible defenses of waiver, estoppel, laches, and limitations, to the District Court for exploration on remand. The judgments are reversed, and the causes remanded for further proceedings consistent with this opinion.
45
It is so ordered.
46
HENLEY, Senior Circuit Judge, with whom JOHN R. GIBSON, Circuit Judge, joins, dissenting.
47
Today the court makes bad law.1 It unnecessarily overrules three prior decisions of this court, rejects the reasoning of the Seventh Circuit in Martin and erodes the pronouncements of the Supreme Court in the Steelworkers Trilogy. Its decision may be perceived as doing disservice to the national policies of maintaining industrial peace, avoiding delay and deferring to the expertise of persons acquainted with industry standards and the law of the shop.
48
In prior decisions, this court has concluded that trust fund disputes requiring interpretation of collective-bargaining agreements initially should be submitted to arbitration.2 Lange-Western Co. v. International Union of Operating Engineers, 650 F.2d 155 (8th Cir.1981); Farmer v. Fisher, 586 F.2d 1226 (8th Cir.1978); see Central States, Southeast & Southwest Areas Pension Fund v. CRST, Inc., 641 F.2d 616 (8th Cir.1981); see also Health Care Employees v. Constant Care Community Health Center, Inc., 669 F.2d 213 (4th Cir.1982); Central States, Southeast & Southwest Areas Pension Fund v. Howard Martin, Inc., 625 F.2d 171 (7th Cir.1980); International Brotherhood of Electrical Workers v. Dave's Electric Service, Inc., 382 F.Supp. 427, 433 (M.D.Fla.1974), remanded on other grounds, 545 F.2d 987 (5th Cir.1977). The court rejects the reasoning of these cases, holding instead that benefit fund trustees may initiate suit in federal court without resort to arbitration, even where the dispute in question involves issues of contract interpretation. I cannot agree with this departure from precedent.
49
We are told that in the Prosser case the basic question may be the right of the trustees to an audit of company accounts to determine whether appropriate payments have been made, but that Schneider has submitted to audit and that the basic question raised relates to coverage. However, the reach of the court's opinion is not narrowed to audit issues, and it seems clear that in essence the underlying dispute in the cases at bar concerns the coverage of certain employees, for purposes of contribution, under the collective-bargaining agreements.3 This issue, to be properly answered, requires resort to and interpretation of those contracts, and, therefore, under the terms of the agreements must be submitted to arbitration.4
50
In the Steelworkers Trilogy,5 the Supreme Court articulated the strong federal policy favoring arbitrability of labor disputes. This policy, based upon the national goal of industrial peace, see, e.g., Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 377-79, 94 S.Ct. 629, 636-37, 38 L.Ed.2d 583 (1974), provides an efficient and expeditious means of dispute resolution in the labor context, utilizing impartial arbitrators possessing specialized knowledge with respect to the industry and issues involved. In my view, this presumption of arbitrability is applicable to the basic dispute from which these appeals stem.
51
The court, in reaching a contrary result, relies in large part upon recent Supreme Court decisions in the area of national pension policy. Although these opinions do discuss differences between unions and trust funds in this context, the majority concedes, ante, at 441, that the decisions do not compel departure from the prior panel opinions of this court. Indeed, there is nothing in the cited decisions, or the references to legislative history there included, that persuades me to abandon the traditional policy favoring the arbitration of disputes concerning the interpretation of collective-bargaining agreements. Nor do I believe that continued adherence to this policy in present context conflicts to any significant degree with the independence or obligations of the benefit fund trustees. The independence of the trustees is adequately protected not only by case law but also by the mandates of the LMRA and ERISA; further, if after the trustees have requested arbitration the union does not pursue that remedy, or fails to act in the best interest of the fund beneficiaries, the trustees are free to seek redress in the courts.
52
It is to be remembered that the unions have a duty of fair representation which impels them to invoke the grievance machinery in appropriate circumstances, Central States, Southeast & Southwest Areas Pension Fund v. CRST, Inc., 641 F.2d at 618, and this court should not presume a violation of that duty.6 Rather, it should reject hypothetical and unlikely threats to the independence of the trustees and require the parties first to resort to arbitration, where the law of the shop and the terms of the collective-bargaining agreements may best be interpreted. One need not be clairvoyant to foresee that the spirit of negotiation and compromise that forms the basis for such agreements might be seriously compromised if the parties become aware that the terms of the agreements might be safely ignored or interpreted initially other than through the arbitration machinery.
53
Absent some reasoning more compelling than that which the court has been able to muster, I am unable to justify, much less to join in, its decision.7 Accordingly, I dissent.
1
Jurisdiction was alleged under Sec. 301 of LMRA, 29 U.S.C. Sec. 185(a), and Sec. 502 of ERISA, 29 U.S.C. Sec. 1132
2
Steelworkers v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960)
3
The Court also expressed its concern, in words that are apt in the present context, with "protecting the interests of beneficiaries of the welfare fund, many of whom may be retired, or may be dependents, and therefore without any direct voice in the conduct of union affairs." Id. at 470, 80 S.Ct. at 496 (1960) (emphasis added). It would be unjust and contrary to the national labor policy, the Court reasoned, to reduce a recovery in favor of beneficiaries of a fund by reason of some default on the part of the union. "[T]he fund is in no way an asset or property of the union." Id. at 465, 80 S.Ct. at 493
4
The quoted Senate Committee print also states that "[r]ecourse available under current law for collecting delinquent contributions is insufficient and unnecessarily cumbersome and costly." Senate Comm. on Labor and Human Resources, 96th Cong., 2d Sess. 44 (Comm. Print 1980). In the House, moreover, Representative Thompson, Chairman of the Committee on Education and Labor and floor sponsor of the House companion bill, stated: "Federal pension law must permit trustees of plans to recover delinquent contributions efficaciously, and without regard to issues which might arise under labor-management relations law--other than 29 U.S.C. 186," the provision making certain employer payments to labor organizations illegal. 126 Cong.Rec. 23039 (1980) (emphasis added)
Kaiser had to do with the employer's right to assert, in a court action brought by trustees, the defense of illegality. We quote the legislative history of MPPAA here simply to demonstrate Congress's recently expressed resolve to facilitate efforts by trustees to enforce employers' obligations. Issues of arbitrability can be quite complex, and allowing them to be injected into trustees' collection suits can frustrate this legislative purpose.
5
The following passage from Allied Chemical, supra, 404 U.S. at 181, n. 20, 92 S.Ct. at 398 n. 20, quoted with approval in Robinson, supra, 102 S.Ct. at 1234 n. 14, is also significant:
Under established contract principles, vested retirement rights may not be altered without the pensioner's consent. See generally Note, 70 Col.L.Rev. 909, 916-920 (1970). The retiree, moreover, would have a federal remedy under Sec. 301 of the Labor Management Relations Act for breach of contract if his benefits were unilaterally changed. See Smith v. Evening News Assn., 371 U.S. 195, 200-201, 83 S.Ct. 267, 270, 9 L.Ed.2d 246 (1962); Lewis v. Benedict Coal Corp., 361 U.S. 459, 470, 80 S.Ct. 489, 495, 4 L.Ed.2d 442 (1960).
This reasoning would be rendered nugatory by a rule of law that makes trustees' access to the courts subject to an effective veto by the union.
6
In so holding, the Third Circuit relied on our decision in Phillips v. Kennedy, 542 F.2d 52, 55 n. 8 (8th Cir.1976)
7
In Prosser's case the union on one previous occasion refused to arbitrate a trust-fund claim arising under the 1976 collective-bargaining agreement, even though the employer requested arbitration. We do not know why. In its motion to dismiss in the District Court, Prosser's claimed, inter alia, that this union conduct should estop the trustees to inspect records for the period in question
8
The arbitration clause in the collective-bargaining agreements applies "should difference arise between the Company and the Union or any employee of the Company as to the meaning or application of the provisions of the Agreement." (Emphasis ours.)
9
There may be some danger that courts will interpret agreements in a way different from arbitrators. We note, however, that courts are permitted to consider the reasoning of arbitration panels that have previously interpreted provisions similar to the ones sub judice
1
No effort is made to qualify the decision as falling either within or beyond any of the "bad law" categories mentioned by Justice Rehnquist in his dissent in Larkin v. Grendel's Den, Inc., --- U.S. ----, ----, 103 S.Ct. 505, 512, 74 L.Ed.2d 297 (1982)
2
In contrast, cases involving matters of trust fund administration, such as collection actions, need not be submitted to arbitration. E.g., Layne-Western Co. v. Int'l Union of Operating Eng'rs, 650 F.2d 155, 158 (8th Cir.1981). Since such disputes do not require the interpretation of a collective-bargaining agreement, the policies justifying deferral to arbitration are largely inapplicable
3
Both suits were found by the district court to involve questions of coverage of certain employees
4
The collective-bargaining agreements at issue provide the definition of the term "covered employees"; indeed, this term is not defined in any of the ancillary documents. The agreements also provide a grievance-arbitration mechanism "should differences arise between the Company and the Union or any employee of the Company as to the meaning or application of the provisions of the Agreement." This provision is sufficiently broad to encompass the underlying dispute--employee coverage--in the instant cases. See Steelworkers Trilogy, infra note 5 (in light of national policy favoring arbitration, general arbitration provisions are to be broadly construed)
5
United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960)
6
It is, of course, somewhat troubling that the union was apparently decertified as the employees' representative in No. 80-2117. However, the union still exists, as does its duty of fair representation, and as noted, the trustees would be free to seek judicial redress should resort to arbitration prove unsuccessful
7
Since the instant appeals were submitted, the Sixth Circuit has filed its opinion in Central States, Southeast and Southwest Areas Pension Fund v. Central Transport, Inc., 698 F.2d 802 (6th Cir.1983). To the extent that the considerations in Central Transport parallel those raised here, the views expressed in this dissent appear to be consistent with the reasoning employed by the Sixth Circuit
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} |
T.C. Memo. 1997-203
UNITED STATES TAX COURT
JAMES E. ZURCHER, JR., Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 5797-96. Filed May 5, 1997.
Sebastian D'Amico, for petitioner.
Karen Nicholson Sommers, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
LARO, Judge: James E. Zurcher, Jr., petitioned the Court to
redetermine respondent's determination of a $24,142 deficiency in
his 1992 Federal income tax and a $4,828 penalty under section
6662(a). We must decide the following issues:
- 2 -
1. Whether petitioner's loss on his sale of real estate was
capital or ordinary. We hold it was capital.
2. Whether petitioner is liable for the accuracy-related
penalty determined by respondent under section 6662(a).1 We hold
he is not.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
The stipulated facts and the exhibits submitted therewith are
incorporated herein by this reference. Petitioner resided in
Carlsbad, California, when he petitioned the Court.
In 1989, petitioner received a written proposal from
Robert L. Grant, Sr. (Mr. Grant), a "hands on" building
contractor licensed by the State of California, memorializing
their understanding concerning Mr. Grant's proposed purchase of a
1-acre lot of land and his development of a single-family
residence thereon. Mr. Grant and petitioner understood that
Mr. Grant needed petitioner's funds to purchase the lot and to
construct the residence. Mr. Grant and petitioner understood
that Mr. Grant would pay petitioner "for the use of his funds,
Interest at the current rate (Generally Prime+ 2 %) and a 50%
share of the profit at the sale and close of escrow of the
1
Unless otherwise indicated, section references are to the
Internal Revenue Code in effect for the year in issue, and Rule
references are to the Tax Court Rules of Practice and Procedure.
- 3 -
project." Mr. Grant and petitioner understood that petitioner's
"interest [would] be secured by Joint Title to all projects."
Petitioner and Mr. Grant jointly purchased a vacant lot on
Gracey Lane in Fallbrook, California, on or about September 22,
1989, and by the end of 1990 Mr. Grant had built a single-family
residence on it (we collectively refer to the lot and the
residence as the Property). Petitioner and Mr. Grant did not
enter into a formal partnership agreement with respect to the
purchase of the lot or the building of the residence. Petitioner
financed the residence's construction, and Mr. Grant was the
builder. Mr. Grant supervised the construction and hiring of
crews and subcontractors who participated in the development of
the Property.
After Mr. Grant had built the residence on the lot, the
Property was offered for sale at approximately $389,000. The
Property did not sell as expected, and Mr. Grant realized that he
could not pay petitioner the agreed rate of return on his
investment. In January 1991, Mr. Grant quitclaimed his interest
in the Property to petitioner to allow him to attempt to recover
his promised return. In 1992, petitioner sold the Property for
$279,000. With the exception of this sale and the sale of his
personal residence, petitioner was not involved in any other real
estate sales activity from 1990 through 1994.
Petitioner never maintained a business office with respect
to his participation in the Property, and he did not have a
- 4 -
business license in his name. Petitioner did not have a business
name, and he did not have a business telephone. Petitioner did
not belong to any trade association, and he did not have any
employees. Petitioner did not advertise the Property for sale;
all advertising was done by a real estate agent with whom
petitioner listed the Property for sale.
Petitioner filed a 1992 Form 1040, U.S. Individual Income
Tax Return, using the filing status of "Single". The return was
prepared by petitioner's long-time tax preparer, a certified
public accountant (C.P.A.), and it listed petitioner's occupation
as "investments". Petitioner's 1992 gross income was $186,003,
exclusive of a $3,000 capital loss and a $71,504 loss that he
reported on the sale of the Property. Most of petitioner's gross
income was from interest, dividends, and petitioner's involvement
in numerous partnerships.
Petitioner reported the $71,504 loss on his 1992 Schedule C,
Profit or Loss From Business (Sole Proprietorship), as an
ordinary loss: $71,304 of this amount was due to the loss on the
sale of the Property and $200 was attributable to "Legal and
professional fees". The Schedule C stated that petitioner was a
"developer", that he had operated his business for 5 months
during 1992, and that his business was not in operation at the
end of 1992. Petitioner and his C.P.A. discussed petitioner's
financial data before the C.P.A. prepared petitioner's return,
and they discussed the facts behind petitioner's involvement in
- 5 -
the Property. Petitioner supplied the C.P.A. with all relevant
information to prepare petitioner's return, and petitioner relied
on the C.P.A. to report the sale of the Property correctly. The
C.P.A. advised petitioner that he was entitled to claim an
ordinary loss on his sale of the Property.
Petitioner's 1992 Schedule C was the first Schedule C that
petitioner had filed with respect to the Property. On his 1990
income tax return, petitioner deducted the Property's real estate
taxes on Schedule A, Itemized Deductions.
The notice of deficiency states that petitioner's $71,504
loss was a long-term capital loss.
OPINION
We must decide whether the Property was a capital asset in
petitioner's hands. A "capital asset" includes all property held
by a taxpayer, with certain exceptions. The parties focus on one
of these exceptions, namely, "property held by the taxpayer
primarily for sale to customers in the ordinary course of his
trade or business". Sec. 1221(1). If the Property is within
this exception, petitioner's $71,504 loss is deductible in full.
See sec. 165(a), (c)(1). If the Property is not within this
exception, petitioner's recognizable loss for 1992 with respect
to the Property (and other capital assets) is allowable only to
the extent of any gains from the sale or exchange of capital
assets plus (if the capital loss exceeds gains) the lesser of
- 6 -
$3,000 a year or the excess of loss over the gains. Sec. 1211(b).
Whether the Property is a capital asset or was instead held
primarily for sale in the ordinary course of petitioner's
business is a factual determination. Kelley v. Commissioner,
281 F.2d 527 (9th Cir. 1960), affg. T.C. Memo. 1959-63;
Daugherty v. Commissioner, 78 T.C. 623, 628 (1982). Courts have
developed the following nonexclusive factors to assist in this
determination: (1) The nature of the taxpayer's business;
(2) the taxpayer's purpose in acquiring and holding the property;
(3) subdivision, platting, and other improvements tending to make
the property more marketable; (4) the frequency, number, and
continuity of sales; (5) the extent to which the taxpayer engaged
in the sales activity; (6) the length of time the property was
held; (7) the substantiality of income derived from the sales,
and what percentage the income was of the taxpayer's total
income; (8) the extent of advertising and other promotional
activities; and (9) whether the property was listed directly or
through brokers. Parkside, Inc. v. Commissioner, 571 F.2d 1092,
1096 (9th Cir. 1977), revg. on other grounds T.C. Memo. 1975-014;
Estate of Segel v. Commissioner, 370 F.2d 107, 108 (2d Cir.
1966), affg. T.C. Memo. 1965-221; Howell v. Commissioner, 57 T.C.
546, 554 (1972).
Although the above-described factors assist in our
determination, we must consider all of the facts and
circumstances; no individual factor or set of factors is
- 7 -
controlling. Buono v. Commissioner, 74 T.C. 187, 199 (1980).
The purpose of this analysis is to determine whether, within the
meaning of section 1221(1), petitioner conducted a trade or
business and whether petitioner held the Property primarily for
sale to customers in the ordinary course of this trade or
business. Cappuccilli v. Commissioner, T.C. Memo. 1980-347,
affd. 668 F.2d 138 (2d Cir. 1981). Petitioner bears the burden
of proof. Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115
(1933).
Following our review of the record, and after our
consideration of all the relevant facts, we conclude that
petitioner held the Property as a capital asset. We find that
petitioner was merely an investor in the Property, rather than a
developer of it. He provided an infusion of capital for
Mr. Grant's development of the Property, and petitioner did not
actively participate in the Property's development. Although
petitioner sold the Property himself, this was a one-time event
in which petitioner took a relatively passive role by retaining a
real estate agent to sell it for him. Moreover, petitioner sold
the Property himself only because Mr. Grant, after completing
construction of a residence on the Property, relinquished his
interest to petitioner in satisfaction of the money Mr. Grant
owed to petitioner. Petitioner made no meaningful improvements
to the Property, did not personally advertise the Property for
sale, and sold it at a loss. Petitioner's activity regarding the
- 8 -
property was not regular or continuous. Petitioner claimed an
itemized deduction for the Property's real estate taxes on his
1990 Schedule A, rather than a business expense on Schedule C.
Petitioner's claim to an ordinary loss is rooted in his
assertion that he was Mr. Grant's active partner in the
Property's development. Petitioner asks the Court to find as a
fact that he and Mr. Grant entered into an oral partnership
agreement in or around June 1989 to develop the Property for
profit, and that petitioner was actively involved in this
partnership. We decline to do so. The fact of the matter is
that petitioner simply has not proven that he was more than a
financier of Mr. Grant's development of the Property. The record
indicates that petitioner's actions were consistent with those of
an investor, rather than a person who was involved in a working
partnership. Petitioner was involved with the Property only
because he had the money, and Mr. Grant did not. But for his
investment of capital, through the form of a loan, we find that
petitioner had no meaningful participation in the Property's
development. Although petitioner testified at trial, in a
somewhat general and vague manner, that he spent time and money
preparing the Property for sale (e.g., by installing carpeting,
drapery, flooring, and doing landscaping), his testimony fails to
persuade us that the Property was not a capital asset in hands.
We hold for respondent on this issue.
- 9 -
Respondent also determined that petitioner was liable for a
penalty under section 6662(a) because he substantially
understated his Federal income tax. See sec. 6662(b)(2). As
relevant herein, section 6662(a) imposes an accuracy-related
penalty equal to 20 percent of an underpayment that is due to a
substantial understatement of income tax. An individual
substantially understates his or her income tax when the reported
tax is understated by the greater of 10 percent of the tax
required to be shown on the return or $5,000. Sec.
6662(d)(1)(A). Tax is not understated to the extent that the
treatment of the item related thereto is based on substantial
authority or is adequately disclosed in the return or in a
statement attached to the return. Sec. 6662(d)(2)(B).
Section 6662's accuracy-related penalty does not apply to
any portion of an underpayment to the extent that an individual
has reasonable cause for that portion and he or she acts in good
faith with respect thereto. Sec. 6664(c)(1). Such a
determination is made by taking into account all facts and
circumstances, including the experience and knowledge of the
taxpayer and his or her reliance on a professional tax adviser.
Sec. 1.6664-4(b)(1), Income Tax Regs.
We hold that petitioner is not liable for the penalty in
dispute. Petitioner relied reasonably on his C.P.A. to report
correctly the subject sale. Petitioner met with the C.P.A.
beforehand to discuss the facts surrounding the sale, and the
- 10 -
C.P.A. concluded that petitioner was entitled to ordinary loss
treatment. Under the facts herein, we find that petitioner acted
in good faith and with reasonable cause in reporting the
transaction in the manner that he did.
We have reached our holdings herein after considering each
party's arguments. To the extent that we have not discussed an
argument, we have found it to be irrelevant or without merit.
To reflect the foregoing,
Decision will be entered
for respondent for the
deficiency and for petitioner
for the accuracy-related
penalty.
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794 P.2d 891 (1990)
William C. KIRKWOOD and Viola J. Kirkwood, Appellants (Plaintiffs),
v.
Gus I. KELLY, McNamara Realty and William E. McNamara, Appellees (Defendants).
No. 89-237.
Supreme Court of Wyoming.
July 17, 1990.
*892 Patrick M. Hunter, Casper, for appellants.
Phillip T. Willoughby, Casper, for appellees McNamara Realty and William E. McNamara.
Jerry A. Yaap, Casper, for appellee Gus I. Kelly.
Before THOMAS, URBIGKIT and MACY, JJ., and GUTHRIE and RAPER, JJ., Retired.
RAPER, Justice, Retired.
Appellants sued appellees charging that Kelly (appellee), agent for McNamara (appellee), negligently failed to advise appellants that Roussalis intended to purchase their home at a foreclosure sale. Appellants also claimed that Roussalis would have purchased their home for $600,000 or more and the current value has dropped to $400,000, leaving them damaged in the sum of $200,000. The complaint was later amended to charge that, had Kelly properly performed his fiduciary duty as a real estate salesman to the Kirkwoods (appellants), they would have sold their property to Roussalis for about $300,000 and claimed damages in that amount. The trial court found in favor of appellees on the latter's motion for summary judgment and appellants' action was dismissed. The appellants set out the issues as:
A. Whether the findings and conclusions of the trial court are correct?
B. Whether the trial court's finding that there was no causal connection between the alleged breach of duty and the alleged damages is reversible error?
Appellees state:
1. Did the trial court err finding no causal connection between the alleged breach of duty by appellee Gus Kelly and the alleged damages claimed by appellants, and, therefore erred finding no issue of material fact existed and as a matter of law appellees were entitled to an order dismissing the appellants' cause of action.
We will affirm the trial judge.
The record discloses the facts to be substantially as narrated by appellees in their brief and we set them out as a matter of convenience in basically the same language, changed as required to fit the format of this opinion. This matter was previously before this court in a suit by Roussalis against the same appellees wherein Roussalis obtained a judgment affirmed in Kelly v. Roussalis, 776 P.2d 1016 (Wyo. 1989). We see the facts there related to be compatible with the facts here.
Appellants executed a listing with Caldwell Banker, Luker Realty on August 12, 1986, for the sale of their home at 5600 South Poplar Street, Casper, Wyoming. On November 22, 1986, appellee Kelly, a salesman for McNamara Realty, under multi-listing arrangement, showed the property to Roussalis. The property was listed for $695,000. Following the viewing of the home, Roussalis told Kelly he would not pay more than $300,000 for the home. Roussalis never made an offer to purchase appellants' home.
On December 3, 1986, Roussalis saw an advertisement in the Casper Star-Tribune which was a mortgage foreclosure notice of property owned by appellants in Garden Creek Acres. (It was later learned appellants owned two properties in Garden Creek Acres.) Roussalis telephoned appellee Kelly and asked if this was the same property he had previously viewed. Kelly ultimately, but incorrectly, told Roussalis it was the same property.
Roussalis then persuaded appellee Kelly, after some resistance by Kelly, to attend the foreclosure sale and bid the property in for $150,000 on behalf of Roussalis. Later it was determined that the property purchased by Roussalis for $150,000 at the foreclosure sale was the wrong property, not the property previously viewed.
Appellants now sue appellees for breach of fiduciary duty and conspiracy to deprive appellants of their interest in their home. The present matter came before the district court upon a motion for summary judgment, *893 and the court found that there was no genuine dispute as to any material issue of fact and that all defendants were entitled to summary judgment as a matter of law. Specifically the trial court found:
Assuming, for the purposes of argument, that the defendant Kelly breached his duty as alleged in the amended complaint, there is no evidence to indicate any causal connection between the alleged breach and the alleged damages. Any relationship between the breach and damages is based upon speculation only.
The trial court, in its decision denying appellants' motion for reconsideration, stated: "Among other things, the motion for reconsideration overlooks the fact that Dr. Rousallis [sic] never did make an offer on the property." We have no disagreement with the observations of the trial judge in granting appellees summary judgment. Roussalis did not present a written offer to appellants for purchase of the property. At best appellants can only claim that Roussalis, in an off-hand remark, indicated that he would not pay more than $300,000 for the property. Roussalis did not direct Kelly to prepare an offer to appellants. Appellants have not and cannot present evidence to show they lost a sale due to Kelly. Appellants continue to live in the house at the present time.
Appellants admit in their response to an interrogatory by McNamara:
List the minimum selling price Plaintiffs would have accepted for purchase of the house during the times it was listed with Luker. Referencing paragraph 20 of the Plaintiffs' Complaint, provide all evidence, whether documentary or testimonial, that Plaintiffs will rely on to prove at trial that Roussalis would have paid in excess of $600,000.00 for the property.
Answer: $625,000.00 was listed as the minimum selling price on the exclusive right to sell agreement. Plaintiffs may or may not have taken a lower offer depending upon the circumstances and details of said offer. At the present time the Plaintiffs have not determined what testimony and documents they will utilize at trial. When such determination is made the same will be provided.
Roussalis made arrangements to borrow $250,000 which he could use to bid at the bankruptcy foreclosure sale.
After the trial court entered its order dismissing appellants' cause of action on summary judgment, appellants filed a motion for reconsideration and an affidavit by the appellant, William Kirkwood. The thrust of the motion for reconsideration and Kirkwood's affidavit is that appellants, after the case had been dismissed by the trial court, would accept $300,000 for the property, a significant reduction in price to say the least.
Describe all circumstances, produce for inspection all documentary evidence, and summarize all testimonial evidence that Plaintiffs rely on for their claim of punitive damages.
Answer: Plaintiffs have not determined what evidence and testimonial evidence that will be presented at trial that will support their claims for punitive damages. The same will be provided as the same becomes available.
At no time, including materials submitted in opposition of summary judgment, did appellants elaborate on what evidence they had to support their claim for punitive damages.
W.R.C.P. 56(c) sets out the rule for granting a summary judgment:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
There are no genuine issues of fact disclosed by the file, as indicated in the foregoing statement of facts. The moving appellees are thus safely over the first hurdle of the dual test. Any of the "material" facts contended by appellants would not be based on anything but conjecture and speculation as observed by the trial judge and to which we agree, and thus are inadmissible.
*894 There are statutory reasons why appellants could not recover as a matter of law. If the appellants have any idea that the Roussalis remark that he would not pay over $300,000 was an offer that appellees should have reduced to writing by Kelly assumes that Kelly must not exercise judgment with respect to interest of a prospective buyer. It is obvious that he did not treat it as worthy of much attention. He did not read it as worthy of such a step, nor do we, particularly in the face of an asking price of $695,000 as any indication that appellants would consider less than the listed price (recall minimum of $625,000). The appellants seem to think that the $300,000 off-hand comment was an offer. It certainly does not fall within the Wyoming statute of frauds. W.S. 1-23-105(a)(v).[1] It is inconceivable that by conjecture the allegedly tortious conduct by Kelly can be converted into an agreement not covered by the ancient statute of frauds so bred into our jurisprudence. We do not rely on this in our decision but only note its arguability in passing.[2]
We can also note an argument with respect to Hagar v. Mobley, 638 P.2d 127 (Wyo. 1981) that a real estate salesman or broker must be meticulously honest because of the public stature of his license. This lacks the clear-cut features of the rule we eventually adopt so we avoid deciding the case on that basis.
We do not consider Roussalis as a ripe enough prospect for Kelly to suggest that he make an offer. Appellants' come lately statements that they would have accepted $300,000 are afterthoughts and not convincing.
We conclude that the only viable and clear-cut rule, followed by the district court, controlling this case is that found in DeWald v. State, 719 P.2d 643, 651 (Wyo. 1986), ruling that: "Where the causal connection between defendant's acts and plaintiff's damage is almost entirely subject to conjecture and speculation, summary judgment may be proper." We are inclined to believe that appellants' guessing approached the preposterous. An age-old observation of some wise sage that "you cannot make a silk purse out of a sow's ear," certainly applies here.
This case is an ideal one to dispose of by summary judgment. It avoids a further waste of judicial resources and unnecessary expense to litigants in an already too expensive system of justice.
Affirmed.
NOTES
[1] W.S. 1-23-105(a)(v) reads in pertinent part:
(a) In the following cases every agreement shall be void unless such agreement, or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith:
* * * * * *
(v) Every agreement or contract for the sale of real estate, or the lease thereof, for more than one (1) year[.]
[2] Counsel for appellees cites us to W.S. XX-XX-XXX(a)(xiii) setting out various grounds for censure of brokers and salesmen that perhaps result in suspension or revocation of license:
"Failing to submit all offers in writing to a seller, if received prior to written acceptance of any offer." We cannot see that this indicates a requirement that anything less need not be transmitted to the seller. We agree that only written offers have any value and are good practice but this does not clearly state that oral offers, even if made, need not be transmitted. Rule 9(a) of the Real Estate Commission Regulations only sets out requirements of written offers. These contained in appellees' casual remarks cannot be found there necessary details nor do they appear anywhere else.
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592 F.3d 1046 (2010)
Andrew Pasquale CHAFFER, Petitioner-Appellant,
v.
K. PROSPER; Edmund G. Brown, Jr.,[*] Attorney General, Respondents-Appellees.
No. 07-16853.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted August 14, 2008.
Submission Withdrawn September 2, 2008.
Filed January 19, 2010.
Resubmitted September 1, 2009.
*1047 Timothy J. Foley, Sacramento, CA, argued the cause for the appellant and filed briefs. With him on the briefs was Daniel J. Broderick.
David Andrew Eldridge, Deputy Attorney General, Sacramento, CA, argued the cause for the appellees and filed a brief. With him on the brief were Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, and Brian G. Smiley, Supervising Deputy Attorney General.
Before: DIARMUID F. O'SCANNLAIN and BARRY G. SILVERMAN, Circuit Judges, and JAMES K. SINGLETON,[**] Senior District Judge.
ORDER AND OPINION
ORDER
Appellees' request to publish the unpublished memorandum disposition is GRANTED. The memorandum disposition filed September 18, 2009, is modified by changing to Chaffer v. Prosper, 542 F.3d 662, 663-65 (9th Cir.2008),>. So modified, the memorandum disposition is redesignated as a per curiam opinion and is filed concurrently herewith.
The panel has unanimously voted to deny the petition for rehearing. Judges O'Scannlain and Silverman have voted to deny the petition for rehearing en banc, and Judge Singleton so recommends. The *1048 full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on it. Fed. R.App. P. 35(b). The petition for rehearing and the petition for rehearing en banc are DENIED.
No subsequent petitions for rehearing or rehearing en banc may be filed.
OPINION
PER CURIAM:
Chaffer appeals from the district court's dismissal of his federal habeas petition for failure to comply with the one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). 28 U.S.C. § 2244(d)(1). We review de novo whether the statute of limitations should be tolled. Townsend v. Knowles, 562 F.3d 1200, 1204 (9th Cir.2009). The facts are set forth in Chaffer v. Prosper, 542 F.3d 662, 663-65 (9th Cir.2008), and need not be repeated here except as necessary.
I
Chaffer argues that he is entitled to statutory tolling for the 115-day gap between the denial of his first habeas petition in the Lassen County Superior Court and the filing of his second habeas petition in the California Court of Appeal, as well as for the 101-day gap between the denial of his second habeas petition and the filing of his third habeas petition in the California Supreme Court. Id. § 2244(d)(2).
Under California's indeterminate timeliness rule, "[a]s long as the prisoner filed a petition for appellate review within a `reasonable time,' he c[an] count as `pending' (and add to the 1-year time limit) the days between (1) the time the lower state court reached an adverse decision, and (2) the day he filed a petition in the higher state court." Evans v. Chavis, 546 U.S. 189, 193, 126 S.Ct. 846, 163 L.Ed.2d 684 (2006). Until the California Supreme Court indicates otherwise, we "operate[ ] on the assumption that California law ... [does] not differ significantly from the laws of other States, i.e., that California's `reasonable time' standard [does] not lead to filing delays substantially longer than those in States with determinate timeliness rules." Id. at 198, 126 S.Ct. 846.[1]
Because Chaffer's filing delays were substantially longer than the "30 to 60 days" that "most States" allow for filing petitions, and Chaffer's petitions offered no justification for the delays as required under California law, In re Swain, 34 Cal.2d 300, 209 P.2d 793, 795-96 (1949), we fail to see how "unexplained delay[s] of this magnitude could fall within the scope of the federal statutory word `pending,'" Evans, 546 U.S. at 201, 126 S.Ct. 846 (emphasis added); see also Waldrip v. Hall, 548 F.3d 729, 734-35 (9th Cir.2008). Chaffer is therefore not entitled to statutory tolling.
II
Chaffer also argues that equitable tolling can save his federal habeas petition from untimeliness. A petitioner seeking equitable tolling bears the heavy burden of showing "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005).
*1049 A
Chaffer alleges that his pro se status, a prison library that was missing a handful of reporter volumes, and reliance on helpers who were transferred or too busy to attend to his petitions justified the delay; however, these circumstances are hardly extraordinary given the vicissitudes of prison life, and there is no indication in the record that they made it "impossible" for him to file on time. Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir.2009).
While denial of access to legal files may in some cases constitute "the type of external impediment for which we [grant] equitable tolling," Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 (9th Cir.2009), Chaffer's allegations are insufficient. First, "he entrusted [his inmate law clerk] with his legal documents at his peril." United States v. Cicero, 214 F.3d 199, 205 (D.C.Cir.2000). Second, although he alleges that he lacked access to his files the entire time his inmate law clerk was working on his petition, he "does not point to specific instances where he needed a particular document ... and could not have procured that particular document when needed." Waldron-Ramsey, 556 F.3d at 1013-14. Even crediting his assertion that he lacked access to his files for 46 days, rather than the 4 days post-transfer as supported by the record, tolling the entire period still makes his federal filing too late because he needs all but six days tolled.
Chaffer's mistaken reliance on Saffold v. Carey, 312 F.3d 1031 (9th Cir.2003), as creating a bright-line rule for timeliness of California habeas petitions is also unavailing. Harris v. Carter, 515 F.3d 1051 (9th Cir.2008), is distinguishable, as there the petitioner relied on a correct reading of then-current case law, whereas here Chaffer relied on a misunderstanding. Furthermore, Harris held that equitable tolling applies "in the rare case where a petitioner relies on our legally erroneous holding in determining when to file a federal habeas petition." Id. at 1057 (emphasis added). Here Chaffer relied on Saffold in determining when to file his state habeas petitions.
Because Chaffer cannot point to any extraordinary circumstances that prevented him from timely filing, he is not entitled to equitable tolling.
B
Chaffer has also failed to show that he has been diligently pursuing his rights. He claims that he "did everything in [his] power" to file his habeas petitions on time, yet, tellingly, he does not controvert the prison librarian's declaration that, according to access logs and her own recollection, he never ventured into the prison library between October 2004 and August 2006. Indeed, he fails to make any specific "alleg[ation] what [he] did to pursue [his] claims and complain about [his] situation[]." Roy v. Lampert, 465 F.3d 964, 973 (9th Cir.2006). While he asserts that he relied on "whatever volunteer assistance [he] could find" to file in a "timely and diligent manner," the "fact that an inmate law clerk was assisting in drafting the state petition does not relieve [him] from the personal responsibility of complying with the law." Marsh v. Soares, 223 F.3d 1217,1220 (10th Cir.2000). Consequently, Chaffer has not made the requisite showing of diligence to warrant equitable tolling.
III
For the foregoing reasons, the judgment of the district court dismissing Chaffer's habeas petition as untimely is
AFFIRMED.
NOTES
[*] Edmund G. Brown, Jr. is substituted for his predecessor, Bill Lockyer, as Attorney General of the State of California, pursuant to Fed. R.App. P. 43(c)(2).
[**] The Honorable James K. Singleton, United States District Judge for the District of Alaska, sitting by designation.
[1] California has not provided any guidance as to what constitutes a timely non-capital habeas petition. See King v. LaMarque, 464 F.3d 963, 966 (9th Cir.2006). The Supreme Court has suggested that we "seek guidance on the matter by certifying a question to the California Supreme Court in an appropriate case." Evans, 546 U.S. at 199, 126 S.Ct. 846. We did so, Chaffer v. Prosper, 542 F.3d 662 (9th Cir.2008), but the court denied certification, Chaffer v. Prosper, No. S166400 (filed Mar. 11, 2009).
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676 F.2d 682
U. S.v.Shaw
81-1193
UNITED STATES COURT OF APPEALS First Circuit
3/24/82
1
D.Mass.
AFFIRMED
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496 F.2d 174
Stuart M. CHRISTHILF, Jr., M.D., Appellant,v.The ANNAPOLIS EMERGENCY HOSPITAL ASSOCIATION, INC., et al., Appellees.
No. 73-1717.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 4, 1973.Decided April 23, 1974.
Norman R. Lilly, Annapolis, Md. (Merrill & Lilly, P.A., Annapolis, Md., on brief), for appellant.
John F. King, Baltimore, Md. (Frank C. Serio, Annapolis, Md., and Anderson, Coe & King, Baltimore, Md., on brief), for appellees.
Before BOREMAN, Senior Circuit Judge, and BUTZNER and FIELD, Circuit judges.
BUTZNER, Circuit Judge:
1
Stuart M. Christhilf, Jr., a physician, appeals from an order of the district court denying his application for an injunction to restrain The Annapolis Emergency Hospital Association from interfering with the staff privileges previously extended to him by the Anne Arundel General Hospital, Annapolis, Maryland. Because we believe that Dr. Christhilf was denied procedural due process and that he had not waived this right, we reverse.
2
The Hospital Association, a nonprofit corporation governed by a board of managers, operates the Anne Arundel General Hospital. Though the hospital is a voluntary private institution, it has received funds for capital expenditures from Anne Arundel County and from the Hill-Burton program.
3
Dr. Christhilf has practiced his profession in Anne Arundel County, Maryland, since 1949. A past president of the Obstetrical and Gynecological Society of Maryland, he is board certified in obsterics and gynecology but not in female urology. For many years, Dr. Christhilf had essentially unlimited privileges at the hospital in obstetrics, gynecology, and female urology. He was a member of the hospital's medical staff and served as chief of obstetrics from 1954 to 1956.
4
In an effort to upgrade its services, the hospital ruled that beginning January 1971 it would limit the urology privileges of doctors who were not board certified or eligible for certification in that specialty. Dr. Christhilf protested the change when it was announced, but to no avail. Under the new restrictions, doctors with limited urology privileges were permitted to continue to perform certain operative procedures, but they were specifically prohibited from undertaking others including retrograde pyelograms.
5
Dr. Christhilf's present difficulties arose when it came to the attention of the hospital's medical board that he had performed at least one unauthorized retrograde pyelogram after the rule limiting urology privileges had become effective. Dr. Christhilf appeared before the medical board in October 1971 and spoke in his own defense, claiming that the retrograde pyelogram, which he admitted performing, was done as a gynecological procedure and was, therefore, justifiable. The board, however, deemed that he had violated its rule, and after considering a summary of his past infractions of the rules and regulations of the hospital, it voted 10 to 4 not to renew his hospital privileges. The matter was then laid before the medical staff, which after hearing Dr. Christhilf, voted 38 to 28, with 5 abstentions, against renewing his privileges. The joint conference committee, meeting without Dr. Christhilf, accepted the staff's recommendation and transmitted it to the board of managers. The board, acting on the recommendation, but without affording Dr. Christhilf an opportunity to be heard, refused to renew his privileges at the hospital.
6
Dr. Christhilf then brought this action, seeking damages and an injunction requiring the board to reinstate him. The parties stipulated that the bylaws of the hospital provide that the board of managers has the sole and exclusive authority to grant or deny hospital privileges to physicians and that Dr. Christhilf had not been heard by the board. The district court, ruling that the doctor was entitled to be heard, granted an interlocutory injunction restraining the board from terminating his privileges until it afforded him a hearing.
7
The hospital president then wrote Dr. Christhilf a letter notifying him that he would have an opportunity to appear before the board for a hearing at which the board would decide what action to take with respect to his hospital privileges. The letter purportedly charged the following infractions of hospital rules and regulations:
8
The performance of a retrograde pyelogram on October 1, 1971;
9
Performance of one other urological retrograde procedure on an unspecified date;
10
Failure to afford prompt attention to a patient on October 4, 1971;
11
Thirty-two incidents occurring on specified dates between August 1957 and August 1971;1
12
Failure to properly care for a patient in December 1971.
13
Referring to the board's previous refusal to renew Dr. Christhilf's privileges, the letter stated that this action was not the result of any single violation 'but rather was the result of your general pattern of behavior.' The letter concluded by stating that each member of the board of managers had a copy and 'will consider the information stated herein in its deliberations to determine whether or not your privileges should be renewed.'
14
Correspondence between the attorneys for the parties and colloquy at the subsequent hearing before the board disclosed fundamental disagreements about the interpretation of the charges contained in the hospital's letter, the scope of the board's inquiry, and the comprehensiveness of the doctor's defense. Dr. Christhilf's attorney was denied discovery of additional documents in the hospital's possession, including those concerning the 32 incidents spanning the years from 1957 to 1971. The hospital's attorney took the position that the charges pertained only to the performance of a retrograde pyelogram in violation of the hospital's new rule. He stated that no further discovery was necessary with respect to the other infractions of the rules because they were before the board only as 'historical background.' Referring to the list of the 32 incidents, he emphasized, 'This board isn't going to go back into those cases and determine whether or not they were proper or improper.' Dr. Christhilf, he explained, could admit or deny that these charges had been the subject of former disciplinary proceedings, but in no event would the merits of the 32 allegations of wrongdoing be considered by the board.
15
On the other hand, Dr. Christhilf's attorney insisted that he had a right to contest the merits of these 32 charges since the board had never previously ruled whether they were well founded. To properly contest them, he asserted that he needed other documentary material the hospital was withholding. When it became apparent that this impasse could not be resolved, he advised Dr. Christhilf to withdraw from the hearing. Concerned that the preliminary injunction previously granted would expire at the conclusion of the hearing, he and the doctor then returned to the district court. There they obtained an ex parte temporary restraining order enjoining the hospital from terminating the doctor's privileges until the court could determine whether he had been denied due process of law at the board's hearing.
16
In the meantime, the board continued with the hearing after Dr. Christhilf and his attorney withdrew. The board heard three witnesses and then went into executive session where it voted to terminate Dr. Christhilf's privileges.
17
Subsequently, the court vacated the temporary restraining order and denied further injunctive relief. It held that Dr. Christhilf had failed to exercise self-help in obtaining documents which were available to him as a member of the hospital staff and that by leaving the meeting he waived his right to the specific procedural protections which the court had previously afforded him.
II
18
The district court properly held that the involvement of the federal and state governments through the Hill-Burton Program and the Anne Arundel County grant sufficiently implicated the state in the affairs of this otherwise private institution to subject the hospital to the restrictions which the fourteenth amendment places upon state action. Cf. Sams v. Ohio Valley General Hospital Ass'n, 413 F.2d 826 (4th Cir. 1969); Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963) cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964). The district court also correctly held that Dr. Christhilf's hospital privileges could not be terminated without affording him procedural due process. It premised this ruling on the finding that a denial of privileges might effectively foreclose Dr. Christhilf's practicing in the area because of the harm to his professional reputation and because of the lack of other facilities comparable to those of the hospital within 20 miles of Annapolis. Consequently, the court properly ruled that Dr. Christhilf's complaint stated a cause of action against the hospital under42 U.S.C. 1983. Jurisdiction, therefore, aptly rested on 28 U.S.C. 1343(3); Suarez v. Weaver, 484 F.2d 678 (7th Cir. 1973); Meredith v. Allen County War Memorial Hospital Com'n., 397 F.2d 33 (6th Cir. 1968); Birnbaum v. Trussell, 371 F.2d 672 (2d Cir. 1966).
19
While the parties have devoted a great deal of their argument to the dispute over the extent of discovery to which Dr. Christhilf was entitled, we believe that this question is only symptomatic of the basic issue. The fundamental question is whether the board denied Dr. Christhilf due process by ruling through its attorney that although it would consider the 32 infractions of the rules, 'it would not go back into those cases and determine whether or not they were proper or improper.' The 32 incidents are of crucial importance because, as the president explained in the letter notifying the doctor of the hearing, the board's earlier decision to refuse renewal of his privileges was not based on any single violation 'but rather was the result of your general pattern of behavior.' Presumably the board based its second decision on the same factors.
20
' The fundamental requisite of due process of law is the opportunity to be heard.' Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). And the right to a hearing embraces an 'adequate opportunity . . . to defend . . ..' Louisville and Nashville R.R. Co. v. Schmidt, 177 U.S. 230, 236, 20 S.Ct. 620, 44 L.Ed. 747 (1900). Though this is commonly denominated a procedural right, whether it has been denied must be determined 'by the substance of things and not by mere form.' Simon v. Craft, 182 U.S. 427, 436, 21 S.Ct. 836, 839, 45 L.Ed. 1165 (1901). The district court-- acutely aware of the intensity of some of the personal feelings involved and fully mindful of the effect that this case could have, not only on Dr. Christhilf and the hospital, but on his patients and the community as a whole-- properly applied these principles in its initial decision requiring a hearing. It ruled that Dr. Christhilf should have reasonable notice of the charge, adequate time to prepare his case, the right to present evidence in his behalf, the right to rebut evidence against him, and the right of cross-examination. See Milford v. People's Community Hospital Auth., 380 Mich. 49, 155 N.W.2d 835, 839 (1968).2
21
The notice of the hearing contained in the letter from the president set forth with reasonable particularity the violations of rules and regulations attributed to Dr. Christhilf. The difficulty arose when this notice of charges was construed by the hospital's attorney to mean that the merits of at least 32 of the incidents would not be examined by the board, but that the board would nevertheless consider these infractions for 'historical background' in determining whether the privilege to practice in the hospital should be denied.
22
Of course the board should not be obliged to rehear the details of any infraction which it had previously considered at a hearing where the doctor was accorded due process. But the board should have afforded the doctor an opportunity to be heard on the incidents which had not been the subject of previous hearings. For example, of the 32 incidents submitted to the board, one which reads 'Tissue Committee Report-- 'Unjustified Surgery," appears to be among the more serious. The only documentary evidence which could be considered under the ruling of the board was a copy of a very short letter dated August 7, 1970 from the chairman of the tissue committee to Dr. Christhilf. It gave the name of a patient, the date the operation was performed, the hospital case number, and stated that the tissue committee had reviewed the case and found it to be unjustified. It concluded by requesting Dr. Christhilf to review the case with his chief of service. A report of this review, if it ever took place, was not included in the documentation of the incident, and Dr. Christhilf's attorney was denied discovery of the tissue committee's report. More important, discovery, even if allowed, would be of little avail. Under the procedure explained by the hospital's attorney, while the board would not consider the merits of this incident, it would consider its existence in determining whether to deny hospital privileges to the doctor.
23
Administrative proceedings of this nature need not be conducted as full blown trials. But by limiting the doctor's hearing with respect to these incidents to simply an admission or denial of their existence, the board deprived him of an adequate opportunity to defend his privilege to practice in the hospital. At the very least the board should have considered, along with the documentary evidence of the incidents, the doctor's explanation in justification or mitigation of charges of wrong-doing that had never previously been the subject of a board hearing. We conclude therefore that the procedure adopted by the board denied Dr. Christhilf due process of law.
III
24
The impasse over the proper construction of the notice of charges and the latitude that should be afforded Dr. Christhilf in presenting his defense did not justify his withdrawal from the hearing. After noting his objection, Dr. Christhilf would not have jeopardized his rights by continued participation. Quasi-public institutions, which lack a court's power of arrest or authority to summarily punish for contempt, should not be subjected to conduct which verges on a boycott when discharging an obligation placed upon them by law. Dr. Christhilf's departure undoubtedly has delayed the final resolution of this controversy, and we will return to it in part IV of this opinion.
25
We conclude, however, that Dr. Christhilf did not waive the opportunity to be heard by leaving the hearing and promptly resorting to the court to obtain this right. Waiver is ordinarily defined as 'an intentional relinquishment or abandonment of a known right or privilege.' Moreover, " courts indulge every reasonable presumption against waiver' of fundamental constitutional rights,' and they 'do not presume acquiescence in the loss of fundamental rights.' Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Here the record is clear that under the rules adopted by the hospital for the hearing, Dr. Christhilf was not afforded an opportunity to be heard. He was denied an essential element of this right, the opportunity to adequately defend himself. He strenuously asserted his right to be fully heard, first at the hearing and immediately thereafter in the court which had ordered the hearing. Whatever else may be said of his departure from the hearing, it cannot be described as acquiescing in the relinquishment or abandonment of the very right he was pressing to secure. It was the doctor's prompt resort to the court for enforcement of his right to be heard which distinguishes this case from situations where refusal to participate in a hearing may evidence waiver. Cf. Harris v. Smith, 418 F.2d 899, 901 (2d Cir. 1969).
IV
26
On remand the district court need not reinstate the temporary injunction that assured Dr. Christhilf hospital privileges pending hearing by the board of managers. Although such an injunction may often be proper, due process does not always require a hearing before a doctor's privileges are suspended. The gravity of the charges, the findings of the medical board and staff, and the delay and expense caused by Dr. Christhilf's withdrawal from the hearing afford ample justification for denying him interlocutory relief. Mack v. Florida State Board of Dentistry, 430 F.2d 862, 864 (5th Cir. 1970), cert. denied, 401 U.S. 954, 91 S.Ct. 970, 28 L.Ed.2d 237, rehearing denied, 402 U.S. 925, 91 S.Ct. 1365, 28 L.Ed.2d 664 (1971); Citta v. Delaware Valley Hospital, 313 F.Supp. 301, 309 (E.D.Pa. 1970).
27
The fact remains, however, that Dr. Christhilf has been permanently banned from practicing in the hospital without being afforded due process of law by the board of managers. Therefore, the district court should provide in its decree for the restoration of his privileges unless the board affords him a hearing within a reasonable time as specified by the district court. The hearing should proceed afresh without reference to the board's proceedings in the past. Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). Because a large part of the present controversy arose over the proper construction of the board's charges in its notice of hearing, the charges that the board intends to consider should be stated anew. Dr. Christhilf must be afforded an opportunity to defend by contesting the merits of each charge or incident cited by the board.3 The requirements for the hearing that the district court previously enumerated were appropriate considering the circumstances. However, in view of the dispute that subsequently arose, they should be supplemented by requiring the hospital to permit Dr. Christhilf or his attorney, at their own expense, to inspect or copy all documents in the hospital's possession bearing on each charge.
28
The board, however, need not in these proceedings hear complaints that Dr. Christhilf has about other doctors. Since the hospital's denial of this type of evidence was not the subject of Dr. Christhilf's brief, it may be that he has abandoned this aspect of the dispute. In any event, he has not shown its relevance. The board has a responsibility to consider the interests of the public. This responsibility would not be promoted by restoring Dr. Christhilf's privileges because he offers proof of infractions by other persons, if in fact he himself is not entitled to renewal. See Woodbury v. McKinnon, 447 F.2d 839, 846 (5th Cir. 1971).
29
Try as they might, the conscientious attorneys representing the parties have experienced difficulty in keeping the controversy from appearing as an adversary proceeding involving the board. The litigation, moreover, has placed a heavy burden on the hospital's counsel who have been case in the triple role of representing the hospital in court, advising the board about the discovery it should allow and the procedure it should follow in the administrative hearing, and presenting the charges against the doctor. For these reasons, the parties may wish to reconsider the district court's suggestion that one of the lesser boards or committees of the hospital could conduct the actual hearing with the board of managers then reviewing the evidence, findings, and recommendation in an appellate capacity. Or the district court and the parties may wish to consider retaining a hearing officer to preside over the administrative proceedings at the expense of the parties.
30
The judgment is vacated, and this case is remanded for further proceedings. Each party shall bear its own costs.
1
The incidents were described as comprising 'your long record of numerous and frequent infractions of hospital rules, violations of regulations, and general nonconformity ranging from minor instances to more serious infractions which have resulted in repeated warnings, reprimands, temporary suspensions of privileges, and on one occasion consideration for expulsion.' Other exhibits mention 35 incidents, but this discrepancy is of no consequence to this appeal. A list of the incidents with supporting documentation was enclosed
2
Under other circumstances a similar panoply of procedural rights is not required. See, e.g., Woodbury v. McKinnon, 447 F.2d 839 (5th Cir. 1971)
3
The record does not indicate that the board previously considered any of the charges or incidents at a hearing in which Dr. Christhilf was afforded due process. If, however, any of the charges were the subject of such a hearing, the board need not rehear them
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MCILROY V. STATE FARM
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-453-CV
SHARON McILROY,
APPELLANT
vs.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. 436,704, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING
This is a summary-judgment case based on limitations. Sharon McIlroy, appellant,
brought suit against State Farm Mutual Automobile Insurance Company, appellee, alleging that
State Farm engaged in unfair claim-settlement practices by: (1) breaching the common-law duty
of good faith and fair dealing, and (2) violating Tex. Ins. Code Ann. arts. 21.21, 21.21-2 (1981
& Supp. 1992), 28 Tex. Admin. Code §§ 21.201-.205 (1988 & Supp. 1992), and the Deceptive
Trade Practices-Consumer Protection Act (DTPA), Tex. Bus. & Com. Code Ann. § 17.50 (1987
& Supp. 1992). (1) State Farm moved for summary judgment on the ground that the applicable two-year statute of limitations barred McIlroy's bad-faith claims. The trial court granted State Farm's
motion for summary judgment. In four points of error, McIlroy challenges that judgment in this
Court. We will affirm.
BACKGROUND
On August 21, 1986, McIlroy was driving her roommate's car when she was struck
by a pick-up truck driven by Jayson Danek, an uninsured motorist. McIlroy was covered by two
insurance policies issued by State Farm, one insuring McIlroy's own car and the other insuring
her roommate's car. Both policies contained personal-injury-protection (PIP) coverage and
uninsured-motorist coverage.
In an attempt to recover for her injuries resulting from the accident, McIlroy filed
suit against Danek in February 1988; however, she did not file suit against State Farm at that
time. Instead, on April 14, 1988, McIlroy sent a letter to State Farm demanding $20,000 in
uninsured-motorist benefits and giving State Farm thirty days to respond. On May 6, 1988, State
Farm offered $7,000 to settle the claim. On May 26, 1988, McIlroy rejected State Farm's offer
and extended her offer of $20,000 for another thirty days. On June 13, 1988, State Farm
responded by raising its offer to $7,500 and by sending McIlroy a check in the amount of $1,135
for the payment of PIP claims she had made. There is no evidence of further negotiations.
McIlroy first filed suit against State Farm on August 29, 1988, alleging that she
was contractually entitled to recover damages for her injuries based on the PIP and uninsured-motorist provisions of the subject insurance policies. At that time, however, she did not assert
any "bad-faith" claims based on unfair claim-settlement practices.
On July 19, 1990, McIlroy amended her pleadings to allege her extra-contractual
bad-faith claims against State Farm. She alleged that State Farm had engaged in unfair claim-settlement practices, had breached its common-law duty of good faith and fair dealing, had
violated certain provisions of the Insurance Code and the DTPA, and had violated certain rules
and regulations of the State Board of Insurance.
On October 10, 1990, based on facts deemed admitted, the trial court rendered a
partial summary judgment against Danek, the uninsured motorist. The judgment awarded McIlroy
$125,000 in damages for her bodily injuries.
On January 16, 1991, in exchange for $41,000, McIlroy released State Farm from
the contractual claims she had asserted under the PIP and uninsured-motorist provisions of the
subject insurance policies. However, she expressly retained the right to pursue her bad-faith
claims against State Farm for unfair claim-settlement practices. Thereafter, on January 28, 1991,
the trial court signed an order dismissing McIlroy's contractual claims.
In February 1991, State Farm filed a motion for summary judgment, arguing that
McIlroy's bad-faith claims were barred as a matter of law by limitations. State Farm based its
motion on McIlroy's admission that State Farm had, as of June 25, 1988, unreasonably delayed
payment of her claim for insurance benefits. State Farm argued that limitations began to run on
that date for McIlroy's bad-faith claims; therefore, because McIlroy did not assert any such claims
until July 19, 1990, more than two years later, her claims were barred by the two-year statute of
limitations.
On March 7, 1991, the trial court granted State Farm's motion as to all of
McIlroy's allegations except for two alleged statutory violations pleaded in her Eighth Amended
Original Petition. The trial court later severed out these two claims in order to finalize the
summary judgment as to the rest of McIlroy's allegations. McIlroy has appealed the final
summary judgment to this Court.
STANDARD OF REVIEW
The standards for reviewing a summary judgment are well established:
1. The movant for summary judgment has the burden of showing that there is no
genuine issue of material fact and that it is entitled to judgment as a matter of
law.
2. In deciding whether there is a disputed material fact issue precluding summary
judgment, evidence favorable to the non-movant will be taken as true.
3. Every reasonable inference must be indulged in favor of the non-movant and
any doubts resolved in its favor.
Nixon v. Mr. Property Mgt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). There is no dispute that
this case is governed by a two-year statute of limitations. See Tex. Civ. Prac. & Rem. Code Ann.
§ 16.003(a) (1986); Tex. Bus. & Com. Code Ann. § 17.565 (1987); Tex. Ins. Code Ann. art.
21.21, § 16(d) (Supp. 1992). Further, there is no dispute that McIlroy made no allegations
against State Farm based on bad faith until July 19, 1990. Therefore, in order to uphold the
judgment in this case, we must determine that the summary judgment evidence establishes as a
matter of law that limitations began to run on McIlroy's bad-faith claims before July 19, 1988.
STATUTE OF LIMITATIONS
In her Eighth Amended Petition, McIlroy alleged the following:
Not withstanding [sic] the fact that there was no reasonable basis for delay
in the payment of Plaintiff's claims, Defendant, State Farm Mutual Automobile
Insurance Company, from a point in time occurring on or after July 19, 1988, and
up until January 10, 1991 refused to make timely payment of all amounts due
Plaintiff under the personal injury protection provisions or any of the amounts due
Plaintiff under the uninsured motorists provisions of the terms of such insurance
policies described above.
McIlroy further alleged that by engaging in such conduct, State Farm had: (1) breached the
common-law duty of good faith and fair dealing, and (2) violated certain provisions of the DTPA
and Insurance Code, as well as certain State Board of Insurance regulations. Based on these
allegations, McIlroy argues in her brief that, because she did not assert any bad-faith claims
against State Farm which arose before July 19, 1988, her assertion of unfair claim-settlement
practices against State Farm on July 19, 1990, was within the two-year statute of limitations.
In response, State Farm points to McIlroy's answer to its request for admission
number 27:
27. As of June 25, 1988, State Farm had unreasonable [sic] delayed payment of
Plaintiff's claim.
ANSWER: Admit
State Farm argues that, through this admission, McIlroy established as a matter of law that
limitations began to run on her bad-faith claims on June 25, 1988, and expired on June 25, 1990,
approximately three to four weeks before McIlroy asserted her bad-faith claims for the first time.
In her brief, McIlroy concedes that the above admission bars at least part of her
cause of action. She states that when she admitted that State Farm had unreasonably delayed
payment of her "claim" as of June 25, 1988, she was referring only to her claim for PIP benefits,
and not her claim for uninsured-motorist benefits. Therefore, she argues, the above admission
bars only her bad-faith claims with regard to the payment of her PIP benefits, and does not bar
such claims as they relate to the payment of her uninsured-motorist benefits.
As the parties have presented the case to this Court, the pivotal issue is whether the
above admission on the part of McIlroy referred to the unreasonable delay in the payment of both
her PIP and uninsured-motorist benefits, or just her PIP benefits. Indeed, McIlroy conceded at
oral argument that if her admission can be read as a matter of law to refer to the unreasonable
delay in the payment of her uninsured-motorist benefits, then her appeal must fail.
As discussed above, McIlroy's attorney sent to State Farm a letter dated April 14,
1988, which included the following:
As you are aware, Mr. Danek was an uninsured motorist and therefore, the
above referenced policy provides coverage for Ms. McIlroy's injuries.
. . . .
This letter will also serve as an offer to settle the above style [sic] claim
against the uninsured motorist coverage provided by the above referenced policy
for the sum of Twenty Thousand and No/100 Dollars ($20,000.00). This offer of
settlement will remain open for 30 days at which time it will automatically be
withdrawn if not accepted.
(Emphasis added).
State Farm responded by offering $7,000, which prompted the following letter from
McIlroy on May 26, 1988:
This letter will notify you that I have discussed your offer of settlement in the
amount of $7,000.00 as per your letter of May 6, 1987, with my client, Sharon
McIlroy. My client has rejected such offer of settlement. This letter will serve as
notice to you that the offer of settlement as set out in my letter of April 14, 1988,
will remain open for 30 days from receipt of this letter, otherwise I will amend the
suit presently pending and sue State Farm Insurance Company.
In the event it is necessary to file suit, I will also assert a claim for the unpaid
personal injury protection benefits which have previously been refused by your
company, a claim for benefits under the uninsured motorist portion of Ms.
McIlroy's insurance policy, and a claim for attorney's fees . . . .
(Emphasis added).
State Farm responded to McIlroy with the following letter on June 13, 1988:
We are in receipt of your letter dated May 26, 1988. Your reticence, with respect
to negotiating a settlement in this case, is puzzling.
Let me reaffirm that it is our desire to conclude Ms. McIlroy's claim in an
amicable fashion. To this end, we are elevating our offer of settlement to
$7,500.00.
Additionally, please find a draft in the amount of $1,135.00 attached hereto. This
reflects the balance of your client's medical expenses and lost wages. Further
Personal Injury Protection payments will require an independent medical
examination at our behest.
These letters indicate that during the months of April, May, and June 1988, McIlroy was
demanding $20,000 in uninsured-motorist benefits, and State Farm was offering only $7,500.
Further, the letters show that McIlroy intended to file suit against State Farm if her demand was
not met by June 25, 1988.
This brings us to State Farm's First Request For Admission To Plaintiff and
McIlroy's responses thereto:
REQUESTS FOR ADMISSION
1. On April 14, 1988, Plaintiff, through her attorney Russell Daves, demanded
$20,000.00 for the settlement of her uninsured motorist claim.
ANSWER: Admit.
2. Said demand stated that it would be withdrawn if not accepted within thirty
(30) days.
ANSWER: Admit.
* * * *
4. On May 6, 1988, State Farm responded to said demand.
ANSWER: Deny.
5. In responding to said demand, State Farm did not offer to pay $20,000.00.
ANSWER: Admit.
6. In responding to said demand, State Farm did offer to pay $7,000.00.
ANSWER: Deny.
* * * *
8. On May 26, 1988, Plaintiff through her attorney, Russell Daves responded
to State Farm's offer of May 6, 1988.
ANSWER: Admit.
9. In that response, Plaintiff did not reduce her settlement demand.
ANSWER: Admit.
10. In that response Plaintiff did extend her offer of April 14, 1988 for an
additional thirty (30) days.
ANSWER: Admit.
* * * *
13. On June 13, 1988, State Farm responded to Plaintiff's renewed demand of
May 26, 1988.
ANSWER: Admit.
14. In that response State Farm did not accept Plaintiff's demand.
ANSWER: Admit.
15. In that response State Farm did raise its offer to $7,500.00.
ANSWER: Admit.
* * * *
18. As of June 25, 1988, State Farm had not accepted Plaintiff's settlement
demand.
ANSWER: Admit.
* * * *
25. As of June 25, 1988, Plaintiff believed that State Farm had delayed payment
of her claim.
ANSWER: Admit.
* * * *
27. As of June 25, 1988, State Farm had unreasonable [sic] delayed payment of
Plaintiff's claim.
ANSWER: Admit.
(Emphasis added).
We conclude that, when taken in the context of all the requests for admission and the
correspondence between the parties, request for admission number 27 clearly requested McIlroy
to admit that as of June 25, 1988, State Farm had unreasonably delayed payment of her claim for
uninsured-motorist benefits. Indeed, McIlroy's own letters in April and May make reference to
uninsured-motorist benefits. Further, when taken in context, the phrase "Plaintiff's claim" in
request for admission number 27 clearly included McIlroy's claim for uninsured-motorist benefits.
The request for admission cannot reasonably be read any other way.
A cause of action under the common-law duty of good faith and fair dealing accrues,
and the statute of limitations begins to run, when the insurance company "unreasonably fails to
pay an insured under the policy." Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 829
(Tex. 1990). Further, "[w]hen an insurance company unreasonably delays paying a claim it also
unreasonably fails to pay." Tectonic Realty Inv. Co. v. CNA Lloyd's of Tex. Ins. Co., 812 S.W.2d
647, 654 (Tex. App. 1991, writ denied). A cause of action for unfair claim-settlement practices
based on violations of the DTPA, the Insurance Code, and the Texas Administrative Code must
be brought within two years of the date when the unfair practice occurred. See Tex. Bus. & Com.
Code Ann. § 17.565 (1987); Tex. Ins. Code Ann. art. 21.21, § 16(d) (Supp. 1992). We have
concluded above that McIlroy, by her own admission, conclusively established as a fact that State
Farm had unreasonably delayed payment of her uninsured-motorist benefits no later than June 25,
1988. Accordingly, her claims for unfair claim-settlement practices had accrued by June 25,
1988. Nonetheless, she did not assert such causes of action against State Farm until July 19,
1990, more that two years after that date. Thus, McIlroy's bad-faith claims were barred by
limitations. (2)
CONCLUSION
Based on our foregoing discussion, we conclude that McIlroy's claims based on State
Farm's alleged unfair claim-settlement practices were barred by limitations as a matter of law.
Therefore, we overrule her four points of error and affirm the trial court's judgment.
J. Woodfin Jones, Justice
[Before Chief Justice Carroll, Justices Jones and Kidd]
Affirmed
Filed: August 12, 1992
[Do Not Publish]
1. We will refer to McIlroy's common law and statutory causes of action collectively as
her "bad-faith claims."
2. 2 We note that in her Eighth Amended Petition, McIlroy alleged nine separate statutory
violations on the part of State Farm. The trial court denied State Farm's motion for summary
judgment as to two of those alleged statutory violations, and those allegations were severed
into another cause. The trial court granted the motion for summary judgment as to the other
seven.
McIlroy does not make separate arguments based on each of the seven alleged statutory
violations; rather, she treats the seven allegations as a group and discusses only the concept of
unreasonable delay in payment. She seems to assume that an unreasonable delay in payment
by State Farm would start limitations as to all seven allegations; therefore, we do the same.
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469 B.R. 688 (2012)
In re TIMCO, LLC, Debtor.
Timco, LLC, Appellant,
v.
T & M Sales Agency, Inc., Appellee.
Civil Case Nos. 11-CV-12125, 11-CV-12126.
United States District Court, E.D. Michigan, Southern Division.
March 9, 2012.
*689 Sheldon S. Toll, Sheldon S. Toll Assoc., Southfield, MI, for Appellant.
Robert A. Peurach, Dakmak Peurach, Detroit, MI, for Appellee.
OPINION AND ORDER GRANTING TIMCO'S MOTIONS TO DISMISS
MARK A. GOLDSMITH, District Judge.
I. Introduction
Before the Court are Appellee's motions to dismiss the two pending appeals from bankruptcy court orders (filed here as Case No. 11-12125 and Case No. 11-12126), on the grounds of constitutional mootness. For the reasons below, the Court grants the motions.
II. Factual and Procedural Background
The parties are in agreement about the relevant facts of the appeals at issue. In June 2008, Appellee T & M Sales Agency, Inc. (T & M), filed suit in Oakland County Circuit Court against Debtor-Appellant Timco, LLC, seeking over $1 million for unpaid commissions. Prior to trial, T & M and Timco entered into a stipulation in which the parties agreed to submit T & M's claims against Timco to binding arbitration. Stipulation (Dkt. 6-2). The stipulation provided that any award entered in arbitration was to be a final award, which would be confirmed by the Oakland County Circuit Court, and would be binding on the parties and not appealable. Id. at 4. The stipulation was approved by the court and filed. Order of 4/23/09 (Dkt. 6-3).
The arbitration was conducted and on February 3, 2011, the parties were notified by letter that the arbitrators had agreed upon an arbitration award. Letter of 2/3/11 (Dkt. 6-4). The result was $930,000 awarded to T & M. Arbitration award at 3 (Dkt. 6-5). Before the arbitration award was confirmed by the Oakland County court, Timco initiated a Chapter 7 bankruptcy proceeding on February 22, 2011.[1]
The bankruptcy filing triggered an automatic stay in the Oakland County suit, pursuant to 11 U.S.C. § 362(a). T & M filed a motion for relief from the stay in the United States Bankruptcy Court for the Eastern District of Michigan on March 21, 2011, requesting that the court modify the stay to permit the continuation of the Oakland County suit so that the state court could issue a final judgment confirming the arbitration award. See Second Amended Designation of Record in Case *690 No. 11-12125 (Dkt. 21 in Bankruptcy Court No. 11-44445).
Prior to the hearing on the motion for relief from stay, however, Timco filed, on March 30, 2011, a notice of removal of the Oakland County suit to the Bankruptcy Court. See Second Amended Designation of Record in Case No. 11-12126 (Dkt. 1 in Bankruptcy Court No. 11-05170). In response, T & M filed a motion to remand the case to Oakland County Circuit Court. See Second Amended Designation of Record in Case No. 11-12126 (Dkt. 5 in Bankruptcy Court No. 11-05170).
On May 10, 2011 the Bankruptcy Court held a hearing on both the motion for relief from stay and the motion to remand. On the same day, the court entered orders granting both motions. Order of 5/10/11 regarding stay (Dkt. 6-6); Order of 5/10/11 regarding remand (Dkt. 6-7). Timco appealed both orders to this Court. Timco's appeal of the order granting relief from the stay is Case No. 11-12125; Timco's appeal of the order granting remand is Case No. 11-12126. Timco did not request a stay of either of the Bankruptcy Court's orders pending the outcome of the instant appeals.
On June 15, 2011, the Oakland County Circuit Court confirmed the Arbitration Award and entered judgment against Timco in the amount of $930,000. Timco did not appeal.[2]
In August 2011 T & M filed two practically identical motions to dismiss in the two pending bankruptcy appeals in this Court.[3] Timco responded, and the Court held a hearing on the motions on October 19, 2011.
III. Discussion
A. Parties' Arguments
T & M contends that dismissal is appropriate because the appeals before the Court are "constitutionally moot." T & M argues that there is no longer a live controversy between it and Timco because the underlying controversy was resolved when the Oakland County Circuit Court confirmed the arbitration award against Timco and entered it. Motion at 10. T & M further contends that because the order confirming the arbitration award is final, the resolution of the controversy between the parties is final. Id.
Timco contends that a live controversy exists because this Court could fashion some form of equitable relief. Response to Motion at 3 (Dkt. 11). Timco further argues that the bankruptcy court order granting relief from the stay was "erroneous," and suggests that this Court set aside that order, and enter an order voiding the state court judgment for violation of the automatic stay. Id. at 3-4.
B. Analysis
"Article III, Section 2 of the United States Constitution authorizes the federal judiciary only to hear cases or controversies, and therefore federal courts may not exercise jurisdiction when the controversy has been mooted, that is to say, when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." Gentry v. Deuth, 456 F.3d 687, 693 (6th Cir. 2006) (internal quotation marks and citations omitted). A claim becomes moot only "when the plaintiff receives the relief sought or when it is factually, not legally, impossible to receive such relief." In re *691 DSC, Ltd., 486 F.3d 940, 945 (6th Cir. 2007). The burden to demonstrate mootness is on the party arguing that the matter is moot. Id. at 946.
In light of these principles, the Court concludes that the current appeals are moot. The purpose for which T & M sought to lift the stay and remand to state court was for entry of a judgment by the state court. That has now occurred. Thus, whether the bankruptcy court erred in lifting the stay and remanding the case back to the state court is of no legal consequence.
This conclusion is supported by a published per curiam case in the Fifth Circuit, In re Scruggs, 392 F.3d 124 (5th Cir.2004), which addressed our issue in a procedurally more complicated backdrop. In Scruggs, the genesis of the ultimate mootness ruling was a divorce settlement agreement providing for a waiver of the wife's interest in the husband's pension. Shortly before his death, the former husband sought enforcement of the agreement in a Florida state court, but a bankruptcy filing by the former wife (and her new husband) in Texas triggered an automatic stay of the of the Florida enforcement action. The former husband's personal representative sought and was granted relief from the automatic stay in bankruptcy court. The bankruptcy court granted relief from the stay "to allow the Florida state court enforcement action to proceed to final judgment." The debtors timely appealed the order to federal district court. Id. at 127. While the appeal was pending, the estate representative filed a motion for final judgment in the Florida proceeding.[4] The state court issued a "final judgment" on November 2, 2002. There was no appeal, and the judgment became "final and no longer appealable" a month later on December 2, 2002. In August 2003, the federal district court reversed the bankruptcy court, and ordered that the automatic stay be reinstated. In September 2003, the estate representative appealed the district court order to the Fifth Circuit, where the debtors filed a motion to dismiss the appeal as moot. Id. at 127. The Fifth Circuit agreed with the debtors, reasoning that the matter became moot when the state court judgment became final:
When that state court judgment became final and no longer appealable on December 2, 2002, at a time when the automatic stay remained lifted for the limited purpose of letting that happen, the Article III case or controversy in the federal courts ceased to exist. Consequently, anything that the Bankruptcy Court or the district court purported to do with regard to that judgment after December 2, 2002 was moot for lack of a live controversy.
Id. at 129. Accordingly, the district court's subsequent order purporting to reverse the bankruptcy court and reinstate the automatic stay was void ab initio for lack of jurisdiction. Id. at 130.[5]
*692 Timco offers several reasons this Court should not follow Scruggs; however, none is convincing. First, Timco notes that the Fifth Circuit decision is non-binding. Scruggs is, of course, not binding precedent on this Court; however, its persuasive value is significant, given its citation in broader bankruptcy publications and its factual similarity to the instant case. Second, Timco distinguishes Scruggs by arguing that both parties in Scruggs agreed that the case was moot. While this is technically true, the debtors' position in Scruggs was that mootness did not occur until after the events described above, when in December 2003 they were discharged in bankruptcy and the automatic stay would have been automatically dissolved pursuant to statute. Id. at 127-28. Thus, the debtors had vigorously opposed the result that the court eventually reachedthat the matter was moot with the finality of the state court judgment. Third, Timco distinguishes Scruggs by arguing that Scruggs "involved a bankruptcy court order granting relief from the stay of divorce proceedings, in which federal courts are loath to become involved." Response at 5. While it is true that the state matter in Scruggs was related to the decedent's divorce, this is a distinction without a difference. Nothing in the Scruggs decision indicates that the subject matter of the state court proceedings was significant. Fourth, Timco states that "Scruggs did not involve, as this appeal does, the remand from the bankruptcy court of a removed action from state court, which remand [Timco] appealed asserting that it is erroneous." Id. Although Timco is correct as a factual matter, Timco does not explain (and the Court does not see) the significance of this difference to the mootness question. Fifth, Timco implies that the Sixth Circuit would not have taken the same action if it were presented with Scruggs because while "Scruggs placed great emphasis on the fact that the state court judgment became final and unappealable... to the contrary, the Sixth Circuit has not hesitated to apply bankruptcy code injunctive provisions to a state court judgment that was final and unappealable." However, the single case that Timco cites for the propositionIn re Hamilton, 540 F.3d 367 (6th Cir.2008) did not concern a mootness question at all. Rather, the Hamilton court had before it the question of whether a state-court judgment that modified a discharge in bankruptcy was void ab initio. The court determined that such a judgment was void ab initio and that the Rooker-Feldman doctrine would not bar federal-court jurisdiction over the debtor's complaint. It is not at all clear how the Hamilton decision would relate to a question of mootness in the factual context present here.
Finally, Timco seems to raise an indirect argument against Scruggs by citing In re Federated Department Stores, Inc., 44 F.3d 1310 (6th Cir.1995) as an example of a case where the losing party did not obtain a stay pending the appeal of bankruptcy court orders against it, yet the eventual appeal of those orders was not moot. Federated is not that useful as an independent argument. To the extent that Timco means for Federated to stand for the proposition that the failure to obtain a stay pending appeal will not always result in mooting the appeal of the orders in question, such a proposition is uncontroversial. T & M does not argue otherwise. And, the law is clear that "[i]f the appellant does not obtain a stay pending appeal, then the appeal may be constitutionally or equitably moot." Bankruptcy Law Manual § 2:50 (emphasis added).
To the extent that Timco might argue that Federated stands for the proposition that the failure to obtain a stay does not mean the instant appeal is mooton the theory that T & M knew the order was *693 subject to reversal on appeal and should not be relied onsuch a conclusion is not warranted. In Federated, the court rejected the claim of the Defendant-Appellee Lehman Brothers that equity required dismissal of the appeal of the bankruptcy court order authorizing the retention of a financial advisor because Lehman had provided services in reliance on the bankruptcy court's presumptively valid approval. 44 F.3d at 1317. In rejecting Lehman Brothers' argument, the court concluded that "[f]rom the outset, Lehman Brothers knew the Trustee objected to its appointment and it elected to continue providing services to the estate knowing that the retention order would be reviewed de novo on appeal and would be subject to reversal. Thus the Trustee's failure to seek or obtain a stay of the bankruptcy proceeding does not moot this appeal." Id. The court's pronouncement makes clear that it was conducting an equitable mootness analysis. In contrast, the instant case presentsas T & M explicitly claimsa constitutional mootness claim. Although T & M notes that Timco did not bother to stay the bankruptcy court order against it, that is not the basis of its mootness claim. Thus, the Federated decision does not change this Court's analysis.
For the above reasons, Timco presents no reason not to apply the rationale employed in Scruggs to the instant case.
Further, Timco's other arguments are meritless. Timco's contention that a live controversy exists because this Court could fashion some form of equitable relief is incorrect. The only example of relief that Timco offers is voiding the state court judgment for violation of the automatic stay. However, the state court did not violate the automatic stay as it acted only after the bankruptcy court had lifted the stay. Importantly, none of the cases that Timco cites in support of this argument involves the state court acting after the bankruptcy court had lifted the stay.[6]
Timco's claim that the state court judgment is invalid because the stay was erroneously lifted is also rejected. As the Court has already concluded, Timco's challenge to the order lifting the stay is moot. Timco cites no authority in support of its claim that addresses the circumstances of this case. Rather, Timco cites several cases for the uncontroversial proposition that state court judgments issued in violation of an automatic bankruptcy stay are void. Again, here, the stay was lifted when the state court acted.
IV. Conclusion
For the foregoing reasons, T & M's motions to dismiss (Dkt. 6 in 11-12125 and Dkt. 6 in 11-12126) are granted. The appeals are dismissed as moot.
SO ORDERED.
NOTES
[1] The arbitration award was not dated. However, T & M maintains (without challenge by Timco) that, on February 23, 2011, the Oakland County judge notified the parties that the arbitration award had been delivered to that court.
[2] With regard to the state court order, T & M asserts in its motion that "Timco did not appeal the Judgment and it has now become final pursuant to MCR 7.204." Motion at 9. Timco does not dispute this point.
[3] The sole difference between the motion filed in 11-12125 and the motion filed in 11-12126 mirrors the slight difference in the caption between the two appeals.
[4] At this point, the debtors requested that the Bankruptcy Court order granting relief from the automatic stay be stayed itself; the motion was later denied. Id. at 127.
[5] It is worth noting that Scruggs remains good law and has been referenced in bankruptcy-law publications. See 3 Bankruptcy Desk Guide § 37.17, n.24 and accompanying text (explaining the circumstances under which an appeal from an automatic stay is or is not moot: "[a]n appeal of an order lifting the automatic stay is also moot where the stay was lifted to allow a state court property settlement enforcement action to proceed, it proceeded to judgment, and time to appeal that judgment had passed"); Hon. Nancy C. Dreher, Bankruptcy Law Manual § 2:50, n.34 and accompanying text (5th ed. 2011) ("an appeal in bankruptcy may be rendered moot by events which occur subsequent to the filing of the notice of appeal, even if effective relief may be granted").
[6] Timco does not argue that equitable relief in the form of preventing collection on the judgment demonstrates a lack of mootness, nor would such an argument have merit. The issue in these appeals is whether any relief is available with respect to the orders lifting the stay and remanding the state case to state court for entry of a judgment. Whatever equitable relief the bankruptcy court may have to stay collection of the judgment does not bear on whether appellate review of the bankruptcy court orders is moot.
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659 So.2d 785 (1995)
STATE of Louisiana,
v.
Johnny T. PHILLIPS.
No. 94-KA-673.
Court of Appeal of Louisiana, Fifth Circuit.
March 1, 1995.
*786 John M. Mamoulides, Dist. Atty., Terry M. Boudreaux, Asst. Dist. Atty., Louise Korns, of counsel, Office of the Dist. Atty., Gretna, for plaintiff/appellee.
Bruce G. Whittaker, 24th Judicial District, Indigent Defender Bd., Gretna, for defendant/appellant.
Before DUFRESNE, WICKER and GOTHARD, JJ.
GOTHARD, Judge.
On November 19, 1992, defendant, Johnny Phillips, was charged by grand jury indictment with the second degree murder of Ronald Petit, in violation of LSA-R.S. 14.30.1. He was arraigned on December 21, 1992 and entered a plea of not guilty. After a jury trial on the merits, the defendant was found guilty as charged on May 2, 1994. On June 3, 1994 he was sentenced to imprisonment at hard labor for a term of life, without benefit of parole, probation or suspension of sentence. On that same day the defendant gave notice of his intent to appeal the verdict and sentence.
FACTS
On January 13, 1992, members of the victim's family reported to Jefferson Parish Sheriff's Office that they had not seen him since the previous December and were concerned for his welfare. Sergeant Melvin Stokes, who was assigned to investigate the matter, spoke with Mr. Petit's sister, Rose Louviere. She advised the officer that Petit had a roommate named "Johnny", who was subsequently identified as the defendant. *787 The victim's family also told officers that someone had been using Petit's credit cards. Sergeant Stokes went to the victim's residence in Harvey. He found no signs of forced entry or evidence of foul play. Continuing his investigation, the officer interviewed the assistant principal of Landry High School, where the victim was employed as a teacher. He was informed that Petit left school on the afternoon of December 20, 1991 and did not return as scheduled after the holidays. Further interviews with other teachers who knew the victim revealed that it would be unusual behavior for Petit to leave his pets unattended.
In his effort to locate the victim, Sergeant Stokes spoke with Allie Martin, the defendant's girlfriend, and later with the defendant, who gave the sergeant a written statement on January 23,1992. In that statement the defendant related that he lived with the defendant off and on for about six years. He stated that he last saw the victim on the morning of December 21, 1991 when Mr. Petit left in a "Winnabago" type van for a cross-country trip. The defendant maintained that he spoke to Petit on the telephone on the 23rd when Petit asked him to take care of the pets and to send flowers to his father and step-mother in Houma for Christmas. Phillips agreed to do as Petit asked. The defendant stated that Petit did not indicate from where he was calling, and defendant did not ask; but Phillips said that he heard music and laughter in the background. The defendant denied using the victim's credit cards and automatic bank teller card, or making long distance calls in Mr. Petit's name. Sergeant Stokes interviewed the defendant again on February 18, 1992, but received no further information.
The investigation was turned over to Lieutenant Kevin Theriot who continued to question the defendant. At that time the defendant told police he last saw the victim at about 12:30 A.M. on the morning of December 21, 1991, when Petit went to bed depressed. The defendant said that later that morning he saw a "beige Coachman van" leave the residence and assumed that Petit left in it. Again the defendant denied using the victim's credit card or ATM card. When Lieutenant Theriot advised the defendant that other witnesses contradicted that fact, the defendant reluctantly admitted he used Petit's credit card and ATM card. He told Lieutenant Theriot that he had written permission from Petit to use the cards and his automobile. However, no such document was produced by the defendant. Police officers obtained a search warrant for Petit's home but found nothing to help in the investigation.
Subsequently, on March 29, 1992, the Sheriff's Office received a report that a body had been found buried in a shallow grave in a remote area near a canal in Lafitte, Louisiana. Detective Ralph Sacks later arrived at the location, secured the scene and contacted the necessary personnel to exhume the body the following day. Before leaving the area, Detective Sacks was notified that there were two females at the fire station in Lafitte who were requesting to see a detective. After arriving at the station, he spoke with the two females, Allie Martin and Deolia Baldassaro. Ms. Martin, the defendant's girlfriend, was "extremely upset ... she looked like a basket case ... just very emotional" and she was inquiring if the police had unearthed the remains of Petit.
The next day Detective Sacks returned to the area along with Mary Manhein, a forensic anthropologist, who would assist with the recovery of the body. They found numerous papers in the vicinity of the grave site. Some of the papers bore the names "Ron Petit" and "Johnny Phillips" and seven of the papers were receipts from ATM transactions. All seven stated that "amt exceeds limit" and one also noted that a withdrawal in the amount of $180.00 had been made. Additionally, the receipts indicated that those transactions were conducted between 1:40 a.m. on December 21, 1991 and 8:17 p.m. on December 22, 1991. They also found a wallet which contained an identification card bearing the name "Ron Petit."
Ms. Manhein subsequently exhumed the body which was wrapped in a green vinyl tablecloth and secured with twine. In the grave, there were also two cigarette butts, one beneath the body and the other near the surface. Ms. Manhein stated that it was not *788 possible to determine exactly how long the body had been buried. Her opinion was that the body could have been in the grave as little as three weeks prior to discovery, but that it could possibly have been there since December 20, 1991.
Dr. Fraser Mackenzie performed an autopsy on the body which was subsequently identified as Petit's. He noted that the hands and feet were tied behind the back with a cord and a chain. The eyes were blindfolded with black electrical tape and a red bandanna, and the mouth was gagged with half of a pillowcase and black electrical tape. Inside of the mouth, "stuffed all the way in the very back of the throat," there was a white sock with a "red ring at the top". In Dr. Mackenzie's opinion, Petit's death was a homicide caused by "occlusion of the nasal and oral passages by blocking the back of the throat so he couldn't breath." He estimated that death occurred within a range of two weeks to six months before the body was discovered.
After the body was found, Lieutenant Theriot again searched Petit's residence where he found twine and electrical tape similar to that used to bind the body. Lieutenant Susan Rushing took over the investigation and she interviewed family members and neighbors of Petit. After obtaining the consent of Herbert Petit, the victim's brother, she searched the residence and seized 39 "athletic socks" from the dresser in the defendant's bedroom. She later searched the residence a second time and recovered half of a pillowcase in the utility room under several items of debris. She also noticed that there was a pillowcase missing from the defendant's bedding.
The F.B.I. laboratory analyzed several items of evidence, reaching certain conclusions to which various members of the organization testified. Agent Douglas Deedrick, an expert in hair and fiber identification, found no difference between the pieces of twine recovered from Petit's body and the twine found at the residence. Also, he determined that the half of the pillowcase from the gag matched the half of the pillowcase recovered from Petit's residence.
Agent Richard Buechele, an expert in materials analysis, found that the black electrical tape removed from the blindfold and gag was "consistent" with the black electrical tape recovered from the residence.
The State presented several other witnesses. Among them was Bobby Gene Posey, who testified that when he was a cell mate of the defendant in August of 1992, the defendant told him that he was charged with using his roommate's ATM card, and that he would soon be charged with his roommate's murder. The defendant noted that his roommate was killed in the house and that when he was found he had a gag in his mouth with tape across it and his hands, and legs were tied up behind his back with a rope and chain. He stated that the body was found at "his favorite fishing hole" in Lafitte and that he was worried that his fingerprints were on the tablecloth which was used to wrap the body. Posey added that, although the defendant admitted using the ATM card to obtain money from his roommate's account, he did not admit killing his roommate. Posey said the defendant recounted an argument he had with his roommate shortly before Christmas when he called his roommate's girlfriend a "whore".
Anthony J. Pierce testified that, when he was the defendant's cell mate, he found a letter written by the defendant which stated "I ... did the crime and now I must do the time." Pierce also stated that "he had tied his roommate up and suffocate (sic) him and bury (sic) him" at one of his fishing spots in Lafitte and that he had thrown papers around the grave site.
Hubert Gervis, Petit's neighbor, testified that in November of 1991 Petit came over to his residence after a confrontation with the defendant and Petit was "real scared." He further stated that the defendant did move out of Petit's residence and the locks were changed; however, the defendant later moved back in as Petit's roommate.
Several other witnesses testified that the victim was fearful of the defendant and tried to evict him from the residence. Rose Louviere, Petit's sister, testified that Petit was "fearful for his life" and very afraid of the defendant. Thomas M. Gereighty, an attorney *789 who represented Petit in a civil matter, testified that he advised Petit to change the locks on his house and to avoid meeting with the defendant. Evelina Doakes, Petit's friend, testified that when she spoke to the defendant on the telephone on December 20, 1991, his voice sounded as though he was frightened.
Deborah Olsen testified that on December 23, 1991 she was employed by a "900" sex talk line and on that date she received a call from someone representing himself to be Petit. According to Olsen, the unusual thing about the call was that they did not talk about sex. Peggy Fourroux, the defendant's former girlfriend, testified that the defendant made approximately 20 calls to "900" sex chat lines.
Curtis Verdin testified that he went fishing with the defendant and had once accompanied him to a fishing spot near where the body was found. He also observed the defendant withdraw $200.00 from an ATM outlet.
Deolia Baldassaro testified that in December of 1991 or January of 1992, she accompanied Allie Martin and the defendant to an ATM outlet where the defendant withdrew a sum of money. Considering the defendant's spotty employment history, she found that surprising.
Deborah Westfall testified that for New Year's Eve of 1991, the defendant spent $200.00 on fireworks, an unusually large expenditure for him in her experience.
Rosa Chappelear, an officer with Petit's bank, testified that as of December 20, 1991, Petit had $4,073.50 in his account. By January 23, 1992 the account was debited with ATM withdrawals resulting in a balance of $361.99. Between those dates, there were numerous ATM withdrawals in the amount of $200.00.
Fred Linder, a credit card fraud investigator with Citibank, testified that he investigated Petit's Visa account. He found that the card usage followed a fairly consistent pattern until December of 1991 and January of 1992. In particular, he found thirteen charges made at a Shell gas station between December 21, 1991 and January 10, 1992, whereas prior to that time there were only four charges at the station.
Allie Martin, the defendant's former girlfriend, testified that in December of 1991 she observed an argument between the defendant and Petit. Shortly thereafter, she noticed that the defendant had more money than he had previously. She also stated that when she learned that a body had been found in Lafitte, she contacted the police to find out if it was Petit.
LAW
On appeal the defendant assigns four errors. In the first assignment he asserts that the trial court erred in allowing Petit's attorney to testify regarding "legal advice" given because it violates the attorney-client privilege. During the trial, the State called Thomas M. Gereighty to the stand. Gereighty testified that he is an attorney who represented Petit in a "trip-and-fall-type accident" which occurred at Audubon Park. Pursuant to that representation, Gereighty drove Petit and safety expert, Bill Gallardo, to the Park in order to perform a safety inspection "under discovery" in October or November of 1991. While they were driving to or from the Park, Petit, the front seat passenger, informed Gereighty of a confrontation that he had with the defendant. Gereighty advised him to change the locks on his house and to avoid any type of meeting with the defendant. At the time of the conversation, Gallardo was sitting in the rear seat of Gereighty's vehicle. The trial court permitted Gereighty to testify reasoning that, since the statements were made in the presence of Bill Gallardo, a third party, the conversation was not a confidential communication.
Defendant bases his argument on LSA-R.S. 15:475, which was in effect at the time of the conversation at issue,[1] and provided as follows:
*790 No legal adviser is permitted, whether during or after the termination of his employment as such, unless with his client's express consent, to disclose any communication made to him as such legal advisor by or on behalf of his client, or any advice given by him to his client, or any information that he may have gotten by reason of his being such legal adviser.
R.S. 15:475 and the case law interpreting it involves situations in which the client is also the defendant. The flaw in defendant's argument is that the defendant is not the client, had no relationship with the attorney and, therefore, cannot invoke the attorney-client privilege. It is the victim and his legal representatives, not the defendant, to whom privilege belongs. LSA-C.E. 506; State v. Maillian, 464 So.2d 1071 (La.App. 1st Cir.1985), writ den. 469 So.2d 982 (La. 1985). R.S. 15:475 is inapplicable to this factual circumstance and the defendant's arguments regarding the confidentiality issue are irrelevant.
In his next assignment defendant argues that the trial court erred in permitting Deborah Westfall to testify concerning statements allegedly made by appellant without the state having previously disclosed the statements in discovery or by way of pretrial notice pursuant to LSA-C.Cr.P. art. 768.
LSA-C.Cr.P. art. 768 provides as follows:
Unless the defendant has been granted pretrial discovery, if the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state's opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.
The purpose of the notice is to avoid surprise and to allow fair opportunity to plan or present a defense in light of the damaging statement. State v. Billiot, 421 So.2d 864 (La.1982). An "inculpatory statement" within the meaning of this article refers to an out of court admission of incriminating facts made by the defendant after the crime has been committed. An incriminating statement is one which admits a fact tending to establish guilt, or from which guilt may be inferred. State v. Bodley, 394 So.2d 584 (La.1981). Improper introduction of inculpatory statements mandates reversal only if the accused is prejudiced by failure to disclose. State v. Grant, 517 So.2d 1151 (La.App. 5th Cir.1987).
At trial, Deborah Westfall testified that in February of 1992 the defendant told her the police thought he had killed Petit and had buried him in the backyard, "but he said it wasthe guy wasn't buried back there."
Following the conclusion of her direct examination, defense counsel approached the bench and stated that he had not been given any notice of Westfall's testimony, which, in his view, included inculpatory statements. Defense counsel then stated that he would do what he could on cross-examination and he noted that he wanted to preserve the record because he thought the State was not giving him proper notice "of these things."
Subsequently, during cross-examination, Westfall elaborated on the statement by testifying as follows:
Q. You testified that Mr. Phillips [defendant] thought that the police thought that he had killed him [sic] roommate and buried him in the backyard; is that what you said?
A. Yes.
Q. Okay. And you said that Mr. Phillips told you that he wasn't buried in the backyard.
A. Yes.
Q. Did Mr. Phillips tell you he knew where he was buried?
A. No.
Q. In fact, he said he knew he was not buried in the backyard
A. Yes.
Q. because there was a tomato
A. Right.
Q. garden in the backyard.
A. Yes.
Q. And that's what he was working on.
A. Uh-huh (affirmative response).
Q. Did he tell you that the police told him in an interview that he thought or that *791 they thought he buried him in the backyard?
A. No.
The defendant claims that the statement was inculpatory in the manner used because it raised an inference that the defendant knew where Petit's body was buried. We disagree. The statement as a whole did not tend to establish or infer guilt so as to be considered inculpatory. The statement merely revealed that the defendant knew Petit's body was not buried in the backyard because there was a tomato garden there which the defendant maintained. Therefore, compliance with LSA-C.Cr.P. art. 768 was not a necessary prerequisite to the admission of the testimony.
Moreover, the defendant does not suggest how his defense would have been different had he been apprised of the State's intention to use the statement nor does he allege any prejudice from the failure to provide notice.
In his third assignment of error, the defendant asserts the trial court erred in permitting a state witness to testify in such a way as to "summarize" the state's case against the defendant in testimony that by its very nature was replete with inadmissible hearsay. The basis of the argument is testimony offered by Lieutenant Susan Rushing. Before the State called Lieutenant Rushing to the stand, defense counsel, at a bench conference, requested that the trial court limit the testimony "to only that of which she has personal knowledge ... thereby speeding things up if we have her take the case from where she received the case and then to the conclusion of the case." When the trial court questioned him about the request, he noted that "any testimony as to what occurred during the missing persons investigation in December is only hearsay to Ms. Rushing", but the court refused "to limit her in that regard."
Lieutenant Rushing subsequently testified that the telephone records of Petit's residence revealed that a "one nine hundred" call to a "sex line" was made on December 23, 1992 and that prior to that time no other such calls were made. She stated that the telephone records of Peggy Fourroux's residence indicated that when the defendant resided with her there were in excess of twenty "one nine hundred" calls to a "sex line" made from her residence. She also stated that the bank records of Petit showed that following his disappearance, his ATM card which had only been used three times in 1991, had been used numerous times thereby reducing the account balance from in excess of $4,000 to approximately $351.00.
She stated that the defendant's employment records revealed that he worked for Delta Catering Co. as a galley hand and then he worked for Professional Divers as a dive tender. His employment with Professional Divers began in July of 1991 and ended on September 29,1991, and from that date there was no record of any other employment.
She testified that Petit's medical records reflected that in May of 1991, he sought treatment for an injury to his hand and in December of 1991, he was diagnosed as having an upper respiratory tract infection.
Lieutenant Rushing said her investigation revealed that Petit never wore athletic socks, that the F.B.I. determined that a sock, which was removed from a dresser drawer in the defendant's bedroom and which appeared to be quite similar to the one found in Petit's throat, did not "match exactly" the sock found in the throat, that the F.B.I. informed her that there was a green fiber located on the sock which was found in Petit's throat, and that Petit's clothes were removed from his residence by his family.
She noted that the F.B.I. advised her that it would be a duplication of efforts to compare twine collected in the utility room to the twine removed from Petit's body considering it appeared to be the same as other twine found in and outside of the residence. She also noted that an R.J. Reynolds chemist examined the cigarette butts recovered from the grave site, but he was only able to determine that they were one hundred millimeter length cigarettes as opposed to standard size cigarettes.
She also stated that the Assistant Principal of Landry High School informed her that Petit failed to report back to work on January *792 6, 1992 and that he was not granted an additional week of vacation time.
She further testified that Anthony Pierce, the defendant's former cell mate, found a piece of paper under the defendant's bunk, which had several lines written on it.
The defendant argues that the above testimony is inadmissible hearsay and its admission constituted reversible error.
Hearsay evidence is defined in Code of Evidence Article 801 C as, "a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted." We have reviewed the testimony in question and find that the defendant's point is well taken as to some parts. However, we do not find the admission of the testimony to warrant reversal.
The proper analysis for determining harmless error is "not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error". Sullivan v. Louisiana, ___ U.S. ___, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); State v. Code, 627 So.2d 1373 (La.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1870, 128 L.Ed.2d 491 (1994), rehearing denied, ___ U.S. ___, 114 S.Ct. 2775, 129 L.Ed.2d 887 (1994).
Considering that the admissible evidence presented at trial overwhelmingly established that the defendant killed Petit by suffocating him, it is beyond doubt that the guilty verdict was unattributable to any erroneously admitted hearsay testimony. As such any error was harmless.
In the final assignment of error the defendant requests a review of the record for errors patent on the face. We have conducted such a review and find two errors. First, the hard labor sentencing form fails to reflect that the defendant was given credit for time served in accordance with C.Cr.P. art. 880. Second, at the time of sentencing, the trial court did not inform the defendant of the prescriptive period for post-conviction relief as is mandated by LSA-C.Cr.P. art. 930.8(C).
We amend the hard labor form to reflect that the defendant is given credit for time served. Additionally, the trial court is directed to inform the defendant of the Art. 930.8 provisions by sending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file written proof of defendant's receipt of such notice in the record of the proceedings.
The defendant's conviction and sentence are affirmed as amended and the matter remanded for further action consistent with this opinion.
AFFIRMED AS AMENDED; REMANDED
NOTES
[1] LSA-R.S. 15:475 was repealed on January 1, 1993 with the enactment of Chapter 5 of the Louisiana Code of Evidence; however, communications made prior to the above date, which are subject to a valid claim of privilege under the prior law, retain their privileged character unless waived. Louisiana Acts 1992, No. 376, Section 6.
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347 F.3d 431
Johnny RICHARDSON, Plaintiff-Appellant,v.Glenn S. GOORD, C. Coyne, Dr. Mathew, Auburn Correctional Facility, Dick Hunter, Auburn Correctional Facility, Defendants-Appellees.
Docket No. 02-289.
United States Court of Appeals, Second Circuit.
Submitted: August 6, 2003.
Decided: October 22, 2003.
Johnny Richardson, Auburn, NY, Appellant Pro Se.
Eliot Spitzer, Attorney General Of the State of New York, New York, N.Y. (Andrea Oser, Assistant Solicitor General, Martin A. Hotvet, Assistant Solicitor General) for Defendants-Appellees.
Before: JACOBS, and SOTOMAYOR, Circuit Judges.*
PER CURIAM.
1
Plaintiff Johnny Richardson ("Richardson") appeals from the judgment of the United States District Court for the Northern District of New York (Kahn, J.) granting summary judgment in favor of defendants and dismissing this 42 U.S.C. § 1983 action. Richardson, an inmate at a New York State correctional facility, alleges that his Eighth Amendment rights were violated when he was denied the night-time dosage of a prescription drug for relief of back pain.
2
The appellate record is insufficiently clear to ascertain whether Richardson exhausted his administrative remedies as required under the Prison Litigation Reform Act ("PLRA"). See 42 U.S.C. § 1997(e). Since this Court has not yet decided whether exhaustion of remedies is a jurisdictional requirement under the PLRA, we must consider that question before we can turn to the merits. For the reasons that follow, we conclude that failure to exhaust administrative remedies is not a jurisdictional predicate, that summary judgment was properly granted as to all defendants except Commissioner Goord, and that as to him, the judgment is vacated and remanded for further consideration as to exhaustion or the merits, or both.
3
* Richardson, an inmate at New York Auburn Correctional Facility ("Auburn"), suffers from back pain. Dr. Gregory Mathew ("Dr. Mathew"), who was a doctor at Auburn and is one of the defendants, prescribed pain medication to be taken four times a day, the last dose at 9:00 p.m. Richardson alleges, however, that the defendants refused to give him the 9:00 p.m. dose for logistical reasons, either because no one was available to escort him to the clinic at that time, or because it was impractical to distribute medicine to his cell at that hour, or for some other reason. A substituted non-prescription pain reliever was administered, which was not efficacious. Richardson alleges that he complained to defendant Christine Coyne ("Coyne"), the Auburn nurse administrator, who informed him that Dr. Graceffo, the facility medical officer, had altered Dr. Mathew's prescription and that the 9:00 p.m. dose was no longer prescribed.
4
Richardson named as defendants Dr. Mathew and Coyne, as well as Dick Hunter ("Hunter"), the pharmacy supervisor at Auburn, and Glenn S. Goord ("Goord"), Commissioner of the New York State Department of Correctional Services. Richardson alleges that he wrote a letter to Goord advising that Richardson was suffering great pain because of the withholding of the 9:00 p.m. dose of pain killer.
II
5
The initial question is whether exhaustion of administrative remedies is jurisdictional. See Ortiz v. McBride, 323 F.3d 191, 195 (2d Cir.2003) ("[W]e cannot consider [this] Fourteenth Amendment claim until our jurisdiction to hear it is established."). In Davis v. New York, 316 F.3d 93, 101 (2d Cir.2002), we remanded an inmate's § 1983 claim for the district court to determine whether defendants had waived compliance with the exhaustion requirement, a ruling that implicitly indicates that exhaustion is not jurisdictional. Sister circuits that have ruled on this subject have held that exhaustion is not jurisdictional. See Casanova v. Dubois, 289 F.3d 142, 146-47 (1st Cir.2002); Ali v. District of Columbia, 278 F.3d 1, 5-6 (D.C.Cir.2002); Chelette v. Harris, 229 F.3d 684, 686-88 (8th Cir.2000); Perez v. Wis. Dep't Corr., 182 F.3d 532, 535-36 (7th Cir.1999); Wright v. Morris, 111 F.3d 414, 421 (6th Cir.1997).
6
In Perez, which involved an Eighth Amendment claim brought under § 1983 for allegedly inadequate medical treatment, see 182 F.3d at 535-36, the Seventh Circuit reasoned that unless the failure to exhaust administrative remedies is "essential to the existence of the claim, or to ripeness, and therefore to the presence of an Article III case or controversy," the exhaustion requirement does not affect jurisdiction under §§ 1331 and 1343. Id. Numerous circuits have pointed out that § 1997(e) lacks the "sweeping and direct language that would indicate a jurisdictional bar rather than a mere codification of administrative exhaustion requirements." Casanova, 289 F.3d at 147 (quoting Ali, 278 F.3d at 5-6). See also Wright, 111 F.3d 414, 421 (6th Cir.1997); Chelette, 229 F.3d at 687-88. We are persuaded by the reasoning of these cases and we likewise conclude that exhaustion is not jurisdictional.
7
Nevertheless, a prisoner must exhaust his or her administrative remedies prior to filing a claim under § 1983. See 42 U.S.C. § 1997e(a). The magistrate judge noted that there was a material dispute as to whether Richardson in fact exhausted his administrative remedies, but ultimately granted summary judgment to defendants on other grounds. As we hold below that summary judgment as to one of the defendants was inappropriate, a question remains for decision on remand as to whether Richardson failed to exhaust his administrative remedies.
III
8
As to the merits, the District Court correctly dismissed the claim against Dr. Mathew, Coyne and Hunter as meritless because Richardson failed to show that those defendants' acts or omissions evidenced deliberate indifference to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104-06, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); see also Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir.1996) (holding that the Eighth Amendment is violated when the medical need is serious and prison officials are deliberately indifferent to the inmate's needs).
9
Dr. Mathew prescribed the pain killer to Richardson and directed that it be administered four times a day, including at 9:00 p.m. Richardson is not complaining about the medicine prescribed; his complaint is that it was not administered often enough. But there is no evidence that Dr. Mathew altered the prescription or had personal involvement in the decision to eliminate the night-time dose. The revised prescription — omitting the 9:00 p.m. dose — was issued by Dr. Graceffo, who is not named as a defendant. Coyne, the Auburn nurse administrator, was responsible for ministrations consistent with the revised prescription; she obviously had no authority to administer a 9:00 p.m. dose contrary to Dr. Graceffo's instruction. Similarly, there is no showing that Hunter, the pharmacy supervisor, did anything other than prepare dosages consistent with the revised prescription. With respect to these defendants, the record demonstrates routine performance of routine medical responsibilities, not deliberate indifference to medical needs. As to these defendants, Richardson's claims were properly dismissed.
IV
10
As to Goord, the record is insufficient to show whether he had knowledge of Richardson's condition sufficient to support liability based on his inaction. "[S]upervisor liability in a § 1983 action depends on a showing of some personal responsibility, and cannot rest on respondeat superior." Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir.2003) (citing Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir.1989)). To establish the liability of a supervisory official under § 1983, a plaintiff must show the defendant's personal involvement in the alleged constitutional violations. See Green v. Bauvi, 46 F.3d 189, 194 (2d Cir.1995). By the same token, however, mere "linkage in the prison chain of command" is insufficient to implicate a state commissioner of corrections or a prison superintendent in a § 1983 claim. Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.1985); see also Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (noting that a defendant in a § 1983 action may not be held liable for constitutional violations merely because he held a high position of authority).
11
Supervisor liability under § 1983 "can be shown in one or more of the following ways: (1) actual direct participation in the constitutional violation, (2) failure to remedy a wrong after being informed through a report or appeal, (3) creation of a policy or custom that sanctioned conduct amounting to a constitutional violation, or allowing such a policy or custom to continue, (4) grossly negligent supervision of subordinates who committed a violation, or (5) failure to act on information indicating that unconstitutional acts were occurring." Hernandez, 341 F.3d at 145; see also Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995).
12
Richardson testified at his deposition that he wrote Goord a letter complaining that the 9:00 p.m. dosage was being withheld and that he was suffering great pain at night. The present record is sketchy. Richardson testified that he did not have a copy of the letter because it was missing from his cell. It is unclear what Richardson's letter said, when it was written, and whether any prison officials can locate a copy. However, the evidence may create an issue of fact as to whether Goord was deliberately indifferent to Richardson's medical needs. The same evidence may bear upon whether Richardson exhausted his administrative remedies. Accordingly, we vacate and remand to the district court for further fact-finding with respect to Goord's knowledge of Richardson's condition.
13
We recognize that it is unclear in this Circuit whether attempts to lodge informal grievances can satisfy the exhaustion requirement. However, this Court recently ordered appointment of counsel in five pending appeals to brief the question of whether New York State inmates who do not fully comply with the state's formal grievance procedure may nevertheless exhaust their claims in other ways. See Scheduling Order (July 18, 2003) (ordering joint argument in Johnson v. Reno, No. 02-0145 (2d Cir.2003); Ortiz v. McBride, 323 F.3d 191 (2d Cir.2003); Abney v. New York Dep't of Corr. Servs., No. 02-0241 (2d Cir.2003); Hemphill v. New York, No. 02-0164 (2d Cir.2002); Giano v. Goord, No. 02-0105 (2d Cir.2002)); see also Ortiz, 323 F.3d at 195-96 (2d Cir.2003).
14
For the foregoing reasons, the judgment in favor of defendants Dr. Mathew, Coyne and Hunter is affirmed. As to defendant Goord, the judgment is vacated, and the case is remanded for further proceedings consistent with this opinion.
Notes:
*
The Honorable Fred I. Parker, who was a member of the panel, died following argument, and the appeal is being decided by the remaining two members of the panel, who are in agreementSee 2d Cir. R. § 0.14(b).
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301 F.2d 255
112 U.S.App.D.C. 173
Henry S. BUSH, Appellant,v.UNITED STATES of America, Appellee.
No. 16544.
United States Court of Appeals District of Columbia Circuit.
Argued March 1. 1962.Decided March 15, 1962, Motion for Reconsideration DeniedMarch 29, 1962,
Appeal from the United States District Court for the District of Columbia; Joseph R. Jackson,District Judge.
Mrs. Dovey J. Roundtree, Washington, D.C., for appellant.
Mr. William H. Collins, Jr., Asst. U.S. Atty., with whom Messrs. David C. Acheson, U.S. Atty., Nathan J. Paulson and Harold H. Titus, Jr., Asst. U.S. Attys., were on the brief, for appellee. Messrs. Charles T. Duncan, Principal Asst. U.S. Atty., Frank Q. Nebeker and Anthony G. Amsterdam, Asst. U.S. Attys., also entered appearances for appellee.
Before EDGERTON, WASHINGTON and DANAHER, Circuit Judges.
PER CURIAM.
1
This is an appeal from a conviction for violation of the abortion statute, D.C.Code, 22-201 (1961). One Hunt was convicted as the person who performed the abortion, cf. Hunt v. United States, 1962, 112 U.S.App.D.C. , 301 F.2d 255. Appellant Bush was convicted as the person who procured it. After considering the contentions advanced by appellant, we find no error affecting substantial rights.
2
Affirmed.
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46 So.3d 985 (2009)
EX PARTE FRANK WILLIE WATKINS.
No. CR-08-0574.
Court of Criminal Appeals of Alabama.
March 18, 2009.
DECISION WITHOUT PUBLISHED OPINION
Mandamus petition dismissed.
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805 F.2d 384
126 L.R.R.M. (BNA) 2638
Donald J. DEVINE,1 Petitioner,v.NATIONAL TREASURY EMPLOYEES UNION, Respondent.
Appeal No. 83-1409.
United States Court of Appeals,Federal Circuit.
Nov. 13, 1986.
Michael A. Gordon, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued, for petitioner; with him on the brief were Richard K. Willard, Acting Asst. Atty. Gen. and David M. Cohen, Director. Steven Ash, I.R.S., Washington, D.C., of counsel and Steven Abow, U.S. Office of Personnel Management, Washington, D.C., of counsel.
Mary H. Haller, Asst. Counsel, Nat. Treasury Employees Union, Washington, D.C., argued, for respondent; with her on the brief were Lois G. Williams, Director of Litigation and Kerry L. Adams, Asst. Director of Litigation.
Before RICH, DAVIS, and BALDWIN, Circuit Judges.
ORDER
RICH, Circuit Judge.
1
National Treasury Employees Union (NTEU) applies for attorney fees and expenses in connection with representing employee Zazenza Smith in an adverse action proceeding.2 Smith ultimately prevailed in this court. Specifically, NTEU seeks attorney fees for responding to the Office of Personnel Management's (OPM) petition for reconsideration of the arbitrator's decision in Smith's case in December 1982 and fees and expenses for defending the petition by OPM to this court during the period 1983 to 1984. OPM opposes this application.
2
Fees for Defending the Motion for Reconsideration
3
On December 17, 1982, OPM moved for reconsideration of the arbitrator's decision mitigating the agency's penalty of removal to an eleven-month suspension, and the arbitrator denied that motion on January 19, 1983. Any recovery due NTEU for representing Smith before the board, in this case an arbitrator in the board's stead, would lie in the Back Pay Act, 5 U.S.C. Sec. 5596. Gavette v. Office of Personnel Management, 785 F.2d 1568, 1573 (Fed.Cir.1986). In order to recover, NTEU must show that Smith was the "prevailing party" and that an award of attorney fees would be "in the interest of justice." 5 U.S.C. Sec. 5596(b)(1)(A)(ii) (1982); Gavette, supra, at 1573. That Smith was the prevailing party is undisputed, but that an award of fees would be in the interest of justice is, and properly so. We hold that it would not be in the interest of justice to compensate NTEU for its time spent defending Smith before the arbitrator for the following reasons: (1) Smith was removed from a position of independent responsibility and trust for falsifying her time sheets and making false statements to her supervisor about the sheets; (2) the arbitrator sustained all of the charges made by the agency; (3) removal for dishonesty has been upheld by this court's predecessor on a number of occasions; and (4) OPM believed that the arbitrator did not consider all of the relevant factors when determining the penalty. See Wise v. Merit Systems Protection Board, 780 F.2d 997, 999 (Fed.Cir.1985); Young v. Merit Systems Protection Board, 776 F.2d 1027, 1029 (Fed.Cir.1985). Therefore, we award NTEU nothing in connection with defending the government's motion for reconsideration before the arbitrator.
4
Fees for Defending the Appeal to This Court
1. Liability
5
OPM petitioned this court for review of the arbitrator's decision on February 23, 1983. This court held that the arbitrator, in a well-reasoned opinion, addressed all the relevant issues and considered the applicable Douglas factors. Smith being a prevailing party, NTEU shall recover attorney fees and expenses incurred in defending the government's petition for review to this court under the Equal Access to Justice Act (EAJA) "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. Sec. 2412(d)(1)(A) (as amended, Pub.L. No. 99-80, 99 Stat. 183; enacted August 5, 1985, 99th Congress, 1st Session); Gavette, supra, at 1578. In other words, OPM must show that it "was clearly reasonable in asserting its position, including its position at the agency level, in view of the law and the facts." Id. at 1579. We do not find that an award would be unjust or that the position of the United States was clearly reasonable for the following reasons: (1) this court, in Devine v. Sutermeister, 724 F.2d 1558 (Fed.Cir.1983), stated that "we question whether the issue of the arbitrator's balancing of the factors concerning mitigation is even an issue properly appealed by OPM under 5 U.S.C. Sec. 7703(d)" and the "issue of mitigation is essentially a matter of judgment closely tied to the facts of this case, precisely the type of issue which OPM should not petition for review." Id. at 1566. The merits panel of this case reiterated that position. The position of the United States--that the arbitrator improperly mitigated the penalty--was not substantially justified.
2. Amount of Fees to be Awarded
6
NTEU claims that it is entitled to attorney fees at the "prevailing market rate" as prescribed by Sec. 2412(d)(2)(A) of the EAJA and therefore seeks $13,781.25 for defending the appeal to this court: $75/hour for 183.75 hours of work (NTEU's figures were four hours too high, apparently due to errors in addition). Absent a showing of special circumstances such as the limited availability of qualified attorneys for the proceeding involved, which is not the case here, "attorney fees shall not be awarded in excess of $75 per hour." Sec. 2412(d)(2)(A)(ii). NTEU seeks the maximum rate, $75/hour, which is permissible absent a showing of special circumstances.3
7
OPM argues that, with respect to attorney fees, NTEU is entitled to recover only its actual costs for attorneys, i.e., the computed hourly wage, based on salary, of the attorneys who worked on the case, multiplied by the number of hours spent on the case. It argues that to award the union the prevailing market rate times the number of hours worked would give the union a windfall because the union did not expend nearly that amount to defend Smith and would be in violation of the rules of ethics; the award would go into NTEU's general coffers and be used for nonlegal purposes. OPM relies on Goodrich v. Department of the Navy, 733 F.2d 1578 (Fed.Cir.1984), and National Treasury Employees Union v. Department of the Treasury, 656 F.2d 848 (D.C.Cir.1981), for this latter proposition.
8
The Goodrich case involved an award of attorney fees under 5 U.S.C. Sec. 7701(g)(1) of the Civil Service Reform Act (CSRA) to an attorney who was employed by the American Federation of Government Employees (AFGE) and who represented a federal employee who was removed from his job, this court holding that the board did not commit legal error in limiting the attorney fees award for services rendered in connection with proceedings before the board to "the expenses the union incurred in providing services." Goodrich, supra, at 1581. The statute, 5 U.S.C. Sec. 7701(g)(1) authorizes the board to "require payment by the agency involved of reasonable attorney fees incurred by an employee" who successfully overturns an agency personnel action if the award would be "in the interest of justice,"4 the same standard as that used in the Back Pay Act. See 5 U.S.C. Sec. 5596(b)(1)(A)(ii);5 Sims v. Department of the Navy, 711 F.2d 1578, 1579-81 (Fed.Cir.1983).
9
The board ordinarily calculates the fee in 7701(g) and Back Pay Act cases by multiplying the lawyer's customary hourly rate by the number of hours expended. Where the lawyer is employed by a union, however, the board limits the fee to the amount the union has expended in providing the services, i.e., the lawyer's salary plus overhead expenses. O'Donnell v. Department of the Interior, 2 MSPB 604, 611 n. 10, 2 MSPR 445. 454 n. 10 (1980); Wells v. Schweiker, 12 MSPB 329, 331-32, 14 MSPR 175, 179 (1982); Powell v. Department of the Treasury, 8 MSPB 21, 19 MSPR 174 (1984); Allen v. Department of the Treasury, 20 MSPR 518 (1984).
10
The latter three board cases, as well as Goodrich, rely upon the thoughtful reasoning in National Treasury Employees, supra. That case involved the NTEU's quest to recover attorney fees under the Privacy Act, 5 U.S.C. Sec. 552a (1976)6 for supplying legal services to a successful plaintiff who belonged to the union's prepaid legal plan. The attorneys were salaried employees of the union, and admitted that the fee, if awarded, would go to the union, not to them. The court stated that unless the fees were awarded to the lawyers, and not to the union that paid their salary, fees equal only to the union's costs in representing the plaintiff could be awarded. The court cited ABA Code of Professional Responsibility, Disciplinary Rule (DR) 2-103(D)(4)(a) for the maxim that prepaid legal services plans must be so "organized and operated that no profit is derived by it from the rendition of legal services by lawyers," and DR's 3-102 and 3-101(A) that attorneys may not split fees with laymen or lay organizations, or enable them to engage in the unauthorized practice of law. National Treasury Employees, 656 F.2d at 851-52. Accord Munsey v. Federal Mine Safety & Health Com'n, 701 F.2d 976 (D.C.Cir.1983); Jordan v. United States Dept. of Justice, 691 F.2d 514 (D.C.Cir.1982).7
11
Nothing in the EAJA or its legislative history indicates that courts should ignore these safeguards, addressed in similar cases above, established by the legal profession to protect the public from irresponsible and incompetent law practice when awarding attorney fees under the EAJA. Although the Act specifically contemplates that associations, corporations, and similarly large entities can be prevailing parties, and therefore, a fortiori, are eligible to receive fee awards, the Act provides no guidance on the question whether a union, not a prevailing party itself, is eligible to receive prevailing market rate fees for services performed as a legal aid organization. These ethical safeguards provide just as compelling a reason to not award prevailing market rates under the EAJA, where fees "shall" be awarded, as they do under other fee provisions such as the Privacy Act, the Back Pay Act, and the Civil Service Reform Act, where reasonable fees "may" be awarded; the fact that fee awards are mandatory in the first and discretionary in the latter is not evidence of a legislative intent preclusive of our interpretation here.
12
Nor does the fact that the EAJA expressly provides that fee awards shall be based on prevailing market rates, see supra, note 1, persuade us that fee awards to unions should not be limited to costs incurred because of the considerations outlined herein. Congress was undoubtedly aware that courts have consistently interpreted "reasonable" fees as the prevailing market rate multiplied by the number of hours expended, see, e.g., Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), effectively the same standard set out in the EAJA, and have long felt unconstrained to raise or lower that amount depending upon the facts of each case. Furthermore, we do not find compelling Congress' intent that regardless of whether the attorney on the case charges less than the prevailing market rate that that attorney should nonetheless receive the prevailing rate. See S.Rep. No. 253, 96th Cong., 1st Sess. 17 (1979). Congress was also concerned, of course, about not overburdening the public fisc, and limited the hourly rate to a maximum of $75 per hour, obviously below the rate charged by a number of law firms.
13
Different concerns exist when awarding attorney fees in civil rights cases where encouraging private attorneys general to come forth and challenge governmental abuses is undeniably an important concern, see Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) (Court held that under the Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. Sec. 1988 (Supp. V 1981), non-profit legal service organizations are entitled to a fee based on prevailing market rates rather than their costs); see also Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968), and more compelling than in adverse action cases such as the one at bar. Goodrich, supra, at 1581-82. Furthermore, this case is unlike those involving fee awards to legal aid organizations, like that in Blum, where the organization exists solely to provide legal help. Here, to the contrary, legal aid is just a small part of what the NTEU provides.
14
In Goodrich, we left for a later day the question whether awarding market rate fees to the union would be appropriate where its legal representation fund fully supported the union's legal services program. See Goodrich, supra, at 1581. In that regard, we note that such an option was addressed by the board in Wells v. Schweiker, supra. The board in Wells stated that even if a separate legal fund were established and that all litigation funds came from that fund, that ethical problems would nonetheless exist because such a plan "would relieve the union pro tanto from the burden of financing its litigation activities by allocating funds from general revenues [and would allow] it to profit indirectly from that which it could not do directly." Wells v. Schweiker, supra, at 332; see also Goodrich, supra, at 1581.
15
If a union chose not to establish a fund fully supportive of the union's litigation activities, the court could award the prevailing market rate fees directly to the attorneys, and they could, in turn, reimburse the union for its actual expenses or, as they are allowed to do in any case, make a charitable contribution to any organization they see fit. National Treasury Employees, upra; Wilderness Society v. Morton, 495 F.2d 1026 (en banc 1974), rev'd on other grounds sub nom. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975).
16
In this case, because there is no indication that the fees awarded will not go to the union or that the union has established a fund fully supportive of the union's litigation activities and because we see no reason to ignore the rules of ethics that the legal profession maintains to ensure its integrity, we hold that NTEU, a nonprofit union whose charter goes beyond providing legal services and thus whose fees would inure to the benefit of a nonlegal organization, is entitled to recover only its costs of litigation--overhead expenses and the cost of its attorneys--before this court. The cost of attorneys to NTEU is to be calculated for each attorney separately by multiplying the hourly rate of the attorney, based upon the attorney's salary, by the number of hours reasonably expended on this case by the attorney. The total time expended by the union defending the appeal to this court is, as NTEU's papers reasonably show, 183.75 hours.
17
Accordingly,
IT IS ORDERED THAT:
18
NTEU submit to this court the cost, based on salary, of each attorney listed in Respondent's Motion for Award of Attorney's Fees, and its overhead incurred in connection with this case.
1
Donald J. Devine has been replaced by Constance Horner as Director of the Office of Personnel Management
2
We presume that NTEU applies for fees on behalf of employee Smith. Cf. Terrie G. Reid v. Dep't of Commerce, 793 F.2d 277 (Fed.Cir.1986)
3
The pertinent text of Sec. 2412 is:
(d)(1)(A) Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
* * *
(2) For the purposes of this subsection--
(A) "fees and other expenses" includes the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or project which is found by the court to be necessary for the preparation of the party's case, and reasonable attorney fees (The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that (i) no expert witness shall be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the United States; and (ii) attorney fees shall not be awarded in excess of $75 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.); * * *.
4
The text of Sec. 7701(g)(1) is:
(g)(1) Except as provided in paragraph (2) of this subsection, the Board, or an administrative law judge or other employee of the Board designated to hear a case, may require payment by the agency involved of reasonable attorney fees incurred by an employee or applicant for employment if the employee or applicant is the prevailing party and the Board, administrative law judge, or other employee (as the case may be) determines that payment by the agency is warranted in the interest of justice, including any case in which a prohibited personnel practice was engaged in by the agency or any case in which the agency's action was clearly without merit.
5
The text of 5 U.S.C. Sec. 5596(b)(1)(A)(ii) is:
(ii) reasonable attorney fees related to the personnel action which, with respect to any decision relating to an unfair labor practice or a grievance processed under a procedure negotiated in accordance with chapter 71 of this title, or under chapter 11 of title I of the Foreign Service Act of 1980, shall be awarded in accordance with standards established under section 7701(g) of this title; and * * *.
6
Under the Privacy Act, "[t]he court may assess reasonable fees in favor of a complainant who has substantially prevailed." 5 U.S.C. Sec. 552a(g)(3)(B)
7
But see Devine v. Sutermeister, 724 F.2d 1558 (Fed.Cir.1983) (court awarded prevailing market rate attorney fees to NTEU apparently without addressing the issues raised in this case)
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Digitally signed by
Reporter of Decisions
Reason: I attest to the
Illinois Official Reports accuracy and
integrity of this
document
Appellate Court Date: 2018.07.19
08:20:08 -05'00'
People v. Robinson, 2018 IL App (1st) 153319
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption GLENN ROBINSON, Defendant-Appellant.
District & No. First District, Second Division
Docket No. 1-15-3319
Filed May 8, 2018
Decision Under Appeal from the Circuit Court of Cook County, No. 12-CR-18676; the
Review Hon. Joseph Michael Claps, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Patricia Mysza, and Jonathan Pilsner, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Annette Collins, Douglas P. Harvath, and Tasha-Marie Kelly,
Assistant State’s Attorneys, of counsel), for the People.
Panel JUSTICE HYMAN delivered the judgment of the court, with opinion.
Justices Pucinski and Mason concurred in the judgment and opinion.
OPINION
¶1 Two police officers saw a masked man committing an armed robbery and tried to stop him.
The man opened fire on the officers, who responded in kind and chased him for several blocks.
Along the way, the man fired shots at other police officers. At the end of the chase, discarded
beside a house, the police found a handgun and a mask. Nearby, defendant Glenn Robinson lay
with bullet wounds. A jury convicted Robinson of several counts of attempted first degree
murder.
¶2 Robinson argues that a state ballistics expert laid an insufficient foundation for her expert
opinion linking several cartridge casings found along the masked man’s route to the handgun
found near Robinson. But any weakness in that testimony could have been brought out on
cross-examination, and goes to the weight of the evidence, not its admissibility. Robinson also
challenges his sentence as a habitual criminal, arguing that his earlier convictions for armed
robbery consist of elements different than the current armed robbery statute. We reject this as
overly formalistic and affirm the conviction and sentence.
¶3 BACKGROUND
¶4 Around 3 a.m. on September 4, 2012, two police officers, Cecil Phillips and Shantell
Clinton, were driving in an unmarked squad car near the corner of State Street and 75th Street,
when they saw two men standing in front of an electronics store. One man, wearing a mask and
a dark hooded sweatshirt, pointed a gun at the other man. Phillips and Clinton stopped, got out,
announced they were police officers, and directed the armed man to drop his weapon. Instead,
the man turned and fired multiple times at Phillips and Clinton. The officers took cover behind
the squad car and returned fire. The armed man ran north on State Street, and Phillips ran after
him. Clinton used her police radio to report the shots, and drove north in pursuit.
¶5 Two other officers, Tiffany Ermon and Evona Earnest, sat in a marked squad car a block
further north, at 74th Street and State Street, when they heard multiple gunshots. They then
saw the armed man at the corner, firing his weapon southward on State Street. He turned and
fired at the squad car. Ermon fired back from behind the car; Earnest fired back from the
driver’s side window. The man ran east on 74th Street until Ermon lost sight of him as he
passed an alley between State Street and Wabash Avenue. Ermon and Earnest followed him in
their squad car; Ermon saw the man running south through the yards of houses on Wabash
Avenue.
¶6 Phillips had followed the man north on State Street, then east on 74th Street, until he
reached the alley between State Street and Wabash Avenue. He heard the man trying to jump
the fences between the houses. At 7418 South Wabash Avenue, Phillips jumped a fence into a
gangway between two houses. On the ground, he found a bloodied black hooded sweatshirt
with holes in the front and right arm sleeve, an empty Glock semiautomatic weapon, gloves, a
hat, and a mask.
¶7 At 7422 South Wabash Avenue, Ermon saw Phillips in the alley; she then climbed a fence
into yards, crossed onto Wabash Avenue, and saw a man lying on the porch at 7422 South
Wabash Avenue, surrounded by other officers who had converged there. The man (Robinson)
had been shot five times in the right forearm, scrotum, and abdomen.
-2-
¶8 Police charged Robinson with 16 counts of attempted first degree murder. The State
presented the testimony of all four officers (as well as a civilian who witnessed the initial shots
fired at Phillips and Clinton). None of the officers could identify the shooter since he had been
wearing a mask. There were no usable fingerprints on either the handgun or its magazine, and
no useful DNA on the handgun.
¶9 But, Robinson could not be excluded from the DNA profiles obtained from the hat and the
mask. At 7411 South State Street (between 74th and 75th Streets), police found car keys
belonging to a Chevy Tahoe parked on 74th Street east of State Street. Robinson was the
Tahoe’s registered owner; police recovered Robinson’s driver’s license in the center console.
¶ 10 The shootout left several dozen cartridge casings strewn along 75th, State, and 74th
Streets. The State presented firearm examiner Jennifer Hanna from the Illinois State Police,
who had examined the handgun found in the alley, along with the officers’ guns, and the
recovered cartridge casings. Just before Hanna’s scheduled testimony, Robinson’s counsel
objected, arguing that Hanna did not have sufficient foundation for the basis of her opinions.
The trial court denied this objection, stating that counsel should have requested more discovery
on Hanna’s methods or filed a motion in limine.
¶ 11 Hanna testified that, generally, she identifies firearms based on their “class characteristics”
(common to a particular type or model of handgun) versus their “individual characteristics”
(imperfections unique to a particular weapon). She test-fired each of the five handguns (four
from the officers, and the one found in the gangway) and compared the results to each of the
cartridge casings recovered. She opined, without detail, that 15 of the casings had been fired by
the gun in the gangway, 15 casings had been fired from Phillips’s gun, 8 casings had been fired
from Ermon’s gun, 8 casings had been fired from Earnest’s gun, and 2 casings had been fired
from Clinton’s gun. Robinson’s counsel objected to each of these opinions.
¶ 12 On cross-examination, counsel asked Hanna if she used any written criteria in making
these determinations, and Hanna responded that she based the comparisons on her procedures,
training, and experience. When asked if her opinions turned on her subjective judgment,
Hanna again stated that she based her expert opinion on training and experience. In closing
argument, defense counsel argued that Hanna had not told the jury why she thought any
cartridge casing belonged to any particular handgun.
¶ 13 After his conviction, Robinson argued in his posttrial motion that the trial court erred in
allowing the State to present Hanna’s ballistics testimony without adequate foundation. The
trial court denied the motion.
¶ 14 The State petitioned to have Robinson sentenced to natural life imprisonment as a habitual
criminal, based on his 1992 and 1999 convictions for armed robbery. The trial court agreed and
sentenced Robinson to natural life. Robinson moved to reconsider his sentence arguing that the
State had not met its burden to prove him a habitual criminal. The trial court denied this
motion.
¶ 15 ANALYSIS
¶ 16 Admissibility of Ballistics Evidence
¶ 17 Robinson argues that Hanna gave insufficient foundation for her expert conclusions
linking cartridge casings found at the scene to particular firearms. The parties disagree on the
standard of review: Robinson contends that this is a question of law reviewed de novo, while
-3-
the State argues that we should review an evidentiary issue for an abuse of discretion. Compare
People v. Simmons, 2016 IL App (1st) 131300, ¶ 114 (abuse of discretion), with People v.
Safford, 392 Ill. App. 3d 212, 221 (2009) (de novo). We agree with Simmons that the weight of
precedent indicates that this is an evidentiary question, left to the trial court’s discretion.
Simmons, 2016 IL App (1st) 131300, ¶¶ 109-113 (noting that Illinois Supreme Court uses
abuse of discretion standard when reviewing whether expert testimony had sufficient
foundation and criticizing Safford’s use of de novo standard).
¶ 18 Robinson does not challenge Hanna’s qualifications to testify as an expert witness in the
field of ballistics identification or the general admissibility of the evidence. He focuses on
whether Hanna sufficiently disclosed the reasons for her conclusions so as to establish the
reliability of the underlying information. See id. ¶ 115. Robinson relies heavily on Safford,
where a latent fingerprint examiner testified a defendant’s fingerprint matched one found near
the scene of a shooting but did not testify as to how he arrived at that conclusion. 392 Ill. App.
3d at 220-21. The court held that insufficient foundation prevented defense counsel from
conducting meaningful cross-examination. Id. at 224.
¶ 19 But Safford has been heavily criticized, and characterized as an “outlier.” People v.
Negron, 2012 IL App (1st) 101194, ¶ 41; see also People v. Wilson, 2017 IL App (1st) 143183,
¶¶ 41-42; Simmons, 2016 IL App (1st) 131300, ¶¶ 120-128. Indeed, we can find no published
case following Safford’s reasoning. It is the defendant’s right and burden to elicit the facts
underlying an expert’s opinion in cross-examination. See Ill. R. Evid. 705 (eff. Jan. 1, 2011);
Negron, 2012 IL App (1st) 101194, ¶ 42. As the trial court pointed out, defense counsel did not
object to Hanna’s testimony until the morning of trial and had not complained about a lack of
discovery concerning the underlying facts. Defense counsel questioned Hanna about her use of
written criteria as well as subjective judgment in arriving at her conclusions. But defense
counsel did not ask Hanna for details on any particular cartridge casing. Defense counsel’s
inability (or unwillingness) to put Hanna through her paces does not make the foundation
inadequate. Rather, the lack of detail in Hanna’s testimony went to its weight, not its
admissibility. Simmons, 2016 IL App (1st) 131300, ¶ 125 (firearm expert who testified about
class and individual characteristics of bullets, without specifying which individual
characteristics matched particular bullets, laid sufficient foundation and inadequacies affected
weight of opinion, not admissibility).
¶ 20 Nonetheless, any error would be harmless. See People v. Goins, 2013 IL App (1st) 113201,
¶ 72 (in assessing whether error is harmless, court should ask whether harm complained of
contributed to defendant’s conviction). Hanna’s testimony merely established that the gun
found in the gangway had fired a number of the cartridge casings found in the area, an
incidental part of the State’s case against Robinson. The State could not link Robinson to the
gun through fingerprints or DNA. The bullets found in Robinson’s body constituted the
strongest evidence against him (revealing Robinson as the masked man who had engaged in a
shootout with police), and that evidence had nothing to do with Hanna’s ballistics evidence.
¶ 21 Habitual Criminal Sentencing
¶ 22 Robinson argues that he should not have been sentenced as a “habitual criminal” because
he did not have the necessary qualifying convictions. The judge sentenced Robinson under
section 5-4.5-95(a)(1) of the Unified Code of Corrections (730 ILCS 5/5-4.5-95(a)(1) (West
2012)) (commonly known as the Habitual Criminal Act), which states that a defendant is a
-4-
“habitual criminal” if he or she has two prior convictions for “an offense that contains the same
elements as an offense now *** classified in Illinois as a Class X felony.” Habitual criminals
receive a term of natural life imprisonment. Id. § 5-4.5-95(a)(5).
¶ 23 In petitioning to have Robinson sentenced as a habitual criminal, the State used two
convictions for armed robbery (from 1992 and 1996) as the qualifying convictions. Robinson
argues that the elements of armed robbery in the 1990s and the elements for the current version
of the offense differ and that the old convictions do not qualify.
¶ 24 In both 1992 and 1996, the definition of armed robbery involved committing a robbery
while “he or she carries on or about his or her person, or is otherwise armed with a dangerous
weapon.” 720 ILCS 5/18-2(a) (West 1996); 720 ILCS 5/18-2(a) (West 1992). At both times,
armed robbery ranked as a Class X felony. 720 ILCS 5/18-2(b) (West 1996); 720 ILCS
5/18-2(b) (West 1992).
¶ 25 By 2012, the armed robbery statute had been amended and made more detailed to comport
with sentencing enhancements for using a firearm. The new version listed four possibilities
that converted a robbery to an armed robbery: (i) being armed with “a dangerous weapon other
than a firearm,” listed as a Class X felony; (ii) being armed “with a firearm,” a Class X felony
with a 15-year sentence enhancement; (iii) “personally discharg[ing] a firearm” during the
offense, a Class X felony with a 20-year sentence enhancement; or (iv) personally discharging
a firearm during the offense causing death or great bodily harm, a Class X felony with a
25-year sentencing enhancement, up to natural life. 720 ILCS 5/18-2 (West 2012).
¶ 26 Robinson argues that these new possibilities change the elements: that the State now needs
to prove that a “dangerous weapon” is not a firearm or need not prove that a firearm is
“dangerous.” But, Illinois courts have rejected this “formalistic” interpretation of the Habitual
Criminal Act, holding instead that the elements need only be “equivalent,” not identical.
People v. Fernandez, 2014 IL App (1st) 120508, ¶ 17. Robinson cites no case (and we have
found none) holding that the amendments to the armed robbery statute now exclude old armed
robbery convictions from habitual-criminal sentencing. For purposes of the Habitual Criminal
Act, the amendment split the old element of “dangerous weapon” into two possible categories
(firearm or not-firearm) but did not change the element itself.
¶ 27 In addition, Robinson’s argument seems contrary to legislative intent. Armed robbery in
both the early and later versions was classified as a Class X felony. Robinson has provided us
with no evidence, and we have found none, indicating that the legislature wanted to remove
armed robbery from the list of possible qualifying convictions for a habitual criminal. Rather,
the plain language of all the relevant statutes shows a consistent intent to treat armed robbery
as a serious crime.
¶ 28 Since we have determined that the trial court did not commit error, we need not address
Robinson’s claim under the plain error or ineffective-assistance standards.
¶ 29 Affirmed.
-5-
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Filed 6/9/14 P. v. McGruder CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B245785
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA123817)
v.
DERICK TYRONE MCGRUDER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Laura R. Walton, Judge. Affirmed.
Alexander Paul Green, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Appellant Derick Tyrone McGruder appeals from the judgment entered following
his convictions by jury on count 1 – first degree burglary with a person present (Pen. Code,
§§ 459, 667.5, subd. (c)(21)) and count 2 – assault by means of force likely to produce
great bodily injury (Pen. Code, § 245, subd. (a)(4)) with admissions he suffered a prior
felony conviction (Pen. Code, § 667, subd. (d)), a prior serious felony conviction (Pen.
Code, § 667, subd. (a)(1)), and prior prison terms (Pen. Code, § 667.5, subd. (b)). The
court sentenced appellant to prison for 13 years. We affirm.
FACTUAL SUMMARY
1. People’s Evidence.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993)
6 Cal.4th 1199, 1206), the evidence established on June 27, 2012, Oscar Casillas lived in
his house on South Essey in Compton. The front entrance to Casillas’s house had two
doors, i.e., a wooden front door (hereafter, front door) and a screen door. The screen door
opened to the right of a person exiting the house.
Casillas testified as follows. About 1:15 p.m., Casillas was at home with his
children and his wife’s nephew. The front door was open because it was a hot day, but the
screen door was closed. Casillas and his children were playing in the living room. The
nephew was asleep.
Casillas saw appellant next to the screen door. Appellant’s hands were cupped
around his eyes and he began looking through the screen door. Casillas greeted appellant
and asked, “What’s going on?” Appellant replied, “All good. All good.” After appellant
looked through the screen door for a total of about five seconds, Casillas went to the front
door.
Casillas opened the screen door, erroneously thinking appellant was a neighbor.
Appellant, whom Casillas did not know, asked who else lived with Casillas. Casillas
thought the question was strange but replied his family and nephew lived with Casillas.
2
Appellant grabbed the screen door with his left hand.1 Casillas said he had to go
and needed to take a bath because he was going to work. Appellant, using his open right
hand, grabbed the doorframe where the front door normally closed (hereafter, doorframe).
(That doorframe apparently was on the left of a person exiting the house.) Appellant’s
right hand was extended and his fingers were bent. Casillas testified the fingertips of
appellant’s right hand were “inside” “where the door was.” Appellant was trying to enter.
He was saying, “Wait, don’t leave. Don’t close it. I’m thirsty. Give me water.” Casillas
felt he needed to close the screen door, in part because he did not want his children
frightened.
Appellant’s left foot was at the screen door. He positioned his right foot as if he
wanted to enter. Appellant took a step “inside” and his right foot was “halfway into
[Casillas’s] door.” Appellant’s right foot “was . . . half in and half outside” and “crossing
the threshold to [Casillas’s] building.”
The prosecutor asked what was Casillas thinking when appellant “put his feet in
through the door” and Casillas indicated he thought appellant was going to enter. The
prosecutor asked what happened after appellant “put his feet in there,” and Casillas replied
appellant was telling Casillas to give appellant water.
Casillas started pulling on the screen door and appellant was pulling the other way.
Casillas yelled to his daughter to call the police. Appellant grabbed the screen door with
both hands. Casillas, grasping the handle of the screen door, was trying to exit so the
screen door would close and lock behind him. Casillas was concerned “if [appellant] had
something and he entered, [Casillas’s] children were going to be there.” Casillas’s four
children were most important to him.
Appellant released the screen door and began hitting Casillas with appellant’s fist.
When appellant hit Casillas the first time, Casillas was “between outside and inside.”
1
During his testimony, Casillas frequently referred to one of appellant’s hands or feet
without explicitly identifying it as appellant’s left or right hand, or left or right foot. However,
where the record, fairly read, indicates which hand or foot Casillas was referring to, we
identify it below.
3
Casillas later testified the first few times appellant hit Casillas, Casillas was inside his
house and appellant was outside. Appellant hit Casillas about three times in the head.
When appellant was inflicting the first blows, Casillas’s head was hitting a wall.
Casillas exited and the screen door closed and locked. Appellant hit Casillas
perhaps four more times in the head. Appellant was quickly hitting Casillas with both fists
as if appellant wanted to knock Casillas out. Because of the blows, Casillas felt dizzy and
fell into nearby bushes. Casillas never pushed or struck appellant.
After appellant struck Casillas the third or fourth time outside, Casillas yelled to his
daughter to call the police. After Casillas yelled the third time to his daughter to call the
police, Casillas’s daughter began yelling at appellant. Appellant later left.
Appellant walked around the front of Casillas’s house, crossed the street, and
walked parallel to the side of Casillas’s house. Appellant was looking towards Casillas’s
house, its backyard, and the house’s side windows. Appellant was looking at Casillas’s
house as if appellant was trying to see something or wanted to jump over something. This
made Casillas think appellant perhaps was on drugs. Appellant’s grandmother, who lived
in a house catercorner to Casillas’s house, called for appellant and he went to his
grandmother’s house.
As a result of appellant’s blows, Casillas bled profusely from his nose and mouth,
his face and mouth were swollen, and he received scratches. Cuts on Casillas’s lip
remained perhaps four days. Casillas did not seek medical treatment because he could not
afford it.
During cross-examination, Casillas testified as follows. When appellant initially
approached and was talking to Casillas, appellant’s left hand was on the screen door and
Casillas believed appellant’s right hand “had entered the doorway.” Later, appellant’s
right foot was “in” when appellant told Casillas to wait and give water to appellant. When
Casillas was trying to close the screen door, he thought that, based on what appellant was
doing, appellant might have been under the influence of narcotics or alcohol. However,
appellant did not need assistance to stand.
4
The following occurred between appellant’s counsel and Casillas: “Q. So at this
time, his foot’s in the door, his hand’s in the doorway, and he says, ‘Wait. Don’t go. Give
me some water. I’m thirsty’? [¶] A. Yes.” Casillas replied to appellant, “ ‘No. Why? I
already have to go to work.”
Los Angeles County Sheriff’s Deputy Ignacio Garcia went to the scene and saw
appellant was uninjured. Appellant’s grandmother told Garcia appellant previously had
used methamphetamine. However, Garcia opined at trial appellant was not under the
influence when Garcia contacted him. According to Garcia, some methamphetamine users
used methamphetamine two or three days at a time. Such users might be dehydrated and
want water.
2. Defense Evidence.
In defense, Casillas testified that, at the preliminary hearing, the magistrate asked
Casillas “was any part of the defendant’s body inside your home” and Casillas replied no. 2
Casillas denied that, after the preliminary hearing, he had any contact with prosecutors or
investigators in this case. At trial, during cross-examination by the prosecutor, Casillas
testified that when the magistrate asked the above question, Casillas “thought [the
magistrate] was referring to like part of the body, maybe the whole body, maybe half the
body, not like just the hands or the foot.”
The prosecutor, indicating he was trying to clarify Casillas’s testimony on the above
issue, elicited testimony from Casillas at trial that, at the preliminary hearing, he testified
“. . . [appellant] had his foot already. He just was trying to go inside.” The following
exchange also occurred at trial between the prosecutor and Casillas: “Q. Again, page 6 of
the preliminary hearing, do you remember saying: [¶] ‘The Witness: He was in between
the line in the middle, in the middle maybe. Maybe in the middle.’ [¶] His foot was in the
2
Appellant’s counsel asked Casillas if, at the preliminary hearing, the following
exchange occurred between counsel and Casillas: “So you were able to close your front door
before the defendant started hitting? [¶] ‘[A.] Thank God, yes, I was able to close it. If not, I
don’t know.’ ” Casillas testified, “Yes, I said it, maybe, . . . but it was not like that.
[Appellant] started hitting me before that.”
5
middle of the door? That’s a question. [¶] A. Yes. [¶] Q. Do you remember saying
that? [¶] A. Yes.” (Sic.) At trial, Casillas testified the “little snippet” appellant’s trial
counsel had read did not accurately reflect Casillas’s preliminary hearing testimony.
During redirect examination by appellant at trial, Casillas testified that when he was
asked (by the magistrate) if any part of appellant’s body was inside Casillas’s home,
Casillas “took [the question] to mean some other part of the body.” When Casillas
indicated the right foot “was maybe in the middle,” he was not indicating uncertainty
concerning whether appellant’s foot was “crossing.” Casillas testified, “I was saying that
maybe half or maybe more than half, but yes, it was crossing.”
Appellant’s grandmother testified appellant was under the influence of a drug on the
day of the incident and two days before. She gave officers information regarding appellant
being under the influence.
ISSUES
Appellant claims (1) there is insufficient evidence supporting his burglary
conviction, (2) the trial court erroneously failed to instruct sua sponte on attempted
burglary as a lesser included offense of burglary, and (3) appellant was denied effective
assistance of counsel by his trial counsel’s failure to ask the trial court for such an
instruction.
DISCUSSION
1. Sufficient Evidence Supported Appellant’s Burglary Conviction.
Appellant claims there is insufficient evidence supporting his burglary conviction.
He argues there was insufficient evidence he entered Casillas’s house, and insufficient
evidence of burglarious intent at the time of any entry.3 We reject appellant’s claim.
In Magness v. Superior Court (2012) 54 Cal.4th 270, 273 (Magness), our Supreme
Court stated a person who enters any house with intent to commit larceny or any felony is
guilty of burglary, and it has long been settled the slightest entry by any part of the body is
3
The trial court, using CALCRIM No. 1700, instructed the jury that to prove appellant
was guilty of burglary, the People had to prove he entered a house and “[w]hen he entered a
house, he intended to commit a theft or an assault likely to produce great bodily injury.”
6
sufficient. Quoting Blackstone, Magness observed, “ ‘As for the entry, . . . the least degree
of it, with any part of the body, . . . is sufficient: as, to step over the threshold, [and other
examples], . . . all of them [are] burglarious entries.’ (4 Blackstone’s Commentaries 227,
fn. omitted.)” (Magness, at p. 273.)
In order for an entry to occur, a part of the body must penetrate the outer boundary
of the building. (Magness, supra, 54 Cal.4th at p. 273.) “ ‘[I]n general, . . . doors . . .
constitute . . . [a part] of a building’s outer boundary, the penetration of which is sufficient
for entry.’ [Citation.]” (Id. at p. 274.) “ ‘[I]t no longer matters whether a person entering
a house with larcenous or felonious intent does so through a closed door . . . [or] an open
door . . . . The entry with the requisite intent constitutes the burglary.’ (People v. Gauze
[(1975)] 15 Cal.3d [709,] 712-713, . . .)” (People v. Nunley (1985) 168 Cal.App.3d 225,
231.) As to whether appellant entered Casillas’s house, there was substantial evidence
from Casillas’s testimony as a People’s witness as follows. Appellant’s fingertips were
“inside” where the door was. The front door was open, so Casillas’s testimony, reasonably
understood, was appellant’s fingertips were “inside” the doorframe. But Casillas also
testified appellant, with his right foot, took a step “inside,” and Casillas described
appellant’s right foot as “crossing the threshold to [Casillas’s] building.” The jury
therefore reasonably could have concluded when Casillas testified appellant’s fingertips
were “inside” where the door was, Casillas meant they too had crossed the threshold of
Casillas’s building. Casillas also testified appellant’s right hand had “entered” the
doorway.
The jury reasonably could have concluded appellant struggled to enter Casillas’s
house and, during that struggle, appellant, using his right hand, was reaching inside
Casillas’s house to obtain a secure grip on the doorframe to pull appellant’s entire body
inside Casillas’s house. We conclude there was sufficient evidence to convince a rational
trier of fact, beyond a reasonable doubt, appellant’s right hand “enter[ed]” Casillas’s house
within the meaning of Penal Code section 459.
Moreover, appellant, using his right foot, took a step “inside,” and his right foot was
“halfway into [Casillas’s] door,” “half in and half outside,” and “crossing the threshold to
7
[Casillas’s] building.” Appellant’s right foot was “in” and he had his right “foot[ ] in the
door.” The jury reasonably could have concluded that during appellant’s struggle, he was
putting his right foot into Casillas’s house in an effort to enter completely. We conclude
there was sufficient evidence to convince a rational trier of fact, beyond a reasonable
doubt, appellant’s right foot “enter[ed]” Casillas’s house within the meaning of Penal Code
section 459.
Finally, at one point Casillas started pulling on the screen door and appellant was
pulling the other way. Appellant later began hitting Casillas with appellant’s fist. The first
few times appellant hit Casillas, Casillas was inside the house and appellant was outside.
Appellant hit Casillas about three times in the head and when appellant inflicted the first
blows, Casillas’s head was hitting a wall.
After Casillas exited his house appellant quickly struck him multiple times with
both fists as if he wanted to knock Casillas out. Casillas felt dizzy and fell. Casillas bled
profusely from his nose and mouth, his face and mouth were swollen, and cuts on his lip
lasted perhaps four days. We conclude there was sufficient evidence to convince a rational
trier of fact, beyond a reasonable doubt, when appellant repeatedly struck Casillas the first
few times with appellant’s fist while Casillas was inside his house, appellant “enter[ed]”
the house within the meaning of Penal Code section 459.
As to appellant’s intent upon the entries, in People v. Kwok (1998) 63 Cal.App.4th
1236, 1245, the court stated, “Because intent is rarely susceptible of direct proof, it may be
inferred from all the facts and circumstances disclosed by the evidence.” Appellant’s
above mentioned entries into Casillas’s house as established by the People’s evidence were
nonconsensual and unlawful. Burglarious intent reasonably may be inferred from an
unlawful entry alone. (People v. Martin (1969) 275 Cal.App.2d 334, 339; People v. Wolfe
(1967) 257 Cal.App.2d 420, 425.) For this independent reason, we conclude appellant’s
entries into Casillas’s house were accompanied by burglarious intent.
Moreover, Casillas testified appellant repeatedly struck Casillas with appellant’s fist
while Casillas was inside, and appellant was outside, Casillas’s house, causing Casillas’s
head to strike the wall. Appellant continued the assault after Casillas stepped outside, with
8
consequent injuries to Casillas. “Punishment under [Penal Code] section 245, subdivision
(a), is directed at the force used, and it is immaterial whether the force actually results in
any injury. The focus is on force likely to produce great bodily injury. [Citation.]”
(People v. Parrish (1985) 170 Cal.App.3d 336, 343, italics added.)
We conclude there was sufficient evidence to convince a rational trier of fact,
beyond a reasonable doubt, when appellant entered the house with his right hand and right
foot as previously discussed, and when appellant entered by repeatedly striking Casillas
the first few times with appellant’s fist while Casillas was inside his house, appellant
entered with intent to commit upon Casillas assault by means of force likely to produce
great bodily injury.
Further, “the taking of any item of personal property of even slight intrinsic value
can constitute larceny in California.” (People v. Martinez (2002) 95 Cal.App.4th 581, 586
(Martinez).)4 Casillas, by trying to close the screen door, indicated to appellant that
Casillas was not going to comply with appellant’s repeated demands for water. Appellant
began pulling the screen door the other way, resisting Casillas’s effort to close it, and
appellant later entered the house by striking Casillas while Casillas was still inside.
We conclude based on all the evidence there was sufficient evidence to convince a
rational trier of fact, beyond a reasonable doubt, when appellant committed the above
discussed entries into Casillas’s house, appellant intended to commit larceny by stealing
water inside.5 Sufficient evidence supported appellant’s burglary conviction (count 1).6
4
Martinez concluded the intent of the defendant in that case to take a shower in a
person’s house without authorization was an intent to commit larceny because the defendant
intended without authorization to use, and thus consume, the person’s soap products,
shampoo, and water. (Martinez, supra, 95 Cal.App.4th at pp. 584-586.) Martinez rejected the
defendant’s argument “the ‘miniscule amount’ of soap, shampoo and water used are not of
sufficient value to qualify as property.” (Id. at p. 585.)
5
To the extent appellant argues there was insufficient evidence he intended to commit
larceny because he was voluntarily intoxicated, we note that even if there was substantial
evidence appellant was voluntarily intoxicated, there was no substantial evidence he was
intoxicated to the point he failed to formulate an intent to commit larceny. (Cf. People v.
Marshall (1996) 13 Cal.4th 799, 848; People v. Ivans (1992) 2 Cal.App.4th 1654, 1661-1662.)
9
2. The Trial Court Did Not Err by Failing to Instruct on Attempted Burglary.
Appellant claims the trial court erred by failing to instruct sua sponte on attempted
burglary as a lesser included offense of burglary.7 He argues there was substantial
evidence (1) he did not enter the house, (2) he lacked intent to commit assault with force
likely to produce great bodily injury at the time of any entry, and (3) he lacked “the
required felonious intent” at any entry because he was under the influence of drugs. We
reject appellant’s claim.
If, as appellant suggests, the evidence established only that appellant attempted to
enter Casillas’s house without intent to commit assault with force likely to produce great
bodily injury entry,8 and without “the required felonious intent” because he was under the
influence of drugs, then there was no evidence he committed attempted burglary because
there was no evidence of burglarious intent. To that extent, there was no need for the trial
6
To the extent appellant argues the trial court erroneously denied his motion for a
judgment of acquittal (made after the close of the People’s evidence) as to his burglary count,
our analysis applies to that argument as well since our analysis relies only on the People’s
evidence. (See People v. Cole (2004) 33 Cal.4th 1158, 1212-1213.) Accordingly, the trial
court properly denied appellant’s motion for a judgment of acquittal. Finally, to the extent
appellant argues as an independent issue there was insufficient evidence supporting his
conviction on count 2, he waived the issue by raising it for the first time in his reply brief.
(Cf. People v. Jackson (1981) 121 Cal.App.3d 862, 873.) Moreover, in light of the evidence
recited in our Factual Summary, including the evidence appellant delivered multiple blows to
Casillas’s head, the initial blows were causing Casillas’s head to hit a wall, appellant was
using both of his fists in an effort to knock Casillas unconscious, and Casillas fell, there was
substantial evidence supporting appellant’s conviction on count 2. (See People v. Aguilar
(1997) 16 Cal.4th 1023, 1028; Ochoa, supra, 6 Cal.4th at p. 1206; People v. Armstrong (1992)
8 Cal.App.4th 1060, 1065-1066; In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161-1162.)
7
“California law requires a trial court, sua sponte, to instruct fully on all lesser
necessarily included offenses supported by the evidence.” (People v. Breverman (1998)
19 Cal.4th 142, 148-149 (Breverman).) We review error on this issue for prejudice under the
standard enunciated in People v. Watson (1956) 46 Cal.2d 818, 836. (Breverman, at p. 149.)
8
Appellant argues Casillas’s alleged preliminary hearing testimony Casillas was able to
close his front door before appellant started hitting him (see fn. 2, ante) was substantial
evidence appellant lacked intent to commit assault by means of force likely to produce great
bodily injury.
10
court to instruct on attempted burglary because there was no substantial evidence to
support that instruction.
In light of appellant’s arguments he lacked intent to commit assault with force
likely to produce great bodily injury, and lacked intent to commit a felony, his instructional
claim the trial court erred by failing to instruct on attempted burglary implicitly concedes
there was substantial evidence he attempted to enter Casillas’s house with intent to commit
larceny. Appellant, relying solely on Casillas’s defense testimony at trial that, at the
preliminary hearing, Casillas denied any part of appellant’s body was inside Casillas’s
house, argues there was substantial evidence he did not enter; therefore, there was
substantial evidence he only attempted to enter with intent to commit larceny.
We assume without deciding that, as argued by appellant, there was substantial
evidence he only attempted to enter Casillas’s house with intent to steal, and the trial court
erred by failing to instruct sua sponte on attempted burglary as a lesser included offense of
burglary. However, we must review the matter for prejudice.
As mentioned, the sole evidence on which appellant relies to argue he did not enter
Casillas’s home was Casillas’s denial testimony. However, Casillas substantially qualified
that denial. He testified as a defense witness he thought the magistrate “was referring to
like part of the body, maybe the whole body, maybe half the body, not like just the hands
or the foot.” That testimony, reasonably understood, was Casillas thought the magistrate
was referring to a substantial portion, such as half, of appellant’s body. Casillas did not
think the magistrate was referring merely to a hand, foot, or fingertip. As a matter of the
credibility of this qualifying testimony, the jury essentially had only to decide whether it
was true or a fabrication. The jury, having convicted appellant of burglary, implicitly
found true this qualifying testimony.
Moreover, the prosecutor at trial elicited clarifying testimony from Casillas that, at
the preliminary hearing, he testified about (1) appellant’s foot, (2) the fact appellant was
trying to enter, and (3) the middle of the door, i.e., testimony corroborating Casillas’s
denial was qualified. Casillas testified at trial the “little snippet” of his preliminary hearing
testimony appellant’s trial counsel had read at trial did not accurately reflect Casillas’s
11
preliminary hearing testimony. During redirect examination by appellant at trial, Casillas
made clear he was certain appellant’s right foot was “crossing” and any uncertainty related
only to whether appellant’s right foot crossed “maybe half or maybe more than half.”
There was ample evidence from the People’s case appellant’s right hand, right foot, and
fist entered Casillas’s house, and, at the time of the entries, appellant intended to commit
assault by means of force likely to produce great bodily injury,9 and intended to steal.
In sum, even if there was substantial evidence appellant only attempted to enter
Casillas’s house with intent to steal, the rest of the evidence in this case provided such
ample evidence appellant entered with intent to commit assault by means of force likely to
produce great bodily injury, and with intent to steal, it is not reasonably probable a
different result would have occurred if the court had instructed on attempted burglary as a
lesser included offense of burglary.10 The alleged instructional error was not prejudicial.
(See Breverman, supra, 19 Cal.4th at p. 149.)
9
Casillas’s trial testimony about his preliminary hearing testimony (see fns. 2 and 8,
ante) concerning whether he was able to close the front door before appellant started hitting
him was equivocal, and Casillas testified at trial to the effect said preliminary hearing
testimony did not reflect what had happened and appellant had begun hitting Casillas before
Casillas closed the door. Casillas’s preliminary hearing testimony conveys the impression he
was less focused on whether he was able to close the door before appellant started hitting him
and more focused and thankful he was able to close it to protect his children. Even if
Casillas’s preliminary hearing testimony about closing the door was substantial evidence he
lacked intent to commit assault by means of force likely to produce great bodily injury, there
was, as we previously have discussed, ample evidence of that intent.
10
We realize, as appellant observes, the jury requested a readback of testimony and later
indicated it was deadlocked on the burglary charge, and the jury reached a verdict on that
charge only after the court told the jury to continue deliberating. However, the jury requested
a readback of testimony pertaining only to whether Casillas “was inside the house when the
first punch was thrown.” This suggested that, at the time of the jury’s request, the jury was
focusing on whether appellant entered Casillas’s house by reaching into it and striking Casillas
with a single blow, and not on the ample and previously discussed evidence: (1) appellant
repeatedly hit Casillas while Casillas was inside his house, (2) appellant’s right hand entered
when he grabbed the doorframe, (3) appellant’s right foot entered, and (4) appellant, at the
time of the entries, intended to commit assault by means of force likely to produce great
bodily injury, and intended to steal. Moreover, the court observed the jury had deliberated for
a total of less than two hours before it requested the readback, the court then excused the jury
12
3. Appellant’s Trial Counsel Did Not Provide Ineffective Assistance of Counsel.
Appellant claims his trial counsel provided ineffective assistance of counsel by
failing to request an instruction on attempted burglary as a lesser included offense of
burglary. We disagree. The record sheds no light on why appellant’s trial counsel failed
to act in the manner challenged, the record does not reflect said counsel was asked for an
explanation and failed to provide one, and we cannot say there simply could have been no
satisfactory explanation. We reject appellant’s ineffective assistance claim. (See People v.
Slaughter (2002) 27 Cal.4th 1187, 1219; People v. Ledesma (1987) 43 Cal.3d 171, 216-
217.)
Moreover, our analysis in parts 1 and 2 of our Discussion provides satisfactory
explanations why appellant’s trial counsel did not request an attempted burglary
instruction. As a matter of tactics, appellant’s counsel reasonably might have wanted to
present the jury with an all-or-nothing choice of convicting or acquitting appellant of
burglary. Appellant’s counsel reasonably could have concluded the jury would not have
convicted appellant merely of attempted burglary by relying on the evidence appellant now
argues would have supported such a conviction.
for the day, the jury heard the 10-minute readback the next morning and resumed
deliberations, and within 15 minutes told the court the jury was deadlocked. That is, the court
ordered the jury to continue deliberating because the court felt the jury had not spent sufficient
time deliberating.
13
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KITCHING, J.
We concur:
KLEIN, P. J. ALDRICH, J.
14
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911 F.2d 730
Buckley (Frank)v.Collins (James A.)
NO. 88-2947
United States Court of Appeals,Fifth Circuit.
AUG 07, 1990
S.D.Tex., 904 F.2d 263
1
DENIALS OF REHEARING EN BANC.
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} |
775 So.2d 132 (2000)
ALLMERICA FINANCIAL LIFE INSURANCE AND ANNUITY COMPANY
v.
William A. MILLER.
Nowlin & Associates
v.
William A. Miller.
1980529 and 1980530.
Supreme Court of Alabama.
June 23, 2000.
*133 James A. Kee, Jr., Michael L. Jackson, and Mark M. Hogewood of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for appellant Allmerica Financial Life Insurance and Annuity Company.
Kenneth O. Simon and Laura E. Proctor of Simon Borden, Birmingham, for appellant Nowlin & Associates.
David H. Marsh, Jeffrey C. Rickard, and Thomas M. Powell of Marsh, Rickard & Bryan, P.C., Birmingham, for appellee.
HOUSTON, Justice.[1]
William A. Miller was employed, through Nowlin & Associates, as an agent for Allmerica Financial Life Insurance and Annuity Company ("Allmerica").[2] Allmerica is a member of the National Association of Securities Dealers ("NASD"); Nowlin & Associates is not a member of NASD. Miller sued Allmerica and Nowlin & Associates, alleging various wrongs arising out of the terms of his employment. Specifically, Miller's complaint alleged that he had become a top seller of an insurance product called Payroll Exceptional Life ("PEL"); that he had been promised vested commissions for selling the PEL; that Allmerica had sold the PEL product line to American Hermitage Life Insurance Company; and that by selling the PEL product line Allmerica had severed Miller's vested commissions. These allegations constituted the factual basis of his seven-count complaint.[3]
Allmerica and Nowlin & Associates asked the trial court to compel arbitration of Miller's claims, pursuant to the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq. The underlying arbitration agreement is found in the application Miller signed to become a registered securities agent; that application is styled "Uniform Application for Securities Industry Registration or Transfer" ("Form U-4"). Form U-4 requires Miller to arbitrate "any disputes, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions, or by-laws of [NASD]." However, § 10101 of the NASD Code of Arbitration[4] excepts from arbitration matters involving "the insurance business of any member who is also an insurance company." Relying on our decision in Ex parte Hagan, 721 So.2d 167 (Ala.1998), the trial court refused to compel arbitration. In Hagan we held that a lawsuit filed by an insurance agent with claims factually similar to Miller's involved the "insurance business" and fell within the exception to § 10101.[5] By so holding, we overturned the trial court's order compelling arbitration.
The significant issues in these appeals are (1) whether the trial court correctly concluded that Miller's claims are excepted by § 10101 of the NASD Code, as defined in Hagan, and, if so, (2) whether Hagan should be overruled on the ground that it *134 makes too broad an interpretation of § 10101. Before we address those two issues, however, we must consider whether Allmerica and Nowlin & Associates have standing to enforce the arbitration clause found in Form U-4.
Nowlin & Associates is not a member of NASD.[6] To determine what legal effect its nonmembership has on its demand for arbitration, we must look to the NASD Code of Arbitration. Section 10101 of that Code, "Matters Eligible for Submission," provides for the arbitration of:
"any dispute, claim, or controversy arising out of or in connection with the business of any member of the Association, or arising out of the employment or termination of associated person(s) with any member, with the exception of disputes involving the insurance business of any member which is also an insurance company:
"(a) between or among members;
"(b) between or among members and associated persons;
[and]
"(c) between or among members or associated persons and public customers, or others...."
In Hagan, we considered whether a nonmember corporation, like Nowlin & Associates, could be a "person associated with a member":
"A `person associated with a member' or an `associated person of a member' is defined as
"`every sole proprietor, partner, officer, director, or branch manager of any member [of the NASD], or any natural person occupying a similar status or performing similar functions, or any natural person engaged in the investment banking or securities business who is directly or indirectly controlling or controlled by such member, whether or not any such person is registered or exempt from registration with the [NASD] pursuant to these By-Laws.'
"NASD Bylaws, Art. I, ¶ q. Under this definition, only a natural person is an `associated person of a member.' Because [the nonmember corporation] is not a natural person, it is not an `associated person of a member.'"
Ex Parte Hagan, 721 So.2d at 169. Nowlin & Associates is not a member; it is not a person associated with a member; and it is not an associated person of a member; therefore, it does not have standing to compel arbitration. We affirm the trial court's refusal to compel arbitration of the dispute between Miller and Nowlin & Associates.
Unlike Nowlin & Associates, Allmerica is a registered member of NASD. Therefore, under the rules cited above, Allmerica has standing to enforce the arbitration agreement, provided the matter to be arbitrated does not fall within the exception found in § 10101. See SouthTrust Securities, Inc. v. McClellan, 730 So.2d 620 (Ala.1999) (compelling arbitration under the FAA and the NASD Code of Arbitration when the plaintiff had signed a Form U-4).[7] This brings us to the first issue stated earlier: Is the underlying dispute a matter involving Allmerica's insurance business and thus excepted from the arbitration provision?
In Hagan, we answered a similar question by holding that the exception of § 10101 applies to members who are insurance companies. 721 So.2d at 171 (holding that the "exception applies because of Minnesota Mutual's status as an insurance *135 company"). We based this holding on the following rationale:
"It seems clear that the purpose of the exception is to exclude disputes involving the business of insurance as distinguished from those involving the sale of securities. A plain reading of § 10101 of the Code of Arbitration of the National Association of Securities Dealers is that it is intended to require arbitration of disputes regarding the securities business of its members. It is reasonable to conclude that securities regulations apply only to the securities business, and not to the insurance business. Indeed, the insurance business is commonly exempted from laws that regulate other businesses and industries. See, e.g., the McCarran-Ferguson Act, 15 U.S.C. § 1012(b), which provides in part: `No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance ... unless such Act specifically relates to the business of insurance.' Similarly, the NASD, in adopting its Code of Arbitration, was careful to except disputes involving the insurance business, which is not within the field of operation of the NASD.
"We are aware that some courts have otherwise construed § 10101 or its similarly worded predecessors. However, some of the cases relied on by the defendants have applied a Form U-4 arbitration to a dispute with an insurance company without even mentioning the exception to § 10101. Hermes v. Prudential Ins. & Fin. Services, 109 Ohio App.3d 309, 671 N.E.2d 1384 (1996); Gerga v. The Prudential Ins. Co. of America, d/b/a Prudential Ins. & Fin. Services, No. 96-12932, (Hennepin County, Minn., District Court, Feb. 10, 1997) (copy provided in Minnesota Mutual's brief, at app. C); Tom v. The Minnesota Mut. Life Ins. Co., No. CC-95-1805 (Hawaii Circuit Ct., 1st Cir., March 19, 1997) (copy provided in Minnesota Mutual's brief, at app. D).
"We find unpersuasive the reasoning of the cases that have discussed the exception to § 10101 and held that it did not apply to the claims at issue. In Armijo v. Prudential Ins. Co. of America, 72 F.3d 793, 795 (10th Cir.1995), the three plaintiffs `primarily sold insurance policies, but also sold mutual funds through Pruco Securities Corporation,' a wholly owned subsidiary of Prudential Insurance Company. The plaintiffs filed claims in a federal court alleging that their employment had been terminated based on their race, sex, or national origin. The Court of Appeals for the Tenth Circuit rejected their argument for application of the exception to the NASD provision that is now § 10101:
"`Although Prudential is an insurance company, there is nothing unique about these discrimination claims by Plaintiffs that involve the "insurance business" of Prudential. Plaintiffs are simply alleging that they were wrongfully discriminated against as employees in violation of [federal and state laws]. Illegal employment discrimination, if it exists, involves an employer's statutory obligations as an employer rather than as an insurer. Admittedly, Prudential's explanation for its actions against these Plaintiffs is that, in part, they replaced one Prudential policy with another or knowingly sold a policy based on a false application form. However, the dispute as framed by the Plaintiffs is predicated on the civil rights laws, not the insurance laws, and they are predicated on Prudential's role as an employer rather than as an insurer.
"`If Section [10101] of the NASD Code were construed to exclude from arbitration any employment dispute that arises within the context of insurance employment, it would render the arbitration language in these Plaintiffs' Forms U-4 illusory. Once again, our obligation is to reconcile and to give meaning to all provisions of the *136 parties' contracts. Our obligation to construe arbitration clauses broadly compels us to construe this exception to the arbitration clause narrowly. Thus, we conclude that the insurance exception to arbitrability does not include an exception for ordinary employment disputes merely because the defendant employer is an insurance company.'
"We see nothing in the exception that requires application of insurance laws before the exception is triggered; rather, the exception plainly states that the arbitration clause does not apply to `disputes involving the insurance business of any member which is also an insurance company.' What could be more crucial to the insurance business than the employment of agents to sell insurance? We respectfully disagree with the Tenth Circuit's conclusion that enforcing § 10101's exception in its own terms renders Form U-4's arbitration clause `illusory.' Rather, we read the arbitration clause in Form U-4 as applying to applicants for securities registration so as to provide for arbitration of disputes that are `required to be arbitrated under the rules, constitutions, or by-laws of' the relevant securities association. The Code of Arbitration of the NASD does not require arbitration of disputes concerning the insurance business of an association member that is an insurer as well as a securities firm. Surely the employment of insurance agents by an insurance company involves the insurance business of the insurance company.
"Similar results, for similar reasons, were reached by federal district courts in Battle v. Prudential Ins. Co. of America, 973 F.Supp. 861, 868-69 (D.Minn. 1997) (`To trigger the insurance exception, the plaintiff must allege unlawful insurance practices, and not wrongful conduct directed at the plaintiff,' citing Pitter v. Prudential Life Ins. Co. of America, 906 F.Supp. 130 (E.D.N.Y. 1995)); Cular v. Metropolitan Life Ins. Co., 961 F.Supp. 550, 558 (S.D.N.Y.1997) (complaint not within the exception because it `does not raise complex insurance law questions'); Prudential Ins. Co. of America v. Shammas, 865 F.Supp. 429, 432 (W.D.Mich.1993) (`The allegations in the complaint all concern alleged conduct toward Mr. Shammas by other employees and other people. The conduct complained of had nothing specifically to do with the insurance aspect of Prudential's business.'); and Foley v. Presbyterian Ministers' Fund, (No. 90-1053, E.D.Pa., March 19, 1992) (dispute `arises out of the Fund's personnel practices, not its "insurance business'").
"We respectfully disagree with the conclusions reached by those courts. It seems that those courts are grafting onto § 10101's exception a requirement that, in addition to `involving the insurance business of a member that is also an insurance company,' the claims at issue must involve only questions of insurance law, or even `complex' questions of insurance law. In our view, the exception, in its plain terms, simply excepts disputes involving the insurance business of insurance companies from the arbitration clause that applies to the securities business of securities companies. The dispute before us involves the insurance business of Minnesota Mutual, an insurance company, and the actions of its general agent, Sizemore, through his company, Paragon, in the furtherance of that insurance business."
Ex parte Hagan, 721 So.2d 167, at 171-73 (Ala.1998). (Footnotes omitted.) (Emphasis omitted.) Based on this Court's decision in Hagan, we hold that Miller's claims involve the insurance business of Allmerica; that the claims fall under the exception stated in § 10101; that the trial court correctly relied on precedent from this Court; and, therefore, that the judgment of the trial court is due to be affirmed.
Allmerica recognizes the precedent of Hagan, but asks us to overturn it, based upon the following cases: Mouton v. Metropolitan *137 Life Ins. Co., 147 F.3d 453 (5th Cir.1998); In re Prudential Ins. Co. of America Sales Practice Litigation All Agent Actions, 133 F.3d 225 (3d Cir.), cert. denied sub nom. Weaver v. Prudential Ins. Co. of America, 525 U.S. 817, 119 S.Ct. 55, 142 L.Ed.2d 43 (1998); Armijo v. Prudential Ins. Co. of America, 72 F.3d 793 (10th Cir.1995); Kidd v. Equitable Life Assurance Soc'y of the United States, 32 F.3d 516 (11th Cir.1994); Paul Revere Variable Annuity Ins. Co. v. Zang, 81 F.Supp.2d 227 (D.Mass.2000); Brannon v. Massachusetts Mut. Life Ins. Co., No. CIV A. 99-3497 (E.D.La., Jan. 31, 2000) (not published in F.Supp.); Paul Revere Variable Annuity Ins. Co. v. Thomas, 66 F.Supp.2d 217 (D.Mass.1999); Palmer-Scopetta v. Metropolitan Life Ins. Co., 37 F.Supp.2d 1364 (S.D.Fla.1999); Herko v. Metropolitan Life Ins. Co., 978 F.Supp. 141 (W.D.N.Y.1997); Battle v. Prudential Ins. Co., 973 F.Supp. 861 (D.Minn.1997); Jankauskas v. Prudential Ins. Co. of America, No. Civ. A. 97-985 (E.D.Pa. May 6, 1997) (not published in F.Supp.); Cular v. Metropolitan Life Ins. Co., 961 F.Supp. 550 (N.D.N.Y.1997); Neary v. Prudential Ins. Co. of America, No. 3:96CV1513 (D.Conn., Feb. 24, 1997) (not published in F.Supp.); Vitone v. Metropolitan Life Ins. Co., 943 F.Supp. 192 (D.R.I.1996); Weinstein v. Equitable Life Assurance Soc'y of the United States, No. CIV. A. 96-CV-3614 (E.D.La. Sept. 26, 1996) (not published in F.Supp.); Pitter v. Prudential Life Ins. Co., 906 F.Supp. 130 (E.D.N.Y.1995); Wojcik v. Aetna Life Ins. & Annuity Co., 901 F.Supp. 1282 (N.D.Ill.1995), clarified by 916 F.Supp. 729 (N.D.Ill.1996); Hall v. MetLife Resources, No. 94 Civ. 0358 (S.D.N.Y., May 3, 1995) (not published in F.Supp.); Trumbetta v. Metropolitan Life Ins. Co., Civ. A. No. 94-3275 (E.D.Pa., 1994) (not published in F.Supp.); Prudential Ins. Co. v. Shammas, 865 F.Supp. 429 (W.D.Mich.1993); Northwestern Mut. Life Ins. Co. v. Stinnett, 698 N.E.2d 339 (Ind. Ct.App.1998); Fastenberg v. Prudential Ins. Co. of America, 309 N.J.Super. 415, 707 A.2d 209 (App.Div.1998).
We are not persuaded that we should overrule Hagan.
AFFIRMED.
COOK, LYONS, BROWN, JOHNSTONE, and ENGLAND, JJ., concur.
HOOPER, C.J., and MADDOX and SEE, JJ., concur in part and dissent in part.
SEE, Justice (concurring in part and dissenting in part).
I concur in the affirmance of the trial court's order denying Nowlin & Associates' motion to compel arbitration. I dissent from the affirmance of the trial court's order denying Allmerica Financial Life Insurance and Annuity Company's motion to compel arbitration.
In denying Allmerica's motion to compel arbitration, the trial court relied on Ex parte Hagan, 721 So.2d 167 (Ala.1998). In Hagan, this Court held that an employment dispute with an insurance company necessarily involves the insurance business of that company and therefore comes within the insurance business exception under § 10101 of the Code of Arbitration of the National Association of Securities Dealers. The holding of Hagan is contrary to the clear majority of cases, as cited in the main opinion.[8] I would overrule Hagan and, in accordance with the clear majority of authority, hold that plaintiff William A. Miller's employment dispute with Allmerica *138 does not involve the business of insurance and is therefore arbitrable. Accordingly, I dissent.
HOOPER, C.J., and MADDOX, J., concur.
NOTES
[1] This case was originally assigned to another Justice on this Court; it was reassigned to Justice Houston on April 21, 2000.
[2] When Miller entered into the "Career Agent's Agreement," Allmerica was known as SMA Life Assurance Company.
[3] Count 1 alleged breach of contract; Count 2 alleged deceit; Count 3 alleged misrepresentation or suppression; Count 4 alleged negligent, reckless, wanton, and/or wrongful behavior; Count 5 alleged fraudulent deceit; Count 6 alleged suppression of a material fact; and Count 7 alleged intentional interference with Miller's business.
[4] This code was adopted by NASD pursuant to Art. VII, § 1(a)(3), of its bylaws.
[5] In Hagan, the insurance agent's complaint alleged libel, fraud in the inducement, fraudulent concealment, and breach of contract against three companies that had hired him to sell insurance policies and that had subsequently terminated his employment.
[6] Nowlin & Associates has never filed a Form U-4 to become a member of NASD. The record indicates that Charles Nowlin, as an individual, has filed a Form U-4, but that Nowlin & Associates, a separate legal entity, has not filed a Form U-4.
[7] SouthTrust Securities did not involve the insurance exception.
[8] As one of the authorities cited in the main opinion states: "The fact that [the defendant] is an insurance company does not automatically mean that a dispute involves its `insurance business.' To the contrary, courts have almost universally held that being employed by an insurance company is not enough to trigger the exception and instead examine the degree to which the pending claim is entangled with the company's insurance business." Paul Revere Variable Annuity Ins. Co. v. Thomas, 66 F.Supp.2d 217, 228 (D.Mass.1999) (citations omitted).
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567 F.2d 391
Polashekv.Tri-County Finance, Inc.
No. 77-1321
United States Court of Appeals, Seventh Circuit
11/8/77
1
W.D.Wis.
AFFIRMED
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No. 12-0396 – Holcomb v. Ballard
FILED
October 17, 2013
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
LOUGHRY, Justice, concurring:
OF WEST VIRGINIA
Given the mandatory procedural requirement that a defendant be arraigned on a
recidivist information during the same term of court in which he or she was convicted on the
triggering offense, I concur in the Court’s judgment. I write separately, however, to express my
view that this rigid and arbitrary statutory requirement, as demonstrated by the facts of this case, is
contrary to the spirit and intent of our recidivist laws and should be amended.
The petitioner was convicted of child neglect creating a substantial risk of injury or
death on January 4, 2007, a Thursday. The prosecuting attorney filed the recidivist information the
next day, Friday, and it was served on the petitioner on the last day of the court term, Monday,
January 8, 2007. Given the inflexible and arbitrary language of West Virginia Code § 61-11-19
(1943) (Repl. Vol. 2010), and the timing of the petitioner’s trial on the underlying offense, the
arraignment on the information was required to occur almost instantaneously with his triggering
conviction. The statute’s unyielding mandate fails to account for instances such as the present
one–where the timing of the defendant’s conviction on the triggering offense occurs just as the clock
on the court term strikes twelve–and thus, fails to afford the prosecutor any leeway as to when to
proceed with the recidivist information. Likewise, the trial court, which has the inherent authority
to manage its trial docket in the manner in which it sees fit, becomes hostage to the statute’s
arbitrary time constraint. Indeed, one can easily envision instances in which, as the days and hours
of a court term quickly wind down, other urgent matters necessitating a trial court’s immediate
attention arise and the arraignment of a recidivist must be delayed to the next term of court.
Our recidivist statute serves the obvious and important purpose of protecting and
improving public safety by putting the most dangerous criminals in prison. A recidivist statute also
deters and reduces the number of serious repeat offenders. See Syl. Pt. 3, in part, State v. Jones, 187
W.Va. 600, 420 S.E.2d 736 (1992) (stating that primary purpose of recidivist statutes is to “deter
felony offenders . . . from committing subsequent felony offenses.”). The inflexibility of the time
constraints contained in West Virginia Code § 61-11-19 clearly frustrates this purpose.
Nonetheless, the statute at issue has remained unaltered since 1943 and our case law
construing its requirements as mandatory and jurisdictional has been in existence since 1958.
Prosecutors are undoubtedly aware of the statute’s requirements and may well have devised practical
solutions to this issue in the event of the “perfect storm,” i.e. a potential recidivist being tried at or
near the end of the term of court. Nevertheless, there may well be circumstances which frustrate
even the most diligent prosecutor’s attempt to anticipate and plan for such occurrences.
Accordingly, it does not seem to be in the interest of justice to place a prosecutor “on the clock” as
it pertains to a potential recidivist in a situation where the timing of the return of the triggering
conviction is in the control of the jury and not the prosecutor or even the court.
To that end, it is imperative that prosecutors be vigilant in ensuring that the recidivist
statute is strictly followed. As we made clear in State ex rel. Young v. Morgan, 173 W.Va. 452, 317
S.E.2d 812 (1984), the recidivist penalty does not survive the reversal of the underlying felony
offense. The petitioner herein had already been tried and convicted on both the underlying offense
2
and the recidivist information. Thus, in light of Young, when he was retried near the very end of the
term of court, the prosecutor should have been prepared to immediately proceed with arraignment
on the recidivist information or else be barred from ever doing so. See State ex rel. Games-Neely
v. Sanders, 220 W.Va. 230, 239, 641 S.E.2d 153, 162 (2006) (“‘The prosecuting attorney is the
constitutional officer charged with the responsibility of instituting prosecutions and securing
convictions on behalf of the State of those who violate the criminal law . . . .’” (quoting State ex rel.
Skinner v. Dostert, 166 W.Va. 743, 750, 278 S.E.2d 624, 630 (1981)); see also State v. Swafford,
206 W.Va. 390, 397, 524 S.E.2d 906, 913 (1999) (Starcher, C.J., concurring) (“A prosecutor, acting
on behalf of the people, must diligently . . . enforce the rights of the public.”). Thus, unless the
Legislature amends the uncompromising time limitations of the recidivist statute, or provides a
manner in which a prosecutor may seek a brief extension for good cause shown, prosecutors must
remain extremely vigilant in the management of those cases in which recidivist charges will be
pursued.
For the reasons stated herein, I respectfully concur in the majority’s holding and
decision to grant the petitioner the relief requested. I am authorized to state that Justice Workman
joins in this concurrence.
3
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482 S.W.2d 687 (1972)
D. O. ATKINSON, Jr., et al., Appellants,
v.
Lucile SCHMIDT, Appellee.
No. 11930.
Court of Civil Appeals of Texas, Austin.
June 21, 1972.
Wilson, Logan, Lear & Massey, Ralph Logan, Gregory V. Gossett, San Angelo, for appellants.
Kerr, Gayer & Gregg, Lloyd Kerr, San Angelo, for appellee.
*688 PHILLIPS, Chief Justice.
Appellee Lucile Schmidt brought suit in trespass to try title against Appellants D. O. Atkinson, Jr. and other members of his family in the District Court of Tom Green County. Lucile Schmidt and D. O. Atkinson, Jr. are brother and sister.
Appellee based her claim to title in fee simple to the north 2,354 acres of the D. O. Atkinson, Sr. ranch in Tom Green County on two theories: first, that at the time her mother and father, Mary and D. O. Atkinson, Sr., executed similar wills in 1949, they entered into an oral contract concerning the disposition of their community property; and second, that the will of the mother, Mary Atkinson, disposed of the entire community interest on the land in question, and that by probating and accepting benefits under the will of her mother, her father, D. O. Atkinson, Sr., made an election and was therefore bound to allow the property to pass by the will of the mother.
Appellants answered "not guilty" and, under Tex.R.Civ.P. 790, they further answered that the extent of their claim to the land in question is a remainder interest in an undivided one half interest to the above mentioned acreage subject to the life estate of Appellee.
All parties are claiming title by and through D. O. Atkinson, Sr. and Mary Atkinson, husband and wife, who owned the land as part of their community estate.
Trial was had before the court and judgment was rendered for Appellee awarding the entire fee simple title in the land to Appellee. It is from this judgment that Appellants have perfected their appeal to this Court.
We affirm.
Appellants are before us on seven points of error. The first three, briefed together, are the error of the trial court in rendering judgment for Appellee and in failing to render judgment for Appellants for the reason that there was either no evidence or insufficient evidence that D. O. Atkinson, Sr. and Mary Atkinson at the time of the execution of the 1949 wills, contracted that they would not revoke these wills.
We overrule these points.
In 1949, Mary Atkinson executed a will of which the third paragraph reads as follows:
"THIRD: I give, devise and bequeath to my daughter LUCILLE SCHMIDT, subject to the hereinafter provisions, the title in fee to the North 2354 acres of the D. O. Atkinson Home Ranch containing 4,034 acres more or less, located south of Knickerbocker in Tom Green County, Texas."
The sixth paragraph of the will is as follows:
"... All of the property owned by my husband and myself is community property and it is my will and desire, and I hereby direct that all of said property shall remain intact so long as my husband, D. O. Atkinson, shall live, and neither of my children shall have authority, and are hereby prohibited from partitioning or in any manner dividing said real estate during the natural life of my said husband. It is my will and I further direct that my husband, D. O. Atkinson, shall, so long as he lives and during his natural life, have full and exclusive authority, and I hereby authorize my husband, D. O. Atkinson, and empower him to execute all oil, gas and mineral leases on any and all of my said real estate...."
At the same time that Mary Atkinson made her will in 1949, D. O. Atkinson also made his will. These wills contained identical reciprocal provisions by each of the parties in favor of the other and they made the same dispositions of the same items of property, each in favor of the same persons.
*689 Mary Atkinson died in 1956, and her will of 1949 was probated by D. O. Atkinson. At that time D. O. Atkinson had his attorney draw another will for him which was identical to his reciprocal will of 1949 with the exception of changing the executor.
As stated above, Mrs. Atkinson's will was probated on her husband's application. He qualified as its independent executor, filed an inventory of the community estate showing goats appraised at $400, yearling ewes at $1,600, live lambs at $800, cows at $400, and $6,234.87 in cash. This was Mrs. Atkinson's interest, all of which was given to him in her will. In addition, as such executor and exercising the exclusive authority given him by the will, he entered into a series of oil, gas and mineral leases on dates from 1958 to 1969 for considerations involving many thousands of dollars.
In 1963, D. O. Atkinson executed his last will and testament which devised to Appellee only a life estate in his community half of the land in question with remainder to her children if any, or the children of Appellant, D. O. Atkinson, Jr.
Both Appellants and Appellee agree that Appellee has title in fee simple to an undivided one half of the land under the provisions of the will of Mary Atkinson. At issue, however, is the title to the remaining undivided one half of the land. Appellee contends that she is the owner in fee simple of the remaining one half. Appellants contend that Appellee received title in fee simple to an undivided one half under the will of Mary Atkinson and only a life estate in the remaining one half under the will of D. O. Atkinson, Sr.
We cannot agree with Appellants' contention that there is no evidence or insufficient evidence that the senior Atkinsons intended to enter into a contract under their reciprocal wills made in 1949. Quite to the contrary, testimony at trial from the late B. W. Smith, the senior Atkinsons' attorney, who prepared all of the wills presently in issue, indicates that Mary and D. O. Atkinson, Sr. entered into an oral contract to dispose of their property as indicated in the reciprocal wills of 1949.
Mr. Smith testified that, "After Mr. and Mrs. Atkinson came into the office and we were seated then I, of course, asked them what they wanted or desired, and Mr. D. O. said, Mr. D. O. Atkinson said `We have agreed on how we want our property to go and want you to prepare our wills for us' ..."
Again Mr. B. W. Smith testified as follows:
"Q Judge, [meaning the witness] do you remember whether they said anything about an agreement that the 4,034 acre ranch would not be divided at any time during the life of the survivor?
A As I recall that, Mrs. Atkinson used some of the words that I put in this will about the division of that ranch during the lifetime of the survivor. I haven't taken time to pick them out. She used some of the words I thought were so good that I just put it in the will.
Q She give you those words in the presence of D. O. Atkinson?
A In the presence of D. O. Atkinson.
Q At the time when she did that they were telling you what their agreement on wills was, is that correct?
A That's right.
Q Did they say whether or not they wanted you to prepare a will for both of them?
A Yes, sir.
Q In accordance with that agreement?
A Yes, sir.
Q And did you?
A Yes, sir."
*690 With respect to the second will B. W. Smith drew for D. O. Atkinson, Smith testified as follows:
"Q Now, after Mrs. Atkinson passed away in 1956 you drew the second will in 1957 for Mr. Oscar?
A That's right.
Q And that will is virtually the same as the will in 1949, with the exception that it named Lucille and D. O. as executors in place of Mrs. Atkinson?
A Lucille and D. O., Jr., as executors; yes, I believe that is right. Now, I don't know whether there's any other variance in there with reference to anything else or not, Ralph. I do know that's in there, but I will take your word on it, whatever you say.
Q I believe that's in substance the only difference.
A Whatever you say on it.
Q Naming somebody else as executor in the will.
A Okay.
Q And as a matter of fact wasn't that what Mr. Atkinson told you to do when he came in, was to prepare another will like his original will except name D. O. Jr. and Lucille as executors in place of Mrs. Atkinson?
A He told me he wanted to carry out the agreement, if it is called, whatever you call it, that name, he had with `Mom' when he drew the other will."
In Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165 (1946), the Court held that one who relies upon a will as a contract has the burden of proving that the will is contractual as well as testamentary in character. Proof "may be made by the provisions of the will itself or by competent witnesses who testify to the agreement; and evidence as to declarations of the promisor, relations or conduct of the parties and other facts and circumstances, that tend to prove that an agreement was made, are admissible." Citing cases, 193 S.W.2d 167-168. The above mentioned testimony of D. O. Atkinson and B. W. Smith was competent testimony tending to prove that the parties also intended their wills to be a contract between them. In addition, in the terms of the identical wills, each bequeaths and devises all of the community property in question to Appellee. In other words, the wills treat the property of testators as one. As stated in Nye under similar facts: "A will like that could not have been made without agreement between the testators that it should be so made. Its very terms are evidence that an agreement was made, and they are entirely consistent with the testimony of the witness as to what the agreement was."
Nye continues:
"We need not determine whether the agreement between the husband and wife, pursuant to which the joint will was executed, was valid and enforceable against the wife when made. Interesting discussions of the validity of such contracts appear in Larrabee v. Porter, Tex.Civ.App., 166 S.W. 395, 402-404, application for writ of error refused, and Johnson v. Durst, Tex.Civ.App., 115 S.W.2d 1000, 1004, 1005. The husband, R. T. Bradford, fully performed his contract. He died without having undertaken to revoke the joint will and without having attempted to make any disposition of the property in contravention of the agreement. The surviving wife, on her own application, caused the joint will to be probated as the last will and testament of her deceased husband and qualified as executrix under the will. Thereupon the contract, even if it had theretofore been voidable (and as to that we express no opinion), became obligatory upon her."
Appellants cite two cases in support of their first three points, namely, Ramm et al. v. Ramm's Estate, 314 S.W.2d 847 (Tex. Civ.App. Austin 1958, writ ref'd n.r.e.) *691 and Magids v. American Title Insurance Company, et al., 473 S.W.2d 460 (Tex. Sup.1971). These cases are of no assistance. In Ramm we have a different set of facts. The jury found that there was no contract between the testators. This Court affirmed the trial court's judgment entered upon the jury's finding, stating that the evidence disclosed only that each testator wanted to make a will, that their friendliness for each other and the further fact that they were the sole survivors of their immediate family were evidence that the jury could consider as influencing the naming of beneficiaries in the will, independently of any agreement.
In Magids the Court stated the crucial question to be whether the Magids made an oral agreement to dispose of their community property at their respective deaths or at the death of the first of them, in the manner set forth in the wills, and this was not asked. The Court went on to state that this failure was understandable because there was no evidence of this type in support of a contract between the testators. Such is not the case here.
In Magids the Court also stated that although the wills were on an identical form prepared by the same scrivener and signed at the same time before the same witnesses, they were entirely separate wills dealing only with each testator's property; neither will attempted to deal with the entire community estate of both testators in a manner that would affect the survivor's one half interest or put the survivor to an election whether to take under the will. These facts are not present in this case. In other words, the Court found in Magids the evidence would support only an agreement to make identical wills and nothing more.
Nor are we impressed with the contention that the clause in the will providing that neither of the children shall partition the real estate during the life of D. O. Atkinson would have been useless if the part of the estate in question was intended to go to Appellee. There are several answers to this argument. One answer is that property other than that before us was devised in the will and that only the testator's individual interest was devised in some instances.
We hold that the oral testimony quoted above and the provisions of the wills were sufficient evidence to affirm the judgment of the trial court that the death of Mrs. Atkinson put effective revocation beyond the legal right and power of D. O. Atkinson. Weidner v. Crowther et al., 157 Tex. 240, 301 S.W.2d 621 (1957).
Appellants' fourth, fifth and sixth points, briefed together, are the error of the court in failing to render judgment for Appellants for the reason that the 1949 will of Mary Atkinson, as a matter of law, did not dispose of any of the community interest of her husband, D. O. Atkinson, Sr., to the land in question, and therefore D. O. Atkinson, Sr. was not put to any election; this point is followed by the no evidence and insufficient evidence points relative thereto.
We overrule these points.
The will of Mrs. Atkinson expressly recognizes the fact that all of the property owned by her and her husband was community property. Some of her bequests in this will devised only her community interest. Her bequest to Appellee devised the entire community interest. Thus at her death, D. O. Atkinson, Sr. was put to an election under Mrs. Atkinson's will. This was a question of fact to be determined by the trial court and we hold that there was sufficient evidence to sustain the judgment under the facts set out above. Lawrence v. Coffield, 468 S.W.2d 544 (Tex.Civ.App.1971, writ ref'd n. r. e.); Farmer v. Zinn et al., 276 S.W. 191 (Tex. Comm'n App. 1925, opinion adopted); Cunningham v. Townsend, 291 S.W.2d 438 (Tex.Civ.App.1956, writ ref'd n. r. e.); Wurth v. Scher, 327 S.W.2d 72 (Tex.Civ. App.1959, no writ); see 60 A.L.R.2d 736.
*692 Nor can we agree with Appellants' seventh point of error that the court erred in the judgment rendered because the oral contract alleged in Appellee's pleading was in violation of the statute of frauds and thus unenforceable.
Consequently, we overrule the point.
An oral agreement to make mutual wills is taken out of the Statute of Frauds by part performance, as by the death of one party, leaving a will in accordance with the agreement, and the acceptance of benefits, under such will, by the survivor. Kirk v. Beard, 162 Tex. 144, 345 S.W.2d 267 (1961).
To quote from Kirk: "Mutual wills have been executed pursuant to an oral contract plus the acceptance by the survivor of the benefits provided by the will of the deceased. The deceased party to the contract has fully and completely performed."
The judgment of the trial court is affirmed.
Affirmed.
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MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
May 20 2015, 6:38 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald E.C. Leicht Gregory F. Zoeller
Kokomo, Indiana Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cleverly P. Lockhart, May 20, 2015
Appellant-Defendant, Court of Appeals Case No.
34A04-1407-CR-351
v. Appeal from the
Howard Circuit Court
State of Indiana, The Honorable Bruce C. Embrey,
Special Judge
Appellee-Plaintiff.
Cause No. 34C01-9406-CF-40
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015 Page 1 of 13
[1] Cleverly P. Lockhart was convicted in 1995, after a jury trial, of one count of
child molesting1 as a Class C felony and three counts of child molesting, 2 each
as a Class B felony. He brings this belated appeal after his re-sentencing in
1998, where he received a fifty-three-year sentence, and raises the following
issue: whether the trial court erred when it re-sentenced him.
[2] We affirm.
Facts and Procedural History
[3] The facts of Lockhart’s 1995 convictions were set out in his direct appeal to this
court as follows:
In November of 1993, Lockhart moved into the house of his friend,
Michelle Frazier. At first, Lockhart slept on a couch, but eventually
began sleeping in the bedroom of Frazier’s eleven year old son, J.R.
Lockhart developed a close father-son relationship with J.R.
In January of 1994, while Lockhart and J.R. sat on the floor under a
blanket and watched television, Lockhart reached over and placed his
hand inside J.R.’s underwear. Lockhart rubbed J.R.’s penis for several
minutes.
A couple of weeks later, Lockhart went into J.R.’s bedroom and
locked the door. He told J.R. about oral sex and then pulled J.R.’s
pants down. Lockhart placed his mouth on J.R.’s penis for several
minutes.
One month later, Lockhart again entered J.R.’s bedroom and locked
the door. He performed oral sex on J.R. and forced J.R. to perform
1
See Ind. Code § 35-42-4-3(b). We note that, effective July 1, 2014, a new version of the criminal statute at
issue in this case was enacted. Because Lockhart committed his crimes prior to July 1, 2014, we will apply
the statute in effect at the time he committed his crimes.
2
See Ind. Code § 35-42-4-3(a).
Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015 Page 2 of 13
oral sex on him. Afterwards, Lockhart placed his penis into a sock
and masturbated until he ejaculated.
In March of 1994, Lockhart became angry with J.R. for not
completing a household chore. Lockhart spanked J.R. and ordered
him to go to his bedroom. Lockhart later went to J.R.’s bedroom to
apologize. Lockhart told J.R. “how to make love to a guy” and then
“french-kissed.” Lockhart kissed J.R. all over his body and put his
mouth on J.R.’s penis. Lockhart moved out of the house later that
month. Before leaving, Lockhart told J.R. that if J.R. ever decided he
was homosexual, he should contact Lockhart.
Approximately two weeks later, J.R. told his mother about the
molestations. Frazier immediately reported the incidents to Child
Protective Services.
Lockhart v. State, 671 N.E.2d 893, 896-97 (Ind. Ct. App. 1996). The State
charged Lockhart with one count of Class C felony child molesting and three
counts of Class B felony child molesting. At the jury trial, Lockhart did not
raise mental illness as a defense, and he testified coherently in his own defense.
Lockhart claimed to have received letters from the victim recanting the
accusations against Lockhart; however, the evidence showed that the letters had
not been written by the victim. There was also evidence and references to
several other forged documents associated with the case. According to
Lockhart’s trial attorney, there were many forged documents concerning cases
in which Lockhart was involved, and the attorney viewed documents provided
by Lockhart with caution until they could be verified by other sources.
[4] At the conclusion of the jury trial, Lockhart was found guilty as charged. The
trial court sentenced him to eight years for the Class C felony conviction and
twenty years each for the three Class B felony convictions, with the sentences to
run consecutively, for a total sentence of sixty-eight years; however, believing it
Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015 Page 3 of 13
was required to do so under statute, the trial court reduced the aggregate
sentence to thirty years. This court affirmed Lockhart’s convictions on direct
appeal, but found that the trial court had erred in its belief that it was required
to reduce Lockhart’s sentence and had, therefore, imposed an illegal sentence.
Lockhart, 671 N.E.2d at 904-05. Lockhart’s original sentence was vacated, and
the case was remanded with instructions to impose a “statutorily authorized
sentence.” Id. at 905.3
[5] Although it is not clear why, Lockhart was examined by Dr. Angel Brignoni on
September 19, 1995, about one month after his original sentencing, and by Dr.
David Jarmon on April 22, 1996, about eight months after his sentencing.4 In
September 1995, Dr. Brignoni diagnosed Lockhart with bipolar disorder with
psychotic features and concluded that Lockhart was incompetent to stand trial
at that time. Appellant’s App. for 34A04-1204-CR-226 at 64-65. In April 1996, Dr.
Jarmon diagnosed Lockhart with schizo-affective disorder, bipolar type and
3
This court also stated, in a footnote, that three of the aggravating factors relied upon by the trial court were
not proper. Lockhart v. State, 671 N.E.2d 893, 904 n.5 (Ind. Ct. App. 1996). This was, however, not the basis
for vacating Lockhart’s sentence, and there were four other aggravating factors relied upon by the trial court
that were not found to be improper: (1) Lockhart’s violation of probation; (2) his prior criminal history; (3)
the need for correctional treatment; and (4) the violation of a position of trust. Id. at 903.
4
The CCS contains no entries indicating either that these evaluations were ordered or that the reports were
filed with the trial court. Dr. Brignoni’s report states that Lockhart was being evaluated “to determine
whether he is competent to stand trial,” but at the time of the evaluation, Lockhart had already been tried,
convicted, and sentenced for his crimes. Appellant’s App. for 34A04-1204-CR-226 at 61. Dr. Jarmon’s report
states that Lockhart was currently incarcerated and had been for approximately three years for an arrest on
child molesting charges, id. at 57; however, at the time of evaluation, Lockhart had already been convicted
and sentenced for the child molesting charges. Therefore, it does not seem that these reports were created in
connection with this case as the case would have been on appeal with this court at the time the evaluations
were performed.
Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015 Page 4 of 13
concluded that there were questions about Lockhart’s competency to stand trial.
Id. at 60. Dr. Jarmon also cautioned, however, that he could not rule out the
possibility of malingering in this case. Id. at 58.
[6] On June 12, 1997, Lockhart’s attorney for the re-sentencing filed a motion
requesting a mental examination, which was granted by the trial court. The
trial court received a copy of the report from this mental examination on April
2, 1998. A report of a psychiatric evaluation done by Dr. Edward Wasserman
on July 15, 1997 is contained in the record, which states that the evaluation had
been ordered to recommend admission to the psychiatric ward of the Westville
Correctional Center. It appears this was the report that the trial court referred
to at the re-sentencing hearing as it occurred close in time to the ordered
evaluation, and in the transcript of the re-sentencing, the trial court referred to
page two of the report and verbatim quotes Dr. Wasserman’s diagnosis of “‘Bi-
Polar [a]ffective Disorder with psychosis and rule out schizo[a]ffective disorder,
also chemical dependency to poly-substances.’” Appellant’s App. 34A04-1204-CR-
226 at 52 (quoting Appellant’s App. 34A05-0905-PC-293 at 34). The July 15 report
recommended that Lockhart be admitted to the psychiatric area for further
observation and treatment, but did not contain an opinion that Lockhart was
incompetent at that time.
[7] The re-sentencing hearing was held on April 16, 1998. During the hearing,
Lockhart did not claim that he was currently incompetent or make any
objection that he could not be sentenced on that basis. The parties did not
present any evidence except for Lockhart’s counsel referring to “the information
Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015 Page 5 of 13
that the [c]ourt had on the . . . medical reports.” Id. at 47. The trial court
mentioned a psychiatric evaluation given to it by Lockhart’s counsel,
presumably the evaluation done by Dr. Wasserman on July 15, 1997, and to
two exams it already had, presumably the reports by Drs. Brignoni and Jarmon.
After argument by the parties, the trial court found as aggravating factors that
Lockhart was on probation at the time he committed the crimes, his prior
criminal history, that prior periods of incarceration had not rehabilitated him,
and the violation of a position of trust. It found as a mitigating factor that
Lockhart suffers from bi-polar affective disorder with psychosis. The trial court
found the aggravating factors outweighed the mitigating factor and sentenced
Lockhart to eight years for his Class C felony conviction and fifteen years for
each of his three Class B felony convictions with the sentences to run
consecutively for an aggregate sentence of fifty-three years.
[8] Lockhart filed a petition for post-conviction relief shortly after the re-sentencing
hearing. At the hearing on his petition, Lockhart attempted to admit several
exhibits, which the post-conviction court excluded, including an affidavit
purporting to be from Lockhart’s re-sentencing counsel that stated that
Lockhart was incompetent during the re-sentencing hearing. The attorney
testified at the hearing, however, and stated that it was not his signature on the
affidavit and he did not remember the affidavit. Included in the documents
attached to this alleged affidavit by the attorney was a one-page letter
purporting to be from Dr. Wasserman to the sentencing judge dated January
14, 1998 that stated the opinion that Lockhart was incompetent at that time.
Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015 Page 6 of 13
Lockhart’s post-conviction petition was denied, and this court affirmed that
ruling on appeal.
[9] Lockhart filed a motion to correct erroneous sentence in March 2012, which
was denied by the trial court. On his appeal of that denial, Lockhart included a
one-page document in his appendix that claimed to be a report by Dr.
Wasserman regarding an evaluation conducted on April 13, 1998. The report
stated that Lockhart was incompetent at that time. The denial of Lockhart’s
motion to correct erroneous sentence was affirmed. Lockhart now belatedly
appeals his 1998 re-sentencing.
Discussion and Decision
[10] Lockhart argues that the trial court erred when it re-sentenced him. He first
contends that the trial court abused its discretion when it sentenced him to fifty-
three-years at his re-sentencing hearing. We review a trial court’s sentencing
decision for an abuse of discretion. Gellenbeck v. State, 918 N.E.2d 706, 711
(Ind. Ct. App. 2009). An abuse of discretion occurs if the sentencing decision is
clearly against the logic and effect of the facts and circumstances. Id.
[11] Lockhart concedes that the sentence imposed by the trial court was within
statutory parameters and that the “sentencing order is not subject to challenge
on the grounds of an improper [weighing] of aggravating and mitigating
factors.” Appellant’s Br. at 9. Instead, Lockhart argues that the trial court
abused its discretion in “treating incompetence . . . as merely a mitigating
circumstance, rather than a prohibited violation of federal due process.” Id. He
Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015 Page 7 of 13
contends that, at the re-sentencing hearing, he submitted reports that indicated
that he was incompetent and that, because a conviction of an incompetent
person is a violation of federal due process, the sentencing of an incompetent
person must also be a denial of due process.
[12] Initially, we note that Lockhart failed to provide a cogent argument in support
of his contention. Indiana Appellate Rule 46(A)(8) requires that contentions in
an appellant’s brief be supported by cogent reasoning and citations to
authorities, statutes, and the appendix or parts of the record on appeal. “A
party waives an issue where the party fails to develop a cogent argument or
provide adequate citation to authority and portions of the record.” Davis v.
State, 835 N.E.2d 1102, 1113 (Ind. Ct. App. 2005), trans. denied. Here, Lockhart
merely cites to case law stating that a defendant may not stand trial when
incompetent, but makes no citation to authority that states that a defendant
may not be sentenced if incompetent. Further, he does not assert any argument
as to why such a rule would apply to the present case, where he was merely
being re-sentenced due to an error in the original sentencing and no evidence
was even presented at the re-sentencing hearing. Therefore, Lockhart has
waived this contention by failing to provide a cogent argument in support of his
claim.
[13] Waiver notwithstanding, Lockhart’s argument fails. In support of his
contention that he was incompetent at the time of the re-sentencing hearing,
Lockhart points to three reports: the September 1995 evaluation report by Dr.
Brignoni; the April 1996 evaluation report by Dr. Jarmon; and an evaluation
Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015 Page 8 of 13
report by Dr. Wasserman dated April 13, 1998. Dr. Brignoni evaluated
Lockhart in September 1995, two and a half years before the re-sentencing
hearing. Dr. Jarmon evaluated Lockhart in April 1996, two years before the re-
sentencing. Given that these reports were completed at least two years prior to
when Lockhart was re-sentenced, they are not relevant as to whether he was
competent at the time of the re-sentencing hearing because it would be
speculation to assume that Lockhart’s condition was still the same as it was two
years prior. The presumption that Lockhart’s condition is not the same as it
was two years prior is supported by the fact that his attorney did not assert that
Lockhart was incompetent at the re-sentencing or object to the re-sentencing
occurring on that basis.
[14] Therefore, the only remaining evidence supporting incompetence was the report
by Dr. Wasserman dated April 13, 1998. Although Lockhart has included this
report in the record on appeal, there is no evidence that this report was
presented to the trial court at re-sentencing. The one-page report at issue is not
file-stamped and is dated April 13, 1998. Appellant’s App. 34A04-1204-CR-226 at
66. The CCS indicates that, on April 2, 1998, the trial court received a mental
evaluation that had been requested on June 12, 1997, and no other entries
reflect that a subsequent report was received between April 13 and 16, 1998.
Appellant’s App at 21. It is clear that this one-page report was not the same one
discussed by the parties at the re-sentencing hearing. The report discussed was
two pages in length, and the language quoted by the trial court matches that
from a report by Dr. Wasserman completed on July 15, 1997, but does not
Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015 Page 9 of 13
match any language from the April 13 report. The two-page evaluation from
July 15, 1997 also seems more likely to be one ordered by the trial court as it
occurred closer in time to June 12, 1997, the date it was ordered. It is
important to note that, although the July 15, 1997 report diagnosed Lockhart
with significant mental health issues, it did not allege that he was incompetent
at that time. Appellant’s App. 34A05-0905-PC-293 at 33-34. The record, therefore,
does not support that the April 13 report was ever before the trial court at re-
sentencing.5 Lockhart has failed to present evidence that the evidence presented
to the trial court at his re-sentencing hearing demonstrated that he was
incompetent at that time.
[15] Even if there was evidence that the trial court was presented with reliable
evidence that Lockhart was incompetent at the time of re-sentencing, it would
not have been an abuse of discretion to re-sentence Lockhart in this case. The
trial and conviction of a defendant who lacks adequate competence is a denial
of federal due process. Brewer v. State, 646 N.E.2d 1382, 1384 (Ind. 1995). The
standard for deciding competency is whether or not the defendant possesses the
ability to consult rationally with counsel during the case and factually
comprehend the proceedings against him or her. Id. It clearly violates due
process for a defendant to stand trial when he has no understanding of the
5
The circumstances of this case also cause concern as to the validity of the April 13, 1998 report by Dr.
Wasserman. There was a history of previous forged documents in this case associated with Lockhart. The
April 13 report was not file-stamped and was contained in an appendix submitted by Lockhart pro se in prior
proceedings in this case. Nothing in the CCS shows that this report was ever filed in this proceeding.
Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015 Page 10 of 13
proceedings and cannot assist in his defense. Id. at 1384-85. However, no
authority has been presented to indicate that this due process right extends to
the imposition of sentence.
[16] Even assuming that there is a constitutional due process right to be competent
at the initial hearing, it does not mean this is automatically true for a re-
sentencing hearing as occurred in the present case. At the original sentencing
hearing, the defendant may provide important assistance to his counsel in
preparing evidence and witnesses to present on his behalf. See Ind. Code § 35-
38-1-3 (defendant is entitled to subpoena and call witnesses and to present
information in his own behalf at sentencing hearing). A defendant also
provides information for the pre-sentence investigation report and has an
opportunity to speak on his behalf before the sentence is imposed. Therefore, a
defendant’s ability to assist in his sentencing hearing would be hindered if he
were not competent during his original sentencing hearing.
[17] However, in the present case, such reasoning does not apply. Here, Lockhart’s
re-sentencing hearing was just an opportunity for the trial court to correct a
legal error that happened during the original sentencing. No new evidence was
presented, and neither party called any witnesses. No new pre-sentence report
was presented, and the trial court was not asked to consider any new
aggravating or mitigating factors. Thus, this was not a proceeding where the
defendant’s ability to assist his counsel was necessary to protect his rights or
where there were significant issues that required defendant’s participation. The
purpose of this re-sentencing hearing was to impose a sentence that did not
Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015 Page 11 of 13
include the legal error that occurred in the initial hearing. We conclude that the
trial court did not abuse its discretion when it sentenced Lockhart.
[18] Lockhart next argues that his fifty-three-year sentence is inappropriate in light
of the nature of the offense and the character of the offender. Under Indiana
Appellate Rule 7(B), “we may revise any sentence authorized by statute if we
deem it to be inappropriate in light of the nature of the offense and the character
of the offender.” Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct. App. 2014).6 The
question under Appellate Rule 7(B) is not whether another sentence is more
appropriate; rather, the question is whether the sentence imposed is
inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). It is the
defendant’s burden on appeal to persuade the reviewing court that the sentence
imposed by the trial court is inappropriate. Chappell v. State, 966 N.E.2d 124,
133 (Ind. Ct. App. 2012), trans. denied.
[19] As to the nature of the offense, Lockhart repeatedly molested the eleven-year-
old son of his friend, who had allowed him to stay with her. The victim did not
have a father figure in his life, and Lockhart developed a close father-son
relationship with the boy. Over the span of a few months, Lockhart progressed
from fondling J.R. to performing oral sex on the boy and having J.R. perform
6
On July 19, 2002, our Supreme Court amended Indiana Appellate Rule 7(B) effective January 1, 2003. The
rule is directed to the reviewing court and sets forth the standard for that review. Because that review is made
as of the date the decision or opinion is handed down, even when a sentence was imposed prior to January 1,
2003, we will review the sentence using the “inappropriate” test that is currently in effect. Kien v. State, 782
N.E.2d 398, 416 n.12 (Ind. Ct. App. 2003), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015 Page 12 of 13
oral sex on him. Lockhart also told J.R. that he was teaching him “how to
make love to a guy.” Lockhart, 671 N.E.2d at 897. As a result of Lockhart’s
acts, J.R. suffered significant behavioral and emotional issues. Lockhart’s
offenses consisted of multiple molestations of the victim that occurred over a
period of several months, he abused a position of trust, and he caused
significant emotional harm to the victim. Lockhart’s sentence is not
inappropriate in light of the nature of the offense.
[20] As to Lockhart’s character, he has a significant criminal history that consists of
at least four felony convictions, including arson, theft, and forgery. Lockhart
was also on probation at the time he committed the offenses for which he was
re-sentenced. Additionally, there was evidence that Lockhart had forged
documents involved in this case. Further, Lockhart’s abuse of his position of
trust with the victim in this case, with whom he had a father-son relationship,
speaks to his poor character. We conclude that Lockhart’s sentence is not
inappropriate in light of his character. The trial court did not err in imposing a
fifty-three-year sentence at Lockhart’s re-sentencing hearing.
[21] Affirmed.
Vaidik, C.J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-351 |May 20, 2015 Page 13 of 13
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
INTERNATIONAL PAINTERS AND :
ALLIED TRADES INDUSTRY PENSION :
FUND et al., :
:
Plaintiffs, : Civil Action No.: 10-0493 (RMU)
:
v. : Re Document No.: 11
:
MIKE NELSON COMPANY, INC., :
:
Defendant. 1 :
MEMORANDUM OPINION
DENYING WITHOUT PREJUDICE THE PLAINTIFFS’ MOTION FOR DEFAULT JUDGMENT
I. INTRODUCTION
This matter comes before the court on the plaintiffs’ motion for default judgment
pursuant to Federal Rule of Civil Procedure 55(b)(2). The plaintiffs, the International Painters
and Allied Trades Industry Pension Fund (“the Pension Fund”) and Gary J. Meyers, a fiduciary of
the Pension Fund, allege that the defendant failed to make contributions to employee benefit
funds in violation of a collective bargaining agreement (“CBA”) and the Employee Retirement
Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1145. The defendant, though properly
served, has not responded to the complaint. Accordingly, the plaintiffs now seek entry of default
judgment and request monetary damages. Because the plaintiffs’ have not established the
1
The plaintiffs originally also brought suit against Floyd Michael Nelson, the owner of Mike
Nelson Company, Inc., but have since voluntarily dismissed the claims against him. See Notice of
Voluntary Dismissal (Aug. 19, 2010).
1
defendant’s liability for the entire time period at issue, the court denies without prejudice the
plaintiffs’ motion for default judgment.
II. FACTUAL & PROCEDURAL BACKGROUND
On August 20, 2008, the defendant entered into a CBA with the International Union of
Painters and Allied Trades, AFL-CIO (“the Union”), effective until June 30, 2011. Compl., Ex.
1. Pursuant to the CBA, the defendant is required to submit timely reports and contribution
payments to the Pension Fund on behalf of the employees covered by the agreement. Pl.’s Mot.,
Ex. 1, Montemore Decl. ¶ 6.
In March 2010, the plaintiffs commenced this action to recover delinquent contribution
payments and other additional relief available under the ERISA. Compl. at 5. The plaintiffs
served the defendant with the summons and complaint on April 14, 2010. See generally Return
of Service (May 18, 2010).
At some point after filing their complaint, the plaintiffs conducted an audit of the
defendant for the time period of January 2007 through June 2010. Pls.’ Mot., Montemore Decl. ¶
7. According to the plaintiffs, this audit and the available reports submitted by the defendant
show that the defendant failed to make the required contributions to the Pension Fund during the
January 2007 through June 2010 time period and owes $4,640.31 in contribution payments. Id.
¶¶ 7-8.
After the defendant failed to respond to the complaint, the plaintiffs requested an entry of
default on May 20, 2010, serving the defendant with a copy of their declaration in support of
default. See Decl. in Supp. for Default at 3. On May 21, 2010, the Clerk of the Court entered the
2
default, see generally Entry of Default, and shortly thereafter, the plaintiffs filed this motion
pursuant to Federal Rule of Civil Procedure 55(b)(2), 2 which they also served on the defendant,
see Pl.’s Mot. at 7. Through the motion, the plaintiffs seek an order awarding them a total of
$12,361.81 for delinquent contribution payments, interest, liquidated damages and legal fees and
costs. Id. at 21. The court turns now to the applicable legal standard and the plaintiffs’ requests
for relief.
III. ANALYSIS
A. Legal Standard for Entry of Default Judgment Under Rule 55(b)(2)
A court has the power to enter default judgment when a defendant fails to defend its case
appropriately or otherwise engages in dilatory tactics. Keegel v. Key W. & Caribbean Trading
Co., 627 F.2d 372, 375 n.5 (D.C. Cir. 1980). Rule 55(a) of the Federal Rules of Civil Procedure
provides for entry of default “[w]hen a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend as provided by these rules.” FED. R. CIV. P. 55(a).
Upon request of the party entitled to default, Rule 55(b)(2) authorizes the court to enter against
the defendant a default judgment for the amount claimed and costs. Id. 55(b)(2). Because courts
2
Rule 55 specifies a two-step process for a party seeking to obtain a default judgment. First, the
plaintiff must request that the Clerk of the Court enter a default against the party who has “failed
to plead or otherwise defend” against an action. FED. R. CIV. P. 55(a). Second, if the plaintiff’s
claim is not for a “sum certain,” the party must apply to the court for an entry of default judgment.
Id. 55(b)(2). This two-step process gives a defendant an opportunity to move to set aside a default
before the court enters judgment. Id. 55(c); see also H. F. Livermore Corp. v. Aktiengesellschaft
Gebruder Loepfe, 432 F.2d 689, 691 (D.D.C. 1970) (stating that “[t]he notice requirement
contained in Rule 55(b)(2) is . . . a device intended to protect those parties who, although delaying
in a formal sense by failing to file pleadings . . . have otherwise indicated to the moving party a
clear purpose to defend the suit”).
3
strongly favor resolution of disputes on their merits, and because Ait seems inherently unfair@ to
use the court’s power to enter judgment as a penalty for filing delays, modern courts do not favor
default judgments. Jackson v. Beech, 636 F.2d 831, 835 (D.C. Cir. 1980). Accordingly, default
judgment usually is available “only when the adversary process has been halted because of an
essentially unresponsive party . . . [as] the diligent party must be protected lest he be faced with
interminable delay and continued uncertainty as to his rights.” Id. at 836 (quoting H. F.
Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691 (D.C. Cir. 1970)).
Default establishes the defaulting party’s liability for the well-pleaded allegations of the
complaint. Adkins v. Teseo, 180 F. Supp. 2d 15, 17 (D.D.C. 2001); Avianca, Inc. v. Corriea,
1992 WL 102999, at *1 (D.D.C. Apr. 13, 1992); see also Brock v. Unique Racquetball & Health
Clubs, Inc., 786 F.2d 61, 65 (2d Cir. 1986) (noting that “default concludes the liability phase of
the trial”). Default does not, however, establish liability for the amount of damage that the
plaintiff claims. Shepherd v. Am. Broad. Cos., Inc., 862 F. Supp. 486, 491 (D.D.C. 1994),
vacated on other grounds, 62 F.3d 1469 (D.C. Cir. 1995). Instead, “unless the amount of
damages is certain, the court is required to make an independent determination of the sum to be
awarded.” Adkins, 180 F. Supp. 2d at 17; see also Credit Lyonnais Secs. (USA), Inc. v.
Alcantara, 183 F.3d 151, 155 (2d Cir. 1999) (stating that the court must conduct an inquiry to
ascertain the amount of damages with reasonable certainty). The court has considerable latitude
in determining the amount of damages. Jones v. Winnepesaukee Realty, 990 F.2d 1, 4 (1st Cir.
1993). To fix the amount, the court may conduct a hearing. FED. R. CIV. P. 55(b)(2). The court
is not required to do so, however, “as long as it ensure[s] that there [is] a basis for the damages
4
specified in the default judgment.” Transatlantic Marine Claims Agency, Inc. v. Ace Shipping
Corp., Div. of Ace Young Inc., 109 F.3d 105, 111 (2d Cir. 1997).
B. The Court Denies Without Prejudice the Plaintiffs’ Motion for Default Judgment
As noted, default judgment is appropriate when an unresponsive party has halted the
adversary process. H. F. Livermore Corp., 432 F.2d at 691. The plaintiffs served the defendant
with the complaint on April 14, 2010. See generally Return of Service (May 18, 2010). Since
that date, the defendant has failed to plead or otherwise defend itself in this action. Moreover,
the defendant has not responded to the plaintiffs’ request for default or to their motion for default
judgment. Given the defendant’s unresponsiveness, the entry of default is appropriate. See
Fanning v. Permanent Solution Indus., Inc., 257 F.R.D. 4, 7 (D.D.C. 2009) (concluding that the
defendant was liable to the plaintiff because the defendant had failed to respond to the complaint
or otherwise defend itself); Int’l Painters & Allied Trades Indus. Pension Fund v. Auxier
Drywall, LLC, 531 F. Supp. 2d 56, 57 (D.D.C. 2008) (entering a default judgment because of the
defendant’s failure to request that the court set aside the default or suggest that it had a
meritorious defense).
As a result of the entry of default, the court construes all well-pleaded allegations as
admitted. Int’l Painters & Allied Trades Indus. Pension Fund v. R.W. Amrine Drywall Co., 239
F. Supp. 2d 26, 30 (D.D.C. 2002) (emphasis added) (citing Trans World Airlines, Inc. v. Hughes,
449 F.2d 51, 63 (2d Cir. 1971), rev’d on other grounds, 409 U.S. 363 (1973)); accord Black v.
Lane, 22 F.3d 1395, 1399 (7th Cir. 1994). In their complaint, the plaintiffs allege that the
defendant violated the CBA and ERISA by failing to make monthly contributions to the Pension
Fund and indicate that an audit is required to determine “the precise nature, extent and amount of
5
the [defendant’s] delinquency.” See Compl. ¶ 21. The plaintiffs conducted such an audit
following the filing of their complaint, ultimately concluding that the defendant should be held
liable for $4,640.31, the amount of unpaid contributions for the time period of January 2007
through June 2010. See id. ¶ 28; Pls.’ Mot at 21 . Thus, the plaintiffs ask that the court enter
default judgment holding the defendant liable for this amount as well as for any corresponding
interest, liquidated damages, legal fees and costs. Pls.’ Mot. at 2.
Although the plaintiffs’ motion for default judgment requests an award for contribution
payments due during the period from January 2007 through June 2010, the plaintiffs’ complaint
alleges only that the defendant was bound under the CBA beginning in August 2008. See Pls.’
Mot., Ex. 1; Compl. ¶ 11. Indeed, the plaintiffs offer no evidence demonstrating that the
defendant was required to make contributions to the Pension Fund on the plaintiffs’ behalf from
January 2007 through July 2008. Because the plaintiffs have not sufficiently alleged in their
pleadings that the defendant was required to provide contribution payments for the period from
January 2007 through July 2008, the court declines at this juncture to hold the defendant liable
for delinquent payments for that period. See Finkel v. Romanowicz, 577 F.3d 79, 87 (2d Cir.
2009) (affirming the district court’s denial of the plaintiffs’ motion for default judgment in an
ERISA case because the plaintiffs had not sufficiently alleged that the defendant owed the
plaintiffs a fiduciary duty).
While the plaintiffs’ well-pleaded assertions are sufficient to hold the defendant liable for
the August 2008 through June 2010 time period, the award calculations provided by the plaintiffs
do not allow the court to determine what proportion of the requested delinquent contribution
amount derives from the January 2007 - July 2008 period, for which the defendant has not been
6
held liable. Accordingly, the court is unable to rule on the plaintiffs’ motion at this time and
denies without prejudice the plaintiff’s motion for default judgment.
IV. CONCLUSION
For the foregoing reasons, the court denies without prejudice the plaintiffs’ motion for
default judgment. An Order consistent with this Memorandum Opinion is separately and
contemporaneously issued this 22nd day of February, 2011.
RICARDO M. URBINA
United States District Judge
7
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Filed 7/12/16 P. v. Spragans CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A142695
v.
DAMEON SPRAGANS, (Contra Costa County
Super. Ct. No. 05-110797-8)
Defendant and Appellant.
By plea agreement, Dameon Spragans entered a plea of guilty to charges of
forcible rape while acting in concert with another person, forcible oral copulation while
acting in concert with another person, and forcible sodomy while acting in concert with
another person. As part of this negotiated disposition, appellant agreed to testify
truthfully for the prosecution in the trial of two co-defendants. For its part, the
prosecution dismissed all other charges and recommended that Spragans receive a
sentence totaling 31 years in prison.
Spragans later reneged on his agreement to testify and moved to withdraw his
plea. That motion was denied, and he was sentenced to a total of 42 years in prison, the
maximum prison time for the crimes he had admitted. On appeal, appellant’s appointed
appellate counsel filed a brief asking this court to conduct an independent review of the
record under People v. Wende (1979) 25 Cal.3d 436. Counsel also informed appellant of
his right to file a supplemental brief. No such supplemental submission has been
received.
1
Having reviewed the record independently, we find no issues that require briefing.
We therefore affirm.
I. BACKGROUND
A. The Kidnapping and Sexual Assault of Doe1
Appellant and his cousins, Derrick Ware and Robert McNeally, spent the evening
of February 13, 2010 at the Blue Macaw nightclub in the Mission District in San
Francisco. Across the street from the Blue Macaw, at the Medjool nightclub, Jane Doe
and a male friend, S. Mungia, were spending the evening with some friends of theirs.
Appellant, Ware, and McNeally left the Blue Macaw at around 1:00 a.m., just as Doe and
Mungia were leaving the Medjool.
Doe and Mungia, who were very drunk, tried to hail a cab to take them to a
friend’s house in San Francisco. Appellant, Ware and McNeally offered them a ride,
which they accepted. All five then got into McNeally’s black Ford Silverado truck, with
McNeally driving, appellant in the front passenger’s seat, and Ware in the backseat with
Doe and Mungia. Doe and Mungia immediately passed out. Mungia awoke a short time
later while the truck was crossing the Bay Bridge, headed east, and realized that
appellant, Ware and McNeally were not dropping them off in San Francisco as promised.
While the truck continued to head east, appellant was making derogatory remarks
to Mungia and Ware was fondling Doe in the backseat. At approximately 1:30 a.m., the
group reached Richmond and McNeally pulled off the freeway so that appellant and
Mungia could urinate by the side of the road. While Mungia and appellant were outside
the truck, appellant punched Mungia in the face. Mungia fell to the ground, and
appellant climbed back into the truck, which then sped off, leaving Doe alone in the
company of appellant, Ware and McNeally. Mungia immediately called police to report
the kidnapping of Doe.
Appellant, McNeally and Ware proceeded another four miles, and stopped along a
road in San Pablo. By that point, Doe had awoken, and pleaded to be taken home, but
1
The statement of facts is based in large part on the facts set forth in the probation
report.
2
appellant told her she would “have to do something if we’re going to take you home” and
“we’re going to put it in you.” He told her she was gong to have to “suck [his] dick.”
Doe attempted to fight her way out of the vehicle, but stopped when McNeally
brandished a gun and threatened to kill her if she did not do as she was told. In the
backseat, Ware raped and sodomized Doe and then forced her to orally copulate him.
Ware pulled Doe out of the truck, where the sexual assault continued. At one
point, he grabbed Doe by the head and threw her to the ground, breaking her nose. Doe
was then pulled back into the vehicle, where she was force to orally copulate appellant,
while McNeally placed his hand in her vagina. After that, she was again forced out of
the truck. This time, the men took all of her belongings, including her clothes.
Appellant, Ware and McNeally finally drove off, leaving Doe naked by the side of the
road.
Doe ran to various nearby residences and found someone who gave her a blanket
and called the police. Appellant, Ware and McNeally were arrested a few weeks later,
after Mungia and Doe identified them on video images from the Blue Macaw, and police
traced McNeally’s truck to him based on descriptions of its make and model. Doe’s
blood was found in the truck. DNA evidence from vulva swabs confirmed the presence
of Ware’s semen and the presence of non-semen traces from McNeally in Doe’s vagina.
By the time police found McNeally’s truck, weeks after the attack, he had ordered new
license plates and decals and painted the truck silver.
B. The Charges Against Appellant and His Co-Defendants, Appellant’s
Guilty Plea, and His Motion to Withdraw His Plea
Appellant, Ware and McNeally were charged by information, as amended on June
1, 2011, with the following offenses: one count of kidnapping for sexual purposes in
violation of Penal Code section 209, subdivision (b)(1)2 (Count 1); one count of forcible
rape while acting in concert in violation of section 264.1 (Count 2); one count of oral
copulation in concert in violation of section 288a, subdivision (d) (Count 3); one count of
2
All subsequent statutory citations are to the Penal Code.
3
rape by a foreign object while acting in concert in violation of sections 264.1 and 289
(Count 4)3; one count of forcible sodomy in concert in violation of section 286,
subdivision (d) (Count 5); and one count of assault with a semiautomatic firearm in
violation of section 245, subdivision (b) (Count 6).4
After lengthy pre-trial proceedings, a joint trial was eventually set for all
defendants for January 28, 2014. Appellant unsuccessfully moved for a continuance of
the trial date, and this court denied a writ petition and a request for a stay of the trial on
January 27, 2014. Appellant then agreed to plead guilty to Counts 2, 3 and 5 and to
admit the charged sentencing enhancements under former section 12022.3, subdivision
(b) (on Count 2), former section 12022.8 (on Count 3), and former section 12022.3,
subdivision (b) (on Count 5). In exchange for this plea, the prosecution agreed to dismiss
all remaining charges and recommend a sentence of 31 years in prison if appellant
3
On December 14, 2011, the court granted appellant’s section 995 motion to
dismiss Count 4.
4
As to appellant, these charges were accompanied by the following sentencing
enhancement allegations: Count 1 (kidnapping for sexual purposes) alleged that
appellant was armed with a firearm, in violation of former section 12022, subdivision
(a)(1), and inflicted great bodily injury, in violation of former section 12022.7,
subdivision (a); Count 2 (forcible rape in concert) alleged that appellant was armed with a
firearm, in violation of former section 12022.3, subdivision (b), inflicted great bodily
injury, in violation of former section 12022.8, and that the circumstances specified in
section 667.61, subdivisions (a) through (e) (designating “one-strike” sex offenses
punishable by life in prison), rape and forcible oral copulation in concert with others, in
the course of a kidnapping, while armed, and having inflicted great bodily injury, were
true; Count 3 (forcible oral copulation in concert) alleged that appellant was armed with a
firearm, in violation of former 12022.3, subdivision (b), and inflicted great bodily injury,
in violation of former section 12022.8, and also alleged several one-strike sentencing
allegations under section 667.61; Count 4 (rape by a foreign object) carried enhancement
allegations identical to those charged with Count 3; Count 5 (forcible sodomy in concert)
carried enhancement allegations identical to those charged with Count 4; and Count 6
(assault with a semiautomatic firearm) carried sentencing enhancements allegations
identical to those charged with Count 5.
4
provided truthful testimony on behalf of the prosecution in his co-defendants’ joint trial.
Absent the plea agreement, appellant would have been exposed to a total of 42 years in
prison on the charges to which he pled and a life sentence for conviction on all charges.
On January 30, 2014, the court accepted appellant’s plea after advising him of the
constitutional rights he was relinquishing and after confirming a voluntary and knowing
waiver of those rights, on the record. (See Boykin v. Alabama (1969) 395 U.S. 238; In re
Tahl (1969) 1 Cal. 3d 122, 132.) An “Agreement to Provide Truthful Testimony”
executed by appellant and his counsel on February 20, 2014, memorializing the terms of
his agreement to testify for the prosecution, expressly provided that the terms of
appellant’s plea bargain were conditioned on “waiver of appellate rights.”
Following his negotiated guilty plea, appellant moved three times to have his
appointed counsel replaced (see People v. Marsden (1970) 2 Cal.3d 118), reneged on his
agreement to testify for the prosecution, and filed a motion to withdraw his guilty plea
(see People v. Breslin (2012) 205 Cal.App.4th 1409). In support of his motion to
withdraw his plea, appellant argued that he had felt pressured by the prosecution when he
agreed to plead guilty, was not given adequate time to consider the prosecution’s
proposed terms, had come under familial pressure not to testify against his “blood
relatives,” and he did not realize he would be denied conjugal visits if he went to prison
for the crimes he admitted. The court denied each of appellant’s Marsden motions after
confidential in camera hearings.5 It also denied appellant’s motion to withdraw his guilty
plea, finding that he had not established cause for the withdrawal. On April 18, 2014, the
court sentenced appellant to a state prison term totaling 42 years. And on June 6, 2014,
the court denied a motion to reconsider the sentence pursuant to section 1170,
subdivision (d), entered judgment imposing the sentence, and dismissed the remaining
charges on motion by the prosecution.
5
We have reviewed the confidential transcripts of those proceedings.
5
Appellant, through counsel, timely filed a notice of appeal, accompanied by a
request for probable cause to appeal pursuant to section 1237.5. (See People v. Maultsby
(2012) 53 Cal.4th 296, 298.) On July 15, 2014, the court denied appellant’s request for a
section 1237.5 certificate of probable cause, indicating “Defendant waived his appellate
rights when he accepted PC 1192.5 disposition dismissing life-top counts.” Appellant’s
counsel filed an amended notice of appeal on July 29, 2014, attaching her declaration
stating: “Based on my personal recollection and the notes in my file, the defendant did
not waive his appellate rights,” and “The June 6, 2014 docket and minute order . . .
erroneously indicates that the defendant waived his appellate rights.”
Appellant, without assistance of his counsel, filed an additional notice of appeal on
July 23, 2014, which included a handwritten portion stating in part: “I raised issues on
ineffective counseling. after realizing I was in a potential conflict of interest on 2/6/14.
After co-counsels revealed conflicts issues towards my counsel. Counsel moved to same
office as my co-defendant prior counsel still in which is Alternate defender counsel was a
public defender before she came to Alternat defender office. Which was 12-15-13 Jan
29-14 counsel pressured me to give a statement telling me I would receive a lesser
sentence then the current 31 years which was part of a package plea bargain. I agree to
those terms. 1/30/14 I enter a plea base on that understanding. 2-6-14 . . . Counsel which
Betty Barker stated to me that I would not be receiving a lesser sentence then the 31 yr.
Base on the fact that co-counsel raise a conflict of interest . . . Her exact words was
“Because of politics”! After that I went through Several Marsden motion raising all the
error Betty Barker caused. Those dates are (12-10-14) (2-28-14) (3-21-14) and in
between those Dates I underwent Betty’s tactical persuasion that effected my Better
Judgment.” (Sic.) In addition, appellant claimed that he was “given permission” to
withdraw his pleas by the judge who heard one of his Marsden motions, but that a
different judge, the judge who heard his motion to withdraw his plea, denied the motion
nonetheless.
6
III. DISCUSSION AND DISPOSITION
Upon our independent review of the record, we find no issues that warrant further
briefing. We have specifically examined the record as it bears on appellant’s negotiated
plea, agreement to testify for the prosecution, change of mind about testifying, and the
motions he made after entering his guilty plea, including his Marsden motions. We find
no error in the trial court’s denial of appellant’s Marsden motions, his motion to
withdraw his guilty plea, his motion for reconsideration of his sentence, or his motion for
a certificate of probable cause. The judgment and the sentence are affirmed.
_________________________
Streeter, J.
We concur:
_________________________
Reardon, Acting P.J.
_________________________
Rivera, J.
7
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605 So.2d 758 (1992)
Bobby ALLRED
v.
STATE of Mississippi.
No. 89-KA-1106.
Supreme Court of Mississippi.
July 29, 1992.
*759 Thomas D. McDonough, New Albany, for appellant.
Michael C. Moore, Atty. Gen. and Patricia W. Sproat, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before HAWKINS, P.J., and PRATHER and McRAE, JJ.
McRAE Justice, for the Court:
Bobby Allred appeals his September 5, 1989, conviction by a jury of the Union County Circuit Court on charges of false pretenses pursuant to Miss. Code Ann. § 97-19-39 (1972) stemming from his failure to repair properly a leaking roof. Finding that Allred's conviction on criminal charges is contrary to the weight of the evidence, we reverse.
I.
In December, 1988, Mrs. Vance Scott, an eighty-five year old widow confined to a wheel chair, contacted Bobby Allred, a roofer with thirty years experience in the community, about her leaking roof. Allred investigated and determined that the roof was in very worn condition. He recommended to her that it should be replaced. After some discussion, he and Mrs. Scott agreed that the leaks could be repaired without replacing the entire roof.
Allred started work on the roof on or about December 18, 1988 and completed the job the next day. He testified that he and his crew patched parts of the roof, using about three bundles of shingles, and tore out and replaced two "valley" areas that were leaking. On the back part of the house, as well as on a flat area, he stated that they applied a silicone seal under the shingles. Allred estimated that approximately sixty percent of the roof area was so treated.
Allred indicated that he and his crew also took care of minor repairs on the house, including leveling the back of the house with a jack; resetting the blocks on a utility shed to level it; replacing a plank on the doorstep; and wrapping some exposed pipes under the house.
There is some disagreement as to how much time Allred spent on the job. Allred testified that he and his crew worked for about fourteen and one half to fifteen hours over a two day period. Mrs. Scott, however, stated that they were only there from 10:30 a.m. until 1 p.m. the first day, and from 11:30 a.m. until 4:00 p.m. the next day.
After he had finished, Mrs. Scott paid Allred $1,200.00, which she had taken out of her safe deposit box. She made out a receipt which indicated that she had paid him $1,200.00 to "Repair Roof." On the reverse side of the receipt, Allred wrote:
Repair all roof. One year warranty on all leaks.
Bobby Allred. 534-8471
Within a matter of days, it began to rain again and the roof still leaked. Allred went over to Mrs. Scott's house on several occasions to check for leaks and to repair those which remained. Nevertheless, the roof continued to leak.
Mrs. Scott's nephew, Floyd McKenzie, inspected Allred's work when he went to check on his aunt. McKenzie testified, however, that he did not lift up any of the shingles to check for application of the *760 silicone sealant. He further indicated that although he saw no evidence of the other work that Allred was supposed to have done, he observed that two pipes had been wrapped in newspaper.
McKenzie then contacted Carlton Hall, the City of New Albany zoning administrator/building inspector. Hall, in turn, called Chief of Police David Grisham to complain about the work done on Mrs. Scott's roof. Hall and Grisham subsequently went to Mrs. Scott's house, where they took pictures of portions of the roof. Hall testified that other than the replacement of some shingles, he saw no evidence that any other work had been done. He further stated that the silicone he did see was, in his opinion, older than a week or two. Grisham also testified that he observed that two small areas on the back of the roof had been re-shingled. He further stated that he did not lift up any shingles to check for silicone, nor did the others with him, Hall and McKenzie.
Some three months later, Mrs. Scott had new shingles put on the entire roof by another local roofer, Ronnie Jarvis, for $3,300.00.
Unbeknownst to Mrs. Scott, criminal proceedings were initiated against Allred. He was indicted on charges of false pretenses on February 16, 1989, and found guilty after a two-day jury trial. At a separate hearing held on September 5, 1989, the Circuit Judge sentenced Allred to serve three years in the custody of the Mississippi Board of Corrections; to pay a fine of $300.00 and restitution of $1,200.00; and to serve five years of supervised probation. He was further ordered to serve thirty days in the county jail on weekends from 5:00 p.m. Friday to 5:00 p.m. Sunday. However, apparently taking into consideration Allred's ability to work as well as his responsibility for caring for his disabled wife, the Circuit Court ruled that two years and eleven months of the sentence, as well as the probation period, would be suspended contingent upon the payment of restitution, the fine, and court costs and fees by March 5, 1990.
II.
Although other valid issues were raised on appeal, we focus directly on the pivotal question of whether Allred's conviction on charges of false pretenses was contrary to the weight of the evidence and whether the Circuit Court erred in overruling Allred's peremptory instruction and his motion for a directed verdict, which was properly renewed at the close of all evidence. Harris v. State, 413 So.2d 1016, 1018 (Miss. 1982); Ross v. State, 234 Miss. 309, 106 So.2d 56 (1958); Fields v. State, 293 So.2d 430 (Miss. 1974).
We have held, when considering a motion for a directed verdict, that we must consider all of the evidence in a light most favorable to the State, accepting all of the evidence as true, as well as all reasonable inferences that may be drawn therefrom. McGee v. State, 569 So.2d 1191, 1192 (Miss. 1990); Barnwell v. State, 567 So.2d 215, 217 (Miss. 1990).
Likewise, when considering a request for a peremptory instruction, we must accept all evidence presented by the State to be true, along with all reasonable inferences that can be drawn therefrom. Only when there is sufficient evidence to sustain a conviction, should a peremptory instruction be refused. Brown v. State, 556 So.2d 338, 340 (Miss. 1990); Benson v. State, 551 So.2d 188, 193-194 (Miss. 1989).
In considering whether a jury verdict is against the overwhelming weight of the evidence, we likewise have held that we must accept as true all of the evidence supporting the verdict, and will reverse only when the Circuit Court has abused its discretion in refusing to grant a new trial. Thornhill v. State, 561 So.2d 1025, 1030 (Miss. 1989).
Allred was indicted and convicted pursuant to Miss. Code Ann. § 97-19-39 (1972), which articulates the criminal charge of false pretenses as follows:
Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by another false pretense, obtain the signature of any person to any *761 written instrument, or obtain from any person any money, personal property, or valuable thing, upon conviction thereof, shall be punished by imprisonment in the penitentiary not exceeding three years, or in the county jail not exceeding one year, and by fine not exceeding three times the value of the money, property, or thing obtained.
Id. (Emphasis added)
In a false pretenses case, the burden of proof is on the State to show beyond a reasonable doubt that a false representation was made with regard to an existing fact. Lee v. State, 244 Miss. 813, 146 So.2d 736, 73 (1962); Button v. State, 207 Miss. 582, 42 So.2d 773 (1949). Accordingly, the State must prove that "the pretenses were false, that the appellant knew them to be false and that the pretenses were the moving cause by which the money was obtained." Gordon v. State, 458 So.2d 739, 740 (Miss. 1984), citing Neece v. State, 210 So.2d 657 (Miss. 1968); Hughes (and Travis) v. State, 326 So.2d 469 (Miss. 1976). Furthermore, the property or money obtained under false pretenses must have been "to the detriment or injury of the person from whom he obtains the same." Carter v. State, 386 So.2d 1102, 1105 (Miss. 1980), quoting Bruce v. State, 217 Miss. 368, 64 So.2d 332 (1953).
Looking at the record in a light most favorable to the State and accepting as true all of the evidence which supports the verdict, we find that Allred received $1,200.00 from Mrs. Scott in return for the repairs he made to her roof. There is evidence that he expended time and materials in doing so. Mrs. Scott prepared a receipt indicating that she had paid Allred to "repair roof." On the back of the receipt, Allred wrote "Repair all roof. One year warranty on all leaks." From testimony given by both Allred and Mrs. Scott, it is clear that the two agreed that Allred would repair all of the leaks in the roof, rather than repairing or replacing the entire roof.
The State, however, has failed to present any evidence whatsoever that Allred acted with an intent to defraud Mrs. Scott. Absent a showing of intent to defraud, the elements of the crime of false pretenses are not fully satisfied. The record reveals evidence only of shoddy workmanship. At best, the State has set out the basis for a civil suit based on breach of contract. We therefore find that the jury verdict was against the overwhelming weight of the evidence and that the Circuit Court erred in not granting Allred's motion for a directed verdict or his instruction for a peremptory instruction. Accordingly, we reverse.
REVERSED AND RENDERED.
ROY NOBLE LEE, C.J., HAWKINS, DAN M. LEE, P.JJ., and PRATHER, ROBERTSON, SULLIVAN, PITTMAN and BANKS, JJ., concur.
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Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
[email protected].
THE SUPREME COURT OF THE STATE OF ALASKA
J. JILL MAXWELL, )
) Supreme Court No. S-16502
Appellant, )
) Superior Court No. 3AN-13-07451 CI
v. )
) OPINION
WILLIAM J. SOSNOWSKI, )
) No. 7247 – May 18, 2018
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Andrew Guidi, Judge.
Appearances: Darryl L. Thompson, Law Office of Darryl L.
Thompson, P.C., Anchorage, for Appellant. Jody W.
Sutherland, Sutherland Law Offices, Anchorage, for
Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
BOLGER, Justice.
I. INTRODUCTION
The superior court divided the property of J. Jill Maxwell and William J.
Sosnowski during divorce proceedings. The superior court found that William was
entitled to credit for post-separation mortgage payments that he made on the marital
residence, but it did not determine the precise amount of those credits because the sale
of the residence was pending. After the residence ultimately sold nearly two years later,
the superior court issued a disbursement order that granted William credit for mortgage
payments dating back to October 2011, when he moved out of the marital residence,
rather than May 31, 2013, which the court had found to be the separation date. Jill
appeals the effective date of the credit for these post-separation payments in the
disbursement order. She also challenges consideration of the funds she provided to her
adult son during the marriage in the property division order. We vacate the disbursement
order because William is entitled to credit only for payments he made after the separation
date. But we conclude that Jill’s argument regarding the funds she gave her son is
untimely because the property division order became final in December 2014.
II. FACTS AND PROCEEDINGS
A. Facts
J. Jill Maxwell and William J. Sosnowski married in 1992. At the time of
the marriage, Jill was widowed and had one child, Anton, from her prior marriage;
William was divorced and had two children from his prior marriage. Jill and William
also had two children during their marriage. Since 2001, William has been employed by
the Municipality of Anchorage as an electronics foreman. Jill held a variety of jobs
during the marriage, among them managing the rental units owned by the couple.
During the marriage, Jill and William purchased a triplex (along with an
adjacent vacant lot) in Anchorage. They lived in one of the triplex units and rented the
other two units to tenants. In addition to this Anchorage property, Jill and William
owned a home in Oregon, in which Anton lived. The purchase of the Oregon home was
funded in part by $50,000 from Anton’s savings. Jill also paid for Anton’s living
expenses after he reached majority, which was apparently a point of contention during
the marriage. At the time of the divorce, Anton was 29 years old.
-2- 7247
B. Proceedings
1. Separation and divorce trial
Jill and William permanently separated on May 31, 2013, and Jill filed a
complaint for legal separation on June 4. On June 26 William counterclaimed for
divorce. Jill and William reached an agreement on child custody and child support and
filed a stipulation with the superior court, which it approved. They also agreed on the
division of their personal property, that the triplex and lot would be sold when the decree
of divorce issued, and that the triplex was valued at $950,000 and the lot at $180,000.
The remaining disputed issues proceeded to a one-day divorce trial before
the superior court on July 10, 2014. Those issues included whether William should
receive credit for post-separation mortgage payments made on the triplex, how Jill’s
financial support of Anton should affect the marital estate, and how the overall marital
estate would be divided. William requested an overall 55/45 division of the marital
estate (in Jill’s favor), while Jill advocated for a 70/30 division (also in her favor). Both
Jill and William testified at the trial.
On July 28, 2014, the superior court issued written findings of fact and
conclusions of law regarding the estate division. The superior court found that Jill and
William permanently separated on May 31, 2013. It determined that it was equitable to
divide the estate 55/45 in favor of Jill, after it considered the equitable division factors.1
In making this division, the superior court considered, among the other factors, the large
sum Jill had spent during the marriage on Anton’s living expenses, which it found to be
without William’s consent. The court found that Jill had spent $173,000 in total on
1
See AS 25.24.160(a)(4) (listing factors court must consider in equitably
dividing the marital estate, including the parties’ length of marriage, age and health,
earning capacity, financial condition, conduct, and circumstances and necessities).
-3- 7247
Anton,2 which it determined was an unreasonable depletion of marital assets and thus
factored into the share of the estate to which Jill was equitably entitled.
After making equitable division findings, the superior court turned to the
proceeds from the future sale of the triplex and lot. It found that Jill “had exclusive
possession of the [triplex] during the separation and has earned and retained a substantial
income from the rental income of this asset,” totaling over $45,000 annually. It also
found that William “has been required to make the entirety of the mortgage payments”
during this same time. Based on these findings, the superior court granted William “a
dollar for dollar credit [for] his post separation payments” on the triplex mortgage, which
would be applied to the proceeds after the triplex sold. In a handwritten notation, the
court explained that this credit was warranted because “the parties physically separated
(according to [Jill]) in Sept/Oct 2011 and [Jill] has lived in the . . . triplex and kept the
income from the rental units [since the] . . . fall of 2011 to the time of trial,” even though
“[William] has paid the mortgage and utilities, and . . . has supported [the couple’s
daughter], while living in a trailer park for $600/mo.” (Emphasis in original.) Because
the triplex had not yet sold, the superior court did not include the precise amount of
credit that William was due. The superior court issued a decree of divorce on
December 29, 2014, which incorporated the findings of fact and conclusions of law “as
the final order of the court.”
2. Disbursement of triplex sale proceeds
The triplex and adjoining lot ultimately sold in April 2016. The proceeds
from the sale totaled $442,260.74. However, Jill and William could not agree on how
the sale proceeds should be divided; a major sticking point was the amount of credit
2
The superior court acknowledged that “[p]art of the $173,000 transfer is
offset” by the parties’ use of Anton’s savings to fund the purchase of the Oregon home.
-4- 7247
William was due for the mortgage payments. William sought credit for $134,041.02 in
mortgage payments he made between October 2011 and April 2016. But Jill argued in
a pro se motion for final disbursement of the sale proceeds that William should be
granted credit only for mortgage payments made after 2013. In support of this argument,
Jill asserted that William had not made the 2011 and 2012 mortgage payments using his
own funds but had instead made the payments using rental income from the triplex. And
she further asserted that she had been responsible for paying utilities on the triplex from
2011 through 2013.
On August 8, 2016, without holding a hearing, the superior court issued an
order on the disbursement of the triplex sale proceeds. The superior court agreed with
William’s proposed disbursement figures and credited him $134,041.02 for mortgage
payments he made from October 2011 until the time of sale. After this credit was applied
and other adjustments were made, the superior court awarded Jill 55% of the remaining
proceeds ($180,321.84) and William 45% ($146,082.02).
In addition, in a handwritten notation, the superior court rejected Jill’s
argument regarding the rental income that William allegedly received in 2011 and 2012.
It deemed this argument “not material because the parties separated May 31, 2013 (as
stated in the court’s [property division order] and [Jill’s] own trial brief).” In addition,
the superior court noted that Jill’s “own trial testimony . . . establish[ed] that she kept all
the rental income generated by the triplex after the parties separated, while [William]
paid the mortgage.”
Jill moved for clarification of this order. She asked the court to clarify
whether “[t]he date to begin post-separation payments” was October 2011 or the date of
separation. The superior court declined to clarify its order, stating simply that the order
“is clear regarding what is required of the parties” and thus “[n]o further explanation is
needed.” Jill then moved for reconsideration of the disbursement order. The motion
-5- 7247
requested that the superior court hold an evidentiary hearing to “review information prior
to the date of sep[a]ration of May 31, 2013.” It asserted that evidence from this time
period “has not yet been entered into court” because the court had previously found that
May 31, 2013, was the date of separation. The superior court denied the motion for
reconsideration without explanation.
Jill appeals the superior court’s disbursement order. She also challenges
the superior court’s consideration of the funds she provided to Anton in the property
division order.
III. DISCUSSION
Jill challenges both the superior court’s disbursement order and its property
division order. First, she argues that the disbursement order conflicts with the superior
court’s finding that she and William separated on May 31, 2013. Second, she argues that
it was error for the superior court to consider the funds she spent on Anton during the
marriage in its property division order. We address each argument in turn.
A. It Was Error To Commence William’s Credit For Mortgage Payments
Before The Separation Date.
Jill’s first argument centers on the amount of credit owed to William for his
payments on the triplex mortgage. If a spouse makes payments during separation to
maintain marital property and uses post-separation income for these payments, the
superior court is required to consider the payments when dividing the marital estate and
to make factual findings regarding whether credit for these payments is equitable.3
However, the superior court is not required to grant credit for these payments.4
“Whether to award credit for post-separation mortgage payments is within the discretion
3
Berry v. Berry, 978 P.2d 93, 96 (Alaska 1999).
4
Id.
-6 7247
of the superior court in carrying out its task of creating an equitable distribution of
property.”5 We accordingly review the superior court’s decision to grant credit for post-
separation mortgage payments for abuse of discretion.6
The superior court’s disbursement order grants William a dollar-for-dollar
credit for all payments he made on the triplex mortgage from October 2011 to
April 2016, when the triplex sold, for a total of $134,041.02 in credit. But the superior
court’s choice of October 2011 as the date on which credit for mortgage payments should
commence conflicts with the superior court’s finding in the property division order that
Jill and William “permanently separated on May 31, 2013.” This separation date was
not contested at any point in the proceedings; both Jill and William agreed that May 31,
2013, was the separation date. Moreover, our case law permits credit for payments made
to maintain marital property to be granted only for payments made “from post-separation
income.”7 William does not cite any case in which we allowed credit for payments made
before the legal separation or used another date as the cutoff date for distinguishing
marital funds from non-marital funds.
Accordingly, any mortgage payments William made before May 31, 2013,
were paid from marital funds, and he is not entitled to credit for these payments. We
5
Beal v. Beal, 209 P.3d 1012, 1023 (Alaska 2009).
6
Id. at 1016.
7
Beals v. Beals, 303 P.3d 453, 464 (Alaska 2013) (emphasis added); see also
Berry, 978 P.2d at 96 (“Courts may give credit to one spouse for post-separation
payments made to preserve marital assets . . . .” (emphasis added)); Brotherton v.
Brotherton, 941 P.2d 1241, 1246 (Alaska 1997) (stating that superior court must
consider whether spouse is entitled to “credit for the contributions he made from
separate property in order to preserve marital property” (emphasis added)).
-7- 7247
therefore vacate the disbursement order. On remand, the superior court should limit
William’s credit to the payments he made after the separation date.
B. Jill’s Argument Regarding The Superior Court’s Consideration Of
The Funds She Expended On Her Son Is Untimely.
Jill also challenges the superior court’s consideration of the funds she
expended on her son, Anton, in its property division order. The order considered, among
other things, “the conduct of the parties, including whether there has been unreasonable
depletion of marital assets.”8 With regard to this factor, the superior court found that
“during the marriage” Jill “transferred and diverted over $173,000 in marital funds to
Anton for his basic living expenses.” It further noted that the testimony at the divorce
trial indicated that these expenditures on Anton were “an issue of contention between the
parties and that [William] did not consent to these payments.” Based on these findings,
the superior court concluded that Jill had “unreasonably depleted marital assets
throughout the marriage through these payments to her adult son.” Jill argues that
because her alleged economic misconduct took place during the marriage, not during the
pendency of the divorce, it should not have been considered in the marital estate division.
Jill’s challenge is untimely because it relates to the property division order,
which became final in 2014. The property division order was incorporated in the divorce
decree issued on December 30, 2014. “A property division incorporated within a divorce
decree is a final judgment,”9 and Jill failed to timely appeal it.10 Moreover, Jill did not
8
AS 25.24.160(a)(4)(E) (directing superior court to consider this factor in
dividing marital property).
9
O’Link v. O’Link, 632 P.2d 225, 228 (Alaska 1981).
10
See Alaska R. App. P. 204(a)(1) (requiring a notice of appeal from a
superior court judgment to be filed within 30 days with limited exceptions that are
(continued...)
-8- 7247
argue that the property division order should be set aside under Alaska Civil
Rule 60(b).11 Therefore her challenge to the superior court’s property division order is
untimely and we do not consider it.12
IV. CONCLUSION
We VACATE the disbursement order and REMAND so that the superior
court may conform the order to the date of separation. We otherwise AFFIRM the
superior court’s judgment.
10
(...continued)
inapplicable here).
11
See O’Link, 632 P.2d at 228 (stating that final property division order “is
modifiable to the same extent as any equitable decree of the court”); Juelfs v. Gough,
41 P.3d 593, 597 (Alaska 2002) (noting that in order to obtain Rule 60(b)(6) relief, “a
motion [must] be made by one of the parties”).
12
For this same reason, Jill’s argument that, on remand, she is entitled to an
evidentiary hearing on the date that William’s credits should commence also fails. The
superior court already conducted an evidentiary hearing (the divorce trial) and issued a
property division order finding the parties separated on May 31, 2013, and determining
that William was entitled to a dollar-for-dollar credit on his post-separation mortgage
payments. As just noted, Jill did not appeal this final judgment and she asserts no new
evidentiary basis for revisiting it. Therefore, on remand, the superior court must simply
conform its disbursement order with the property division order.
-9- 7247
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Fourth Court of Appeals
San Antonio, Texas
September 3, 2015
No. 04-15-00314-CV
IN THE INTEREST OF A.R.M., ET AL., CHILDREN,
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-PA-02201
Honorable Charles E. Montemayor, Judge Presiding
ORDER
Appellee's motion for extension of time to file brief is hereby GRANTED. Time is
extended to September 28, 2015.
_________________________________
Rebeca C. Martinez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 3rd day of September, 2015.
___________________________________
Keith E. Hottle
Clerk of Court
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Court of Appeals
of the State of Georgia
ATLANTA, November 19, 2019
The Court of Appeals hereby passes the following order
A20D0143. MR. PATRICK MCCABE et al. v. IV LAND & PROPERTIES, LLC.
Upon consideration of the Application for Discretionary Appeal, it is ordered that it be
hereby DENIED.
LC NUMBERS:
15A12190
Court of Appeals of the State of Georgia
Clerk's Office, Atlanta, November 19, 2019.
I certify that the above is a true extract from the minutes
of the Court of Appeals of Georgia.
Witness my signature and the seal of said court hereto
affixed the day and year last above written.
, Clerk.
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654 P.2d 562 (1982)
99 N.M. 109
STATE of New Mexico, Plaintiff-Appellee,
v.
Johnny VELASQUEZ, Defendant-Appellant.
No. 5506.
Court of Appeals of New Mexico.
October 12, 1982.
Certiorari Denied December 1, 1982.
*563 Ralph Montez, Santa Fe, for defendant-appellant.
Jeff Bingaman, Atty. Gen., Eddie Michael Gallegos, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.
OPINION
NEAL, Judge.
Defendant, convicted of voluntary manslaughter, raises four issues in this appeal.
1. Whether the trial court erred when it refused to dismiss the indictment based upon the ineligibility of a grand juror.
2. Whether the indictment should have been dismissed because of prosecutorial misconduct.
3. Whether the trial court erred in giving an unrequested self-defense instruction.
4. Whether the trial court erred in failing to direct a verdict of not guilty based upon insufficiency of the evidence.
We affirm.
Differing versions of the killing were presented at trial. The defendant testified that he had gone to a bar in Gallina, New Mexico, to play pool. When he arrived at the parking lot of the bar he got out of his pickup and started for the entrance to the bar. Before he reached the entrance someone called to him. He turned around and saw a bottle flying toward him and ducked. Defendant then saw Johnny Chacon, the victim, running toward him. The defendant thought he saw something metal, possibly a knife, in Chacon's hand. Afraid that he was about to be killed or badly injured, defendant reached in his pocket, opened a knife, and slashed at Chacon when Chacon was about two or three feet from him. The knife wound killed Chacon.
Defendant testified that he did not intend to kill Chacon and was acting in self-defense. Bad blood had existed between the victim and the defendant and their respective families for some time.
Theresa Chavez, the victim's "common-law" mother-in-law, and Joe Gallegos were eyewitnesses to the killing. Their version was that defendant, without provocation, stabbed the victim.
Defendant raised twelve issues in his docketing statement. The issues not briefed have been abandoned. State v. McGill, 89 N.M. 631, 556 P.2d 39 (Ct.App. 1976).
1. Ineligible grand juror.
The grand jury convened in Rio Arriba County. Defendant claims that a member of the grand jury was ineligible because the grand juror was not a resident of Rio Arriba County. N.M. Const., art. II, § 14.
Section 31-6-3, N.M.S.A. 1978, provides:
Any person held to answer for an offense by grand jury indictment, upon arraignment to the charge therein, by motion to quash the indictment stating with particularity the ground therefor, may challenge the validity of the grand jury. A failure to file such motion is a waiver of the challenge. Grounds that may be presented by such motion are limited to the following:
* * * *
B. a member of the grand jury returning the indictment was ineligible to serve as a juror * * *
The trial court properly denied defendant's motion to quash the indictment because the defendant did not comply with § 31-6-3, supra. Under this statute the defendant upon arraignment must file the *564 motion to quash the indictment. Defendant waited until after trial to file his motion and waived his right to challenge the validity of the grand jury based upon an ineligible grand juror. See Territory v. Romero, 2 N.M. (Gild.) 474 (1883). Defendant asserts his motion to dismiss was a challenge to the jurisdiction of the court; from the cases cited in support of this argument, defendant uses "jurisdiction" in the sense of a sufficient charge for there to be a pending cause. See State v. Mabrey, 88 N.M. 227, 539 P.2d 617 (Ct.App. 1975). The indictment charged an offense in accordance with R.Crim.Proc. 5. The charge was not deficient. The attack on the eligibility of one grand juror did not raise an issue as to the jurisdiction of the court, it went only to procedural requirements for returning an indictment. The asserted violation of the procedural requirement was not timely raised. Section 31-6-3, supra.
2. Prosecutorial misconduct and failure to record Spanish questions and answers.
This claim involves two parts: (A) failure of the prosecutor to provide Theresa Chavez with an interpreter and asking her leading questions and (B) failure of the court reporter to record Spanish questions and answers.
Defendant had been previously indicted. That indictment was dismissed because the District Attorney failed to present exculpatory evidence. Theresa Chavez had an interpreter before the first grand jury.
When she appeared before the second grand jury Chavez was not provided with an interpreter. The transcript of Chavez' grand jury testimony shows that her recorded responses consisted of "Yeah", "No", "Si", or answers which indicate that she may have had some difficulty understanding the questions propounded to her. Each question asked by the District Attorney was leading. Several responses were in Spanish. The grand jurors were allowed to ask questions in Spanish. None of the Spanish questions and answers were recorded by the court reporter.
A. Prosecutorial misconduct.
Based upon the failure of the prosecutor to provide Chavez with an interpreter and asking her leading questions defendant filed two motions to dismiss the indictment, alleging a violation of § 31-6-7, N.M.S.A. 1978 (1982 Cum.Supp.). Section 31-6-7 provides that the district attorney "shall conduct himself in a fair and impartial manner at all times when assisting the grand jury."
Defendant also moved to dismiss the indictment because the Spanish questions and answers were not transcribed.
After an evidentiary hearing the trial court denied all of the motions to dismiss the indictment. Defendant argues that the prosecutor's failure to procure an interpreter for Chavez was a deliberate attempt to shortcut the grand jury process, State v. Sanchez, 95 N.M. 27, 618 P.2d 371 (Ct.App. 1980). He also contends that the failure to record Chavez' testimony in its entirety deprived defendant of due process and of his right to confrontation since defendant was unable to use the transcript during cross-examination of Chavez at trial.
At the motion hearing the prosecutor stipulated to the fact that Chavez was not fluent in English. The court felt that her testimony per se did not indicate that Chavez did not understand the questions being asked of her. The court reporter testified that she was unable to take down the testimony in Spanish, and she thought that Chavez was having difficulty in answering the questions. She further said that she re-called the prosecutor leaving the grand jury room several times in an attempt to find an interpreter for Chavez. Defendant's counsel acknowledged that the prosecutor tried to provide an interpreter in the second presentment.
The trial court stated that it found no willful failure to find an interpreter for Chavez, and that even without her testimony there was enough evidence to support a finding of probable cause. The trial court also stated that there was substantial compliance *565 with the reporting requirement, § 31-6-8, N.M.S.A. 1978 (Cum.Supp. 1982). The trial court found that in view of all the other testimony before the grand jury, defendant was not prejudiced in any way.
How much prejudice is required before an indictment must be dismissed? Case law indicates that a prosecutor's conduct during presentment of the case has not yet been subjected to the same analysis as have violations of other grand jury statutes.
A defendant need not show prejudice where an unauthorized person is present during the proceedings, State v. Hill, 88 N.M. 216, 539 P.2d 236 (Ct.App. 1975), or where the district attorney is present during grand jury deliberations, Baird v. State, 90 N.M. 667, 568 P.2d 193 (1977).
When prosecutorial misconduct during presentment of the case is claimed, as in the present case, the defendant has a difficult burden to show prejudice. In Buzbee v. Donnelly, 96 N.M. 692, 634 P.2d 1244 (1981) our Supreme Court held that when prosecutorial misconduct in presenting the case to the grand jury is alleged, the indictment will not be dismissed absent a showing that the conduct complained of infringed upon the independent judgment of the grand jurors and changed the result. In short, demonstrable prejudice must be shown.
The Buzbee rule is consistent with the rule posited in many Federal cases. In general, only flagrant cases of deliberate prosecutorial misconduct resulting in demonstrable prejudice have resulted in dismissal of indictments. For the most part, the defendants have not been able to demonstrate such prejudice. See, e.g., United States v. Merlino, 595 F.2d 1016 (5th Cir.1979); In Re Perlin, 589 F.2d 260 (7th Cir.1978), United States v. Birdman, 602 F.2d 547 (3d Cir.1979); United States v. Trass, 644 F.2d 791 (9th Cir.1981); United States v. Polizzi, 500 F.2d 856 (9th Cir.1974).
In United States v. Cederquist, 641 F.2d 1347 (9th Cir.1981), the court held that dismissal is required only where the grand jury has been over-reached or deceived in some significant way the prosecutorial misconduct must significantly infringe on the ability of the grand jury to exercise its independent judgment. In that case there was no dismissal where the prosecutor conveyed his impression as to guilt or innocence, submitted the proposed indictment prior to the close of the testimony, and frequently used the expression "check-kiting".
United States v. Roberts, 481 F. Supp. 1385 (C.D.Cal. 1980) is an example of prosecutorial misconduct requiring dismissal of an indictment. In that case the court found that the cumulative effect of comments designed to discredit and slant certain testimony, an erroneous statement about polygraphs, and a failure to keep a promise made to the trial judge that all exculpatory evidence would be produced amounted to prejudice.
Under the circumstances of this case we cannot say that dismissal of the indictment is warranted. Defendant has not shown sufficient prejudice under Buzbee, supra.
There is no evidence that the prosecutor willfully failed to provide an interpreter. Leading questions were used but were not prejudicial. Defendant relies on Sanchez, supra, for the proposition that leading questions are improper. Sanchez does contain dicta which states that leading questions violate § 31-6-7, supra, but in that case the indictment was dismissed because of withheld exculpatory evidence. In the present case there is no claim that exculpatory evidence was withheld, and the leading questions here do not require dismissal of the indictment.
B. Failure to record Spanish questions and answers.
The grand jurors asked Chavez several questions in Spanish, and several of Chavez' answers were in Spanish. The court reporter did not transcribe the Spanish questions and answers because she did not speak Spanish. Defendant contends *566 that § 31-6-8, supra, was violated and the indictment should have been dismissed. We disagree.
Under § 31-6-8, supra, all proceedings in the grand jury room, with the exception of the deliberations of the grand jury, shall be recorded verbatim.
The recording requirement serves a number of purposes. The defendant has an opportunity to impeach the witness at trial if there is any inconsistency between grand jury testimony and trial testimony. Prosecutorial abuses of the grand jury system are restrained, and the prosecution can support its case at trial. See 8 Moore's Federal Practice, ¶ 6.01[7], ¶ 6.01[2] (2d ed. 1981).
State v. Pedroncelli, 97 N.M. 190, 637 P.2d 1245 (Ct.App. 1981) is very similar to the present case. In Pedroncelli a tape recorder malfunctioned and preliminary hearing testimony was lost. Defendant moved for dismissal of the information and was successful. This Court reversed holding that when testimony is unintentionally lost prior to trial and the defendant claims a deprivation of Sixth Amendment rights, the defendant must show prejudice. See also, State v. Chouinard, 96 N.M. 658, 634 P.2d 680 (1981).
The prejudice argued by defendant is his inability to impeach Chavez at trial, assuming that Chavez' statements to the grand jury differed from the testimony at trial. Valles v. State, 90 N.M. 347, 563 P.2d 610 (Ct.App. 1977).
Theresa Chavez, in the challenged grand jury transcript, testified, in English, that she saw Velasquez cut Chacon, that she was three or four feet away, that Chacon was alone and that she did not see a knife. She testified, in Spanish, that she did not see a weapon and that Velasquez and Chacon did not get into a fight before Velasquez went from one car to another.
At trial, with the use of an interpreter, Theresa had greater difficulty understanding the questions than she did before the grand jury. Still, she testified on direct examination consistently with her grand jury testimony and also elaborated on it. Theresa testified that she saw a stabbing, but never saw the weapon used in the stabbing. On cross-examination, she admitted that she had given a statement, approximately two weeks after the stabbing, to a state police officer, that Chacon ran over to defendant. The context was that this occurred prior to the stabbing.
Theresa's trial testimony was favorable to defendant's theory of self-defense. In light of the congruity between Theresa's grand jury testimony and her trial testimony on direct examination, and defendant's successful impeachment of Theresa on cross-examination, there is no indication that the small portion of the grand jury proceedings which occurred in Spanish in any way deprived defendant of the ability to cross-examine Theresa at trial. In this situation, the following from State v. Chouinard, supra, is applicable:
Determination of materiality and prejudice must be made on a case-by-case basis. The importance of the lost evidence may be affected by the weight of other evidence presented, by the opportunity to cross-examine, by the defendant's use of the loss in presenting the defense, and other considerations. The trial court is in the best position to evaluate these factors.
Defendant was not entitled to dismissal of the indictment on the basis of the grand jury proceedings.
3. Whether the court erred in giving an unrequested self-defense instruction.
Defendant requested and received two self-defense instructions, U.J.I. 41.41, (1982 Repl.Pamph.), N.M.S.A. 1978 (justifiable homicide) and U.J.I. 41.60, (1982 Repl. Pamph.) N.M.S.A. 1978 (assailed person need not retreat). The court added, on its own, U.J.I. 41.61, (1982 Repl.Pamph.) N.M.S.A. 1978 (limitations on self-defense when the defendant is the aggressor). Defendant objected on the ground that there was no testimony about an actual fight. The court defined "fight" as an altercation between two people and felt that there was evidence from which the jury could infer that defendant was the aggressor in the altercation. *567 Defendant contends on appeal that besides the absence of evidence of a fight, the instruction was prejudicial because it conflicted with the other instructions and would tend to confuse the jury.
Defendant argues that the limiting instruction (41.61) conflicts with the other self-defense instruction just as the court's limiting self-defense instruction in State v. Garcia, 83 N.M. 51, 487 P.2d 1356 (Ct.App. 1971) conflicted with the other instructions. In Garcia the trial court's instruction was that once the decedent no longer presented a danger, the defendant had no legal excuse to take further action. This Court found that the instruction confused and apparently contradicted the rule of "apparent necessity" that the reason for the killing was to be judged on the reasonableness of defendant's belief. In Garcia the trial court's instruction had the effect of eliminating defendant's objective state of mind as an element.
The present case differs from Garcia, supra. The instructions were not conflicting or confusing. U.J.I. 41.41 (1982 Repl.Pamph.), N.M.S.A. 1978 states the elements of self-defense; U.J.I. 41.60 (1982 Repl.Pamph.), N.M.S.A. 1978 states that a person threatened with an attack need not retreat. U.J.I. 41.61 (1982 Repl.Pamph.), N.M.S.A. 1978 deals with the situation where defendant has started the fight with a force not ordinarily creating a substantial risk of death or great bodily harm, and the other responds with a force creating that substantial risk. Once the other responds with the greater force, the jury may find that self-defense, as defined in U.J.I. 41.41, is available to the defendant.
Defendant also argues that U.J.I. 41.61 is inappropriate because no fight occurred. Defendant seems to argue that because he and the victim were not engaged in a drawn-out battle there was no fight. There was evidence that a bottle was thrown, and defendant responded. The evidence was sufficient to establish a fight.
4. Sufficiency of the evidence to support voluntary manslaughter.
Defendant claimed that the trial court should have directed a verdict for him because the evidence was insufficient to support voluntary manslaughter. He has overlooked his own testimony in making this contention.
We view the evidence in the light most favorable to support the conviction. State v. Lankford, 92 N.M. 1, 582 P.2d 378 (1978). According to defendant a bottle was thrown at him, and a man with whom he had had trouble rushed him with something that looked like a knife. Facts similar to these were found sufficient to support voluntary manslaughter in State v. Benavidez, 94 N.M. 706, 616 P.2d 419 (1980). Moreover, when facts are present which support a plea of self-defense, it is not unreasonable that if the plea fails, the accused should be found guilty of voluntary manslaughter. State v. Melendez, 97 N.M. 738, 643 P.2d 607 (1982); State v. Lopez, 79 N.M. 282, 442 P.2d 594 (1968).
Defendant's conviction is affirmed.
IT IS SO ORDERED.
WOOD, J., concurs.
WALTERS, C.J., concurs in part, dissents in part.
WALTERS, Chief Judge (concurring in part, dissenting in part.)
I concur in the discussion of Points 1, 3 and 4. I do not agree that defendant was not prejudiced as a result of the incompleteness of the record of testimony presented to the grand jury by an eye witness. No Spanish interpreter could be found, it is said, in Rio Arriba County. The transcript of the grand jury testimony shows four occasions when in answer to typical leading questions used throughout examination of this witness, the reporter recorded the witness's response as "(Speaking Spanish)." There is not the slightest clue how long the "Speaking Spanish" answers ran on, or what they contained. My disagreement with the majority on this issue is predicated on the following:
*568 1. One of the purposes of recording grand jury testimony is to "ensur[e] that the defendant may impeach a prosecution witness on the basis of his prior inconsistent statements before the grand jury." 8 Moore's Federal Practice 6-17, ¶ 6.01[7]. When failure to record testimony creates a vacuum, it is asking the defendant to perform an impossibility by requiring him to prove that trial testimony differed from grand jury testimony to demonstrate he was prejudiced. How can he compare one record with another that is incomplete? Impingement upon an accused's right to confront a witness against him is unconstitutional. Mascarenas v. State, 80 N.M. 537, 458 P.2d 789 (1969).
2. The requirement of recording testimony is mandatory. Section 31-6-8, N.M.S.A. 1978. N.M.R.Crim.P. 29.2, N.M.S.A. 1978 (1982 Cum.Supp.), presupposes the recording of grand jury testimony. Cases collected in the annotation of that rule bear out the presupposition.
3. Pedroncelli, upon which the majority relies, is distinguishable. That case was concerned with loss of testimony presented at a preliminary hearing. Counsel for defendant fully participates in preliminary hearing proceedings and is fully advised of the testimony adduced. He knows whether the evidence given then conflicts with testimony at trial; he is not defending (or attempting to impeach) in the dark.
4. The majority cites State v. Chouinard for the proposition that each case is to be decided on its own facts. Chouinard also declares that the good faith of the State is irrelevant if lost evidence is material and prejudicial to the defendant. If witness Chavez's grand jury testimony was different from what she gave at trial, it was material. N.M.R.Evid. 401, 607, 613, N.M.S.A. 1978. If it was material on that ground, its loss was prejudicial to defendant's constitutional right of confrontation. Valles v. State, 90 N.M. 347, 563 P.2d 610 (Ct.App. 1977).
5. The grand jury questions asked this witness were so consistently and blatantly leading as to amount to testimony by the prosecutor. We said in State v. Sanchez, 95 N.M. 27, 618 P.2d 371 (Ct.App. 1980), that this method of questioning violated § 31-6-7, N.M.S.A. 1978.
6. Defendant does not complain of invalidity of the indictment because of improper influence by the State on the grand jury which is the thrust of all of the federal cases cited by the majority. Defendant claims he was deprived of a "most useful tool" in "effective cross-examination" (State v. Romero, 87 N.M. 279, 532 P.2d 208 (Ct.App. 1975)), which amounts to denial of his Sixth Amendment privilege, and thus prejudiced conduct of the trial. Defendant asks that the indictment be dismissed as a penalty for prosecutorial misconduct in depriving him of a trial right, not because the indictment was invalid from the outset. Improper prosecutorial influence on the grand jury differs distinctly from the State's obligation to preserve grand jury evidence for use at trial. The federal cases cited, and the discussion of whether probable cause existed to indict, have no application to the issue presented here by defendant, nor do they answer the question raised.
For the foregoing reasons, I respectfully disagree with the majority's discussion of the issue raised in defendant's Point II.
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Case: 14-40962 Document: 00513041002 Page: 1 Date Filed: 05/13/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-40962
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
May 13, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
ALEJANDRO CABRERA,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:10-CR-140-11
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Alejandro Cabrera was convicted after a jury trial of one count of
conspiracy to possess with the intent to distribute cocaine and one count of
conspiracy to commit money laundering. On appeal, we affirmed the drug
conspiracy conviction, reversed the money laundering conspiracy conviction,
and remanded the case for resentencing. United States v. Ramirez, 555
F. App’x 315, 319-321 (5th Cir. 2014). On remand, Cabrera objected to the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-40962 Document: 00513041002 Page: 2 Date Filed: 05/13/2015
No. 14-40962
calculation of his base offense level based on the amount of cocaine attributed
to him in the presentence report (PSR). The district court concluded that this
objection was beyond the scope of our remand and overruled the objection.
Cabrera received a within-guidelines sentence of 294 months.
Cabrera first contends that the district court erred in determining his
offense level on remand. This court reviews “the district court’s interpretation
of a remand order, including whether the mandate rule forecloses any of the
district court’s action on remand, de novo.” United States v. Griffith, 522 F.3d
607, 610 (5th Cir. 2008). Despite raising the issue of the drug quantity
attributed to him in the PSR at his first sentencing, Cabrera argued in his first
appeal only that the evidence was insufficient to support his drug conviction
because the testimony of two of the Government’s witnesses differed. See
Ramirez, 555 F. App’x at 317-24. He did not argue in his first appeal, as he did
in the district court, that the testimony of these two witnesses was insufficient
to support the drug quantity attributed to him for purposes of relevant conduct.
Consequently, we did not consider the argument Cabrera now raises and did
not submit the issue to the district court on remand. Cabrera could have raised
the issue of the calculation of his base offense level based on the amount of
cocaine attributable to him during his first appeal but opted not to. The drug
quantity issue was therefore beyond the scope of this court’s remand order, and
the district court properly declined to address it. See Griffith, 522 F.3d at 610;
United States v. Haas, 199 F.3d 749, 751-53 (5th Cir. 1999).
Cabrera also contends that his within-guidelines sentence was
substantively unreasonable because several members of a different drug
conspiracy received significantly lower sentences than he did. As Cabrera did
not object below, our review is for plain error. United States v. Peltier, 505 F.3d
389, 392 (5th Cir. 2007). Cabrera has provided no evidence, such as nationwide
2
Case: 14-40962 Document: 00513041002 Page: 3 Date Filed: 05/13/2015
No. 14-40962
sentencing statistics, of an unwarranted disparity between his sentence and
the sentences of any similarly situated defendants nationwide. See United
States v. Smith, 440 F.3d 704, 709 (5th Cir. 2006). Any disparity between
Cabrera’s sentence and those of the three individuals he cites was not
unwarranted. See 18 U.S.C. § 3553(a)(6). The district court committed no
error, plain or otherwise, in sentencing Cabrera to 294 months. See Peltier,
505 F.3d at 392.
AFFIRMED.
3
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428 F.2d 226
Petition of ZEBROID TRAWLING CORPORATION For Limitation of Liability.
No. 7407.
United States Court of Appeals, First Circuit.
June 16, 1970.
Francis H. Fox, Boston, Mass., with whom Robert J. Hallisey and Bingham, Dana & Gould, Boston, Mass., were on brief, for appellant.
Morris D. Katz, Boston, Mass., with whom Katz & Kaplan, Boston, Mass., was on brief, for Martha J. Manchester, Administratrix, appellee.
Brian T. Callahan, Medford, Mass, with whom Richard Flood, Lowell, Mass., was on brief, for First Natiional Bank of Cape Cod, appellee.
Before ALDRICH, Chief Judge, WOODBURY,1 Senior Circuit Judge, and COFFIN, Circuit Judge.
ALDRICH, Chief Judge.
1
The fishing vessel ZEBROID, owned by Zebroid Trawling Corporation (Trawling), subject to a preferred ship mortgage held by the First National Bank of Cape Cod, sailed on a fishing trip from Newport, Rhode Island, on December 30, 1967. Five days later, when in international waters, her captain was washed overboard in a storm and lost. On April 10, 1968, the bank brought suit in the district court to foreclose its mortgage. A warrant for sale of the vessel issued and she was sold by the United States Marshall for $45,000. The sale was approved by the court on May 27, 1968, and the net proceeds have been paid into the registry of the court.
2
On May 22, 1968, the captain's widow, Martha F. Manchester, filed a petition for leave to intervene in the foreclosure proceeding, alleging that she was in the process of being appointed administratrix of her late husband's estate and that in that capacity she would be the proper person to bring suit for his death under the Jones Act, the general maritime law and the Death on the High Seas Act, which she said she intended to do and which she in fact did on November 12, 1968. She sought an order that her claim constituted a preferred maritime lien on the vessel and the proceeds of the sale. Her petition for leave to intervene was granted.
3
On July 3, 1968, Trawling filed the instant petition for limitation of liability under 46 U.S.C. 183-89, and with its petition a motion that the proceeds of the sale of the vessel in the registry of the court be held there and considered to be the security required by Supplemental Rule F(1), Fed.R.Civ.P. The court granted the motion ex parte and enjoined further prosecution of the widow's action. The bank then moved for leave to intervene in the limitation proceeding. Its motion was allowed, and after hearing the court revoked its previous allowance of Trawling's motion to apply the fund in the registry of the court as security. Trawling appeals.
4
The court rested its decision disallowing use of the proceeds of the sale of the vessel as security on two grounds. First, that the benefits of the Limitation of Liability Act are not available to a former owner, especially a bankrupt. In addition the court said, 'Even if the petitioner were still the owner and not bankrupt, its use for security purposes of funds belonging to the holder of a preferred ship mortgage would conflict with the well-settled rule that liens on the vessel must be independently paid or secured.' We affirm on a restatement of the second ground.
5
The basic limitation provision, 46 U.S.C. 183, is as follows.
6
'(a) The liability of the owner of any vessel, whether American or foreign, for any embezzlement, loss, or destruction by any person of any property, goods, or merchandise shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred without the privity or knowledge of such owner or owners, shall not * * * exceed the amount or value of the interest of such owner in such vessel, and her freight then pending.'
7
Viewed a priori, this language might admit of some ambiguity. One area was early clarified by judicial decision; 'value' is to be determined as of the end of the voyage on which the loss or damage occurs. The City of Norwich, 1886, 118 U.S. 468, 6 S.Ct. 1150, 30 L.Ed. 134. Secondly, the 'value of the owner's interest' refers to the ship in specie, or to the owner's proportionate share thereof, Flink v. Paladini, 1929, 279 U.S. 59, 49 S.Ct. 255, 73 L.Ed. 613; The Giles Loring, D.Me., 1890, 48 F. 463, 474-475, and not simply to his equitable interest, The Leonard Richards, D.N.J., 1890, 41 F. 818. This in itself suggests that since liability is not measured by the owner's actual interest, current absence of interest should not bar the limitation right. And, in fact, limitation has been held available to former owners even when the ship has been lost or abandoned, In re the Petition of Wood, S.D.N.Y., 1954, 124 F.Supp. 540, aff'd 2 Cir., 1956, 230 F.2d 197; The S.S. Hewitt, S.D.N.Y., 1922, 284 F. 911, or condemned and sold, The Giles Loring, ante, or taken over by the underwriters, The City of Norwich, ante. A previous owner was permitted to limit even when the cause of action did not arise until after it had parted with title, In re The Trojan, N.D.Cal., 1958, 167 F.Supp. 576.
8
The district court's conclusion that a former owner, who no longer has an interest, cannot limit was apparently based upon a statement by Gilmore & Black, The Law of Admiralty, 747-48 (1957), that 'unless, after a limitation decree, the owner is in a position to continue operating his ships there is no reason to grant limitation in the first place.' We do not accept that reasoning. The purpose of the Act is to encourage the investment in ships, not simply to provide for its continuance. We know of no case where limitation was refused on the ground that the owner had only the one vessel-- nor, which is more to the present point, because he had parted with title.
9
Trawling argues that since the widow's claim has priority over the bank and the other lienor, Trawling has a right to have the court assign the sale proceeds to the widow's account in the limitation proceeding. Trawling says that if her claim is valid these lienors, being inferior, will be wiped out, and if not, they will not be hurt. This may be so if one looks only to recovery against the vessel, but it is a misconception so far as limitation is concerned. The right to limit claims to the value of the vessel applies only to the claims arising during the one voyage. The City of Norwich, ante; The Alpena, N.D.Ill., 1881, 8 F. 280. This includes all liens attaching during the voyage, whether prior in time, In re Moore, E.D.Mich., 1968, 278 F.Supp. 260, 265, or in substance, The H.F. Dimock, S.D.N.Y., 1910, 186 F. 662. Hence, the 'well settled rule that liens on the vessel must be independently paid or secured,' which the court took from the hornbooks, 3 Benedict, Admiralty, 457-58 (6th ed. 1940); Robinson, Admiralty, 928 (1939); Hughes, Admiralty, 168 (2d ed. 1920), is over-general. Liens attaching during the voyage will be subject to limitation, but this is to be effected in the court proceedings. Such liens are not to be 'independently paid,' but, rather, the full value of the vessel must be tendered into court. The H.F. Dimock, ante; The Giles Loring, 482 F., at 473. However, obligations which accrued prior to the voyage, not being subject to limitation, remain unaffected by the proceeding. Since vis-a-vis the owner they do not stand to be reduced, it must follow that he cannot throw the security interests of those lienors into the pot.
10
Early examples of the basic principle are to be found in Gokey v. Fort, S.D.N.Y., 1890, 44 F. 364; The U.S. Grant, S.D.N.Y., 1891, 45 F. 642. The fact that there is little decisional authority suggests that it has been universally accepted. Applied to the case at bar this does not mean that petitioner, or its insurer, must pay off prior liens, but merely that a stipulation must be filed to protect the limitation claimant in the amount of the value of the vessel. To do any less would mean that petitioner is limiting claims beyond the authority of the statute.
11
Affirmed.
1
By Special Designation
| {
"pile_set_name": "FreeLaw"
} |
518 F.Supp. 47 (1981)
Joseph CAMPBELL, a minor by his parents and guardians as next friends, Plaintiff,
v.
TALLADEGA COUNTY BOARD OF EDUCATION and Board of Education of the State of Alabama, Defendants.
Civ. A. No. 79-M-277-E.
United States District Court, N. D. Alabama, E. D.
March 31, 1981.
Order On Motion June 19, 1981.
Robert J. Varley, Patricia E. Ivie, Legal Services Corp. of Alabama, Inc., Montgomery, Ala., for plaintiff.
Ralph D. Gaines, Jr., William W. Goodrich, Gaines, Cleckler, Robbins & Goodrich, Talladega, Ala., for defendant County Bd. of Ed.
*48 Charles S. Coody, Montgomery, Ala., for defendant State Bd. of Ed.
Order On Motion For Attorney's Fees June 19, 1981.
OPINION
VANCE, Circuit Judge, Sitting by Designation.
Plaintiff Joseph Campbell brings this suit under the Education for All Handicapped Children Act (EHA), 20 U.S.C. §§ 1401, et seq.; Section 504 of the Rehabilitation Amendments of 1973, 29 U.S.C. § 794; 42 U.S.C. § 1983; and the due process and equal protection clauses of the fourteenth amendment.[1] He charges that defendants have violated his right to a free appropriate education and seeks declaratory, injunctive and monetary relief. Defendants are the Talladega County Board of Education (the County Board) and the Alabama State Board of Education (the State Board).[2] The findings of fact and conclusions of law required under Fed.R.Civ.P. 52(a) are incorporated into the following opinion.
I.
Joseph Campbell is 18 years old and lives with his family in Talladega County, Alabama. Joseph is generally described as "severely retarded." At present he is enrolled in the Talladega County school system at the Munford Center, a facility on the campus of Munford High School attended exclusively by handicapped children.
Joseph's family moved to Talladega County in 1973. Although they had sought educational services for Joseph before that time, they had been unable to enroll him in school. In early 1974 they sought services for Joseph from the Talladega school system. The school made a limited attempt to test Joseph but was unable to obtain a measurable response from him. Subsequently, the school notified Joseph's family that custodial care was the only service available. In early 1976, Joseph was enrolled by his parents in the Clay County Learning Center. To enable Joseph to attend, his mother drove him 24 miles to the county line where a bus picked him up and took him to the learning center. In the afternoons, she repeated the trip to bring him home.
Joseph remained at the Clay County Center for nearly two years until the difficulties in transportation made further education there impractical. At that time the Campbells were told by representatives of the County Board that the only services which it could provide would be a homebound program consisting of about an hour of instruction daily. No testing preceded this offer. In January 1978 the Campbells rejected this program. Following this rejection, the County Board tried to evaluate Joseph. Its efforts consisted of an attempt to administer a Stanford Binet IQ test. The examiner received no measurable response on any of the test items. Following this, the County Board again offered a homebound placement, which was again rejected. The Campbells then sought a due process hearing under the provisions of the EHA.[3]
The decision of the hearing panel that was rendered in March, 1978 found the *49 homebound program to be inappropriate and ordered that Joseph be educated with other students. It also found that the County Board had committed various due process violations in dealing with the Campbells.
As a result of this hearing, Joseph was enrolled in the Talladega system at the Drew Middle School for the last two months of the 1977-78 school year. There, Joseph and two other students met with their teacher in the rear of a classroom used by a "trainable mental retardation" class in a section curtained off for their use.
In the summer of 1978, the County Board offered an Individualized Education Program (IEP) as required by the EHA outlining the services to be provided Joseph in the coming year.[4] The plan called for his placement at the Munford Center. Because Joseph's parents felt that the plan was inappropriate and provided for insufficient contact with nonhandicapped students, they rejected it and applied for a second due process hearing. In October 1978 the hearing panel announced its decision, concluding that Joseph's testing and program were appropriate, and that evidence did not substantiate the contention that Joseph's IEP failed to provide for interaction with nonhandicapped children during a significant portion of his school day.
On October 24, 1978, the Campbells requested an administrative review of the panel's decision. This hearing took place on January 10, 1979. Prior to this review, they had requested a transcript of the due process hearing but were provided only with largely unintelligible tapes. The administrative review affirmed the decision of the due process panel, finding that Joseph's IEP provided for sufficient contact with nonhandicapped children. This litigation followed, during which time Joseph has continued his program at the Munford Center.
Although he is 18, Joseph has a mental age of approximately two and a half. He is almost entirely nonverbal, though he engages in some receptive and expressive communication with others. He suffers from deficiencies in motor skills and has difficulty climbing stairs and in holding some objects. Nevertheless, Joseph has learned, for the most part from his parents, a variety of self-help skills. He has been trained to use the toilet, to eat with a fork and spoon, and to help in making beds. He enjoys the company of others and interacts well with his two nonhandicapped brothers. Joseph's communication skills are sharply limited, however, and he exhibits inappropriate behavior such as inappropriate touching, hair-pulling, and throwing food to the ground. Although there was some disagreement as to the precise degree of his handicap, the evidence established and the court finds that he is severely to moderately retarded and that his mental abilities place him in the lowest 1% of the population.
Despite the severity of Joseph's handicap, testimony clearly established that he is capable of learning. After spending between 10 and 15 hours with Joseph, a clinical psychologist concluded that he was capable of functioning at higher levels than at present. She noted that Joseph has the desire to communicate and all the prerequisites for symbolic communication. Demonstrated memory skills likewise indicate trainability. Evidence from experts in the *50 field of educating the handicapped who had observed Joseph established to the court's satisfaction that students far more severely retarded had been taught skills significantly above his present level.
Much of the testimony at trial concerned the appropriateness of Joseph's present placement at the Munford Center. The thrust of plaintiff's evidence was that in view of Joseph's capacity, an appropriate educational program would be one aimed at the goal of eventually integrating him into society to the greatest extent possible. Joseph's educational plan should therefore provide him with the functional and communication skills which would allow him to be employed in a sheltered environment and reside in a group home.
Plaintiff's experts testified that this goal was subverted by the failure to provide adequate interaction between Joseph and nonhandicapped students. The evidence established that the Center, a renovated wood-framed house, is set some distance from Munford High School and is separated from the high school by a fence. No nonhandicapped students are present at the center. Joseph rides to school on a specially equipped bus which is also used only by handicapped students. Joseph's contacts with nonhandicapped students are generally confined to lunchtimes, when he is taken to eat in the high school cafeteria. Even here, however, his contacts are minimal. He is generally seated with his teacher before the rest of the students enter and does not interact with the nonhandicapped population. Although students at the Munford Center theoretically participate in high school assembly programs, Joseph's teacher testified that he has attended only one assembly so far this year. Except for involvement in a special olympics for handicapped children, Joseph has experienced no other interaction with nonhandicapped students during school hours.
Plaintiff's expert witnesses testified that such separation deprived Joseph entirely of essential role models; in his present program Joseph can imitate the behavior only of other handicapped children. Moreover, because of his isolation Joseph receives no opportunity to learn how to interact with nonhandicapped students. The testimony of these witnesses established to the court's satisfaction that considerable interaction between nonhandicapped and mentally handicapped children may be achieved when they are educated under the same roof and that such integration has been attained successfully in school districts across the country.
Expert witnesses called upon to testify by defendants did not, for the most part, address the specific amount of interaction with nonhandicapped students appropriate for Joseph. They offered general testimony, however, that separate centers for handicapped students are not uncommon in this area of the country and that in interaction with nonhandicapped students handicapped students may be exposed to ridicule and encouraged to imitate undesirable behavior. The Superintendent of Talladega County Public Schools, while not claiming expertise in the education of the handicapped, testified that the Munford Center provided an appropriate education because it brought together teachers in a centralized locale.
The testimony of plaintiff's experts, which is credited by the court, demonstrated that the problems with Joseph's program are not confined to the restrictions on his contacts with nonhandicapped students. Joseph's program teaches him virtually no functional skills skills needed to perform useful acts that if not accomplished by Joseph would have to be accomplished by another person. Instead, the majority of his time is spent in activities such as bead-stringing, watching Sesame Street on television and listening to records.[5] Indeed, *51 one educator who observed a typical school day found that only half an hour of a four hour period offered any instruction at all related to Joseph's IEP. Joseph's program suffers from its lack of individualization. Created from commercially prepared program materials, the program has not been shaped to Joseph's specific needs. This problem is compounded by the lack of detailed evaluation and record keeping. Since it is very difficult for a student of Joseph's abilities to acquire a skill, it is vital that time be usefully spent, that approaches which persistently fail be dropped and that achievements be built upon. Records of progress in a skill must be kept in order to assess the steps already accomplished. Even Joseph's IEP itself, however, was practically unchanged from one year to the next.
Plaintiff's witnesses stressed the importance of excursions into the world beyond the classroom to accustom Joseph to assuming a minimally independent role in everyday activities. In addition to many other specific suggestions, they emphasized the value of a prevocational program to prepare Joseph to participate in a sheltered work environment. Such programs, they testified, had been employed successfully with severely handicapped students in many school districts around the country. In summing up, one of plaintiff's witnesses stated that Joseph's current program is not merely useless but is actively harmful.
Defendants presented little testimony regarding the appropriateness of the specific items on Joseph's IEP. One expert witness testified in general terms that Joseph was receiving an appropriate education. He noted, however, that Joseph's teacher was minimally trained and that acquiring and keeping qualified special education teachers is a significant problem in many parts of Alabama. Other witnesses testified similarly as to the shortage of competent personnel.
II.
Plaintiff has charged defendants with violation of the EHA, Section 504, Section 1983, and the due process and equal protection clauses of the fourteenth amendment. Although these form independent bases of jurisdiction, the discussion in this opinion will focus upon the provisions of the EHA. The EHA provides a far more detailed statutory framework in which to deal with the issues of this case than Section 504. As the regulations promulgated under Section 504 indicate, a school system will provide the free and appropriate education and procedural safeguards mandated by Section 504 by complying with the EHA. See 34 C.F.R. §§ 104.33(b)(2) and 104.36. Similarly, in view of the detailed procedures set forth in the EHA and Congress' clear intention to guarantee for handicapped students the equal protection of the laws,[6] adherence to the EHA will insure that constitutional requirements have been met.
In the EHA Congress established a program of financial assistance to the states to *52 enable them to meet their responsibilities in educating handicapped children. This assistance was conditioned upon the provision of "a free appropriate public education" to all handicapped children. Alabama and Talladega County have chosen to receive federal funds in financing the education of the handicapped. Defendants must thus adhere to the conditions accompanying the federal grant. Ultimate responsibility for compliance rests with the State Board. 20 U.S.C. § 1412(6).
Congress did not attempt to provide detailed substantive content to the concept of an "appropriate" education. Instead, emphasizing the uniqueness of each handicapped child's educational requirements, Congress defined appropriate education as "special education and related services which ... are provided in conformity with the individualized education program." 20 U.S.C. § 1401(18). The IEP is thus at the heart of the congressional scheme. It is a document to be developed by parents and educators working together that states the child's present level of performance, the objectives of his program and the services that will achieve them, and "appropriate objective criteria" for determining success. Id. § 1401(19). To insure that the IEP accurately reflects the needs of the child, the Act requires that no single procedure such as an IQ test be relied on exclusively in evaluating his strengths and weaknesses.[7]
In order to meet the needs of handicapped children for special education and related services, the EHA requires that a continuum of alternative placements be available. See 45 C.F.R. § 121a.155. For the purposes of determining placement, the Act sets forth a second criterion in addition to the general requirement of appropriateness: "[T]o the maximum extent appropriate, handicapped children, including children in public or private institutions or other care facilities, are [to be] educated with children who are not handicapped ...." 20 U.S.C. § 1412(5)(B). The Act thus specifically applies the maximum integration requirement even to institutionalized children. In addition, regulations promulgated under the EHA and Section 504 make clear that this requirement of maximum integration extends to nonacademic settings and extracurricular services and activities including meals and recess periods. See 45 C.F.R. 121a.553; 34 C.F.R. § 104.34(b). The *53 analysis of the Section 504 Regulations notes that "[t]his requirement is especially important for children whose educational needs necessitate their being solely with other handicapped children during most of each day." 34 C.F.R. § 104 Appendix A, Subpart D, Paragraph 24.
In applying the law to the facts of this case, we must thus decide whether the education that Joseph is receiving at the Munford Center is appropriate and whether he is being placed in contact with nonhandicapped children to the maximum extent consistent with an appropriate program.
As noted, Congress did not attempt to create a detailed definition of an appropriate education for children operating under a vast range of handicaps. It chose instead to rely in the first instance on local educators acting in concert with the child's parents to develop an IEP under the guidelines of the Act. While primary responsibility is, in accordance with tradition, placed upon state and local educators, the Act does not command unlimited deference to their judgments as to the appropriateness of methods and goals. It was congressional dissatisfaction with inadequate educational opportunities for the handicapped provided by the states, whether due to inadequate funding or policy choices, that originally prompted federal action.[8] The limits of deference are further marked by the elaborate system of procedural safeguards and hearings, including review in federal court based on the preponderance of the evidence.[9] While this court is sharply aware of its lack of expertise in educational matters, the judicial function not infrequently involves the application of law to unfamiliar fields where reliance must be placed upon the testimony of experts.
While agreeing that the determination of "appropriateness" is a proper judicial function, other courts have experienced difficulty in settling upon a standard. In Rowley v. Board of Education, 483 F.Supp. 528, 534 (S.D.N.Y.), aff'd, 632 F.2d 945 (2d Cir. 1980), the court held that an "appropriate" education for an exceptionally intelligent deaf child encompassed more than merely *54 those services that would enable her to graduate from grade to grade. See also Age v. Bullit County Public Schools, 3 EHLR 551:505, 506 (W.D.Ky.1980) (stating that "the intent of the Act is to furnish the optimum in the way of education to those to whom nature has dealt less than a full hand"); Note, Enforcing the Right to an Appropriate Education: The Education for All Handicapped Children Act of 1975, 92 Harv.L.Rev. 1103, 1125-26 (1979). Dissenting on appeal from the standard set forth by the district court in Rowley, Judge Mansfield stated:
The language and legislative history of the Act demonstrate that Congress visualized a much more practical objective, i. e. an education for each handicapped child that would enable the child to be as free as reasonably possible from dependency on others, would enable the child to become a productive member of society, and would hopefully promote academic achievement by the child that would roughly approximate that of his or her nonhandicapped classmates. A child's unique needs are met whenever the child's IEP enables the child to meet those goals.
632 F.2d at 953. Joseph's case does not pose the particular difficulties presented in Rowley, and we need not attempt to resolve the conflict between its majority and dissenting opinions. What seems clear after consulting the legislative history is that an IEP must at least embody the objectives suggested by Judge Mansfield if it is to conform to the purposes of the EHA. As the Senate Report states in discussing the goals of the Act, "With proper education services, many [handicapped children] would be able to become productive citizens, contributing to society instead of being forced to remain burdens. Others, through such services, would increase their independence, thus reducing their dependence on society." S.Rep.No.94-168, 94th Cong., 1st Sess., reprinted in [1975] U.S.Code Cong. & Ad.News 1425, 1433.[10]
After carefully weighing the testimony, this court finds that Joseph's program fails in design and execution to further his progress in attaining such self-sufficiency as he may be capable of. As the program stands at present, it does little more than to occupy his time with activities devoid of educational justification. While the program may not be, as plaintiff's witness suggested, an actual impediment to progress, it is ill suited to impart to Joseph any functional or communicative skills which might, to whatever degree, increase his independence. The court finds that Joseph's program thus fails to meet even a minimally stringent standard of appropriateness.
We must next decide the related question of whether Joseph is being educated with nonhandicapped children to the maximum extent appropriate. Other courts in interpreting the EHA have recognized the central significance of the mainstreaming requirement in the structure of the Act. In Springdale School Dist. v. Grace, 494 F.Supp. 266 (W.D.Ark.1980), a school system argued that the best education for a profoundly deaf child could be obtained at a school for the deaf. While the court agreed that the best education was offered by the school for the deaf, it found that placement in a public school supplemented by auxiliary services would nevertheless provide an appropriate education. In view of the clear mandate of the Act to integrate handicapped children to the greatest extent possible, the court ordered the child to be educated *55 in a regular public school classroom. Other courts have similarly recognized the importance of the mainstreaming requirement. See, e. g., Tatro v. Texas, 625 F.2d 557, 561 (5th Cir. 1980); Kruelle v. Biggs, 489 F.Supp. 169, 174 (D.Del.1980); Hairston v. Drosick, 423 F.Supp. 180, 183-84 (S.D.W. Va.1976) (decided under Section 504).
At the present time Joseph has virtually no contact with nonhandicapped students outside of his lunch period and even then such contacts are few. From the testimony presented, this court finds that Joseph is not placed into contact with nonhandicapped students to the maximum extent consistent with an appropriate education program. Although defendants' experts dispute the soundness of the mainstreaming approach to the education of the handicapped, Congress has made a clear choice among competing educational philosophies.[11] In electing to receive federal funds, the State of Alabama has bound itself to act in accordance with that philosophy. No evidence suggested that Joseph would be unable to benefit from increased contacts with nonhandicapped students provided he receives proper supervision. On the contrary, considerable evidence established that such interaction is essential to provide him with role models and to increase his ability to act independently.
In summary, defendants have acted from the conviction that Joseph Campbell was capable of little progress toward self-sufficiency. This conviction may have resulted from the failure to offer Joseph a full range of appropriate tests or it may have stemmed in part from widely held social stereotypes concerning the abilities of retarded citizens. Consequently, a program was developed, the chief function of which was to occupy Joseph's time in as pleasant a manner as possible. Rather than deal with the difficulties that must necessarily accompany challenge, the school effectively isolated him from the nonhandicapped population. While we sympathize with the problems that the Talladega school system faces, its assumptions about Joseph's ability are inconsistent with the evidence presented at trial and its actions are in clear violation of the law.
III.
In view of defendants' failure to provide Joseph with an appropriate education and maximum association with nonhandicapped students, this court finds the plaintiff entitled to the following relief:
First, Joseph's Individualized Education Program must be readjusted to focus on the acquisition of functional skills.[12] Specifically, Joseph's IEP should include instruction in age-appropriate and functional skills in each of the following four areas: (1) daily living activities, (2) vocational activities, (3) recreational activities, and (4) social and community adjustment. In addition, his IEP should provide for instruction leading to the development of appropriate non-verbal communication skills. The IEP should also make specific provisions for the measurement of Joseph's progress in all areas. The program must cover the County Board's entire school year including the summer session.
The court notes that it was extremely impressed by the testimony of Dr. H. D. Fredericks of Teaching Research in Monmouth, *56 Oregon. Teaching Research has the only "model" training program for administrators and teachers serving severely handicapped children which has been given official approval by the United States Department of Education. In addition to training teachers and staff, Teaching Research has also been involved in the development and use of model programs and curricula for severely handicapped students. One means by which defendants may comply with this decree is to engage the services of Teaching Research in the development of an appropriate program.
Second, the court is concerned that Joseph's teacher and the Talladega coordinator of special education be trained in the techniques essential to an appropriate program. Defendants will therefore be ordered to provide suitable in-service training to Joseph's teacher and to the special education coordinator. One means by which defendants may comply with this decree is to insure the attendance of Joseph's teacher and the special education coordinator at the training program at Teaching Research.
Third, it is necessary that Joseph's new IEP provide for significantly increased contact with nonhandicapped students. One means by which this may be accomplished is to place Joseph's class into the main high school building at Munford High School or Talladega County High School. Alternatively, the school may choose to educate nonhandicapped as well as handicapped students in the Munford Center so that the Center ceases to be an isolated enclave for the handicapped. If defendants choose neither of these approaches, they bear the heavy burden of insuring that Joseph's interaction with nonhandicapped students will be substantially equal to that he would enjoy were his classroom located in the main school building. Whatever alternative is chosen, defendants may further insure compliance by also investigating the possibility raised in expert testimony of recruiting volunteers from among the student body to work with handicapped students.
Fourth, while the court recognizes that no education can adequately compensate Joseph for past deprivations, under an appropriate IEP significant progress is still possible. Accordingly, defendants will be ordered to provide Joseph with a free and appropriate public education for two years past his 21st birthday.
To insure the development and implementation of an appropriate remedy, this court will retain jurisdiction of this case. Defendants are required to submit to the court within 60 days of the date of this decree Joseph's IEP for the 1981-82 academic year. By a supplementary memorandum to be submitted at the same time, defendants should state in detail the manner in which maximum integration with nonhandicapped students will be achieved. The memorandum should also notify the court of what provisions have been made for suitable in-service training.
In addition to injunctive relief, plaintiff has requested damages. This court is empowered under 20 U.S.C. § 1415(e)(3) of the EHA to "grant such relief as the court determines is appropriate." While this language appears to permit an award of damages, courts dealing with the issue are in conflict. Compare Monahan v. Nebraska, 491 F.Supp. 1074, 1094 (D.Neb.1980), and Boxall v. Sequoia Union High School District, 464 F.Supp. 1104, 1112 (N.D.Cal.1979) (permitting damages), with Loughran v. Flanders, 470 F.Supp. 110, 115 (1979) (finding damages not authorized). Whether damages are awardable under Section 504 is similarly an open question in this circuit, see Camenisch v. University of Texas, 616 F.2d 127, 132 n.10 (5th Cir. 1980), and other courts have divided on the issue, compare Poole v. South Plainfield Board of Education, 490 F.Supp. 948, 949 (D.N.J.1980) and Patton v. Dumpson, 498 F.Supp. 9331, 3 EHLR 551:526 (S.D.N.Y.1980) (permitting damages) with Miener v. Missouri, 498 F.Supp. 949, EHLR 551:526 (E.D.Mo.1980) (damages not authorized). There is thus support for damage awards against agencies not protected by the eleventh amendment under either the EHA or Section 504 as well as under Section *57 1983.[13] It seems clear that much of the damage Joseph has suffered stems from educational deprivations in his formative years. It is impossible, however, to determine with any certainty from the evidence presented the extent to which Joseph's damages predated his family's move to Talladega County.[14] Although it is not necessary that damages be ascertained precisely, the amount of damages must be capable of some reasonable determination. This circuit has applied this principle in other contexts. See, e. g., Fredonia Broadcasting Corp. v. RCA Corp., 481 F.2d 781, 804 (5th Cir. 1973) (applying Texas law); Travelers Indemnity Co. v. Peacock Construction Co., 423 F.2d 1153, 1157 (5th Cir. 1970) (applying Florida law). Accordingly the court holds that Joseph is not entitled to an award of money damages.
Finally, the court holds that reasonable attorneys' fees will upon appropriate application be awarded to plaintiff pursuant to Section 505, 29 U.S.C. § 794a(b). See United Handicapped Federation v. Andre, 622 F.2d 342, 348 (8th Cir. 1980) (recognizing the entitlement to attorneys fees under 29 U.S.C. § 794a(b)).
It is therefore ORDERED and ADJUDGED that judgment be entered in conformity herewith.
ORDER ON MOTION FOR ATTORNEYS' FEES
In its order of March 31, 1981 the court held that plaintiff in this case was entitled to reasonable attorneys' fees. Plaintiff was represented in this case by Ms. Patricia E. Ivie and Mr. Robert J. Varley, both of the Legal Services Corporation of Alabama, Inc. Both attorneys have submitted oral testimony and affidavits concerning the hours spent in various aspects of this case as well as their original time records. Affidavits of attorneys in Birmingham and Montgomery concerning the hours demanded in the preparation of a case of this kind and the reasonableness of the hourly rate requested were introduced.
Ms. Ivie's affidavit states that she has spent 524¼ hours in preparing and litigating plaintiff's case, not including time spent in pursuing administrative remedies prior to the filing of this case. She has requested that the fee award be based upon an hourly rate of $70.00.
Mr. Varley's affidavit states that he has spent 300 hours on this case. He requested the fee award be based upon an hourly rate of $60.00.
Plaintiffs attorneys have listed long distance telephone charges totaling $235.18.
On the basis of the evidence submitted, its observation of the handling of this case, and its knowledge of legal practice in this area, the court makes the following findings and award in conformity with the factors enumerated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).
(1) Time and Labor Required. The court has considered the original time records submitted by plaintiff's attorneys and has read the supporting affidavits of local attorneys. Defendants have not pointed to any item charged by plaintiff's attorneys which they regard as excessive. The work of plaintiff's attorneys has been thorough and of consistently high quality. Although Mr. Varley entered the case later than Ms. Ivie, and possessed no special expertise in the law concerning the education of handicapped children, he has stated to the court that the time spent in familiarizing himself with this area has not been included in his request for fees. The court also notes that Ms. Ivie's work at the administrative level was not included in the fee application even though it may have provided a valuable *58 background for her later work before this court.
The total number of hours is quite substantial. While the court appreciates the high quality of the attorneys' work, it is not reasonably satisfied that the facts and issues of this case, difficult as they were, required the 824.25 hours expended. The court is reasonably satisfied, however, that 66 2/3 % of the total hours applied for were reasonably necessary to this specific case.
(2) The Novelty and Difficulty of the Questions. This is one of the first cases involving the right of a severely retarded child to an appropriate education under federal statutes. Legal and factual issues were inextricably mixed and both required intensive and original investigation. The court recognizes that the case has been both novel and difficult.
(3) Requisite Skill. As previously noted, the work of plaintiff's attorneys was of high caliber. Because of the difficult and novel legal and factual issues involved, the skill exhibited by plaintiff's attorneys was not only desirable but necessary.
(4) Preclusion of Other Employment. Although the case occupied a significant portion of the time of both attorneys, the circumstances of their regular employment make this factor insignificant.
(5) The Customary Fee. The affidavits submitted by counsel in this area establish that the fee requested by plaintiff's attorneys is reasonable and in line with that charged by other attorneys in this area of similar ability and experience. Defendants do not dispute this. Ms. Ivie has been admitted to the Alabama bar for five years. For the past four years she has specialized in representation of handicapped children seeking appropriate education in Alabama public schools. Mr. Varley was admitted to the Alabama bar in 1978. Prior to this time he had clerked for a federal judge in this state. Based upon these factors and the court's own knowledge of customary fees in this area, it finds the hourly rates requested by Ms. Ivie and Mr. Varley to be reasonable.
(6) Whether the Fee is Fixed or Contingent. The fee in this case was wholly contingent. Plaintiff's attorneys, however, have not requested an enhanced fee based on the contingency. It is on this basis alone that the court has failed to adjust the fee because of this factor.
(7) Time Limitations. This does not appear to be a relevant factor in this case.
(8) Results Obtained. Although this was not a class action, the clear purpose of this suit was to obtain a ruling which would aid large numbers of Alabama's handicapped children in obtaining an appropriate education under federal law. It succeeded in that purpose and in the court's view the results obtained were excellent.
(9) Experience, Reputation and Ability of the Attorneys. The experience of plaintiff's attorneys and the high quality of their work have already been noted.
(10) The Undesirability of the Case. In view of the nature of plaintiff's attorneys' practice, this case is not undesirable.
(11) Length of the Professional Relationship. This factor is not relevant in this case.
(12) Awards in Similar Cases. The fees requested in this case appear to be well within the boundaries marked out by other cases within this circuit. See, e. g., Neely v. City of Grenada, 624 F.2d 547 (5th Cir. 1980); McNeil v. Ogburn, 507 F.Supp. 96 (N.D.Fla.1981); Perry v. Golub, 464 F.Supp. 1016, 25 E.P.D. ¶ 31,488 (N.D.Ala.1980).
In light of the foregoing analysis the court approves as reasonable attorneys' fees for Ms. Ivie the amount of $24,465.00 reflecting 349.5 hours at an hourly rate of $70.00. The court approves attorneys' fees for Mr. Varley in the amount of $12,000.00 reflecting 200 hours at an hourly rate of $60.00. Telephone expenses amount to $235.18.
It is therefore ORDERED and ADJUDGED that plaintiff's said attorneys are hereby awarded fees and expenses in this cause in the total amount of $36,700.18 to be paid by defendants.
NOTES
[1] Plaintiff also states that defendants have violated the Alabama Exceptional Child Education Act, Ala.Code §§ 16-39-1 et seq. The Act does not expressly provide a private right of action and the Alabama courts have not considered whether an implied right of action exists. Since the Act does not supply additional grounds for relief in this case, this court will not attempt to decide a question best decided by a state court and instead declines to exercise pendent jurisdiction over plaintiff's state claims.
[2] Plaintiff originally filed suit against several individual defendants who were later voluntarily dismissed from the case.
[3] 20 U.S.C. § 1415(b)(2) provides for a hearing:
Whenever a complaint has been received ... the parents or guardian shall have an opportunity for an impartial due process hearing which shall be conducted by the State educational agency or by the local educational agency or intermediate educational unit, as determined by State law or by the State educational agency. No hearing conducted pursuant to the requirements of this paragraph shall be conducted by an employee of such agency or unit involved in the education or care of the child.
[4] 20 U.S.C. § 1401(19) defines IEP:
The term "individualized education program" means a written statement for each handicapped child developed in any meeting by a representative of the local educational agency or an intermediate educational unit who shall be qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of handicapped children, the teacher, the parents or guardian of such child, and, whenever appropriate, such child, which statement shall include (A) a statement of the present levels of educational performance of such child, (B) a statement of annual goals, including short-term instructional objectives, (C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs, (D) the projected date for initiation and anticipated duration of such services, and (E) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved.
[5] Joseph's typical schedule is as follows:
8:30 - 9:00 - Arrival. Toothbrushing and Self-Help
Skills.
9:00 - 9:15 - PE on Tuesday and Thursday and
alternating Fridays.
9:00 - 10:00 - Puzzle.
10:00 - 10:20 - Wash hands and prepare for lunch
(drinking skills).
10:20 - 11:00 - Lunch - personal hygiene.
11:00 - 12:00 - Sesame Street with groups.
12:00 - 1:00 - Art and music.
12:45 - 1:30 - Speech on Fridays.
1:00 - 1:30 - Individual instruction - speech
sounds.
1:30 - 1:45 - Snack - drinking skills.
1:45 - 2:00 - Individual instruction (safety and
wearing earphones).
2:00 - 2:15 - Restroom and prepare to go home.
2:20 Dismissal for home.
[6] In its statement of findings and purpose the EHA states: "It is in the national interest that the Federal Government assist State and local efforts to provide programs to meet the educational needs of handicapped children in order to assure the equal protection of the law." Pub.L. No.94-142, § 3(a), Stat. (1975), reprinted at 20 U.S.C.A. § 1401 (West 1978) (historical note). The Senate Report states: "It is this Committee's belief that the Congress must take a more active role under its responsibility for equal protection of the laws to guarantee that handicapped children are provided equal educational opportunity." S.Rep.No. 168, 94th Cong., 1st Sess. 6 reprinted in [1975] U.S.Code Cong. & Ad.News 1425, 1433. In drafting the EHA Congress was clearly influenced by a number of cases finding a constitutional basis for a handicapped child's right to an education. See id. at 1430. See, e. g., Mills v. Board of Educ., 348 F.Supp. 866 (D.D.C.1972); Pennsylvania Ass'n for Retarded Children v. Pennsylvania, 334 F.Supp. 1257 (E.D.Pa.1971), modified, 343 F.Supp. 279 (1972).
[7] 20 U.S.C. § 1412(5)(C) requires the State to establish testing procedures and evaluation materials that are not racially or culturally discriminatory. Additionally, the statute states that "no single procedure shall be the sole criterion for determining an appropriate educational program for a child." (emphasis added). This requirement is spelled out in detail in the implementing regulations.
45 C.F.R. § 121a.532 states:
State and local educational agencies shall insure, at a minimum, that:
(a) Tests and other evaluation materials:
(1) Are provided and administered in the child's native language or other mode of communication, unless it is clearly not feasible to do so;
(2) Have been validated for the specific purpose for which they are used; and
(3) Are administered by trained personnel in conformance with the instructions provided by their producer;
(b) Tests and other evaluation materials include those tailored to assess specific areas of educational need and not merely those which are designed to provide a single general intelligence quotient;
(c) Tests are selected and administered so as best to ensure that when a test is administered to a child with impaired sensory, manual, or speaking skills, the test results accurately reflect the child's aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting the child's impaired sensory, manual, or speaking skills (except where those skills are the factors which the test purports to measure);
(d) No single procedure is used as the sole criterion for determining an appropriate educational program for a child; and
(e) The evaluation is made by a multidisciplinary team or group of persons, including at least one teacher or other specialist with knowledge in the area of suspected disability.
(f) The child is assessed in all areas related to the suspected disability, including, where appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities.
[8] The congressional findings state:
The Congress finds that
(1) there are more than eight million handicapped children in the United States today;
(2) the special educational needs of such children are not being fully met;
(3) more than half of the handicapped children in the United States do not receive appropriate educational services which would enable them to have full equality of opportunity;
(4) one million of handicapped children in the United States are excluded entirely from the public school system and will not go through the educational process with their peers;
(5) there are many handicapped children throughout the United States participating in regular school programs whose handicaps prevent them from having a successful educational experience because their handicaps are undetected;
(6) because of the lack of adequate services within the public school system, families are often forced to find services outside the public school system, often at great distance from their residence and at their own expense;
(7) developments in the training of teachers and in diagnostic and instructional procedures and methods have advanced to the point that, given appropriate funding, State and local educational agencies can and will provide effective special education and related services to meet the needs of handicapped children;
(8) State and local educational agencies have a responsibility to provide education for all handicapped children, but present financial resources are inadequate to meet the special educational needs of handicapped children; and
(9) it is in the national interest that the Federal Government assist State and local efforts to provide programs to meet the educational needs of handicapped children in order to assure equal protection of the law.
20 U.S.C.A. § 1401 (West 1978) (historical note).
[9] The preponderance of the evidence standard codified at 20 U.S.C. § 1415(e)(2) reflects a decision to accord a greater role in the enforcement scheme to the federal courts. The original House version which provided that the determination of the state agency would be "conclusive in any court of the United States if supported by substantial evidence" was rejected by the conference committee and the present language was substituted. S.Rep.No. 455, 94th Cong., 1st Sess. 47-50 (1975), reprinted in [1975] U.S.Code Cong. & Ad.News 1480, 1500-02.
[10] Statements made during the debate over the EHA cited by Judge Mansfield confirm that at the very least Congress was concerned to give to handicapped children the skills needed to participate in society to the fullest extent possible. See, e. g., remarks of Senator Williams supporting the view expressed by the Secretary of Health, Education and Welfare that one goal of the Act was to enable handicapped persons to become "productive citizens, capable of contributing and even more, capable of self respect and pride which they so rightly deserve." 121 Cong.Rec. 37416 (1975). Cf. Battle v. Pennsylvania, 629 F.2d 269, 280 (3d Cir. 1980) (stating that reasonable educational standards may be set by the states but that these standards must allow for individual consideration of each handicapped child and invalidating state rule limiting education to 180 days per year).
[11] Defendants' chief expert witness, who was also chairman of Joseph's second due process panel, testified to the court that he was inalterably opposed to the philosophy of Congress evident in the mainstreaming requirements.
[12] Other courts have found it necessary to rely upon expert testimony in evaluating the needs and placement of handicapped children. See, e. g., Springdale School Dist. v. Grace, 494 F.Supp. 266 (W.D.Ark.1980) (upholding parents' request for child's placement in regular school after analysis of child's educational needs and statutory requirements); Kruelle v. Biggs, 489 F.Supp. 169 (D.Del.1980) (overruling school system's recommendations and ordering appropriate placement on basis of expert testimony); Laura M. v. Special School Dist. No. 1, 3 EHLR 552:152 (D.Minn.1980) (ordering placement of handicapped child and directing school system to include specified services in child's IEP); Age v. Bullit County Public Schools, 3 EHLR 551:505 (W.D.Ky.1980) (determining most appropriate education for deaf child on basis of expert testimony).
[13] See, e. g., Medley v. Ginsberg, 492 F.Supp. 1294, 1305 (S.D.W.Va.1980) (violation of EHA or § 504 constitutes violation of § 1983); Boxall v. Sequoia Union High Sch. Dist., 464 F.Supp. 1104, 1113 (N.D.Cal.1979) (plaintiff may sue for damages under § 1983 to enforce federal statutory rights guaranteed by the EHA and § 504).
[14] The eleventh amendment bars recovery of money damages from the State Board for injury sustained prior to such move.
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282 U.S. 445 (1931)
ENSTEN ET AL.
v.
SIMON, ASCHER & COMPANY, INCORPORATED.
No. 46.
Supreme Court of United States.
Argued December 12, 1930.
Decided February 2, 1931.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.
Messrs. O. Ellery Edwards and Harold Elno Smith for petitioners.
Mr. John F. Neary, with whom Messrs. Harry S. Bandler, Ramsey Hoguet, and Daniel L. Morris were on the brief, for respondent.
Messrs. Benjamin T. Roodhouse, James A. Brown, and Charles Neave, by special leave of Court, filed a brief on behalf of the Excelsior Steel Furnace Company, as amicus curiae.
*447 Mr. JUSTICE McREYNOLDS delivered the opinion of the Court.
By an original bill presented to the District Court, Southern District of New York, November 9, 1929, petitioners sought to prevent respondent from further infringing Letters Patent No. 1,313,080, for improvements in knitted caps and to recover damages. They asked a preliminary injunction; affidavits were presented by both sides; the facts are not controverted.
It appears
That the patent, 6 claims, issued to Louis H. Ensten August 12, 1919. In the first suit upon it Ensten v. Rich-Sampliner Co., et al. commenced in the District Court, Northern District of Ohio, an interlocutory decree, *448 dated May 24, 1922, adjudged claims 1, 3, 4 and 5 valid and infringed; claim 2 invalid.
That within 30 days the defendants appealed from so much of that decree as upheld the four claims; the complainant might have but did not appeal. The Circuit Court of Appeals approved the decree so far as challenged, June 20, 1923; the validity of claim 2 was not before it. Rehearing was denied October 4, 1923; mandate issued October 18, 1923. 291 Fed. 1003.
That after such remittance the District Court ordered an accounting. The complainant offered to show damages to his exclusive licensee, Lion Knitting Mills Company. As that Company was not party to the cause, the Master rejected the offer; the court affirmed his action.
That on April 30, 1924, Ensten disclaimed as to claim 2 in the Patent Office. Thereafter, he and the Lion Knitting Mills Company presented a joint bill against the original defendants. A motion to dismiss because of unreasonable neglect and delay in making the disclaimer was sustained April 5, 1926, 13 F. (2d) 132 Judge Westenhaver. The Circuit Court of Appeals, May 9, 1927, held the second bill was in effect an amendment to the original one; declared the objection based upon failure to disclaim more promptly moot; reversed the decree of the District Court; and remanded the cause for appropriate proceedings. Subsequently, the parties settled their differences; the defendant paid substantial damages; and final decree went for the complainants November 1, 1928.
No facts except those above detailed are relied upon.
Having heard the parties to the present proceeding, the trial court held that Ensten, the patentee, unreasonably neglected and delayed to disclaim 2 after the District Court in Ohio had declared it invalid, denied an application for injunction and dismissed the bill. The *449 Circuit Court of Appeals affirmed this action February 4, 1930, Ensten et al. v. Simon, Ascher & Co., 38 F. (2d) 71; called attention to the conflict between its views and those of the Circuit Court of Appeals, Seventh Circuit, Excelsior Steel Furnace Co. v. Meyer & Bro. Co., 36 F. (2d) 447, and suggested the desirability of an authoritative determination of the controverted question of law.
The petition here for certiorari asked for the writ because of the conflict of opinion in the two Circuits. The point contested below and differently ruled in the Circuit Courts of Appeals concerns the effect of the delay in disclaiming. According to the usual practice we will consider nothing else.
Determination of the issue presented must turn upon the construction and effect of §§ 65 and 71, Title 35, U.S.C. (R.S. §§ 4917, 4922; §§ 7 and 9, Act of 1837, 5 Stat. 193), copied in the margin.[*]
*450 The first of these sections provides in substance that whenever, through inadvertence, accident, or mistake, and without any fraudulent or deceptive intention, a patentee has claimed more than that of which he was the original or first inventor or discoverer, he may be permitted to make disclaimer of such parts of the thing patented as he shall not choose to claim or hold by virtue of his patent. The other permits the patentee to maintain a suit on his patent, although through inadvertence, accident, or mistake, and without any wilful default or intention to mislead the public, he has claimed some material or substantial part as an invention of which he was not the original or first inventor. He is deprived, however, of the right to recover costs, unless he has filed proper disclaimer before commencement of his suit. And it further provides: "But no patentee shall be entitled to the benefits of this section if he has unreasonably neglected or delayed to enter a disclaimer."
In order properly to apply these sections consideration must be given to the provisions touching review of interlocutory *451 decrees by federal courts. Formerly, federal practice permitted appeals only from final decrees. Section 7, Act March 3, 1891, 26 Stat. 828, empowered Circuit Courts of Appeals to review an interlocutory decree granting or continuing an injunction. Ex parte National Enameling Co., 201 U.S. 156. This section was modified by Act of 1895, Chap. 96, 28 Stat. 666, and by Act of June 6, 1900, 31 Stat. 660. And the Act of April 14, 1906, 34 Stat. 116, amended it to read thus
"Sec. 7. That where, upon a hearing in equity in a district or in a circuit court, or by a judge thereof in vacation, an injunction shall be granted or continued, or a receiver appointed by an interlocutory order or decree, in any cause an appeal may be taken from such interlocutory order or decree granting or continuing such injunction, or appointing such receiver, to the circuit court of appeals: . . ."
The Judicial Code, Act March 3, 1911, 36 Stat. 1134, provided
"Sec. 129. Where upon a hearing in equity in a district court, or by a judge thereof in vacation, an injunction shall be granted, continued, refused, or dissolved by an interlocutory order or decree, or an application to dissolve an injunction shall be refused, or an interlocutory order or decree shall be made appointing a receiver, an appeal may be taken from such interlocutory order or decree granting, continuing, refusing, dissolving, or refusing to dissolve, an injunction, or appointing a receiver, to the circuit court of appeals, notwithstanding an appeal in such case might upon final decree under the statutes regulating the same, be taken directly to the Supreme Court: Provided, That the appeal must be taken within thirty days from the entry of such order or decree . . ."
See Act of 1925, § 227, Title 28, U.S.C., which further enlarged the right.
*452 Did the patentee Ensten unreasonably neglect or delay to make disclaimer of claim 2 after May 24, 1922, when the District Court in Ohio declared it invalid? He disclaimed April 30, 1924; and only the facts narrated above are relied on for explanation or excuse.
Under the early accepted general rule a patent with an invalid claim was wholly void, and this defect effectually barred suit upon it. Congress undertook to modify this by §§ 7 and 9, Chap. 45, Act of 1837. 5 Stat. 193. In substance these became §§ 4917 and 4922, Revised Statutes, and 65 and 71, Title 35, U.S.C. The two sections "are parts of one law, having one general purpose, and that purpose is to obviate the inconvenience and hardship of the common law, which made a patent wholly void if any part of the invention was wrongfully claimed by the patentee, and which made such a defect in a patent an effectual bar to a suit brought upon it." Hailes v. Albany Stove Co., 123 U.S. 582; Sessions v. Romadka, 145 U.S. 29, 41. Construed together they "enact that where a patentee claims materially more than that which he was the first to invent, his patent is void, unless he has preserved the right to disclaim the surplus; and that he may fail to preserve that right, by unreasonable neglect or delay to enter a disclaimer in the Patent Office." Walker on Patents, 6th ed., § 254.
The statute is remedial; the intent is to aid the inventor free from wilful default or intention to mislead the public by permitting him to avoid the consequence of inadvertence, accident or mistake through prompt disavowal of the apparent right to exclude others from something improperly included in the words of his grant. Escape is permitted only to one who acted originally in good faith and who has complied with the prescribed conditions. "The same principle which forbids a patentee to assert a right to more than he has actually invented compels him to disavow the right as soon as he discovers that it *453 has been unjustly claimed. Unreasonable delay in disclaiming is thus tantamount to an original fraudulent claim, and through it the patentee loses the privilege of making the amendment by which alone his patent could be saved. The question of unreasonable delay is a question for the court, upon the facts as found either by its own investigation or the verdict of a jury. Delay begins whenever the patentee becomes aware that he has claimed more than he has invented or described. In cases where the excess is not apparent at once upon the inspection of the patent by the patentee, the allowance of his claim by the patent office raises such a presumption in its favor that he may rely on its validity until a court of competent jurisdiction decides that it is broader than his real invention." Robinson on Patents (1890), Vol. II, p. 284.
The petitioners say that, after Judge Westenhaver by interlocutory decree declared claim 2 invalid, the patentee had several options. He might have made disclaimer immediately; he might have appealed from the interlocutory decree within 30 days; he might have awaited the final decree and appealed from that; he might have sued again in another Circuit and prosecuted such suit to final decree. Accordingly, they maintain that the delay which actually occurred cannot be declared unreasonable.
Under this view, a patentee having procured allowance of an invalid claim may hold it in the face of the public for years (here nearly two years) with large possible advantage to himself and much injury to others. By the assertion of his apparent monopoly he may deter others from legitimate action and seriously prejudice the public. See Miller v. Brass Co., 104 U.S. 350, 355.
To support their position petitioners rely especially upon O'Reilly v. Morse (1853), 15 How. 62, 121, and Seymour v. McCormick (1856), 19 How. 96, 106.
O'Reilly v. Morse was decided here when appeals in federal courts lay only from final decrees. The Circuit *454 Court had sustained all claims of the patent. This court held one invalid and then disposed of the contention that because of the failure to disclaim there could be no right to recover under the valid ones. Mr. Chief Justice Taney for the court said:
"It appears that no disclaimer has yet been entered at the patent office. But the delay in entering it is not unreasonable. For the objectionable claim was sanctioned by the head of the office; it has been held to be valid by a circuit court, and differences of opinion in relation to it are found to exist among the justices of this court. Under such circumstances the patentee had a right to insist upon it, and not disclaim it until the highest court to which it could be carried had pronounced its judgment. The omission to disclaim, therefore, does not render the patent altogether void; and he is entitled to proceed in this suit, for an infringement of that part of his invention which is legally claimed and described. But as no disclaimer was entered in the patent office before this suit was instituted, he cannot, under the act of Congress, be allowed costs against the wrongdoer, although the infringement should be proved. And we think it is proved by the testimony."
Seymour v. McCormick declared "In respect to the question of unreasonable delay in making the disclaimer, as going to the whole cause of action, the court are of opinion that the granting of the patent for this improvement, together with the opinion of the court below maintaining its validity, repel any inference of unreasonable delay in correcting the claim; and that, under the circumstances, the question is one of law. This was decided in the case of the Telegraph, (15 How. [62] 121)."
Neither of these cases lends support to the petitioners. Attention also has been called to United States v. American Bell Tel. Co., 167 U.S. 224, Simmons Co. v. Grier *455 Bros., 258 U.S. 82, 91, and other causes; but their facts differ so materially from those now presented that special comment upon them is unnecessary.
In certain definitely defined circumstances, and to the end that the mistaken but honest inventor may obtain relief from the old rule, the disclaimer provisions permit him to deprive the public temporarily of complete freedom from the assertion of a monopoly apparently valid, but not so in fact. When a competent court has declared his pretensions without sufficient foundation, we think good faith and the spirit of the enactment demand that he act with such promptness as the circumstances permit either to vindicate his position or to relieve the public from further evil effects of his false assertion. But for the benign provisions of the statute, such an assertion would invalidate the whole patent; and these provisions were intended to protect only those who by prompt action either seek to overturn an adverse ruling or retreat from a false position.
When the District Court in Ohio declared claim 2 invalid, the owner of the patent might have appealed to the Circuit Court of Appeals within thirty days and thus secured an early determination of his rights. He did not choose this course but continued to hold himself out as possessor of the sole right to "make, use and vend" under the rejected claim, for nearly two years. Then he abandoned it. He made no effort promptly to vindicate what he had asserted nor did he surrender it. Thus he failed to earn the offered exemption and now he may not complain.
A similar view of the meaning and effect of §§ 65 and 71 has been often accepted by District Courts and Circuit Courts of Appeals. The doctrine there commonly approved is that, where one claim of a patent is declared invalid, the trial court may refuse a decree sustaining the *456 others until there is disclaimer as to the invalid one or a prompt appeal. Walker on Patents, 6th ed., § 260, copied in the margin.[**] First Circuit: Suddard v. American Motor Co., 163 Fed. 852 (1908). Second Circuit: Atwater Mfg. Co. v. Beecher Mfg. Co. (C.C.) 8 Fed. 608; Tyler v. Galloway (C.C.) 12 Fed. 567; Brainard v. Cramme (C.C.) 12 Fed. 621; Matthews v. Spangenberg (C.C.) 19 Fed. 823; Hake v. Brown (C.C.) 37 Fed. 783; Electric Accumulator Co. v. Julien Electric Co. (C.C.) 38 Fed. 117; Union Paper Bag Machine Co. v. Waterbury (C.C.) 39 Fed. 389; Steam Gauge Co. v. Kennedy (C.C.) 41 Fed. 38; Williams v. Barnard (C.C.) 41 Fed. 358; Smead v. School Dist. (C.C.) 44 Fed. 614; Brush Electric *457 Co. v. Electrical Accumulator Co. (C.C.) 47 Fed. 48; Ballard v. McCluskey (C.C.) 58 Fed. 880. Sixth Circuit: Odell v. Stout, 22 Fed. 159; Office Specialty Mfg. Co. v. Globe Co., 65 Fed 599; Morgan Co. v. Alliance Co., 176 Fed. 100; Herman v. Youngstown Car Mfg. Co., 191 Fed. 579, 587; Cummer Co. v. Atlas Dryer Co., 193 Fed. 993, 998; Higgin Mfg. Co. v. Watson, 263 Fed. 378. Seventh Circuit: Liquid Carbonic Co. v. Gilchrist Co., 253 Fed. 54, 58.
In Page Machinery Co. v. Dow, Jones & Co., 168 Fed. 703, decided in 1909 prior to the enlarged appeal provision in the Judicial Code, the Second Circuit Court of Appeals expressed disapproval of the then prevailing practice upon the ground that an inventor should not be required to accept the opinion of a single judge. The principal reason for this objection disappeared when the Judicial Code became effective and broader appeals from interlocutory orders were permitted.
In Excelsior Steel Furnace Co. v. Meyer & Bro. Co., 36 F. (2d) 447, the Circuit Court of Appeals, Seventh Circuit, declared that "in no case would a court be justified in finding that a patentee unreasonably delayed the filing of a disclaimer until after the expiration of the statutory period within which he might further litigate the question of the validity of the contested claims." But, in Liquid Carbonic Co. v. Gilchrist, supra, the same court had said "that under the circumstances indicated in these statutes [§§ 4917, 4922, R.S.] benefit of any recovery by the patentee is denied unless or until disclaimer is filed." So far as we are advised no other court has sustained the theory advanced by the petitioners.
Certainly, in this case where an appeal was taken by the defendants, it would have entailed no unreasonable hardship upon the patent owner promptly to have submitted the legality of the rejected claim for determination by *458 the appellate court. The route to that end was obvious, easy, inexpensive. He deliberately failed to defend his assertion of right by appealing. He has been guilty of unreasonable delay and has not brought himself within the beneficent provisions of the statute.
The judgment below must be
Affirmed.
NOTES
[*] "Sec. 65. Disclaimer. Whenever, through inadvertence, accident, or mistake, and without any fraudulent or deceptive intention, a patentee has claimed more than that of which he was the original or first inventor or discoverer, his patent shall be valid for all that part which is truly and justly his own, provided the same is a material or substantial part of the thing patented; and any such patentee, his heirs or assigns, whether of the whole or any sectional interest therein, may, on payment of the fee required by law, make disclaimer of such parts of the thing patented as he shall not choose to claim or to hold by virtue of the patent or assignment, stating therein the extent of his interest in such patent. Such disclaimer shall be in writing, attested by one or more witnesses, and recorded in the Patent Office; and it shall thereafter be considered as part of the original specification to the extent of the interest possessed by the claimant and by those claiming under him after the record thereof. But no such disclaimer shall affect any action pending at the time of its being filed, except so far as may relate to the question of unreasonable neglect or delay in filing it. (R.S. § 4917.)
"Sec. 71. Suit for infringement where specification too broad. Whenever, through inadvertence, accident, or mistake, and without any willful default or intent to defraud or mislead the public, a patentee has, in his specification, claimed to be the original and first inventor or discoverer of any material or substantial part of the thing patented, of which he was not the original and first inventor or discoverer, every such patentee, his executors, administrators, and assigns, whether of the whole or any sectional interest in the patent, may maintain a suit at law or in equity, for the infringement of any part thereof, which was bona fide his own, if it is a material and substantial part of the thing patented, and definitely distinguishable from the parts claimed without right, notwithstanding the specifications may embrace more than that of which the patentee was the first inventor or discoverer. But in every such case in which a judgment or decree shall be rendered for the plaintiff no costs shall be recovered unless the proper disclaimer has been entered at the Patent Office before the commencement of the suit. But no patentee shall be entitled to the benefits of this section if he has unreasonably neglected or delayed to enter a disclaimer. (R.S. § 4922.)"
[**] "Sec. 260. An important question arises when a District Court, before any disclaimer has been filed, decides that a part of the claims of the patent in suit are valid, and have been infringed by the defendant, while another part are void for want of novelty, or for want of invention, and ought therefore to be disclaimed. Ought the judge in such a case, to enter a decree for an injunction and an account on the valid claims, and allow the complainant to disclaim the others or not, as he deems most prudent; or should he decline to enter any decree till the complainant shall have filed a disclaimer? The second of these courses has been the practice in the first circuit, in the sixth, in the seventh, and, prior to the decision of Page Machine Co. v. Dow, Jones & Co., in the second circuit [168 Fed. 703]; prior to the Page Machine Co. case one of the judges in the second circuit criticised that practice as arbitrary and unjust, and in at least one case in the sixth circuit the practice has not been followed by the Circuit Court, the reason being given that such a requirement would deprive the complainant of the benefit of an appeal from the decree in so far as it held the disclaimed claim invalid. The same reason is stated in the Page Machine Co. case. And one of the judges of the third circuit has held the first course to be the proper practice.
"Where a patentee through inadvertence claimed that of which he was not the original inventor, but a disclaimer was not filed before suit, no recovery can be allowed or injunction, unless a disclaimer be filed within a reasonable time."
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538 U.S. 939
MORENOv.UNITED STATES.
No. 02-9093.
Supreme Court of United States.
March 24, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
2
C. A. 7th Cir. Certiorari denied. Reported below: 302 F. 3d 679.
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439 F.2d 665
Mr. William FRANKLIN et al., Plaintiffs-Appellants,v.CITY OF MARKS et al., Defendants-Appellees.
No. 29302.
United States Court of Appeals, Fifth Circuit.
March 2, 1971.
Kent Spriggs, Oxford, Miss., Mose Kincaid, Batesville, Miss., for plaintiffs-appellants.
Ben M. Caldwell, Larry O. Lewis, Marks, Miss., for defendants-appellees.
Before BROWN, Chief Judge, WISDOM and MORGAN, Circuit Judges.
WISDOM, Circuit Judge:
1
In this Section 19831 action the plaintiffs challenge the validity of a de-annexation ordinance adopted May 7, 1963, by the Board of Aldermen of the City of Marks in Quitman County, Mississippi, and approved by the County Chancery Court.
2
In a municipal annexation or de-annexation proceeding in Mississippi, state law allows citizens of the municipality and residents of the area in question to appear and to object to the ordinance and allows them ten days within which to appeal from the chancery decree approving the ordinance establishing the corporate limits of the municipality. The district court held that this ten-day period for appeal in the de-annexation proceeding should be treated as the statute of limitations applicable to this civil rights action under 42 U.S.C. § 1983. We reverse.
I.
3
In February 1961 the Board of Aldermen of the City of Marks in Quitman County, Mississippi, adopted an ordinance annexing certain land beyond the corporate limits. Thereafter, the Chancery Court issued an order finding that the proposed annexation was reasonable and required by public convenience and necessity. In its order the court in part stated:
4
"* * * that the City of Marks will immediately give police and fire protection to the proposed annexed territory as quickly as the same can be placed in the proposed annexed territory already, that fire hydrants will be placed in the newly annexed territory immediately, that the streets and drainage will be improved in the proposed annexed territory and that the streets will be placed in future paving projects had by the City of Marks."
5
In this suit the plaintiffs allege that none of these improvements were made and none of the services rendered in the annexed area.
6
On May 7, 1963, the Marks Board of Aldermen adopted an ordinance contracting the corporate boundaries of the city so as to exclude the area annexed two years before. In accordance with Section 3374-10 of the Mississippi Code of 1942, the City filed a petition in the Chancery Court of Quitman County for approval of the de-annexation. The Court fixed August 19, 1963, for the hearing of the petition and gave notice by publication as provided by state law. No person presented himself at the hearing to oppose the de-annexation. The Chancellor then ordered a decree contracting the corporate limits of Marks by eliminating the area in question. No one having appealed the decree within ten days, the decree became final under Section 3374-13 of the Mississippi Code.
7
In this suit the plaintiffs allege that they are poor, black residents of the de-annexed area who are "a politically active class of persons who constituted an opposition to the governing body of the City". They allege that they and others living in the area are without sewers, paving, adequate street lights, fire hydrants, fire and police protection, and garbage collection, as contemplated by the annexation of 1961 and, importantly, are unable to vote in municipal elections in Marks. They contend that the City discriminated against them in violation of the Equal Protection Clause of the Fourteenth Amendment, infringed upon their right to vote in violation of the Fifteenth Amendment, and abridged their rights to free speech, assembly, and political expression in violation of the First Amendment.
8
The complaint was filed on August 13, 1969. This is six days short of six years after the entry of the Chancery Court's final decree, and therefore, so the plaintiffs contend, within the Mississippi six year statute of limitation applicable here.
9
The defendants moved to dismiss on the ground that the ten day statutory period provided for an appeal from the entry of a decree is applicable here and, in the absence of an appeal being timely taken to the Supreme Court of Mississippi, the Chancery Court decree became final. This, they assert, means finality as to all objections to the de-annexation proceeding including that asserted by the plaintiffs.
10
The district court pointed out that in federal civil rights cases, citing Beard v. Stephens, 5 Cir. 1967, 372 F.2d 685, "where Congress has failed to provide an express statute of limitation, the federal courts look to the State law to determine the applicable period of limitation." Here, the court said:
11
"* * * it was ten days, as provided by statute. The failure to appeal within that time by these plaintiffs or by their predecessors in interest bar their attacking the judgment at this late date. No good cause has been shown to the Court why these claims now urged could not have been urged at that time and the aid of the federal court, if necessary, invoked to have prevented the entry of a decree violative of their federally protected rights."
12
The court noted that while laches is ordinarily a matter to be developed on actual prejudice, that "such a doctrine would be peculiarly applicable to this kind of a case where many of the actors, after a lapse of six years, have passed from the scene." Accordingly, the court granted the defendants' motion to dismiss the complaint.
II.
13
The ten-day period for appeal from the chancery decree was not a true statute of limitations in the proper sense that such a statute fixes the interval between the time of accrual of a right and the time allowed for commencement of an action to enforce the right. Instead, it was, as the brevity of the period in itself showed, simply a procedural limitation on the parties' use of appellate process in a municipal de-annexation proceeding. It was a built-in, conditional limitation inseparable from the Mississippi municipal annexation proceedings.2 The right to object to an ordinance establishing municipal boundaries did not exist in common law. Here it was a special right of parties to the proceeding a municipality had to go through in enlarging or contracting the city limits. The notice by publication, the opening of the chancery hearing to aggrieved residents, the appeal within ten days by "the municipality or any other interested person who was a party to the proceeding" (§ 3374-14) all had to do with whether "the proposed enlargement or contraction is reasonable and is required by the public convenience and necessity" (§ 3374-13).
14
Such a proceeding — where the measure of the law is the length of the chancellor's foot — has no necessary relation to the accrual of a different right of action and the commencement of an entirely different proceeding in a different forum. Least of all can it be said that the ten-day period for appeal provided in a state chancery proceeding to settle a municipality's boundaries is a statute of limitation barring a federal civil rights action based on a congressional enactment which was entitled "An Act to Enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States * * *."3
15
In Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, the Supreme Court carefully considered the legislative history of Section 1983. The Court found "threads of many thoughts running through the debates," but that "the present section had three main aims." First, "it might, of course override certain kinds of state laws," that is, "invidious legislation by States against the rights or privileges of citizens of the United States." Second, "it provided a remedy where state law was inadequate." "The third aim was to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice." In McNeese v. Board of Education, 1963, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 672, the Court noted a fourth aim: "to provide a remedy in the federal courts supplementary to any remedy any State might have." See Moreno v. G. C. Henckel, Jr., 5 Cir. 1970, 431 F.2d 1299. These aims would be seriously curtailed, if not completely frustrated, when civil rights are imperiled by municipal boundary changes, if a state could, in effect, modify this important act of Congress, by limiting litigants to court action within ten days of the chancery decree approving the boundaries. It is possible that the "reasonable" test which the chancellor must apply would take into consideration some of the elements of the alleged wrongdoing arising out of the de-annexation, but as Mr. Justice Harlan suggested in his concurring opinion in Monroe v. Pape, 365 U.S. 192, 196, 81 S.Ct. 486, 488,
16
"a deprivation of a constitutional right is significantly different from and more serious than a violation of a state right and therefore deserves a different remedy even though the same act may constitute both a state tort and the deprivation of a constitutional right."
17
When Congress creates a right without a limitation it is sometimes useful to resort to the fiction that the congressional silence means that Congress expects the state rule to be applied. But it is unthinkable to use this fiction to impute to the ardent civil rights advocates in Congress a hundred years ago any intention to limit the Civil Rights Act of 1871 to a ten-day statute of limitation.
III.
18
In Beard v. Stephens, 5 Cir. 1967, 372 F.2d 685, this Court looked first to the "essential nature" of the claims under federal law and then to "what statute of limitations would the state courts hold applicable to this type or class of claim." In that case the Court noted that an action against a sheriff for a wrongful shooting by his deputies during an arrest constituted an action of trespass; the court therefore resorted to the Alabama six-year statute of limitations applicable to actions in trespass. The Court treated two other claims as essentially actions on the case subject to a one-year statute of limitations. This approach has been used by other courts, most frequently when the Section 1983 wrong resembles a traditional tort.4 Even in such a case it has been pointed out:
19
"Section 1983 of the Civil Rights Act clearly creates rights and imposes obligations different from any which would exist at common law in the absence of statute. A given state of facts may of course give rise to a cause of action in common-law tort as well as to a cause of action under Section 1983, but the elements of the two are not the same. The elements of an action under Section 1983 are (1) the denial under color of state law (2) of a right secured by the Constitution and laws of the United States. Neither of these elements would be required to make out a cause of action in common-law tort; both might be present without creating common-law tort liability. * * * [At this point the Court quoted the language of Mr. Justice Harlan quoted in Section II of this opinion.]
20
Smith v. Cremins, 9 Cir. 1962, 308 F.2d 187.
21
Here the essential nature of the wrongs complained of is the abuse of the municipal procedure for establishing corporate limits. The alleged purpose and effects were, under color of law, to deprive the plaintiffs of rights secured by Section 1983 and by the United States Constitution. In state law there is no real analogy to these wrongs.
22
We know, however, that when a municipality provides inadequate services to residents "on the other side of the tracks" that this deprivation constitutes unlawful discrimination. Hawkins v. Town of Shaw, Mississippi, 5 Cir. 1970, 437 F.2d 1286. Here the plaintiffs were residents of the City of Marks at the time of the de-annexation proceeding. Undoubtedly, the Town of Shaw could not escape its federal constitutional and statutory obligations by a de-annexation proceeding. We know too that a change in location of polling places as a result of changes in municipal boundaries by annexation may have discriminatory purposes and effects and require federal scrutiny under the 1965 Voting Rights Act. Perkins v. Mathews, 1970, 400 U.S. 379, 91 S.Ct. 431, 27 L.Ed.2d 476. What might be regarded as a routine municipal ordinance or proceeding in state law is therefore subjected to thorough analysis and examination in federal law when the effect of the ordinance or proceeding is to deprive citizens of their federally protected rights.
23
Accepting the allegations of the complaint as true for purposes of the motion to dismiss and finding no analogue in state law, the court must resort to the state's catch-all statute of limitations. Mississippi Code, Section 722 states: "All actions for which no other period of limitation is prescribed shall be commenced within six years next after the cause of such action accrued, and not after." It is the limitation to be applied to actions not otherwise explicitly covered by a limitation.
24
We hold, therefore, that Section 722 of the Mississippi Code provides the appropriate limitation for this action.
25
The judgment is therefore reversed.
Notes:
1
42 U.S.C. § 1983 provides:
Civil action for deprivation of rights. Every person who, under color of any statute, ordinance regulation, custom, or usage, of any State or Territory, subjects or causes to be subjected, any citizen of the United States or other persons within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the person injured in an action of law, suit in equity, or other proper proceedings for redress.
2
Statutes of limitation are to be distinguished from statutes which create a right of action not existing at common law and restrict the time within which action may be brought to enforce the right. Although the general rule is that a true statute of limitations extinguishes only the right to enforce the remedy and not the substantive right itself, the limitation of time for commencing an action under a statute creating a new right enters into and becomes a part of the right of action itself and is a limitation not only of the remedy but of the right also; the right to recover depends upon the commencement of the action within the time limit set by the statute, and if that period of action is gone forever. The statute is an offer of an action on condition that it be commenced within the specified time, and if the offer is not accepted in the only way in which it can be accepted, by a commencement of the action within the specified time, the action and right of action no longer exist and the defendant is exempt from liability
Whether an enactment is in the nature of a conditional statute, or whether it is a statute of limitations, should be determined from a proper construction of its terms. The fact that the limitation is in the same statute as the one creating the new liability is persuasive of the fact that it is intended as a condition of the right created, but this is not conclusive. 51 Am.Jur. Limitations, 2d 599, 600.
3
42 U.S.C. § 1983 was originally enacted as § 1 of the Civil Rights Act of April 20, 1871, ch. 22, 17 Stat. 13, and was popularly known as the Ku Klux Klan Act
4
See generally Note, A Limitation Actions for Deprivation of Federal Rights, 68 Colum.L.Rev. 763 (1968); Note, Choice of Law under Section 1983, 37 U.Chi. L.Rev. 494, 502 (1970).
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701 F.2d 185
112 L.R.R.M. (BNA) 2896, 97 Lab.Cas. P 10,147
N. L. R. B.v.Belcor, Inc.
81-7738
UNITED STATES COURT OF APPEALS Ninth Circuit
1/24/83
1
N.L.R.B.
ORDER ENFORCED
| {
"pile_set_name": "FreeLaw"
} |
504 F.Supp. 108 (1980)
Harry G. MATTHEWS, Plaintiff,
v.
Theodore M. HESBURGH, Chairman, Select Commission on Immigration and Refugee Policy et al., Defendants.
Civ. A. No. 80-245.
United States District Court, District of Columbia.
July 30, 1980.
*109 Jules W. Lindau, Damascus, Md., for plaintiff.
Paul Blankenstein, Judith Scolnick, Thomas Millet, Dept. of Justice, Washington, D. C., for defendants.
*110 MEMORANDUM OPINION
JOHN H. PRATT, District Judge.
Summary
Plaintiff, Dr. Harry Matthews, brings this action against the Members of the Select Commission on Immigration and Refugee Policy, its Executive Director, and the United States, alleging that he was terminated as the Commission's Coordinator of Public and Congressional Affairs for racial reasons in violation of the Fifth Amendment Due Process Clause, and without a hearing in violation of the procedural protections of the Due Process Clause. Plaintiff seeks reinstatement, back pay, and damages. Defendants have moved for summary judgment for reasons hereinafter discussed.
As a result of our consideration of the parties' contentions, we have granted partial summary judgment for defendants, finding that plaintiff was not entitled to any constitutionally-mandated due process procedural protections, and we have denied summary judgment on the issue of racial discrimination, finding that plaintiff has raised a genuine issue of material fact.
I. The Facts
The Select Commission on Immigration and Refugee Policy (Commission) was created by Congress[1] to comprehensively review this country's immigration and refugee policies and laws, and to recommend revisions. The Commission is statutorily directed to make a final report of its findings and recommendations to the President and the Congress by March 1, 1981,[2] at which time the Commission will wind up its affairs and cease to exist.[3] Defendant Fuchs, the Executive Director of the Commission, offered plaintiff a position as the Commission's Coordinator of Public and Congressional Affairs on July 24, 1979. Plaintiff accepted the position on that date and began work with the Commission on August 15, 1979.[4] On December 18, 1979, defendant Fuchs informed plaintiff that he was discharging him effective February 1, 1980. Precisely what occurred between these dates is the subject of some dispute.
The affidavits of defendant Fuchs, Commission Special Assistant Sandra Stevens, and Commission Deputy Director Ralph Thomas allege numerous instances of plaintiff's substandard performance, including missing deadlines, failing to perform certain duties, and refusing to perform other duties when directed to do so. Defendant Fuchs' affidavit states that plaintiff's supervisory responsibilities were transferred to Special Assistant Stevens on November 15, 1979, and that plaintiff was notified of his termination for failure to properly perform his job on December 18, 1979. The Fuchs' affidavit also states that defendant Fuchs again informed plaintiff of the reasons for his termination on January 3, 1980, and that these reasons were put in writing *111 by defendant Fuchs on January 4, 1980 at plaintiff's request.
Plaintiff concedes in his affidavit that at a November 15, 1979 meeting defendant Fuchs told plaintiff and others that the public affairs staff was not functioning properly, and that Special Assistant Stevens was being given supervisory responsibility for the public affairs staff. However, plaintiff's affidavits specifically rebut or deny many of the charges of substandard performance made in the affidavits of Fuchs, Stevens and Thomas, and plaintiff states that many of the criticisms made of his performance were actually the result of disorganization and mismanagement within the Commission. In particular, plaintiff states that he was often the victim of conflicting orders and requests issued by Stevens, Thomas and defendant Fuchs. Rather than being discharged for incompetence, plaintiff alleges that he was discharged for racial reasons and for other non-job related reasons.
Plaintiff's allegations center around the hiring of Nina Solarz, the wife of Congressman Stephen Solarz. Defendant Fuchs' affidavit states that he only offered plaintiff a position after Mrs. Solarz had been offered and had rejected the job. (i. e., as between Mrs. Solarz and plaintiff, Mrs. Solarz was his first choice as Coordinator of Public and Congressional Affairs). Defendant Fuchs' affidavit also states that he succeeded in hiring Nina Solarz for the position "on or about December 17, 1979."[5] Plaintiff's affidavit states that on December 18, 1979 defendant Fuchs told him that he had decided to hire Mrs. Solarz, that he needed a slot in order to do so, and that he had decided to terminate plaintiff in order to make room for Mrs. Solarz. According to plaintiff's affidavit, defendant Fuchs named various staff members and explained why each could not be terminated to make room for Mrs. Solarz. In discussing one staff member, John Jones, plaintiff states that defendant Fuchs indicated he could not fire Mr. Jones because he was black.[6] On the basis of this conversation, which is not denied by defendant Fuchs,[7] plaintiff alleges that he was fired for racial considerations.
Prior to his termination, plaintiff was not given an opportunity for a hearing or an appeal. Although plaintiff was a federal employee, the legislation creating the Commission provided that the Commission could hire personnel without regard to civil service laws, rules and regulations.[8] Thus, plaintiff did not enjoy the procedural protections accorded civil service employees.
Plaintiff brings this action under the Due Process Clause of the Fifth Amendment against members[9] of the Commission, the United States, and Executive Director Fuchs individually and in his official capacity. Plaintiff alleges that he was denied a property interest in continued employment with the Commission and a liberty interest in obtaining other employment, both denials being in violation of due process procedural protections, and that he was discriminated against on the basis of race in violation of the Due Process Clause. Plaintiff seeks reinstatement, back pay, attorney's fees, costs, and exemplary damages of $50,000 against defendant Fuchs.
Defendants have moved for summary judgment, arguing that no liberty or property interest was infringed, that back pay and reinstatement are an inappropriate remedy, that sovereign immunity bars any award against the government and that official immunity bars any award against *112 defendant Fuchs, and that plaintiff was fired for job-related reasons adding up to substandard performance and not for racial considerations.
II. Legal Analysis
We begin with the well-established proposition that the mere fact of government employment, without more, does not of itself trigger any constitutional requirement that an individual be given a hearing or other procedural protections prior to dismissal. Cafeteria and Restaurant Workers Union, Local 473, AFL-CIO, et al. v. McElroy, et al., 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1960); Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959). In Vitarelli, the Supreme Court noted that an Interior Department employee who enjoyed no statutory protection under the Civil Service Act could be summarily discharged by the Secretary at any time without a reason being provided. Subsequent to these decisions, the Supreme Court increased the breadth of procedural protection under the due process clause. See Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). However, as this Circuit's Court of Appeals has noted, "... as a threshold requirement the plaintiff in a public employee dismissal case must show that he has either a legitimate entitlement with respect to his job, which would be protected as property under the Fifth or Fourteenth Amendments, or that his dismissal deprives him of a liberty interest protected by those constitutional provisions .... Only if the court first finds that a `liberty' or `property' interest is affected will it go on to a balancing of interest analysis to determine what level of procedural protection is appropriate." Mazaleski v. Treusdell, 562 F.2d 701, 709 (D.C.Cir. 1977).[10]
A. Plaintiff's "Property Interest" in Continued Employment
We turn to plaintiff's allegation that he was denied his property interest in continued employment with the Commission without due process of law as mandated by the Fifth Amendment. Plaintiff relies on Board of Regents v. Roth, supra, and its progeny for the proposition that his interest in continued employment with the Commission rose to the level of a constitutionally protected property interest requiring that he be afforded proper notice, a hearing, and a right of appeal prior to termination of his employment. We cannot agree.
As the court in Roth observed, "the procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits." Board of Regents v. Roth, supra, 408 U.S. at 576, 92 S.Ct. at 2708. Although constitutionally protected, these property interests are not created by the Constitution. "Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state lawrules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id. at 577, 92 S.Ct. at 2709. In the case of a public employee, rules or understandings establishing that an employee would lose his job only for a job-related reason give the employee a property interest in the position affording him procedural due process protections prior to dismissal.[11]Ashton v. Civiletti, 613 F.2d 923 (D.C.Cir.1979).
*113 It is undisputed in the instant action that plaintiff and other members of the Commission's staff who are not civil service employees do not enjoy the panoply of civil service procedural protections ordinarily accorded other federal workers.[12] It is also undisputed that no written contract exists which guarantees plaintiff employment with the Commission for a fixed term, or for a period of satisfactory job performance. Therefore, in order for plaintiff to have a property interest in his employment with the Commission, there must be a "mutually explicit understanding" supporting his claim of entitlement to continued employment. See Perry v. Sindermann, supra, 408 U.S. at 601, 92 S.Ct. at 2699. Such an understanding need not be embodied in a written contractual agreement. As the Supreme Court has noted:
A written contract with an explicit tenure provision clearly is evidence of a formal understanding that supports a teacher's claim of entitlement to continued employment unless sufficient `cause' is shown. Yet absence of such an explicit contractual provision may not always foreclose the possibility that a teacher has a `property' interest in re-employment. For example, the law of contracts in most, if not all, jurisdictions long has employed a process by which agreements, though not formalized in writing, may be `implied' .... Explicit contractual provisions may be supplemented by other agreements implied from `the promisor's words and conduct in the light of the surrounding circumstances.'
Perry v. Sindermann, supra, at 601-02, 92 S.Ct. at 2699-2700.
Plaintiff's affidavit asserts that such an understanding supporting his claim to continued employment arose from his conversation with defendant Fuchs on July 24, 1979, in which defendant Fuchs offered plaintiff the position of Coordinator of Public and Congressional Affairs, and from earlier conversations with defendant Fuchs. More specifically plaintiff's affidavit states:
During the conversation and several previous conversations he told me that among the reasons he was hiring me was because of my political background, in having run for public office and having a large number of contacts among office holders in the government and in the labor movement. He said that this was important because I would be responsible for lobbying the legislation which the Commission would be drafting and which would be submitted to the Congress of the United States in the spring of 1981. He indicated that he would probably not even be in Washington full time in the spring of 1981 and that I would be responsible for `walking the legislation through the Congress.' Dr. Fuchs told me that the life of the Commission would probably be extended sixty to ninety days because of the work involved in passing this legislation and he indicated that I would be one of the ones extended. On July 24, 1979 I accepted the offer made over the telephone by Dr. Fuchs. My wife was next to me during this conversation and overheard these conversations.
The affidavit of plaintiff's wife provides in relevant part:
2. I was with Harry Matthews when Lawrence Fuchs called him in Flagstaff on July 23, 1979,[13] and offered Harry a job with the Commission, and I heard most of what was said in the conversation.
3. Dr. Fuchs outlined the tasks he wanted Harry to perform with the Commission. He told Harry that Harry would be working on `the Hill' in order to `walk through' and `lobby' the legislation in the Spring of 1981. Dr. Fuchs said he would probably be gone by the Spring of 1981 but he would need Harry to be in Washington full time through the Spring of 1981.
For purposes of this motion for summary judgment, we accept as true the facts *114 alleged in both of these affidavits.[14] Even so, we cannot read these facts as providing a "mutually explicit understanding" that plaintiff would be employed by the Commission until the Spring of 1981, or that he would be employed by the Commission until the Spring of 1981 provided he satisfactorily performed his duties. We believe the only reasonable inference to draw from these affidavits is that defendant Fuchs was providing a description of the job he was offering plaintiff, and not that he was providing a guarantee of employment for a specified duration. The affidavit of plaintiff's wife in fact says just that: "Dr. Fuchs outlined the tasks he wanted Harry to perform with the Commission. He told Harry that Harry would be working on `the Hill' in order to `walk through' and `lobby' the legislation in the Spring of 1981." (emphasis supplied).
This reading follows naturally from the affidavits of Dr. Fuchs and plaintiff.[15] It is clear from these affidavits that the position for which plaintiff was hired was one requiring a person who was familiar with politics and the political process and who was skilled in communications. Because the encumbent of this position was to be responsible for dealing with Congress, the encumbent would be the one with responsibility for lobbying in Congress, in the Spring of 1981, legislation which the Commission would draft. Given these undisputed facts, we can only conclude, without more, that the job offer to plaintiff telling him that he will be lobbying legislation before the Congress in the Spring of 1981 is a job offer describing the duties of the position which he was being offered, not a job offer carrying with it a guarantee that he would be employed until the Spring of 1981. To hold otherwise would in effect be to say that the thousands of federal employees who, like plaintiff, enjoy no Civil Service procedural protections, are entitled to constitutionally-mandated due process procedural protections solely by virtue of the fact that their job description includes responsibility for work on a project which will not be completed until a certain date and they are summarily dismissed before that date. We believe that more than this is needed to invoke Constitutional due process procedural protections.
Plaintiff, however, offers no more. The affidavits of plaintiff and his wife do not claim that he was ever promised a position for a specified duration.[16] Rather, as plaintiff's complaint indicates, he is asserting that "he had a reasonable expectation that his employment would continue until the Commission's work was completed." However, as the Supreme Court stated in Perry v. Sindermann, supra, at 603, 92 S.Ct. at 2700, a mere subjective expectancy is not sufficient to invoke procedural due process protections. To have a property interest in his employment with the Commission, plaintiff "... clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Board of Regents v. Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709 (emphasis supplied). Here, plaintiff can point to no rules or mutually explicit understandings which are necessary to support his claim of entitlement if he is to invoke procedural due process protections.[17]
Plaintiff can point to no rules or regulations supporting his entitlement, since it is undisputed that in creating the Commission, *115 Congress specifically exempted employees hired by the Commission from any civil service procedural protections. As this Circuit's Court of Appeals has noted in referring to a similar statutory provision excepting FBI employees from civil service regulations relating to selection and tenure, "[s]tanding alone, the exception could suggest to an employee that he held his job at the sufferance of his employer." Ashton v. Civiletti, et al., supra, at 930. However, in Ashton, the court found that this exception did not stand alone, but that the FBI had clearly conveyed to the employee in that case that he had an expectation of continued employment as long as he performed his duties satisfactorily. For example, the court noted that in commenting on the meaning of this statutory exception, the FBI handbook issued to new employees said that what the new employee gave up was "any competitive status which you may have acquired previously." Id. The court found it significant that this explanation did not provide that employees were also giving up civil service protections against arbitrary dismissal. In the instant case, unlike in Ashton, there was no attempt to explain what rights would be forfeited by employees hired by the Commission.[18] More importantly, the court in Ashton specifically found that the handbook issued to Ashton and other employees provided that an employee in Ashton's position did not hold a position of limited duration but that such an employee "may assume that [his] position is secure, if [he] continue[s] to do satisfactory work." Id. at 929. As the court noted in referring to this provision: "[t]he Bureau could hardly have conveyed more precisely the understanding that appellant did not hold his position at the whim of his superiors and that he would lose his position only for behavior which impaired his efficiency or that of the Bureau." Id. No such explicit guarantee appears in the instant case, and plaintiff alleges none.
All plaintiff alleges is that he had an expectancy in continued employment with the Commission until the Commission's work was completed because he was described and offered a position with duties to be performed by the encumbent of that position in the Spring of 1981. Without more, and plaintiff alleges no more, we cannot find that plaintiff is able to escape summary judgment on this issue.
B. Plaintiff's "Liberty Interest" In Obtaining Other Employment
Plaintiff next alleges that his liberty interest in seeking other employment was infringed by his termination, and that he is entitled to procedural due process protections. Again, we must disagree.
The Supreme Court made clear in Roth that a government's action in terminating or not rehiring a non-tenured employee could take place under circumstances infringing an employee's constitutional right to liberty, requiring that the employee be accorded due process protections of notice and a right to a hearing. The court in Roth envisioned two general ways in which such an infringement of liberty could occur. The first is by injury to reputation. The government's reasons for deciding to terminate or not to rehire the employee could so stigmatize the employee that he has a right to notice and a hearing so that he may have an opportunity to clear his name. The second is by foreclosing future employment opportunities. The government could impose on the employee a disability foreclosing his freedom to take advantage of other employment opportunities. Plaintiff fails to allege facts bringing him under either of these categories.
The court in Roth indicated the scope of "reputational" injury in finding *116 that a university teacher who was not rehired for a subsequent year was not so stigmatized that his liberty interest was infringed:
The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. Had it done so, this would be a different case. For `[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.' Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515.
Board of Regents v. Roth, supra, 408 U.S. at 573, 92 S.Ct. at 2707. In the instant case, plaintiff does not allege that he has been accused of dishonest or immoral behavior. Rather, the charges against plaintiff, which he challenges, are that he was discharged because he failed to properly and competently perform his duties. As this Circuit's Court of Appeals has noted, charges of substandard performance do not amount to accusations of dishonesty or immorality or anything remotely approaching the nature of the degrading and unsavory stigmas which would expose an employee to public embarrassment and ridicule. Mazaleski v. Treusdell, supra, at 712, n. 28. Furthermore, plaintiff does not allege that defendants have conveyed the reasons for his discharge to others, which is a necessary element of proof if plaintiff is to prevail on a theory of reputational injury. Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684 (1976).[19]
Therefore, if plaintiff's liberty interests have been infringed, it must be because defendant's actions foreclosed his freedom to take advantage of other employment opportunities. However, a dismissal or a failure to rehire an employee, without more, does not infringe a liberty interest. "It stretches the concept too far to suggest that a person is deprived of `liberty' when he simply is not rehired in one job but remains as free as before to seek another." Board of Regents v. Roth, supra, 408 U.S. at 575, 92 S.Ct. at 2708. Furthermore, the dismissal must actually foreclose employment opportunities, not merely make an applicant less attractive to a prospective employer. "Mere proof, for example, that his record of nonretention in one job, taken alone, might make him somewhat less attractive to some other employers would hardly establish the kind of foreclosure of opportunities amounting to a deprivation of `liberty.'" Id. at 574, 92 S.Ct. at 2707. This Circuit's Court of Appeals has held that dismissal from a government position for substandard performance and insubordination does not foreclose an employee's job opportunities. "The barrier of which appellant complains is a practical, not legal, one, however. He argues rather that he has been deprived of liberty since disclosure of the reasons for his termination to prospective employers would `impair his ability to find other employment in his chosen field' .... To infringe one's liberty, the effect of government action on future employment must extend beyond a disadvantage or impediment ...." Mazaleski v. Treusdell, supra, at 713.
We therefore conclude as a matter of law that plaintiff has suffered no infringement of any liberty interest sufficient to invoke constitutional due process procedural protections.
C. Plaintiff's Allegation of Racial Discrimination
Plaintiff's complaint also alleges that he was denied due process of law as mandated by the Fifth Amendment because his termination was influenced by racial considerations. We find that plaintiff has raised a genuine issue of material fact requiring a trial on this issue.
*117 Unlike the Fourteenth Amendment, the Fifth Amendment contains no express equal protection clause. However, the Supreme Court "has held that the Due Process Clause of the Fifth Amendment forbids the federal government from denying equal protection of the laws." (citations omitted). Vance v. Bradley, 440 U.S. 93, 95, n. 1, 99 S.Ct. 939, 942 n. 1, 59 L.Ed.2d 171 (1979). "Thus, if a classification would be invalid under the Equal Protection Clause of the Fourteenth Amendment, it is also inconsistent with the due process requirement of the Fifth Amendment." Johnson v. Robison, 415 U.S. 361, 364-65, n. 4, 94 S.Ct. 1160, 1164, 39 L.Ed.2d 389 (1974). It is therefore clear that a claim for racial discrimination is cognizable under the Fifth Amendment Due Process Clause. The equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment. Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 670, 46 L.Ed.2d 659 (1976).
Plaintiff's two affidavits offer slightly different versions of the factual allegation of racial discrimination. Plaintiff's affidavit of May 18, 1980 states:
On December 18, 1979, Dr. Fuchs told me that ... he had decided to hire Nina Solarz, the wife of Congressman Stephen Solarz, and that he needed a slot in order to do so. He said all signs point to me as the one who has to go. He said it was obvious that Sandra Stevens could not manage public affairs. He said that he could not let Elaine Daniels go because she did not make enough money. Tom Surh, he said, was too new. John Jones was a lawyer and black, and Fuchs said that is very important.
Plaintiff's supplemental affidavit of May 18, 1980 states:
On December 18, 1979, Dr. Fuchs told me that he was unhappy with John Jones but he could not fire him because `he is black, and that is so very important.'
The affidavit of defendant Fuchs states that "[t]he final decision to terminate Dr. Matthews was never predicated upon racial or political preference but an evaluation of his work performance." Affidavit of Dr. Lawrence Fuchs, ¶ 12. However, the affidavit of defendant Fuchs does not deny that he made the statements plaintiff alleges.
Proof of a racially discriminatory intent or purpose is necessary to show a violation of the Equal Protection Clause. Village of Arlington Heights, et al. v. Metropolitan Housing Development Corp., et al., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977). A racially discriminatory intent need not be the sole basis of the complained of action. However, it is necessary to prove for plaintiff that a racially discriminatory purpose was a motivating factor in the decision. Id. at 265-66, 97 S.Ct. at 563. Taking as true the undisputed statements attributed to defendant Fuchs by plaintiff in his affidavit, we find that plaintiff has raised a genuine issue of material fact as to whether a racially discriminatory purpose was a motivating factor in his termination from the Commission by defendant Fuchs. We therefore deny defendants' motion for summary judgment on this issue.[20]
*118 An order consistent with the foregoing has been entered this day.
NOTES
[1] P. L. 95-412, 8 U.S.C. § 1151 note (1978 Supp.).
[2] Section 4(d)(7) of P. L. 95-412, as amended by P. L. 96-132, § 23 Nov. 30, 1979, 8 U.S.C. § 1151 note (1980 Supp.).
[3] Id., § 4(h).
[4] This information is contained in plaintiff's affidavit of May 18, 1980, at ¶ 2. The affidavit of plaintiff's wife, at ¶¶ 2, 3, states that plaintiff was offered the job by a telephone call from defendant Fuchs on July 23, 1979, that plaintiff accepted the job and that he agreed to report to work on August 15, 1979. As between these two dates, we will accept the version given in plaintiff's affidavit, since he indicated the day and the date the offer was made and since the difference between these two dates is not material. However, the affidavit of defendant Fuchs, at ¶ 2, states that plaintiff was "hired" on August 15, 1979. To further confuse matters, Plaintiff's Counter-Statement of Facts in Opposition to Defendant's Motion for Summary Judgment, at 1, states that the "final job offer" to plaintiff was made August 15, 1979. (Plaintiff apparently started work on August 15, 1979. Affidavit of Dr. Lawrence Fuchs, at ¶ 5; Affidavit of Dr. Harry Matthews, ¶ 3). This represents a greater discrepancy. However, we will accept as true for purposes of this motion for summary judgment the facts as alleged in plaintiff's affidavits. Nevertheless, we admit to being troubled that plaintiff's counsel either was not aware of the conflicting material on this point which he submitted to this court, or that he was aware of the conflicts and felt no obligation to provide this court with any clarification or explanation.
[5] Affidavit of Dr. Lawrence Fuchs, ¶ 2.
[6] Plaintiff's affidavits contain two slightly different versions of this conversation, which are discussed below.
[7] Defendant Fuchs' affidavit denies that the decision to terminate plaintiff was based on racial or political preference.
[8] Section 4(e)(1), 8 U.S.C. § 1151 note.
[9] The Commission is comprised of the Secretary of State, the Attorney General, the Secretary of Labor, the Secretary of the then Health, Education and Welfare, four members of the Senate Judiciary Committee, four members of the House Judiciary Committee and four individuals appointed by the President.
[10] In Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), a majority of the court concluded that the Fifth Amendment Due Process Clause does not require pretermination procedures when the statute establishing an employee's property interest in the job required only post-termination procedures.
[11] Of course, if these rules or understandings gave an employee tenure or a clearly-defined term of employment, procedural due process protections would also attach. See Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).
[12] See § 4(e)(1), 8 U.S.C. § 1151 note.
[13] See fn. 4.
[14] The affidavit of defendant Fuchs asserts that he never offered plaintiff employment for the duration of the Commission and that at staff meetings after plaintiff was hired he again made it clear that no one had any tenure or was assured of continued employment.
[15] It is also consistent with the fact that Commission employees were not employees under Civil Service and lacked tenure.
[16] Plaintiff's Counter-Statement of Facts, at 1, alleges that plaintiff was "promised" a job for the life of the Commission. However, no evidentiary support is cited for this assertion, and we can find none in the record. Mere allegations even in an affidavit, unsupported by specific facts, are insufficient to resist a motion for summary judgment. Rule 56(e), Fed.R.Civ.P.
[17] See Perry v. Sindermann, supra, 408 U.S. at 601, 92 S.Ct. at 2699.
[18] Section 4(e)(1), 8 U.S.C. § 1151 note, does provide that any federal employee subject to civil service laws, rules and regulations may be detailed to the Commission without reimbursement, and such detail shall be without interruption or loss of civil service status or privilege. However, the legislation does not indicate that an employee hired by the Commission only loses some of the usual civil service protections, and we can find no such indication in the legislative history. Similarly, the parties have not directed our attention to any Commission rule or regulation bearing on this issue.
[19] Public disclosure of the reasons in a judicial proceeding commencing after the alleged injury for which the plaintiff seeks redress cannot provide retroactive support for his claim. See Bishop v. Wood, supra, at 348, 96 S.Ct. at 2079.
[20] Defendants' Motion for Summary Judgment also argues that plaintiff's claim for reinstatement and back pay is barred by the doctrine of sovereign immunity and that plaintiff's claim against defendant Fuchs is barred by the doctrine of official immunity. We find it unnecessary to express any view on these arguments at this time. Counsel will be required to brief these issues in preparation for trial in light of the Supreme Court's holding in Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). Although plaintiff's complaint is silent as to any alleged violation of First Amendment rights, Plaintiff's Points and Authorities in Opposition to the Defendants' Motion for Summary Judgment, at 6, alleges that plaintiff's First Amendment rights were violated because defendant Fuchs allegedly fired plaintiff for political reasons. In support of this allegation, plaintiff offers only his statement in his affidavit that defendant Fuchs said "that it was good that Nina Solarz was coming on because her husband was to announce his support for President Carter in the near future." Affidavit of Dr. Harry Matthews, ¶ 26. We are somewhat puzzled by plaintiff's allegation of a First Amendment violation on the basis of this allegation. See Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Branti v. Finkel (and Alan Tabakman), 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). However, at this time we do not consider this issue, since this allegation is not contained in plaintiff's complaint. If, after further research, plaintiff determines he has a cognizable First Amendment claim, he may move for leave of court to amend his complaint.
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541 S.E.2d 398 (2000)
246 Ga. App. 417
HENSLEY et al.
v.
HENRY.
No. A00A1241.
Court of Appeals of Georgia.
October 17, 2000.
*399 Joseph E. Willard, Jr., Rossville, for appellants.
Little, Bates, & Kelehear, L. Stephen Kelehear, Dalton, Michael J. Tuck, Chatsworth, for appellee.
PHIPPS, Judge.
A jury determined that William Henry was entitled to a private way by necessity over land owned by Augustine Hensley, Jeff Hensley, and Linda Weaver. On appeal, the Hensleys and Weaver claim that (1) the evidence did not establish a private way by necessity; (2) the compensation awarded to them was insufficient; (3) the court erred by denying a motion for mistrial based on an improper jury view; and (4) the court erred by allowing two jurors to testify orally and impeach the verdict. We disagree and affirm.
Henry owns 76 acres of land in Murray County that he inherited from his mother in 1987. She had inherited the property from her father in 1978. Henry's mother had used Jonas Road (located on land owned by the Jonas family) exclusively to access the property. When Henry first obtained the property, he also used Jonas Road for access. The only other established road that accesses the property is a field road known as Weaver Road.
In 1993, Henry was denied access to Jonas Road. He sued to regain access. Weaver *400 intervened in that action, seeking to preclude Henry from gaining access to Weaver Road if he was prohibited from using Jonas Road. The trial court ruled that Henry was precluded from using Jonas Road but had an easement over Weaver Road. Weaver appealed to this court, and we held that Henry had failed to prove that he had a prescriptive easement over Jonas Road, that the easement his mother had been given to use Weaver Road was extinguished by the terms of her father's will, and that he had abandoned any existing right he may have had to use Weaver Road.[1] In a separate lawsuit, Henry again sought access to Jonas Road by claiming a private way by necessity. The trial court denied Henry's claim and suggested that Weaver Road "remains a viable physical alternative."
Henry was given permission to use Weaver Road for a brief time to harvest hay in one of his fields. During that time, one of Henry's sons threatened Augustine Hensley's 88-year-old father with physical harm, someone poisoned his dog with antifreeze, and beer cans were scattered on the road. There was no evidence that Henry was the cause of these incidents, but they ceased when permission to use the road was withdrawn.
Henry filed an action against the Hensleys and Weaver to obtain a private way by necessity over Weaver Road. The access Henry sought came within approximately 25 feet of the front door of the house occupied by Augustine Hensley's elderly parents. Her mother has only one lung and is severely affected by dust and fumes from tractors or other vehicles.
Henry hired a real estate appraiser to appraise an easement that would allow him to use Weaver Road to access his property. Without actually viewing the property, the appraiser valued the easement at $2,300.
The Hensleys and Weaver hired their own real estate appraiser, who valued the easement at $9,200. The appraiser valued the cost of improvements to the road that he deemed necessary to maintain it at $6,440. He also determined that the value of the houses on either side of the road would be decreased by $5,000 each if the private way was granted, making the total value of the property sought by Henry equal to $25,600.
At trial, James Wilson, a surveyor familiar with the area, testified that Weaver Road was the only reasonable access to Henry's property, other than Jonas Road. He admitted that there were several other routes to the Henry property that were not existing roads.
The Hensleys and Weaver presented evidence that the private way sought by Henry would be accessible only six months of the year because the creek he would have to cross becomes impassable, even with a tractor, for the remainder of the year. Henry responded that he would "just have to deal with the creek." The Hensleys and Weaver also presented evidence of alternate routes to the Henry property. One route would not require crossing a creek, but would require that a road be built across land belonging to the Jonas family. The other potential route would be shorter than the Weaver Road access, but would require crossing the same creek at a deeper point over property owned by the Hicks family.
The jury determined that the private way over Weaver Road was both necessary and reasonable, awarded Henry a 20-foot easement across the lands of the Hensleys and Weaver, and decided that Henry should pay $6,000 as just and adequate compensation for the easement. The jury altered the route of the private way so that it did not go in front of the house occupied by Augustine Hensley's parents.
1. The Hensleys and Weaver contend that the evidence did not establish a private way by necessity over Weaver Road because it is flooded six months of the year and because two alternate routes exist.
We review this claim under the "any evidence" rule and must construe the evidence in favor of upholding the verdict.[2] We must affirm a jury's verdict that has the approval of the trial court if there is any evidence to support it because "`the jurors are the sole *401 and exclusive judges of the weight and credit given the evidence.'"[3]
Pursuant to OCGA § 44-9-40(a), the superior court has jurisdiction to grant private ways to individuals to go to and from their property. In order to prove the necessity of a private way, OCGA § 44-9-40(b) requires the condemnor to show that he has no reasonable means of access to his property.[4] Where the condemnor proves that he has no access to his property, i.e., that it is landlocked, he makes out a prima facie case of necessity under the statute.[5] The burden then shifts to the condemnee to prove that the condemnor has a reasonable means of access to the property.[6]
Henry presented some evidence that he was landlocked and had no access to his property. Augustine Hensley also testified that Henry was landlocked and had no way to get to his property. Henry therefore made out a prima facie case of necessity.
The burden then shifted to the Hensleys and Weaver to show that Henry had a reasonable means of access to the property. Although they did introduce evidence of two other potential routes to the Henry property, one would require construction of a new road and the other would require crossing the same creek that Weaver Road crosses at a deeper point. We find that there was at least some evidence upon which the jury could conclude that the Weaver Road access was the only reasonable access to the property. The fact that access to the road may be difficult when the creek rises is a matter that Henry has testified he is willing to address and is not sufficient reason to deny him access to the road.
Although not set forth as a separate claim of error, we note the concern of the Hensleys and Weaver that Henry's use of their property during the wet seasons may cause damage to the road. Pursuant to OCGA § 44-9-45, Henry or his successor in title must maintain the private way and keep it open and in good repair. Failure to do so for a period of one year will cause title to the private way to revert back to the Hensleys and Weaver.
2. The Hensleys and Weaver claim that the compensation awarded by the jury was inadequate and against the weight of the evidence. We review this claim under the "any evidence" rule set forth above.[7]
The parties presented expert testimony as to the value of the easement, ranging from $2,300 to $9,200. The expert for the Hensleys and Weaver added additional damages, which he testified resulted in a total value of $25,600.
Expert testimony is intended to aid the jury in reaching the correct conclusion on a particular issue, but the jury is not bound by the expert's opinion and is entitled to give the testimony such credence as it deems appropriate.[8] The jury here was so instructed and may have decided that neither expert's opinion was an accurate estimate of the value of the easement. We find that the jury's award of $6,000 as the value of the easement was within the range of the evidence.
3. During jury deliberations, the jury requested an opportunity to view the property at issue. After the judge conferred with counsel and everyone agreed to the jury view, the jurors, the judge, all counsel, a bailiff and the court reporter boarded a bus and visited the property discussed during the trial.
The Hensleys and Weaver moved for a mistrial after returning from the jury view, claiming that it had allowed the jury to gather evidence on their own and that it was prejudicial because the jurors exited the bus to view the Weaver Road route but did not do so for the alternate routes they had proposed. They also noted that the jurors had *402 had private discussions about one of the alternate routes. The judge denied the motion, explaining that everyone had agreed to the jury view, no one had objected during the jury view despite the availability of the court reporter, the bailiff had been with the jurors at all times, they had not obtained permission from the landowners of the alternate routes to go on their property, and the view had been helpful to the jury in arriving at a decision.
The Hensleys and Weaver claim that the jury view was not controlled and that the jurors were allowed to gather additional evidence. They also take issue with the court's failure to issue curative instructions regarding the view and the private discussions among the jurors. Finally, they complain about the court's failure to instruct the jury that a view is not evidence.
There are at least two types of jury views. The "evidentiary view" is designed to allow the jury to view evidence introduced in the case that is too large or affixed and cannot be brought into the courtroom.[9] The "scene view" allows the jury to view the premises relevant to the case to better understand the testimony and evidence introduced in court.[10] A view of the scene is not evidence in the case.[11]
The jury view here was a scene view, which merely allowed the well-supervised jurors to see the property discussed during trial and depicted in photographs introduced as evidence, a substantial number of which were devoted to the Weaver Road access. We find no evidence or danger of "the intentional gathering of extra-judicial evidence, highly prejudicial to [the Hensleys and Weaver], by members of the jury and the communication of that information to the other jurors in the closed jury room."[12]
We find no error in the trial court's failure to issue curative instructions after the motion for mistrial. Initially, we note that counsel never requested curative instructions. Because we find no error in the manner in which the jury view was conducted, curative instructions were not necessary with respect to the jury's decision to leave the bus to view the Weaver Road access.
With respect to the communications among the jurors, we find that any objection has been waived. Despite the presence of the court reporter, counsel failed to make any objection to the discussion during the jury view and never requested curative instructions at any time.[13]
Finally, the Hensleys and Weaver never requested that the court instruct the jury that the jury view was not evidence. The trial court had no duty, on its own motion, to instruct the jury that the view was not to be considered as evidence.[14]
4. After the jury's verdict and the court's entry of judgment, Henry filed a motion to amend the judgment based on his assertion that the judgment did not accurately describe the 20-foot easement awarded by the jury. Henry claimed that the judgment reduced the easement to ten to twelve feet, based on the survey of the road. After conducting a hearing and allowing testimony from two of the jurors, the court granted Henry's motion and amended the judgment to provide for a 20-foot easement from beginning to end.
The Hensleys and Weaver claim that the jurors' testimony improperly impeached their verdict, contrary to the rule set forth in OCGA § 9-10-9 that affidavits of jurors may be taken to sustain but not to impeach their verdict. The prohibition against impeaching a verdict extends to oral testimony offered at *403 a hearing.[15] But a juror's affidavit (or testimony) will be allowed to explain a verdict in an attempt to sustain it.[16]
Here, the jury verdict awarded Henry "a private way across the lands of the defendants with an easement 20 feet in width, following a course as shown on attached endorsements." The attached endorsements included a map diagraming the route of the private way and a description of the route, which also provides for a 20-foot easement. The Hensleys and Weaver rely on language in the description providing that, at one point, the easement shall follow the road as shown on the plat. Because the road as shown on the plat is less than 20 feet wide, they contend that the jury intended for the easement to narrow to the same width.
Both jurors testified that they intended for the entire easement to be 20 feet wide and one stated that he did not know the width of the road as shown on the plat. Based on the language of the verdict and the jurors' consistent testimony, it seems clear that the jury intended to provide for a 20-foot easement from start to finish. The trial court properly considered the jurors' testimony and amended the judgment accordingly.
Judgment affirmed.
JOHNSON, C.J., and SMITH, P.J., concur.
NOTES
[1] Weaver v. Henry, 222 Ga.App. 103, 104-106(2), (3)(b), 473 S.E.2d 495 (1996).
[2] Cohen v. Lowe Aviation Co., 221 Ga.App. 259, 260(1), 470 S.E.2d 813 (1996).
[3] (Citation omitted.) Id.
[4] Kellett v. Salter, 244 Ga. 601, 602(1), 261 S.E.2d 597 (1979).
[5] Int'l Paper Realty Corp. v. Miller, 255 Ga. 676, 677, 341 S.E.2d 445 (1986).
[6] Id.
[7] Cohen, supra.
[8] Hambrick v. Makuch, 228 Ga.App. 1, 3(2)(b), 491 S.E.2d 71 (1997).
[9] Jordan v. State, 247 Ga. 328, 345(9), 276 S.E.2d 224 (1981).
[10] Id.
[11] Id.
[12] (Citations and punctuation omitted.) Forney v. State, 255 Ga. 316, 320(7), 338 S.E.2d 252 (1986).
[13] Sims v. Majors, 178 Ga.App. 679, 681(3), 344 S.E.2d 501 (1986) (objection to private discussions among jurors during jury view waived when not made promptly where both counsel were present at jury view).
[14] Harper v. State, 182 Ga.App. 760, 761(2), 357 S.E.2d 117 (1987); Kilgore v. State, 251 Ga. 291, 303(6), 305 S.E.2d 82 (1983).
[15] PIE Nationwide v. Prickett, 189 Ga.App. 77, 374 S.E.2d 837 (1988).
[16] Perryman v. Rosenbaum, 205 Ga.App. 784, 785-786(2)(a), 423 S.E.2d 673 (1992).
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-8137
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CURTIS DEVON HARRIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
Chief District Judge. (5:08-cr-00156-D-1; 5:12-cv-00030-D)
Submitted: May 23, 2013 Decided: May 28, 2013
Before MOTZ and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Curtis Devon Harris, Appellant Pro Se. Jane J. Jackson,
Jennifer P. May-Parker, Assistant United States Attorneys,
Michel Gordon James, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Curtis Devon Harris seeks to appeal the district
court’s order denying relief on his 28 U.S.C.A. § 2255 (West
Supp. 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) (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 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 Harris 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
2
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED
3
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NO. 07-03-0210-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MARCH 25, 2005
______________________________
JIMMIE W ILLIAMSON, ET AL., APPELLANTS
V.
BETTY COOK AND DENNIS COOK, APPELLEES
_________________________________
FROM THE DISTRICT COURT OF JASPER CO UNTY;
NO. 21,314; HONORABLE JOE BOB GOLDEN, JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
Appellants Jim mie W illiam son, his wife Mary W illiamson, and Gary Gatlin, trustee
(collectively W illiamson) challenge the trial court’s judgment setting aside two trustee’s
deeds on private foreclosures dated June 1, 1999 and August 3, 1999, and awarding
W illiamson the sum of $125,000 and appellees Betty Cook and Dennis Cook $75,000 from
$200,000 in fire insurance proceeds tendered to the clerk of the court. By points one, two,
three, and four, W illiamson contends the trial court erred in submitting questions one, two,
and three. By his remaining points, he contends 5) the evidence was factually insufficient
to support the jury findings to all the points, 6) the trial court erred in refusing his requested
questions 1 through 6; 7) there was no evidence to show that he did not demand any
excessive amounts from the Cooks, 8) there was no evidence that he refused to accept the
pay-off amount of $122,104.57 in April or May 1999, and 9) there was no evidence for the
court to render judgment based upon the “fair” division of the $200,000 insurance proceeds.
W e affirm.
On February 17, 1995, the Cooks executed a prom issory note in the amount of
$117,000 payable to Jim mie Elwin W illiam son and Mary Eilene W illiamson in m onthly
installments with a final balloon payment. Payment of the note was secured by a vendor’s
lien and deed of trust. W hen the Cooks were unable to make the payments, the parties
agreed they would sign a new note for $115,835.66. However, the Cooks defaulted on the
new note. After the posting of a notice of foreclosure and filing of bankruptcy by the Cooks,
W illiamson comm enced efforts to collect the balance by private foreclosure or otherwise.
During this phase, Dennis Cook converted his chapter 13 bankruptcy to a chapter 7
proceeding. On June 1, 1999, the trustee executed a deed upon private foreclosure
conveying the undivided interest of Dennis Cook to W illiamson. Then, on August 3, 1999,
2
the trustee executed a deed upon private foreclosure conveying the undivided one-half
interest in the property of Betty Cook to W illiamson.
After the August 3 trustee’s sale, the Cooks filed an original petition to set aside the
two trustee’s sales and sought a declaration that no default existed. Among other things,
they alleged the parties had agreed the Cooks would be given time to obtain other financing
and were not in default. Before W illiamson filed his answer, the residence on the property
was totally destroyed by a fire on October 17, 1999. Williamson answered by general denial
but did not seek affirmative relief nor allege any defenses. After a question of arson was
settled, the fire insurance company interplead $200,000 subject to judgm ent of the court. 1
Thereafter, neither party amended nor supplemented their pleadings to state claims for
relief or address the appropriate disposition of the insurance proceeds.
After presentation of the evidence, the trial court denied W illiamson’s six requested
issues and submitted three questions to the jury. 2 The jury found (1) the am ounts claimed
1
The parties do not provide any information regarding the settlement with the
insurance company on the fire loss. Moreover, the record does not include the terms of the
settlement between the parties and the insurance company or any pleadings, orders, or
other information regarding the deposit of $200,000 into court or conflicting claims thereto.
2
Question One. W ere the amounts being claimed by W illiamson at the time of the
foreclosure sales on June 1, 1999 and August 3, 1999 excessive?
Question Two. Did W illiamson refuse to accept the pay-off amount of $122,104.57
in April or May of 1999?
Question Three. W hat is the fair division of the $200,000.00 insurance settlement
money?
3
by W illiamson were excessive, (2) W illiamson refused to accept a pay-off of $122,104.57
in April or May 1999, and (3) disbursement of $75,000 to Betty Cook and $125,000 to
W illiamson would be “the fair division” of the $200,000. By its judgment, the trial court set
aside the trustee’s deeds of June 1, 1999 and August 3, 1999, and ordered that W illiamson
recover $125,000 plus accrued interest, and Betty Cook be awarded $75,000 plus accrued
interest.
W e first note the rules applicable to our review of this appeal. As a court of appeals,
we may not reverse a trial court’s judgment in the absence of properly assigned error. See
San Jacinto River Authority v. Duke, 783 S.W .2d 209, 210 (Tex. 1990). It is well settled that
an appellate court should not decide a case on a theory different from that on which it was
plead and tried. American Mut. Liability Ins. v. Parker, 144 Tex. 453, 191 S.W .2d 844, 848
(1945) (on reh’g); El Paso Environ. Systems v. Filtronics, 609 S.W .2d 810, 813
(Tex.Civ.App.--El Paso 1980, writ ref’d n.r.e.). Pleadings frame the issues for
determination. See Murray v. O & A Express, Inc., 630 S.W .2d 633, 636 (Tex. 1982). Thus,
we will consider the issues raised by written pleadings and in the context of the theory on
which the case was tried.
Addressing W illiamson’s issues in a logical rather than sequential order, we first
consider points four and nine,3 by which he asserts error in the submission of question three
3
Issue nine is the same as issue four.
4
and point six, by which he asserts trial court error in denying his requested six issues.4
W illiamson suggests that question three should have been submitted as per his question
six, to-wit: what sum of money is owed to W illiamson by the Cooks on the note in question.
W e disagree.
Under Rules 277 and 278 of the Texas Rules of Civil Procedure, the trial court shall
subm it the questions to the jury upon broad form questions which are raised by the written
pleadings and the evidence. Submission of questions is a matter within the discretion of
the trial court and its discretion is subject only to the requirement that the questions
submitted must (1) control the disposition of the case, (2) be raised by the pleadings and
the evidence, and (3) properly submit the disputed issues for the jury’s determination. See
Lee-W right, Inc. v. Hall, 840 S.W .2d 572, 577 (Tex.App.--Houston [1 st Dist.] 1992, no writ);
Lesser v. Allums, 918 S.W .2d 81, 87 (Tex.App.--Beaumont 1996, no writ).
Because the am ount owing on the promissory note was not raised by the written
pleadings of either party, the trial court did not err in denying the six issues requested by
W illiamson. Dion v. Ford Motor Co., 804 S.W .2d 302, 310 (Tex.App.--Eastland 1991, writ
denied). W illiam son does not present any legal authority governing the allocation of
4
Six issues summarized as
1. Do you find that the Cooks were not in default?
2. and 3. Do you find that the Cooks were not in default of any obligation or
covenant owed to W illiamson at the time of the two foreclosures?
4. and 5. Did W illiamson make an excessive demand on August 3, 1999 and
May 1999?
6.W hat sum of money is owed to W illiamson by the Cooks?
5
insurance proceeds in this type situation. Moreover, in the absence of evidence to show
the terms of the settlement agreement with the insurance company upon which the funds
were tendered into court and the absence of pleadings stating the claims of the parties, we
are unable to hold the trial court abused its discretion in submitting question three as
submitted. Points of error four, six, and nine are overruled.
By point five, Williamson contends the trial court erred in entering judgment based
upon the jury’s findings to special issues because the evidence is factually insufficient to
support the jury’s findings to all of the issues submitted. Although the point was presented,
it is not developed nor argued in the body of the brief. Accordingly, his contention is waived.
W arehouse Partners v. Gardner, 910 S.W .2d 19, 26 (Tex.App.--Dallas 1995, writ denied);
Howell v. T S Com munications, Inc., 130 S.W .3 515, 518 (Tex.App.--Dallas 2004, no pet.).
Point of error five is overruled.
By his remaining points one, two, three, seven, and eight, W illiamson contends there
was no evidence, or alternatively, the finding was against the great weight and
preponderance of the evidence that he claim ed excessive dem ands in connection with the
private foreclosures sales in June and August 1999, or that he refused to accept the pay-off.
W illiamson did not, by special exception or otherwise, challenge the sufficiency of
the Cooks’ pleading to raise sufficient grounds, which according to substantive law, would
6
be sufficient to authorize the trial court to set aside the trustee’s deeds.5 Here, W illiamson
does not challenge the trial court’s action in setting aside the trustee’s deeds nor submit any
legal authority to support any argument that the trial court erred in doing so. Accordingly,
since question three was not conditionally submitted, the answers to questions one and two
do not have any application to the division of the $200,000.
Moreover, before we may reverse a judgment and order a new trial we must find that
the error complained of amounted to such a denial of W illiamson’s rights as was reasonably
calculated to cause and probably did cause the rendition of an improper judgment or
prevented him from presenting the case on appeal. Tex. R. App. P. 44.1. In Dennis v.
Hulse, 362 S.W .2d 308, 309 (Tex. 1962), the Court held that an appellant must show the
error probably did cause the rendition of an improper judgm ent. See also Knight v. Hicks,
505 S.W .2d 638, 644 (Tex.App.--Amarillo 1974, writ re’fd n.r.e.); Aquamarine Associates
v. Burton Shipyard, 645 S.W .2d 477, 482 (Tex.App.--Beaumont 1982), aff’d, 659 S.W .2d
820 (Tex. 1983). In Lorusso v. Mem bers Mut. Ins. Co., 603 S.W .2d 818, 820 (Tex. 1980),
the Court held that the harmless error rule applies to all errors in that it draws no distinction
as to the type of errors involved in its requirement for reversal. Notwithstanding Rule 44.1
and the applicable cases, W illiamson does not present a challenge to the trial court’s action
in setting aside the trustee’s deeds or otherwise demonstrate that any alleged error was
reversible. Accordingly, points one, two, three, seven, and eight are overruled.
5
Because the record does not show that any exceptions were brought to the attention
of the trial judge per Tex. R. Civ. P. 90, any defects in the pleadings were waived.
7
Having overruled all of W illiamson’s points, the judgment of the trial court is affirmed.
Per Curiam
Johnson, C.J., not participating.
8
| {
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29 So.3d 298 (2010)
DANIEL
v.
STATE.
No. 2D09-3963.
District Court of Appeal of Florida, Second District.
February 3, 2010.
Decision Without Published Opinion Affirmed.
| {
"pile_set_name": "FreeLaw"
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Affirmed and Opinion filed February 15, 2007
Affirmed and Opinion filed February 15, 2007.
In The
Fourteenth Court of
Appeals
____________
NO. 14-06-00265-CR
NO. 14-06-00266-CR
____________
HIJINIO TREVINO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd
District Court
Harris County, Texas
Trial Court Cause Nos. 1006221
& 1006222
O P I N I O N
Appellant pled guilty to two charges of burglary of a
habitation and the trial court sentenced him to ten years= probation on each
case. The trial court subsequently granted the State=s motion to revoke
probation in both cases and sentenced appellant to eight years= confinement on
both charges, the sentences to run consecutively. We affirm.
Background
The State=s motion to revoke probation alleged that
appellant violated the terms of his probation by failing to satisfy several
administrative conditions of probation and by committing another offense
against the State of Texas. After hearing the testimony of the investigating
officers, the complainants in the second offense, and the community supervision
officer, the trial court found that appellant committed another offense against
the State of Texas and revoked appellant=s probation.
In six points of error, appellant contends (1) the trial
court erred in admitting evidence over hearsay and confrontation clause
objections, (2) the evidence is not sufficient to support the finding that appellant
committed another offense, and (3) the trial court abused its discretion in
ordering appellant to serve his sentences consecutively.
Three college students, Tim Sims, Michael Hoetzlein, and
Michael Nestico, were vacationing in South Padre Island when they were robbed
at gunpoint by appellant and two co-defendants. The complainants were walking
from a restaurant on the island to their condominium when a Cadillac with Ohio
license plates stopped approximately three feet in front of them. Tim Sims testified
that appellant stepped out of the back seat of the car and told the
complainants to stop and give him their wallets. When Sims heard this he
turned around and saw appellant holding a gun to Hoetzlein=s head. Hoetzlein
gave appellant the beer he was carrying, but did not give him his wallet.
Appellant then turned the gun on Sims and asked for his wallet and the beer he
was carrying. Sims=s wallet was in the bag with the beer, so
he gave his wallet and beer to appellant. Appellant then turned the gun on
Nestico and took his beer. All three complainants identified appellant as the
gunman and said they saw two other people in the car. Sims identified his
stolen credit cards, which were found in the car. The State moved to revoke
appellant=s probation based on this alleged aggravated robbery.
Evidentiary Issues
In his first two points of error, appellant contends that
the trial court erred in permitting Detective Jaime Rodriguez to testify about
what appellant=s co-defendant said in his statement following the
aggravated robbery of the complainants. Appellant objected at trial that he
was deprived of his Sixth Amendment right to confront the witnesses against
him. Appellant further contends the testimony was inadmissible hearsay.
Jaime Rodriguez, a detective with the South Padre Island
Police Department, testified as follows:
Q. Did you interview the co-defendant, Aaron (sic) Gonzalez?
A. Yes, I did.
Q. Did he give you a statement?
A. Yes, ma=am.
Q. Did he say anything that was inconsistent with this defendant=s guilt?
[Defense counsel]: Objection,
Your Honor, to what some other person said. That=s hearsay. He=s a co-defendant, it=s not prudent in that line of the case, not admissible. I object to
this witness testifying what some other person told him.
[Prosecutor]:
We=d argue it was a statement of a party to the offense.
THE COURT:
It=s overruled. I=ll
allow it.
[Defense
counsel]: May B I=m sorry, may I
have a running objection to any B
THE COURT:
Certainly.
[Defense
counsel]: Under Bruton, I want to get on the record, it violates my right to
confront, cross-examination. It=s
hearsay.
Confrontation
Clause
In his first point of error, appellant argues that Officer
Rodriguez= testimony violated his rights under the Sixth
Amendment=s Confrontation Clause as enunciated in Bruton v.
United States, 391 U.S. 123, 135B37, 88 S.Ct. 1620,
1627B28, 20 L.Ed.2d 476
(1968). In Bruton, the Supreme Court found that the admission of such evidence would
violate the defendant=s Sixth Amendment right to confrontation because the co‑defendant
could not be cross‑examined regarding the statement. 391 U.S. at 136; 88
S.Ct. at 1628. In Crawford v. Washington, 541 U.S. 36, 124 S.Ct.
1354, 158 L.Ed.2d 177 (2004), the Court broadened the holding in Bruton,
finding that the admission of testimonial hearsay violated the Confrontation
Clause unless the declarant was shown to be unavailable to testify and the
defendant had a prior opportunity to cross-examine the declarant.
The
State first asserts that appellant waived his objection by introducing Gonzalez= statement during the
cross-examination of Rodriguez. During cross-examination, appellant introduced
Gonzalez= statement into evidence. When the
court replied that the statement had already been admitted, appellant responded
AI offer Defense 1 to meet, rebut,
explain the defendant=s testimony that came in over objection as to what Mr.
Gonzalez told him.@ If a defendant introduces evidence to refute, deny,
contradict, or impeach evidence properly objected to, no waiver of the
objection occurs. Maynard v. State, 685 S.W.2d 60, 65B66 (Tex. Crim. App. 1985). The State
contends that because appellant did not attempt to limit the admission of the
statement until after it was admitted, appellant waived error. In determining
whether a complaint has been preserved for appeal, the ultimate consideration
is whether the party has clearly made the trial court aware of what he wants
and why he is entitled to it at a time when the trial court is in a position to
do something about it. Keeter v. State, 175 S.W.3d 756, 760 (Tex. Crim.
App. 2005). Although appellant did not state the purpose for which he offered
the evidence until after he offered it, he timely objected to the statement
when it was first introduced and the trial court was aware of the nature of
appellant=s objection. Therefore, appellant preserved error for review.
The State further responds by asserting that because a
revocation hearing is not a criminal prosecution, neither Bruton, nor Crawford
applies to this case. Whether the Confrontation Clause applies to
probation revocation proceedings is an issue of first impression in this court,
but has been addressed by other courts of appeals in Texas. Both the Beaumont
Court of Appeals and the San Antonio Court of Appeals have found that the Sixth
Amendment right to confrontation does not apply to revocation proceedings. See
Diaz v. State, 172 S.W.3d 668, 672 (Tex. App.CSan Antonio 2005,
no pet.); Smart v. State, 153 S.W.3d 118, 120 (Tex. App.CBeaumont 2004,
pet. ref=d).
Most
federal appellate courts have held that the Sixth Amendment does not apply to
hearings in which the government seeks revocation of supervised release (the
federal equivalent of probation and parole). See e.g., Ash v. Reilly,
431 F.3d 826, 830 (D.C. Cir. 2005); United States v. Rondeau, 430 F.3d
44, 47B48 (1st Cir. 2005); United States
v. Hall, 419 F.3d 980, 985B86 (9th Cir. 2005); United States v. Kirby, 418 F.3d
621, 627B28 (6th Cir. 2005); United States
v. Aspinall, 389 F.3d 332, 342B43 (2d Cir. 2004); United States
v. Martin, 382 F.3d 840, 844 n.4 (8th Cir. 2004); but see U. S. v.
Jarvis, 94 Fed. Appx. 501, 502 (9th Cir. 2004) (not designated for
publication) (ADue process mandates that at revocation proceedings, the releasee must
be afforded the right to confront and cross-examine adverse witnesses unless
the hearing officer specifically finds good cause for not allowing
confrontation.@).
This
court has consistently held in light of the Confrontation Clause=s focus on criminal prosecutions,
that the clause does not apply to post-conviction proceedings. See Walker
v. State, 14-03-01057-CR, 2004 WL 503331 (Tex. App.CHouston [14th Dist.] March 16, 2004,
pet. ref=d) (not designated for publication); Nunez
v. State, No. 14‑02‑00685‑CR, 2003 WL21354257 (Tex. App.CHouston [14th Dist.] June 12, 2003,
pet. ref=d) (not designated for publication); Calvin
v. State, No. 14‑02‑01204‑CR, 2003 WL 22303837 (Tex. App.CHouston [14th Dist.] October 9, 2003,
pet. ref=d) (not designated for publication); Thompson
v. State, 123 S.W.3d 781, 783B84 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). Nothing in the Supreme Court=s opinion in Crawford
indicates an intent to extend the Confrontation Clause beyond the purview of
the criminal prosecution. See U. S. v. Rondeau, 430 F.3d at 47. We
therefore join our sister courts of appeals and the majority of the federal
courts of appeals in concluding that because a probation revocation hearing is
not a criminal prosecution, and therefore, the protections of the Confrontation
Clause do not apply. Appellant=s first point of error is overruled.
Hearsay
In his second point of error, appellant argues his
co-defendant=s statement was inadmissible hearsay. Gonzalez= statement is
hearsay because it is an out‑of‑court assertion offered to prove
the truth of the matter asserted. See Tex. R. Evid. 801(d). The State argued at the hearing that
Gonzalez= statement is a
statement against penal interest,[1]
which is an exception to the hearsay rule. See Tex. R. Evid. 803(24). Whether an out‑of‑court
statement is admissible under an exception to the general hearsay exclusion
rule is a matter within the trial court=s discretion. Zuliani
v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). Our role is limited
to determining whether the record supports the trial court=s ruling. See
Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994).
A statement against penal interest includes a statement
which, at the time of its making, so far tended to subject the declarant to
criminal liability that a reasonable person in the declarant=s position would
not have made the statement unless he believed it to be true. Tex. R. Evid. 803(24). An admission
against a co‑defendant declarant=s penal interest
may be admissible against the defendant so long as it is sufficiently against
the declarant=s interest to be reliable and is sufficiently
corroborated by other evidence. Dewberry v. State, 4 S.W.3d 735, 751B52 (Tex. Crim.
App. 1999). A co-defendant=s confession is presumptively unreliable
as to those portions that detail a co‑defendant=s conduct or
culpability because those portions may be the result of the co-defendant=s desire to shift
the blame, curry favor, avenge himself, or divert attention to another. Lee
v. Illinois, 476 U.S. 530, 545, 106 S.Ct. 2056, 2064, 90 L.Ed.2d 514
(1986).
In his statement, Gonzalez implicated appellant: he stated
that appellant was the one who opened the car door and pointed the gun at the
complainants. Gonzalez= statement does not tend to inculpate
himself, but rather is an attempt to shift the blame to appellant.
Accordingly, Gonzalez= statement does not fall under the
admission against interest exception to the hearsay rule. See Zarychta v.
State, 961 S.W.2d 455, 458 (Tex. App.CHouston [1st
Dist.] 1997, pet. ref=d). Therefore, the trial court erred in
admitting such testimony.
In determining whether the trial court=s error is
reversible, we apply the harm analysis for non-constitutional error. See
Potier v. State, 68 S.W.3d 657, 666 (Tex. Crim. App. 2002); Tex. R. App. P. 44.2(b). Error is
harmless if, after examining the record as a whole, we are reasonably assured
the error either did not influence the trial court=s decision or had only
a slight effect. Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App.
2004). The improper admission of evidence is not reversible error if the same
or similar evidence is admitted without objection at another point in the
trial. Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999). In
this case, all three complainants identified appellant as the man who exited
the car and pointed the gun at them. Therefore, any error committed by the
trial court in admitting Gonzalez= statement was
harmless. See Tex. R. App.
P. 44.2(b). Appellant=s second point of error is overruled.
Sufficiency of the Evidence
In his third through fifth points of error, appellant
argues that the trial court erred in finding that he committed the offense of
aggravated robbery because the evidence was not sufficient to establish his
guilt by a preponderance of the evidence. In a probation revocation
proceeding, the State bears the burden to establish the alleged violations of
the trial court=s order by a preponderance of the
evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993).
In determining whether the allegations in the revocation motion are true, the
trial court is the sole trier of facts, the judge of the credibility of the
witnesses, and the arbiter of the weight to be given to the testimony. Taylor
v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980); Akbar v. State,
190 S.W.3d 119, 123 (Tex. App.CHouston [1st Dist.] 2005, no pet.). Proof
of a single violation is sufficient to support revocation of probation. Greer
v. State, 999 S.W.2d 484, 486 (Tex. App.CHouston [14th
Dist.] 1999, pet. ref=d).
Appellant was charged with the aggravated robbery of the
three complainants, Sims, Hoetzlein, and Nestico. A person commits the offense
of aggravated robbery if, in the course of committing theft and with intent to
obtain or maintain control of property, he intentionally or knowingly threatens
or places another in fear of imminent bodily injury or death and uses or
exhibits a deadly weapon. Tex. Penal
Code Ann. '' 29.02 & 29.03. Here, the evidence
shows that appellant and two others stopped their vehicle within five feet of
the complainants while the complainants were walking along the side of the
road. Appellant stepped out of the vehicle, pointed a gun at the complainants
and demanded their wallets and beer. Sims=s wallet and the
other complainants= beer and food were found in the vehicle
less than ten minutes after the robbery. As the sole judge of the credibility
of the witnesses, the trial court could have found by a preponderance of the
evidence that appellant violated the terms of his probation. Appellant=s third through
fifth points of error are overruled.
Consecutive Sentences
In his sixth point of error, appellant argues that the
trial court erred in ordering the sentences in both convictions to run
consecutively where the indictments alleged offenses committed during the same
criminal episode and appellant was prosecuted in the same criminal action. If
the original offenses that led to community supervision were part of the same
criminal episode and convictions were obtained as part of the same criminal
action, then any sentences imposed must run concurrently. Duran v. State,
844 S.W.2d 745, 747 (Tex. Crim. App. 1992); Tex.
Penal Code Ann. ' 3.03. ACriminal episode,@ as defined in
chapter 3.01 of the Texas Penal Code, means the commission of two or more
offenses, regardless of whether the harm is directed toward or inflicted upon
more than one person or item of property, when the offenses are committed
pursuant to the same transaction or pursuant to two or more transactions that
are connected or that constitute a common scheme or plan or the offenses are the
repeated commission of the same or similar offenses. See Tex. Pen. Code Ann. ' 3.01.
Accordingly, a trial court improperly stacks sentences when the offenses arise
out of the same criminal episode and the proceeding is a single criminal
action. Tex. Penal Code Ann. ' 3.03.
Appellant was originally charged in two separate
indictments with the offense of burglary of a habitation. In cause number
1006221, appellant pled guilty to a burglary committed on November 3, 2004
against Mike Nance. In cause number 1006222, appellant pled guilty to a
burglary committed on November 3, 2004 against Cynthia Mendez. Separate plea
papers were filed and separate judgments were entered. Because appellant
waived a court reporter at the plea hearing, the record does not reflect
whether the burglaries were prosecuted in a single action. Appellant contends
that because the revocation motions were heard in the same hearing, which
constituted a single punishment hearing was held, implicating the application
of section 3.03. To be entitled to concurrent sentences, however, appellant
must establish that the offenses were consolidated at the time of his pleas as
well as at the hearing on the revocation motions. See Medina v. State,
7 S.W.3d 876, 879 (Tex. App.CHouston [1st Dist.] 1999, no pet.).
Because appellant failed to establish that the offenses arose out of the same
criminal episode and that he was prosecuted in a single criminal action, the
sentences were properly cumulated. See Duran, 844 S.W.2d at 747 (Baird,
J. concurring). Appellant=s sixth point of error is overruled.
The judgment of the trial court is affirmed.
/s/ Adele Hedges
Justice
Judgment rendered
and Opinion filed February 15, 2007.
Panel consists of
Chief Justice Hedges and Justices Fowler and Edelman.
Publish C Tex. R. App. P. 47.2(b).
[1] At the hearing when appellant objected on hearsay
grounds, the prosecutor responded, AWe=d argue it was a statement of a party to the offense.@ We interpret this argument to refer to the hearsay
exception of a statement against penal interest.
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ACCEPTED
04-14-00338-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
9/29/2015 2:54:45 PM
KEITH HOTTLE
CLERK
NO.
04-‐14-‐00338-‐CR
FILED IN
4th COURT OF APPEALS
BENNY
CAVASOS
VALVERDE,
§
IN
THE
COURT
OF
TEXAS
SAN ANTONIO,
Appellant
09/29/15 2:54:45 PM
KEITH E. HOTTLE
Clerk
vs.
§
APPEALS,
FOURTH
THE
STATE
OF
TEXAS,
§
COURT
OF
APPEALS
Appellee
§
SAN
ANTONIO,
TEXAS
A
MOTION
FOR
EXTENSION
OF
TIME
TO
FILE
APPELLEE’S
BRFIEF
TO
THE
HONORABLE
COURT
OF
APPEALS:
Now
comes
the
State
of
Texas,
Appellee
in
the
instant
cause,
by
and
through
his
undersigned
counsel,
Edward
F.
Shaughnessy,
and
files
this
Appellee’s
Motion
for
Extension
of
Time
to
File
Appellee’s
Brief.
In
support
of
the
instant
motion
the
Appellee
would
show
unto
this
Court
the
following:
A.
The
Appellant
is
appealing
the
judgment
of
the
290th
District
Court
of
Bexar
County
Texas
wherein
he
was
convicted
of
Murder
and
sentenced
to
thirty
(30)
years
of
confinement
in
the
Institutional
Division
of
the
Texas
Department
of
Criminal
Justice.
Notice
of
Appeal
was
filed
in
a
timely
fashion
in
the
trial
Court.
B.
The
undersigned
is
serving
as
a
prosecutor
pro
tem
pursuant
to
an
appointment
by
the
judge
of
the
290th
District
Court
of
Bexar
County
due
to
a
conflict
of
interest
on
the
part
of
the
Criminal
District
Attorney
for
Bexar
County.
The
undersigned
did
not
serve
as
the
prosecutor
in
the
trial
Court.
C.
The
Appellant’s
brief
in
the
instant
matter
was
filed
in
this
Court
on
June
1,
2015.
The
Appellee’s
brief
was
due
to
be
filed
on
September
21,
2015.
The
Appellee
would
request
a
thirty-‐day
extension
of
time
to
file
the
Appellee’s
brief
until
October
21,
2015.
C.
Counsel
is
in
the
process
of
compiling
briefs
in
the
following
matters:
James
Garza
v.
The
State
of
Texas,
Cause
No.
04-‐15-‐000456-‐CR
and
Richard
Longoria
v.
The
State
of
Texas,
Cause
No.
13-‐15-‐00173-‐CR.
The
undersigned
is
also
in
the
process
of
compiling
a
Petition
for
Discretionary
Review
in
the
case
of
Alvin
Valadez
v.
The
State
of
Texas,
Cause
No.
04-‐1400626-‐CR.
D.
The
record
of
the
instant
case
has
been
obtained
from
the
office
of
the
Clerk
and
a
review
of
that
record
has
been
undertaken.
E.
The
undersigned
is
also
in
the
process
of
compiling
a
proposed
order
on
the
post-‐conviction
writ
of
habeas
corpus
in
the
case
of
Ex
Parte
Denise
Crouch,
Cause
no.
08-‐06-‐9897-‐1-‐CR,
currently
pending
before
the
38th
District
Court
for
Medina
County.
PRAYER
Wherefore
premises
considered,
the
Appellee
would
request
a
sixty
day
extension
of
time
file
the
brief
in
the
instant
case
until
October
21,
2015.
Respectfully
submitted,
/S/_____________________________
Edward
F.
Shaughnessy,
III
Attorney
for
the
Appellee
206
East
Locust
Street
San
Antonio,
Texas
78212
SBN:
18134500
Phone:
(210)
212-‐6700
Fax:
(210)
212-‐2178
[email protected]
CERTIFICATE
OF
SERVICE
I
hereby
certify
that
a
copy
of
the
instant
motion
was
served
upon
David
Schulman,
attorney
for
the
appellant
by
e-‐mailing
the
motion
to
[email protected]
on
this
the
29th
day
of
September,
2015.
/S/____________________________
Edward
F.
Shaughnessy,
III
Attorney
for
the
Appellant
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755 F.2d 932
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.TERRIL R. NIES, PETITIONER-APPELLANT,v.ARTHUR TATE, JR., SUPERINTENDENT, RESPONDENT-APPELLEE.
NO. 84-3754
United States Court of Appeals, Sixth Circuit.
1/18/85
ORDER
BEFORE: MERRITT, KRUPANSKY, and WELLFORD, Circuit Judges.
1
This matter is before the Court upon consideration of the appellant's motion for appointment of counsel. On November 14, 1984, this Court entered an order directing the appellant to show cause why the appeal should not be dismissed for lack of jurisdiction. The appellant has failed to respond.
2
It appears from the record that the judgment was entered July 30, 1984. The notice of appeal filed on September 5, 1984 was seven days late. Rules 4(a) and 26(a), Federal Rules of Appellate Procedure.
3
The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Rule 4(a), Federal Rules of Appellate Procedure, is a mandatory and jurisdictional prerequisite which this Court can neither waive nor extend. Peake v. First Nat. Bank and Trust Co. of Marquette, 717 F.2d 1016 (6th Cir. 1983). Rule 26(b), Federal Rules of Appellate Procedure, specifically provides that this Court cannot enlarge the time for for filing a notice of appeal.
4
Accordingly, it is ORDERED that the appeal be and it hereby is dismissed for lack of jurisdiction. Rule 9(d)(1), Rules of the Sixth Circuit.
5
It is further ORDERED that the motion for appointment of counsel be and hereby is denied.
| {
"pile_set_name": "FreeLaw"
} |
(Slip Opinion) OCTOBER TERM, 2008 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CORLEY v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 07–10441. Argued January 21, 2009—Decided April 6, 2009
McNabb v. United States, 318 U. S. 332, and Mallory v. United States,
354 U. S. 449, “generally rende[r] inadmissible confessions made dur
ing periods of detention that violat[e] the prompt presentment re
quirement of [Federal Rule of Criminal Procedure] 5(a).” United
States v. Alvarez-Sanchez, 511 U. S. 350, 354. Rule 5(a), in turn, pro
vides that a “person making an arrest . . . must take the defendant
without unnecessary delay before a magistrate judge . . . .” Congress
enacted 18 U. S. C. §3501 in response to Miranda v. Arizona, 384
U. S. 436, and some applications of the McNabb-Mallory rule. In an
attempt to eliminate Miranda, §3501(a) provides that “a confession
. . . shall be admissible in evidence if it is voluntarily given,” and
§3501(b) lists several considerations for courts to address in assess
ing voluntariness. Subsection (c), which focuses on McNabb-Mallory,
provides that “a confession made . . . by . . . a defendant . . . , while
. . . under arrest . . . , shall not be inadmissible solely because of delay
in bringing such person before a magistrate judge . . . if such confes
sion is found by the trial judge to have been made voluntarily and . . .
within six hours [of arrest]”; it extends that time limit when further
delay is “reasonable considering the means of transportation and the
distance to . . . the nearest available [magistrate].”
Petitioner Corley was arrested for assaulting a federal officer at
about 8 a.m. Around 11:45 FBI agents took him to a Philadelphia
hospital to treat a minor injury. At 3:30 p.m. he was taken from the
hospital to the local FBI office and told that he was a suspect in a
bank robbery. Though the office was in the same building as the
nearest magistrate judges, the agents did not bring him before a
magistrate judge, but questioned him, hoping for a confession. At
5:27 p.m., some 9.5 hours after his arrest, Corley began an oral con
2 CORLEY v. UNITED STATES
Syllabus
fession that he robbed the bank. He asked for a break at 6:30 and
was held overnight. The interrogation resumed the next morning,
ending with his signed written confession. He was finally presented
to a Magistrate Judge at 1:30 p.m., 29.5 hours after his arrest, and
charged with armed bank robbery and related charges. The District
Court denied his motion to suppress his confessions under Rule 5(a)
and McNabb-Mallory. It reasoned that the oral confession occurred
within §3501(c)’s six-hour window because the time of Corley’s medi
cal treatment should be excluded from the delay. It also found the
written confession admissible, explaining there was no unreasonable
delay under Rule 5(a) because Corley had requested the break. He
was convicted of conspiracy and bank robbery. The Third Circuit af
firmed. Relying on Circuit precedent to the effect that §3501 abro
gated McNabb-Mallory and replaced it with a pure voluntariness
test, it concluded that if a district court found a confession voluntary
after considering the points listed in §3501(b), it would be admissible,
even if the presentment delay was unreasonable.
Held: Section 3501 modified McNabb-Mallory but did not supplant it.
Pp. 8–18.
(a) The Government claims that because §3501(a) makes a confes
sion “admissible” “if it is voluntarily given,” it entirely eliminates
McNabb-Mallory with its bar to admitting even a voluntary confes
sion if given during an unreasonable presentment delay. Corley ar
gues that §3501(a) was only meant to overrule Miranda, and notes
that only §3501(c) touches on McNabb-Mallory, making the rule in
applicable to confessions given within six hours of an arrest. He has
the better argument. Pp. 8–16.
(1) The Government’s reading renders §3501(c) nonsensical and
superfluous. If subsection (a) really meant that any voluntary con
fession was admissible, then subsection (c) would add nothing; if a
confession was “made voluntarily” it would be admissible, period, and
never “inadmissible solely because of delay,” even a delay beyond six
hours. The Government’s reading is thus at odds with the basic in
terpretive canon that “ ‘[a] statute should be construed [to give effect]
to all its provisions, so that no part will be inoperative or superfluous,
void or insignificant.’ ” Hibbs v. Winn, 542 U. S. 88, 101. The Gov
ernment claims that in providing that a confession “shall not be ad
missible,” Congress meant that a confession “shall not be [involun
tary].” Thus read, (c) would specify a bright-line rule applying (a) to
cases of delay: it would tell courts that delay alone does not make a
confession involuntary unless the delay exceeds six hours. But
“ ‘Congress did not write the statute that way.’ ” Russello v. United
States, 464 U. S. 16, 23. The terms “inadmissible” and “involuntary”
are not synonymous. Congress used both in (c), and this Court
Cite as: 556 U. S. ____ (2009) 3
Syllabus
“would not presume to ascribe this difference to a simple mistake in
draftsmanship.” Ibid. There is also every reason to believe that
Congress used the distinct terms deliberately, specifying two criteria
that must be satisfied to prevent a confession from being “inadmissi
ble solely because of delay”: the confession must be “[1] made volun
tarily and . . . [2] within six hours [of arrest].” Moreover, under the
McNabb-Mallory rule, “inadmissible” and “involuntary” mean differ
ent things. Corley’s position, in contrast, gives effect to both (c) and
(a), by reading (a) as overruling Miranda and (c) as qualifying
McNabb-Mallory. The Government’s counterargument—that
Corley’s reading would also create a conflict, since (a) makes all vol
untary confessions admissible while (c) would leave some voluntary
confessions inadmissible—falls short. First, (a) is a broad directive
while (c) aims only at McNabb-Mallory, and “a more specific statute
[is] given precedence over a more general one.” Busic v. United
States, 446 U. S. 398, 406. Second, reading (a) to create a conflict
with (c) not only would make (c) superfluous, but would also create
conflicts with so many other Rules of Evidence that the subsection
cannot possibly be given its literal scope. Pp. 8–12.
(2) The legislative history strongly favors Corley’s reading. The
Government points to nothing in this history supporting its contrary
view. Pp. 13–15.
(3) The Government’s position would leave the Rule 5 present
ment requirement without teeth, for if there is no McNabb-Mallory
there is no apparent remedy for a presentment delay. The prompt
presentment requirement is not just an administrative nicety. It
dates back to the common law. Under Rule 5, presentment is the
point at which the judge must take several key steps to foreclose
Government overreaching: e.g., informing the defendant of the
charges against him and giving the defendant a chance to consult
with counsel. Without McNabb-Mallory, federal agents would be free
to question suspects for extended periods before bringing them out in
the open, even though “custodial police interrogation, by its very na
ture, isolates and pressures the individual,” Dickerson v. United
States, 530 U. S. 428, 435, inducing people to confess to crimes they
never committed. Pp. 15–16.
(b) There is no merit to the Government’s fallback claim that even
if §3501 preserved a limited version of McNabb-Mallory, Congress cut
it out by enacting Federal Rule of Evidence 402, which provides that
“[a]ll relevant evidence is admissible, except as otherwise provided by
the Constitution of the United States, by Act of Congress, by these
rules, or by other rules prescribed by the Supreme Court . . . .” The
Advisory Committee’s Notes expressly identified McNabb-Mallory as
a statutorily authorized rule that would survive Rule 402, and the
4 CORLEY v. UNITED STATES
Syllabus
Government has previously conceded before this Court that Rule 402
preserved McNabb-Mallory. Pp. 16–18.
500 F. 3d 210, vacated and remanded.
SOUTER, J., delivered the opinion of the Court, in which STEVENS,
KENNEDY, GINSBURG, and BREYER, JJ., joined. ALITO, J., filed a dissent
ing opinion, in which ROBERTS, C. J., and SCALIA and THOMAS, JJ.,
joined.
Cite as: 556 U. S. ____ (2009) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–10441
_________________
JOHNNIE CORLEY, PETITIONER v. UNITED
STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[April 6, 2009]
JUSTICE SOUTER delivered the opinion of the Court.
The question here is whether Congress intended 18
U. S. C. §3501 to discard, or merely to narrow, the rule in
McNabb v. United States, 318 U. S. 332 (1943), and Mal
lory v. United States, 354 U. S. 449 (1957), under which an
arrested person’s confession is inadmissible if given after
an unreasonable delay in bringing him before a judge. We
hold that Congress meant to limit, not eliminate, McNabb-
Mallory.
I
A
The common law obliged an arresting officer to bring his
prisoner before a magistrate as soon as he reasonably
could. See County of Riverside v. McLaughlin, 500 U. S.
44, 61–62 (1991) (SCALIA, J., dissenting). This “present
ment” requirement tended to prevent secret detention and
served to inform a suspect of the charges against him, and
it was the law in nearly every American State and the
National Government. See id., at 60–61; McNabb, supra,
at 342, and n. 7.
McNabb v. United States raised the question of how to
2 CORLEY v. UNITED STATES
Opinion of the Court
enforce a number of federal statutes codifying the pre
sentment rule. 318 U. S., at 342 (citing, among others, 18
U. S. C. §595 (1940 ed.), which provided that “ ‘[i]t shall be
the duty of the marshal . . . who may arrest a person . . . to
take the defendant before the nearest . . . judicial officer
. . . for a hearing’ ”). There, federal agents flouted the
requirement by interrogating several murder suspects for
days before bringing them before a magistrate, and then
only after they had given the confessions that convicted
them. 318 U. S., at 334–338, 344–345.
On the defendants’ motions to exclude the confessions
from evidence, we saw no need to reach any constitutional
issue. Instead we invoked the supervisory power to estab
lish and maintain “civilized standards of procedure and
evidence” in federal courts, id., at 340, which we exercised
for the sake of making good on the traditional obligation
embodied in the federal presentment legislation. We saw
both the statutes and the traditional rule as aimed not
only at checking the likelihood of resort to the third degree
but meant generally to “avoid all the evil implications of
secret interrogation of persons accused of crime.” Id., at
344. We acknowledged that “Congress ha[d] not explicitly
forbidden the use of evidence . . . procured” in derogation
of the presentment obligation, id., at 345, but we realized
that “permit[ting] such evidence to be made the basis of a
conviction in the federal courts would stultify the policy
which Congress ha[d] enacted into law,” ibid., and in the
exercise of supervisory authority we held confessions
inadmissible when obtained during unreasonable pre
sentment delay.
Shortly after McNabb, the combined action of the Judi
cial Conference of the United States and Congress pro
duced Federal Rule of Criminal Procedure 5(a), which
pulled the several statutory presentment provisions to
gether in one place. See Mallory, supra, at 452 (describing
Rule 5(a) as “a compendious restatement, without sub
Cite as: 556 U. S. ____ (2009) 3
Opinion of the Court
stantive change, of several prior specific federal statutory
provisions”). As first enacted, the rule told “[a]n officer
making an arrest under a warrant issued upon a com
plaint or any person making an arrest without a warrant
[to] take the arrested person without unnecessary delay
before the nearest available commissioner or before any
other nearby officer empowered to commit persons
charged with offenses against the laws of the United
States.” Fed. Rule Crim. Proc. 5(a) (1946). The rule re
mains much the same today: “A person making an arrest
within the United States must take the defendant without
unnecessary delay before a magistrate judge . . . .” Fed.
Rule Crim. Proc. 5(a)(1)(A) (2007).
A case for applying McNabb and Rule 5(a) together soon
arose in Upshaw v. United States, 335 U. S. 410 (1948).
Despite the Government’s confession of error, the D. C.
Circuit had thought McNabb’s exclusionary rule applied
only to involuntary confessions obtained by coercion dur
ing the period of delay, 335 U. S., at 411–412, and so held
the defendant’s voluntary confession admissible into evi
dence. This was error, and we reiterated the reasoning of
a few years earlier. “In the McNabb case we held that the
plain purpose of the requirement that prisoners should
promptly be taken before committing magistrates was to
check resort by officers to ‘secret interrogation of persons
accused of crime.’ ” Id., at 412 (quoting McNabb, supra, at
344). Upshaw consequently emphasized that even volun
tary confessions are inadmissible if given after an unrea
sonable delay in presentment. 335 U. S., at 413.
We applied Rule 5(a) again in Mallory v. United States,
holding a confession given seven hours after arrest inad
missible for “unnecessary delay” in presenting the suspect
to a magistrate, where the police questioned the suspect
for hours “within the vicinity of numerous committing
magistrates.” 354 U. S., at 455. Again, we repeated the
reasons for the rule and explained, as we had before and
4 CORLEY v. UNITED STATES
Opinion of the Court
have since, that delay for the purpose of interrogation is
the epitome of “unnecessary delay.” Id., at 455–456; see
also McLaughlin, 500 U. S., at 61 (SCALIA, J., dissenting)
(“It was clear” at common law “that the only element
bearing upon the reasonableness of delay was not such
circumstances as the pressing need to conduct further
investigation, but the arresting officer’s ability, once the
prisoner had been secured, to reach a magistrate”); Up
shaw, supra, at 414. Thus, the rule known simply as
McNabb-Mallory “generally render[s] inadmissible confes
sions made during periods of detention that violat[e] the
prompt presentment requirement of Rule 5(a).” United
States v. Alvarez-Sanchez, 511 U. S. 350, 354 (1994).
There the law remained until 1968, when Congress
enacted 18 U. S. C. §3501 in response to Miranda v. Ari
zona, 384 U. S. 436 (1966), and to the application of
McNabb-Mallory in some federal courts. Subsections (a)
and (b) of §3501 were meant to eliminate Miranda.1 See
Dickerson v. United States, 530 U. S. 428, 435–437 (2000);
infra, at 13–14. Subsection (a) provides that “[i]n any
criminal prosecution brought by the United States . . . , a
confession . . . shall be admissible in evidence if it is volun
tarily given,” while subsection (b) lists several considera
tions for courts to address in assessing voluntariness.2
——————
1 We rejected this attempt to overrule Miranda in Dickerson v. United
States, 530 U. S. 428 (2000).
2 In full, subsections (a) and (b) provide:
“(a) In any criminal prosecution brought by the United States or by
the District of Columbia, a confession, as defined in subsection (e)
hereof, shall be admissible in evidence if it is voluntarily given. Before
such confession is received in evidence, the trial judge shall, out of the
presence of the jury, determine any issue as to voluntariness. If the
trial judge determines that the confession was voluntarily made it shall
be admitted in evidence and the trial judge shall permit the jury to
hear relevant evidence on the issue of voluntariness and shall instruct
the jury to give such weight to the confession as the jury feels it de
serves under all the circumstances.
Cite as: 556 U. S. ____ (2009) 5
Opinion of the Court
Subsection (c), which focused on McNabb-Mallory, see
infra, at 13–14, provides that in any federal prosecution,
“a confession made . . . by . . . a defendant therein, while
such person was under arrest . . . , shall not be inadmissi
ble solely because of delay in bringing such person before a
magistrate judge . . . if such confession is found by the
trial judge to have been made voluntarily . . . and if such
confession was made . . . within six hours [of arrest]”;
the six-hour time limit is extended when further delay
is “reasonable considering the means of transportation
and the distance to be traveled to the nearest available
[magistrate].”3
——————
“(b) The trial judge in determining the issue of voluntariness shall
take into consideration all the circumstances surrounding the giving of
the confession, including (1) the time elapsing between arrest and
arraignment of the defendant making the confession, if it was made
after arrest and before arraignment, (2) whether such defendant knew
the nature of the offense with which he was charged or of which he was
suspected at the time of making the confession, (3) whether or not such
defendant was advised or knew that he was not required to make any
statement and that any such statement could be used against him, (4)
whether or not such defendant had been advised prior to questioning of
his right to the assistance of counsel; and (5) whether or not such
defendant was without the assistance of counsel when questioned and
when giving such confession.
“The presence or absence of any of the above-mentioned factors to be
taken into consideration by the judge need not be conclusive on the
issue of voluntariness of the confession.”
3 In full, subsection (c) provides:
“In any criminal prosecution by the United States or by the District
of Columbia, a confession made or given by a person who is a defendant
therein, while such person was under arrest or other detention in the
custody of any law-enforcement officer or law-enforcement agency, shall
not be inadmissible solely because of delay in bringing such person
before a magistrate judge or other officer empowered to commit persons
charged with offenses against the laws of the United States or of the
District of Columbia if such confession is found by the trial judge to
have been made voluntarily and if the weight to be given the confession
is left to the jury and if such confession was made or given by such
person within six hours immediately following his arrest or other
6 CORLEY v. UNITED STATES
Opinion of the Court
The issue in this case is whether Congress intended
§3501(a) to sweep McNabb-Mallory’s exclusionary rule
aside entirely, or merely meant §3501(c) to provide immu
nization to voluntary confessions given within six hours of
a suspect’s arrest.
B
Petitioner Johnnie Corley was suspected of robbing a
bank in Norristown, Pennsylvania. After federal agents
learned that Corley was subject to arrest on an unrelated
local matter, some federal and state officers went together
to execute the state warrant on September 17, 2003, and
found him just as he was pulling out of a driveway in his
car. Corley nearly ran over one officer, then jumped out of
the car, pushed the officer down, and ran. The agents
gave chase and caught and arrested him for assaulting a
federal officer. The arrest occurred about 8 a.m. 500 F. 3d
210, 212 (CA3 2007).
FBI agents first kept Corley at a local police station
while they questioned residents near the place he was
captured. Around 11:45 a.m. they took him to a Philadel
phia hospital to treat a minor cut on his hand that he got
during the chase. At 3:30 p.m. the agents took him from
the hospital to the Philadelphia FBI office and told him
that he was a suspect in the Norristown bank robbery.
Though the office was in the same building as the cham
bers of the nearest magistrate judges, the agents did not
bring Corley before a magistrate, but questioned him
instead, in hopes of getting a confession. App. 68–69, 83,
138–139.
——————
detention: Provided, That the time limitation contained in this subsec
tion shall not apply in any case in which the delay in bringing such
person before such magistrate judge or other officer beyond such six
hour period is found by the trial judge to be reasonable considering the
means of transportation and the distance to be traveled to the nearest
available such magistrate judge or other officer.”
Cite as: 556 U. S. ____ (2009) 7
Opinion of the Court
The agents’ repeated arguments sold Corley on the
benefits of cooperating with the Government, and he
signed a form waiving his Miranda rights. At 5:27 p.m.,
some 9.5 hours after his arrest, Corley began an oral
confession that he robbed the bank, id., at 62, and spoke
on in this vein until about 6:30, when agents asked him to
put it all in writing. Corley said he was tired and wanted
a break, so the agents decided to hold him overnight and
take the written statement the next morning. At 10:30
a.m. on September 18 they began the interrogation again,
which ended when Corley signed a written confession. He
was finally presented to a magistrate at 1:30 p.m. that
day, 29.5 hours after his arrest. 500 F. 3d, at 212.
Corley was charged with armed bank robbery, 18
U. S. C. §2113(a), (d), conspiracy to commit armed bank
robbery, §371, and using a firearm in furtherance of a
crime of violence, §924(c). When he moved to suppress his
oral and written confessions under Rule 5(a) and McNabb-
Mallory, the District Court denied the motion, with the
explanation that the time Corley was receiving medical
treatment should be excluded from the delay, and that the
oral confession was thus given within the six-hour window
of §3501(c). Crim. No. 03–775 (ED Pa., May 10, 2004),
App. 97. The District Court also held Corley’s written
confession admissible, reasoning that “a break from inter
rogation requested by an arrestee who has already begun
his confession does not constitute unreasonable delay
under Rule 5(a).” Id., at 97–98. Corley was convicted of
conspiracy and armed robbery but acquitted of using a
firearm during a crime of violence. 500 F. 3d, at 212–213.
A divided panel of the Court of Appeals for the Third
Circuit affirmed the conviction, though its rationale for
rejecting Corley’s Rule 5(a) argument was different from
the District Court’s. The panel majority considered itself
bound by Circuit precedent to the effect that §3501 en
tirely abrogated the McNabb-Mallory rule and replaced it
8 CORLEY v. UNITED STATES
Opinion of the Court
with a pure voluntariness test. See 500 F. 3d, at 212
(citing Government of the Virgin Islands v. Gereau, 502
F. 2d 914 (CA3 1974)). As the majority saw it, if a district
court found a confession voluntary after considering the
points listed in §3501(b), it would be admissible, regard
less of whether delay in presentment was unnecessary or
unreasonable. 500 F. 3d, at 217. Judge Sloviter read
Gereau differently and dissented with an opinion that
“§3501 does not displace Rule 5(a)” or abrogate McNabb-
Mallory for presentment delays beyond six hours. 500
F. 3d, at 236.
We granted certiorari to resolve a division in the Circuit
Courts on the reach of §3501. 554 U. S. ___ (2008). Com
pare United States v. Glover, 104 F. 3d 1570, 1583 (CA10
1997) (§3501 entirely supplanted McNabb-Mallory);
United States v. Christopher, 956 F. 2d 536, 538–539 (CA6
1991) (same), with United States v. Mansoori, 304 F. 3d
635, 660 (CA7 2002) (§3501 limited the McNabb-Mallory
rule to periods more than six hours after arrest); United
States v. Perez, 733 F. 2d 1026, 1031–1032 (CA2 1984)
(same).4 We now vacate and remand.
II
The Government’s argument focuses on §3501(a), which
provides that any confession “shall be admissible in evi
dence” in federal court “if it is voluntarily given.” To the
Government, subsection (a) means that once a district
court looks to the considerations in §3501(b) and finds a
confession voluntary, in it comes; (a) entirely eliminates
McNabb-Mallory with its bar to admitting even a volun
tary confession if given during an unreasonable delay in
presentment.
Corley argues that §3501(a) was meant to overrule
——————
4 We granted certiorari to resolve this question once before, in United
States v. Alvarez-Sanchez, 511 U. S. 350 (1994), but ultimately resolved
that case on a different ground, id., at 355–360.
Cite as: 556 U. S. ____ (2009) 9
Opinion of the Court
Miranda and nothing more, with no effect on McNabb-
Mallory, which §3501 touches only in subsection (c). By
providing that a confession “shall not be inadmissible
solely because of delay” in presentment if “made voluntar
ily and . . . within six hours [of arrest],” subsection (c)
leaves McNabb-Mallory inapplicable to confessions given
within the six hours, but when a confession comes even
later, the exclusionary rule applies and courts have to see
whether the delay was unnecessary or unreasonable.
Corley has the better argument.
A
The fundamental problem with the Government’s read
ing of §3501 is that it renders §3501(c) nonsensical and
superfluous. Subsection (c) provides that a confession
“shall not be inadmissible solely because of delay” in pre
sentment if the confession is “made voluntarily and . . .
within six hours [of arrest].” If (a) really meant that any
voluntary confession was admissible, as the Government
contends, then (c) would add nothing; if a confession was
“made voluntarily” it would be admissible, period, and
never “inadmissible solely because of delay,” no matter
whether the delay went beyond six hours. There is no way
out of this, and the Government concedes it. Tr. of Oral
Arg. 33 (“Congress never needed (c); (c) in the [G]overn
ment’s view was always superfluous”).
The Government’s reading is thus at odds with one of
the most basic interpretive canons, that “ ‘[a] statute
should be construed so that effect is given to all its provi
sions, so that no part will be inoperative or superfluous,
void or insignificant . . . .’ ” Hibbs v. Winn, 542 U. S. 88,
101 (2004) (quoting 2A N. Singer, Statutes and Statutory
Construction §46.06, pp.181–186 (rev. 6th ed. 2000)).5 The
——————
5 The dissent says that the antisuperfluousness canon has no place
here because “there is nothing ambiguous about the language of
§3501(a).” Post, at 2 (opinion of ALITO, J.). But this response violates
10 CORLEY v. UNITED STATES
Opinion of the Court
Government attempts to mitigate its problem by rewriting
(c) into a clarifying, if not strictly necessary, provision:
although Congress wrote that a confession “shall not be
inadmissible solely because of delay” if the confession is
“made voluntarily and . . . within six hours [of arrest],” the
Government tells us that Congress actually meant that a
confession “shall not be [involuntary] solely because of
delay” if the confession is “[otherwise voluntary] and . . .
[made] within six hours [of arrest].” Thus rewritten, (c)
would coexist peacefully (albeit inelegantly) with (a), with
(c) simply specifying a bright-line rule applying (a) to
cases of delay: it would tell courts that delay alone does
not make a confession involuntary unless the delay ex
ceeds six hours.
To this proposal, “ ‘[t]he short answer is that Congress
did not write the statute that way.’ ” Russello v. United
States, 464 U. S. 16, 23 (1983) (quoting United States v.
Naftalin, 441 U. S. 768, 773 (1979)). The Government
may say that we can sensibly read “inadmissible” as “in
voluntary” because the words are “virtually synonymous
. . . in this statutory context,” Brief for United States 23,
but this is simply not so. To begin with, Congress used
——————
“the cardinal rule that a statute is to be read as a whole,” King v. St.
Vincent’s Hospital, 502 U. S. 215, 221 (1991). Subsection 3501(a) seems
clear only if one ignores the absurd results of a literal reading, infra, at
11–12, and only until one reads §3501(c) and recognizes that if (a)
means what it literally says, (c) serves no purpose. Even the dissent
concedes that when (a) and (c) are read together, “[t]here is simply no
perfect solution to the problem before us.” Post, at 4. Thus, the dis
sent’s point that subsection (a) seems clear when read in isolation
proves nothing, for “[t]he meaning—or ambiguity—of certain words or
phrases may only become evident when placed in context.” FDA v.
Brown & Williamson Tobacco Corp., 529 U. S. 120, 132 (2000). When
subsection (a) is read in context, there is no avoiding the question,
“What could Congress have been getting at with both (a) and (c)?” The
better answer is that Congress meant to do just what Members explic
itly said in the legislative record. See infra, at 13–15.
Cite as: 556 U. S. ____ (2009) 11
Opinion of the Court
both terms in (c) itself, and “[w]e would not presume to
ascribe this difference to a simple mistake in draftsman
ship.” Russello, supra, at 23. And there is, in fact, every
reason to believe that Congress used the distinct terms
very deliberately. Subsection (c) specifies two criteria that
must be satisfied to prevent a confession from being “in
admissible solely because of delay”: the confession must be
“[1] made voluntarily and . . . [2] within six hours [of
arrest].” Because voluntariness is thus only one of several
criteria for admissibility under (c), “involuntary” and
“inadmissible” plainly cannot be synonymous. What is
more, the Government’s argument ignores the fact that
under the McNabb-Mallory rule, which we presume Con
gress was aware of, Cannon v. University of Chicago, 441
U. S. 677, 699 (1979), “inadmissible” and “involuntary”
mean different things. As we explained before and as the
Government concedes, McNabb-Mallory makes even vol
untary confessions inadmissible if given after an unrea
sonable delay in presentment, Upshaw, 335 U. S., at 413;
Tr. of Oral Arg. 33 (“[I]t was well understood that
McNabb-Mallory . . . excluded totally voluntary confes
sions”). So we cannot accept the Government’s attempt to
confuse the critically distinct terms “involuntary” and
“inadmissible” by rewriting (c) into a bright-line rule doing
nothing more than applying (a).
Corley’s position, in contrast, gives effect to both (c) and
(a), by reading (a) as overruling Miranda and (c) as quali
fying McNabb-Mallory. The Government answers, how
ever, that accepting Corley’s argument would result in a
different problem: it would create a conflict between (c)
and (a), since (a) provides that all voluntary confessions
are admissible while Corley’s reading of (c) leaves some
voluntary confessions inadmissible. But the Government’s
counterargument falls short for two reasons. First, even if
(a) is read to be at odds with (c), the conflict is resolved by
recognizing that (a) is a broad directive while (c) aims only
12 CORLEY v. UNITED STATES
Opinion of the Court
at McNabb-Mallory, and “a more specific statute will be
given precedence over a more general one . . . .” Busic v.
United States, 446 U. S. 398, 406 (1980). Second, and
more fundamentally, (a) cannot prudently be read to
create a conflict with (c), not only because it would make
(c) superfluous, as explained, but simply because reading
(a) that way would create conflicts with so many other
rules that the subsection cannot possibly be given its
literal scope. Subsection (a) provides that “[i]n any crimi
nal prosecution brought by the United States . . . , a con
fession . . . shall be admissible in evidence if it is voluntar
ily given,” and §3501(e) defines “confession” as “any
confession of guilt of any criminal offense or any self
incriminating statement made or given orally or in writ
ing.” Thus, if the Government seriously urged a literal
reading, (a) would mean that “in any criminal prosecution
brought by the United States . . . , [‘any self-incriminating
statement’ with respect to ‘any criminal offense’] . . . shall
be admissible in evidence if it is voluntarily given.” Thus
would many a Rule of Evidence be overridden in case after
case: a defendant’s self-incriminating statement to his
lawyer would be admissible despite his insistence on
attorney-client privilege; a fourth-hand hearsay statement
the defendant allegedly made would come in; and a defen
dant’s confession to an entirely unrelated crime committed
years earlier would be admissible without more. These
are some of the absurdities of literalism that show that
Congress could not have been writing in a literalistic
frame of mind.6
——————
6 The dissent seeks to avoid these absurd results by claiming that
“§3501(a) does not supersede ordinary evidence Rules,” post, at 10, but
its only argument for this conclusion is that “there is no reason to
suppose that Congress meant any such thing,” post, at 9. The dissent is
certainly correct that there is no reason to suppose that Congress
meant any such thing; that is what our reductio ad absurdum shows.
But that leaves the dissent saying, “§3501(a) must be read literally”
Cite as: 556 U. S. ____ (2009) 13
Opinion of the Court
B
As it turns out, there is more than reductio ad absur
dum and the antisuperfluousness canon to confirm that
subsection (a) leaves McNabb-Mallory alone, for that is
what legislative history says. In fact, the Government
concedes that subsections (a) and (b) were aimed at
Miranda, while subsection (c) was meant to modify the
presentment exclusionary rule. Tr. of Oral Arg. 38 (“I will
concede to you . . . that section (a) was considered to over
rule Miranda, and subsection (c) was addressed to
McNabb-Mallory”). The concession is unavoidable. The
Senate, where §3501 originated, split the provision into
two parts: Division 1 contained subsections (a) and (b),
and Division 2 contained subsection (c). 114 Cong. Rec.
14171 (1968). In the debate on the Senate floor immedi
ately before voting on these proposals, several Senators,
including the section’s prime sponsor, Senator McClellan,
explained that Division 1 “has to do with the Miranda
decision,” while Division 2 related to Mallory. 114 Cong.
Rec. 14171–14172. This distinct intent was confirmed by
the separate Senate votes adopting the two measures,
Division 1 by 55 to 29 and Division 2 by 58 to 26, id., at
14171–14172, 14174–14175; if (a) did abrogate McNabb-
Mallory, as the Government claims, then voting for Divi
sion 2 would have been entirely superfluous, for the Divi
sion 1 vote would already have done the job. That aside, a
sponsor’s statement to the full Senate carries considerable
weight, and Senator McClellan’s explanation that Division
1 was specifically addressed to Miranda confirms that (a)
and (b) were never meant to reach far enough to abrogate
——————
(rendering §3501(c) superfluous), “but not too literally” (so that it would
override other Rules of Evidence). The dissent cannot have it both
ways. If it means to profess literalism it will have to take the absurdity
that literalism brings with it; “credo quia absurdum” (as Tertullian
may have said). If it will not take the absurd, then its literalism is no
alternative to our reading of the statute.
14 CORLEY v. UNITED STATES
Opinion of the Court
other background evidentiary rules including McNabb-
Mallory.
Further legislative history not only drives that point
home, but conclusively shows an intent that subsection (c)
limit McNabb-Mallory, not replace it. In its original draft,
subsection (c) would indeed have done away with McNabb-
Mallory completely, for the bill as first written would have
provided that “[i]n any criminal prosecution by the United
States . . . , a confession made or given by a person who is
a defendant therein . . . shall not be inadmissible solely
because of delay in bringing such person before a [magis
trate] if such confession is . . . made voluntarily.” S. 917,
90th Cong., 2d Sess., 44–45 (1968) (as reported by Senate
Committee on the Judiciary); 114 Cong. Rec. 14172. The
provision so conceived was resisted, however, by a number
of Senators worried about allowing indefinite presentment
delays. See, e.g., id., at 11740, 13990 (Sen. Tydings) (the
provision would “permit Federal criminal suspects to be
questioned indefinitely before they are presented to a
committing magistrate”); id., at 12290 (Sen. Fong) (the
provision “would open the doors to such practices as hold
ing suspects incommunicado for an indefinite period”).
After Senator Tydings proposed striking (c) from the bill
altogether, id., at 13651 (Amendment No. 788), Senator
Scott introduced the compromise of qualifying (c) with the
words: “ ‘and if such confession was made or given by such
person within six hours following his arrest or other de
tention.’ ” Id., at 14184–14185 (Amendment No. 805).7
The amendment was intended to confine McNabb-Mallory
to excluding only confessions given after more than six
hours of delay, see 114 Cong. Rec. 14184 (remarks of Sen.
Scott) (“My amendment provides that the period during
——————
7 The proviso at the end of (c) relating to reasonable delays caused by
the means of transportation and distance to be traveled came later by
separate amendment. 114 Cong. Rec. 14787.
Cite as: 556 U. S. ____ (2009) 15
Opinion of the Court
which confessions may be received . . . shall in no case
exceed 6 hours”), and it was explicitly modeled on the
provision Congress had passed just months earlier to
govern presentment practice in the District of Columbia,
Title III of An Act Relating to Crime and Criminal Proce
dure in the District of Columbia (D. C. Crime Act),
§301(b), 81 Stat. 735–736, see, e.g., 114 Cong. Rec. 14184
(remarks of Sen. Scott) (“My amendment is an attempt to
conform, as nearly as practicable, to Title III of [the D. C.
Crime Act]”). By the terms of that Act, “[a]ny statement,
admission, or confession made by an arrested person
within three hours immediately following his arrest shall
not be excluded from evidence in the courts of the District
of Columbia solely because of delay in presentment.”
§301(b), 81 Stat. 735–736. Given the clear intent that
Title III modify but not eliminate McNabb-Mallory in the
District of Columbia, see, e.g., S. Rep. No. 912, 90th Cong.,
1st Sess., 17–18 (1967), using it as a model plainly shows
how Congress meant as much but no more in §3501(c).
In sum, the legislative history strongly favors Corley’s
reading. The Government points to nothing in this history
supporting its view that (c) created a bright-line rule for
applying (a) in cases with a presentment issue.
C
It also counts heavily against the position of the United
States that it would leave the Rule 5 presentment re
quirement without any teeth, for as the Government again
is forced to admit, if there is no McNabb-Mallory there is
no apparent remedy for delay in presentment. Tr. of Oral
Arg. 25. One might not care if the prompt presentment
requirement were just some administrative nicety, but in
fact the rule has always mattered in very practical ways
and still does. As we said, it stretches back to the common
law, when it was “one of the most important” protections
“against unlawful arrest.” McLaughlin, 500 U. S., at 60–
16 CORLEY v. UNITED STATES
Opinion of the Court
61 (SCALIA, J., dissenting). Today presentment is the
point at which the judge is required to take several key
steps to foreclose Government overreaching: informing the
defendant of the charges against him, his right to remain
silent, his right to counsel, the availability of bail, and any
right to a preliminary hearing; giving the defendant a
chance to consult with counsel; and deciding between
detention or release. Fed. Rule Crim. Proc. 5(d); see also
Rule 58(b)(2).
In a world without McNabb-Mallory, federal agents
would be free to question suspects for extended periods
before bringing them out in the open, and we have always
known what custodial secrecy leads to. See McNabb, 318
U. S. 332. No one with any smattering of the history of
20th-century dictatorships needs a lecture on the subject,
and we understand the need even within our own system
to take care against going too far. “[C]ustodial police
interrogation, by its very nature, isolates and pressures
the individual,” Dickerson, 530 U. S., at 435, and there is
mounting empirical evidence that these pressures can
induce a frighteningly high percentage of people to confess
to crimes they never committed, see, e.g., Drizin & Leo,
The Problem of False Confessions in the Post-DNA World,
82 N. C. L. Rev. 891, 906–907 (2004).
Justice Frankfurter’s point in McNabb is as fresh as
ever: “The history of liberty has largely been the history of
observance of procedural safeguards.” 318 U. S., at 347.
McNabb-Mallory is one of them, and neither the text nor
the history of §3501 makes out a case that Congress
meant to do away with it.
III
The Government’s fallback claim is that even if §3501
preserved a limited version of McNabb-Mallory, Congress
cut out the rule altogether by enacting Federal Rule of
Evidence 402 in 1975. Act of Jan. 2, Pub. L. 93–595, 88
Cite as: 556 U. S. ____ (2009) 17
Opinion of the Court
Stat. 1926. So far as it might matter here, that rule pro
vides that “[a]ll relevant evidence is admissible, except as
otherwise provided by the Constitution of the United
States, by Act of Congress, by these rules, or by other
rules prescribed by the Supreme Court pursuant to statu
tory authority.” The Government says that McNabb-
Mallory excludes relevant evidence in a way not “other
wise provided by” any of these four authorities, and so has
fallen to the scythe.
The Government never raised this argument in the
Third Circuit or the District Court, which would justify
refusing to consider it here, but in any event it has no
merit. The Advisory Committee’s Notes on Rule 402,
which were before Congress when it enacted the Rules of
Evidence and which we have relied on in the past to inter
pret the rules, Tome v. United States, 513 U. S. 150, 160
(1995) (plurality opinion), expressly identified McNabb-
Mallory as a statutorily authorized rule that would sur
vive Rule 402: “The Rules of Civil and Criminal Procedure
in some instances require the exclusion of relevant evi
dence. For example, . . . the effective enforcement of . . .
Rule 5(a) . . . is held to require the exclusion of statements
elicited during detention in violation thereof.” 28 U. S. C.
App., pp. 325–326 (citing Mallory, 354 U. S. 449, and 18
U. S. C. §3501(c)); see also Mallory, supra, at 451 (“Th[is]
case calls for a proper application of Rule 5(a) of the Fed
eral Rules of Criminal Procedure . . .”). Indeed, the Gov
ernment has previously conceded before this Court that
Rule 402 preserved McNabb-Mallory. Brief for United
States in United States v. Payner, O. T. 1979, No. 78–
1729, p. 32, and n. 13 (1979) (saying that Rule 402 “left to
the courts . . . questions concerning the propriety of ex
cluding relevant evidence as a method of implementing
the Constitution, a federal statute, or a statutorily author
ized rule,” and citing McNabb-Mallory as an example).
The Government was right the first time, and it would be
18 CORLEY v. UNITED STATES
Opinion of the Court
bizarre to hold that Congress adopted Rule 402 with a
purpose exactly opposite to what the Advisory Committee
Notes said the rule would do.
IV
We hold that §3501 modified McNabb-Mallory without
supplanting it. Under the rule as revised by §3501(c), a
district court with a suppression claim must find whether
the defendant confessed within six hours of arrest (unless
a longer delay was “reasonable considering the means of
transportation and the distance to be traveled to the near
est available [magistrate]”). If the confession came within
that period, it is admissible, subject to the other Rules of
Evidence, so long as it was “made voluntarily and . . . the
weight to be given [it] is left to the jury.” Ibid. If the
confession occurred before presentment and beyond six
hours, however, the court must decide whether delaying
that long was unreasonable or unnecessary under the
McNabb-Mallory cases, and if it was, the confession is to
be suppressed.
In this case, the Third Circuit did not apply this rule
and in consequence never conclusively determined
whether Corley’s oral confession “should be treated as
having been made within six hours of arrest,” as the Dis
trict Court held. 500 F. 3d, at 220, n. 7. Nor did the Cir
cuit consider the justifiability of any delay beyond six
hours if the oral confession should be treated as given
outside the six-hour window; and it did not make this
enquiry with respect to Corley’s written confession. We
therefore vacate the judgment of the Court of Appeals and
remand the case for consideration of those issues in the
first instance, consistent with this opinion.
It is so ordered.
Cite as: 556 U. S. ____ (2009) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–10441
_________________
JOHNNIE CORLEY, PETITIONER v. UNITED
STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[April 6, 2009]
JUSTICE ALITO, with whom THE CHIEF JUSTICE, JUSTICE
SCALIA, and JUSTICE THOMAS join, dissenting.
Section 3501(a) of Title 18, United States Code, directly
and unequivocally answers the question presented in this
case. After petitioner was arrested by federal agents, he
twice waived his Miranda1 rights and voluntarily con
fessed, first orally and later in writing, that he had par
ticipated in an armed bank robbery. He was then taken
before a Magistrate Judge for an initial appearance. The
question that we must decide is whether this voluntary
confession may be suppressed on the ground that there
was unnecessary delay in bringing petitioner before the
Magistrate Judge. Unless the unambiguous language of
§3501(a) is ignored, petitioner’s confession may not be
suppressed.
I
Section 3501(a) states: “In any criminal prosecution
brought by the United States . . ., a confession . . . shall be
admissible in evidence if it is voluntarily given.”
Applying “settled principles of statutory construction,”
“we must first determine whether the statutory text is
plain and unambiguous,” and “[i]f it is, we must apply the
——————
1 See Miranda v. Arizona, 384 U. S. 436 (1966).
2 CORLEY v. UNITED STATES
ALITO, J., dissenting
statute according to its terms.” Carcieri v. Salazar, 555
U. S. ___, ___ (2009) (slip op., at 7). Here, there is nothing
ambiguous about the language of §3501(a), and the Court
does not claim otherwise. Although we normally presume
that Congress “means in a statute what it says there,”
Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253–254
(1992), the Court today concludes that §3501(a) does not
mean what it says and that a voluntary confession may be
suppressed under the McNabb-Mallory rule.2 This super
visory rule, which requires the suppression of a confession
where there was unnecessary delay in bringing a federal
criminal defendant before a judicial officer after arrest,
was announced long before 18 U. S. C. §3501(a) was
adopted. According to the Court, this rule survived the
enactment of §3501(a) because Congress adopted that
provision for the sole purpose of abrogating Miranda and
apparently never realized that the provision’s broad lan
guage would also do away with the McNabb-Mallory rule.
I disagree with the Court’s analysis and therefore respect
fully dissent.
II
A
The Court’s first and most substantial argument in
vokes “the antisuperfluousness canon,” ante, at 12, under
which a statute should be read, if possible, so that all of its
provisions are given effect and none is superfluous. Ante,
at 9–12. Section 3501(c) provides that a voluntary confes
sion “shall not be inadmissible solely because of the delay”
in bringing the defendant before a judicial officer if the
defendant is brought before a judicial officer within six
hours of arrest. If §3501(a) means that a voluntary con
fession may never be excluded due to delay in bringing the
——————
2 See McNabb v. United States, 318 U. S. 332 (1943), and Mallory v.
United States, 354 U. S. 449 (1957).
Cite as: 556 U. S. ____ (2009) 3
ALITO, J., dissenting
defendant before a judicial officer, the Court reasons, then
§3501(c), which provides a safe harbor for a subset of
voluntary confessions (those made in cases in which the
initial appearance occurs within six hours of arrest), is
superfluous.
Canons of interpretation “are quite often useful in close
cases, or when statutory language is ambiguous. But we
have observed before that such ‘interpretative canon[s are]
not a license for the judiciary to rewrite language enacted
by the legislature.’ ” United States v. Monsanto, 491 U. S.
600, 611 (1989) (quoting United States v. Albertini, 472
U. S. 675, 680 (1985)). Like other canons, the antisuper
fluousness canon is merely an interpretive aid, not an
absolute rule. See Connecticut Nat. Bank, 503 U. S., at
254 (“When the words of a statute are unambiguous, then,
this first canon is also the last: ‘judicial inquiry is com
plete’ ”). There are times when Congress enacts provisions
that are superfluous, and this may be such an instance.
Cf. id., at 253 (noting that “[r]edundancies across statutes
are not unusual events in drafting”); Gutierrez de Martinez
v. Lamagno, 515 U. S. 417, 445–446 (1995) (SOUTER, J.,
dissenting) (noting that, although Congress “indulged in a
little redundancy,” the “inelegance may be forgiven” be
cause “Congress could sensibly have seen some practical
value in the redundancy”).
Moreover, any superfluity created by giving subsection
(a) its plain meaning may be minimized by interpreting
subsection (c) to apply to confessions that are otherwise
voluntary. The Government contends that §3501(c),
though inartfully drafted, is not superfluous because what
the provision means is that a confession is admissible if it
is given within six hours of arrest and it is otherwise vol
untary—that is, if there is no basis other than prepre
sentment delay for concluding that the confession was
coerced. Read in this way, §3501(c) is not superfluous.
The Court rejects this argument on the ground that
4 CORLEY v. UNITED STATES
ALITO, J., dissenting
“ ‘Congress did not write the statute that way,’ ” ante, at
10, and thus, in order to adhere to a narrow reading of
§3501(c), the Court entirely disregards the unambiguous
language of §3501(a). Although §3501(a) says that a
confession is admissible if it is “voluntarily given,” the
Court reads that provision to mean that a voluntary con
fession may not be excluded on the ground that the confes
sion was obtained in violation of Miranda. To this read
ing, the short answer is that Congress really did not write
the statute that way.
As is true with most of the statutory interpretation
questions that come before this Court, the question in this
case is not like a jigsaw puzzle. There is simply no perfect
solution to the problem before us.
Instead, we must choose between two imperfect solu
tions. The first (the one adopted by the Court) entirely
disregards the clear and simple language of §3501(a), rests
on the proposition that Congress did not understand the
plain import of the language it used in subsection (a), but
adheres to a strictly literal interpretation of §3501(c). The
second option respects the clear language of subsection (a),
but either accepts some statutory surplusage or interprets
§3501(c)’s reference to a voluntary confession to mean an
otherwise voluntary confession. To my mind, the latter
choice is far preferable.
B
In addition to the antisuperfluousness canon, the Court
relies on the canon that favors a specific statutory provi
sion over a conflicting provision cast in more general
terms, ante, at 11, but that canon is inapplicable here. For
one thing, §3501(a) is quite specific; it specifically provides
that if a confession is voluntary, it is admissible. More
important, there is no other provision, specific or general,
that conflicts with §3501(a). See National Cable & Tele
communications Assn., Inc. v. Gulf Power Co., 534 U. S.
Cite as: 556 U. S. ____ (2009) 5
ALITO, J., dissenting
327, 335–336 (2002) (“It is true that specific statutory
language should control more general language when there
is a conflict between the two. Here, however, there is no
conflict” (emphasis added)). Subsection (c) is not conflict
ing because it does not authorize the suppression of any
voluntary confession. What the Court identifies is not a
conflict between two statutory provisions but a conflict
between the express language of one provision (§3501(a))
and the “negative implication” that the Court draws from
another (§3501(c)). United States v. Alvarez-Sanchez, 511
U. S. 350, 355 (1994). Because §3501(c) precludes the
suppression of a voluntary confession based solely on a
delay of less than six hours, the Court infers that Con
gress must have contemplated that a voluntary confession
could be suppressed based solely on a delay of more than
six hours. The Court cites no authority for a canon of
interpretation that favors a “negative implication” of this
sort over clear and express statutory language.
C
The Court contends that a literal interpretation of
§3501(a) would leave the prompt presentment require
ment set out in Federal Rule of Criminal Procedure 5(a)(1)
“without any teeth, for . . . if there is no McNabb-Mallory
there is no apparent remedy for delay in presentment.”
Ante, at 15. There is nothing strange, however, about a
prompt presentment requirement that is not enforced by a
rule excluding voluntary confessions made during a period
of excessive prepresentment delay. As the Court notes,
“[t]he common law obliged an arresting officer to bring his
prisoner before a magistrate as soon as he reasonably
could,” ante, at 1, but the McNabb-Mallory supervisory
rule was not adopted until the middle of the 20th century.
To this day, while the States are required by the Fourth
Amendment to bring an arrestee promptly before a judi
cial officer, see, e.g., County of Riverside v. McLaughlin,
6 CORLEY v. UNITED STATES
ALITO, J., dissenting
500 U. S. 44, 56 (1991), we have never held that this con
stitutional requirement is backed by an automatic exclu
sionary sanction, see, e.g., Hudson v. Michigan, 547 U. S.
586, 592 (2006). And although the prompt presentment
requirement serves interests in addition to the prevention
of coerced confessions, the McNabb-Mallory rule provides
no sanction for excessive prepresentment delay in those
instances in which no confession is sought or obtained.
Moreover, the need for the McNabb-Mallory exclusion
ary rule is no longer clear. That rule, which was adopted
long before Miranda, originally served a purpose that is
now addressed by the giving of Miranda warnings upon
arrest. As Miranda recognized, McNabb and Mallory
were “responsive to the same considerations of Fifth
Amendment policy” that the Miranda rule was devised to
address. Miranda v. Arizona, 384 U. S. 436, 463 (1966).
In the pre-Miranda era, the requirement of prompt
presentment ensured that persons taken into custody
would, within a relatively short period, receive advice
about their rights. See McNabb v. United States, 318
U. S. 332, 344 (1943). Now, however, Miranda ensures
that arrestees receive such advice at an even earlier point,
within moments of being taken into custody. Of course,
arrestees, after receiving Miranda warnings, may waive
their rights and submit to questioning by law enforcement
officers, see, e.g., Davis v. United States, 512 U. S. 452,
458 (1994), and arrestees may likewise waive the prompt
presentment requirement, see, e.g., New York v. Hill, 528
U. S. 110, 114 (2000) (“We have . . . ‘in the context of a
broad array of constitutional and statutory provisions,’
articulated a general rule that presumes the availability of
waiver, . . . and we have recognized that ‘the most basic
rights of criminal defendants are . . . subject to waiver’ ”).
It seems unlikely that many arrestees who are willing to
waive the right to remain silent and the right to the assis
tance of counsel during questioning would balk at waiving
Cite as: 556 U. S. ____ (2009) 7
ALITO, J., dissenting
the right to prompt presentment. More than a few courts
of appeals have gone as far as to hold that a waiver of
Miranda rights also constitutes a waiver under McNabb-
Mallory. See, e.g., United States v. Salamanca, 990 F. 2d
629, 634 (CADC), cert. denied, 510 U. S. 928 (1993);
United States v. Barlow, 693 F. 2d 954, 959 (CA6 1982),
cert. denied, 461 U. S. 945 (1983); United States v. Indian
Boy X, 565 F. 2d 585, 591 (CA9 1977), cert. denied, 439
U. S. 841 (1978); United States v. Duvall, 537 F. 2d 15, 23–
24, n. 9 (CA2), cert. denied, 426 U. S. 950 (1976); United
States v. Howell, 470 F. 2d 1064, 1067, n. 1 (CA9 1972);
Pettyjohn v. United States, 419 F. 2d 651, 656 (CADC
1969), cert. denied, 397 U. S. 1058 (1970); O’Neal v. United
States, 411 F. 2d 131, 136–137 (CA5), cert. denied, 396
U. S. 827 (1969). Whether or not those decisions are
correct, it is certainly not clear that the McNabb-Mallory
rule adds much protection beyond that provided by
Miranda.
D
The Court contends that the legislative history of §3501
supports its interpretation, but the legislative history
proves nothing that is not evident from the terms of the
statute. With respect to §3501(a), the legislative history
certainly shows that the provision’s chief backers meant to
do away with Miranda,3 but the Court cites no evidence
that this was all that §3501(a) was intended to accom
plish. To the contrary, the Senate Report clearly says that
§3501(a) was meant to reinstate the traditional rule that a
——————
3 At argument, the Government conceded “that section (a) was con
sidered to overrule Miranda and subsection (c) was addressed to
McNabb-Mallory.” See Tr. of Oral Arg. 38. It is apparent that the
attorney for the Government chose his words carefully and did not
concede, as the Court seems to suggest, that subsection (a) was in
tended to do no more than to overrule Miranda or that subsection (c)
was the only part of §3501 that affected the McNabb-Mallory rule.
8 CORLEY v. UNITED STATES
ALITO, J., dissenting
confession should be excluded only if involuntary, see
S. Rep. No. 1097, 90th Cong., 2d Sess., 38 (1968) (Senate
Report), a step that obviously has consequences beyond
the elimination of Miranda. And the Senate Report re
peatedly cited Escobedo v. Illinois, 378 U. S. 478 (1964), as
an example of an unsound limitation on the admission of
voluntary confessions, see Senate Report 41–51, thus
illustrating that §3501(a) was not understood as simply an
anti-Miranda provision. Whether a majority of the Mem
bers of the House and Senate had the McNabb-Mallory
rule specifically in mind when they voted for §3501(a) is
immaterial. Statutory provisions may often have a reach
that is broader than the specific targets that the lawmak
ers might have had in mind at the time of enactment.
The legislative history relating to §3501(c) suggests
nothing more than that some Members of Congress may
mistakenly have thought that the version of §3501 that
was finally adopted would not displace the McNabb-
Mallory rule. As the Court relates, the version of §3501(c)
that emerged from the Senate Judiciary Committee would
have completely eliminated that rule. See ante, at 12–13.
Some Senators opposed this, and the version of this provi
sion that was eventually passed simply trimmed the rule.
It is possible to identify a few Senators who spoke out in
opposition to the earlier version of subsection (c) and then
voted in favor of the version that eventually passed, and it
is fair to infer that these Senators likely thought that the
amendment of subsection (c) had saved the rule. See 114
Cong. Rec. 14172–14175, 14798 (1968). But there is no
evidence that a majority of the House and Senate shared
that view, and any Member who took a few moments to
read subsections (a) and (c) must readily have understood
that subsection (a) would wipe away all non-constitution
ally based rules barring the admission of voluntary confes
sions, not just Miranda, and that subsection (c) did not
authorize the suppression of any voluntary confessions.
Cite as: 556 U. S. ____ (2009) 9
ALITO, J., dissenting
The Court unjustifiably attributes to a majority of the
House and Senate a mistake that, the legislative history
suggests, may have been made by only a few.
E
Finally, the Court argues that under a literal reading of
§3501(a), “many a rule of evidence [would] be overridden
in case after case.” Ante, at 12. In order to avoid this
absurd result, the Court says, it is necessary to read
§3501(a) as merely abrogating Miranda and not
the McNabb-Mallory rule. There is no merit to this
argument.4
The language that Congress used in §3501(a)—a confes
sion is “admissible” if “voluntarily given”—is virtually a
verbatim quotation of the language used by this Court in
describing the traditional rule regarding the admission of
confessions. See, e.g., Haynes v. Washington, 373 U. S.
503, 513 (1963) (“ ‘ In short, the true test of admissibility is
that the confession is made freely, voluntarily and without
compulsion or inducement of any sort.’ ” (quoting Wilson v.
United States, 162 U. S. 613, 623 (1896))); Lyons v. Okla
homa, 322 U. S. 596, 602 (1944); Ziang Sung Wan v.
United States, 266 U. S. 1, 15 (1924); Bram v. United
States, 168 U. S. 532, 545 (1897). In making these state
ments, this Court certainly did not mean to suggest that a
voluntary confession must be admitted in those instances
in which a standard rule of evidence would preclude ad
mission, and there is no reason to suppose that Congress
meant any such thing either. In any event, the Federal
——————
4 Contrary to the Court’s suggestion, cases in which one of the stan
dard Rules of Evidence might block the admission of a voluntary
confession would seem quite rare, and the Court cites no real-world
examples. The Court thus justifies its reading of §3501, which totally
disregards the clear language of subsection (a), based on a few essen
tially fanciful hypothetical cases that, in any event, have been covered
since 1975 by the Federal Rules of Evidence.
10 CORLEY v. UNITED STATES
ALITO, J., dissenting
Rules of Evidence now make it clear that §3501(a) does
not supersede ordinary evidence Rules, including Rules
regarding privilege (Rule 501), hearsay (Rule 802), and
restrictions on the use of character evidence (Rule 404).
Thus, it is not necessary to disregard the plain language of
§3501(a), as the Court does, in order to avoid the sort of
absurd results to which the Court refers.
For all these reasons, I would affirm the decision of the
Court of Appeals, and I therefore respectfully dissent.
| {
"pile_set_name": "FreeLaw"
} |
In the United States Court of Federal Claims
Nos. 17-449, 17-499
Filed: June 14, 2017
*************************************
*
CONTINENTAL SERVICE GROUP, *
INC., and PIONEER CREDIT *
RECOVERY, INC., *
*
Plaintiffs, *
*
and *
*
COLLECTION TECHNOLOGY, INC., *
ALLTRAN EDUCATION, INC., and * Mootness;
PROGRESSIVE FINANCIAL SERVICES, *
Rule of the United States Court of Federal
INC., *
* Claims (“RCFC”) 12(b)(1) (Lack of Subject
Intervenor-Plaintiffs, * Matter Jurisdiction); RCFC 41(a)(2)(A)(ii)
* (Voluntary Dismissal By The Plaintiff).
v. *
*
THE UNITED STATES, *
*
Defendant, *
*
and *
*
CBE GROUP, INC., PREMIERE *
CREDIT OF NORTH AMERICA, LLC, *
GC SERVICES LIMITED PARTNERSHIP, *
FINANCIAL MANAGEMENT SYSTEMS, *
INC., VALUE RECOVERY HOLDINGS, *
LLC, and WINDHAM PROFESSIONALS, *
INC., *
*
Intervenor-Defendants. *
*
*************************************
Todd J. Canni, Pillsbury Winthrop Shaw Pittman, LLP, Los Angeles, California, Counsel for
Plaintiff Continental Services Group, Inc.
Jonathan D. Shaffer, Smith Pachter McWhorter PLC, Tysons Corner, Virginia, Counsel for
Plaintiff Pioneer Credit Recovery, Inc.
Lauren S. Moore, United States Department of Justice, Washington, D.C., Counsel for the
Government.
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
I. RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY.1
On December 11, 2015, the ED issued Solicitation No. ED-FSA-16-R-0009 (the
“Solicitation”). 4/10/17 Pioneer Compl. at ¶ 29. On December 9, 2016, after evaluating forty-
eight proposals, the ED awarded contracts to: (1) Financial Management Service Investment
Corp.; (2) GC Services Limited Partnership; (3) Premiere Credit of North America, LLC; (4) The
CBE Group; (5) Transworld Systems, Inc.; (6) Value Recovery Holding, LLC; and (7) Windham
Professionals, Inc. (collectively “the current awardees”). 4/10/17 Pioneer Compl. at ¶ 67.
Between December 19, 2016 and January 9, 2017, the GAO received twenty-four bid
protests challenging the ED’s award. See Gen. Revenue Corp., B-414220.2 at *1. On March 27,
2017, the GAO issued a decision sustaining seventeen of the bid protests, because the ED’s
evaluation of bids, under the “past performance” and “management approach” factors, was
unreasonable. See id. at *10–*28. In addition, the March 27, 2017 GAO decision recommended
that
the [ED] conduct and adequately document a new evaluation of proposals under
the management approach and past performance factors including, as appropriate,
amending the solicitation to reasonably reflect the agency’s needs, conducting
discussions, and receiving revised proposals. After conducting its new evaluation,
the agency should prepare and adequately document a new source selection
decision. In the event that any of the current awardees are not evaluated as having
1
The facts discussed herein were derived from: the Government Accountability Office’s
(“GAO”) March 27, 2017 Decision in Gen. Revenue Corp., B-414220.2, Mar. 27, 2017, 2017 WL
1316186; Continental Service Group Inc.’s (“Continental”) March 28, 2017 Complaint (“3/28/17
Continental Compl.”); the March 28, 2017 Declaration of J. Christopher Lang, Continental’s Vice
President of Contract Administration (“3/28/17 Lang Decl.”); the April 4, 2017 Declaration of
Patty Queen-Harper, Contracting Officer for the United States Department of Education (“ED”)
(“4/4/17 Queen-Harper Decl.”); Pioneer Credit Recovery, Inc.’s (“Pioneer”) April 10, 2017
Complaint (“4/10/17 Pioneer Compl.”); evidence adduced at an oral argument held on May 2,
2017 (“5/2/17 TR at 1–160”); and the Government’s May 19, 2017 Notice Of Corrective Action
(“5/19/17 Gov’t Notice). See Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583–84 (Fed.
Cir. 1993) (holding that the court can look beyond the face of the pleadings in order to find
predicate jurisdictional facts when deciding a motion to dismiss for lack of subject matter
jurisdiction).
2
a proposal among the most advantageous to the government, the agency should
terminate any such awards for the government’s convenience.
Id. at * 30.
On March 28, 2017, Continental filed a Complaint in the United States Court of Federal
Claims, alleging that the ED’s determination that Continental was not responsible, based on
inconsistencies in its proposed small business subcontracting plan, violated the Solicitation and
Federal Acquisition Regulations (“FAR”), because:
the ED did not negotiate with Continental after it identified potential
inconsistencies in Continental’s proposed subcontracting plan;
the ED did not consider Continental’s past compliance with subcontracting
requirements;
the ED provided misleading instructions to Continental about the requirements of
the subcontracting plan;
the ED treated offerors disparately by allowing some, but not all, to submit revised
subcontracting plans; and
the ED applied inconsistent standards when evaluating the offerors’ subcontracting
plans.
3/28/17 Continental Compl. at ¶¶ 68–104.
Continental’s March 28, 2017 Complaint requested that the court:
declare that the ED violated the Solicitation and applicable FAR provisions;;
enjoin the ED from placing more than 37% of monthly accounts with small
businesses that provide the ED with student debt collection services under
Solicitation No. ED-FSA-13-R-0006;
direct the ED to award Continental a contract under the Solicitation; and
afford Continental any additional relief that the court deems proper.
3/28/17 Continental Compl. at ¶¶ 107–14, Prayer For Relief 1–5.
On April 10, 2017, Pioneer also filed a Complaint in the United States Court of Federal
Claims, alleging that the ED’s determination that Pioneer was not responsible due to
inconsistencies in its small business subcontracting plan was contrary to law, arbitrary and
capricious, and irrational, because:
the ED did not negotiate with Pioneer after it identified potential inconsistencies in
Pioneer’s proposed subcontracting plan;
3
the ED provided misleading instructions, or, alternatively, the Solicitation
contained a latent ambiguity, about the requirements of the subcontracting plan;
the ED evaluated the offerors’ subcontracting plans under disparate standards; and
the ED treated the subcontracting plan as a dispositive factor in its responsibility
determination.
4/10/17 Pioneer Compl. at ¶¶ 80–130.
Pioneer’s April 10, 2017 Complaint requested that the court:
declare that the ED violated the Solicitation and applicable FAR provisions;
direct the ED to award Pioneer a contract under the Solicitation;
direct the ED to conduct negotiations with Pioneer, allow Pioneer to submit
revisions to its subcontracting plan based on those negotiations and re-evaluate
Pioneer’s bid;
“continu[e] jurisdiction over this case to ensure compliance with the [c]ourt’s
mandate;”
award Plaintiff’s costs, including reasonable attorney fees; and
award any other relief the court deems appropriate.
4/10/17 Pioneer Compl. at Prayer For Relief 1–6.
On March 29, 2017, the court issued a Temporary Restraining Order (“TRO”), determining
that the four-factor test provided by the United States Court of Appeals for the Federal Circuit in
U.S. Ass’n of Importers of Textiles & Apparel v. United States, 413 F.3d 1344, 1347-48 (Fed. Cir.
2005), weighed in favor of granting Continental injunctive relief because: “ Continental would be
immediately and irreparably injured, if [the] ED moved forward with performance on the
contract[s] at issue in this case;” “the public interest is served by open and fair competition in
public procurement and preserving the integrity of the competitive process;” and “the balance of
hardships weighs in favor of Continental[, since] . . . any harm to the Government caused by delay
in performance is generally less significant than the harm caused to the bid protestor.” ECF No. 9
at 2–3 (citing FMC Corp. v. United States, 3 F.3d 424, 427 (Fed. Cir. 1993) (“No one factor, taken
individually, is necessarily dispositive . . . . [T]he weakness of the showing regarding one factor
may be overborne by the strength of others.”)). The March 29, 2017 TRO enjoined the ED from:
(1) authorizing the purported awardees to perform on the contract award under
Solicitation No. ED-FSA-16-R-0009 for a period of fourteen days, i.e. until
April 12, 2017; and
4
(2) transferring work to be performed under the contract at issue in this case to
other contracting vehicles to circumvent or moot this bid protest for a period
of fourteen days, i.e. until April 12, 2017.2
ECF No. 9 at 3.
On May 2, 2017, the court convened a Preliminary Injunction Hearing. On the same day,
the court issued a Preliminary Injunction enjoining the ED, until May 22, 2017, from:
(1) authorizing the purported awardees to perform on the contract awards under
Solicitation No. ED-FSA-16-R-0009; and
(2) transferring work to be performed under the contract at issue in this case to
other contracting vehicles to circumvent or moot this bid protest.3
ECF No. 87.
On May 19, 2017, the Government filed a Notice Of Corrective Action advising the court
that, consistent with the GAO’s March 27, 2017 decision, the ED plans to allow all offerors to
submit new past performance proposals and management plans, and correct the mistakes identified
by the GAO’s March 27, 2017 decision regarding the evaluation of bids under the past performance
and management approach factors. 5/19/17 Gov’t Notice at 7–8. The ED also will allow all of
the offerors’ to correct inconsistencies in their small business subcontracting plans and re-submit
those plans. 5/19/17 Gov’t Notice at 8–9. After conducting the reevaluation, the ED intends to
issue a new source selection decision. 5/19/17 Gov’t Notice at 9. If “the current awardees are not
evaluated as having a proposal among the most advantageous to the Government, the ED will
terminate those awards for the convenience of the Government.” 5/19/17 Gov’t Notice at 9.
The May 19, 2017 Notice also advised the court that the ED would implement its corrective
action plan according to the following schedule:
May 26, 2017 Solicitation amendment and request for revised proposals
issued[.]
June 16, 2017 Due date for the submission of revised proposals[.]
2
On April 10, 2017, the court extended the March 29, 2017 TRO for fourteen days, i.e.,
until April 24, 2017. ECF No. 56. On April 24, 2017, the court extended the TRO for another
fourteen-day period, i.e., until May 8, 2017. ECF No. 73.
3
On May 22, 2017, the court extended the Preliminary Injunction until June 1, 2017. ECF
No. 132. On May 31, 2017 the court extended the Preliminary Injunction until “the viability of
the debt collection contracts at issue is resolved.” ECF No. 143 at 2.
5
June 19, 2017 to Evaluation of past performance and management approach;
August 24, 2017 selection of most advantageous proposals, responsibility
determinations and other pre-award activities[.]
August 25, 2017 Notice of awards and notices of termination issued[.]
5/19/17 Gov’t Notice at 9.
On May 23, 2017, the Government filed a Motion To Dismiss (“5/23/17 Gov’t Mot.”),
pursuant to Rule of the United States Court of Federal Claims (“RCFC”) 12(b)(1), arguing that all
of the claims in Continental’s March 28, 2017 Complaint and Pioneer’s April 10, 2017 Complaint
are moot in light of the ED’s decision to take corrective action. ECF No. 133, 5/23/17 Gov’t Mot.
at 1–2.
On May 25, 2017, the Government filed an Amendment To Defendant’s Notice Of
Corrective Action (“5/25/17 Gov’t Notice”) stating that, in addition to allowing the offerors to
submit revised small business subcontracting plans, the ED would allow offerors to submit revised
small business participation plans. ECF No 135, 5/25/17 Gov’t Notice at 2.
On May 30, 2017, Pioneer filed a Response to the Government’s May 23, 2017 Motion To
Dismiss (“5/30/17 Pioneer Resp.”). ECF No. 139. On May 31, 2017, Continental also filed a
Response (“5/31/2017 Continental Resp.”). ECF No. 141. On June 2, 2017, the Government filed
a Reply (“6/2/17 Gov’t Reply”). ECF No. 145.
II. DISCUSSION.
A. Standard Of Review For Motion To Dismiss For Lack Of Subject Matter
Jurisdiction, Pursuant To RCFC 12 (b)(1).
A challenge to the United States Court of Federal Claims’ “general power to adjudicate in
specific areas of substantive law . . . is properly raised by a [RCFC] 12(b)(1) motion[.]”
Palmer v. United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999). When considering whether to
dismiss an action for lack of subject matter jurisdiction, the court accepts as true all undisputed
facts asserted in the plaintiff’s complaint and draws all reasonable inferences in favor of the
plaintiff. See Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011).
When the motion to dismiss challenges the factual basis for the court’s jurisdiction, however, the
court may look beyond the face of the pleading to establish the predicate jurisdictional facts. See
Cedars-Sinai Med. Ctr., 11 F.3d at 1584 (“In establishing the predicate jurisdictional facts, a court
is not restricted to the face of the pleadings, but may review evidence extrinsic to the pleadings,
including affidavits and deposition testimony.”). The plaintiff bears the burden of establishing
subject matter jurisdiction by a preponderance of the evidence. See Brandt v. United States, 710
F.3d 1369, 1373 (Fed. Cir. 2013).
6
B. The Government’s May 23, 2017 Motion To Dismiss For Lack Of Subject
Matter Jurisdiction, Pursuant To RCFC 12(b)(1).
1. The Government’s Argument.
The Government argues that “a case is moot when the issues presented are no longer ‘live’
or the parties lack a legally cognizable interest in the outcome.” 5/23/17 Gov’t Mot. at 4 (quoting
Cnty of L.A. v. Davis, 440 U.S. 625, 631 (1979)). In addition, “jurisdiction, properly acquired,
may abate if the case become moot because . . . interim relief or events have completely and
irrevocably eradicated the effects of the alleged violation.” 5/23/17 Gov’t Mot. at 4–5 (quoting
Davis, 440 U.S. at 631). In this case, Continental’s March 28, 2017 Complaint and Pioneer’s April
10, 2017 Complaint challenge the ED’s determination that Continental and Pioneer were not
responsible, based on inconsistencies in their small business subcontracting plans. But, those
claims are moot, because the ED’s corrective action plan will allow Continental and Pioneer to
compete for a debt-collection contract under Solicitation No. ED-FSA-16-R-0009, as if the ED
never determined that they were not responsible. 5/23/17 Gov’t Mot. at 3, 5.
The Government also argues that the ED does not need to complete the corrective action
for the claims alleged in the March 28, 2017 Complaint and April 10, 2017 Complaint to become
moot; instead, the ED’s decision to take corrective action is sufficient to render the case moot.
5/23/17 Gov’t Mot. at 5–6 (citing Guardian Moving and Storage, Inc. v. United States, 657 F.
Appx. 1018, 1025 (Fed. Cir. Aug. 22, 2016)). Moreover, the court may not retain jurisdiction over
the moot claims to supervise the ED’s corrective action, because the court is “required to assume
that the Government [will] carry out the corrective action in good faith.” 5/23/17 Gov’t Mot. at 6
(quoting Chapman Law Firm Co. v. Greenleaf Cost. Co., 490 F.3d 934 (Fed. Cir. 2007)).
2. Continental Service Group, Inc.’s Response.
Continental responds that “a case is not moot as long as the plaintiff’s relief is outstanding.”
5/31/17 Continental Resp. at 5. The March 28, 2017 Complaint requested that the court enjoin the
ED from “diluting the contracts under protest by transferring work destined for those contract to
other contracting vehicles during the pendency of [the] ED’s corrective action.” 5/31/17
Continental Resp. at 1. If the court dismisses the March 28, 2017 Complaint, the May 31, 2017
Preliminary Injunction will be lifted and the ED will be able to divert work to other contracting
vehicles. Therefore, Continental’s request for injunctive relief, pending completion of the
corrective action, remains outstanding. 5/31/17 Continental Resp. at 6.
3. Pioneer Credit Recovery, Inc.’s Response.
Pioneer’s view is that the claims alleged in the April 10, 2017 Complaint are not moot,
because the ED’s corrective action does not: (1) grant all the relief requested by Pioneer, or (2)
eradicate the consequences of the initial non-responsibility determination. 5/30/17 Pioneer Resp.
at 7. Specifically, the April 10, 2017 Complaint requested that the court stay performance on the
seven contract awards made under the ED’s first evaluation. 5/30/17 Pioneer Resp. at 7.
Therefore, “[t]he Pioneer action is not moot unless [the] ED agrees to stay the seven protested
awards pending completion of corrective action[.]” 5/30/17 Pioneer Resp. at 2.
7
In addition, the Government mischaracterizes Guardian Moving, because, in that case, the
United States Court of Appeals for the Federal Circuit did not consider whether an agency’s
decision to implement corrective action was sufficient to render a bid protest moot, since the trial
court dismissed the bid protest after corrective action was complete. 5/30/17 Pioneer Resp. at 9.
Therefore, the Government’s argument that Guardian Moving stands for the proposition that an
agency’s decision to take corrective action is sufficient to render a bid protest moot is not correct.
5/30/17 Pioneer Resp. at 9.
4. The Government’s Reply.
The Government replies that a case becomes moot when, “during the course of litigation,
it develops that the relief sought has been granted or that the questions originally in controversy
between the parties are no longer at issue.” 6/2/17 Gov’t Reply at 4 (emphasis in the original)
(quoting Chapman Law Firm, 490 F.3d at 939). Continental’s March 28, 2017 Complaint and
Pioneer’s April 10, 2017 Complaint “challenged the non-responsibility determinations that they
received during the initial procurement process.” 6/2/17 Gov’t Reply at 4. But, those non-
responsibility determinations are no longer in controversy, because, under the ED’s proposed
corrective action, Continental and Pioneer will be entitled to submit new proposals and have those
proposals evaluated. 6/2/17 Gov’t Reply at 4.
In addition, completion of corrective action is not “a necessary predicate for mootness.”
6/2/17 Gov’t Reply at 5. In fact, the United States Court of Appeals for the Federal Circuit has
observed that “there [is] nothing interlocutory, uncertain, or tentative” about an agency’s decision
to take corrective action since it is sufficiently final to allow an unsatisfied contractor to protest
that action. 6/2/17 Gov’t Reply at 5 (quoting System App. & Techs., Inc. v. United States, 691
F.3d 1374, 1384–85 (Fed. Cir. 2012). Continental and Pioneer fail to provide any precedential
authority to the contrary. 6/2/17 Gov’t Reply at 5.
To the extent that Continental argues that the ED might diminish the amount of work
available under the disputed contracts, that issue is not ripe for judicial review. 6/2/17 Gov’t Reply
at 6. As such, “Continental’s imagined future cause of action against the Government is
insufficient upon which to base this [c]ourt’s continued jurisdiction.” 6/2/17 Gov’t Reply at 6.
Regarding Pioneer’s argument that the claims alleged in the April 10, 2017 Complaint are
not moot, “unless [the] ED agrees to stay the seven protested awards,” the Government points out
that, “[the] ED has already stated that it intends to voluntarily stay performance on the seven
contracts awarded under the subject solicitation pending the conclusion of the corrective action.”
6/2/17 Gov’t Reply at 2.
5. The Court’s Resolution.
“A case is moot when the issues presented “are no longer ‘live’ or the parties lack a legally
cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969). Generally,
“voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and
determine the case.” United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953). The United
States Supreme Court, however, has held that a case may become moot due to voluntary cessation
of the challenged conduct when: “(1) it can be said with assurance that ‘there is no reasonable
8
expectation . . .’ that the alleged violation will recur[;] and (2) interim relief or events have
completely and irrevocably eradicated the effects of the alleged violation.” Davis, 440 U.S. at 631
(internal citations omitted).
The Government, however, urges the court to apply a different standard to determine
whether Continental and Pioneer’s cases are moot citing Chapman Law Firm, where the United
States Court of Appeals for the Federal Circuit held that a case is moot if, “the relief sought has
been granted or [] the questions originally in controversy between the parties are no longer at
issue.” 6/2/17 Gov’t Reply at 4 (emphasis in the original) (quoting Chapman Law Firm, 490 F.3d
at 939). But, in Chapman Law Firm, our appeals court also noted that “the [United States]
Supreme Court has recognized an exception to this rule when the defendant voluntarily ceases the
challenged practice.” Chapman Law Firm, 490 F.3d at 939. In such cases, mootness is determined
according to the test in Davis. Id. (citing Davis, 440 U.S. at 631).
The March 28, 2017 Complaint and April 10, 2017 Complaint challenge the ED’s
determination that the proposals of the respective plaintiffs were not “responsible” due to
inconsistencies in their small business subcontracting plans. 3/28/17 Continental Compl. at ¶¶ 68–
104; 4/10/17 Pioneer Compl. at ¶¶ 80–130. Under the ED’s corrective action, Continental and
Pioneer will have an opportunity to correct inconsistencies in their subcontracting plans and submit
new proposals for evaluation. 5/19/17 Gov’t Notice at 8–9. Because the court must “assume that
the Government [will] carry out the corrective action in good faith,” see Chapman Law Firm, 490
F.3d at 941, there is no reasonable expectation that the ED will repeat the same errors in evaluating
Continental and Pioneer’s revised proposals. Therefore, the first element of the Davis test is
satisfied.
The Government’s May 19, 2017 Notice Of Corrective Action, however, did not
“completely and irrevocably eradicate[] the effects of the [] violation[s]” alleged in the March 28,
2017 Complaint. See Davis, 440 U.S. at 631. At present, Continental has no contract under which
it can receive new debt collection accounts. 5/2/17 TR at 66 (Ms. Moore). Consequently,
Continental is not able to compete for new accounts, until the corrective action is complete and
the ED awards new contracts under the Solicitation. In the meantime, the ED may assign accounts
to other debt collection companies. 3/28/17 Lang Decl. at ¶¶ 6, 10–12. Continental estimates that
the transfer of new accounts that Continental otherwise would have received will result in a loss
of $7 million in revenue per month. 3/28/17 Lang Decl. at ¶ 26. This economic injury was caused
by the ED’s determination that Continental was not responsible and the effects thereof will not end
until the corrective action is in fact complete. Therefore, the court has determined that the ED’s
proposed corrective action does not satisfy the second element of the Davis test.
Today, Continental’s economic injury is continuing and is an appropriate basis for the court
to determine that the March 28, 2017 Complaint is not moot. The issue before the court is whether
the ED’s corrective action “completely and irrevocably eradicated the effects of the [relevant]
violation.” Davis, 440 U.S. at 631 (emphasis added). “Irrevocably” means “in a way that cannot
be changed,” and thus includes consideration of future events. See OXFORD ONLINE DICTIONARY,
https://en.oxforddictionaries.com/definition/irrevocably, (last visited June 13, 2017).
Accordingly, the second element of the Davis test, not only allows, but requires the court to
consider the possibility of future harms to Continental.
9
Pioneer appears to be in a different position, because, on April 28, 2017, Pioneer was
offered an award term extension task order under a prior contract. See Coast Professional, Inc. v.
United States, No. 15-2017, ECF No. 232. Nevertheless, the ED’s corrective action plan does not
moot Pioneer’s April 10, 2017 Complaint, because it does not require that the ED stay collection
work by the seven awardees of the disputed contracts. 5/30/17 Pioneer Resp. at 7. If the ED
assigns debt collection work to the awardees of the disputed contracts, the amount of collection
work available to Pioneer will decrease. Accordingly, Pioneer will suffer a loss of work.
Therefore, the corrective action plan does not “completely and irrevocably eradicate[] the effects
of the [relevant] violation.” Davis, 440 U.S. at 631.
The Government previously has represented to Pioneer and the court that the ED “will not
transfer any accounts under any of [the seven current] contracts, or otherwise authorize, order or
accept any work under those seven contracts, pending the resolution of this protest.” 3/17 Queen-
Harper Decl. at ¶ 6; 5/30/17 Pioneer’s Resp. at Ex. 1. But, the May 19, 2017 Notice of Corrective
Action and the May 25, 2017 Amendment To Defendant’s Notice Of Corrective Action did not
mention any stay of collection work by the current awardees. Therefore, the court has determined
that the ED’s corrective action plan does not moot Pioneer’s case. If Pioneer, however, is
completely satisfied with the Government’s representations, it may voluntarily dismiss the April
10, 2017 Complaint, pursuant to RCFC 41(a)(1)(A)(ii).
III. CONCLUSION.
For these reasons, the court denies the Government’s May 23, 2017 Motion To Dismiss,
pursuant to RCFC 12(b)(1).
IT IS SO ORDERED.
s/Susan G. Braden
SUSAN G. BRADEN
Chief Judge
10
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529 So.2d 1375 (1988)
STATE of Louisiana
v.
Juan SURTAIN.
No. 87-KA-830.
Court of Appeal of Louisiana, Fifth Circuit.
July 26, 1988.
John M. Mamoulides, Dorothy A. Pendergast, District Attorney's Office, Gretna, for plaintiff-appellee.
Martha E. Sassone, Indigent Defender Board, Gretna, for defendant-appellant.
Before CHEHARDY, GAUDIN and WICKER, JJ.
GAUDIN, Judge.
This is an appeal by Juan Surtain, found guilty in the 24th Judicial District Court of simple burglary of an inhabited dwelling. The jury verdict was unanimous.
Surtain was sentenced to 10 years at hard labor with credit for time served. The first year of the sentence is without benefit of parole, probation or suspension of sentence.
He briefed and argued two assignments of error:
(1) the evidence was insufficient, and
(2) the sentence is excessive.
These assignments of error are without merit. Surtain's conviction and sentence are affirmed.
Simple burglary of an inhabited dwelling, LSA-R.S. 14:62.2, is as follows:
"Simple burglary of an inhabited home is the unauthorized entry of any inhabited dwelling, house, apartment or other structure used in whole or in part as a home or place of abode by a person or persons with the intent to commit a felony or any theft therein ..."
A rented hotel room is an "inhabited dwelling" within the scope and intent of this statute.
On July 23, 1985, Mrs. Sherry Rittenberry was a guest at the Garden Vue Square Hotel in Kenner, Louisiana. At one point in time when she returned to her room, she found her purse open, a sum of money missing and a person she later identified as Surtain in the closet. The man denied the theft, saying he had been in Mrs. Rittenberry's room because a maid had left a bucket there.
Mrs. Rittenberry said that she asked the intruder what his name was and he said it *1376 was Charles Smith. Mrs. Rittenberry later described the man who'd been in her room to a hotel maintenance man, who identified Surtain from Mrs. Rittenberry's description.
Surtain testified at the trial, saying he had not been in Mrs. Rittenberry's room and that this was a case of mistaken identity.
Mrs. Rittenberry, however, was positive in her identification. She described the rings and necklace he was wearing and she recalled seeing him on the hotel premises before and after the theft in addition to the face to face confrontation when he emerged from the closet.
This positive identification was ample reason for the jury to decide the credibility issue in favor of the prosecution. Also, there was the open purse and missing money. It is not the function of an appellate court to evaluate the credibility of witnesses and overturn factual findings unless clearly contrary to the evidence. See State v. Richardson, 425 So.2d 1228 (La.1983), and State v. Cortez, 503 So.2d 76 (La. App.5th Cir.1987).
When sentencing Surtain, the trial judge went over aggravating and mitigating factors. Surtain previously had one felony and two misdemeanor convictions and could have been charged with being a multiple offender. The sentence imposed was in line with appellant's past criminal history and was within the trial judge's wide discretion.
The record was examined for errors patent and there were none. Surtain's jury conviction and 10-year sentence are affirmed.
AFFIRMED.
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995 So.2d 1168 (2008)
Ralph E. SKULLESTAD, Appellant,
v.
STATE of Florida, Appellee.
No. 4D08-1952.
District Court of Appeal of Florida, Fourth District.
December 10, 2008.
Ralph Skullestad, Punta Gorda, pro se.
Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
We reverse the trial court's order denying appellant's motion to correct an illegal sentence. It appears from the record that appellant is entitled to additional credit for time served. On remand, the trial court shall determine the appropriate credit to be given the appellant for time served.
KLEIN, STEVENSON, JJ., and KELLEY, GLENN, Associate Judge, concur.
| {
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File Name: 07a0370n.06
Filed: May 31, 2007
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 06-1144
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LUCRE, INC.,
Plaintiff-Appellant,
v. ON APPEAL FROM THE
UNITED STATES DISTRICT
MICHIGAN BELL TELEPHONE CO., d/b/a SBC COURT FOR THE WESTERN
MICHIGAN, DISTRICT OF MICHIGAN
Defendant-Appellee.
/
Before: MARTIN, NORRIS, and GIBBONS, Circuit Judges.
OPINION
BOYCE F. MARTIN, JR., Circuit Judge. Plaintiff Lucre, Inc. filed suit in the district court
to challenge the decisions of the Michigan Public Service Commission dismissing its complaint and
denying its motion to reopen and enlarge the record. Lucre had submitted a claim to the Commission
against defendant SBC Michigan, alleging that SBC breached the parties’ interconnection agreement.
Before the district court, Lucre alleged that the Commission’s decision on the merits was arbitrary
and capricious, and that the Commission’s denial of its request to reopen the record amounted to a
due process deprivation in violation of the Fourteenth Amendment. The district court denied both
of Lucre’s claims, and Lucre now appeals.
I.
No. 06-1144
Lucre, Inc. v. SBC Michigan
Page 2
The newcomer to Telecommunications Act jurisprudence might wonder why an appeal from
a state agency can be brought in federal court. We have previously explained this unique procedural
mechanism, and have little reason to plow the field anew:
To deregulate the telephone industry, Congress enacted the Telecommunications Act
of 1996, codified in 47 U.S.C. Section 251 et seq. The Act has been called one of the
most ambitious regulatory programs operating under “cooperative federalism,” and
creates a regulatory framework that gives authority to state and federal entities in
fostering competition in local telephone markets. We have often reiterated the Act’s
purposes, which are ending local telephone company monopolies and promoting
competition in local telephone markets. E.g., Mich. Bell Tel. Co. v. Strand, 305 F.3d
580, 582 (6th Cir. 2002).
The Act encourages competitive local telephone markets by imposing several duties
on incumbent local exchange carriers, the telephone companies holding monopolies
in local markets prior to the Act’s implementation. The incumbent must negotiate or
arbitrate agreements with competing local carriers, the new entrants into the
deregulated market, by providing one of three methods of competition: 1) the
incumbent carrier must provide interconnection to its network to a competing carrier
that builds or has its own network, 47 U.S.C. § 251(c)(2); (2) the incumbent carrier
must provide access to its network elements on an “unbundled basis” to a competing
carrier wishing to lease all or part of the incumbent's network, rather than build its
own, 47 U.S.C. § 251(c)(3); and (3) the incumbent must sell its retail services at
wholesale prices to a competing carrier that will resell the services at retail prices. 47
U.S.C. § 251(c)(4).
Interconnection agreements set forth terms, rates, and conditions of the arrangements
between the incumbent local exchange carrier and a competing local exchange
carrier. The Act provides for arbitration of an agreement, review of arbitrated or
negotiated agreements, and judicial review of agreements. State utility commissions
review and give final approval to interconnection agreements. 47 U.S.C. § 252(e)(1);
§ 252(e)(2)(A); Verizon Md. v. Pub. Serv. Comm’n, 535 U.S. 635, 122 S. Ct. 1753,
1756, 152 L. Ed. 2d 871, 878 (2002). A party aggrieved by a commission decision
may bring suit in federal district court to review whether the agreement or statement
of terms complies with the Act. 47 U.S.C. § 252 (e)(6); Verizon Md., 122 S. Ct. at
1758.
Mich. Bell Tel. Co. v. MCI Metro Access Transmission Servs., 323 F.3d 348, 353 (6th Cir. 2003).
Under this somewhat complex framework, the federal courts employ a hybrid standard of
No. 06-1144
Lucre, Inc. v. SBC Michigan
Page 3
review, depending upon the issue presented in an appeal from a state agency decision. On the one
hand, this Court reviews state agency interpretations of the Telecommunications Act de novo,
“according little deference to the Commission’s interpretation of the Act.” Id. at 354. On the other
hand, state agency findings of fact are reviewed under the arbitrary and capricious standard, which
this Court has described as “the most deferential standard of judicial review of agency action,
upholding those outcomes supported by a reasoned explanation, based upon the evidence in the
record as a whole.” Id. Adding another unique ingredient to the mix, the federal courts have
supplemental jurisdiction “to review state commission interpretations for compliance with state law,”
when the state law questions share a common nucleus of operative fact with the claims brought
under the Act. Id. at 357. Unlike a state agency’s interpretation of the Act, this Court “give[s]
deference to a state commission’s resolution of state law issues and applies an arbitrary and
capricious standard in our review.” Id.
In this case, we have jurisdiction to review the state agency’s decisions as set forth in MCI
Metro. The issue on appeal turns primarily on interpretation of the interconnection agreement under
Michigan law, however, calling for review of the Commission’s decision under the arbitrary and
capricious standard. The parties agree that Lucre’s constitutional due process claim is subject to de
novo review. See Coalition for Fair & Equitable Regulation of Docks v. FERC, 297 F.3d 771, 778
(8th Cir. 2002).
II.
The following factual background is taken from the district court’s opinion:
No. 06-1144
Lucre, Inc. v. SBC Michigan
Page 4
Pursuant to the Telecommunications Act of 1996, specifically 47 U.S.C. § 252(a),
Plaintiff and Defendant Michigan Bell Telephone Company (“Michigan Bell”)
executed an interconnection agreement, wherein Plaintiff contracted to connect its
telecommunications network to Defendant Michigan Bell’s local exchange network.
The interconnection agreement was approved in May 1999, and actual network
linkage began in June 1999. Plaintiff and Defendant Michigan Bell interconnected
their networks through a joint Synchronous Optical Network (“SONET”) ring.1 The
parties’ dispute began over multiplexing fees.2
Section 3.2.4 of the interconnection agreement provides:
Based on the physical architecture and Reciprocal Compensation
arrangements that the Parties agree to in this Agreement, each Party
shall be responsible for establishing and maintaining certain physical
facilities and logical trunking necessary for Interconnection. Each
Party shall provide, at its own expense, the physical facilities and
logical trunking on its side of the common physical meet point with
respect to each Interconnection which provides for the transmission,
routing and termination of Telephone Exchange Service traffic and
Exchange Access traffic to their respective Customers. Such facilities
and logical trunking shall be provided on a basis consistent with the
standards set forth in this Agreement. Lucre may purchase such
facilities from Ameritech at the rates set forth at Item V of the Pricing
Schedule. Any Interoffice Transmission Facilities purchased by Lucre
from Ameritech for such transmission shall be at the rates for
Dedicated Interoffice Transmission Facilities.
According to Plaintiff, it discovered that it had inadvertently failed to bill Defendant
Michigan Bell for multiplexing services. Predictably, Defendant Michigan Bell
denied owing Plaintiff for multiplexing. Plaintiff’s administrative complaint sought
recovery of these fees.
1
A SONET is a standard protocol for transmitting calls over fiber optic cable on one network
or transmitting calls over fiber optic cable between two different networks. A SONET passes light
back and forth over fiber cable in lockstep with a master clock so transmissions will arrive and
depart neither lost nor jumbled. Harry Newton, NEWTON’S TELECOM DICTIONARY 736 (2003).
2
Multiplexing describes the process whereby multiple signals are transmitted over a single
line or separating multiple signals from a single line to multiple lines. Newton, supra note 1 at 527.
In the context of this case, Plaintiff seeks to charge Defendant Michigan Bell for calls that originate
on Defendant Michigan Bell’s network and terminate on Plaintiff’s network.
No. 06-1144
Lucre, Inc. v. SBC Michigan
Page 5
Although Plaintiff’s administrative complaint contained several counts, the parties
mediated the dispute and the Commission perceived only one issue before it: whether
Plaintiff could charge Defendant Michigan Bell for multiplexing telephone calls
during the course of Plaintiff and Michigan Bell’s interconnection agreement. The
Commission ordered that Plaintiff could not charge for multiplexing. The
Commission also subsequently denied Plaintiff’s petition for rehearing and
reopening.
D. Ct. Op. at 1-3.
In affirming the Commission’s decision, the district court agreed that the contract is
ambiguous with regard to payment for multiplexing services, despite Lucre’s argument that the plain
language of the agreement provided for billing of such services. For this reason, it rejected the
plaintiff’s argument that the Commission’s decision was arbitrary and capricious for looking beyond
the plain meaning of the agreement, as Michigan law endorses such an approach to interpreting an
ambiguous contract. Even though Lucre posited a potentially reasonable interpretation of the
contract’s application to multiplexing fees, given the facial ambiguity, the past practices of the
parties, and the meaning ascribed to certain terms by the parties in other portions of the agreement,
the district court determined that the Commission’s decision was reasonable and affirmed it
accordingly.
The district court also denied Lucre’s due process claim, ruling that it had articulated no
protectable property or liberty interest and that its opportunity to be heard was adequate nonetheless.
A. Does the plain language of the interconnection agreement cover billing for multiplexing
services?
Lucre continues to argue on appeal that the Commission and the district court ignored the
“plain meaning” of the agreement, which it contends provides for billing for multiplexing. In ruling
No. 06-1144
Lucre, Inc. v. SBC Michigan
Page 6
that the plain language of the interconnection agreement did not provide for multiplexing fees, the
Commission and the district court focused primarily on section 3.2.4, quoted above, as supporting
SBC Michigan’s position. That section provides in pertinent part that “each Party shall be
responsible for establishing and maintaining certain physical facilities and logical trunking necessary
for Interconnection,” and that “each Party shall provide, at its own expense, the physical facilities
and logical trunking necessary on its side of the common physical meet point with respect to each
Interconnection which provides for the transmission, routing, and termination of Telephone
Exchange Service traffic and Exchange Access traffic to their respective Customers.”
The meaning of these provisions does not jump off the page to the non-telecommunications
expert, underscoring the wisdom of the policy that requires federal courts to defer to the expertise
of state commissions in these types of cases. The Commission concluded that multiplexing services
“are essential for the proper transportation and delivery of a usable signal to customers,” and that
multiplexing services were “necessary in order to complete calls on their respective sides of the joint
SONET ring.” This conclusion, and the ruling that Lucre had to pay for multiplexing services itself,
is certainly not contravened by the plain meaning of the agreement, as Lucre contends. It in fact
appears to be supported by this contractual language and is not, at a minimum, an arbitrary and
capricious decision.
Lucre points to additional portions of the agreement on appeal, contending that they provide
support for its position on multiplexing fees. First, it points to Recital E at the very beginning of the
100-plus page agreement, which provides that “[t]he Parties are entering into this Agreement to set
forth the respective obligations of the Parties and the terms and conditions under which the Parties
No. 06-1144
Lucre, Inc. v. SBC Michigan
Page 7
will interconnect their networks and facilities and provide to each other Telecommunications
Services as required by the Act as set forth herein.” This vague statement of purpose does nothing
to counter the proposition that both parties might be responsible for their own multiplexing fees and
is irrelevant to the specific issue challenged by Lucre here.
Next, Lucre points to section XXVII.1 of the agreement, which provides that “[e]ach party
will bill all applicable charges, at the rates set forth herein, in the Pricing Schedule and as set forth
in applicable tarriffs or contracts referenced herein, for the services provided by that Party to the
other Party . . . .” Again, this extremely generalized statement does not indicate whether
multiplexing is an applicable charge or a service provided by Lucre to SBC Michigan. Although
Lucre asks us to find that it would be covered by such a definition, such a ruling would amount to
a substitution of our judgment for the expertise of the Commission. The language of the statute and
its cooperative federalism approach simply do not support such a reading with that level of
specificity.
Finally, Lucre points to a pricing schedule, appended to the agreement, which references
multiplexing. According to SBC, this schedule is merely a list of prices, and does not amount to an
authorization to bill. Moreover, this schedule does not appear to provide for rates at which Lucre
can bill SBC. To the contrary, the schedule is referenced in section 3.2.4 (the section relied upon
by the Commission) which states that “Lucre can purchase such facilities from Ameritech at the rates
set forth at Item V of the Pricing Schedule.” Based on the manner in which it is referenced in the
main body of the agreement, the schedule appears to us to have nothing to do with Lucre’s billing
of SBC.
No. 06-1144
Lucre, Inc. v. SBC Michigan
Page 8
In short, Lucre points to nothing in the plain language of the agreement that undermines the
holdings of the Commission or the district court. We therefore affirm those decisions with respect
to the issue of billing for multiplexing services.
B. Due Process
Lucre also argues that the Commission violated its due process rights by refusing to reopen
the administrative record to allow it to introduce evidence of its own course of performance and of
AT&T Michigan’s invoicing for multiplexing. In denying these requests, the Commission reasoned
that “Lucre should have realized at the time that it filed its complaint that the explanation of its
failure to bill SBC for nearly four years could have a significant effect on the outcome of this
proceeding.”
Lucre’s due process argument fails at the outset under the state action requirement. In order
to raise a due process claim, a party must have a property or liberty interest of which it is deprived
by state action, as the Fourteenth Amendment “erects no shield against merely private conduct,
however discriminatory or wrongful.” Blum v. Yaretsky, 457 U.S. 991, 1002 (1982) (“[A]ction
inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said
to be that of the States.”). The only alleged property rights here were Lucre’s rights under the
interconnection agreement, and these rights could only be said to have been “deprived” by SBC
Michigan, not by the Commission. SBC Michigan is a private company rather than a state actor, and
Lucre has not alleged facts that would render it a state actor here. Cf. Wittstock v. Mark A. Van Sile,
Inc., 330 F.3d 899, 902 (6th Cir. 2003) (“A private actor may be considered a person acting under
No. 06-1144
Lucre, Inc. v. SBC Michigan
Page 9
color of state law (a state actor) if (1) the deprivation complained of was caused by the exercise of
some right or privilege created by the state and (2) the offending party acted together with or has
obtained significant aid from state officials, or because his conduct is otherwise chargeable to the
State.”). The Supreme Court has also “consistently held that the mere fact that a business is subject
to state regulation does not by itself convert its action into that of the State for purposes of the
Fourteenth Amendment.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999). Thus, even
assuming that Lucre would have a property right in the interconnection agreement by operation of
Michigan law that provides for the enforcement of contracts,3 the deprivation of that contractual right
by a private entity — i.e. SBC Michigan’s alleged refusal to comply with the contract — simply does
not implicate due process concerns. See also Paul v. Davis, 424 U.S. 693, 710-11 (1976) (liberty
and property “interests attain this constitutional status by virtue of the fact that they have been
initially recognized and protected by state law, and we have repeatedly ruled that the procedural
guarantees of the Fourteenth Amendment apply whenever the State seeks to remove or significantly
alter that protected status.”).
Perhaps recognizing the futility of its due process claim raised against SBC Michigan, Lucre
turns its guns toward the Commission, which is of course a state actor. It argues that the
Commission deprived it of due process by refusing to reopen the record. Lucre’s “right to be heard”
3
See Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 485 (1988) (“A
cause of action is a species of property protected by the Fourteenth Amendment’s Due Process
Clause.”). This rule would only appear to go to a state’s abolition of a cause of action, rather than
conduct by a private party that gives rise to the cause of action, but we need not delve into the
nuances of this distinction to address Lucre’s claim here.
No. 06-1144
Lucre, Inc. v. SBC Michigan
Page 10
by reopening of the record might amount to a “procedural right,” but cannot constitute a property
right. See Richardson v. Township of Brady, 218 F.3d 508, 518 (6th Cir. 2000) (A party “can have
no protected property interest in the procedure itself.”).
Thus, Lucre’s due process claim is essentially missing a critical link. Although Lucre
articulates a property right that is tied to its claim for breach of contract, this right was denied by a
private actor, not by the state. See, e.g., Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)
(“[T]he party charged with the deprivation must be a person who may fairly be said to be a state
actor. This may be because he is a state official, because he has acted together with or has obtained
significant aid from state officials, or because his conduct is otherwise chargeable to the State.
Without a limit such as this, private parties could face constitutional litigation whenever they seek
to rely on some state rule governing their interactions with the community surrounding them.”). The
state actor that it does identify — the Commission — cannot be said to have denied it of any property
right. (Not to mention the fact that the Commission is not and never has been named as a party).
Without a connection between the deprivation and the property right in question, Lucre’s due process
claim fails.
III.
For the foregoing reasons, we affirm the district court’s dismissal of Lucre’s claims.
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-66,828-01
EX PARTE JOSE MANUEL JUAREZ, Applicant
ON APPLICATION FOR WRIT OF HABEAS CORPUS
CAUSE NO. 1994-CR-1667-A IN THE 107TH JUDICIAL DISTRICT COURT
FROM CAMERON COUNTY
Per curiam.
O R D E R
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 writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of the offense of
forgery, and punishment was assessed at five (5) years' confinement. No direct appeal was taken.
Applicant contends that he is eligible for street time credit but has been improperly denied
credit against his sentence for a period of supervised release.
The trial court has entered an order concluding that the application should be dismissed for
failing to comply with the requirements of Tex. Gov't Code § 501.0081(b)-(c). However, we
disagree. The record reflects that according to the department's computations, Applicant was within
180 days of his presumptive release date when he filed the application. Applicant has alleged facts
that, if true, might entitle him to relief. See Ex parte Keller, 173 S.W.3d 497 (Tex. Crim. App.
2005). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334
S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact.
The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d), in that it may
order affidavits, depositions, or interrogatories from the appropriate officials of the Texas
Department of Criminal Justice, Correctional Institutions Division and Parole Division, or it may
order a hearing. In the appropriate case, the trial court may rely on its personal recollection. Id.
If the trial court elects to hold a hearing, the court shall first decide whether Applicant is
indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented
by counsel, the trial court will then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04,
appoint an attorney to represent him at the hearing.
Following receipt of additional information, the trial court shall make findings of fact as to
whether Applicant has any prior conviction for an offense that would render him ineligible for street
time credit, and whether on the issuance date of the warrant or summons initiating the revocation
process, the remaining portion of his sentence was greater than the time spent on supervised release.
The trial court shall also make any further findings of fact and conclusions of law it deems relevant
and appropriate to the disposition of the application for writ of habeas corpus.
This application will be held in abeyance until the trial court has resolved the fact issues. The
issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the
order granting the continuance shall be sent to this Court. A supplemental transcript containing all
affidavits, including the TDCJ-CID and Parole Division affidavits, and interrogatories or the
transcription of the court reporter's notes from any hearing or deposition, along with the trial court's
supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days
of the date of this order. Any extensions of time shall be obtained from this Court.
Filed: February 28, 2007
Do not publish
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688 F.2d 829
Alstonv.Crew
81-6848
UNITED STATES COURT OF APPEALS Fourth Circuit
8/24/82
1
M.D.N.C.
AFFIRMED
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