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243 F.2d 168
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.WAGNER IRON WORKS and Bridge, Structural & Ornamental Iron Workers Shopmen's Local 471, (AFL), Respondents.INTERNATIONAL UNION UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO, Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 11121.
No. 11141.
United States Court of Appeals Seventh Circuit.
April 11, 1957.
Albert J. Goldberg, Morris Karon, Max Raskin, Milwaukee, Wis., for Wagner Iron Works, International Union.
Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., for National Labor Relations Board.
Before LINDLEY, SWAIM and SCHNACKENBERG, Circuit Judges.
PER CURIAM.
1
On March 7, 1955, 220 F.2d 126, we modified and approved, as modified, an order of the National Labor Relations Board finding petitioner guilty of certain unfair labor practices. On April 5, 1955, we denied a petition for rehearing. Our final decree was entered on April 14, 1955, and on March 5, 1956 the Supreme Court denied certiorari, 350 U.S. 981, 76 S.Ct. 466, 467, 100 L.Ed. 850.
2
Now, more than two years after our opinion was filed, petitioner seeks to set aside our decree, and to review an order entered January 23, 1957, wherein the Board refused to set aside its original order of April 28, 1953 upon which the decree of this court was predicated, and, in addition, refused to set aside proceedings now pending in regard to the back pay issue growing out of the original complaint.
3
The crux of petitioner's argument is that the Board lacked jurisdiction to enter its original order because at the time when the complaint issued, certain officers of the complaining union had failed to file non-communist affidavits as provided by Section 9(h) of the Act, 29 U.S.C.A. § 159(h). In an attempt to excuse the delay in raising this jurisdictional issue, petitioner avers that it did not learn of the fact until quite recently. Further, the contention is made that, prior to the decision of this court in Goodman Mfg. Co. v. N. L. R. B., 227 F. 2d 465; Id., 234 F.2d 775, the issue of noncompliance could not have been raised before the Board by the employer in an unfair labor practice proceeding.
4
We are of the opinion that the averments do not embrace circumstances sufficient to excuse the petitioner from failing to urge the point below or before this court at the proper time, within the meaning of Section 10(e) of the Act, 29 U.S.C.A. § 160(e). First, as pointed out in N. L. R. B. v. Greensboro Coca Cola Co., 4 Cir., 180 F.2d 840, 844, the information concerning compliance may be easily obtained from the Board. Further, as in Goodman, if petitioner had the information, the issue could have been raised before the board for "preservation" purposes, and, if denied, urged before this court on appeal. The point has not been presented within a timely period.
5
The petition is denied.
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646 F.2d 193
In re ALL MEDIA PROPERTIES, INC., Debtor.ALL MEDIA PROPERTIES, INC., Appellant,v.David M. BEST et al., Appellees.In re ARTLITE BROADCASTING COMPANY, Debtor.ARTLITE BROADCASTING COMPANY, Appellant,v.FIRST MARKETING GROUP, Appellees.
No. 80-1878.
United States Court of Appeals,Fifth Circuit.
Unit A
May 28, 1981.
Appeal from the United States Bankruptcy Court for the Southern District of Texas, Edward H. Patton, Jr., Bankruptcy Judge.
Reynolds, Allen & Cook, Stanley B. Binion, K. Charles Peterson, James M. McGraw, Houston, Tex., for appellants.
Minter & Mahon, Alister B. Mahon, Charles E. Long, Sheinfeld, Maley & Kay, Arthur L. Moller, Houston, Tex., for Best et al.
Thomas A. Adams, III, Katy, Tex., for First Marketing Group, Inc.
Before THORNBERRY, COLEMAN and AINSWORTH, Circuit Judges.
PER CURIAM:
1
Affirmed on the basis of the Memorandum Opinion of Bankruptcy Judge E. H. Patton, Jr., reported at 5 B.R. 126 (Bkrtcy., 1980).
2
AFFIRMED.
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621 F.Supp. 1225 (1985)
SAN FRANCISCO POLICE OFFICERS ASSOCIATION, et al., Plaintiffs,
v.
CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.
No. C-84-4045 RFP.
United States District Court, N.D. California,
June 10, 1985.
Ralph B. Saltsman, Soloman, Saltsman & Hart, Marina Del Rey, Cal., for plaintiffs.
Michael C. Killelea, Deputy City Atty., James R. Wheaton, Lois Salisbury, Public Advocates, Inc., San Francisco, Cal., for defendants.
Joel Nomkin, Dept. of Justice, Washington, D.C., for U.S. (amicus curiae).
MEMORANDUM OF DECISION
PECKHAM, Chief Judge.
INTRODUCTION
During 1983, the City and County of San Francisco (the City), under the auspices of *1226 its Consent Decree Unit, administered the selection procedures for Q/35 Assistant Inspector and Q/50 Sergeant. Those procedures, which are the subject of this litigation, included a written multiple choice examination, a written communications examination and a structured oral examination. On September 12, 1983, the Civil Service Commission (CSC) established cut-off scores for the multiple choice examinations and set the weights for all three components of the selection process. On February 7, 1984, the City provided the parties to the Consent Decree with the results in rank order, by race and sex, of the Q/35 and Q/50 selection procedures. Using the weights set by the CSC, the results demonstrated severe adverse impact for minorities in both ranks, and slight adverse impact for women on the Q/35 Assistant Inspector exam.
Because of the adverse impact, the United States and Officers For Justice filed objections under the Consent Decree to the City's use of the results of the Q/35 and Q/50 selection procedures. Extensive negotiations ensued. As a result of these negotiations, the City Attorney recommended to the CSC that it modify its proposed use of the Q/35 and Q/50 selection process. The Commission then ordered a revised weighing system which substantially eliminated the adverse impact of the selection process. After the CSC's decision, the Consent Decree plaintiffs and the City entered into an agreement withdrawing the plaintiffs' objections to the Q/35 and Q/50 selection process.
On June 7, 1984, the Police Officers Association (POA) and three named plaintiffs filed a complaint in the Superior Court of California which challenged the Civil Service Commission's (CSC) decision to reweigh the Q/35 and Q/50 selection procedures. The defendants, the City and County of San Francisco and the Civil Service Commission, removed the action to federal court under the authority of the Civil Rights Removal Statute. The court denied plaintiffs' motion to remand on December 31, 1984. On that date, the court granted the POA's motion for preliminary injunction, enjoining the City from utilizing the reconsidered weights for the Q/50 and Q/35 examinations until the lawsuit is resolved.
On February 28, 1985, the court granted partial summary judgment in favor of the City and the CSC. The court recognized that the Supremacy Clause and the provisions of the Consent Decree and Title VII authorized the CSC to disregard Civil Service rule 5.07[1], when faced with the adverse impact resulting from the promotional examinations. After the February 28, 1985 order, the court still has before it the issue of whether the plan chosen by the City was a permissible affirmative action plan within the meaning of United Steelworkers of America v. Weber, 443 U.S. 193, 208, 99 S.Ct. 2721, 2730, 61 L.Ed.2d 480 (1979).
Based on the extensive briefing on all aspects of the ramifications of the City's decision to reweigh the examinations and a hearing on the issue of whether the exams as reweighed unnecessarily trammeled the rights of the examinees, the court now holds that the plan adopted by the Civil Service Commission to remedy the adverse impact resulting from the promotional examinations was a permissible affirmative action plan under Weber. The court therefore dissolves its preliminary injunction previously issued in this case and orders the City to begin making promotions for the ranks of Assistant Inspector and Sergeant from the eligibility lists derived from the reweighed examinations.
STATEMENT OF FACTS
A. Consent Decree
On March 30, 1979, this court approved a Consent Decree which was entered into as *1227 a settlement of a dispute among plaintiffs, Officers For Justice (OFJ) and the United States, defendants, the City and County of San Francisco and the Civil Service Commission, and intervenor, the POA, as to appropriate and valid procedures for the hiring and promotion of police officers for the City and County of San Francisco. The Consent Decree provides for specific, definable and good faith efforts to be made by defendants to achieve certain goals for employment of women and minorities within specified periods of time.
The Consent Decree imposed numerous obligations on the City with respect to the selection of candidates for entry and promotive positions in the San Francisco Police Department (SFPD). Among other things, the Decree prohibited the use of selection procedures which have an adverse impact against minorities and females, unless such procedures have been shown to be valid pursuant to the Uniform Guidelines on Employee Selection Procedures, 28 C.F.R. 50.14. Consent Decree at ¶ 4. With respect to the selection of Q/50 Sergeants and Q/35 Assistant Inspectors, the Decree set an annual objective of selecting minorities and females to those positions in proportion to their representation in the qualified applicant pool. Id. at ¶ 10(a)(3).
B. The Selection Process
To discharge its obligations under the Decree, the City established a Consent Decree Unit charged with, inter alia, the development and administration of examinations. During 1983, the Consent Decree Unit administered the selection procedures for Q/35 Assistant Inspector and Q/50 Sergeant. Those procedures included a written multiple choice examination, a written communications examination, and a structured oral examination. Each component was designed specifically to measure different dimensions found in the job-analysis to be essential for successful performance as a Sergeant/Assistant Inspector. The multiple choice component was considered the best method for measuring technical knowledge and problem solving. The writing test was designed to test candidates' written communication skills, and the oral test measured oral communication skill, supervisorial skills and interpersonal ability. Each examination component was given at different times during 1983.
On September 12, 1983, after the multiple choice examination had been administered but before administering the two other components, the Civil Service Commission (CSC) established cut-off scores for the multiple choice examinations and set the weights for all three components of the selection process. The cut-off scores for the multiple choice examinations were fixed at 55 percent for the Q/35 and 50 percent for the Q/50. The weights set for the Q/35 procedures were:
Multiple choice examination 45%
Written communication examination 29%
Oral Examination 26%
The weights set for the Q/50 procedures were:
Multiple choice examination 41%
Written communication examination 29%
Oral examination 30%
On February 7, 1984, the City provided the parties to the Consent Decree with the results in rank order, by race and sex, of the Q/35 and Q/50 selection procedures. Using the weights set by the CSC, the top 75 places on the Q/35 eligibility list would have included six (8.0 percent) minorities and four (5.3 percent) females, out of a pool of 26 percent minorities and 10 percent females. The top 125 places on the Q/50 eligibility list would have included thirteen (10.4 percent) minorities and twelve (9.6 percent) females, out of the same pool of minorities and women as in the Q/35. These percentages represent severe adverse impact for minorities in both ranks, and a slight adverse impact for women on the Q/35 Assistant Inspector exam. Women were not affected adversely for Q/50 Sergeant.
C. Objections to the selection process
Because of the adverse impact, the United States and Officers For Justice filed *1228 objections under the Consent Decree to the City's use of the results of the Q/35 and Q/50 selection procedures. This court subsequently scheduled a hearing date of June 20, 1984 for consideration of the objections.
Based on discovery conducted after the filing of their objections, the Consent Decree plaintiffs contended that neither the Q/35 nor the Q/50 selection procedures were valid, if used in the manner intended by the City. The primary basis for this contention was the performance of incumbent Inspectors and Sergeants who pretested the Q/35 and Q/50 multiple choice examinations. The Chief of Police and his subordinates had selected these incumbents to pretest the exam because of their superior performance in the police department. Yet, they performed so poorly on the pretest that they would have had no reasonable chance of appointment from the Q/35 and Q/50 rosters.
The court appointed Dr. Joel Lefkowitz, an expert industrial psychologist, to review the selection process. Dr. Lefkowitz reported that insufficient attention was paid to the issue of adverse impact, especially with regard to the use of the multiple choice test and that alternatives which may have minimized such impact were not explored.
D. The decision to reweigh
The evidence uncovered during discovery and the findings of Dr. Lefkowitz prompted extensive settlement negotiations between the Consent Decree plaintiffs and the City. As a result of these negotiations, the City Attorney recommended to the CSC, in a public session held on May 29, 1984, that it modify its proposed use of the Q/35 and Q/50 selection process. In particular, he recommended that the Commission use the structured oral examination for ranking purposes and the writing skills and multiple choice exams as pass/fail devices.
In making his recommendation, the City Attorney advised the CSC of the "catastrophic" impact of the selection process on minorities. He explained that this result could not be squared with the Consent Decree, both because the selection process was not "completely valid," and because a "reasonable" alternative weighing system was available which would alleviate the adverse impact. Failure to accept this alternative, he said, would demonstrate lack of "good faith" in facilitating the objectives of the Decree and potentially result in the judicial "set aside" of the entire selection process. He further stressed that reweighing was the only way to settle the plaintiffs' objections short of litigation. See generally CSC Transcript (May 29, 1984).
On June 4, 1984, the CSC adopted the City Attorney's recommendation. The Commission ordered a revised weighing system which substantially eliminated the adverse impact of the selection process. Under the revised system, the cut-off scores of 50 percent for the Q/50 and 55 percent for the Q/35 for the multiple choice examination remained the same. A cut-off score was added for the written examination and set at 60 percent. The oral component of the exam was made the sole ranking device. The top 45 appointments from the revised Q/35 eligibility list will include ten (22.2 percent) minorities and five (11.11 percent) females, and the 75 persons appointed from the revised Q/50 eligibility list will include eighteen (24 percent) minorities and eleven (14.6 percent) females.
After the CSC's decision, the Consent Decree plaintiffs and the City entered into an agreement withdrawing the plaintiffs' objections to the Q/35 and Q/50 selection process. This court entered a Stipulation and Order on June 6, 1984 under which it retained jurisdiction "over all issues related to the weighting of the components of the Q/35 and Q/50 selection procedures, the duration of eligibility lists established as a result of those procedures, and the number of persons to be appointed to the Q/35 and Q/50 ranks."
DISCUSSION
The Ninth Circuit in Johnson v. Transportation Agency, 748 F.2d 1308, 1311 (9th Cir.1984), extracted four criteria from *1229 United Steelworkers of America v. Weber, 443 U.S. 193, 208, 99 S.Ct. 2721, 2730, 61 L.Ed.2d 480 (1979), to aid in determining whether an affirmative action plan is permissible. A plan is permissible if (1) it is designed to break down old patterns of racial segregation and hierarchy; (2) it does not create an absolute bar to the advancement of white employees; (3) it is a temporary measure, "not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance"; and (4) it does not unnecessarily trammel the interests of white employees. Johnson, 748 F.2d at 1311, citing, Weber, 443 U.S. at 208, 99 S.Ct. at 2730.
The court will discuss each of these factors to demonstrate that the plan chosen to remedy the adverse impact of the promotional exams meets these criteria.
1. Designed to break old patterns
There is no doubt that the exams were reweighed because of their adverse impact. The decision to reweigh the exams, which results in more minorities being appointed, was designed to meet the requirements of the Consent Decree. This court approved the Consent Decree only after finding that the selection procedures administered by the City for positions within the Police Department had unlawfully discriminated against minorities. See Officers For Justice v. Civil Service Commission, 371 F.Supp. 1328 (N.D.Cal.1973). In particular, with respect to the position of sergeant, the court found in 1973 that the City's "prior discriminatory practices had virtually excluded minorities from the rank of sergeant." Officers For Justice v. Civil Service Commission, 14 EPD ¶ 7458 at 4715 (N.D.Cal.1977). In the eleven years since this finding was made, the total number of minority sergeants in the Department has increased by only one.
Quite obviously, the decision to reweigh was made in order to break down old patterns of racial segregation and hierarchy in the San Francisco Police Department.
2. Create an absolute bar
The plaintiff in Johnson argued that the selection of a woman for the position which he was seeking served as a complete bar to his selection for the position. The Ninth Circuit rejected "this narrow view." 748 F.2d at 1314. The court stated that unless it was "shown a distinct pattern of exclusion of non-minority candidates from such position, [it] cannot conclude that a single employment decision serves as a bar...." Id. Certainly, the reweighing of the exams did not create an absolute bar to the advancement of white employees. Any white employee who passed the multiple choice and written components and scored sufficiently high on the oral component of the exam would be entitled to placement on the eligibility list.
The Supreme Court approved the affirmative action plan in Weber, noting that "half of those trained in the program will be white." 443 U.S. at 208, 99 S.Ct. at 2730. Here, white officers do even better than in Weber under the revised weights. Not only will 78 percent of the appointments go to white officers, but whites will be appointed at a rate disproportionately high to their representation in the pool of examinees.
Under the facts of this case, there is simply no basis for maintaining that the reweighing "create[s] an absolute bar to the advancement of white employees."
3. Temporary measure
In Johnson, the court found that the plan was temporary because "[i]mplicit in the plan is the intent to stop taking sex into account once the long-range percentage goals are attained." 748 F.2d at 1313. Likewise, with the instant plan, neither sex nor race will be taken into account once the City administers an exam that does not result in adverse impact. The reweighing plan is limited to removing imbalance in a single set of examinations. New examinations with their own weights will be used for future promotions. Moreover, the adverse impact resulting from a promotional exam presumably will not require remedial *1230 action once the long-range percentage goals of the Consent Decree are reached.
4. Rights unnecessarily trammeled
The Ninth Circuit in Johnson summarily concluded that "[u]nless we are shown a distinct pattern of exclusion of non-minority candidates from such positions, we cannot concluded that a single employment decision serves as a bar or unnecessarily trammels the interests of other employees. The record contains no evidence of such a pattern in this case." 748 F.2d at 1314.
The opposite result was reached by the district court in Hammon v. Barry, 606 F.Supp. 1082 (D.D.C.1985). There, the court found that the plan sought to deprive white firefighters of a legitimate and longstanding expectation of an equal opportunity to advance into the supervisory ranks, an opportunity they had earned by serving the requisite minimum of five years in the department and scoring well on the promotional examination. According to the court, "the fact of past discrimination alone is not enough to deprive innocent whites of their legitimate expectation of advancement." It concluded that because the plan made race a mandatory consideration over merit, it unnecessarily trammeled the interests of white firefighters.
Both of these cases are distinguishable from the case at hand. Neither race nor sex was considered before merit under the reweighing plan. In fact, neither race nor sex was overtly taken into account in making up the new eligibility lists. Nonminorities were not deprived of a legitimate expectation of advancement. Instead, minorities and nonminorities alike were advanced in a manner that had not been originally contemplated. The real issue is whether the City could "change the rules after the game had started"[2] without trammeling the rights of the examinees.
The City claims that since being on an eligible list affords no right to an appointment, the candidates have no right which is being trammeled. Similarly, in Kirkland v. N.Y. State Dept. of Correctional Services, 711 F.2d 1117, 1134 (2d Cir.1983), the Second Circuit found that under New York state law a person on an eligibility list does not possess "any mandated right to appointment or any other legally protectible interest."
The Second Circuit, however, further stated that "[t]he only relevant state right intervenors possess is the right to challenge the settlement on the grounds that the manner in which it provides for appointments is unlawful, arbitrary, and capricious or constitutes an abuse of discretion ... This right intervenors exercised in the district court." Kirkland, 711 F.2d at 1134. The Kirkland court cited two New York state cases for this proposition. In Adelman v. Bahou, 85 A.D.2d 862, 446 N.Y.S.2d 500 (1981), petitioners sought upward reclassifications of their positions without examination. The court stated that it could not overturn a commission's determination unless it was without a rational basis. And, in Burke v. Sugarman, 35 N.Y.2d 39 (1974), the Court of Appeals held that persons who pass an examination and are on an eligible list have standing to challenge unlawful appointments or designations to positions for which the list has been established.
California recognizes a similar right. In Fuchs v. Los Angeles County Civil Service Com'n, 34 Cal.App.3d 709, 715, 110 Cal.Rptr. 311 (1973), the court stated that "[b]oth the petitioner and the public have an interest in ensuring that the best selection procedures are used in determining the advancement of public employees to positions of increased responsibility and authority." Fuchs had filed his action attempting to cancel the list of eligible candidates *1231 for the position of head deputy district attorney and to void any appointment to that position made from the list of eligible candidates. He claimed that parts of the examination weighed factors not relevant to a determination of qualifications for head district attorney. He further contended that his oral interview was not conducted fairly. The court found that there was no indication that the Commission or the director of personnel acted arbitrarily or unfairly, within the established framework, to deprive the petitioner of his promotional opportunity. Id. at 716, 110 Cal. Rptr. 311 (emphasis added).
In Almassy v. L.A. County Civil Service Com., 34 Cal.2d 387, 210 P.2d 503 (1949), the petitioner sought a writ of mandate to compel the Los Angeles County Civil Service Commission to annul two promotional civil service examinations and their corresponding eligibility lists. The California Supreme Court recognized that the civil service commission has been given broad discretionary powers in determining the subjects of examination and the qualifications which are to be measured. The court stated that "[j]udicial interference under such circumstances is unjustified except on a showing of arbitrary, fraudulent, or capricious conduct, or a clear abuse of discretion." 34 Cal.2d at 396, 210 P.2d 503. No such showing was made in the case.
These two cases make clear that California recognizes the right of an examinee to challenge the promotional examinations if the Civil Service Commission has acted arbitrarily, capriciously, or unfairly in depriving the examinees of their promotional opportunities. If the exams as reweighed were not capable of fully measuring the qualifications needed to be an assistant inspector or a sergeant, then the Commission acted arbitrarily when it decided to use the oral component as the sole ranking device. If the Commission acted arbitrarily, capriciously, or unfairly in deciding to use the oral component of the exam as the sole ranking device, then a fortiori the rights of the examinees have been unnecessarily trammeled.
The court therefore set a hearing to determine if the CSC's decision to reweigh the examinations was arbitrary and capricious.[3] The testimony received during the hearing establishes that the decision of the CSC was neither arbitrary nor capricious, nor was it an abuse of discretion.[4]
As a preliminary matter, the displacement of candidates from the eligibility lists does not constitute arbitrary action. Once this court recognized that the City had the right to take some action to remedy voluntarily the adverse impact stemming from the originally-weighted examinations, it became clear that the original eligibility lists could not be used. Thus, no matter what remedy the City chose, the rankings on the eligibility lists would change. By reweighing the examinations, the City salvaged the examinations and saved considerable time that would have been lost if new examinations had been constructed. Although displacement in great numbers occurred, displacement may have been considerably less than what would have resulted from new examinations.
At the hearing, the court heard testimony from four witnesses: two "raters"[5] of the oral component, Professor Andrew L. Comrey, a professor of psychology at the *1232 University of California, Los Angeles, and Raymond Wong, the Consent Decree Coordinator. The testimony from the witnesses established the following facts.
First, although the examinations were reweighed, all three components of the examinations were maintained. Cut-off scores originally set for the multiple choice component, the section which tested technical knowledge, remained the same. Those candidates for sergeant and assistant inspector who did not receive minimum scores of 50 and 55 percent, respectively, were not permitted to take the other two examinations. The cut-off scores were set approximately five points above the level of minimum competency. Twenty-five (25) Q/50 applicants and 23 Q/35 applicants[6] were screened out because of their failure to "pass" the multiple choice examination.
Second, the writing skills component, which was designed to test a candidate's ability to communicate effectively in writing, also was established as a screening device. A standard score of 60 was set for the writing skills examination which resulted in 130 candidates for the Q/50 and 160 candidates for the Q/35 being eliminated from consideration.[7]
Finally, the oral component was established as the sole ranking device. The oral examination consisted of a structured oral interview in two parts: (1) a ten minute presentation on a topic area reflecting the department's operating procedures and policies; and (2) one to three scenarios followed by questions from the raters. The ten-minute presentation focused on one of eight topics drawn from the SFPD's general orders and measured a candidate's oral communication and supervisorial skills. A five-minute question period followed the presentation. The scenarios, developed by subject matter experts, were designed to simulate situations which might be encountered typically by a sergeant or assistant inspector in his/her day-to-day work. The scenarios measured interpersonal skills.
Following the reading of the scenario, the raters[8] asked the candidates pre-designated, probing questions and were not permitted to ask follow-up questions. Both Lieutenant Ornelias and Captain Washington, two of the raters during the oral component, complained about the tightly-structured[9] format of the oral interview. They indicated that they had follow-up questions that they would have liked to ask the candidates. However, Professor Comrey, the POA's own expert witness, testified that the structured interview was more objective and enhanced the reliability of the examination.[10]
*1233 Thus, although the oral component originally was not intended to be the only ranking device, the evidence demonstrates that the oral component is capable of performing this purpose. Much more was tested via the oral interview than speaking ability. As mentioned, the oral component fairly measured supervisorial skills, oral communication skills and interpersonal skills. These were three of the five dimensions or skills and abilities identified by the job analysis as important in the successful performance of the job as both Assistant Inspector and Sergeant. The other two dimensions for the position of Q/50 and Q/35 were technical knowledge, which was tested through the multiple choice examination, and writing skills, which obviously was tested during the written examination.
After hearing all of the testimony and reading all of the evidence, this court believes that the promotional examination process was carefully designed and administered. The City met its dual goals of insuring a credible selection process and erasing the adverse impact resulting from the originally-weighed examinations. The court concludes that the CSC did not act unfairly, capriciously, nor arbitrarily in reweighing the examinations, especially since (1) the multiple choice cut-off score was set above the level of minimum competency; (2) a cut-off score was established for the writing skills component, thereby weeding out those candidates who could not communicate effectively in writing; and (3) the structured oral examination seemed to be a full, fair and credible manner of judging the three dimensions designed to be tested by the oral component.
The court, by its holding, in no way suggests that the selection process was the "best" manner the City could have used to promote candidates to the ranks of assistant inspector and sergeant. Rather, in reviewing the actions of the City and the CSC, the court merely approves the defendants' actions under an arbitrary and capricious standard. Therefore, the court finds that the rights of the examinees were not unnecessarily trammeled in the reweighing of the examinations.
Pursuant to Fed.R.Civ.P. 52(a), this Memorandum of Decision shall represent the court's findings of fact and conclusions of law.
CONCLUSION
The court holds that the reweighing plan adopted by the Civil Service Commission to remedy the adverse impact resulting from the promotional examinations was a permissible affirmative action plan under Weber. The court therefore dissolves its preliminary injunction previously issued in this case and orders the City to begin making promotions for the ranks of assistant inspector and sergeant from the eligibility lists derived from the reweighed examinations.
Let judgment be entered accordingly.
NOTES
[1] Civil Service rule 5.07 prohibits the CSC from reconsidering matters previously decided by it more than 30 days after notice of the decision of the original vote. Here, the reconsideration vote was taken eight months after the issue had been decided and closed. Under the Supremacy Clause, the civil service rule gave way to the extent it impeded the operation of the Consent Decree.
[2] It is imprecise to imply that the rules were changed after the examinations were given. First, the candidates took the multiple choice examination before any weights had been assigned to the various components. Second, job announcements for both the Q/50 and Q/35 noted that "[t]he Consent Decree Division reserves the right to revise the examination plan in order to meet the requirements of applicable law and the Consent Decree." The Consent Decree Division merely asserted its reserved right.
[3] This was the only factual issue before the court. The POA originally had included a state claim alleging that the examinations, as reweighed, were not job-related. During oral argument on the motion for partial summary judgment, the court asked Mr. Saltsman, counsel for POA: "Do you have a pendant claim that you are wanting to prosecute on the issue of job validity?" Answer: "No, Your Honor." (R.T. February 28, 1985.) The POA therefore has withdrawn the issue of whether the examinations, as reweighed, were job-related.
[4] The court has reviewed the transcripts of the hearings before the Civil Service Commission and has found that most, if not all, of the evidence received during the court's hearing also was before the CSC.
[5] Lieutenant Gabriel Ornelias and Captain Edward Washington of the Los Angeles Police Department testified in court. In addition, the court received into evidence the deposition testimony of Captain Patrick Devlin of the New York Police Department.
[6] The POA contends that the multiple choice component should have been accorded greater weight in the selection process. In this regard, the court notes that the multiple choice examination tested knowledge of the codes that the candidates had been enforcing for the past three years. Perhaps then, it is unsurprising that the great majority of candidates exceeded the level of minimum competency.
[7] Three candidates who were on the original eligibility list did not make the revised list because they failed the written communications test.
[8] Each interview board consisted of three raters who were not members of the San Francisco Police Department. The raters were specifically chosen from other jurisdictions in order to eliminate favoratism and bias from the selection process.
[9] The entire oral examination was highly structured. The raters were told precisely which dimensions were being measured and the method by which a candidate would exhibit that dimension. The Consent Decree Examination Unit developed a "Rater's Report Form" which defined the dimensions for each classification, explained the scoring scale, and provided a framework upon which the raters could base their judgment as to whether a response was unsatisfactory, satisfactory, or good, relative to the specific dimension that was being measured. The raters were given these forms and encouraged to use them. Moreover, an eight-hour orientation and training program for the oral raters increased the chances that the raters would be consistent and accurate in their grading of the candidates.
[10] Professor Comrey also testified that, if the oral interview were to be used as the sole ranking device, at least 70 percent of the applicants should be eliminated on the basis of the first two components. The court does not accept his opinion for three reasons. First, as a general matter, Professor Comrey's expertise was in psychological testing and not employment testing. Second, and more specifically, he had never seen the data underlying the job analysis, had never read the scenarios, had not seen the tests and had not read the instructions to the raters. Finally, although he stated that an oral interview is unreliable and lacking in validity, some of the specific reasons he gave to support his statement were not applicable to this particular oral examination.
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(Slip Opinion) OCTOBER TERM, 2005 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
ARLINGTON CENTRAL SCHOOL DISTRICT BOARD
OF EDUCATION v. MURPHY ET VIR.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 05–18. Argued April 19, 2006—Decided June 26, 2006
After respondents prevailed in their Individuals with Disabilities Edu
cation Act (IDEA) action to require petitioner school board to pay for
their son’s private school tuition, they sought fees for services ren
dered by an educational consultant during the proceedings, relying
on an IDEA provision that permits a court to “award reasonable at
torneys’ fees as part of the costs” to prevailing parents, 20 U. S. C.
§1415(i)(3)(B). The District Court granted their motion in part. Af
firming, the Second Circuit noted that, under Crawford Fitting Co. v.
J. T. Gibbons, Inc., 482 U. S. 437, and West Virginia Univ. Hospitals,
Inc. v. Casey, 499 U. S. 83, a cost- or fee-shifting provision will not be
read to permit recovery of expert fees without explicit statutory au
thority, but concluded that a congressional Conference Committee
Report relating to §1415(i)(3)(B) and a footnote in Casey referencing
that Report showed that the IDEA authorized such reimbursement.
Held: Section §1415(i)(3)(B) does not authorize prevailing parents to
recover expert fees. Pp. 3–12.
(a) The resolution of this question is guided by the fact that Con
gress enacted the IDEA pursuant to the Spending Clause. While
Congress has broad power to set the terms on which it disburses fed
eral money to the States, any conditions it attaches to a State’s ac
ceptance of such funds must be set out “unambiguously.” Pennhurst
State School and Hospital v. Halderman, 451 U. S. 1, 17. Fund re
cipients are bound only by those conditions that they accept “volun
tarily and knowingly,” ibid., and States cannot knowingly accept con
ditions of which they are “unaware” or which they are “unable to
ascertain,” ibid. Thus, the question here is whether the IDEA fur
nishes clear notice regarding expert fees. Pp. 3–4.
2 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v.
MURPHY
Syllabus
(b) The Court begins with the IDEA’s text, for if its “language is
plain,” the courts’ function “ ‘ “is to enforce it according to its terms.” ’ ”
Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530
U. S. 1, 6. While §1415(i)(3)(B) provides for an award of “reasonable
attorneys’ fees,” it does not even hint that acceptance of IDEA funds
makes a State responsible for reimbursing prevailing parents for the
services of experts. “Costs” is a term of art that does not generally
include expert fees. The use of “costs” rather than “expenses”
strongly suggests that §1415(i)(3)(B) was not meant to be an open-
ended provision making States liable for all expenses. Moreover,
§1415(i)(3)(B) says not that a court may award “costs” but that it may
award attorney’s fees “as part of the costs.” This language simply
adds reasonable attorney’s fees to the list of recoverable costs set out
in 28 U. S. C. §1920, the general statute covering taxation of costs,
which is strictly limited by §1821. Thus, §1415(i)(3)(B)’s text does not
authorize an award of additional expert fees, and it certainly fails to
present the clear notice required by the Spending Clause. Other
IDEA provisions point strongly in the same direction. Of little sig
nificance here is a provision in the Handicapped Children’s Protec
tion Act of 1986 requiring the General Accounting Office to collect
data on awards to prevailing parties in IDEA cases, but making no
mention of consultants or experts or their fees. And the fact that the
provision directed the GAO to compile data on the hours spent by
consultants in IDEA cases does not mean that Congress intended for
States to compensate prevailing parties for fees billed by these con
sultants. Pp. 4–8.
(c) Crawford Fitting Co. and Casey strongly reinforce the conclu
sion that the IDEA does not unambiguously authorize prevailing
parents to recover expert fees. Crawford Fitting Co.’s reasoning sup
ports the conclusion that the term “costs” in §1415(i)(3)(B), like
“costs” in Federal Rule of Civil Procedure 54(d), the provision at issue
there, is defined by the categories of expenses enumerated in 28
U. S. C. §1920. This conclusion is buttressed by the principle, recog
nized in Crawford Fitting Co., that no statute will be construed to au
thorize taxing witness fees as costs unless the statute “refer[s] explic
itly to witness fees.” 482 U. S., at 445. The conclusion that the IDEA
does not authorize expert fee awards is confirmed even more dra
matically by Casey, where the Court held that 42 U. S. C. §1988, a
fee-shifting provision with wording virtually identical to that of 20
U. S. C. §1415(i)(3)(B), did not empower a district court to award ex
pert fees to a prevailing party. 482 U. S., at 102. The Second Circuit
misunderstood the meaning of the Casey footnote on which it relied.
That footnote did not state that the Conference Committee Report set
out the correct interpretation of §1415(i)(3)(B) or provided the clear
Cite as: 548 U. S. ____ (2006) 3
Syllabus
notice required under the Spending Clause. Its thrust was simply
that “attorneys’ fees,” standing alone, is generally not understood as
encompassing expert fees. Pp. 8–11.
(d) Respondents’ additional arguments are unpersuasive. The
IDEA’s goals of “ensur[ing] that all children with disabilities have
available to them a free appropriate public education,”
§1400(d)(1)(A), and of safeguarding parents’ right to challenge ad
verse school decisions are too general to provide much support for
their reading of the IDEA. And the IDEA’s legislative history is in
sufficient help, where everything other than that history overwhelm
ingly suggests that expert fees may not be recovered. Pp. 11–12.
402 F. 3d 332, reversed and remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and SCALIA, KENNEDY, and THOMAS, JJ., joined. GINSBURG, J., filed an
opinion concurring in part and concurring in the judgment. SOUTER, J.,
filed a dissenting opinion. BREYER, J., filed a dissenting opinion, in
which STEVENS and SOUTER, JJ., joined.
Cite as: 548 U. S. ____ (2006) 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. 05–18
_________________
ARLINGTON CENTRAL SCHOOL DISTRICT BOARD
OF EDUCATION, PETITIONER v. PEARL
MURPHY ET VIR
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 26, 2006]
JUSTICE ALITO delivered the opinion of the Court.
The Individuals with Disabilities Education Act (IDEA
or Act) provides that a court “may award reasonable at
torneys’ fees as part of the costs” to parents who prevail in
an action brought under the Act. 111 Stat. 92, 20 U. S. C.
§1415(i)(3)(B). We granted certiorari to decide whether
this fee-shifting provision authorizes prevailing parents to
recover fees for services rendered by experts in IDEA
actions. We hold that it does not.
I
Respondents Pearl and Theodore Murphy filed an action
under the IDEA on behalf of their son, Joseph Murphy,
seeking to require petitioner Arlington Central School
District Board of Education to pay for their son’s private
school tuition for specified school years. Respondents
prevailed in the District Court, 86 F. Supp. 2d 354 (SDNY
2000), and the Court of Appeals for the Second Circuit
affirmed, 297 F. 3d 195 (2002).
As prevailing parents, respondents then sought $29,350
in fees for the services of an educational consultant,
2 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v.
MURPHY
Opinion of the Court
Marilyn Arons, who assisted respondents throughout the
IDEA proceedings. The District Court granted respon
dents’ request in part. It held that only the value of Arons’
time spent between the hearing request and the ruling in
respondents’ favor could properly be considered charges
incurred in an “action or proceeding brought” under the
Act, see 20 U. S. C. §1415(i)(3)(B). 2003 WL 21694398, *9
(SDNY, July 22, 2003). This reduced the maximum recov
ery to $8,650. The District Court also held that Arons, a
nonlawyer, could be compensated only for time spent on
expert consulting services, not for time spent on legal
representation, id., at *4, but it concluded that all the
relevant time could be characterized as falling within the
compensable category, and thus allowed compensation for
the full $8,650, id., at *10.
The Court of Appeals for the Second Circuit affirmed.
402 F. 3d 332 (2005). Acknowledging that other Circuits
had taken the opposite view, the Court of Appeals for the
Second Circuit held that “Congress intended to and did
authorize the reimbursement of expert fees in IDEA ac
tions.” Id., at 336. The court began by discussing two
decisions of this Court holding that expert fees could not
be recovered as taxed costs under particular cost- or fee-
shifting provisions. See Crawford Fitting Co. v. J. T. Gib
bons, Inc., 482 U. S. 437 (1987) (interpreting Fed. Rule Civ.
Proc. 54(d) and 28 U. S. C. §1920); West Virginia Univ.
Hospitals, Inc. v. Casey, 499 U. S. 83 (1991) (interpreting 42
U. S. C. §1988 (1988 ed.)). According to these decisions, the
court noted, a cost- or fee-shifting provision will not be read
to permit a prevailing party to recover expert fees without
“‘explicit statutory authority’ indicating that Congress
intended for that sort of fee-shifting.” 402 F. 3d, at 336.
Ultimately, though, the court was persuaded by a state
ment in the Conference Committee Report relating to 20
U. S. C. §1415(i)(3)(B) and by a footnote in Casey that
made reference to that Report. 402 F. 3d, at 336–337
Cite as: 548 U. S. ____ (2006) 3
Opinion of the Court
(citing H. R. Conf. Rep. No. 99–687, p. 5 (1986)). Based on
these authorities, the court concluded that it was required
to interpret the IDEA to authorize the award of the costs
that prevailing parents incur in hiring experts. 402 F. 3d,
at 336.
We granted certiorari, 546 U. S. ____ (2006), to resolve
the conflict among the Circuits with respect to whether
Congress authorized the compensation of expert fees to
prevailing parents in IDEA actions. Compare Goldring v.
District of Columbia, 416 F. 3d 70, 73–77 (CADC 2005);
Neosho R-V School Dist. v. Clark ex rel. Clark, 315 F. 3d
1022, 1031–1033 (CA8 2003); T. D. v. LaGrange School
Dist. No. 102, 349 F. 3d 469, 480–482 (CA7 2003), with
402 F. 3d 332 (CA2 2005). We now reverse.
II
Our resolution of the question presented in this case is
guided by the fact that Congress enacted the IDEA pursu
ant to the Spending Clause. U. S. Const., Art. I, §8, cl. 1;
see Schaffer v. Weast, 546 U. S. ____ (2005). Like its
statutory predecessor, the IDEA provides federal funds to
assist state and local agencies in educating children with
disabilities “and conditions such funding upon a State’s
compliance with extensive goals and procedures.” Board of
Ed. of Hendrick Hudson Central School Dist., Westchester
Cty. v. Rowley, 458 U. S. 176, 179 (1982).
Congress has broad power to set the terms on which it
disburses federal money to the States, see, e.g., South
Dakota v. Dole, 483 U. S. 203, 206–207 (1987), but when
Congress attaches conditions to a State’s acceptance of
federal funds, the conditions must be set out “unambigu
ously,” see Pennhurst State School and Hospital v. Halder
man, 451 U. S. 1, 17 (1981); Rowley, supra, at 204, n. 26.
“[L]egislation enacted pursuant to the spending power is
much in the nature of a contract,” and therefore, to be bound
by “federally imposed conditions,” recipients of federal funds
4 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v.
MURPHY
Opinion of the Court
must accept them “voluntarily and knowingly.” Pennhurst,
451 U. S., at 17. States cannot knowingly accept conditions
of which they are “unaware” or which they are “unable to
ascertain.” Ibid. Thus, in the present case, we must view
the IDEA from the perspective of a state official who is
engaged in the process of deciding whether the State should
accept IDEA funds and the obligations that go with those
funds. We must ask whether such a state official would
clearly understand that one of the obligations of the Act is
the obligation to compensate prevailing parents for expert
fees. In other words, we must ask whether the IDEA
furnishes clear notice regarding the liability at issue in
this case.
III
A
In considering whether the IDEA provides clear notice,
we begin with the text. We have “stated time and again
that courts must presume that a legislature says in a
statute what it means and means in a statute what it says
there.” Connecticut Nat. Bank v. Germain, 503 U. S. 249,
253–254 (1992). When the statutory “language is plain, the
sole function of the courts—at least where the disposition
required by the text is not absurd—is to enforce it according
to its terms.” Hartford Underwriters Ins. Co. v. Union
Planters Bank, N. A., 530 U. S. 1, 6 (2000) (quoting United
States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241
(1989), in turn quoting Caminetti v. United States, 242 U. S.
470, 485 (1917); internal quotation marks omitted).
The governing provision of the IDEA, 20 U. S. C.
§1415(i)(3)(B), provides that “[i]n any action or proceeding
brought under this section, the court, in its discretion,
may award reasonable attorneys’ fees as part of the costs”
to the parents of “a child with a disability” who is the
“prevailing party.” While this provision provides for an
award of “reasonable attorneys’ fees,” this provision does
Cite as: 548 U. S. ____ (2006) 5
Opinion of the Court
not even hint that acceptance of IDEA funds makes a
State responsible for reimbursing prevailing parents for
services rendered by experts.
Respondents contend that we should interpret the term
“costs” in accordance with its meaning in ordinary usage
and that §1415(i)(3)(B) should therefore be read to “au
thorize reimbursement of all costs parents incur in IDEA
proceedings, including expert costs.” Brief for Respon
dents 17.
This argument has multiple flaws. For one thing, as the
Court of Appeals in this case acknowledged, “ ‘costs’ is a
term of art that generally does not include expert fees.”
402 F. 3d, at 336. The use of this term of art, rather than
a term such as “expenses,” strongly suggests that
§1415(i)(3)(B) was not meant to be an open-ended provi
sion that makes participating States liable for all expenses
incurred by prevailing parents in connection with an
IDEA case—for example, travel and lodging expenses or
lost wages due to time taken off from work. Moreover,
contrary to respondents’ suggestion, §1415(i)(3)(B) does
not say that a court may award “costs” to prevailing par
ents; rather, it says that a court may award reasonable
attorney’s fees “as part of the costs” to prevailing parents.
This language simply adds reasonable attorney’s fees
incurred by prevailing parents to the list of costs that
prevailing parents are otherwise entitled to recover. This
list of otherwise recoverable costs is obviously the list set
out in 28 U. S. C. §1920, the general statute governing the
taxation of costs in federal court, and the recovery of
witness fees under §1920 is strictly limited by §1821,
which authorizes travel reimbursement and a $40 per
diem. Thus, the text of 20 U. S. C. §1415(i)(3)(B) does not
authorize an award of any additional expert fees, and it
certainly fails to provide the clear notice that is required
under the Spending Clause.
Other provisions of the IDEA point strongly in the same
6 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v.
MURPHY
Opinion of the Court
direction. While authorizing the award of reasonable
attorney’s fees, the Act contains detailed provisions that
are designed to ensure that such awards are indeed rea
sonable. See §§1415(i)(3)(C)–(G). The absence of any
comparable provisions relating to expert fees strongly
suggests that recovery of expert fees is not authorized.
Moreover, the lack of any reference to expert fees in
§1415(d)(2) gives rise to a similar inference. This provi
sion, which generally requires that parents receive “a full
explanation of the procedural safeguards” available under
§1415 and refers expressly to “attorneys’ fees,” makes no
mention of expert fees.
B
Respondents contend that their interpretation of
§1415(i)(3)(B) is supported by a provision of the Handi
capped Children’s Protection Act of 1986 that required the
General Accounting Office (GAO) to collect certain data,
§4(b)(3), 100 Stat. 797 (hereinafter GAO study provision),
but this provision is of little significance for present pur
poses. The GAO study provision directed the Comptroller
General, acting through the GAO, to compile data on,
among other things: “(A) the specific amount of attorneys’
fees, costs, and expenses awarded to the prevailing party” in
IDEA cases for a particular period of time, and (B) “the
number of hours spent by personnel, including attorneys
and consultants, involved in the action or proceeding, and
expenses incurred by the parents and the State educa
tional agency and local educational agency.” Id., at 797–
798.
Subparagraph (A) would provide some support for re
spondents’ position if it directed the GAO to compile data
on awards to prevailing parties of the expense of hiring
consultants, but that is not what subparagraph (A) says.
Subparagraph (A) makes no mention of consultants or
Cite as: 548 U. S. ____ (2006) 7
Opinion of the Court
experts or their fees.1
Subparagraph (B) similarly does not help respondents.
Subparagraph (B), which directs the GAO to study “the
number of hours spent [in IDEA cases] by personnel,
including . . . consultants,” says nothing about the award
of fees to such consultants. Just because Congress di
rected the GAO to compile statistics on the hours spent by
consultants in IDEA cases, it does not follow that Con
gress meant for States to compensate prevailing parties
for the fees billed by these consultants.
Respondents maintain that “Congress’ direction to the
GAO would be inexplicable if Congress did not anticipate
that the expenses for ‘consultants’ would be recoverable,”
Brief for Respondents 19, but this is incorrect. There are
many reasons why Congress might have wanted the GAO
to gather data on expenses that were not to be taxed as
costs. Knowing the costs incurred by IDEA litigants might
be useful in considering future procedural amendments
(which might affect these costs) or a future amendment
regarding fee shifting. And, in fact, it is apparent that the
——————
1 Because subparagraph (A) refers to both “costs” and “expenses”
awarded to prevailing parties and because it is generally presumed that
statutory language is not superfluous, it could be argued that this provi
sion manifests the expectation that prevailing parties would be awarded
certain “expenses” not included in the list of “costs” set out in 28 U. S. C.
§1920 and that expert fees were intended to be among these unenumer
ated “expenses.” This argument fails because, whatever expectation this
language might seem to evidence, the fact remains that neither 20 U. S. C.
§1415 nor any other provision of the IDEA authorizes the award of any
“expenses” other than “costs.” Recognizing this, respondents argue not
that they are entitled to recover “expenses” that are not “costs,” but that
expert fees are recoverable “costs.” As a result, the reference to awards of
both “expenses” and “costs” does not support respondents’ position. The
reference to “expenses” may relate to IDEA actions brought in state court,
§1415(i)(2)(A), where “expenses” other than “costs” might be receivable.
Or the reference may be surplusage. While it is generally presumed that
statutes do not contain surplusage, instances of surplusage are not
unknown.
8 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v.
MURPHY
Opinion of the Court
GAO study provision covered expenses that could not be
taxed as costs. For example, the GAO was instructed to
compile statistics on the hours spent by all attorneys
involved in an IDEA action or proceeding, even though the
Act did not provide for the recovery of attorney’s fees by a
prevailing state or local educational agency.2 Similarly,
the GAO was directed to compile data on “expenses in
curred by the parents,” not just those parents who prevail
and are thus eligible to recover taxed costs.
In sum, the terms of the IDEA overwhelmingly support
the conclusion that prevailing parents may not recover the
costs of experts or consultants. Certainly the terms of the
IDEA fail to provide the clear notice that would be needed
to attach such a condition to a State’s receipt of IDEA
funds.
IV
Thus far, we have considered only the text of the IDEA,
but perhaps the strongest support for our interpretation of
the IDEA is supplied by our decisions and reasoning in
Crawford Fitting, 482 U. S. 437, and Casey, 499 U. S. 83.
In light of those decisions, we do not see how it can be said
that the IDEA gives a State unambiguous notice regarding
liability for expert fees.
In Crawford Fitting, the Court rejected an argument
very similar to respondents’ argument that the term
“costs” in §1415(i)(3)(B) should be construed as an open-
ended reference to prevailing parents’ expenses. It was
argued in Crawford Fitting that Federal Rule of Civil
——————
2 In
2000, the attorneys’ fees provision provided only an award to
prevailing parents. See 20 U. S. C. §1415(i)(3)(B). In 2004, Congress
amended §1415(i)(3)(B) to include two additional awards. See §101,
118 Stat. 2724. The amendments provided awards “to a prevailing
party who is a State educational agency or local educational agency”
where the complaint filed is frivolous or presented for an improper
purpose, such as to harass, delay, or increase the cost of litigation. See
20 U. S. C. A. §§1415(i)(3)(B)(i)(II)–(III) (Supp. 2006).
Cite as: 548 U. S. ____ (2006) 9
Opinion of the Court
Procedure 54(d), which provides for the award of “costs” to
a prevailing party, authorizes the award of costs not listed
in 28 U. S. C. §1821. 482 U. S., at 439. The Court held,
however, that Rule 54(d) does not give a district judge
“discretion to tax whatever costs may seem appropriate”;
rather, the term “costs” in Rule 54(d) is defined by the list
set out in §1920. Id., at 441. Because the recovery of
witness fees, see §1920(3), is strictly limited by §1821, the
Court observed, a broader interpretation of Rule 54(d)
would mean that the Rule implicitly effected a partial
repeal of those provisions. Id., at 442. But, the Court
warned, “[w]e will not lightly infer that Congress has
repealed §§1920 and 1821, either through Rule 54(d) or
any other provision not referring explicitly to witness
fees.” Id., at 445.
The reasoning of Crawford Fitting strongly supports the
conclusion that the term “costs” in 20 U. S. C.
§1415(i)(3)(B), like the same term in Rule 54(d), is defined
by the categories of expenses enumerated in 28 U. S. C.
§1920. This conclusion is buttressed by the principle,
recognized in Crawford Fitting, that no statute will be
construed as authorizing the taxation of witness fees as
costs unless the statute “refer[s] explicitly to witness fees.”
482 U. S., at 445; see also ibid. (“absent explicit statutory
or contractual authorization for the taxation of the ex
penses of a litigant’s witness as costs, federal courts are
bound by the limitations set out in 28 U. S. C. §1821 and
§1920”).
Our decision in Casey confirms even more dramatically
that the IDEA does not authorize an award of expert fees.
In Casey, as noted above, we interpreted a fee-shifting
provision, 42 U. S. C. §1988, the relevant wording of which
was virtually identical to the wording of 20 U. S. C.
§1415(i)(3)(B). Compare ibid. (authorizing the award of
“reasonable attorneys’ fees as part of the costs” to prevail
ing parents) with 42 U. S. C. §1988(b) (1988 ed.) (permit
10 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v.
MURPHY
Opinion of the Court
ting prevailing parties in certain civil rights actions to be
awarded “a reasonable attorney’s fee as part of the costs”).
We held that §1988 did not empower a district court to
award expert fees to a prevailing party. Casey, supra, at
102. To decide in favor of respondents here, we would
have to interpret the virtually identical language in 20
U. S. C. §1415 as having exactly the opposite meaning.
Indeed, we would have to go further and hold that the
relevant language in the IDEA unambiguously means
exactly the opposite of what the nearly identical language
in 42 U. S. C. §1988 was held to mean in Casey.
The Court of Appeals, as noted above, was heavily influ
enced by a Casey footnote, see 402 F. 3d, at 336–337 (quot
ing 499 U. S., at 91–92, n. 5), but the court misunderstood
the footnote’s meaning. The text accompanying the foot
note argued, based on an analysis of several fee-shifting
statutes, that the term “attorney’s fees” does not include
expert fees. Id., at 88–91. In the footnote, we commented
on petitioners’ invocation of the Conference Committee
Report relating to 20 U. S. C. §1415(i)(3)(B), which stated:
“ ‘The conferees intend[ed] that the term “attorneys’ fees as
part of the costs” include reasonable expenses and fees of
expert witnesses and the reasonable costs of any test or
evaluation which is found to be necessary for the prepara
tion of the . . . case.’ ” 499 U. S., at 91–92, n. 5 (quoting
H. R. Conf. Rep. No. 99–687, at 5; ellipsis in original).
This statement, the footnote commented, was “an appar
ent effort to depart from ordinary meaning and to define a
term of art.” 499 U. S., at 92, n. 5. The footnote did not
state that the Conference Committee Report set out the
correct interpretation of §1415(i)(3)(B), much less that the
Report was sufficient, despite the language of the statute,
to provide the clear notice required under the Spending
Clause. The thrust of the footnote was simply that the
term “attorneys’ fees,” standing alone, is generally not
understood as encompassing expert fees. Thus, Crawford
Cite as: 548 U. S. ____ (2006) 11
Opinion of the Court
Fitting and Casey strongly reinforce the conclusion that
the IDEA does not unambiguously authorize prevailing
parents to recover expert fees.
V
Respondents make several arguments that are not
based on the text of the IDEA, but these arguments do not
show that the IDEA provides clear notice regarding the
award of expert fees.
Respondents argue that their interpretation of the
IDEA furthers the Act’s overarching goal of “ensur[ing]
that all children with disabilities have available to them
a free appropriate public education,” 20 U. S. C.
§1400(d)(1)(A) as well as the goal of “safeguard[ing] the
rights of parents to challenge school decisions that ad
versely affect their child.” Brief for Respondents 20.
These goals, however, are too general to provide much
support for respondents’ reading of the terms of the IDEA.
The IDEA obviously does not seek to promote these goals
at the expense of all other considerations, including fiscal
considerations. Because the IDEA is not intended in all
instances to further the broad goals identified by the
respondents at the expense of fiscal considerations, the
goals cited by respondents do little to bolster their argu
ment on the narrow question presented here.3
Finally, respondents vigorously argue that Congress
clearly intended for prevailing parents to be compensated
for expert fees. They rely on the legislative history of
§1415 and in particular on the following statement in the
——————
3 Respondents note that a GAO report stated that expert witness fees
are reimbursable expenses. See Brief for Respondents 19 (citing GAO,
Special Education: The Attorney Fees Provision of Public Law 99–372,
p. 13 (Nov. 1989)). But this passing reference in a report issued by an
agency not responsible for implementing the IDEA is plainly insuffi
cient to provide clear notice regarding the scope of the conditions
attached to the receipt of IDEA funds.
12 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v.
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Opinion of the Court
Conference Committee Report, discussed above: “The
conferees intend that the term ‘attorneys’ fees as part of
the costs’ include reasonable expenses and fees of expert
witnesses and the reasonable costs of any test or evalua
tion which is found to be necessary for the preparation of
the . . . case.” H. R. Conf. Rep. No. 99–687, at 5.
Whatever weight this legislative history would merit in
another context, it is not sufficient here. Putting the
legislative history aside, we see virtually no support for
respondents’ position. Under these circumstances, where
everything other than the legislative history overwhelm
ing suggests that expert fees may not be recovered, the
legislative history is simply not enough. In a Spending
Clause case, the key is not what a majority of the Mem
bers of both Houses intend but what the States are clearly
told regarding the conditions that go along with the accep
tance of those funds. Here, in the face of the unambiguous
text of the IDEA and the reasoning in Crawford Fitting
and Casey, we cannot say that the legislative history on
which respondents rely is sufficient to provide the requi
site fair notice.
* * *
We reverse the judgment of the Court of Appeals for the
Second Circuit and remand the case for further proceed
ings consistent with this opinion.
It is so ordered.
Cite as: 548 U. S. ____ (2006) 1
Opinion of GINSBURG, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 05–18
_________________
ARLINGTON CENTRAL SCHOOL DISTRICT BOARD
OF EDUCATION, PETITIONER v. PEARL
MURPHY ET VIR
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 26, 2006]
JUSTICE GINSBURG, concurring in part and concurring in
the judgment.
I agree, in the main, with the Court’s resolution of this
case, but part ways with the Court’s opinion in one re
spect. The Court extracts from Pennhurst State School and
Hospital v. Halderman, 451 U. S. 1, 17 (1981), a “clear
notice” requirement, and deems it applicable in this case
because Congress enacted the Individuals with Disabili
ties Education Act (IDEA), as it did the legislation at issue
in Pennhurst, pursuant to the Spending Clause. Ante, at
3–4. That extraction, in my judgment, is unwarranted.
Pennhurst’s “clear notice” requirement should not be
unmoored from its context. The Court there confronted a
plea to impose “an unexpected condition for compliance—a
new [programmatic] obligation for participating States.”
Bell v. New Jersey, 461 U. S. 773, 790, n. 17 (1983). The
controversy here is lower key: It concerns not the educa
tional programs IDEA directs school districts to provide,
but “the remedies available against a noncomplying [dis
trict].” Ibid; see post, at 9–11 (BREYER, J., dissenting).
The Court’s repeated references to a Spending Clause
derived “clear notice” requirement, see ante, at 3–4, 6, 8,
11, and n. 3, 12, are questionable on other grounds as well.
For one thing, IDEA was enacted not only pursuant to
2 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v.
MURPHY
Opinion of GINSBURG, J.
Congress’ Spending Clause authority, but also pursuant to
§5 of the Fourteenth Amendment. See Smith v. Robinson,
468 U. S. 992, 1009 (1984) (IDEA’s predecessor, the Educa
tion of the Handicapped Act, was “set up by Congress to
aid the States in complying with their constitutional
obligations to provide public education for handicapped
children.”). Furthermore, no “clear notice” prop is needed
in this case given the twin pillars on which the Court’s
judgment securely rests. First, as the Court explains,
ante, at 4–6, the specific, attorneys’-fees-oriented, provi
sions of IDEA, i.e., 20 U. S. C. §1415(i)(3)(B)–(G);
§1415(d)(2)(L), “overwhelmingly support the conclusion
that prevailing parents may not recover the costs of ex
perts or consultants,” ante, at 8. Those provisions place
controls on fees recoverable for attorneys’ services, without
mentioning costs parents might incur for other profes
sional services and controls geared to those costs. Second,
as the Court develops, prior decisions closely in point
“strongly suppor[t],” even “confir[m] . . . dramatically,”
today’s holding that IDEA trains on attorneys’ fees and
does not authorize an award covering amounts paid or
payable for the services of an educational consultant.
Ante, at 9 (citing Crawford Fitting Co. v. J. T. Gibbons, Inc.,
482 U. S. 437 (1987), and West Virginia Univ. Hospitals, Inc.
v. Casey, 499 U. S. 83 (1991)).
For the contrary conclusion, JUSTICE BREYER’s dissent
relies dominantly on a Conference Report stating the
conferees’ view that the term “attorneys’ fees as part of the
costs” includes “expenses and fees of expert witnesses” and
payments for tests necessary for the preparation of a case.
H. R. Conf. Rep. No. 99–687, p. 5 (1986) (internal quota
tion marks omitted).1 Including costs of consultants and
——————
1The relevant statement from the Conference Report reads in its
entirety:
“The conferees intend that the term ‘attorneys’ fees as part of the
Cite as: 548 U. S. ____ (2006) 3
Opinion of GINSBURG, J.
tests in §1415(i)(3)(B) would make good sense in light of
IDEA’s overarching goal, i.e., to provide a “free appropri
ate public education” to children with disabilities,
§1400(d)(1)(A). See post, at 5–8 (BREYER, J., dissenting).
But Congress did not compose §1415(i)(3)(B)’s text,2 as it
did the texts of other statutes too numerous and varied to
ignore, to alter the common import of the terms “attorneys’
fees” and “costs” in the context of expense-allocation legis
lation. See, e.g., 42 U. S. C. §1988(c) (2000 ed. and Supp.
III) (added in 1991 specifically to “include expert fees as
part of the attorney’s fee”); Casey, 499 U. S., at 88–92, and
n. 4 (citing variously composed statutes that “explicitly
shift expert . . . fees as well as attorney’s fees”). Given the
——————
costs’ include reasonable expenses and fees of expert witnesses and the
reasonable costs of any test or evaluation which is found to be neces
sary for the preparation of the parent or guardian’s case in the action or
proceeding, as well as traditional costs incurred in the course of litigat
ing a case.” H. R. Conf. Rep. 99–687, at 5.
Although the Conference Report goes on to consider other matters,
including controls on attorneys’ fees, nothing further is said on expert
witness fees or test costs.
2At the time the Conference Report was submitted to the Senate and
House, sponsors of the legislation did not mention anything on the floor
about expert or consultant fees. They were altogether clear, however,
that the purpose of the legislation was to “reverse” this Court’s decision
in Smith v. Robinson, 468 U. S. 992 (1984). In Smith, the Court held
that, under the statute as then designed, prevailing parents were not
entitled to attorneys’ fees. See 132 Cong. Rec. 16823 (1986) (remarks of
Sen. Weicker) (“In adopting this legislation, we are rejecting the rea
soning of the Supreme Court in Smith versus Robinson.”); id., at 16824
(remarks of Sen. Kerry) (“This vital legislation reverses a U. S. Su
preme Court decision Smith versus Robinson[.]”); id., at 17608–17609
(remarks of Rep. Bartlett) (“I support those provisions in the conference
agreement that, in response to the Supreme Court decision in . . . Smith
versus Robinson, authoriz[e] the awarding of reasonable attorneys’ fees
to parents who prevail in special education court cases.”); id., at 17609
(remarks of Rep. Biaggi) (“This legislation clearly supports the intent of
Congress back in 1975 and corrects what I believe was a gross misin
terpretation of the law. Attorneys’ fees should be provided to those
individuals who are being denied access to the educational system.”).
4 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v.
MURPHY
Opinion of GINSBURG, J.
constant meaning of the formulation “attorneys’ fees as
part of the costs” in federal legislation, we are not at lib
erty to rewrite “the statutory text adopted by both Houses
of Congress and submitted to the President,” id., at 98, to
add several words Congress wisely might have included.
The ball, I conclude, is properly left in Congress’ court to
provide, if it so elects, for consultant fees and testing
expenses beyond those IDEA and its implementing regula
tions already authorize,3 along with any specifications,
conditions, or limitations geared to those fees and expenses
Congress may deem appropriate. Cf. §1415(i)(3)(B)–(G);
§1415(d)(2)(L) (listing only attorneys’ fees, not expert or
consulting fees, among the procedural safeguards about
which school districts must inform parents).
In sum, although I disagree with the Court’s rationale to
the extent that it invokes a “clear notice” requirement tied
to the Spending Clause, I agree with the Court’s discussion
of IDEA’s terms, ante, at 4–6, and of our decisions in Craw
ford and Casey, ante, at 8–11. Accordingly, I concur in part
in the Court’s opinion, and join the Court’s judgment.
——————
3 Under 34 C. F. R. §300.502(b)(1) (2005), a “parent has the right to
an independent educational evaluation at public expense if the parent
disagrees with an evaluation obtained by the public agency.”
Cite as: 548 U. S. ____ (2006) 1
SOUTER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 05–18
_________________
ARLINGTON CENTRAL SCHOOL DISTRICT BOARD
OF EDUCATION, PETITIONER v. PEARL
MURPHY ET VIR
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 26, 2006]
JUSTICE SOUTER, dissenting.
I join JUSTICE BREYER’s dissent and add this word only
to say outright what would otherwise be implicit, that I
agree with the distinction he draws between this case and
Barnes v. Gorman, 536 U. S. 181 (2002). See post, at 10–11
(citing Barnes, supra, at 191 (SOUTER, J., concurring)).
Beyond that, I emphasize the importance for me of §4 of
the Handicapped Children’s Protection Act of 1986, 100
Stat. 797, as amended, 20 U. S. C. A. §1415 note, which
mandated the study by what is now known as the Gov
ernment Accountability Office. That section, of equal
dignity with the fee-shifting provision enacted by the same
statute, makes JUSTICE BREYER’s resort to the related
Conference Report the reasonable course.
Cite as: 548 U. S. ____ (2006) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 05–18
_________________
ARLINGTON CENTRAL SCHOOL DISTRICT BOARD
OF EDUCATION, PETITIONER v. PEARL
MURPHY ET VIR
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 26, 2006]
JUSTICE BREYER, with whom JUSTICE STEVENS and
JUSTICE SOUTER join, dissenting.
The Individuals with Disabilities Education Act (IDEA
or Act), 20 U. S. C. A. §1400 et seq., (Supp. 2006), says that
a court may “award reasonable attorneys’ fees as part of
the costs to the parents” who are prevailing parties.
§1415(i)(3)(B). Unlike the Court, I believe that the word
“costs” includes, and authorizes payment of, the costs of
experts. The word “costs” does not define its own scope.
Neither does the phrase “attorneys’ fees as part of costs.”
But Members of Congress did make clear their intent by,
among other things, approving a Conference Report that
specified that “the term ‘attorneys’ fees as part of the costs’
include[s] reasonable expenses of expert witnesses and
reasonable costs of any test or evaluation which is found to
be necessary for the preparation of the parent or guard
ian’s case in the action or proceeding.” H. R. Conf. Rep.
No. 99–687, p. 5 (1986); Appendix A, infra, at 19. No
Senator or Representative voiced any opposition to this
statement in the discussion preceding the vote on the
Conference Report—the last vote on the bill before it was
sent to the President. I can find no good reason for this
Court to interpret the language of this statute as meaning
the precise opposite of what Congress told us it intended.
2 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v.
MURPHY
BREYER, J., dissenting
I
There are two strong reasons for interpreting the statu
tory phrase to include the award of expert fees. First, that
is what Congress said it intended by the phrase. Second,
that interpretation furthers the IDEA’s statutorily defined
purposes.
A
Congress added the IDEA’s cost-shifting provision when
it enacted the Handicapped Children’s Protection Act of
1986 (HCPA), 100 Stat. 796. Senator Lowell Weicker
introduced the relevant bill in 1985. 131 Cong. Rec. 1979–
1980 (1985). As introduced, it sought to overturn this
Court’s determination that the then-current version of the
IDEA (and other civil rights statutes) did not authorize
courts to award attorneys’ fees to prevailing parents in
IDEA cases. See Smith v. Robinson, 468 U. S. 992 (1984).
The bill provided that “[i]n any action or proceeding
brought under this subsection, the court, in its discretion,
may award a reasonable attorney’s fee as part of the costs
to a parent or legal representative of a handicapped child
or youth who is the prevailing party.” 131 Cong. Rec.
1980; see S. Rep. No. 99–112, p. 2 (1985).
After hearings and debate, several Senators introduced
a new bill in the Senate that would have put a cap on
attorneys’ fees for legal services lawyers, but at the same
time would have explicitly authorized the award of “a
reasonable attorney’s fee, reasonable witness fees, and
other reasonable expenses of the civil action, in addition to
the costs to a parent . . . who is the prevailing party.” Id.,
at 7 (emphasis added). While no Senator objected to the
latter provision, some objected to the cap. See, e.g., id., at
17–18 (Additional Views of Senators Kerry, Kennedy, Pell,
Dodd, Simon, Metzenbaum and Matsunaga) (accepting
cost-shifting provision, but objecting to cap and other
aspects of the bill). A bipartisan group of Senators, led by
Cite as: 548 U. S. ____ (2006) 3
BREYER, J., dissenting
Senators Hatch and Weicker, proposed an alternative bill
that authorized courts to award “a reasonable attorney’s
fee in addition to the costs to a parent” who prevailed. Id.,
at 15–16 (Additional Views of Senators Hatch, Weicker,
Stafford, Dole, Pell, Matsunaga, Simon, Kerry, Kennedy,
Metzenbaum, Dodd, and Grassley); 131 Cong. Rec. 21389.
Senator Weicker explained that the bill:
“will enable courts to compensate parents for what
ever reasonable costs they had to incur to fully secure
what was guaranteed to them by the EHA. As in other
fee shifting statutes, it is our intent that such awards
will include, at the discretion of the court, reasonable
attorney’s fees, necessary expert witness fees, and other
reasonable expenses which were necessary for parents
to vindicate their claim to a free appropriate public
education for their handicapped child.” Id., at 21390
(emphasis added).
Not a word of opposition to this statement (or the provi
sion) was voiced on the Senate floor, and S. 415 passed
without a recorded vote. Id., at 21393.
The House version of the bill also reflected an intention
to authorize recovery of expert costs. Following the House
hearings, the Committee on Education and Labor pro
duced a substitute bill that authorized courts to “award
reasonable attorneys’ fees, expenses and costs” to prevail
ing parents. H. R. Rep. No. 99–296, pp. 1, 5 (1985) (em
phasis added). The House Report stated that
“The phrase ‘expenses and costs’ includes expenses of
expert witnesses; the reasonable costs of any study, re
port, test, or project which is found to be necessary for
the preparation of the parents’ or guardian’s due proc
ess hearing, state administrative review or civil action;
as well as traditional costs and expenses incurred in
the course of litigating a case (e.g., depositions and in
terrogatories).” Id., at 6 (emphasis added).
4 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v.
MURPHY
BREYER, J., dissenting
No one objected to this statement. By the time H. R. 1523
reached the floor, another substitute bill was introduced.
131 Cong. Rec. 31369 (1985). This new bill did not change
in any respect the text of the authorization of expenses
and costs. It did add a provision, however, that directed
the General Accounting Office (GAO)—now known as the
Government Accountability Office, see 31 U. S. C. A. §731
note (Supp. 2006)—to study and report to Congress on the
fiscal impact of the cost-shifting provision. See id., at
31369–31370. The newly substituted bill passed the
House without a recorded vote. Id., at 31377.
Members of the House and Senate (including all of the
primary sponsors of the HCPA) then met in conference to
work out certain differences. At the conclusion of those
negotiations, they produced a Conference Report, which
contained the text of the agreed-upon bill and a “Joint
Explanatory Statement of the Committee of the Confer
ence.” See H. R. Conf. Rep. No. 99–687 (1986), Appendix
A, infra. The Conference accepted the House bill’s GAO
provision with “an amendment expanding the data collec
tion requirements of the GAO study to include information
regarding the amount of funds expended by local educa
tional agencies and state educational agencies on civil
actions and administrative proceedings.” Id., at 7. And it
accepted (with minor changes) the cost-shifting provisions
provided in both the Senate and House versions. The
conferees explained:
“With slightly different wording, both the Senate bill
and the House amendment provide for the awarding
of attorneys’ fees in addition to costs. The Senate re
cedes to the House and the House recedes to the Sen
ate with an amendment clarifying that ‘the court, in
its discretion, may award reasonable attorneys’ fees
as part of the costs . . .’ This change in wording incor
porates the Supreme Court[’s] Marek v. Chesny deci
Cite as: 548 U. S. ____ (2006) 5
BREYER, J., dissenting
sion [473 U. S 1 (1985)]. The conferees intend that the
term ‘attorneys’ fees as part of the costs’ include rea
sonable expenses and fees of expert witnesses and the
reasonable costs of any test or evaluation which is
found to be necessary for the preparation of the parent
or guardian’s case in the action or proceeding, as well
as traditional costs incurred in the course of litigating
a case.” Id., at 5 (emphasis added; citation omitted).
The Conference Report was returned to the Senate and
the House. A motion was put to each to adopt the Confer
ence Report, and both the Senate and the House agreed to
the Conference Report by voice votes. See Appendix B,
infra, at 22 (Senate); Appendix C, infra, at 23 (House). No
objection was raised to the Conference Report’s statement
that the cost-shifting provision was intended to authorize
expert costs. I concede that “sponsors of the legislation did
not mention anything on the floor about expert or consult
ant fees” at the time the Conference Report was submit
ted. Ante, at 3, n. 2 (GINSBURG, J., concurring in part and
concurring in judgment). But I do not believe that silence
is significant in light of the fact that every Senator and
three of the five Representatives who spoke on the floor
had previously signed his name to the Conference Re
port—a Report that made Congress’ intent clear on the
first page of its explanation. See Appendix A, infra, at 19.
And every Senator and Representative that took the floor
preceding the votes voiced his strong support for the Con
ference Report. 132 Cong. Rec. 16823–16825 (1986) (Sen
ate); id., at 17607–17612 (House). The upshot is that
Members of both Houses of Congress voted to adopt both
the statutory text before us and the Conference Report
that made clear that the statute’s words include the expert
costs here in question.
B
The Act’s basic purpose further supports interpreting
6 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v.
MURPHY
BREYER, J., dissenting
the provision’s language to include expert costs. The
IDEA guarantees a “free” and “appropriate” public educa
tion for “all” children with disabilities. 20 U. S. C. A.
§1400(d)(1)(A) (Supp. 2006); see also §1401(9)(A) (defining
“free appropriate public education” as one “provided at
public expense,” “without charge”); §1401(29) (defining
“special education” as “specially designed instruction, at
no cost to parents, to meet the unique needs of a child with
a disability” (emphasis added)).
Parents have every right to become involved in the Act’s
efforts to provide that education; indeed, the Act encour
ages their participation. §1400(c)(5)(B) (IDEA “ensur[es]
that families of [disabled] children have meaningful oppor
tunities to participate in the education of their children at
school”). It assures parents that they may question a
school district’s decisions about what is “appropriate” for
their child. And in doing so, they may secure the help of
experts. §1415(h)(1) (parents have “the right to be accom
panied and advised by counsel and by individuals with
special knowledge or training with respect to the problems
of children with disabilities”); see generally Schaffer v.
Weast, 546 U. S. ___, ___ (2005) (slip op., at 3–4) (detailing
Act’s procedures); Board of Ed. of Hendrick Hudson Central
School Dist., Westchester Cty. v. Rowley, 458 U. S. 176, 205–
206 (1982) (emphasizing importance of Act’s procedural
guarantees).
The practical significance of the Act’s participatory
rights and procedural protections may be seriously dimin
ished if parents are unable to obtain reimbursement for
the costs of their experts. In IDEA cases, experts are
necessary. See Kuriloff & Goldberg, Is Mediation a Fair
Way to Resolve Special Education Disputes? First Empiri
cal Findings, 2 Harv. Negotiation L. Rev. 35, 40 (1997)
(detailing findings of study showing high correlation be
tween use of experts and success of parents in challenging
school district’s plan); Kuriloff, Is Justice Served by Due
Cite as: 548 U. S. ____ (2006) 7
BREYER, J., dissenting
Process?: Affecting the Outcome of Special Education
Hearings in Pennsylvania, 48 Law & Contemp. Prob. 89,
100–101, 109 (1985) (same); see also Brief for National
Disability Rights Network et al. as Amici Curiae 6–15
(collecting sources); cf. Schaffer, supra, at ___ (slip op., at
5) (GINSBURG, J., dissenting) (“[T]he vast majority of
parents whose children require the benefits and protec
tions provided in the IDEA lack knowledge about the
educational resources available to their child and the
sophistication to mount an effective case against a district-
proposed IEP” (internal quotation marks and alterations
omitted)).
Experts are also expensive. See Brief for Respondents
28, n. 17 (collecting District Court decisions awarding
expert costs ranging from $200 to $7,600, and noting three
reported cases in which expert awards exceeded $10,000).
The costs of experts may not make much of a dent in a
school district’s budget, as many of the experts they use in
IDEA proceedings are already on the staff. Cf. Oberti v.
Board of Ed. Clementon School Dist., 995 F. 2d 1204, 1219
(CA3 1993). But to parents, the award of costs may mat
ter enormously. Without potential reimbursement, par
ents may well lack the services of experts entirely. See
Department of Education, M. Wagner et al., The Individ
ual and Household Characteristics of Youth With Disabili
ties: A Report from the National Longitudinal Transi-
tion Study–2 (NLTS–2), pp. 3–5 (Aug. 2003) (finding
that 25% of disabled children live in poverty and 65%
live in households with incomes less than $50,000); see
Department ofEducation, M. Wagner et al., The Child-
ren We Serve: The Demographic Characteristics of Ele
mentary and Middle School Students with Disabilities
and Their Households, p. 28 (Sept. 2002), available at
http: // www.seels.net / designdocs / SEELS _ Children _ We _
Serve_Report.pdf (as visited June 23, 2006, and available
in Clerk of Court’s case file) (finding that 36% of disabled
8 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v.
MURPHY
BREYER, J., dissenting
children live in households with incomes of $25,000 or
less).
In a word, the Act’s statutory right to a “free” and “ap
propriate” education may mean little to those who must
pay hundreds of dollars to obtain it. That is why this
Court has previously avoided interpretations that would
bring about this kind of result. See School Comm. of
Burlington v. Department of Ed. of Mass., 471 U. S. 359
(1985) (construing IDEA provision granting equitable
authority to courts to include the power to order reim
bursement for parents who switch their child to private
schools if that decision later proves correct); id., at 370
(without cost reimbursement for prevailing parents, “the
child’s right to a free appropriate public education, the
parents’ right to participate fully in developing a proper
individualized education plan (IEP), and all of the proce
dural safeguards would be less than complete”); Florence
County School Dist. Four v. Carter, 510 U. S. 7, 13 (1993)
(holding that prevailing parents are not barred from reim
bursement for switching their child to a private school
that does not meet the IDEA’s definition of a free and
appropriate education). In Carter, we explained: “IDEA
was intended to ensure that children with disabilities
receive an education that is both appropriate and free. To
read the provisions of §1401(a)(18) to bar reimbursement
in the circumstances of this case would defeat this statu
tory purpose.” Id., at 13–14 (citation omitted).
To read the word “costs” as requiring successful parents
to bear their own expenses for experts suffers from the
same problem. Today’s result will leave many parents and
guardians “without an expert with the firepower to match
the opposition,” Schaffer, supra, at __ (slip op., at 11), a far
cry from the level playing field that Congress envisioned.
II
The majority makes essentially three arguments against
Cite as: 548 U. S. ____ (2006) 9
BREYER, J., dissenting
this interpretation. It says that the statute’s purpose and
“legislative history is simply not enough” to overcome: (1)
the fact that this is a Spending Clause case; (2) the text of
the statute; and (3) our prior cases which hold that the
term “costs” does not include expert costs. Ante, at 12. I
do not find these arguments convincing.
A
At the outset the majority says that it “is guided by the
fact that Congress enacted the IDEA pursuant to the
Spending Clause.” Ante, at 3. “In a Spending Clause
case,” the majority adds, “the key is not what a majority of
the Members of both Houses intend but what the States
are clearly told regarding the conditions that go along with
the acceptance of those funds.” Ante, at 12. Thus, the
statute’s “conditions must be set out ‘unambiguously.’ ”
Ante, at 3–4 (citing Pennhurst State School and Hospital v.
Halderman, 451 U. S. 1, 17 (1981) and Rowley, 458 U. S., at
204, n. 26). And “[w]e must ask” whether the statute
“furnishes clear notice regarding the liability at issue in
this case.” Ante, at 4.
I agree that the statute on its face does not clearly tell
the States that they must pay expert fees to prevailing
parents. But I do not agree that the majority has posed
the right question. For one thing, we have repeatedly
examined the nature and extent of the financial burdens
that the IDEA imposes without reference to the Spending
Clause or any “clear-statement rule.” See, e.g., Burling
ton, supra, at 369 (private school fees); Carter, supra, at 13
(same); Smith, 468 U. S., at 1010–1011 (attorneys’ fees);
Cedar Rapids Community School Dist. v. Garret F., 526
U. S. 66, 76–79 (1999) (continuous nursing service); but
see id., at 83 (THOMAS, J., joined by KENNEDY, J., dissent
ing). Those cases did not ask whether the statute “fur
nishes clear notice” to the affirmative obligation or liabil
ity at issue.
10 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v.
MURPHY
BREYER, J., dissenting
For another thing, neither Pennhurst nor any other case
suggests that every spending detail of a Spending Clause
statute must be spelled out with unusual clarity. To the
contrary, we have held that Pennhurst’s requirement that
Congress “unambiguously” set out “a condition on the
grant of federal money” does not necessarily apply to
legislation setting forth “the remedies available against a
noncomplying State.” Bell v. New Jersey, 461 U. S. 773,
790, n. 17 (1983) (emphasis added) (rejecting Pennhurst
based argument that Elementary and Secondary Educa
tion Act of 1965 did not unambiguously provide that the
Secretary could recover federal funds that are misused by
a State). We have added that Pennhurst does not require
Congress “specifically” to “identify” and “proscribe each
condition in [Spending Clause] legislation.” Jackson v.
Birmingham Bd. of Ed., 544 U. S. 167, 183 (2005) (reject
ing argument that Pennhurst precluded interpreting Title
IX’s private cause of action to encompass retaliation (in
ternal quotation marks and alterations omitted)); see also
Bennett v. Kentucky Dept. of Ed., 470 U. S. 656, 665–666
(1985). And we have denied any implication that “suits
under Spending Clause legislation are suits in contract, or
that contract-law principles apply to all issues that they
raise.” Barnes v. Gorman, 536 U. S. 181, 188–189, n. 2
(2002) (emphasis added).
These statements and holdings are not surprising. After
all, the basic objective of Pennhurst’s clear-statement
requirement does not demand textual clarity in respect to
every detail. That is because ambiguity about the precise
nature of a statutory program’s details—particularly
where they are of a kind that States might have antici
pated—is rarely relevant to the basic question: Would the
States have accepted the Federal Government’s funds had
they only known the nature of the accompanying condi
tions? Often, the later filling-in of details through judicial
interpretation will not lead one to wonder whether fund
Cite as: 548 U. S. ____ (2006) 11
BREYER, J., dissenting
ing recipients would have agreed to enter the basic pro
gram at all. Given the nature of such details, it is clear
that the States would have entered the program regard
less. At the same time, to view each statutory detail of a
highly complex federal/state program (involving say,
transportation, schools, the environment) simply through
the lens of linguistic clarity, rather than to assess its
meanings in terms of basic legislative purpose, is to risk a
set of judicial interpretations that can prevent the pro
gram, overall, from achieving its basic objectives or that
might well reduce a program in its details to incoherence.
This case is about just such a detail. Permitting parents
to recover expert fees will not lead to awards of “indeter
minate magnitude, untethered to compensable harm” and
consequently will not “pose a concern that recipients of
federal funding could not reasonably have anticipated.”
Barnes, 536 U. S., at 191 (SOUTER, J., joined by O’Connor,
J., concurring) (citation and internal quotation marks
omitted). Unlike, say, punitive damages, an award of
costs to expert parties is neither “unorthodox” nor “inde
terminate,” and thus does not throw into doubt whether
the States would have entered into the program. Id., at
188. If determinations as to whether the IDEA requires
States to provide continuing nursing services, Cedar Rap
ids, supra, or reimbursement for private school tuition,
Burlington, supra, do not call for linguistic clarity, then
the precise content of recoverable “costs” does not call for
such clarity here a fortiori.
B
If the Court believes that the statute’s language is
unambiguous, I must disagree. The provision at issue
says that a court “may award reasonable attorneys’ fees as
part of the costs” to parents who prevail in an action
brought under the Act. 20 U. S. C. A. §1415(i)(3)(B) (Supp.
2006). The statute neither defines the word “costs” nor
12 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v.
MURPHY
BREYER, J., dissenting
points to any other source of law for a definition. And the
word “costs,” alone, says nothing at all about which costs
falls within its scope.
Neither does the statutory phrase—“as part of the costs
to the parents of a child with a disability who is the pre
vailing party”—taken in its entirety unambiguously fore
close an award of expert fees. I agree that, read literally,
that provision does not clearly grant authority to award
any costs at all. And one might read it, as the Court does,
as referencing another federal statute, 28 U. S. C. §1920,
which provides that authority. See ante, at 5; see also
§1920 (federal taxation of cost statute). But such a read
ing is not inevitable. The provision (indeed, the entire
Act) says nothing about that other statute. And one can,
consistent with the language, read the provision as both
embodying a general authority to award costs while also
specifying the inclusion of “reasonable attorneys’ fees” as
part of those costs (as saying, for example, that a court
“may award reasonable attorneys’ fees as part of [a] costs
[award]”).
This latter reading, while linguistically the less natural,
is legislatively the more likely. The majority’s alternative
reading, by cross-referencing only the federal general cost-
awarding statute (which applies solely in federal courts),
would produce a jumble of different cost definitions appli
cable to similar IDEA administrative and state-court
proceedings in different States. See §1920 (“A judge or
clerk of any court of the United States may tax as costs the
following. . . .” (emphasis added)). This result is particu
larly odd, as all IDEA actions must begin in state due
process hearings, where the federal cost statute clearly
does not apply, and the overwhelming majority of these
actions are never appealed to any court. See GAO, Report
to the Ranking Minority Member, Committee on Health,
Education, Labor and Pensions, U. S. Senate, Special
Education: Numbers of Formal Disputes are Generally
Cite as: 548 U. S. ____ (2006) 13
BREYER, J., dissenting
Low and States Are Using Mediation and Other Strategies
to Resolve Conflicts (GAO–03–897), p. 13 (2003) (approxi
mately 3,000 administrative hearings annually; under
10% appealed to state or federal court); see also Moore v.
District of Columbia, 907 F. 2d 165, 166 (CADC 1990) (en
banc) (joining other Circuits in holding that IDEA author
izes an “award of attorney fees to a parent who prevails in
[IDEA] administrative proceedings”). And when parents
do appeal, they can file their actions in either state or
federal courts. 20 U. S. C. A. §1415(i)(2)(A) (Supp. 2006).
Would Congress “obviously” have wanted the content of
the word “costs” to vary from State to State, proceeding to
proceeding? Ante, at 5. Why? At most, the majority’s
reading of the text is plausible; it is not the only possible
reading.
C
The majority’s most persuasive argument does not focus
on either the Spending Clause or lack of statutory ambigu
ity. Rather, the majority says that “costs” is a term of art.
In light of the law’s long practice of excluding expert fees
from the scope of the word “costs,” along with this Court’s
cases interpreting the word similarly in other statutes, the
“legislative history is simply not enough.” Ante, at 12.
I am perfectly willing to assume that the majority is
correct about the traditional scope of the word “costs.” In
two cases this Court has held that the word “costs” is
limited to the list set forth in 28 U. S. C. §1920 and does
not include fees paid to experts. See Crawford Fitting Co.
v. J. T. Gibbons, Inc., 482 U. S. 437 (1987) (interpreting Fed.
Rule Civ. Proc. 54(d)); West Virginia Univ. Hospitals, Inc. v.
Casey, 499 U. S. 83 (1991) (interpreting 42 U. S. C. §1988
(1988 ed.)). But Congress is free to redefine terms of art.
See, e.g., Casey, 499 U. S., at 88–90 (citing examples of
statutes that shift “‘costs of litigation (including . . . expert
witness fees)’ ”). And we have suggested that it might well
14 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v.
MURPHY
BREYER, J., dissenting
do so through a statutory provision worded in a manner
similar to the statute here—indeed, we cited the Conference
Report language here at issue. Id., at 91–92, n. 5 (charac
terizing language as an “apparent effort to depart from
ordinary meaning and to define a term of art” and noting
that Congress made no such “effort” in respect to 42 U. S. C.
§1988).
Regardless, here the statute itself indicates that Con
gress did not intend to use the word “costs” as a term of
art. The HCPA, which added the cost-shifting provision
(in §2) to the IDEA, also added another provision (in §4)
directing the GAO to “conduct a study of the impact of the
amendments to the [IDEA] made by section 2” over a 31⁄2
year period following the Act’s effective date. §4(a), 100
Stat. 797. To determine the fiscal impact of §2 (the cost-
shifting provision), §4 ordered the GAO to submit a report
to Congress containing, among other things, the following
information:
“Data, for a geographically representative select sam
ple of States, indicating (A) the specific amount of at
torneys’ fees, costs, and expenses awarded to the pre
vailing party, in each action and proceeding under
[§2] from the date of the enactment of this Act
through fiscal year 1988, and the range of such fees,
costs and expenses awarded in the actions and pro
ceedings under such section, categorized by type of
complaint and (B) for the same sample as in (A) the
number of hours spent by personnel, including attor
neys and consultants, involved in the action or pro
ceeding, and expenses incurred by the parents and the
State educational agency and local educational
agency.” §4(b)(3), id., at 797–798 (emphasis added).
If Congress intended the word “costs” in §2 to authorize
an award of only those costs listed in the federal cost
statute, why did it use the word “expenses” in §4(b)(3)(A)
Cite as: 548 U. S. ____ (2006) 15
BREYER, J., dissenting
as part of the “amount awarded to the prevailing party”?
When used as a term of art, after all, “costs” does not cover
expenses. Nor does the federal costs statute cover any
expenses—at least not any that Congress could have
wanted the GAO to study. Cf. 28 U. S. C. §1920 (referring
only once to “expenses,” and doing so solely to refer to
special interpretation services provided in actions initiated
by the United States).
Further, why did Congress, when asking the GAO (in
the statute itself) to study the “numbers of hours spent by
personnel” include among those personnel both attorneys
“and consultants”? Who but experts could those consult
ants be? Why would Congress want the GAO to study the
hours that those experts “spent,” unless it thought that it
would help keep track of the “costs” that the statute
imposed?
Of course, one might, through speculation, find other
answers to these questions. One might, for example,
imagine that Congress wanted the GAO to study the
expenses that payment of expert fees engendered in state-
court proceedings where state, but not federal, law re
quires that “ ‘expenses’ other than ‘costs’ might be receiv
able.” Ante, at 7, n. 1; but see supra, at 12-13. Or one
might think that the word “expenses” is surplusage. Ante,
at 7, n. 1; but see Duncan v. Walker, 533 U. S. 167, 174
(2001) (expressing Court’s “ ‘reluctan[ce] to treat statutory
terms as surplusage in any setting,’” but especially when
they play “a pivotal role in the statutory scheme”). Or one
might believe that Congress was interested in the hours
these experts spent, but not in the fees they obtained.
Ante, at 7. But these answers are not necessarily consis
tent with the purpose of the GAO study provision, a pur
pose revealed by the language of the provision and its
position in the statute. Its placement and its reference to
§2 indicate that Congress ordered the study to help it keep
track of the magnitude of the reimbursements that an
16 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v.
MURPHY
BREYER, J., dissenting
earlier part of the new statute (namely, §2) mandated.
See 100 Stat. 797 (stating that purpose of GAO study was
to determine the “impact” of “section 2”). And the only
reimbursement requirement that §2 mandates is the
payment of “costs.”
But why speculate about this? We know what Congress
intended the GAO study to cover. It told the GAO in its
Conference Report that the word “costs” included the costs
of experts. And, not surprisingly, the GAO made clear
that it understood precisely what Congress asked it to do.
In its final report, the GAO wrote: “Parents can receive
reimbursement from state or local education agencies for
some or all of their attorney fees and related expenses if
they are the prevailing party in part or all of administra
tive hearings or court proceedings. Expert witness fees,
costs of tests or evaluations found to be necessary during
the case, and court costs for services rendered during ad
ministrative and court proceedings are examples of reim
bursable expenses.” GAO, Briefing Report to Congres
sional Requesters, Special Education: The Attorney Fees
Provision of Public Law 99–372 GAO/HRD–22BR, p. 13
(Nov. 1989). At the very least, this amounts to some indi
cation that Congress intended the word “costs,” not as a
term of art, not as it was used in the statutes at issue in
Casey and Crawford Fitting, but rather as including cer
tain additional “expenses.” If that is so, the claims of
tradition, of the interpretation this Court has given other
statutes, cannot be so strong as to prevent us from exam
ining the legislative history. And that history could not be
more clear about the matter: Congress intended the
statutory phrase “attorneys’ fees as part of the costs” to
include the costs of experts. See Part I, supra.
III
For the reasons I have set forth, I cannot agree with the
majority’s conclusion. Even less can I agree with its fail
Cite as: 548 U. S. ____ (2006) 17
BREYER, J., dissenting
ure to consider fully the statute’s legislative history. That
history makes Congress’ purpose clear. And our ultimate
judicial goal is to interpret language in light of the statute’s
purpose. Only by seeking that purpose can we avoid the
substitution of judicial for legislative will. Only by reading
language in its light can we maintain the democratic link
between voters, legislators, statutes, and ultimate imple
mentation, upon which the legitimacy of our constitutional
system rests.
In my view, to keep faith with that interpretive goal, we
must retain all traditional interpretive tools—text, struc
ture, history, and purpose. And, because faithful interpre
tation is art as well as science, we cannot, through rule or
canon, rule out the use of any of these tools, automatically
and in advance. Cf. Helvering v. Gregory, 69 F. 2d 809,
810–811 (CA2 1934) (L. Hand, J.).
Nothing in the Constitution forbids us from giving
significant weight to legislative history. By disregarding a
clear statement in a legislative report adopted without
opposition in both Houses of Congress, the majority has
reached a result no Member of Congress expected or
overtly desired. It has adopted an interpretation that
undercuts, rather than furthers, the statute’s purpose, a
“free” and “appropriate” public education for “all” children
with disabilities. See Circuit City Stores, Inc. v. Adams,
532 U. S. 105, 133 (2001) (STEVENS, J., joined by SOUTER,
GINSBURG, and BREYER, JJ., dissenting) (“A method of
statutory interpretation that is deliberately uninformed,
and hence unconstrained, may produce a result that is
consistent with a court’s own views of how things should
be, but it may also defeat the very purpose for which a
provision was enacted”). And it has adopted an approach
that, I fear, divorces law from life. See Duncan, supra, at
193 (BREYER, J., joined by GINSBURG, J., dissenting).
For these reasons, I respectfully dissent.
18 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v.
MURPHY
Appendix A to opinion of BREYER, J.
APPENDIX A TO OPINION OF BREYER, J.
[Text of Act omitted.]
Cite as: 548 U. S. ____ (2006) 19
Appendix A to opinion of BREYER, J.
20 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v.
MURPHY
Appendix A to opinion of BREYER, J.
Cite as: 548 U. S. ____ (2006) 21
Appendix A to opinion of BREYER, J.
22 ARLINGTON CENTRAL SCHOOL DIST. BD. OF ED. v.
MURPHY
Appendix B to opinion of BREYER, J.
APPENDIX B TO OPINION OF BREYER, J.
Excerpts from Congressional Record
132 Cong. Rec. 16823–16825 (1986) (Senate)
HANDICAPPED CHILDREN’S PROTECTION
ACT—CONFERENCE REPORT
Mr. WEICKER. Mr. President, I submit a report of the
committee of conference on S. 415 and ask for its immedi
ate consideration.
The PRESIDING OFFICER. The report will be stated.
The legislative clerk read as follows:
The committee of conference on the disagreeing votes of
the two Houses on the amendments of the House to the
bill (S. 415) to amend the Education of the Handicapped
Act to authorize the award of reasonable attorneys’ fees to
certain prevailing parties, and to clarify the effect of the
Education of the Handicapped Act on rights, procedures,
and remedies under other laws relating to the prohibition
on discrimination, having met, after full and free confer
ence, have agreed to recommend and do recommend to
their respective Houses this report, signed by a majority of
the conferees.
The PRESIDING OFFICER. Without objection, the
Senate will proceed to the consideration of the conference
report.
[Floor statements omitted.]
Mr. WEICKER. Mr. President, I move adoption of the
conference report.
The PRESIDING OFFICER. The question is on agree
ing to the conference report.
The conference report was agreed to.
Mr. WEICKER. Mr. President, I move to reconsider the
vote by which the conference report was agreed to.
Cite as: 548 U. S. ____ (2006) 23
Appendix C to opinion of BREYER, J.
APPENDIX C TO OPINION OF BREYER, J.
Excerpts from Congressional Record
132 Cong. Rec. 17607–17612 (House)
CONFERENCE REPORT ON S. 415, HANDICAPPED
CHILDREN’S PROTECTION ACT OF 1986
Mr. WILLIAMS. Mr. Speaker, I call up the conference
report on the Senate bill (S. 415) to amend the Education
of the Handicapped Act to authorize the award of reason
able attorneys’ fees to certain prevailing parties, and to
clarify the effect of the Education of the Handicapped Act
on rights, procedures, and remedies under other laws
relating to the prohibition of discrimination.
The Clerk read the title of the Senate bill.
[Floor statements omitted.]
Mr. WILLIAMS. Mr. Speaker, I yield back the balance
of my time, and I move the previous question on the con
ference report.
The previous question was ordered.
The conference report was agreed to.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6196
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KEVIN MCDONALD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:04-cr-00255-JRS-2)
Submitted: August 25, 2011 Decided: August 29, 2011
Before MOTZ, DUNCAN, and KEENAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Kevin McDonald, Appellant Pro Se. Stephen Wiley Miller,
Elizabeth Wu, Assistant United States Attorneys, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin McDonald seeks to appeal the district court’s
orders denying relief on his 28 U.S.C.A. § 2255 (West Supp.
2011) motion and his other various motions attacking his
conviction. These orders are 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 McDonald has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
the appeal. We deny all of McDonald’s outstanding motions. We
dispense with oral argument because the facts and legal
2
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
3
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829 F.2d 42
Unpublished dispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Anthony E. MAZZA, Petitioner,v.U.S. POSTAL INSPECTION SERVICE, Respondent.
No. 86-1598
United States Court of Appeals, Federal Circuit.
Aug. 4, 1987.
Before MARKEY, Chief Judge, BENNETT, Senior Circuit Judge, and SMITH, Circuit Judge.
SMITH, Circuit Judge.
DECISION
1
The decision of the Merit Systems Protection Board (board), dated May 21, 1986, docket No. SF07528610309, sustaining the United States Postal Inspection Service's (agency) removal of Anthony E. Mazza (Mazza) from his position as a Postal police officer at the Terminal Annex facility in Los Angeles, California, is affirmed.
OPINION
2
Mazza was charged by the agency with three separate employment related offenses: (1) sexual harassment of a female Postal employee; (2) giving or allowing persons access to privileged information or materials belonging to the agency; and (3) violation of section 157 of the Postal Police Officers Handbook. These charges resulted from Mazza's conduct during the period from January 1985 to December 1985, which conduct was directed at Martha Beserra, a Postal employee. The agency, on the basis of its determination that these charges were proved and that the first two of these charges were of such serious nature to warrant removal, concluded that Mazza's removal from his position was the appropriate penalty for his misconduct. In accordance with the proper procedures, Mazza appealed his removal to the board.
3
The board, as a result of the agency's dropping the third charge, only addressed the first two charges. With respect to the sexual harassment charge, the board, determining both that Mazza's 'conduct created an offensive and hostile working environment for Ms. Beserra' and that Mazza's 'conduct [was] intimidating,' found it 'more likely true than not true that [Mazza] engaged in the charged misconduct.' In addition, the charge of giving or allowing persons access to privileged information or materials belonging to the agency was sustained by the board on grounds that Mazza gave Ms. Beserra an official Government document that contained privileged, personal information about a Worldway Postal Center employee, to which information Ms. Beserra was not authorized access. Finally, the board found, under the circumstances of this case, that the removal by the agency of Mazza from his position as a Postal police officer was a reasonable penalty for Mazza's misconduct.
A. The Charges
4
1. Sexual Harassment.
5
Our review of the board's finding of sexual harassment is limited. This court's role is not to conduct a de novo appraisal; rather, we only address whether the administrative determination is supported by substantial evidence on the record as a whole. Brewer v. United States Postal Service, 647 F.2d 1093, 1096 (Ct. Cl. 1981), cert. denied, 454 U.S. 1144 (1982). Substantial evidence is 'such relevant evidence as might be accepted by a reasonable mind as adequate to support the conclusion reached.' Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).
6
Mazza argues to us that his conduct did not subject Ms. Beserra to a hostile environment and was not sufficiently severe or pervasive to alter the conditions of Ms. Beserra's employment. As grounds for his argument, Mazza contends that much of the testimony supporting the board's decision conflicted with other testimony and evidence in the record. In addition, Mazza asserts that the testimony, upon which the board relies to support its finding of sexual harassment, concerned events and occurrences that were taken out of context. Mazza's arguments are not persuasive.
7
Conflicting testimony in the record must be expected in a proceeding involving a charge of sexual harassment. In most cases, the record is comprised solely of testimony by the employee charged with the misconduct and of testimony by the harassed employee. When this occurs, it is within the province of the board to make witness credibility determinations. Carosella v. United States Postal Service, 816 F.2d 638, 641 (Fed. Cir. 1987). We cannot disturb these determinations unless they are 'inherently improbable or discredited by undisputed fact or physical evidence." Id. (quoting Dittmore-Freimuth Corp. v. United States, 390 F.2d 664, 685 (Ct. Cl. 1968)).
8
Here, Mazza has not presented us with grounds to disturb the board's findings. No reason has been offered to us by Mazza as to why the testimony given by the agency witnesses should be discredited; accordingly, we accept this testimony. Although the record before us on appeal may contain conflicting testimony and may contain testimony concerning statements or conduct of Mazza that were taken out of context, we hold that there is substantial evidence in the record to support the board's finding of sexual harassment. While a different conclusion might have been reached on the facts presented, we cannot conclude that there was not substantial evidence to support the board's conclusion that Mazza sexually harassed Ms. Beserra.
9
2. Unauthorized Disclosure of Information.
10
In addition to sustaining the agency's finding that Mazza sexually harassed Ms. Beserra, the board affirmed the finding by the agency that Mazza wrongly had given Ms. Beserra an official Government document which contained privileged personal information about another Government employee. Our standard of review on this issue again is limited to whether there is substantial evidence in the record to support the board's determination. See Hayes, 727 F.2d at 1537. Here, Mazza has failed to give us any basis upon which to disturb the board's finding. Indeed, at oral argument, Mazza conceded that he could not refute the board's determination on this issue. We hold that the board's finding is supported by substantial evidence.
B. The Penalty
11
Mazza argues to us that the board erred by sustaining Mazza's removal from his Postal police officer position by the agency. Mazza disputes the reasonableness of the penalty of removal. Notwithstanding Mazza's assertions, after a thorough review of the record as a whole, we must uphold the board's decision sustaining the penalty of removal imposed on Mazza by the agency.
12
Our review of the board's determination on the penalty issue is limited to two inquiries. First, we normally will defer to the board's determination unless the penalty imposed exceeds the range of permissible penalties specified by regulation or statute. Villela v. Department of the Air Force, 727 F.2d 1574, 1576 (Fed. Cir. 1984). Second, we will defer to the board's determination 'unless the penalty is 'so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion." Id. (quoting Power v. United States, 531 F.2d 505, 507 (Ct. Cl. 1976), cert. denied, 444 U.S. 1044 (1980)).
13
1. The Penalty of Removal Was Permissible.
14
The board affirmed the findings and conclusions of the agency both on the charge of sexual harassment and on the charge of unauthorized disclosure of information. Although Mazza does not dispute that removal is a permissible penalty for a charge of sexual harassment, Mazza, at oral argument, asserted that the charge of unauthorized disclosure of information cannot support a penalty of removal. This is wrong. Paragraph 157w of the Postal Police Officers Handbook provides that an officer can be removed for '[g]iving or allowing unauthorized persons access to privileged information or material belonging to the Postal Service.' Accordingly, we conclude that the penalty of removal sustained by the board was within the range of permissible penalties for Mazza's misconduct.
15
2. Sustaining the Penalty of Removal Was Not an Abuse of Discretion.
16
The board, in affirming the agency's removal of Mazza as a penalty for his misconduct, considered the totality of the circumstances in this case in reaching its decision. The factors considered by the board included the nature and seriousness of Mazza's offenses, Mazza's type of employment and the relationship of Mazza's offenses to his position as a Postal police officer, Mazza's past disciplinary record, the supervisor's confidence in Mazza, and Mazza's potential for rehabilitation. Although the board noted Mazza's long service as a positive factor weighing in favor of a lesser penalty, the board recognized that sexual harassment is a serious charge, the severity of which charge outweighed the positive factors in Mazza's record. In addition, the board determined that Mazza violated the trust placed in him by his employer not to allow unauthorized access to privileged information. The board recognized that, as a law enforcement officer, Mazza was held to a higher standard of conduct than are other employees. Finally, the board determined that Mazza did not demonstrate a potential for rehabilitation. Although the penalty imposed is severe, we cannot conclude that the board abused its discretion in affirming Mazza's removal as the appropriate penalty for his misconduct. After a thorough review of the record developed by the board, we must conclude that the board met its obligations of engaging in the proper analysis of the penalty imposed and of considering whether the sustained offenses were enough to justify Mazza's removal. Kline v. Department of Transportation, 808 F.2d 43, 45 (Fed. Cir. 1986); Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981).
17
Accordingly, we hold that the decision of the board sustaining Mazza's removal by the agency is supported by substantial evidence, and is not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. 5 U.S.C. Sec. 7703(c) (1982); see Hayes, 727 F.2d at 1537.
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No. 02-624
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 155N
JERRY HOKE,
Petitioner and Appellant,
v.
DEPARTMENT OF JUSTICE, DRIVER'S LICENSE BUREAU,
Respondent and Respondent.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and for the County of Ravalli, Cause No. DC-02-171,
The Honorable Jeffrey H. Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Steven N. Eschenbacher, Attorney at Law, Hamilton, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Jennifer Anders,
Assistant Attorney General, Helena, Montana
Jeffrey Hays, Darby City Attorney, Hamilton, Montana
Submitted on Briefs: February 13, 2003
Decided: June 3, 2003
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be filed as
a public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number, and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2 The Appellant, Jerry Hoke, appeals from the August 16, 2002, Findings of Fact,
Conclusions of Law, and Order of the Twenty-First Judicial District Court, Ravalli County.
Therein, the District Court determined that Marshall Larry Rose (1) had a sufficient
particularized suspicion that Hoke was in physical control of a vehicle upon ways of this
state open to the public while under the influence of alcohol, drugs, or a combination of the
two, and (2) was justified in requesting that Hoke submit a breath sample for analysis.
Accordingly, the District Court denied Hoke’s petition for reinstatement of his driver’s
license.
¶3 The dispositive issue on appeal is whether the court’s findings of fact are supported
by substantial evidence and are, therefore, not clearly erroneous and whether the court’s
conclusions of law are correct. Ray v. Nansel, 2002 MT 191, ¶¶ 19-20, 311 Mont. 135, ¶¶
19-20, 53 P.3d 870, ¶¶ 19-20.
¶4 We have determined to decide this case pursuant to our Order dated February 11,
2003, amending Section 1.3 of our 1996 Internal Operating Rules and providing for
memorandum opinions.
2
¶5 On the face of the briefs and the record on appeal it is manifest that the appeal is
without merit as the issues are clearly controlled by settled Montana law, which the District
Court correctly interpreted, and because there is clearly sufficient evidence to support the
court’s findings of fact. Therefore,
¶6 We affirm the judgment of the District Court.
/S/ JIM REGNIER
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JIM RICE
3
| {
"pile_set_name": "FreeLaw"
} |
916 F.2d 1273
UNITED STATES of America, Plaintiff-Appellee,v.Daniel L. BALZANO, Defendant-Appellant.
No. 87-2607.
United States Court of Appeals,Seventh Circuit.
Argued Nov. 30, 1989.Decided Oct. 30, 1990.
Anton R. Valukas, U.S. Atty., Steven Shobat, Asst. U.S. Atty., Office of U.S. Atty., Chicago, Ill., for plaintiff-appellee.
James W. Reilley, Reilley & Associates, Des Plaines, Ill., Dianne Ruthman, Chicago, Ill., for defendant-appellant.
Daniel L. Balzano, Park Ridge, Ill., pro se.
Before POSNER, COFFEY and EASTERBROOK, Circuit Judges.
COFFEY, Circuit Judge.
1
Daniel Balzano was charged in a grand jury's six-count superseding indictment with four counts of extortion in violation of 18 U.S.C. Sec. 1951, one count of conspiracy to violate the Racketeering Influenced and Corrupt Organizations Act (RICO) in contravention of 18 U.S.C. Sec. 1962(d) and one count of threatening and intimidating a grand jury witness in violation of 18 U.S.C. Sec. 1512. Following a jury trial commencing on June 2, 1987, Balzano was found guilty on three of the four counts of extortion, the RICO conspiracy count and the count of threatening and intimidating a grand jury witness. Balzano was sentenced to six months' imprisonment with work release privileges on the RICO conspiracy count and one of the extortion counts with the sentences to be served concurrently. On the remaining two extortion counts and the count of threatening and intimidating a grand jury witness, Balzano received sentences of five years' probation to run concurrently with one another and consecutively with the work release term imposed on the other counts. As a condition of his probation, Balzano was required to perform 300 hours of community service. Balzano appeals his convictions. We affirm.
I.
FACTS
2
The City of Chicago's Fire Prevention Bureau is a unit of the Chicago Fire Department, responsible for the enforcement of the Chicago Fire Code including on-site investigation of property and the issuing of citations for violations of the Code.1
3
Daniel Balzano, a Chicago Fire Inspector in 1983-84, was charged with receiving payoffs from business enterprises that had applied for liquor, food and amusement licenses. Balzano, while assigned to the North Side Task Force, split payoffs with Richard Dorband, the Fire Prevention Bureau Inspector and supervisor of the North Side Task Force. On three other occasions Balzano got more greedy and rather than splitting the payoffs, shook down business license applicants himself without splitting the payoffs. Balzano would advise the business proprietors of the necessity to make the repairs indicated in order that they might comply with the Code and would then demand a "payoff" from the owners in lieu of or in addition to the repairs.
4
After a plea agreement Richard Dorband testified for the government with respect to the payoffs he split with Balzano. Dorband stated that during the year he worked with Balzano, he and Balzano received and split a number of small payoffs of approximately $20 on each occasion. He estimated that Balzano received a total of between $100 and $150 from these payoffs. Dorband was able to remember one large payoff from Woo Kim, the proprietor of the China Moon Restaurant. Dorband testified that on June 28, 1983, he received $500 from Kim, kept $100, gave $100 to Balzano, gave another $100 to a health inspector and returned the remaining $200.2
5
As noted above, there were also incidents where Balzano, on his own, demanded and/or received "payoffs" to facilitate the approval of the licenses. The first of these occasions involved the liquor license application of the Club Victoria nightclub. Upon completion of the initial inspection the premises were deemed "not ready,"3 and Balzano arranged for a meeting with the Club's proprietors, Roy LaBolle and Jennifer Hammersmith. During the meeting, Balzano took Hammersmith on an inspection tour of the premises pointing out examples of non-compliance with the fire code. Hammersmith, while viewing one of the alleged defects, inquired of Balzano why she was now required to comply with the Code and the former owners were allowed to operate without conforming. Balzano told Hammersmith that "he could make me wallboard any part of the building that he wanted me to." Further, Balzano told Hammersmith that she would be required to have the work on her business performed by a craftsman Balzano recommended. When Hammersmith challenged Balzano on this point, Hammersmith testified that Balzano again told her that "he could make [her] do anything that he wanted to," and that if she failed to comply with his directions, her license application would not be approved. Further, Balzano advised her that she would be required to make a $2,500 cash payment to him in order to guarantee that Club Victoria would pass the next task force inspection. Complying with Balzano's demands, Hammersmith stated that she hired Guy Nowak to perform the work, on Balzano's recommendation, and made the $2,500 cash payoff to Balzano prior to the Club's reinspection. On January 20, 1983, Club Victoria passed the reinspection with Daniel Balzano appearing on the premises with the inspection team.
6
The next payoff incident was an application for a liquor license with a 2 a.m. closing time limit of the United Skates of America roller skating rink filed late in 1982. Tom Grisamore, general manager of the roller skating group, and Jim Dvorak, vice president of United Skates and Grisamore's superior, suggested that James Allenson, co-owner of their arcade machine supplier, be given $2,200 to pay off public officials to obtain the license. Allenson spoke with Terry Mofreh, an inspector from the City's Consumer Services Department, and explained that United Skates wanted a liquor license to help promote entertainment in their roller rink and asked Mofreh for his help in obtaining the liquor license. Mofreh told Allenson that he would get back to him and eventually told him that he could provide assistance at this time. Mofreh advised him that $1,500 would be required, and Allenson paid Mofreh the $1,500 in cash.
7
The North Side Task Force performed a liquor license inspection of the United Skates premises on February 17, 1983, with Terry Mofreh who, although not assigned to the inspection team, also appeared. During the inspection, Mofreh approached Richard Dorband and told him that he was interested in seeing that United Skates passed the inspection. Dorband talked to Balzano and after their conference it was suggested to Mofreh that a contribution of $300 to the fireman's fund would help to gain approval. Allenson gave Mofreh an additional $300, and he turned the money over to Dorband.4 After the inspection was completed, Mofreh told Allenson that everything was fine.
8
About a week after the task force's inspection of the United Skates premises, a fire inspector visited Tom Grisamore and identified himself as a member of the inspection team. Grisamore testified that he recognized the inspector as having visited the premises on an earlier occasion while a member of the inspection group. Grisamore described the inspector at trial as a "white male, dark hair, in his mid-twenties to thirties, youngish, five-nine to six feet [who] possibly had a mustache," a description matching Balzano. Grisamore also testified that the inspector was wearing a uniform. The inspector stated that the building premises license application had a problem since the establishment was without a sprinkling system. Grisamore complained the installation would cost about $100,000. In response, the fire inspector displayed an advertisement containing a picture of a video cassette recorder and a television and, in Grisamore's words, "indicated that if I could get this for the boys at the station house ... there wouldn't be any problem with the sprinkling system." Pursuant to Grisamore's request, the inspector wrote his name and telephone number on a piece of paper that was left with Grisamore. Although at the time of trial Grisamore was unable to positively I.D. Balzano, Allenson testified that he received a telephone call from Grisamore (after the extortion attempt) in which Grisamore referred to Dan Balzano as the fire inspector who had visited him at the time of the alleged shakedown. When Allenson later met with Grisamore at United Skates, Grisamore gave Allenson a picture of the VCR and television from a newspaper he had received from the fire inspector along with a piece of paper with Balzano's name inscribed thereon. Allenson met with Terry Mofreh shortly thereafter who, at Allenson's request, confronted Balzano with the information concerning the attempted "shakedown." During this confrontation, Balzano did not deny the extortion attempt but told Mofreh that United Skates had promised him a video recorder.
9
Balzano's next payoff episode involved the liquor and food license applications of Eddie's Barbecue Ribs restaurant, owned by Cesar Aguilera. Two task force inspections were performed, and at the time of the second inspection Aguilera spoke with an individual wearing a fire inspector's uniform whose description matched that of Balzano: "a young person, about five-seven, about 150 pounds, white, kind of brown hair and a mustache."5 Despite the fact that Aguilera had complied with the majority of the violations noted in the earlier inspection, the fire inspector told Aguilera that the ceiling still required fireproofing and the decorative wood needed to be fire retardant. When Aguilera asked the fire inspector for an estimate of the cost of the alterations, the inspector gave him a figure of some $50,000 or more. Aguilera became disgusted and asked how much a license would cost. A few hours later, the inspector returned, showed Aguilera a dollar figure amount inscribed on a piece of paper and suggested he call when he had the money.6 Aguilera raised the funds in 24 hours and called the inspector. The next day he and the inspector met in the basement of the restaurant, and Aguilera turned over between $1,500 to $3,000 in cash. A few days later, Aguilera received approval of the license without the formality of an additional inspection.
10
Richard Dorband testified that he had two telephone conversations with Balzano in February 1985, in which they discussed Terry Mofreh's cooperating with the government. In June 1986 Terry Mofreh testified as a government witness before a grand jury. On one of the dates Mofreh was scheduled to appear, Mofreh was seated in a room adjoining and behind the grand jury room. Balzano, while present in the area of the grand jury room, walked to the doorway of the room where Mofreh was sitting. Gesturing toward Mofreh, Balzano waved a newspaper over his own mouth two or three times, moved his thumb across his own throat in a slashing motion, and pointed his index finger with his thumb extended in a motion representing the firing of a gun. FBI Agent Neal O'Malley, who came upon Mofreh very shortly thereafter, stated that Mofreh appeared pale as he described the gestures that the individual (Balzano) made. He further stated that at that time Mofreh was unaware of the name of the person who made the threatening gestures. Assistant United States Attorney Ira Raphaelson also testified that he had observed Mofreh immediately after O'Malley and confirmed that he also observed that Mofreh appeared pale.
11
Balzano's appeal raises the following contentions: (1) the trial court erred in permitting joinder of his witness intimidation count with the remaining counts of his indictment under Rule 8 of the Federal Rules of Criminal Procedure and in refusing to order the witness intimidation count to be severed for trial under Rule 14 of the Federal Rules of Criminal Procedure; (2) there was insufficient evidence to support his conviction for extortion, conspiracy to violate RICO and witness intimidation; and (3) he received constitutionally ineffective assistance from his trial counsel.
II.
JOINDER AND SEVERANCE
A. Joinder
12
Balzano challenges the joinder of his witness intimidation count with the remaining counts in his indictment under Rule 8(a) of the Federal Rules of Criminal Procedure. Rule 12(b) of the Federal Rules of Criminal Procedure requires that this challenge to the indictment must be brought prior to trial or it is deemed to be waived. Because Balzano failed to file a timely motion alleging misjoinder prior to trial, we thus review this challenge under the "plain error" standard. See Federal Rule of Criminal Procedure 52(b). In United States v. White, 903 F.2d 457, 466-67 (7th Cir.1990), we stated:
13
"As we observed in United States v. Silverstein, 732 F.2d 1338, 1349 (7th Cir.1984): 'To be plain, an error must be conspicuous, at least in hindsight....' As we have also noted:
14
"A plain error is an error that is 'not only palpably wrong but [is] also likely to cause the outcome of the trial to be mistaken.' United States v. Kehm, 799 F.2d 354, 363 (7th Cir.1986). 'A reversal on the basis of plain error can be justified "only when the reviewing court is convinced that it is necessary in order to avert an actual miscarriage of justice." ' [United States v. Requarth, 847 F.2d 1249, 1254 (7th Cir.1988) ] (quoting United States v. Silverstein, 732 F.2d 1338, 1349 (7th Cir.1984), cert. denied, 469 U.S. 1111, 105 S.Ct. 792, 83 L.Ed.2d 785 (1985))."
15
United States v. Dietrich, 854 F.2d 1056, 1060 (7th Cir.1988)."
16
Federal Rule of Criminal Procedure 8(a), governing the joinder of offenses involving a single defendant,7 provides, in relevant part, that "[t]wo or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged ... are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." It is likely that Balzano's involvement in the extortion and conspiracy crimes alleged in the remaining counts of his indictment was one of the subjects of Mofreh's grand jury testimony. It is also obvious that Balzano's gestures were intended to silence and throw fear into Mofreh before testifying about Balzano's participation in the conspiracy and extortion counts. Because Balzano's intimidation of Mofreh was an attempt to prevent testimony concerning Balzano's criminal activities, and "a conspiracy and its cover-up are parts of a common plan, there would be no possible problem of misjoinder if the government's argument had any factual basis...." United States v. Velasquez, 772 F.2d 1348, 1354 (7th Cir.1985) (Citation omitted). Thus, because the witness intimidation count was clearly part and parcel of the same criminal scheme, the joinder of the witness intimidation count with the other crimes charged complied with the requirements of Rule 8(a) and was neither error, nor "plain error."
B. Severance
17
"As the Supreme Court has said, 'once the Rule 8 requirements [are] met by the allegations in the indictment, severance thereafter is controlled entirely by Federal Rule of Criminal Procedure 14....' United States v. Lane, 474 U.S. 438, 447, 106 S.Ct. 725, 731, 88 L.Ed.2d 814 (1986) (interpreting Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960))." United States v. Garner, 837 F.2d 1404, 1412 (7th Cir.1987), cert. denied, 486 U.S. 1035, 108 S.Ct. 2022, 100 L.Ed.2d 608 (1988). Balzano filed a motion for severance alleging that the witness intimidation count should have been severed before trial under Rule 14. Balzano alleged that severance was necessary because evidence presented on the witness intimidation count might improperly affect the jury's consideration of the remaining counts. He also asserted that severance was required because it was his intention to testify only on the witness intimidation count and not to testify on any of the remaining counts. At his trial, Balzano did not testify in his own defense.
18
In United States v. Moya-Gomez, 860 F.2d 706, 754 (7th Cir.1988), we summarized the law applicable to the review of a district court's severance decision:
19
"Rule 14 permits the trial court, in the exercise of its discretion, to grant separate trials when the interests of justice so require. A district court's ruling on a Rule 14 severance motion will be overturned only upon a showing of abuse of discretion. Because the balancing of the cost of conducting separate trials and the possible prejudice inherent in a single trial is best conducted by the trial court, the defendant bears an extremely difficult burden of showing on appeal that the district court abused its discretion. In order to appeal successfully the denial of a severance motion, a defendant must establish actual prejudice resulting from the denial. Actual prejudice means that the defendant could not have a fair trial without severance, ' "not merely that a separate trial would offer him a better chance of acquittal." ' [United States v. Peters, 791 F.2d 1270, 1301 (7th Cir.), cert. denied, 479 U.S. 847, 107 S.Ct. 168, 93 L.Ed.2d 106 (1986) ] (quoting United States v. Papia, 560 F.2d 827, 836 (7th Cir.1977))."
20
(Footnote and citations omitted).
21
Initially, we turn to Balzano's claim that the trial court's refusal to sever the trial on the witness intimidation count was prejudicial to him as the jury improperly considered evidence relevant to the witness intimidation claim in reaching its verdicts upon the other counts. Courts have held that evidence of a defendant's attempts at intimidation of a witness or of a person cooperating with a government investigation is admissible to demonstrate a defendant's "consciousness of guilt" of the charges which were the subject of the witness' testimony or cooperation. See United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir.1986), cert. denied, 480 U.S. 922, 107 S.Ct. 1384, 94 L.Ed.2d 697 (1987) ("Evidence that defendant attempted to bribe and threaten a witness is admissible to show consciousness of guilt."); United States v. Guerrero, 803 F.2d 783, 785 (3d Cir.1986) (In a conspiracy case evidence of a threat against a potential witness "may be admitted to show consciousness of guilt"); United States v. Hammond, 781 F.2d 1536, 1540 (11th Cir.1986) (In a conspiracy case "[c]ourts may consider evidence of attempts to influence a witness as relevant in showing a consciousness of guilt."). See also Weinstein's Evidence, p 401 at 401-72 to 74, n. 21 and cases cited therein. As noted in United States v. Moya-Gomez, 860 F.2d 706, 768 (7th Cir.1988): " 'In those instances where evidence of one crime is admissible at a separate trial for another, it follows that a defendant will not suffer any additional prejudice if the two offenses are tried together.' " (Quoting United States v. Foutz, 540 F.2d 733, 736 (4th Cir.1976) (footnote omitted)). Thus, the court did not err in declining to sever the witness intimidation count from the extortion and RICO conspiracy counts, because the evidence relevant to the witness intimidation count could have been admitted at a trial on any of the remaining counts or a combination of the counts to demonstrate consciousness of guilt. See also United States v. L'Allier, 838 F.2d 234, 241 (7th Cir.1988) (Defendant not prejudiced when "[m]ost of the evidence relating to Count II would have been admissible in a separate trial on Count I."); United States v. Garver, 809 F.2d 1291, 1298 (7th Cir.1987) (Denial of motion for severance did not prejudice defendants where evidence would have been admissible in separate trials).
22
In United States v. Moya-Gomez, 860 F.2d at 768, we went on to observe:
23
"Furthermore, even if, in a separate trial, the evidence would not have been admitted, we still would hold that the district court's denial of a severance was not an abuse of discretion in this case. Although the trial was long, the evidence on count 18 was not complex. As Mr. Moya-Gomez admits, the government's proof on count 18 consisted chiefly of the testimony of Agent Felts. There was little or no possibility that the jury could have been confused over which evidence related to which count. This court has observed that ' "[t]he question of whether a joint trial infringes upon the defendant's right to a fair trial depends on whether it is within the jury's capacity, given the complexity of the case, to follow admonitory instructions and to keep separate, collate and appraise the evidence relevant only to each defendant." ' United States v. Cavale, 688 F.2d 1098, 1107 (7th Cir.) (quoting United States v. Hedman, 630 F.2d 1184, 1200 (7th Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981)), cert. denied, 459 U.S. 1018, 103 S.Ct. 380, 74 L.Ed.2d 513 (1982); see also [United States v.] Rajewski, 526 F.2d [149, 155 (7th Cir.1975), cert. denied, 426 U.S. 908, 96 S.Ct. 2231, 48 L.Ed.2d 833 (1976) ] ('If the jury can reasonably be expected to keep the evidence separate as to each count and each defendant, severance should be denied.'). Here, the jury was instructed to give separate consideration to each count in the indictment. 'This instruction was an adequate safeguard against the risk of prejudice in the form of jury confusion, evidentiary spillover and cumulation of evidence.' [United States v.] Berardi, 675 F.2d [894, 901 (7th Cir.1982) ]. 'Under our jury system ... it is fundamental that we reasonably trust juries to make factual determinations in accordance with the court's instructions.' [United States v.] Aleman, 609 F.2d [298, 310 (7th Cir.1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980) ]."
24
Similarly, the jury in this case was instructed that: "Each count should be considered separately, and a separate verdict should be returned as to each count. Your verdict of guilty or not guilty of an offense charged in one count should not control your decision as to any other count." Furthermore, the witness intimidation count involved facts that occurred several years after the other counts, readily permitting the jury to "relate the evidence to the proper count." L'Allier, 838 F.2d at 241. Thus, as in Moya-Gomez, Balzano "has not met his heavy burden of demonstrating prejudice from the joinder of [the witness intimidation count with any of the remaining counts] so as to render the district court's denial of a severance an abuse of discretion." Moya-Gomez, 860 F.2d at 768.
25
There is another reason why the denial of severance would not result in actual prejudice, i.e., deprivation of a fair trial. As will be discussed in Section II, infra, the evidence of Balzano's guilt on the RICO conspiracy and extortion counts was very convincing. In an analogous situation we have held that alleged violations of the Confrontation Clause were harmless beyond a reasonable doubt in light of the overwhelming evidence of the defendant's guilt. See United States v. Mayomi, 873 F.2d 1049, 1057 (7th Cir.1989) ("In light of the overwhelming evidence against Mayomi regarding his involvement in the importation and possession of heroin, we hold that any error in limiting the defendant's cross-examination of Ashton with respect to either the identity of the informant or Ashton's previous involvement, if any, in FBI investigations, was harmless."); Smith v. Fairman, 862 F.2d 630, 639 (7th Cir.1988) ("In light of all of this evidence, we do not think that the admission of Mrs. Smith's testimony that Boyle once told her, in a drunken state, that he was not certain who he had seen on the night of the murder, would have affected the jury's verdict. Even absent the hearsay testimony regarding Boyle's identification of Mr. Smith, which Mrs. Smith's testimony was primarily designed to impeach, the evidence of Mr. Smith's guilt was overwhelming. The erroneous exclusion of that testimony was therefore harmless beyond a reasonable doubt."). Similarly, the overwhelming evidence of Balzano's guilt on the RICO conspiracy and extortion counts meant that there was no actual prejudice accompanying a joint trial of all of the counts because the jury clearly would have convicted Balzano even if it had not been permitted to hear or consider evidence regarding Balzano's witness intimidation.
26
Balzano has failed to cite any cases in support of his claim mandating the severance of trials of different offenses involving a single defendant where the cases are all part of the same and related scenario of criminal activity because the defendant's desire to testify with respect to only one of the counts against him. However, in United States v. Archer, 843 F.2d 1019, 1022 (7th Cir.1988), we considered the case of a defendant desiring severance of counts against him based upon his desire to testify with respect to only one count, noting:
27
"We have held that '[s]everance is not mandatory every time a defendant wishes to testify to one charge but to remain silent on another. If that were the law, a court would be divested of all control over the matter of severance and the choice would be entrusted to the defendant.' United States v. Peters, 791 F.2d 1270, 1287 (7th Cir.1986) (quoting Holmes v. Gray, 526 F.2d 622, 626 (7th Cir.1975), cert. denied sub nom., Holmes v. Israel, 434 U.S. 907, 98 S.Ct. 308, 54 L.Ed.2d 194 (1977)). Nevertheless, we recognize that sometimes circumstances can coerce a defendant into testifying on a count upon which he wishes to remain silent. '[A] defendant may be willing to take the stand and testify as to one count but might prefer to remain silent and put the government to its proof on another count.' United States v. Lewis, 547 F.2d 1030, 1033 (8th Cir.1976), cert. denied, 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 566 (1977). In such cases, severance may be necessary. We agree with the District of Columbia Circuit, however, that this need for severance does not arise 'until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other.' Baker v. United States, 401 F.2d 958, 977 (D.C.Cir.), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970); see also Holmes v. Gray, 526 F.2d at 626."
28
Accord United States v. Ely, 910 F.2d 455 (7th Cir.1990).
29
Balzano has neglected to set forth any specific examples of the alleged exculpatory testimony he would have presented in a separate trial on the witness intimidation count. This falls far short of satisfying the requirement of a "convincing" demonstration that Balzano had " 'important testimony to give concerning' "8 the witness intimidation count necessary to support severance under Rule 14. Furthermore, we have held that a defendant fails to make a convincing demonstration of a "strong need to refrain from testifying" on particular counts when "[w]ithout [the defendant's] testimony, the government offered sufficient evidence to support the jury's verdict" on these counts. Archer, 843 F.2d at 1022. As will be fully set out in our discussion of the sufficiency of the evidence supporting Balzano's convictions for RICO conspiracy and witness intimidation, there was more than sufficient evidence to demonstrate beyond a reasonable doubt Balzano's guilt on each and every one of the counts of which he was convicted. Furthermore, in considering the related situation of severance of the trials of two or more defendants on the ground that a co-defendant would offer exculpatory testimony in a severed trial, we have held that:
30
"When a defendant seeks a severance to avail himself of allegedly exculpatory testimony from a co-defendant, a trial court should consider three factors:
31
'(1) Whether the co-defendant's testimony would be exculpatory; (2) Whether the co-defendant would in fact testify; and (3) Whether the testimony would bear on defendant's case.' "
32
United States v. Studley, 892 F.2d 518, 525 (7th Cir.1989) (quoting United States v. Melton, 689 F.2d 679, 686 (7th Cir.1982) (Citations omitted)). We went on to point out that:
33
" 'The mere possibility of a co-defendant's testimony is insufficient grounds for a severance.' United States v. Kord, 836 F.2d 368, 373 (7th Cir.), cert. denied, 488 U.S. 824, 109 S.Ct. 72, 102 L.Ed.2d 49 (1988). 'To justify severance, a defendant must provide some support, such as an affidavit or recorded testimony, that his co-defendant would testify in a manner which would exculpate him. Severance cannot be granted on the basis of a vague, unsupported assertion that a co-defendant would testify favorably in a separate proceeding.' United States v. Andrus, 775 F.2d 825, 847 (7th Cir.1985)."
34
Studley, 892 F.2d at 525. We believe that when exculpatory testimony forms the basis of requests for either severance of defendants or severance of offenses, a defendant is required to present more than "a vague, unsupported assertion" speculating about the possibility of exculpatory testimony which he might choose to offer in a separate trial. Furthermore, Balzano has failed to set forth any specific examples of the exculpatory evidence he would have presented in a separate trial on the witness intimidation count. As the court held in Studley, Balzano "has done nothing more than make a bald allegation of a mere possibility that [he] would give exculpatory evidence in a severed proceeding." Studley, 892 F.2d at 525. Such an allegation is insufficient to constitute the actual prejudice necessary to obtain severance under Federal Rule of Criminal Procedure 14.
III.
SUFFICIENCY OF THE EVIDENCE
35
Balzano challenges the sufficiency of the evidence supporting each of his five convictions. "In evaluating [Balzano's] sufficiency of the evidence challenge, we note that [he] bears a heavy burden. Initially, we 'review all the evidence and all the reasonable inferences that can be drawn from the evidence in the light most favorable to the government.' " United States v. Nesbitt, 852 F.2d 1502, 1509 (7th Cir.1988) (quoting United States v. Pritchard, 745 F.2d 1112, 1122 (7th Cir.1984)). "The test is whether after viewing the evidence in the light most favorable to the government, 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Pritchard, 745 F.2d at 1122 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original)).
36
Juries frequently are required to rely upon circumstantial evidence in reaching their verdicts. In United States v. Grier, 866 F.2d 908, 923 (7th Cir.1989), a case involving circumstantial evidence of a conspiracy and a defendant's participation in a conspiracy, we observed:
37
" 'Of course, direct evidence of that agreement need not be shown, "an agreement can be inferred from the circumstances." ' United States v. Muskovsky, 863 F.2d 1319, 1324 (7th Cir.1988) (quoting United States v. Neapolitan, 791 F.2d 489, 501 (7th Cir.1986)). 'Because conspiracies are carried out in secret, direct proof of agreement is rare.' United States v. Koenig, 856 F.2d 843, 854 (7th Cir.1988) (citations omitted).
38
" 'Not only is the use of circumstantial evidence permissible, but "circumstantial evidence 'may be the sole support for a conviction.' " ' United States v. Nesbitt, 852 F.2d at 1510 (quoting United States v. Williams, 798 F.2d 1024, 1042 (7th Cir.1986) (dissenting opinion) which quoted, in turn, United States v. McCrady, 774 F.2d 868, 874 (8th Cir.1985)). ' "Circumstantial evidence is not less probative than direct evidence and, in some cases is even more reliable." ' Williams, 798 F.2d at 1039 (dissenting opinion) (quoting United States v. Andrino, 501 F.2d 1373, 1378 (9th Cir.1974)). See also Wisconsin Jury Instruction--Criminal, No. 170 ('[C]ircumstantial evidence may be stronger and more convincing that [sic] direct evidence'). '[T]he evidence " 'need not exclude every reasonable hypothesis of innocence so long as the total evidence permits a conclusion of guilt beyond a reasonable doubt.' " United States v. Radtke, 799 F.2d 298, 302 (7th Cir.1986) (quoting United States v. Thornley, 707 F.2d 622 (1st Cir.1983)).' [United States v. Koenig, 856 F.2d 843, 854 (7th Cir.1988) ]."
We have gone on to observe recently that:
39
"In reviewing the sufficiency of the evidence in cases where the government's proof has been largely circumstantial, we have said: '[W]hile it is important that we not permit a verdict based solely on the piling of inference upon inference, it is also imperative that we not rend the fabric of evidence and examine each shred in isolation....' [United States v. Moya-Gomez, 860 F.2d 706, 759 (7th Cir.1988) ] (quoting United States v. Redwine, 715 F.2d 315, 319 (7th Cir.1983) (citations omitted))."
40
United States v. Johnson, 903 F.2d 1084, 1087 (7th Cir.1990).
41
In weighing direct and circumstantial evidence, the trier of fact plays a particularly significant role as the arbiter of credibility:
42
"[W]e defer to the jury's determination of witnesses' credibility. As we noted in United States v. Ramirez, 796 F.2d 212, 214 (7th Cir.1986): 'An appellate court will not weigh the evidence or assess the credibility of the witnesses.' Similarly, we have stated: ' "It is well settled law that a court of appeals does not stand in judgment of the credibility of witnesses. Rather that question is left to the sound discretion of the trier of fact." ' United States v. Perry, 747 F.2d 1165, 1170 (7th Cir.1984) (quoting United States v. Roman, 728 F.2d 846, 856 (7th Cir.1984)). Finally, 'the credibility of witnesses is peculiarly within the province of the jury and our review of credibility is prohibited absent extraordinary circumstances.' United States v. Noble, 754 F.2d 1324, 1332 (7th Cir.1985)."
43
United States v. Vega, 860 F.2d 779, 794 (7th Cir.1988).
A. The Extortion Convictions
44
Balzano urges that the government presented insufficient evidence to convict him of each of three counts of extortion violative of the Hobbs Act, 18 U.S.C. Sec. 1951. "The Hobbs Act defines extortion as 'the obtaining of property from another with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.' 18 U.S.C. Sec. 1951(b)(2)." United States v. Garner, 837 F.2d 1404, 1421 (7th Cir.1987), cert. denied, 486 U.S. 1035, 108 S.Ct. 2022, 100 L.Ed.2d 608 (1988).9 We have explained how a public officer's abuse of his office can constitute extortion for purposes of 18 U.S.C. Sec. 1951:
45
"In United States v. Holzer, 816 F.2d 304, 310 (7th Cir.1987), vacated and remanded on other grounds, 484 U.S. 807, 108 S.Ct. 53, 98 L.Ed.2d 18 (1988), this court recognized that the two forms of extortion proscribed by Sec. 1951 are equally applicable to the conduct of public officials who take unlawful advantages of 'opportunities' relating to their public office. In reaching this conclusion, we noted that the scope of the two statutory prohibitions should be distinguished.
46
A public official violates the first prong of Sec. 1951(b)(2) when he or she either acts or wields the powers of office in such a way that it causes a victim to fear some form of retribution if payment of a demanded price is not forthcoming. Id. at 310. In short, '[e]xtortion by wrongful use of fear of economic harm is established by showing that the defendant preyed upon or exploited the victim's fear of economic harm.' United States v. Nedza, 880 F.2d 896, 902 (7th Cir.1989) (quoting United States v. Lisinski, 728 F.2d 887, 890 (7th Cir.), cert. denied, 469 U.S. 832, 105 S.Ct. 122, 83 L.Ed.2d 64 (1984)). It is obvious that the statute prohibits an official from exploiting a victim's fear through both threatening positive action that will harm the victim, or threatening to withhold official action that will result in some form of harm being visited upon the victim. Holzer, 816 F.2d at 310. Additionally, an official violates the 'color of official right' prong of Sec. 1951(b)(2) when he or she encourages or accepts payments prompted by the hope that the official will be influenced in the exercise of his or her powers. United States v. Garner, 837 F.2d 1404, 1423 (7th Cir.1987), cert. denied, 486 U.S. 1035, 108 S.Ct. 2022, 100 L.Ed.2d 608 (1988); Holzer, 816 F.2d at 310."
47
United States v. Davis, 890 F.2d 1373, 1378 (7th Cir.1989). The question presented on review is whether there is any evidence which would allow a rational trier of fact to conclude that Balzano either (1) wrongfully induced payments through an actual or threatened fear of economic harm, or (2) encouraged payments when acting in his official capacity as a fire inspector "under the color of official right." See Davis, 890 F.2d at 1378.
1.
The Club Victoria Extortion Count
48
In the Club Victoria liquor license application extortion case Jennifer Hammersmith, a co-owner of Club Victoria, testified that Balzano required that she hire a particular craftsman to perform construction work as well as demanding $2,500 for himself. In requiring this of Hammersmith, Balzano stated "he could make [her] do anything that he wanted to" and that before Hammersmith's property were to be approved for Code compliance she would have to come up with the money. Balzano received the $2,500 payoff and the contractor hired upon his recommendation performed the work and received the payment for his services.
49
These facts demonstrate that Balzano was "exploiting a victim's fear through both threatening positive action that will harm the victim" and through "threatening to withhold official action that will result in some form of harm being visited upon the victim." Davis, 890 F.2d at 1378. In stating that "he could make [Hammersmith] do anything that he wanted to" with respect to the employment of his friend, and in demanding a payoff of $2,500 to gain approval of the task force inspection, Balzano both "threaten[ed] positive action harm[ful]"10 to Hammersmith, "exploiting [her] fear,"11 and "threaten[ed] to withhold official action that [would] result in ... harm."12 Moreover, Balzano's behavior constituted extortion under the "color of official right" as Balzano certainly "encourage[d] or accept[ed] payments prompted by the hope that [he would] be influenced in the exercise of [his] powers." Davis, 890 F.2d at 1378. A rational jury could very properly find the necessary elements of extortion based upon the totality of the evidence presented.
50
Aware that Jennifer's testimony was very damaging, Balzano contends that the jury's verdict must be reversed because Hammersmith was not a credible witness.13 We again remind Balzano of the fact that " 'it is well settled law that a court of appeals does not stand in judgment of the credibility of witnesses. Rather that question is left to the sound discretion of the trier of fact.' " United States v. Perry, 747 F.2d 1165, 1170 (7th Cir.1984) (quoting United States v. Roman, 728 F.2d 846, 856 (7th Cir.1984)). As we have further held: "[T]he credibility of witnesses is peculiarly within the province of the jury and our review of credibility is prohibited absent extraordinary circumstances." United States v. Noble, 754 F.2d 1324, 1332 (7th Cir.1985). Indeed, "we will uphold the verdict unless the ... testimony is incredible as a matter of law." United States v. Dunigan, 884 F.2d 1010, 1013 (7th Cir.1989). "To be incredible as a matter of law, a witness' testimony must be unbelievable on its face...." Dunigan, 884 F.2d at 1013 (citations omitted). As demonstrated previously, Hammersmith's account of Balzano's successful attempt to obtain work for his friend and a $2,500 payoff for himself graphically portrayed the commission of the crime of extortion. We, like the jury, are of the opinion that her account of the payoff was credible in that it portrayed Balzano's behavior consistent with the same modus operandi (payoffs made to Balzano after Balzano had allegedly discovered fire code compliance problems) Balzano had utilized in other extortion incidents.
2.
The United Skates Extortion Count
51
Balzano next contends that there was insufficient evidence to support his conviction for extortion stemming from his efforts to secure a VCR and television from United Skates of America when that business applied for a liquor license, as fully recounted in our previous discussion of the facts. There can be little doubt that the incident at United Skates constitutes extortion under either the "fear" prong or the "color of official right" prong of 18 U.S.C. Sec. 1951(b)(2). Clearly the fire inspector (Balzano), while acting within the scope of his official duties, was "exploiting [Grisamore's] fear"14 as he threatened to withhold fire inspection approval unless a costly sprinkling system was installed or he received a VCR. Furthermore, it is clear that the fire inspector's statement that there would be no problems with the inspection (sprinkler system) if the boys at the station house received the video cassette recorder constituted extortion under the "color of official right," because the inspector was encouraging "payments prompted by the [victim's] hope that [he would] be influenced in the exercise of [his] powers."15
52
Balzano again does not contest the point that the inspector who made the threat against United Skates committed extortion. Instead, Balzano's claim is that there was insufficient evidence for the jury to conclude that he was the inspector who committed the extortion. Balzano primarily relies upon Grisamore's failure to give a positive I.D. of him at the trial of the extortion attempt. The absence of direct eyewitness evidence of identification is not decisive because "[a] jury may properly rely upon circumstantial evidence in convicting a criminal defendant." United States v. Khorrami, 895 F.2d 1186, 1191 (7th Cir.1990). Circumstantial evidence may also prove particularly useful in resolving questions of identification. See United States v. Carrasco, 887 F.2d 794, 810-811 (7th Cir.1989) (relying upon circumstantial evidence as a basis for holding that sufficient evidence supported a jury finding that a defendant joined a conspiracy).
53
Direct as well as circumstantial evidence provides strong support for the jury's conclusion that Balzano was, in fact, the fire inspector involved in the attempted extortion of United Skates, despite Grisamore's failure to provide positive I.D. testimony. Although Grisamore did not testify that the inspector identified himself as Daniel Balzano, he did testify that the inspector identified himself as one of the members of the team that inspected United Skates and that combined with the fact that Grisamore recognized the inspector as a member of the earlier inspection team and further that Fire Department official business records confirmed Balzano's participation in that particular inspection. Furthermore, Balzano's identification was corroborated with Grisamore's testimony at trial that served to furnish a description of the inspector matching Balzano. Additional support for the identification was given in Allenson's testimony at trial both that Grisamore confirmed in a telephone conversation on the very day of the extortion attempt that Balzano was the inspector who had visited him and that Balzano's name was inscribed on a piece of paper that Allenson received from Grisamore during a visit shortly after the extortion attempt.16 Finally, support for the identification of Balzano as the inspector involved was provided when, during his confrontation with Terry Mofreh after the extortion attempt, Balzano failed to deny the extortion, but dreamed up a feeble excuse for his unlawful shakedown when stating that United Skates had promised him a video recorder. This circumstantial evidence, combined with the other testimony, obviously convinced the jury that the fire inspector involved in the extortion at United Skates was, in fact, Daniel Balzano. Thus, from our review, we are convinced that there exists sufficient evidence in the record to support the jury's verdict that Balzano committed the crime of extortion in the United Skates shakedown.
3.
The Eddie's Ribs Extortion Count
54
Balzano contends that the evidence was insufficient to support the extortion count involving the Eddie's Ribs food and liquor license applications, where, as recounted in the Facts section of the opinion, he allegedly received a payoff from the restaurant's owner in lieu of requiring extensive repairs. Again there is little doubt that this incident constitutes extortion under either the "fear" or the "color of official right" prongs of 18 U.S.C. Sec. 1951(b)(2). As was the case with the United Skates shakedown, the fire inspector sought to obtain property from the proprietor of Eddie's Ribs by "threatening to withhold official action,"17 (the rendering of a passing mark on the fire inspection) "that [would] result in some form of harm being visited upon the victim." Davis, 890 F.2d at 1378. Not only was the fire inspector's action an exploitation of Cesar Aguilera's "fear," it also violated the "color of official right" prong of section 1951(b)(2) as the fire inspector both encouraged and accepted "payments prompted by the [victim's] hope that [the fire inspector would] be influenced in the exercise of [his] powers." Davis, 890 F.2d at 1378. Thus, the conduct of the fire inspector in the course of the Eddie's Ribs license applications constituted extortion.
55
Balzano does not attack the jury's finding that the facts presented constitute extortion for purposes of 18 U.S.C. Sec. 1951(b). Rather, Balzano argues that the evidence was insufficient because Aguilera failed to properly identify him as the fire inspector involved and because the jury improperly found Aguilera's testimony credible despite Aguilera's failure to remember the exact amount of the payoff.
56
Although Aguilera did not directly identify Balzano as the individual who extorted money from him, as in the case of the United Skates extortion conviction, the jury, in combination with the other testimony, was presented with convincing circumstantial evidence supporting the identification of Balzano as the individual guilty of the crime of extortion. " 'Circumstantial evidence is not less probative than direct evidence and, in some cases is even more reliable.' " Grier, 866 F.2d at 923 (quoting Williams, 798 F.2d at 1042). The description of the fire inspector that Aguilera presented matched that of Balzano. Furthermore, the City's inspection task force records establish that Balzano was the fire inspector assigned to both the inspection and re-inspection of Eddie's Ribs. The defendant also used the same modus operandi of requesting a payoff in lieu of expensive repairs as he did in the United Skates extortion incident. This circumstantial evidence, when considered in conjunction with the direct evidence, provided the basis for a reasonable factfinder to conclude beyond a reasonable doubt that Balzano was, in fact, the fire inspector who extorted money from the proprietor of Eddie's Ribs.
57
Balzano goes on to argue that the jury should not have believed Cesar Aguilera's testimony because he failed to directly identify Balzano, gave no specific dates when the extortion allegedly occurred and was unable to specifically recount the exact sum of money he paid Balzano. As discussed earlier in the Club Victoria extortion count, the jury is the "arbiter of credibility"; and "[m]ere inconsistencies in the witness' testimony do not render it legally incredible." Dunigan, 884 F.2d at 1013. The fact that Aguilera could not make a positive I.D. of Balzano and could not remember all of the minute details of the extortion incident falls short of leading us to the conclusion that the witness' testimony is incredible as a matter of law. The weight that will be given the particular witness' testimony is a jury question, and the jury has spoken. The jury obviously determined that the testimony coherently and plausibly sets forth a clear and unequivocal act of extortion in which Daniel Balzano victimized Aguilera.
B. The RICO Conspiracy Conviction
58
Balzano goes on to argue that the evidence was insufficient to support his conviction for conspiracy to violate the Racketeering Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1962(d).18 We have recognized that "a conspiracy to violate RICO should not require anything beyond that required for a conspiracy to violate any other federal crime." United States v. Neapolitan, 791 F.2d 489, 497 (7th Cir.), cert. denied, 479 U.S. 940, 107 S.Ct. 422, 93 L.Ed.2d 372 (1986). In Neapolitan we quoted the requirements for proof of participation in a RICO conspiracy (an agreement to participate in the affairs of an enterprise through a pattern of racketeering) found in the Fifth Circuit's decision in United States v. Bright, 630 F.2d 804, 834 (5th Cir.1980):
59
" 'To be convicted of a conspiracy to violate RICO there must be proof that the individual, by his words or actions, objectively manifested an agreement to participate, directly or indirectly, in the affairs of an enterprise, through the commission of two or more predicate crimes.' "
60
Neapolitan, 791 F.2d at 497 (quoting Bright, 630 F.2d at 834). Then, in United States v. Muskovsky, 863 F.2d 1319, 1324 (7th Cir.1988), we considered the facts the government is required to prove a defendant's guilt of conspiracy to violate RICO:
61
"To find a defendant guilty of conspiracy to violate RICO, the government must show that the defendant 'was aware of the essential nature and scope of the enterprise and intended to participate in it.' United States v. Bruun, 809 F.2d [397, 410 (7th Cir.1987) ]. While there is no need to prove that the defendant intended personally to perform the two predicate acts required for RICO liability, United States v. Neapolitan, 791 F.2d 489, 498 (7th Cir.), cert. denied, 479 U.S. 940, 107 S.Ct. 422, 93 L.Ed.2d 372 (1986), the government does have to show more than 'mere association with conspirators, knowledge of a conspiracy, and presence during conspiratorial discussions....' United States v. Percival, 756 F.2d 600, 610 (7th Cir.1985); see also United States v. Williams, 798 F.2d 1024, 1028 (7th Cir.1986). The government has to show that there was an agreement between the members of the conspiracy. Of course, direct evidence of that agreement need not be shown, 'an agreement can be inferred from the circumstances.' United States v. Neapolitan, 791 F.2d at 501."
62
We have, however, recognized that there are "two aspects of the 1962(d) conspiracy that serve to limit the scope of the theory: (1) the nature of the agreement required and (2) the necessity of proving the existence of an enterprise." Neapolitan, 791 F.2d at 498.
63
Initially we turn to the question of whether there existed an "enterprise" for purposes of RICO. "The term 'enterprise' is defined [in RICO] as including 'any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.' Sec. 1961(4). There is no restriction upon the associations embraced by the definition: an enterprise includes any union or group of individuals associated in fact. On its face, the definition appears to include both legitimate and illegitimate enterprises within its scope...." United States v. Turkette, 452 U.S. 576, 580-81, 101 S.Ct. 2524, 2527-28, 69 L.Ed.2d 246 (1981). "[T]he central element of an enterprise is structure." Neapolitan, 791 F.2d at 500. The Chicago Fire Department is a legitimate governmental entity possessing a clear organizational structure, thus qualifying as an "enterprise" under RICO.
64
We now turn to the question of whether there existed the required agreement to establish a conspiracy. In Neapolitan, we described the agreement that must be proven in a RICO conspiracy:
65
"From a conceptual standpoint a conspiracy to violate RICO can be analyzed as composed of two agreements (in reality they would be encompassed by the same manifestations of the defendant): an agreement to conduct or participate in the affairs of an enterprise and an agreement to the commission of at least two predicate acts. Thus, a defendant who did not agree to the commission of crimes constituting a pattern of racketeering activity is not in violation of section 1962(d), even though he is somehow affiliated with a RICO enterprise, and neither is the defendant who agrees to the commission of two criminal acts but does not consent to the involvement of an enterprise. If either aspect of the agreement is lacking then there is insufficient evidence that the defendant embraced the objective of the alleged conspiracy. Thus, mere association with the enterprise would not constitute an actionable 1962(d) violation. In a RICO conspiracy, as in all conspiracies, agreement is essential."
66
Neapolitan, 791 F.2d at 499 (citations and footnote omitted) (emphasis added).
67
Balzano does not challenge the fact that as an inspector for the Fire Prevention Bureau of the Chicago Fire Department, he agreed to participate in the affairs of the Department (the enterprise). Balzano contends that he did not agree to the commission of at least two predicate violations of state or federal law, as required to demonstrate a pattern of racketeering activity under RICO, and that any predicate acts that might have been committed were undertaken individually, and there was, thus, not the agreement necessary to establish a RICO conspiracy.
68
Our resolution of Balzano's insufficiency of the evidence challenge to his RICO conspiracy conviction does not require us to define in minute detail the type of conduct necessary to constitute an agreement to perform two or more predicate acts under RICO. The record reflects that Balzano and Fire Inspector Richard Dorband agreed to split the bribes Woo Kim (China Moon Restaurant) gave Dorband during the course of a task force inspection of that restaurant. Certainly knowingly sharing in the proceeds of a bribe constitutes agreement to the predicate act of violating the state bribery statute. Furthermore, Terry Mofreh's testimony concerning the manner in which he paid Dorband during the task force inspection of United Skates and the consultation that took place between Dorband and Balzano establishes that Dorband and Balzano collaborated in setting the amount of the bribe they would receive. The jury was entitled to believe Mofreh's testimony and conclude that Balzano and Dorband agreed to solicit and accept the bribe in violation of state bribery law.19 Thus, sufficient evidence was presented to the jury for it to reasonably find that Balzano and Dorband, in their splitting of the bribe from the China Moon Restaurant and in Dorband's acceptance of a bribe from Terry Mofreh at United Skates of America, agreed to commit two separate and distinct predicate acts, and we uphold Balzano's RICO conspiracy conviction.
C. The Witness Intimidation Conviction
69
Balzano finally challenges the sufficiency of the evidence to support his conviction for threatening and intimidating a grand jury witness in violation of 18 U.S.C. Sec. 1512(b).20 In United States v. Johnson, 903 F.2d 1084, 1087 (7th Cir.1990), we held that "[t]o prove witness intimidation, the government must show (1) the defendant[ ] knowingly used intimidation, physical force, or threats against [an individual] (2) with the intent to influence and prevent [the witness] from testifying in an official proceeding and to cause [the witness] to withhold testimony in an official proceeding." "Section 1512(b) ... does not require that the witness in fact be intimidated into not testifying--the focus is on the endeavor to bring about the proscribed result, rather than on the success of the endeavor." Johnson, 903 F.2d 1088, n. 5.
70
The evidence in the record not only clearly, but convincingly, establishes that Balzano knowingly used tactics of intimidation against Mofreh. Mofreh's testimony, corroborated with the testimony of FBI Agent O'Malley and Assistant U.S. Attorney Raphaelson as to his fear, demonstrates that Balzano utilized hand gestures mimicking the slashing of a throat and the threat of a gun. Balzano desperately launches an attack on Mofreh's character and credibility, but we advise he and his attorney that it was for the jury to determine credibility. Obviously Balzano and his trial attorney failed to convince the jury, and Balzano and his appellate attorney now rehash the same tirade of accusations and innuendos before this court, and once again they fall on deaf ears. The jury's credibility determination appears particularly appropriate where, as here, Balzano's conduct toward Mofreh is corroborated in the testimony of a witness who spoke with Mofreh immediately after the incident.
71
The remaining question is whether Balzano's conduct was engaged in with the intent to influence and prevent Mofreh from testifying and to cause Mofreh to withhold testimony in an official proceeding. In a recent witness intimidation case, we noted that:
72
"Although it is difficult to find direct evidence in the record of the defendants' intent to intimidate and retaliate against [the witness], direct evidence of intent is usually unavailable. In general, it is necessary to prove intent through circumstantial evidence, and a jury may thus rely on evidence of this nature to find that a defendant had the requisite intent to commit the crime charged. Circumstantial evidence, moreover, is no less probative than direct evidence."
73
Johnson, 903 F.2d at 1087 (citations omitted). There is no shadow of a doubt that Balzano knew that Mofreh was cooperating with the government as a witness in the grand jury proceeding since Dorband, in a taped telephone call, had previously advised him that Mofreh was cooperating with the government in the investigation of corruption among City inspectors as his activity of threat or intimidation toward Mofreh is clear and convincing evidence of knowledge. Furthermore, based upon his past involvement in transactions involving Mofreh, Balzano was aware that Mofreh possessed information (particularly with respect to the incident at United Skates) that could result in testimony damaging to Balzano. In addition, Balzano was aware that Mofreh's testimony was imminent as Balzano observed Mofreh seated outside the grand jury room, and his threatening conduct confirms this knowledge. In light of these facts, the jury properly inferred that Balzano's intimidating acts were performed with the intent to prevent Mofreh from testifying in the grand jury proceeding and thus to influence Mofreh to withhold testimony from the grand jury. Sufficient evidence exists to support the jury's verdict that Balzano violated 18 U.S.C. Sec. 1512(b).
IV.
INEFFECTIVE ASSISTANCE OF COUNSEL
74
Balzano filed a pro se brief alleging that his conviction should be reversed because of the ineffectiveness of trial counsel. In United States v. Moya-Gomez, 860 F.2d 706, 763-64 (7th Cir.1988), we outlined the high mountain a defendant must climb to demonstrate ineffective assistance of counsel:
75
"The defendant bears a heavy burden in establishing an ineffective assistance of counsel claim. He must show (1) that his attorney's representation fell below an objective standard of reasonableness (performance prong), Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984), and (2) that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different (prejudice prong), id. at 694, 104 S.Ct. at 2068. See also United States ex rel. Barnard v. Lane, 819 F.2d 798, 802 (7th Cir.1987); United States v. Hillsberg, 812 F.2d 328, 336 (7th Cir.), cert. denied, 481 U.S. 1041, 107 S.Ct. 1981, 95 L.Ed.2d 821 (1987). With regard to the performance prong, the defendant must identify the specific acts or omissions of counsel that formed the basis for his claim of ineffective assistance. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. The court 'must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.' Id. The court's scrutiny of counsel's performance must be conducted with a high degree of deference and without the distorting effects of hindsight. Id. at 689, 104 S.Ct. at 2065; United States v. Scherwood, 770 F.2d 650, 655 (7th Cir.1985). As to the prejudice prong of the inquiry, a 'reasonable probability' of a different result means a 'probability sufficient to undermine confidence in the outcome [of the trial].' Strickland, 466 U.S. at 694, 104 S.Ct. at 2068."
76
Thus, ineffective assistance of counsel requires a showing that representation fell below an objective standard of reasonableness, and there exists a reasonable possibility that, but for unprofessional errors, the result of the proceedings would have been different. See Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2065, 2068, 80 L.Ed.2d 674 (1984); United States v. Moya-Gomez, 860 F.2d 706, 763 (7th Cir.1988).
77
Initially, the defendant Balzano asserts that his trial counsel was ineffective because he was under investigation on criminal tax matters during the period immediately preceding Balzano's trial meaning that he "was not in a position to vigorously represent defendant at trial and thereby chance antagonizing the government [through] a rigorous defense of [d]efendant...." Supplemental Brief for Appellant at 1. In United States v. Barnes, 909 F.2d 1059, 1065 (7th Cir.1990), we observed that:
78
"It is well settled that '[a] criminal defendant is entitled to counsel whose undivided loyalties lie with the client.' United States v. Ellison, 798 F.2d 1102, 1106 (7th Cir.1986); United States v. Noble, 754 F.2d 1324, 1333 (7th Cir.1985); United States ex rel. Williams v. Franzen, 687 F.2d 944, 948 (7th Cir.1982). Thus, a criminal defendant may premise a claim of ineffective assistance of counsel on the fact that his attorney was burdened by a conflict of interest. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). 'Although the issue of conflict typically arises in a case involving joint representation, it may also arise when a client's interest conflicts with that of his attorney.' Ellison, 798 F.2d at 1106-07. The sixth amendment requires that trial courts, upon a defendant's timely objection that a conflict exists, hold a hearing to determine whether the potential conflict jeopardizes his right to counsel. Holloway, 435 U.S. at 486-87, 98 S.Ct. at 1179-80. However, when no objection is presented to the trial court, 'a reviewing court cannot presume that the possibility for conflict has resulted in ineffective assistance of counsel.' Cuyler, 446 U.S. at 348, 100 S.Ct. at 1718. Thus, in order to establish constitutionally ineffective assistance of counsel based upon an alleged conflict of interest, 'a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance.' Id. at 348, 100 S.Ct. at 1718."
79
Initially we discuss the question of whether a presumption of prejudice should arise from the alleged conflict of interest resulting from the trial counsel's ongoing criminal tax investigation. The trial court, after having been apprised of the alleged conflict of interest, held a hearing in May 1987, a month prior to trial, in which Balzano was advised that there had been "an IRS ... investigation of trial counsel, who is the attorney of record." During that hearing Balzano assured the court that he wished to continue with his present trial attorney. Balzano now seeks to circumvent his statement to the court with an assertion that his decision was not free and voluntary as a result of the close proximity of the trial and the fact that his lawyer allegedly would not refund his fee. However, Balzano failed to inform the trial court that his choice was motivated by any of these concerns and never requested the trial court to grant a continuance of the trial in order that he might retain a new attorney. Thus, based upon our perusal of the record, we are convinced that the trial court thoroughly explored the alleged conflict of interest based on the evidence presented, and it ill behooves Balzano to now fault the trial court for failing to ascertain his newly discovered alleged "hidden" motivations for his decision to continue to retain his trial counsel. Because Balzano failed to assert any of the reasons he now argues motivated his conduct, his failure certainly leaves a deep suspicion that these reasons were afterthoughts dreamed up for purposes of this appeal. Balzano was responsible for the trial court's lack of knowledge of the alleged details of Balzano's determination to continue to retain his trial counsel. Thus, Balzano is required to demonstrate that "an alleged conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348-49, 100 S.Ct. 1708, 1718-19, 64 L.Ed.2d 333 (1980).
80
When a criminal defendant asserts that an investigation of the criminal activities of his attorney creates a conflict between the attorney's interest in protecting himself from criminal investigation and the defendant's interest in effective representation, we have held that an "actual conflict of interest" exists only where there is a danger that the defense attorney would ineffectively represent his client because of fear that authorities might become aware of the attorney's own misconduct if he undertook effective representation. See Cerro v. United States, 872 F.2d 780, 785-86 (7th Cir.1989) (No actual conflict of interest where "[t]here was no danger that authorities would learn something novel about [the attorney's] possible involvement in criminal activities...."). Balzano's trial attorney's representation of Balzano on his extortion, RICO conspiracy and witness intimidation charges would not have affected his completely unrelated personal criminal tax investigation. Thus, we reject Balzano's contention that the facts demonstrated an actual conflict of interest resulting in ineffective assistance of counsel.
81
Balzano goes on to argue that his attorney's alleged 100-day fast resulted in a deterioration of his health to a degree that resulted in ineffective assistance of counsel. Balzano failed to bring this matter to the attention of the trial court, and there is nothing in the record other than the defendant's self-serving statement that would support Balzano's assertion about his attorney's lengthy fast or that it affected his counsel's ability.21 However, Balzano urges that his trial counsel's alleged poor health resulting from his fast gave rise to several specific examples of behavior that fell outside an objective standard of reasonable performance and prejudiced Balzano.
82
The first of these is his trial attorney's failure to call all the witnesses that were named on the witness list submitted to the government during discovery proceedings. Specifically, Balzano alleges that his trial attorney failed to call specific witnesses to impeach testimony given by government witnesses. In United States v. Adamo, 882 F.2d 1218, 1227 (7th Cir.1989), a case rejecting an ineffective assistance of counsel claim based upon failure to call a witness, we observed:
83
"This court has frequently considered whether and under what circumstances counsel's failure to call ... witnesses to testify amounts to ineffective assistance of counsel. See, e.g., United States v. Olson, 846 F.2d 1103 (7th Cir.1988); Sullivan v. Fairman, 819 F.2d 1382 (7th Cir.1987). These decisions recognize that once defense counsel conducts a reasonable investigation into all lines of possible defenses, counsel's strategic choice to pursue one line to the exclusion of others is rarely second-guessed on appeal. An appellate court will review an ineffective assistance of counsel ground only if counsel's conduct or decision was not made 'in the exercise of reasonably professional judgment.' Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. See also United States ex rel. Robinson v. Pate, 312 F.2d 161, 162 (7th Cir.1963) (counsel not ineffective because strategic choice was one about which competent attorneys might honestly disagree). The appellate court will make ' "every effort ... to eliminate the distorting effects of hindsight" ... and must apply a "heavy measure of deference to counsel's judgment." ' Sullivan, 819 F.2d at 1391 (quoting Strickland [466 U.S.] at 689, 691, 104 S.Ct. at 2065, 2066)."
84
Balzano alleges that his trial counsel should have called witnesses whom Balzano felt could have impeached government witnesses on matters collateral to the litigation. We remind Balzano that when an attorney in the course of a trial makes "[s]trategic choices ... after thorough investigation [they] are virtually unchallengeable." Sullivan, 819 F.2d at 1391 (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2065-66). "[T]rial counsel [need not] track down every lead or ... personally investigate every evidentiary possibility before choosing a defense and developing it." Id. at 1392. The Constitution does not oblige counsel to present each and every witness that is suggested to him. In fact, such tactics would be considered dilatory unless the attorney and the court believe the witness will add competent, admissible and non-cumulative testimony to the trial record. In United States v. Olson, 846 F.2d 1103, 1110 (7th Cir.1988), we rejected a similar ineffective assistance of counsel claim based upon a trial attorney's failure to call a witness for the purpose of impeaching another witness, observing:
85
"At the June 23 evidentiary hearing, Mr. Coffey testified that he did not call Cornelius to testify at trial because Cornelius had a felony record, and his affidavit referred to the fact that defendant Olson and Wanda Dick had been in custody on state charges of kidnapping. In Attorney Coffey's professional judgment, revealing the fact of Olson's incarceration on those charges by calling Cornelius to testify would not have been in Olson's best interest. Moreover, Mr. Coffey did call another witness, Judith Long, who testified that Wanda Dick had told her that if Olson went back to his wife, she would ruin his life. Ms. Long did not have a felony record, and her testimony regarding her conversation with Dick did not involve revealing the fact of the defendant's prior incarceration on kidnapping charges. We can only conclude that Mr. Coffey's handling of this matter was a proper exercise of good trial judgment. In addition, since the Cornelius testimony would have been cumulative if presented and, in our opinion, damaging to the defendant's case, we conclude that the decision to refrain from calling him as a witness was proper and in no way prejudiced the defense."22
86
Similarly, in light of the trial judge's strong reservations concerning the permissibility of impeachment evidence on collateral matters under Fed.R.Evid. 608, we believe that Balzano's trial attorney's strategic choice to refrain from calling witnesses who would testify solely as to collateral matters was an appropriate "exercise of reasonable professional judgement." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.
87
Balzano goes on to catalog a number of other alleged errors of his trial counsel that allegedly constituted ineffective assistance. In Adamo, we noted:
88
"As the Supreme Court observed in Strickland, it is not our purpose in evaluating an ineffective assistance claim to grade counsels' performance. 466 U.S. at 697, 104 S.Ct. at 2069. Thus, '[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.' Id."
89
Adamo, 882 F.2d at 1228. Upon our review of the transcript, we have ascertained nothing that would demonstrate that Balzano's attorney failed to exercise "reasonable professional judgment" with respect to the alleged errors set forth below. Nonetheless, we apply the approach followed in Adamo and consider only whether any of the remaining ineffective assistance of counsel claims prejudiced Balzano. The Supreme Court has given the following description of the required prejudice inquiry:
90
"[A] court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors."
91
Strickland, 466 U.S. at 695-96, 104 S.Ct. at 2068-69.
92
We now examine whether Balzano suffered any "prejudice" from any of the remaining alleged errors. We turn initially to Balzano's attorney's failure to complete impeachment of government witnesses Roy LaBolle and Terry Mofreh with evidence of prior convictions. Because LaBolle was unable to provide significant damaging evidence against Balzano, the alleged failure to impeach his credibility clearly had little impact on the outcome of Balzano's trial. Mofreh's character was thoroughly attacked during the cross-examination conducted by Balzano's trial attorney, and any additional impeachment of one other conviction, in our opinion, would have had only a minor effect on the jury's consideration of Mofreh's credibility. Thus, the failure to provide one more conviction as an additional impeachment of Mofreh had no effect on the outcome of Balzano's trial. See United States v. Olson, 846 F.2d at 1110. (Defendant failed to establish prejudice in a case where he admitted that " 'trial counsel [did make] inroads during cross-examination in discrediting the three ... main witnesses.' ").
93
Balzano next states that his attorney failed to object to leading questions the government posed to witness Tom Grisamore. However, this failure had negligible prejudicial impact, if any, upon Balzano's case, as in our opinion the questions involved minor issues regarding the facts surrounding particular license applications. In addition, the trial court commended Balzano's attorney's approach to this matter, noting that it may have been the best one at that juncture of the proceedings. "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable...." Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. at 2066. As we held in another case involving an alleged improper failure to raise an objection: "This is a matter of trial tactics on the part of experienced trial counsel which this court will not second-guess, particularly in light of the improbability that counsel's decision affected the verdict, given the overwhelming evidence of Olson's guilt." Olson, 846 F.2d at 1111. Thus, not only was there an absence of prejudice, but the trial court's recognition of the wisdom of Balzano's attorney's tactics demonstrates that he exercised "reasonable professional judgment." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.
94
Balzano further asserts that he was prejudiced when his trial attorney failed to object to testimony regarding Hammersmith's payments by check to the craftsman Balzano recommended to Hammersmith. Balzano believes that this testimony did not concern him and, thus, was irrelevant. There was no basis for an objection to the admission of testimony concerning these payments because they were clearly relevant in establishing the context of Balzano's extortion of Jennifer Hammersmith, which included the direction of Hammersmith's repair work to the individual Balzano recommended. In addition, Balzano's attorney on cross-examination was able to establish that Balzano did not receive the proceeds from these checks. Thus, Balzano not only failed to suffer any prejudice, but in light of the fact that his attorney would have been unable to have had this testimony excluded even if he had made an objection, his attorney properly exercised well-reasoned professional judgment in his trial strategy in an attempt not to highlight by detailed questioning but rather to limit the damage Balzano suffered from the introduction of this evidence.
95
Finally, Balzano failed to demonstrate prejudice resulting from his trial attorney's alleged improper failure to thoroughly investigate his case through listening to both the inculpatory and exculpatory tapes received from the government during discovery. "[I]n order to establish prejudice resulting from a failure to investigate, the defendant must make ' "a comprehensive showing of what the investigation would have produced." ' Sullivan [v. Fairman, 819 F.2d 1382, 1392 (7th Cir.1987) ] (quoting United States ex rel. Cross v. DeRobertis, 811 F.2d 1008, 1016 (7th Cir.1987))." Olson, 846 F.2d at 1109. In his opening brief Balzano was unable to specifically demonstrate any exculpatory evidence on the involved tapes.23 Balzano fails to enumerate specific inculpatory evidence on the tapes and the fact that only two tapes were played at trial would lead one to the reasonable conclusion that there was little inculpatory evidence on these tapes. We noted a similar problem in United States v. Olson, 846 F.2d at 1111, where we held there was no prejudice from trial counsel's failure to investigate a witness when the defendant "fail[ed] ... to allege specifically what evidence such investigation and interviews would have uncovered; and, aside from a conclusory allegation that the defense was impeded in attempting to impeach the government's three main witnesses, he fail[ed] to recite any facts that might even remotely result in prejudice." In light of Balzano's failure to make " 'a comprehensive showing of what the investigation would have produced,' "24 we are of the opinion that the defendant has failed to demonstrate prejudice. See Olson, 846 F.2d at 1109-10 (holding that prejudice was not established where "[t]he defendant and his appellate counsel fail[ed] ... to specify what witnesses an investigation would have uncovered or what their testimony would have added to [the] defense."). See also Olson, 846 F.2d at 1110 ("We note that Attorney Coffey vigorously cross-examined the three women at trial. We refuse to find that his decision not to interview or investigate them, based on his professional judgment and thorough knowledge of the case, was deficient performance. The defendant has clearly not established any prejudice stemming from the allegedly deficient performance; indeed, aside from his unsupported, conclusory statement, he has alleged none.").
96
The overwhelming evidence offered against Balzano further supports a conclusion that Balzano did not suffer prejudice from the performance of his trial attorney. As thoroughly detailed in our discussion of the sufficiency of the evidence in section III, supra, the government's evidence clearly established Balzano's guilt beyond a reasonable doubt to each and every one of the crimes for which he was charged. Indeed, as we noted in the sufficiency of evidence discussions, Balzano generally offered only poorly reasoned credibility and identification-based challenges to the sufficiency of the evidence for each of the involved crimes. In light of the overwhelming evidence of guilt presented during the trial, we are of the opinion that Balzano has failed to demonstrate that "the decision reached would reasonably likely have been different absent [his attorney's] errors." Strickland, 466 U.S. at 696, 104 S.Ct. at 2069. We reject his ineffective assistance of counsel claim.
97
Balzano's ineffective assistance of counsel claims, that he brought pro se, are patently frivolous. As we admonished in United States v. Olson, 846 F.2d at 1111:
98
"Many of these claims of ineffective assistance of counsel which come to our attention, like the claims raised here, are without merit and accomplish little other than the waste of judicial resources, and possibly reflect unfairly on trial counsel. While the Supreme Court has noted that it is a 'natural tendency to fault an unsuccessful defense,' it has stated forcefully that the tendency is one that courts must 'counteract.' Nix v. Whiteside, 475 U.S. 157, 165, 106 S.Ct. 988, 994, 89 L.Ed.2d 123 (1986). Otherwise,
99
'[c]riminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one on counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.'
100
Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. Thus the Court, in Strickland, set a stringent standard to be applied to claims of ineffective assistance of trial counsel and it should be adhered to."
101
Not only were the ineffective assistance of counsel claims totally lacking in merit, but Balzano's entire appeal, which commenced with his filing of a pro se notice of appeal, was frivolous. We commend Balzano's appointed counsel who called the court's attention to this problem at the outset of the litigation, sought to withdraw and filed an Anders brief detailing the appeal's lack of merit. After Balzano filed a response we gave him the benefit of the doubt and ordered the appeal to proceed. But, upon a full consideration of the issues, we are convinced that Balzano's appeal was frivolous. As we noted in United States v. Adamo, 882 F.2d at 1235, Balzano has
102
"raise[d] a number of grounds for reversal in this case, none of which are persuasive. This is the sort of 'buckshot approach,' where [defendant] has only a mere 'hop[e] [that] a pellet will strike,' that this court has disapproved in the past, Ruiz v. Cady, 710 F.2d 1214, 1218 (7th Cir.1983), and again disapproves today."
103
Adamo, 882 F.2d at 1235. In an era of burgeoning federal court case loads, it is a senseless drain on judicial resources for us to be required to devote the time necessary to a complete consideration of issues on appeal which are entirely lacking in substance. This waste of judicial time is especially ironic because Balzano was sentenced to only six months of prison with work release privileges on convictions which carried a maximum total sentence of 90 years in prison and $305,000 in fines. We are utterly surprised since a defendant who receives nothing but a mere slap on the wrist after having been convicted of most serious criminal activity should consider himself most fortunate and is in no position whatsoever to complain of the treatment he has received in federal district court. If there ever was a valid argument for the Sentencing Commission because of disparity of sentences, this is it. Bribery of public officials in most cities of the United States is considered a serious crime.
104
The jury's verdict against Balzano was based upon proof beyond a reasonable doubt as to each and every count contained therein and from our review of the record we are convinced that the trial court did not commit reversible error. Balzano's convictions are
105
AFFIRMED.
1
The Bureau performs inspections when complaints are received concerning suspected non-compliance with the Code and when a business applies for a license. Inspections were performed by inter-departmental task forces composed of inspectors from the Fire Prevention Bureau, the Consumer Services Department and the Department of Inspectional Services (including plumbing inspectors, ventilation inspectors and structural inspectors during the period in question--1983-84). The City of Chicago's task force inspections were divided into three separate areas, one for the north, one for the west, and one for the south side
2
As will be discussed, infra, Dorband and Balzano also collaborated in the receipt of a bribe during the inspection of United Skates of America
3
A "not ready" determination suggests that the proprietor is informally advised that the establishment is not in compliance with the relevant local codes, but does not result in the issuance of formal citations. The owners are permitted additional time to bring their establishment up to compliance, and a re-inspection is arranged for, upon request, after Code compliance has been completed
4
Richard Dorband presented a somewhat different version of the payoff. Dorband testified that Mofreh gave him $100 and that he told Mofreh that he had no control over the other inspectors. According to Dorband, Mofreh told him not to worry about it as Allenson had plenty of money and Mofreh would talk to all of the inspectors
5
The Chicago Fire Department task force business records confirmed that Balzano was an inspector on each of the inspections of Eddie's Ribs
6
Aguilera believed the written amount was about $1,500
7
See United States v. Diaz, 876 F.2d 1344, 1355 (7th Cir.1989) (quoting 8 J. Moore, Moore's Federal Practice Sec. 806 at 8-25 (2d ed.) ("Rule 8(a) may be applied only to offenses joined against a single defendant....") (Emphasis in original)
8
Archer, 843 F.2d at 1022 (quoting Baker, 401 F.2d at 977)
9
In relevant part, 18 U.S.C. Sec. 1951 provides:
"(a) Whoever in any way or degree obstructs, delays or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, ... shall be fined not more than $10,000 or imprisoned not more than 20 years or both.
(b) As used in this section-- ... (2) The term 'extortion' means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right."
10
Davis, 890 F.2d at 1378
11
Id
12
Id
13
In support of this position, Balzano argues that Hammersmith's testimony was inconsistent, citing discrepancies between her trial testimony and earlier statements concerning individuals present at the time of the payoffs. Balzano also argues that Hammersmith has had a history of making wild accusations regarding the misconduct of public officials
14
Davis, 890 F.2d at 1378
15
Davis, 890 F.2d at 1378
16
During his meeting with Balzano, Grisamore requested that Balzano write his name and telephone number on a piece of paper, and Balzano complied
17
Davis, 890 F.2d at 1378
18
18 U.S.C. Sec. 1962(d) provides:
"It shall be unlawful for any person to conspire to violate any of the provisions of subsections (a), (b), or (c) of this section."
18 U.S.C. Sec. 1962(c) provides:
"It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt."
19
Balzano urges that the jury should have believed Dorband's testimony that Dorband and Balzano were each taking individual bribes. Initially, we wish to point out that when challenging the sufficiency of the evidence, the evidence is viewed in the light most favorable to the government. United States v. Nesbitt, 852 F.2d 1502, 1509 (7th Cir.1988). Furthermore, even if there was an arrangement between Balzano and Dorband to receive individual bribes from the same party, still there would be sufficient evidence of an agreement to commit the predicate act of violating the state bribery statute
20
18 U.S.C. Sec. 1512(b) provides, in relevant part:
"Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to do so ... with intent to--(1) influence, delay, or prevent the testimony of any person in an official proceeding; (2) cause or induce any person to--(A) withhold testimony ... shall be fined not more than $250,000 or imprisoned not more than 10 years, or both."
21
Balzano relies upon the fact that his attorney said that he had to go to the doctor at one point. Even if we agree that he did fast, this is hardly a sufficient basis to establish an impairment from the decrease in his food and substance intake
22
The Attorney Coffey involved in United States v. Olson is not related to the author of this opinion
23
Although Balzano purported to provide examples of such evidence in his reply brief, it is well settled that a matter may not be raised for the first time in a reply brief. See Sims v. City of Madison, 902 F.2d 524, 536 n. 5 (7th Cir.1990)
24
Sullivan v. Fairman, 819 F.2d 1382, 1392 (7th Cir.1987) (quoting United States ex rel. Cross v. DeRobertis, 811 F.2d 1008, 1016 (7th Cir.1987))
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IN THE COURT OF APPEALS OF IOWA
No. 15-2043
Filed February 10, 2016
IN THE INTEREST OF V.C. and J.C.,
Minor Children,
C.C., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Gary K.
Anderson, District Associate Judge.
A mother appeals the juvenile court’s termination of her parental rights to
her children, V.C. and J.C. AFFIRMED.
Vanessa E. Strazdas of Strazdas Law, Council Bluffs, for appellant
mother.
Thomas J. Miller, Attorney General, and Kathrine S. Miller-Todd, Assistant
Attorney General, for appellee State.
Roberta Megel of the State Public Defender, Council Bluffs, attorney and
guardian ad litem for minor children.
Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
2
POTTERFIELD, Judge.
A mother appeals the juvenile court’s termination of her parental rights to
her children, V.C. and J.C. She argues the State failed to prove the grounds for
termination by clear and convincing evidence. We conclude clear and convincing
evidence supported termination, and therefore affirm.
I. Background Facts and Proceedings
Two children are at interest in this appeal. V.C. is an eight-year-old boy.
J.C. is a ten-year-old boy. Both are the children of the mother and the same
father.1
V.C. and J.C. first came to the attention of the Iowa Department of Human
Services (DHS) on August 28, 2014, after they failed to appear at school
because the father was not home to take them. DHS received a referral alleging
the father was unable to maintain a safe and suitable home for his sons. Police
officers went to the father’s home and found it to be filthy and unsuitable for the
children. Water and electric utilities had been disconnected two days prior for
lack of payment. As a result, the toilet was full of feces and urine. There was no
food in the home. The boys were sleeping on dirty mattresses on the floor. In
the father’s absence, the boys had been left in the care of the father’s frail and
wheelchair-bound great-grandmother, who was unable to provide proper care.
V.C. and J.C. were taken into protective custody that day, and have not been in
the care of either parent since.
1
The father’s parental rights were also terminated as to both children, but he has not
appealed.
3
The father had officially begun caring for V.C. and J.C. in 2009, apparently
as a result of an Iowa court order. According to the mother, however, the boys
continued to live with her in Nebraska for three years—from 2009 until November
2012—while the father was not around. She testified the father only took the
boys from her after the Nebraska authorities told him she had been abusing
them. The mother did not see her children again for nearly two years while they
lived with the father and until DHS took them into protective custody.
During an interview with a DHS child protective worker, the boys stated
their mother came and went from their lives. They reported the mother drank
and used drugs. They also reported their belief that she was currently homeless
and living out of her car in Nebraska. According to the boys, the mother had
another child, who was in foster care in Nebraska. A DHS social work case
manager contacted the mother and asked why she had not seen her sons in two
years. The mother said she felt the father had been taking good care of them.
V.C. and J.C. were each adjudicated to be a child in need of assistance
(CINA) pursuant to Iowa Code sections 232.2(6)(c)(2) and (g) (2013) following an
adjudication hearing on October 13, 2014. The juvenile court ordered that DHS
retain care, custody, and control of the children, and provide for services to be
made available for the children and parents. With respect to the mother, the
court ordered her to have future contact with her sons through DHS, to maintain
suitable housing and verifiable income, and to have a home study completed on
her home in Nebraska through the Interstate Compact on Placement of Children
(ICPC). See Iowa Code §§ 232.158–.168.
4
The permanency goal for V.C. and J.C. from the outset had been
reunification with either the mother or the father, or both. And initially,
reunification efforts seemed to be progressing, based upon the mother’s
satisfactory and mostly-consistent participation in offered services and
interactions with V.C. and J.C. The juvenile court’s order following a
November 3, 2014 CINA disposition hearing noted the mother had “been
receptive to following through with interactions supervised by the family’s
provider as well as interactions offered by the [boys’] foster parents.” Likewise,
the order following a February 2, 2015 CINA review hearing noted positive
progress in that “supervision between [the mother] and her boys has decreased,”
and referenced the DHS caseworker’s interest in seeing the mother have
consistent interactions with her sons when given more time and a less structured
setting. The juvenile court specifically stated in its February 2 review order, “This
[reunification] plan is expected to be achieved on or before the permanency
hearing,” and set the permanency hearing for July 9, 2015.
In the interim, however, a home study was completed on the mother’s
Nebraska home. The mother has lived in the same Nebraska city throughout the
events underlying this appeal. She reportedly has been renting and residing in
the same home since October 2013. At the outset of these proceedings, she
lived there with her youngest son, four other adults, and two other children,
although she stated most of those individuals would move out if a home study
were to be completed. The mother asked DHS to delay requesting the home
study because she felt unprepared, but reported that she was ready in January
2015.
5
The home study was completed by the Nebraska Department of Health
and Human Services in April 2015. Among the concerns highlighted in the home
study were the mother’s “functional and cognitive impairments” that affected her
ability to parent effectively, her dependence upon family and friends to parent her
youngest son, her odd behavior during visits, financial issues, and her ongoing
relationship with a man whose criminal background revealed both a history of
physical child abuse and an outstanding arrest warrant. The home study
concluded with the following assessment: “At this time it does not appear that
[the mother] ha[s] the cognitive ability to parent [J.C.] and [V.C.]. Therefore,
Nebraska Health and Human Services is denying the placement of [the children]
with [the mother].”
The denial of the mother’s home study coincided with a more general
decline in her reunification efforts. The juvenile court’s order following the
permanency hearing on July 9, 2015, noted the mother had only “attended
eighteen out of the thirty-three offered interactions with her sons” since the last
hearing in February, despite the fact that transportation was provided for the
boys. In addition to the drop in the mother’s interactions with her sons, she was
inconsistent in her attendance at various other appointments and events that had
been recommended to her. The court also noted the mother was not receptive
either to taking a parenting class or to moving to Iowa in order to further the
reunification efforts, despite the fact she had been told “placement of the children
at her current residence would be impossible due to the denial of the ICPC home
study.”
6
The juvenile court ultimately ordered on July 9, 2015, “That the
permanency goal of reunification be changed to termination of the parent-child
relationship and adoption.” The court further explained:
The permanency goal had previously been reunification, and it was
expected to be completed at this time. Reunification has not
occurred. Neither parent has demonstrated behavior changes
indicating they can appropriately care for the boys. Further
reunification is definitely impeded by the denied home study and
[the mother’s] unwillingness to relocate to Iowa to continue with
reunification efforts. It is clear these boys need permanency. This
court finds the change in permanency goal to termination of
parental rights is appropriate and hereby adopts the same.
A termination hearing was held on November 2, 2015. The State offered
the testimony of the DHS social work case manager assigned to V.C. and J.C.
The case manager recommended the mother’s parental rights be terminated,
citing her “noncompliance and the children’s inability to be returned to her care at
this time.” The mother was present and testified on her own behalf. The juvenile
court terminated the parental rights of both the mother and father to their children
pursuant to Iowa Code sections 232.116(1)(e), (f), and (i) (2015).
The mother now appeals.
II. Standard of Review
We conduct a de novo review of proceedings terminating parental rights.
In re A.M., 843 N.W.2d 100, 110 (Iowa 2014). An order terminating parental
rights will be upheld if there is clear and convincing evidence of grounds for
termination under Iowa Code section 232.116. In re D.W., 791 N.W.2d 703, 706
(Iowa 2010). Evidence is “clear and convincing” when there are no serious or
substantial doubts as to the correctness of conclusions drawn from it. Id. We
give weight to the factual determinations of the juvenile court, particularly
7
regarding the credibility of witnesses, although we are not bound by them. Id.
The primary consideration of our review is the best interests of the child. In re
A.B., 815 N.W.2d 764, 773 (Iowa 2012).
III. Analysis
Termination of parental rights under Iowa Code chapter 232 follows a
three-step analysis. See In re P.L., 778 N.W.2d 33, 40 (Iowa 2010). First, the
court must determine if a ground for termination under section 232.116(1) has
been established. Id. Second, if a ground for termination is established, the
court must apply the framework set out in section 232.116(2) to decide if
proceeding with termination is in the best interests of the child. Id. Third, if the
statutory best-interests framework supports termination of parental rights, the
court must consider if any statutory factors set forth in section 232.116(3) should
serve to preclude termination. Id.
As noted above, the juvenile court terminated the mother’s parental rights
on three different grounds, as set forth in sections 232.116(1)(e), (f), and (i). The
mother challenges the sufficiency of the evidence to support the juvenile court’s
“clear and convincing” findings on all three grounds. When a juvenile court
terminates parental rights on more than one ground, as it has in this case, we
may affirm the order on any of the statutory grounds supported by the record.
D.W., 791 N.W.2d at 707.
Section 232.116(1)(f) provides that a juvenile court may terminate parental
rights to a child if “the court finds that all of the following have occurred”:
(1) The child is four years of age or older.
(2) The child has been adjudicated a child in need of assistance
pursuant to section 232.96.
8
(3) The child has been removed from the physical custody of the
child’s parents for at least twelve of the last eighteen months, or for
the last twelve consecutive months and any trial period at home
has been less than thirty days.
(4) There is clear and convincing evidence that at the present
time the child cannot be returned to the custody of the child’s
parents as provided in section 232.102.
The mother challenges only the final requirement for termination under
section 232.116(1)(f)—a finding by clear and convincing evidence that V.C. and
J.C. could not be returned to her custody at the time of the termination hearing.
The mother argues the children were removed from the father’s custody—not
hers—for unsafe living conditions, and the State presented no evidence her sons
would actually be unsafe in her custody, despite the denial of her home study.
She points out a series of negative drugs screens and ongoing care of an even
younger child as evidence of her suitability as a caregiver. She also claims she
“substantially complied with DHS recommendations.”
Upon our de novo review, we find the State proved by clear and
convincing evidence that V.C. and J.C. could not be returned to the mother’s
custody at the time of the November 2, 2015 termination hearing. Because the
Nebraska Department of Health and Human Services denied her home study in
April 2015, the children cannot be placed in her care in Nebraska. See Iowa
Code § 232.158(3)(d); see, e.g., In re C.L.P., No. 12-0409, 2012 WL 1454007, at
*3 (Iowa Ct. App. April 25, 2012) (“Alabama denied the mother’s home study
twice. Thus, the children cannot be placed in her care in Alabama.”). Moreover,
the mother’s claim that the State presented no evidence her sons would be
unsafe in her custody is belied by both the testimony and report of the DHS
social work case manager, who mentioned the State of Nebraska was currently
9
investigating drug use and possible drug distribution occurring in the mother’s
Nebraska home. Accordingly, termination was appropriate under section
232.116(1)(f).
We further find termination is in the best interests of the children, and no
statutory factors serve to preclude termination. The mother has been absent for
large portions of her sons’ lives, and has not consistently shown that she is
willing or able to maintain a safe and nurturing environment for them. Even after
her home study was denied and it was made clear to her V.C. and J.C. could not
be placed with her at her home in Nebraska, she chose to remain there. We
agree with the juvenile court that V.C. and J.C. deserve permanency, and in this
case termination of the mother’s parental rights is in their long-term best
interests.
AFFIRMED.
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380 F.3d 538
UNITED STATES of America, Appellee,v.Carlos LOPEZ, Defendant, Appellant.
No. 03-1767.
United States Court of Appeals, First Circuit.
Heard May 5, 2004.
Decided August 19, 2004.
Appeal from the United States District Court for the District of New Hampshire, Steven J. McAuliffe, J. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Robert O. Berger for appellant.
Carlos Lopez on brief pro se.
Mark E. Howard, Assistant U.S. Attorney, with whom Thomas P. Colantuono, United States Attorney, was on brief for appellee.
Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and LYNCH, Circuit Judge.
COFFIN, Senior Circuit Judge.
1
A jury convicted Carlos Lopez on eight criminal counts, including conspiracy to distribute cocaine base, distribution of cocaine base, and three firearms violations. On appeal, appellant raises two primary issues. First, he contends that key physical evidence, namely, a quantity of drugs and a loaded .40 caliber handgun, was obtained through an unlawful search of his vehicle. Second, appellant contests the admissibility of certain statements he made to law enforcement officers. He argues that the statements were the product of custodial interrogation that occurred after he invoked his right to counsel. Appellant also raises a series of issues relating to alleged prosecutorial vouching, the reliability of the drug dog used in the vehicle search, and the district court's denial of his motion for judgment of acquittal. Finding no infirmity in the district court's decision to admit both the physical evidence and appellant's statements, and detecting no basis for reversal or remand on any of appellant's other claims, we affirm the conviction on all counts.1
I. Factual Background
2
Acting on a tip from a confidential informant, the Drug Enforcement Administration (DEA) and local law enforcement officers in New Hampshire began surveillance of a series of arranged drug transactions between appellant and Terri Tremblay, an unwitting friend of the informant. The first such arranged buy occurred on May 11, 2001. In what would become a pattern for subsequent transactions, Tremblay met the confidential informant at a Wendy's restaurant in Portsmouth, where the informant gave Tremblay cash — serialized funds provided by the DEA — to purchase crack cocaine. Tremblay and the informant then met Lopez in the parking lot of the Beechstone Condominium complex, across the street from the Wendy's.2 Tremblay entered appellant's car and purchased crack cocaine with the serialized money. She then gave the drugs to the informant. After two such transactions in which the informant served as an intermediary between Tremblay and undercover task force officer John Perrachi, Perrachi began to arrange deals directly with Tremblay. Lopez and Tremblay were arrested on July 25, 2001, during the fifth coordinated transaction.
3
On the night of the arrest, law enforcement officers observed Tremblay drive into the Beechstone parking lot, park her car next to a Dodge minivan, exit her vehicle, and enter the minivan. Officers then converged on the minivan and arrested both appellant, who was in the driver's seat, and Tremblay, who was in the passenger seat. Tremblay and appellant were separated, and each told a different version of events to officers present at the scene. Appellant denied any knowledge regarding drugs, saying only that he met Tremblay in the parking lot because he hoped to have sex with her. Tremblay, however, wanted to cooperate and, according to law enforcement reports, explained that Lopez had brought with him a larger quantity of crack than she had been planning to purchase.
4
Because children lived in the Beechstone apartment complex, officers were particularly concerned with seizing the drugs believed to still be in the vicinity. A preliminary search of the vehicle at the scene of the arrest turned up $280 of the serialized funds (the remaining $20 was found on Tremblay's person), but, despite a drug-sniffing dog alerting three times to the passenger front seat, no drugs. A search of the surrounding wooded area and parking lot failed to yield any results. Due to poor lighting and the presence of a crowd of onlookers that had gathered around the scene, officers transported the van to the Portsmouth Police Department. Tremblay and Lopez, still separated, were also taken to the station.
5
At the station, after answering some initial questions about the registration of the van, appellant indicated he might be interested in cooperating and requested an attorney. DEA Special Agents Steven Story and Norman Houle ceased questioning appellant and returned to the van to continue the search. Appellant was left in the interview room under the supervision of Officer Brandon Drysdale.
6
While searching the van, Story located a wire leading to a locked compartment under the front passenger seat. Suspecting that the compartment contained contraband, Houle went to fetch a camera to document the compartment and its contents. En route, he briefly entered the interview room, told Lopez that he and Story had found "the stuff" and that "the deal was off." Houle left the interview room immediately after making his remark. The compartment was later found to contain sixty-three grams of crack cocaine, a loaded semi-automatic.40 caliber handgun with an obliterated serial number, and a package of photographs bearing Lopez' name.
7
At trial, Drysdale testified that, upon hearing Houle's remark, Lopez became "very sad," remarking repeatedly that he was "fucked" and that "his life was over." Lopez then asked Drysdale what would happen to a person caught possessing both a gun and drugs. Drysdale replied that it was "a bad thing."
8
Prior to trial, appellant submitted a motion to suppress the guns and drugs found in the compartment, as well as his statements to Drysdale. Appellant argued that the search of the vehicle was unreasonable, justified neither as a search incident to arrest nor under the automobile exception to the warrant requirement. He protested that his statements were made during custodial interrogation and without his having waived his Miranda rights and were thus inadmissible. After a hearing, the district court summarily denied the motion.
9
We review the district court's findings of fact with respect to a suppression motion for clear error. United States v. Infante-Ruiz, 13 F.3d 498, 501 (1st Cir.1994). As a general matter, however, we review the district court's ultimate legal determination of probable cause de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).
II. Vehicle Search
10
The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Subject to limited exceptions, warrantless searches of private property are per se unreasonable. California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991); United States v. Donlin, 982 F.2d 31, 33 (1st Cir.1992). The mobility of automobiles and the attendant need to prevent loss of evidence undergirds one such exception. A warrantless search of an automobile will be upheld if "officers have probable cause to believe that the vehicle contains contraband." United States v. Ross, 456 U.S. 798, 808, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).
11
The government bears the burden of proving the lawfulness of the search. Mincey v. Arizona, 437 U.S. 385, 390-91, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); United States v. Cruz Jimenez, 894 F.2d 1, 7 (1st Cir.1990). Specifically, the government must demonstrate that law enforcement officers had "a belief, reasonably arising out of circumstances known to the seizing officer," that the vehicle "contain[ed] that which by law is subject to seizure and destruction," Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 69 L.Ed. 543 (1925).3 Our focus is on "what the agents knew at the time they searched the car," United States v. Goldman, 41 F.3d 785, 787 (1st Cir.1994).
12
At the suppression hearing, both DEA agents and New Hampshire police officers gave consistent and detailed testimony regarding the surveilled transactions, all of which occurred in a similar manner. Officers were able to corroborate information supplied by the confidential source describing the vehicles driven by appellant, including the van used on the night of the arrest. The appellant was positively identified both by the confidential source and agents familiar with him from a prior felony conviction. Two witnesses — Officer Joslin and Agent Houle — personally observed Lopez during surveilled transactions occurring prior to the night of the arrest. Furthermore, at the scene of the arrest, Tremblay explained to officers that Lopez had in his possession a larger quantity of crack cocaine than she intended to purchase, thus leading officers to believe that a substantial amount of drugs remained in the van. Tremblay further described how, as the arrest team converged, Lopez leaned over her in the passenger seat, suggesting that appellant had either hidden or discarded the drugs. The latter possibility was of particular concern to officers given the presence of several children living in close proximity to the arrest site. Finally, a drug dog alerted aggressively in front of the passenger seat, suggesting that drugs were present but concealed.4 In short, the district court reasonably concluded that officers had probable cause to search the van.
13
Appellant nevertheless contends that, under Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), we are required to weigh the evidence of probable cause against the privacy interests of the individual whose property was subject to search. Kyllo is inapposite. In that case, the primary thrust of the court's analysis was "whether the use of a thermal-imaging device ... to detect relative amounts of heat within the home constitutes a `search' within the meaning of the Fourth Amendment." Kyllo, 533 U.S. at 29, 121 S.Ct. 2038. Nowhere does the court conduct the type of balancing suggested by appellant concerning the reasonableness of the search rather than the threshold determination of whether a search occurred.
14
Even if we were to turn to Kyllo for guidance, the recognized privacy interest is of a different caliber from that in the present case because the search there involved a home rather than a car. See New York v. Class, 475 U.S. 106, 112, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986) ("The Court has recognized that the physical characteristics of an automobile and its use result in a lessened expectation of privacy therein[.]"). Although the Supreme Court has acknowledged that the stop and search of a vehicle does present a conflict between "the individual's constitutionally protected interest in privacy and the public interest in effective law enforcement," Ross, 456 U.S. at 804, 102 S.Ct. 2157, the Court has also made clear that "[t]hese interests must yield to the authority of a search" justified by probable cause. Id. at 823, 102 S.Ct. 2157. The fact that the contraband was in a container in a locked, hidden compartment does not justify any extra measure of consideration. The Supreme Court has explicitly stated that "[t]he police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained."5 Acevedo, 500 U.S. at 580, 111 S.Ct. 1982; see also Owens, 167 F.3d at 750 ("[I]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.") (quoting Ross, 456 U.S. at 800, 102 S.Ct. 2157). Similarly, "efforts to restrict access to an area do not generate a reasonable expectation of privacy where none would otherwise exist," Class, 475 U.S. at 114, 106 S.Ct. 960.
15
The government has presented ample evidence demonstrating that law enforcement officers had probable cause to search the vehicle and the compartment. The relocation of the vehicle from the parking lot to the police station did not deprive the officers of probable cause to search. See Chambers, 399 U.S. at 52, 90 S.Ct. 1975 ("[T]he blue station wagon could have been searched on the spot.... The probable-cause factor still obtained at the station house[.]"). The district court properly denied appellant's motion to suppress the evidence discovered in the vehicle.
III. Statements Made to Law Enforcement Officers
16
Appellant next argues that the district court should have suppressed the post-arrest remarks he made to Drysdale after he learned that Houle and Story had located the hidden compartment. See supra at 5. Appellant claims that the admission of his inculpatory remarks violated his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1965). In his brief, appellant admitted that Agent Story advised him of his Miranda rights at the scene of the arrest, and that appellant affirmatively responded that he understood those rights.
17
In order for appellant to make out a claim under Miranda, however, his statements must have been the product of custodial interrogation. Id. at 444, 86 S.Ct. 1602 ("[T]he prosecution may not use statements ... stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination."). The protections of Miranda extend beyond actual questioning by the police to include the "functional equivalent" of interrogation, meaning "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).
18
Although Story and Houle did formally question appellant about the registration of the van, the agents ceased interrogation when appellant indicated he wanted to talk to his lawyer. Although Lopez remained in custody, any statement made "freely and voluntarily without any compelling influences is, of course, admissible in evidence," Miranda, 384 U.S. at 478, 86 S.Ct. 1602. See Innis, 446 U.S. at 299, 100 S.Ct. 1682.
19
We see no indication that appellant's statements stemmed from custodial interrogation or its functional equivalent. Houle's remark, although suggesting that the case against Lopez was strengthened by discovery of "the stuff," was not designed to elicit an incriminating response. Although our focus must be "primarily upon the perceptions of the suspect, rather than the intent of the police," Innis, 446 U.S. at 301, 100 S.Ct. 1682, it is difficult to see how appellant could have construed a passing remark as the functional equivalent of interrogation. Indeed, Houle left the room immediately after making the comment, signaling to appellant that no response was sought.
20
In United States v. Genao, 281 F.3d 305 (1st Cir.2002), we upheld the admission of a confession blurted out by the defendant in response to an officer's statement — in conjunction with a display of seized contraband — that "[w]e've got a problem here." See id. at 310. We reasoned that the remark was brief, not worded in a particularly confrontational manner, and, in the context of the ongoing search, intended simply to get the defendant's attention before reading him his rights. See id. at 311. Similarly, Houle's succinct remark simply highlighted information that appellant needed to know to convey to his attorney, who at that point was on his way to the station. Cf. United States v. Conley, 156 F.3d 78, 83 (1st Cir.1998) ("A law enforcement officer's mere description of the evidence and of potential charges against a suspect ... hardly can be classified as interrogatory.").
21
Because appellant's voluntary statements, though incriminating, were not the product of custodial interrogation, the district court properly denied the motion to suppress.6
IV. Alleged Prosecutorial Vouching
22
Appellant contends that remarks in the prosecutor's opening and closing statements constituted vouching for an absent witness. No objection was made at trial and thus we review only for plain error. United States v. Newton, 327 F.3d 17, 26 (1st Cir.2003).
23
The registered owner of the van, Bob Cole, was scheduled to testify on the final day of the trial. In his opening statement, the prosecutor mentioned that Cole would testify that he — Cole — never saw the van and did not have a valid driver's license. The night before his scheduled testimony, however, Cole was visited by a defense investigator. Although we do not know what was said to Cole, he was subsequently admitted to the hospital for mental health reasons and was thus unavailable. In his closing statement, the prosecutor explained to the jury that Cole didn't testify "because we've established that even though his name is on the registration, Carlos Lopez kept that van."
24
The prosecution is not permitted to "tell the jury what witnesses who did not testify would have said had they testified," United States v. Palmer, 37 F.3d 1080, 1087 (5th Cir.1994). Neither may the prosecution place the prestige of the government behind a witness nor implicitly vouch for a witness by indicating that the testimony is supported by information not presented to the jury. United States v. Martin, 815 F.2d 818, 821-22 (1st Cir.1987).
25
We discern none of the above errors in the prosecutor's closing remarks. The prosecutor did not offer any indication of the substance of what Cole would have said, but instead simply clarified that other testimony proved that Lopez controlled the vehicle. The prosecutor pointed to evidence presented to the jury — the testimony of Tremblay regarding multiple drug transactions between her and Lopez in the van, the testimony of the mechanic who performed several thousand dollars worth of work on the car at Lopez' request — that proved the same point.
V. Denial of Motion for Judgment of Acquittal
26
Appellant's final claim concerns the court's denial of his motion for judgment of acquittal under Fed.R.Crim.P. 29. Appellant's counsel did not submit a motion for acquittal following the close of the government's evidence and, when asked by the judge whether he wished to do so at the conclusion of all the evidence, expressly declined. At the sentencing hearing on May 14, 2003 — three months after the jury was discharged — appellant offered a lengthy and detailed allocution. The court treated the allocution as a Rule 29 motion for acquittal, but then denied the motion.
27
Despite the district court's lenience, we conclude that the issue was waived by the appellant's failure to comply with the procedural requirements of Rule 29, which require the motion to be made by the defendant within seven days "after a guilty verdict or the court discharges the jury, whichever is later[.]" Fed.R.Crim.P. 29(a). Although the court may also "on its own consider whether the evidence is insufficient," it must do so before submission to the jury. Fed.R.Crim.P. 29(c); see also United States v. Davis, 992 F.2d 635, 638 (6th Cir.1993) (concluding that the district court lacked authority to sua sponte enter a judgment of acquittal more than two months after the jury was discharged). We thus review appellant's claim only for "clear and gross injustice," United States v. Hadfield, 918 F.2d 987, 996 (1st Cir.1990).
28
The record fails to reveal such unfairness. We only briefly recite the case against appellant, as there is little need for more extensive analysis. Information supplied by the confidential informant was corroborated during multiple surveillance operations involving Tremblay and appellant. The testimony regarding the five surveilled drug transactions was consistent from all witnesses — including law enforcement agents, the confidential informant and Tremblay. Appellant was positively identified on multiple occasions. A hidden compartment in the van that was maintained and used by the appellant was found to contain drugs, as well as a gun with an obviously obliterated serial number, and photographs of appellant and his girlfriend, thus substantiating knowing possession. Appellant stipulated to his status as a convicted felon, thus supporting his conviction for being a felon in possession of a firearm. In short, we see no basis to disturb the verdict.7
29
Affirmed.
Notes:
1
Counsel for appellant submitted two letters pursuant to Fed. R.App. P. 28(j) in which he asserted that, underBlakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), this court should strike down the federal sentencing guidelines and remand this case. Blakely held that a sentence that was enhanced on the basis of factors found by the judge, rather than the jury, violated the defendant's constitutional right to trial by jury. The appellant in this case, however, received the minimum statutory sentence, and counsel has offered no explanation as to why Blakely would apply. The argument is thus waived. See Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 28 (1st Cir.2003) (issue deemed forfeited by failure to marshal pertinent facts or engage in reasoned analysis).
2
Out of the five arranged deals, four occurred in the parking lot of the Beechstone apartment complex; the fifth occurred in a manner similar to the other four, but on a nearby side street
3
The government makes no effort to justify the search as a search incident to arrest,see Chambers v. Maroney, 399 U.S. 42, 47, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) (acknowledging that search of an automobile occurring at a police station "some time after the arrest ... cannot be justified as a search incident to an arrest"), and thus we focus our analysis on the existence of probable cause for the search.
4
Appellant also challenges the reliability of Turbo, the drug dogSee United States v. Owens, 167 F.3d 739, 749 (1st Cir.1999) ("The existence of probable cause based on an alert by a drug dog depends on the dog's reliability."). Philip Ahlin, the dog's trained handler, testified at the suppression hearing that Turbo was certified at the time of the search and had never — in Ahlin's experience with the dog — given a false indication. Ahlin explained that, during the search, Turbo's interest was consistently focused on the front passenger seat, even when Ahlin directed Turbo to other areas of the van. Cross-examination of Ahlin in no way undermined this evidence of reliability and consistency. We defer to the district court on this matter without further explanation.
5
Appellant argues thatUnited States v. Maple, 348 F.3d 260 (D.C.Cir.2003), applies the Kyllo rationale to warrantless searches of an automobile. Maple, however, dealt with the reasonableness of a search in which there was no probable cause to suspect contraband. The appellant in that case had been stopped for speeding and subsequently arrested for driving with a suspended license. This is markedly different from the facts before us, in which law enforcement officers had a reasonable belief that appellant's vehicle contained crack cocaine.
6
After oral argument, counsel for appellant submitted a Rule 28j letter arguing that admission of appellant's remarks was barred by the Supreme Court's decision inCrawford v. Washington, ___ U.S. ___, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Crawford noted the historical roots of the requirement that "Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Id. at 1369. Neither unavailability nor absence of opportunity for prior confrontation can apply to a defendant's own remarks.
7
Appellant submitted a pro se brief in which he argued that the initial arrest warrant was not supported by probable cause. Appellant raised the issue of the validity of the arrest warrant only during his allocution at the sentencing hearing. This belated effort fails to preserve the issue for review. It arguably should have been the subject of a pretrial motion, and, at a minimum, should have been raised in the district court at trialSee Fed.R.Crim.P. 12(b)(3)(A) (requiring that a motion alleging a defect in instituting the prosecution must be made before trial); United States v. Nee, 261 F.3d 79, 86-87 (1st Cir.2001)("`Arguments not raised below will be entertained on appeal only in horrendous cases where a gross miscarriage of justice would occur and, in addition, where the newly asserted ground is so compelling as virtually to insure appellant's success.'")(quoting United States v. Haggert, 980 F.2d 8, 11 (1st Cir.1992)). In any event, the argument is utterly without merit, whether it was forfeiture or not.
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129 F.3d 1268
NOTICE: 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.Steve RICHARDSON, Plaintiff-Appellant,v.TURTLE WAX INCORPORATED, Defendant-Appellee.
No. 97-1263.
United States Court of Appeals, Seventh Circuit.
Oct. 28, 1997.*
1
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
Hon. Richard A. Posner, Chief Judge
Hon. William J. Bauer, Chief Judge
Hon. Terence T. Evans, Circuit Judge
ORDER
ZAGEL
2
Steve Richardson, an African-American male, sued Turtle Wax for racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.SC. § 2000e et seq. The district court granted Turtle Wax's motion for summary judgment, stating that Richardson failed to establish a prima facie case of racial discrimination and did not show that Turtle Wax's articulated legitimate nondiscriminatory reason for terminating Richardson was pretextual. Richardson appealed the decision of the district court claiming that he was treated differently than a similarly-situated Caucasian employee. We affirm.
3
Richardson had worked as a fork lift operator for Turtle Wax for over five years, during which time he accumulated numerous warnings and suspensions under Turtle Wax's Attendance, Tardiness, Leave Early (ATL) policy. Under the ATL policy, anyone who has an unreported, unexcused absence will be assessed three points. Turtle Wax terminates any employee who accumulates nineteen points. On April 20, 1993, Richardson did not report to work and did not call Turtle Wax. Therefore, Richardson was assessed three points for his unreported, unexcused absence. When added to the points he had previously accumulated for absences and tardies, it brought his total to nineteen and a half points. On April 26, 1993, Richardson reported to work with a physician's note dated April 23, 1993. This note did not reference the April 20, 1993 absence. On April 26, Turtle Wax terminated him for accumulating nineteen points under the ATL policy.
4
Richardson subsequently submitted to Turtle Wax a second doctor's note dated May 4, 1993, which stated that Richardson was under doctor's care on April 20, 1993. On May 9, 1993, after verifying the physician's note, Turtle Wax called Richardson to advise him to report to work on May 10, 1993. On May 10, 1993, Richardson reported to work and was given written notice stating that he was reinstated with no loss of rights, privileges, or seniority; that his ATL record would be adjusted to reflect a penalty of two, rather than three, points for the April 20, 1993, unreported, excused absence; and that his total accumulated points would be reduced to eighteen and a half Richardson was also informed there would be no back pay for the period April 26, 1993 to May 10, 1993. On May 11, 1993 Richardson resigned.
5
These facts are uncontested. The basis of Richardson's complaint is that he was treated differently than Thomas McCarthy, a similarly-situated Caucasian employee of Turtle Wax. On January 24, 1992, McCarthy was absent, but called to inform Turtle Wax he would be unable to report to work. McCarthy was allowed to return to work on January 27, 1992, without producing a physician's note until the following day. After returning to work, McCarthy submitted a doctor's note excusing him from work on January 24, 1992 and January 27-28, 1992. Consequently, McCarthy was assessed one point for his reported, excused absence, which brought his total under the ATL policy to eighteen and a half points. On February 26, 1992, McCarthy had a reported, unexcused absence for which two points were assessed, bringing his total under the ATL policy to twenty and a half points. On February 27, 1992, Turtle Wax terminated McCarthy for accumulating more than nineteen points under the ATL program. The district court, attributing the difference in treatment to the fact that McCarthy reported his absence while Richardson did not, granted Turtle Wax's summary judgement motion because Richardson failed to establish a prima facie case of discrimination.
6
We review the district court's granting of summary judgement de novo, viewing all evidence and reasonable inferences in the light most favorable to the plaintiff. See Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343, 346 (7th Cir.1997). Additionally, since Richardson is proceeding pro se we must construe his complaint liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972). In order to establish a prima facie case of racial discrimination under Title VII of the Civil Rights Act of 1964, Richardson must show that (1) he is a member of a protected group, (2) he was performing up to his employer's legitimate standards, (3) that he was discharged, and (4) that other similarly-situated employees outside his race were treated more favorably. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Cowan v. Glenbrook Security Services, Inc., 123 F.3d 438, No. 96-3897, 1997 WL 409404, at * 6 (7th Cir. July 23, 1997).
7
Richardson is African-American and therefore a member of a protected group. Additionally, since he was employed for over five years, we can assume, for the purposes of this appeal, that he was performing up to his employer's legitimate standards. Richardson meets the first two prongs of the McDonnell Douglas test.
8
However, he fails to establish the third prong--that he was discharged. Richardson claims that his resignation from Turtle Wax amounted to constructive discharge. "To state a claim for constructive discharge, a plaintiff needs to show that his working conditions were so intolerable that a reasonable person would have been compelled to resign." Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir.1996). Richardson must show that his working conditions were more than merely intolerable; the conditions must have been intolerable in a discriminatory way. See Rabinovitz, 89 F.3d at 489; Chambers v. American Trans Air, Inc., 17 F.3d 998, 1005 (7th Cir.1994). Additionally, an employee must seek redress while remaining in his job unless confronted with an aggravating situation beyond ordinary discrimination. See Rabinovitz, 89 F.3d at 489.
9
The intolerable conditions which underlay Richardson's claim are his reinstatement with just a half point until termination and the fact that he was reinstated without back-pay. Even though Richardson was only a half point away from termination, the ATL policy subtracts three points from an employee's total if that employee is not absent, tardy, or does not leave early for sixty days. All Richardson was required to do, something he had done at least eighteen times in the past, was comply with company policy for sixty days. Contrary to Richardson's assertion that the work environment had become a "hassle," being forced to comply with company policy for sixty days does not constitute an intolerable working condition. See id. (employee must not be unreasonably sensitive to work environment) Nor is the failure to assign back pay to Richardson an intolerable working condition. See Chambers, 17 F.3d at 1005 (failure to authorize pay raise is not an intolerable working condition). Richardson did not bring Turtle Wax a doctor's note for his April 20th absence until early May. Even if the failure to give back-pay was an intolerable working condition, Richardson was not confronted with an aggravating situation beyond ordinary discrimination and should have remained on the job. Instead, Richardson resigned on May 11, 1993. Richardson does not establish he was constructively discharged and, therefore, his claim fails to establish a prima facie case
10
We add that Richardson also does not establish a prima facie case under the fourth prong of the test--that he was treated less favorably than other similarly situated non African-American employees. Richardson claims that McCarthy was allowed to submit a physician's note after his absence and thereby lower the number of points assessed and avoid termination. However, Richardson was also permitted to lower his total number of points and avoid termination. Upon receiving a physician's note, two weeks after the unreported absence, Turtle Wax adjusted Richardson's ATL point total to reflect his now unreported, excused absence and thereby avoid termination.
11
Even assuming McCarthy had been allowed to return to work on January 27, 1992 without a physician's note, Richardson does not establish a prima facie case. McCarthy informed Turtle Wax ahead of time that he would be unable to report to work on the 24th. By contrast, not only did Richardson fail to inform Turtle Wax that he would not report to work, but when he did show up the following scheduled work day, he brought a physician's note which did not excuse him for the day in question. Both McCarthy and Richardson were assessed points for excused absences in standard practice with the ATL policy. The difference in point totals resulted from Richardson's failure to report his absence, not racial discrimination. Richardson fails to assert any meaningful difference in treatment between him and McCarthy.
12
Finally, Richardson's additional claims are raised for the first time on appeal. As such, they are waived and need not be considered. See, e.g., McKinney v. Indiana Michigan Power Co., 113 F3d 770, 773 (7th Cir.1997) (arguments raised for the first time on appeal are waived); Edward E. Gillen Co. v. City of Lake Forest, 3 F.3d 192, 196 (7th Cir.1993) ("Having forsaken the opportunity to articulate that argument ... [Richardson] waived it ...")
13
Since Robinson does not establish a prima facie case of racial discrimination, it is unnecessary to apply the remainder of the burden-shifting analysis of McDonnell Douglas.
14
AFFIRMED.
*
After an examination of the briefs and the record, we have concluded that oral argument is unnecessary, and the appeal is submitted on the briefs and record. See Fed. R.App. P. 34(a); Cir. R. 34(f)
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673 So.2d 938 (1996)
Iris PEREZ, Appellant,
v.
PUBLIX SUPERMARKETS, INC., a Florida Corporation, Appellee.
No. 96-3.
District Court of Appeal of Florida, Third District.
May 22, 1996.
*939 L. Barry Keyfetz, Miami, for appellant.
Pyszka, Kessler, Massey, Weldon, Catri, Holton & Douberley and William M. Douberley, Miami, for appellee.
Before BARKDULL, GREEN and FLETCHER, JJ.
BARKDULL, Judge.
Iris Perez was an employee of the defendant, Publix Supermarkets. On the day in question, after she had clocked out and while on her way out of the store, she allegedly slipped on some water and was injured. As the employer, Publix provided workers' compensation benefits.
Perez brought an action for negligence against Publix. Publix moved for summary judgment on the grounds that the accident was covered by workers' compensation, which is her exclusive remedy, making Publix immune from suit. In response to this motion for summary judgment, Perez claimed that the substantial amendments to the workers' compensation act enacted by the 1993 Legislature changed the former statutory and case law which would have made her on-premises injury compensable. The trial court granted Publix's motion for summary judgment, holding that workers' compensation was Perez's exclusive remedy. We affirm.
Prior to the 1993 amendments, which became effective January 1, 1994, Perez's injury would have been compensable under the "premises rule" exception to the "coming and going rule." Section 440.09 of the Florida Statutes provided that compensation shall be payable to an employee for disability or death arising out of and in the course of employment. Under pre-1994 law, the phrase "arising out of" was not defined. However, the Florida courts held that the phrase included injuries occurring during a reasonable period of time before and after official working hours as long as the employee remained on the premises. See e.g. City of St. Petersburg v. Cashman, 71 So.2d 733 (Fla.1954); Winn-Dixie Stores, Inc. v. Akin, 533 So.2d 829 (Fla. 4th DCA 1988), rev. denied, 542 So.2d 988 (Fla.1989); Doctor's Business Service, Inc. v. Clark, 498 So.2d 659 (Fla. 1st DCA 1986), rev. denied, 506 So.2d 1041 (Fla.1987); Johns v. State, Dept. of Health and Rehabilitative Services, 485 So.2d 857 (Fla. 1st DCA 1986), rev. denied, 492 So.2d 1333 (Fla.1986). Section 440.11 of the Florida Statutes grants immunity to employers where the injury or death is covered by workers' compensation.
In 1993, the Legislature amended the workers' compensation law to require occupational causation, and provided a new section, 440.02(32) defining "arising out of." The definition provides,
"Arising out of" pertains to occupational causation. An accidental injury or death arises out of employment if work performed in the course and scope of employment is the major contributing cause of the injury or death.
§ 440.02(32) Fla.Stat. (1995). Perez contends that the amendments were intended to narrow the scope of compensable injuries by requiring occupational causation, thus allowing her to maintain a lawsuit, in tort, against her employer. Publix argues, however, that such a construction would allow employees "to bring suit against their employers for injuries they have suffered during work hours, while they are on the employers' premises, but when they are not literally working." Vigliotti v. K-Mart Corp., 21 Fla.L.Weekly D957, ___ So.2d ___ [1996 WL 106606] (Fla. 1st DCA 1996). This would broaden the potential tort liability for every employer in Florida and would contravene the legislative intent to ensure the efficient benefits provided to an injured worker by the workers' compensation laws. Vigliotti, supra. We agree with Publix and with the First District in Vigliotti, that there is nothing "in the extensive revisions to the workers' compensation law to indicate the Legislature intended to broaden tort liability of employers" as a solution to the workers' compensation crisis. Vigliotti, at 958, ___ So.2d at ___.
In addition to the determination of whether an injury was suffered in the course and scope of employment, the enactment of the new statutory definition requires a claimant to show that the employment constituted a major contributing cause of the accident or *940 injury. See Hernando County School Bd. v. Dokoupil, 667 So.2d 275 (Fla. 1st DCA 1995). Travelling to and from work is essential to the performance of an employee's duties and is reasonably necessary for that purpose.[1] Therefore, Perez suffered an injury in the course and scope of her employment with Publix when she slipped and fell on her way out of the store after the end of her shift. We find that her actions in leaving the store at the end of the day constituted a major contributing cause of the accident or injury. But for her movement, this injury would not have occurred. Accordingly, we find that Perez's exclusive remedy is through workers' compensation and affirm the trial court's order granting summary judgment in favor of the employer-defendant, Publix.
Affirmed.
NOTES
[1] City of St. Petersburg v. Cashman, 71 So.2d 733 (Fla.1954) (An injury is deemed to have occurred in the course of employment if it is sustained by a workman, on an employer's premises while preparing to begin a day's work or while doing other acts which are preparatory or incidental to performance of his duties, and which are reasonably necessary for such purpose.); Doctor's Business Service, Inc. v. Clark, 498 So.2d 659 (Fla. 1st DCA 1986), rev. denied, 506 So.2d 1041 (Fla. 1987) (The course of employment, for employees having a fixed time and place of work, embraces a reasonable interval before and after working hours while the employee is on the premises engaged in preparatory or incidental acts.); Johns v. State, Dept. of Health and Rehabilitative Services, 485 So.2d 857 (Fla. 1st DCA 1986), rev. denied, 492 So.2d 1333 (Fla.1986) (An employee going to and from work while on the premises where his work is to be performed and within a reasonable time before and after working hours is presumed to be in the course and scope of his employment.).
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EARNEST E. HALL, JR.; JEAN T. HALL,
Plaintiffs-Appellees,
v. No. 95-1359
WALTER W. DAVENPORT,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Lynchburg.
Jackson L. Kiser, Chief District Judge.
(MC-94-7-L, BK-88-1156)
Argued: December 7, 1995
Decided: January 30, 1996
Before HALL and HAMILTON, Circuit Judges, and
THORNBURG, United States District Court Judge for the Western
District of North Carolina, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: John Leyburn Mosby, Jr., J. LEYBURN MOSBY, JR.,
P.C., Lynchburg, Virginia, for Appellant. Stephen Alan Chaplin,
CHAPLIN, PAPA & GONET, Richmond, Virginia, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
In November 1970, defendant Walter W. Davenport and wife pur-
ported to convey to plaintiffs by warranty deed a tract of land contain-
ing 120.7 acres. In 1987, the commissioner in chancery for Circuit
Court of the County of Cumberland, Virginia, determined that the
defendant was seized of only a one-half interest in the subject prop-
erty at the time of conveyance. This determination was affirmed by
the Circuit Court of the County of Cumberland, Virginia, in the same
cause. Plaintiffs then demanded judgment for $6,250 (one-half of the
purchase price) plus interest and costs.
In October 1988, before conclusion of plaintiffs' action, defendant
Davenport filed a Chapter 7 voluntary petition in bankruptcy in the
United States Bankruptcy Court for the Western District of Virginia
listing plaintiffs' claim of $6,250 as disputed. On January 30, 1989,
plaintiffs filed a complaint to determine the dischargeability of debts
pursuant to 11 U.S.C. § 523(a)(2)(A). In the"dischargeability" action,
plaintiffs sought recovery of $6,250, plus interest, costs, and attorneys
fees, as well as punitive damages for breach of fiduciary duty and
fraud. On December 21, 1989, the bankruptcy judge in a memoran-
dum opinion found the defendant acted fraudulently when he con-
veyed the property to the Halls. "Thus, the debt owed to them of
$6,250 plus interest is nondischargeable." By Order of the same date
it was, "Adjudged and Ordered that the debt of $6,250 plus interest
at the legal rate from November 10, 1970 is nondischargeable pursu-
ant to 11 U.S.C. § 523(a)(2)(A)."
The foregoing order was filed as a judgment lien in the Circuit
Court of Cumberland County, Virginia, on March 15, 1993.
In 1994, defendant filed in the Circuit Court for the County of
Cumberland, Virginia, a bill to remove cloud on title to real estate and
2
for declaratory judgment striking the bankruptcy court order and
declaring any resulting lien to be invalid. The bill also correctly
alleged that the proceeds from a land sale by defendant in the amount
of $40,000 was being held in escrow by Southern Title Insurance
Company pending final determination of lien status. After a Decem-
ber 1, 1994, hearing on the bill, the Circuit Court judge for the County
of Cumberland, Virginia, entered an order on December 31, 1994, as
follows:
[The order of the Bankruptcy Court Judge] is not a money
judgment and not a lien upon any real property formerly,
now or hereafter, owned by Walter W. Davenport.
It is further ordered that this cause is stricken from the
docket.
Based on the bankruptcy court order however, on December 19,
1994, the Clerk of the United States District Court for the Western
District of Virginia, Lynchburg Division, had issued a garnishment
summons to Southern Title Insurance Corporation, garnishee, for
judgment principal in the amount of $6,250, interest in the amount of
$13,544.50, and judgment costs of $120, for a total of $19,914.50.
After hearing on motion to quash garnishment filed by the defen-
dant, the Chief Judge for the United States District Court for the
Western District of Virginia, Lynchburg Division, found the bank-
ruptcy court's order of December 21, 1989, to be a judgment for the
payment of money sufficient to invoke Rule 69(a) of the Federal
Rules of Civil Procedure, and ordered that the motion to quash gar-
nishment summons be denied. From this order of February 13, 1995,
the defendant appeals. For the reasons set forth below, we affirm the
district court.
I.
This court will first address the plaintiffs-appellees' contention that
the district court order of February 13, 1995, was not a final order
from which an appeal could be taken; and therefore, that this court
has no jurisdiction to consider the lower court's ruling. This conten-
tion is without merit.
3
The order of the district court entered February 13, 1995, finally
disposes of all matters in controversy to be adjudicated between the
parties. 28 U.S.C. § 1291; United States v. al Con Dev. Corp., 271
F.2d 901 (4th Cir. 1959). The order "disposes of the whole subject,
gives all the relief contemplated, provides with reasonable complete-
ness for giving effect to the [judgment order of the bankruptcy court],
and leaves nothing to be done in the cause save to superintend minis-
terially the execution of the order." Burns v. Equitable Ass'n, 265
S.E.2d 737, 742 (Va. 1980).
On March 31, 1995, the district court did in fact enter two addi-
tional orders relating to this case. The first March 31 order was sim-
ply an order of garnishment entered by the court pursuant to its final
order determining that garnishment summons was valid. The second
March 31 order, agreed to by the parties, stayed execution of the gar-
nishment order pending a decision by this court. The two orders
entered by the district court on March 31, 1995, did nothing more
than "superintend ministerially the execution of the [February 13,
1995] order." Id. For this court to rule that either March 31 order was
the "final decision" from which the appeal should have been taken
would represent a technical approach to finality and ignore the practi-
cal effect and substance of the lower court's February 13, 1995, rul-
ing.
II.
We next address the defendant-appellant's contention that the dis-
trict court was bound by the decision of the Circuit Court for the
County of Cumberland, Virginia, which held that the order of the
bankruptcy court judge was not a money judgment and, therefore, not
enforceable against the defendant.
In support of this contention, defendant relies on 28 U.S.C. § 1738
which provides that state "judicial proceedings .. . shall have the
same full faith and credit in every court within the United States . . .
as they have by law or usage in the courts of such state. . . ." In short,
defendant contends the state circuit court order is entitled to full faith
and credit by the federal district court. To further support his conten-
tion that this case is controlled by the full faith and credit doctrine,
defendant cites a variety of state and federal cases dealing with its
4
application. Suffice it to say that neither cited authority supports a
state court's right to void the enforcement of the final judgment of a
federal court.
In voicing his contention, defendant ignores the significance and
consequences of the federal bankruptcy court order of December 21,
1989, which "Adjudged and Ordered that the debt of $6,250 plus
interest at the legal rate from November 10, 1970," was due and
owing to plaintiffs. As concluded by the district court, this order con-
stituted an enforceable "judgment for the payment of money" entered
by a federal court. Therefore, under Rule 69(a), the federal district
court could and should enforce the judgment. The fact that the order
lacked the word "judgment" and may not have complied with Virginia
code provisions relating to recordation, Va. Code Ann. § 8.01-446 or
§ 8.01-466, did not oust a federal court's jurisdiction to enforce its
own judgments. Duchek v. Jacobi, 646 F.2d 415, 418-19 (9th Cir.
1981). The fact that the bankruptcy court order had initially been
docketed in Cumberland County, Virginia, and was later stricken, did
not preclude the supplementary proceedings initiated by plaintiffs in
federal district court in aid of execution of that order. Meridian
Investing & Dev. Corp. v. Suncoast Highland Corp. , 628 F.2d 370,
372 (5th Cir. 1980); Atlantic Purchasers, Inc. v. Aircraft Sales, Inc.,
101 F.R.D. 779, 782 (W.D.N.C. 1984); 12 Wright & Miller, Federal
Practice and Procedure, § 3013. Nor is there reason to doubt that
bankruptcy courts have the authority to enter money judgments. In re
Harris, 162 B.R. 466, 468-69 (E.D. Va. 1993). The order uses the
word "adjudged." Adjudge means, in the context of the order, "to pass
on judicially, to decide, settle or decree . . .[the] judgment of a court
of competent jurisdiction. Implies a judicial determination of a fact,
and the entry of a judgment." Black's Law Dictionary 42 (6th ed.
1990). The order also names the parties, recites the amount of the
obligation and refers to it as Davenport's "debt," recites the interest
rate and date from which interest is due, and declares the debt to be
nondischargeable. Surely to be nondischargeable, the court must have
found a debt to be due and owing. All of these indicia support the
lower court's ruling that a final judgment has been entered. Further
help may be garnered by reference to Rule 54(a) of the Federal Rules
of Civil Procedure which defines judgment as "a decree and any order
from which an appeal lies." Obviously, the December 21, 1989, order
5
of the bankruptcy court could have been appealed to the district court,
thus bringing the order within the rule's definition of judgment.
As observed in the opening paragraph of this opinion, the case had
its genesis in the warranted transfer of title to real property 25 years
ago. The title was defective and so declared by court order in 1987.
Defendant's actions relating to the land transaction were found to be
fraudulent by the bankruptcy court in 1989. The defendant has consis-
tently refused to compensate plaintiffs for his wrongful act. The mat-
ter should be laid to rest. While the bankruptcy court's order could
have been stated with more clarity, its intent is obvious. A money
judgment was awarded plaintiffs. Therefore, the district court was
correct in making that determination.
AFFIRMED
6
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942 F.2d 726
60 USLW 2176, Fed. Sec. L. Rep. P 96,201,21 Fed.R.Serv.3d 623
FIRST GOLDEN BANCORPORATION, Plaintiff,v.Ronald F. WEISZMANN, Defendant, Third-Party Plaintiff and Appellant,v.MORGAN STANLEY & CO., INCORPORATED, A Delaware Corporation;Timothy Taebel and Lindner Management, Third-PartyDefendants and Appellees.
No. 89-1377.
United States Court of Appeals,Tenth Circuit.
Aug. 15, 1991.
Timothy J. Flanagan of Kelly, Stansfield & O'Donnell, Denver, Colo. (Robert J. Eber, with him on the brief), for defendant, third-party plaintiff and appellant.
Edward W. Stern of Parcel, Mauro, Hultin & Spaanstra, P.C., Denver, Colo. (Cheryl Burnside with him on the brief), for third-party defendants and appellees Morgan Stanley & Co. Inc. and Timothy Taebel.
Charles E. Merrill of Husch, Eppenberber, Donohue, Cornfeld & Jenkins, St. Louis, Mo., for third-party defendant and appellee Lindner Management Corp.
Before ANDERSON, BALDOCK and EBEL, Circuit Judges.
EBEL, Circuit Judge.
1
This is an appeal from the district court's order granting summary judgment to the appellees, third-party defendants in the action below. The third-party defendants were impleaded under Fed.R.Civ.P. 14(a) after the appellant, the third-party plaintiff, was made a defendant in a suit to recover short-swing profits under section 16(b) of the Securities Exchange Act of 1934 (codified at 15 U.S.C. § 78p(b)). The primary case settled. The district court than granted summary judgment in favor of the third-party defendants on all the third-party claims. This appeal followed. We affirm in part and vacate and remand in part.
FACTS
2
Appellant in this case, Ronald Weiszmann, was the third party-plaintiff in the action below. He had acquired stock in First Golden Bancorporation, the original plaintiff, as a result of a tender offer he had made for First Golden Stock. He ultimately sold his First Golden stock, and First Golden alleged that the sale was within six months of the time he acquired it, thus, making Weiszmann liable under section 16(b) of the Securities Exchange Act of 1934 for the profits from the sale. First Golden sued Weiszmann to recover the resultant short-swing profit. Weiszmann, in turn, brought counterclaims against First Golden and initiated a third-party complaint against the appellees: Morgan Stanley and its representative Timothy Taebel, who acted as Weiszmann's financial advisor during the course of the section 16(b) violation, and Lindner Management, the eventual purchaser of the stock. His third-party complaint was based on seven different claims: 1) indemnity; 2) outrageous conduct; 3) breach of contract; 4) fraud under section 10(b) of the Securities Exchange Act of 1934; 5) controlling person liability; 6) principal-agent liability; and 7) negligent misrepresentation. The relief he sought in the third-party complaint was, inter alia, indemnification for any liability he may have to First Golden, reimbursement of attorneys' fees and costs incurred to defend that lawsuit, and a recovery of commissions and profit realized by Morgan Stanley from the sale of the stock.
3
Claims two and three of the third-party complaint--claims for outrageous conduct and breach of contract--were eventually dismissed by the district court,1 and the case was set for trial. Thereafter, First Golden and Weiszmann settled the primary lawsuit on terms that Weiszmann did not pay any money to First Golden but he was required to dismiss his counterclaims against First Golden. The third-party defendants then moved for summary judgment on all of Weiszmann's remaining third-party claims. The district court granted the summary judgment motion and dismissed all the third-party claims with prejudice. The court dismissed Weiszmann's first claim for indemnity because it held, as a matter of law, that there was no right to indemnity for liability under section 16(b) of the Securities Exchange Act of 1934. The court dismissed the remaining third-party claims because it held that Weiszmann had settled First Golden's claims against him without incurring any liability or paying any damages to First Golden, and thus, there was no underlying liability upon which Weiszmann could predicate third-party claims under Fed.R.Civ.P. 14(a). The court indicated that a third-party action can be maintained under Rule 14(a) only for claims where the third-party defendant is asserted to be secondarily liable to the third-party plaintiff for the third-party plaintiff's liability to the plaintiff.
ANALYSIS
4
I. No Indemnity For Section 16(b) Violations
5
We agree with the district court that the third-party defendants were "entitled to judgment as a matter of law on Weiszmann's first claim for indemnity." Courts have rejected indemnity for a variety of securities violations because indemnity contravened "the public policy enunciated by the federal securities laws." A. Bromberg & L. Lowenfels, 2 Securities Fraud & Commodities Fraud, § 5.7 (277), at 5:82:78. See also King v. Gibbs, 876 F.2d 1275, 1281-82 (7th Cir.1989); Stewart v. American Int'l. Oil & Gas Co., 845 F.2d 196, 200 (9th Cir.1988); Stowell v. Ted S. Finkel Inv. Servs., 641 F.2d 323, 325 (5th Cir.1981); Laventhol, Krekstein, Horwath & Horwath v. Horwitch, 637 F.2d 672, 676 (9th Cir.1980), cert. denied, sub nom., Frank v. U.S. Trust Co. of New York, 452 U.S. 963, 101 S.Ct. 3114, 69 L.Ed.2d 975 (1981); Globus v. Law Research Serv., 418 F.2d 1276, 1288-89 (2d Cir.1969), cert. denied, 397 U.S. 913, 90 S.Ct. 913, 25 L.Ed.2d 93 (1970); Alvarado Partners, L.P. v. Mehta, 723 F.Supp. 540, 549 (D.Colo.1989), dismissed without opinion, 936 F.2d 582, (10th Cir.) (appeal dismissed as moot). Thus, one court has explained that
6
"Congress did not promulgate the 1933 and 1934 Acts to protect the parties who violate the Acts' provisions. In fact, the immediate concern of Congress was not to insure that parties injured by fraudulent activities were reimbursed but rather was to prevent future fraudulent activity. The United States in 1933 and 1934 was in the midst of a prolonged period of depression which Congress believed was caused in large part by excessive stock market speculation. Congress imposed civil liability on offenders of the Acts because experience had shown that criminal liability alone was insufficient to deter further wrongdoing. Some courts that have interpreted the 1933 and 1934 Acts have already concluded that providing a right to indemnity would undermine the deterrent purpose of the Acts."
7
In re Olympia Brewing Co. Securities Litig., 674 F.Supp. 597, 612-13 (N.D.Ill.1987) (citations omitted).
8
We find that these general concerns are also applicable to indemnification in section 16(b) cases, even though section 16(b) does not require proof of fraudulent intent. Section 16(b) is a prophylactic anti-fraud statute. The policy behind section 16(b) was to deter transactions which have a high potential for fraud. However, Congress determined that it was not practical to require proof of improper intent or scienter in cases of insider trading, and thus, section 16(b) was written to impose strict liability. That Congress felt the most effective way to deter fraud in this area was through use of strict liability does not, however, minimize the purpose behind the statute to prevent fraudulent trading based upon improper insider information or manipulation.
In relevant part, section 16(b) reads:
9
For the purpose of preventing the unfair use of information which may have been obtained by such beneficial owner, director, or officer by reason of his relationship to the issuer, any profit realized by him from any purchase and sale, or any sale and purchase, of any equity security of such issuer (other than an exempted security) within any period of less than six months, unless such security was acquired in good faith in connection with a debt previously contracted, shall inure to and be recoverable by the issuer, irrespective of any intention on the part of such beneficial owner, director, or officer in entering into such transaction of holding the security purchased or of not repurchasing the security sold for a period exceeding six months.
10
The statute does not require proof that the trading information was improperly obtained; it is enough to prove an insider relationship which gives rise to the potential that improper information "may have been obtained" and utilized in the trade. We find a "clear congressional intent to provide a catch-all, prophylactic remedy, not requiring proof of actual misconduct...." L. Hazen, The Law of Securities Regulation, § 12.3, at 417 (1985) (citing, Hearings on S.Res. 84 & S.Res. 97 Before The Senate Comm. on Banking and Currency, 73d Cong., 1st Sess., pt. 15, at 6557 (1934)). Thus, we hold that the public policy behind section 16(b) renders invalid any attempt by an insider to seek indemnification for his liability under section 16(b).2
11
There is support for our holding. In Bunker Ramo-Eltra Corp. v. Fairchild Indus., 639 F.Supp. 409, 419 (D.Md.1986), dismissed without opinion, 801 F.2d 393 (4th Cir.1986) (dismissed for lack of a final appealable order), the court found that an indemnification agreement was void because if the "indemnification is found to be valid, then the defendants would have been able to waive, in effect, the requirement of section 16(b).... This result would frustrate the public policy behind the prohibition of insider trading within the six-month time period found in section 16(b)."
II. The Remaining Third-Party Claims
12
Weiszmann also contests the granting of summary judgment on the rest of his third-party claims following the district court's dismissal of his first claim for indemnity. These claims, numbered four through seven, asserted section 10(b) liability, controlling person liability, principle-agent liability, and negligent misrepresentation. The relief requested included indemnification and recovery of Morgan Stanley's profits and commissions. These claims were dismissed with prejudice once summary judgment was granted on the first claim for indemnity.
13
The district court treated these claims as if they were all claims for reimbursement for damages stemming from liability that Weiszmann might have to First Golden. The court dismissed them because it concluded that Weiszmann had incurred no liability to First Golden, and thus, there was no underlying liability to be shifted to the third-party defendants under rule 14(a).3 At the very least, the district court appears to have given inadequate consideration to the possibility that some or all of Weiszmann's remaining claims may have been ancillary claims under Fed.R.Civ.P. 18(a). The district court possessed the discretion to retain jurisdiction over ancillary claims even though the main third-party claim for indemnity had been dismissed.
14
We find our recent opinion in King Fisher Marine Service, Inc. v. 21st Phoenix Corp., 893 F.2d 1155, 1166-72 (10th Cir.1990), particularly helpful to this analysis. In King Fisher a contractor sued a development company in federal court on diversity grounds. That defendant impleaded under Rule 14(a) the contract supervisor, who was non-diverse from the defendant. The defendant also asserted against the third-party defendant various other damage claims in its third-party action. These claims, although related to the transaction involved in the 14(a) claim, were not claims for "liability over" but were, instead, separate claims for damages. We affirmed the jurisdiction of the district court under Fed.R.Civ.P. 18(a) to hear the additional third-party claims so long as the ancillary claims arose out of the same transaction or occurrence as the initial claim for liability. King Fisher, 893 F.2d at 1171. Many other courts have come to the same conclusion. See United States v. City of Twin Falls, 806 F.2d 862, 866-68 (9th Cir.1986), cert. denied, 482 U.S. 914, 107 S.Ct. 3185, 96 L.Ed.2d 674 (1987); Nishimatsu Constr. Co., Ltd. v. Houston Nat'l. Bank, 515 F.2d 1200, 1204-1205 & n. 2 (5th Cir.1975); In re Citisource, Inc. Securities Litig. v. City of New York, 694 F.Supp. 1069, 1084 (S.D.N.Y.1988).
15
In the instant case, the district court had jurisdiction over Weiszmann's Rule 14(a) claim even though Weiszmann ultimately lost that claim on the merits. Rule 14(a) reads in relevant part:
16
At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff.
17
Fed.R.Civ.P. 14(a) (emphasis added). Thus, once Weiszmann was sued by First Golden, Rule 14(a) allowed him to bring an impleader action against the third-party defendants who might have been liable to him. So long as the Rule 14(a) claim is not a sham, the district court has jurisdiction over the claim even if the third-party claimant does not prevail on the claim.
18
Having brought a proper third-party claim, Rule 18(a) then allowed Weiszmann to join "either as independent or as alternative claims, as many claims, legal, equitable, or maritime, as the party has against an opposing party." Fed.R.Civ.P. 18(a). To the extent that Weiszmann has included non-indemnity claims against the third-party defendants, they are properly considered ancillary claims under Rule 18(a).
19
The fact that the main claim between First Golden and Weiszmann thereafter settled does not necessarily defeat jurisdiction of the district court over the third-party claims. When the main claim disappears, either through settlement or otherwise,
20
[t]he vast majority of the cases conclude that the court retains jurisdiction over the impleader claim, and has discretion to proceed to litigate it. In determining how to proceed, the court may be influenced by timing. If the underlying suit is resolved quite early in the proceedings ... the timing may augur toward dismissal of the impleader claim. If, on the other hand, the underlying claim is resolved after the case has been pending for some considerable time, or if the statute of limitations will have run ... the court should retain jurisdiction....
21
3 Moore's Federal Practice p 14.26 at 14-126 (footnote omitted). This court has stated that " 'if jurisdictional prerequisites are satisfied when the suit is begun, subsequent events will not work an ouster of jurisdiction.' " King Fisher, 893 F.2d at 1172 (citing Dery v. Wyer, 265 F.2d 804, 808 (2d Cir.1959)).
22
Indeed, even if both the primary lawsuit and that portion of the third-party suit that seeks liability under Rule 14(a) are extinguished, any remaining third-party claims that were properly ancillary to the original Rule 14(a) claim may, at the discretion of the district court, be retained for disposition. In re Citisource, 694 F.Supp. at 1084. Although there may ordinarily be a reluctance to retain such ancillary claims once the primary indemnity claim is gone, there may be special circumstances that would persuade the district court to exercise its discretion to retain jurisdiction over the ancillary claims including, for example, if the district court has invested substantial time in preparing those claims for trial or if there would be statute of limitation problems if such claims are dismissed.
23
Here, we find ambiguity in the district court's holding that because the third party's "motion for summary judgment is granted as to Weiszmann's first claim for indemnity, Weiszmann's remaining third party claims, based solely on Fed.R.Civ.P. 14(a), fall as a matter of law." Dist.Ct.Order at 5 (emphasis added). If by this statement the district court meant that, under the Federal Rules of Civil Procedure, a granting of summary judgment on the first claim for indemnity required dismissal of the other third-party claims, that would constitute error. However, to the extent that the remaining third-party claims were in reality just disguised indemnity claims for a section 16(b) violation, it would have been appropriate to dismiss them with prejudice. See, e.g., Goldberg v. Touche Ross & Co., 531 F.Supp. 86, 87 (S.D.N.Y 1982); Greene v. Emersons, Ltd., Fed.Sec.L.Rep. (CCH) p 99,582 (1983-84 Transfer Binder) (S.D.N.Y.1983).
24
An examination of each of Weiszmann's remaining third-party claims is necessary to distinguish those claims that are simply "liability over" claims from those claims that ask for independent affirmative relief against the third-party defendants. Obviously, Weiszmann's first third-party claim--titled as "indemnity"--is simply a claim of "liability over," and thus the district court was correct in dismissing it with prejudice. That result is mandated by our holding that there is no right to indemnity under section 16(b).
25
However, in each of Weiszmann's remaining claims he contends that the third-party defendants made profits and commissions from the sale of the First Golden stock, and that their profits and commissions should be returned to him. We note that the $112,260 sum at issue in these remaining claims is not part of First Golden's claims against Weiszmann because the profit made by the third-party defendants is clearly not profit inuring to Weiszmann through his sale of First Golden stock. Therefore, because First Golden never had a right to this $112,260, Weiszmann may be able to characterize this portion of his third-party claims as non-indemnity claims.
26
More specifically, Weiszmann's fourth claim for relief is predicated on the section 10(b) liability because Morgan Stanley and Taebel allegedly failed to disclose material facts relating to Weiszmann's sale of the First Golden stock. The claim specifically states that those third-party defendants "earned at least $112,260.00 in profits from the transaction through fraud and deceit and should be forced to disgorge those profits...." Appellant's Amended Third-Party Complaint p 19, at 5. Without addressing whether this claim states a cause of action, it does appear susceptible of being construed as a non-indemnity claim.
27
Weiszmann asserts in his fifth claim for relief that Morgan Stanley had controlling person liability under section 20(a) of the Securities Exchange Act of 1934 (codified at 15 U.S.C. § 78t(a)). In this claim Weiszmann avers that "[d]ue to Morgan Stanley's position as a controlling person [with regard to Timothy Taebel] ... it should be held jointly and severely [sic] liable pursuant to Section 20(a)...." Appellant's Amended Third-Party Complaint p 26 at 5. We note that in appropriate circumstances courts have upheld contribution liability in a securities context. See, e.g., Smith v. Mulvaney, 827 F.2d 558, 560 (9th Cir.1987). Globus v. Law Research Service, 318 F.Supp. 955, 957-58 (S.D.N.Y.1970), aff'd, 442 F.2d 1346 (2d Cir.), cert. denied, 404 U.S. 941, 92 S.Ct. 286, 30 L.Ed.2d 254 (1971); deHaas v. Empire Petroleum Co., 286 F.Supp. 809, 815-16 (1968). Once again, it is far from clear that Weiszmann has stated a valid claim under section 20(a) premised on the underlying liability of Taebel. However, it does not appear to be an indemnity claim.
28
In Weiszmann's sixth claim for relief, labeled "Principal-Agent Liability," he again specifically requests a recapture of the $112,260 profit allegedly "earned through the breach of the duty of loyalty arising from the principal/agent relationship." Appellant's Amended Third-Party Complaint p 30, at 6. Without addressing the merits of the claim, the profits and commissions that the third-parties allegedly earned off the sale of Weiszmann's stock was clearly not recoverable by First Golden in its original section 16(b) action, and so Weiszmann may be correct that his sixth claim for relief is a non-indemnity claim.
29
Finally, Weiszmann's seventh claim for relief is based on negligent misrepresentation. Weiszmann avers that Taebel affirmatively misled him and gave him false information concerning the transactions at issue. Specifically, Weiszmann claims that the third-party defendants promised that they would not solicit a certain individual's First Golden stock. Weiszmann states that he lost a valuable business opportunity by the alleged misrepresentation and breach of that promise by the third-party defendants. Although the relief sought pursuant to this claim is uncertain, and again we do not address the merits of this claim at this time, it does not appear to be a mere claim for indemnification. See Appellant's Amended Third-Party Complaint, pp 31-32, at 6.
30
We believe that the district court should, in the first instance, review these claims with such tools as are at its disposal to narrow and clarify them, and it should determine whether and to what extent they seek relief other than indemnification. To the extent that any of such claims are indemnification claims for liability that Weiszmann incurred under section 16(b), they should be dismissed with prejudice. With regard to any non-indemnification claims, the district court must exercise its discretion and decide whether to retain jurisdiction over such claims or to dismiss them without prejudice. To the extent that the district court decides to retain jurisdiction over any portions of counts four through seven, it should then proceed to address such claims on the merits. Therefore, we remand to the district court for further proceedings consistent with this opinion. Alvarado, 723 F.Supp. at 554.
CONCLUSION
31
We AFFIRM the district court's dismissal of the first count in the third-party complaint because indemnity may not be had for a violation of section 16(b) of the Securities Exchange Act. We VACATE the order dismissing with prejudice counts four through seven of the third-party complaint and we REMAND for further proceedings consistent with this opinion.
1
The dismissal of these two claims is not contested on appeal
2
We do not address in this opinion claims for indemnity that may arise under other provisions of the securities laws
3
The district court stated, "Because ... Weiszmann settled [First Golden's] claim ... without Weiszmann incurring any liability or paying any damages to [First Golden], Weiszmann no longer possessed a viable third party claim against Morgan Stanley and Lindner for which it could collect damages under Fed.R.Civ.P. 14(a). Accordingly, I conclude as a matter of law that Morgan Stanley is entitled to summary judgment on Weiszmann's entire third party complaint." Dist.Ct.Order at 6
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739 So.2d 830 (1999)
Rodney NICHOLAS, et ux., Plaintiffs-Appellees,
v.
ALLSTATE INSURANCE COMPANY, et al., Defendants-Appellants.
No. 30,735-CA.
Court of Appeal of Louisiana, Second Circuit.
May 28, 1999.
Rehearing Denied July 23, 1999.
*834 Wiener, Weiss & Madison by John M. Madison, Jr., Shreveport, for Appellants.
Cook, Yancey, King & Galloway by Jerald R. Harper, Shreveport, for Appellees.
Before NORRIS, WILLIAMS, GASKINS, CARAWAY and DREW, JJ.
GASKINS, Judge.
In this wrongful termination of employment action, the defendants, Allstate Insurance Company ("Allstate"), Larry Rhodes and William Monie, Jr., appeal the trial court judgment in favor of the plaintiffs, Rodney and Neva Nicholas. The jury found that Rodney Nicholas ("Nicholas") and Allstate had entered into an agreement which modified his at-will employee status, and that the defendants had breached the employment agreement and intentionally subjected Nicholas to emotional distress. For the following reasons, we affirm in part and reverse in part.
FACTS
In April 1971, Nicholas began working as an Allstate insurance agent in Shreveport, Louisiana. Prior to hiring Nicholas, Allstate gave him written materials and showed him a filmstrip, which explained the advantages of working with Allstate, and the potential to develop a substantial income from renewal commissions, relieving the pressure to generate new business in later years. Nicholas signed the Allstate R-830 "Agent Compensation Agreement," which described the agent's commission rates for new policies and renewals. The agreement also stated that either Nicholas or Allstate could terminate the contract upon giving written notice.
In 1981, after working as an Allstate agent for 10 years, Nicholas signed an *835 amended agreement. Part 4, paragraph XI, provides in pertinent part:
Either you or Allstate have the right to terminate this agreement upon mailing to the other, at his or its last known address, written notice of termination.... The Company will not terminate your employment because of unsatisfactory work unless you have been notified that your work is unsatisfactory and that your job is in jeopardy and unless you have been given a reasonable opportunity to bring your performance up to satisfactory standards.
The agreement does not define "unsatisfactory work" or "reasonable opportunity." During his time at Allstate, Nicholas received periodic performance reviews. Several of these evaluations noted that Nicholas needed to produce more insurance business.
In Allstate's Jackson, Mississippi region, which included Shreveport, there were three steps of review leading to an agent's termination. The first level was called Corrective Review, the second was Unsatisfactory Review, and the third was Personal, or "Job in Jeopardy," Review. If the agent failed to meet the goals of one level, he was placed at the next level and was eventually terminated.
In August 1984, Richard Ebbs, the Shreveport district sales manager, placed Nicholas on Corrective Review for poor performance, at the direction of William Monie, Jr. Monie was Allstate's Louisiana territorial sales manager, and at the time, Ebb's supervisor. Nicholas failed to meet all of the goals set for the first and second levels of review. In February 1985, he was placed on Personal Review and informed in writing that his job was in jeopardy. In April 1985, Monie moved to another region and Larry Rhodes became territorial sales manager. Nicholas achieved only one of the assigned insurance production goals, but this review period was extended an additional 30 days, with a new set of goals, because Ebbs had failed to meet regularly with Nicholas.
Following this review period, Nicholas had not achieved all of the assigned goals, but because he had improved his ranking among agents in his peer group, Ebbs initially suggested to Rhodes that Nicholas be removed from Personal Review. However, in a June 27, 1985 letter, Rhodes recommended the termination of Nicholas to the regional office, which gave its approval. Nicholas requested a hearing before the Agent Review Board to appeal this recommendation. He selected two members of the board, which voted unanimously to uphold the termination recommendation. Nicholas was terminated on October 14, 1985.
In November 1992, the plaintiffs, Rodney and Neva Nicholas, filed a petition for damages against the defendants, alleging breach of contract, fraud, intentional infliction of emotional distress, and detrimental reliance. Prior to trial, the defendants filed a motion for summary judgment on the issue of liability, and a motion to dismiss the punitive damages claim. The defendants also filed three motions in limine to exclude certain testimony and evidence. All of the motions were denied.
After a 17-day trial, the jury returned a verdict in favor of the plaintiffs, finding that Nicholas and Allstate modified their at-will status by agreement, that Allstate breached this agreement, and that Allstate's breach was committed in bad faith. Further, the jury found that the defendants intentionally inflicted emotional distress on Nicholas, which was a substantial factor in causing him damages. The jury also found the defendants breached a duty to Nicholas by intentionally and fraudulently misrepresenting the truth. Finally, the jury found that Nicholas detrimentally relied on promises made by Allstate.
The issue of prescription was also presented to the jury, which found the plaintiffs were unaware of the facts forming the basis of this claim until November 3, 1991, concluding that the claim had not prescribed. *836 The jury awarded damages in favor of the plaintiffs and against Allstate, Monie, and Rhodes in the designations of $440,000 for loss of salary or commissions, $159,000 for loss of retirement benefits and $850,000 for emotional distress and loss of enjoyment of life. The jury also awarded Neva Nicholas $15,000 for loss of consortium. The defendants appeal the judgment.
EMPLOYMENT CONTRACT
In two assignments of error, the defendants contend that the trial court erred in instructing the jury concerning the "at-will" employment issue, and that the jury was clearly wrong in finding that the parties' employment contract modified Allstate's right to terminate Nicholas. The defendants argue that Allstate is not liable for wrongful discharge because Nicholas was an at-will employee.
Ordinarily, the meaning and intent of the parties to a written instrument should be determined within the four corners of the document, and its terms cannot be explained or contradicted by extrinsic evidence. Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741; NAB Natural Resources v. Willamette Industries, Inc., 28,555 (La.App.2d Cir.8/21/96), 679 So.2d 477. When a contract may be construed from the four corners of the instrument, that interpretation is a matter of law for the court to determine. NAB Natural Resources, supra; Wilson v. Cost Plus of Vivian, Inc., 375 So.2d 683 (La.App. 2d Cir.1979).
In the present case, the parties stipulated that Nicholas was an at-will employee and the validity of the employment contract is not disputed. Thus, the issue before the trial court was the interpretation of the contractual provision regarding pre-termination procedures and whether it affected the relationship between the parties. The trial judge submitted this question to the jury by giving an instruction, which stated in pertinent part:
Reasons for termination of an "at-will" employee need not be accurate, fair or reasonable, unless the parties have contracted to limit their at-will relationship. Under Louisiana law, Rodney Nicholas was an "at-will" employee of Allstate Insurance Company. An issue for you to determine is whether Rodney Nicholas and Allstate contractually limited the "at-will" relationship.
However, as noted above, the inquiry regarding the nature of the parties' relationship is a matter of law to be determined by the trial court, which erred in allowing the jury to construe the contract's meaning. Consequently, on review, we must interpret the contractual terms as a matter of law.
Under Louisiana law, a contract is an agreement by two or more parties whereby obligations are created, modified or extinguished. La. C.C. art.1906. Four elements are required for a valid contract: (1) the parties must possess capacity; (2) their mutual consent must be freely given; (3) the contract must have a certain object; and (4) a lawful purpose. La. C.C. arts.1918, 1927, 1966, 1971; Keller v. Sisters of Charity of Incarnate Word, 597 So.2d 1113 (La.App. 2d Cir.1992).
In addition to these general contract principles, the Civil Code provisions concerning the hiring of laborers are contained in La. C.C. arts. 2746-2750. One may hire out his services only for a certain limited time, or for the performance of a particular enterprise. La. C.C. art. 2746. A person or business is free to dismiss a worker without assigning any reason and the worker is also free to leave without giving any reason or cause. La. C.C. art. 2747.
Thus, the two types of contracts for hire are the limited duration contract and the terminable at-will contract. Williams v. Touro Infirmary, 578 So.2d 1006 (La.App. 4th Cir.1991); Deus v. Allstate Insurance Co., 15 F.3d 506 (5th Cir. 1994), cert. denied, 513 U.S. 1014, 115 S.Ct. *837 573, 130 L.Ed.2d 490 (1994). Where an employee's job is for an indefinite term, the employment is terminable at the will of either the employer or the employee. Absent a specific contract or agreement establishing a fixed term of employment, an employer is at liberty to dismiss an employee at any time for any reason without incurring liability for the discharge. Deus, supra; Williams v. Delta Haven, Inc., 416 So.2d 637 (La.App. 2d Cir.1982).
Here, the employment agreement does not establish a definite term and thus may be terminated at the will of either party. The plaintiffs cite Williams v. Delta Haven, Inc., supra, and several other cases to support their argument that Allstate's ability to discharge Nicholas was modified by the contract provision regarding the pre-termination process. This court and other courts have previously stated that the right to terminate indefinite employment at will can be altered by a specific contract or agreement. Williams v. Delta Haven, Inc., supra; Morgan v. Avondale Shipyards, 376 So.2d 516 (La.App. 4th Cir.1979). However, the above quoted contract language does not promise to employ Nicholas for a specified term and does not modify the manner in which Allstate determines that an agent's performance has been "unsatisfactory." This term is not defined in the agreement, but is left to the subjective decision of the employer.
Neither the contract nor the evidence in the record indicates that the parties signed the agreement with the intent that Nicholas could only be fired for cause. Evidence was not presented to show that use of the subjective term "unsatisfactory work" was intended to create an objective standard by which to measure an agent's sales performance. In addition, the evidence did not demonstrate that Allstate's three-step termination process modified the employment status of Nicholas so as to obligate Allstate to apply an objective standard or show a cause for dismissal.
In effect, the contract clause at issue gives the employee an advance warning of the employer's proposed exercise of its right to terminate at will, and provides an opportunity for the worker to meet the employer's standards for satisfactory work if he desires to remain employed. Under the agreement, Allstate decides when an agent's performance is inadequate or whether he has achieved the required degree of improvement. Thus, the contract provision did not alter the at-will status of the employment, since Allstate remained at liberty to discharge Nicholas for subjective reasons after informing him that his work was not satisfactory and deciding that his performance had not improved. Nicholas was also free to leave Allstate when he wished.
In their brief, the plaintiffs argue that Allstate breached the employment contract by failing to perform in good faith. La. C.C. art. 1759 provides that good faith shall govern the conduct of the obligor and obligee in whatever pertains to the obligation. Contracts must be performed in good faith. La. C.C. art.1983.
The duty to perform the at-will compensation agreement in good faith cannot be used to significantly alter the contract by requiring more than the terms of the agreement. Frichter v. National Life & Accident Insurance Co., 620 F.Supp. 922 (E.D.La.1985), affirmed, 790 F.2d 891 (5th Cir.1986). The evidence indicates that the notice and opportunity for improvement required by the terms of the contract were provided by Allstate. The plaintiffs' argument lacks merit.
The plaintiffs contend that Nicholas obtained a vested right to Allstate's promised benefit of notice and a reasonable opportunity for improvement. In support of their contention, they cite Knecht v. Board of Trustees for State Colleges and Universities and Northwestern State University, 591 So.2d 690 (La.1991), in which the supreme court stated that when an employer promises a benefit to employees, who accept by their actions in meeting the conditions, *838 the employees gain a vested right to the promised benefit.
However, the factual circumstances of Knecht, supra, can be distinguished from those in the present case. In Knecht, university employees were promised an hour of paid leave in return for an hour of overtime work for which they did not receive payment in wages. The court stated that the paid leave was a form of deferred compensation in lieu of wages, and once the employees rendered the services, the right to the promised remuneration vested. In contrast, this case does not involve such a deferred compensation arrangement. Nicholas was not working without pay in return for Allstate's promise to provide notice of unsatisfactory work and an opportunity for improvement. Further, Nicholas is not claiming the right to promised compensation which has been wrongfully withheld. The plaintiffs' contention lacks merit.
After reviewing the record and interpreting the contractual language in light of the applicable law, we conclude that the provision for notice and a period for improvement did not establish a fixed term of employment, and did not restrict Allstate's ability to determine solely in its discretion when an agent's performance was unsatisfactory and to decide that an employee had not achieved satisfactory improvement. Thus, the indefinite employment was terminable at the will of either party. Consequently, Allstate is not liable to pay damages for its discharge of Nicholas. Therefore, the jury's awards of $444,000 for lost income and $159,000 for lost retirement benefits as a result of Nicholas' termination are vacated.
PRESCRIPTION
The defendants contend that the plaintiffs' tort claims have prescribed. They argue that Nicholas possessed sufficient knowledge of his claim more than one year prior to filing suit.
Liberative prescription of one year for tort actions commences to run from the date the injury or damage is sustained. La. C.C. art. 3492. Damage is considered to have been sustained when it has manifested itself with sufficient certainty to support the accrual of a cause of action. Martin v. Kroger Company, 29,915 (La.App.2d Cir.10/29/97), 702 So.2d 347, writ denied, 98-0033 (La.3/13/98), 712 So.2d 881. Despite the statutory time limit imposed by Article 3492, our Louisiana jurisprudence has recognized a limited exception founded upon the civilian doctrine of contra non valentem, which suspends prescription until the plaintiff knows sufficient facts and has a reasonable basis for filing suit against a certain defendant. Chaney v. State Through Dept. of Health and Human Resources, 432 So.2d 256 (La. 1983).
In the present case, the evidence shows that at the time of his termination, Nicholas believed that the review system was unfair because he did not receive credit for some business he had obtained and he was not getting consistent information or assistance from Ebbs. Although Nicholas expressed concern about the membership of his peer group, he testified that he did not have a reason to disbelieve Ebbs' statement that Nicholas was last or tied for last in that group.
Despite his general suspicion that he was not being treated fairly, the testimony indicates that Nicholas did not learn until 1992 that his initial placement into the disciplinary review process may have been the result of an alleged ulterior motive of a supervisory Allstate employee, rather than his actual production. Constructive knowledge sufficient to start prescription involves more than mere apprehension that something might be wrong. Prescription does not run against a person who is ignorant of the facts upon which his cause of action is based, as long as such ignorance is not willful or unreasonable. National Union Fire Insurance Company of Pennsylvania v. Spillars, 552 So.2d 627 *839 (La.App. 2d Cir.1989), writs denied, 556 So.2d 61 (La.1990). Contrary to the defendants' assertion in their brief, the act of termination itself was not the sole basis of the alleged actionable tort, which also involved the activity of Allstate personnel leading up to the firing. The record contains testimony from which the trier of fact could have reasonably found that Nicholas did not know the facts upon which his tort claim was based until 1992. The assignment of error lacks merit.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The defendants contend that the trial court erred in finding sufficient evidence to support the claim for intentional infliction of emotional distress. They argue that because Nicholas was an at-will employee, he is precluded from asserting a claim for intentional infliction of emotional distress.
Law
To support their argument, the defendants cite Stevenson v. Lavalco, Inc., 28,020 (La.App.2d Cir.2/28/96), 669 So.2d 608, writ denied, 96-0828 (La.5/17/96), 673 So.2d 611, in which this court stated that an at-will employee's claim for intentional infliction of emotional distress could not be separated from the termination of his employment, where the worker alleged that his termination was wrongful, and constituted extreme and outrageous conduct. However, the circumstances of the present case differ from those in Stevenson, supra. Here, Nicholas alleges that the outrageous conduct of other Allstate employees occurred prior to his termination. Thus, the Stevenson limitation regarding the assertion of a tort claim is not applicable.
In order to recover for intentional infliction of emotional distress, a plaintiff must establish: (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that such distress would be certain or substantially certain to result from his conduct. White v. Monsanto, 585 So.2d 1205 (La.1991). The outrageous conduct requirement has been defined as conduct which is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. White v. Monsanto, supra; Stevenson, supra.
Recognition of a cause of action for intentional infliction of emotional distress in a workplace environment has usually been limited to cases involving a pattern of deliberate, repeated harassment over a period of time. White v. Monsanto, supra; Maggio v. St. Francis Medical Center, Inc., 391 So.2d 948 (La.App. 2d Cir.1980), writ denied, 396 So.2d 1351 (La. 1981). The distress suffered must be more than a reasonable person could be expected to endure. The defendant's conduct must be intended or calculated to cause severe emotional distress and not just some lesser degree of fright, humiliation, embarrassment or worry. White, supra.
The Louisiana Supreme Court has developed a two-part test for reversing a fact finder's determination. The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact, and then the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).[1]Mart v. Hill, 505 So.2d 1120 *840 (La.1987); Morehead v. Ford Motor Company, 29,399 (La.App.2d Cir.5/21/97), 694 So.2d 650, writ denied, 97-1865 (La.11/7/97), 703 So.2d 1265.
The duty of the fact finder is to evaluate credibility when testimony is conflicting and to accept or reject any part of a witness' testimony. Brister v. Continental Insurance Company, 30,429 (La. App.2d Cir.4/8/98), 712 So.2d 177. Credibility determinations, including the evaluation of expert testimony, together with the ultimate issue of whether a plaintiff has satisfied his burden of proof, are factual issues to be resolved by the trier of fact. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880 (La.1993); Ferrell v. Minden Family Care Center, 30,088 (La.App.2d Cir.12/19/97), 704 So.2d 969, writ denied, 98-0392 (La.3/27/98), 716 So.2d 891. Where the testimony conflicts, the fact finder's reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even where the appellate court may feel that its own evaluations and inferences are more reasonable than those of the jury. Brister v. Continental Insurance Company, supra; Morehead v. Ford Motor Company, supra.
Evidentiary Rulings
The defendants further complain that the court made erroneous rulings that allowed in prejudicial evidence. The three areas in which evidence was wrongfully admitted, the defendants claim, included testimony about racial discrimination, low income "red-lining," and corporate security abuse.
James Ivy, Jr. was a sales manager in the Lafayette office in 1985. Ivy's deposition testimony focused mainly on a new program that Allstate was promoting in the 1980's to have the agents located in neighborhoods rather than in Sears department stores. Defense counsel questioned Ivy at length about his termination for sexual discrimination. Ivy responded that he felt that other employees would not have been fired in the same situation and that he had filed a racial discrimination suit based on the termination. The suit resulted in a settlement. The defendants protest the introduction of that portion of Ivy's deposition testimony which discussed his belief that his termination was based on race and the fact that he settled his suit. Ivy did not blame Monie for his termination, but did fault him for placing all the black agents together in a poor marketing area.
Daniel Korman, an Allstate top producer, was informed by an Allstate employee, whose conscience had bothered him for several years, that Korman was fired because Monie didn't like him. Korman had been chastised for writing policies in low-income areas. When Korman had inquired whether Allstate was illegally "redlining" certain areas, he was told not to sell policies in a certain zip code. This instruction came from supervisors other than Monie, and the testimony was unclear as to whether the supervisor understood it was improper to refuse to sell in areas that were predominantly low-income.
Ed DeLorenzo had been written up in a major magazine for being a "White Buffalo," or big producer. When Monie took over the Phoenix area, he told Korman that he had come to clean "from the top," which Korman took to mean that DeLorenzo was being targeted by Monie. It was rumored that Monie didn't like the fact that DeLorenzo earned more money than he did. DeLorenzo testified that Monie:
wanted to get everybody in line and shake them up, and my name was mentioned and basically if I went down, because *841 I had a lot of respect from a lot of the agents at that point in my career. And if I went down it's going to make a lot of people frightened. Take down the Big White Buffalo and then the rest will cringe.
Monie had corporate security interview DeLorenzo's clients and potential clients. This security interview had the effect of leading the clients to believe DeLorenzo was under investigation. DeLorenzo lost business and, ultimately, his mental health.
The defendants contend that the evidence regarding Monie's treatment of other agents and the testimony regarding red-lining and racial discrimination were not relevant and were prejudicial. They further submit that because the jury was so tainted, the verdict should be thrown out and this court should conduct a de novo review of the evidence.
Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. Unless an exception is provided by law, all relevant evidence is admissible. La. C.E. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403. Evidence of other crimes, wrongs, or acts may be admissible as proof of motive or intent. La. C.E. 404(B).
The circumstances of the DeLorenzo matter were closely related to those in this case. The acts of Monie in his supervisory techniques of DeLorenzo lend some insight into Monie's intent in the present case. While the statements made by other witnesses as to racial discrimination and redlining are not so closely related, these matters were responsive to the defendants' questions or were only briefly touched upon. These statements were not so prejudicial that error occurred by their admission into evidence.
Discussion
The review process of Nicholas began when Monie instructed all sales managers to send him the name of the worst agent in the peer group, so that he could put them on review to "stir things up from the bottom." Monie turned to Ebbs and said, "And Dick Ebbs, that agent in your district is Rodney Nicholas, I want his scalp on my tepee pole." Ebbs didn't consider this statement to be a serious one, so he sent in the name of another agent who was, in fact, the lowest producer. Monie contacted Ebbs, and instructed him to expand his review so that Nicholas became the worst in the peer group. Ebbs then compared the performances of the peer group agents in relation to 27 categories of insurance, showing Nicholas to have the least production overall.
Ebbs related that at an earlier meeting the agents had filled out a questionnaire about the managers' performance. Monie and his supervisor, Blankenship, received a complaint that they were unprofessional because they "dipped" and cursed during the meeting. Ebbs surmised that Monie thought that Nicholas, who was one of the religious agents in the Florida Street office, must have turned in the critical review.
There was also testimony that the Corrective Review process imposed on Nicholas was more onerous than reviews administered to other agents and he was required to produce business in lines of insurance that few other agents could sell. In addition, a Corrective Review which Ebbs purported to give to Nicholas on May 10, 1984, was later withdrawn because the regional office had not given prior approval and Ebbs had made several errors in computing the goals. An approved Corrective Review was administered to Nicholas on August 1, 1984, but his earlier production was not counted toward completion of the subsequent review's goals.
*842 In response to a customer complaint, Allstate personnel requested that corporate security investigate the financial records of Nicholas, who had failed to respond to a notice of cancellation of the customer's policy. This mistake by Nicholas required Allstate to pay the claim of another insurance company. Although the security office concluded that Nicholas' error was unintentional and did not involve dishonesty, Monie wrote to the regional office recommending that Nicholas be placed on Permanent Personal Review, so that another similar incident would result in his automatic termination. The letter purported to include Ebbs' signature, but he testified that he had not signed the document. Other testimony indicated that Monie may have signed Ebbs' name.
Nicholas complained that he wrote two homeowner policies which had disappeared and were ostensibly lost at the regional office. Monie reportedly referred to Nicholas and other low producing agents as "scum," and described their performance as "below the scum line." Monie, Ebbs and Rhodes at times told Nicholas that he was the lowest person in his peer group. Nicholas testified that such references caused him to feel "worthless" and that he felt humiliated and degraded. Nicholas stated that his morale was very low, that the review process was stressful and confusing, and that he did not understand what was happening.
Usually an agent's review was not a lengthy process, but the review of Nicholas lasted over a year. In April 1985, Rhodes replaced Monie, but the two shared an office. Even after Monie was no longer Nicholas' supervisor, evidence showed he still remained involved in Nicholas' Corrective Review process. Ebbs recommended to Rhodes that Nicholas be taken off the review process since the next step was termination. According to Ebbs, Rhodes seemed amenable to this suggestion but later Rhodes' attitude changed. Rhodes attributed this change to other Allstate executives. In early summer, Rhodes called Nicholas in from his vacation at church camp and notified him of his termination.
The issue presented for our determination on review is whether the foregoing testimony and other evidence in the record support the jury's finding that the defendants, Allstate, Monie and Rhodes, intentionally inflicted emotional distress on Nicholas. We must consider whether the plaintiffs satisfied their heavy burden of proving that the defendants' conduct was the type which subjects them to liability for this intentional tort.
We find the jury had ample evidence upon which to find that Monie's conduct towards Nicholas was extreme and outrageous; that the emotional distress suffered by Nicholas was severe; and that Monie desired to inflict severe emotional distress and knew that such distress would be substantially certain to result from his conduct. As Monie's conduct was performed in the course and scope of his employment, Allstate is likewise answerable for the intentional infliction of emotional distress. However, the record fails to support a finding that Rhodes' conduct was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Certainly, summoning Nicholas from church camp to terminate him is reprehensible, but his actions do not support a finding of a pattern of deliberate, repeated harassment over time.
Finding that the jury's verdict was proper on the grounds of intentional infliction of emotional distress, we need not discuss whether the jury's finding of fraud and detrimental reliance were proper. Consequently, we pretermit discussion of the defendants' complaints on these grounds of liability.
GENERAL DAMAGES
General damages can involve physical or mental pain or suffering, inconvenience, *843 loss of gratification or intellectual or physical enjoyment and other factors that affect the victim's life and are by their nature damages which cannot be definitively measured in terms of money. Maynor v. Vosburg, 25,922 (La.App.2d Cir.11/28/94), 648 So.2d 411, writ denied, 95-0409 (La.4/28/95), 653 So.2d 590. In assessing damages in cases of offenses, quasi-offenses and quasi-contracts, much discretion is left to the trier of fact. La. C.C. art. 2324.1. Before an appellate court may disturb such an award, the record must clearly reveal that the trial court abused its broad discretion in making the award, based on the facts and circumstances peculiar to the case and the individual under consideration. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Only after an articulated analysis of the facts discloses an abuse of discretion is examination of prior awards in similar cases proper. If the award is abusively low, it is raised to the lowest amount the trier of fact could reasonably have awarded. If the award is abusively high, it is reduced to the highest amount the trier of fact could have awarded. Dixon v. Tillman, 29,483 (La.App.2d Cir.5/7/97), 694 So.2d 585, writ denied, 97-1430 (La.9/19/97), 701 So.2d 174. The proper procedure for examining whether the award is excessive is to determine whether the amount can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the trier of fact. Likewise, to determine if an award is inadequate, the evidence must be viewed in the light most favorable to the defendant. Graham v. Edwards, 614 So.2d 811 (La.App. 2d Cir.1993), writ denied, 619 So.2d 547 (La.1993); Manuel v. State Farm Mutual Automobile Company, 30,765 (La.App.2d Cir.8/19/98), 717 So.2d 277.
In the present case, the defendants argue that the general damage award to Nicholas is excessive. This case is similar to that presented in Guillory v. State Farm Insurance Company, 94-1405 (La.App. 4th Cir. 9/28/95), 662 So.2d 104, in which a plaintiff was awarded $350,000 in general damages where he suffered racial discrimination in his employment with an insurance company. The plaintiff in that case suffered mental anguish, stress, humiliation and went to a social worker for therapy 70 times.
In the case sub judice, Nicholas did not seek professional help for his depression, due in part to his financial situation. Dr. George Seiden, a psychiatrist, testified that the many physical complaints Nicholas suffered masked his depression. Further, Dr. Seiden stated that in the 10 years since the termination, the evidence is clear that Nicholas has been depressed most of the time, suffering major depression during some of that period.
Neva Nicholas, the plaintiff's wife, described how Nicholas would lie in bed in the fetal position, and how he was so full of fear as to be nonfunctional. She and her daughter feared Nicholas would commit suicide. Mrs. Nicholas described how her husband would suffer anxiety attacks, which caused them to rush him to the hospital fearing heart attacks. She testified that he still slept sitting up because he felt he was less likely to suffer an anxiety attack in that position than if lying down.
The emotional trauma has also impacted Nicholas' ability to earn a living. Dr. Seiden opined that the depression caused by the termination process contributed to Nicholas' inability to maintain employment. He noted Nicholas has had eight or nine jobs since 1985, whereas previously he held one job for 14 or 15 years. Dr. Seiden attributed this inability to hold a job to Nicholas' loss of self-confidence, his indecisiveness, and his uncertainty about what was right or wrong for him to do.
Mrs. Nicholas documented for the jury the financial difficulties the family had suffered since Nicholas' termination. She described how the utilities had been cut off several times and how their home had *844 come close to seizure more than once. Friends had helped out, by leaving boxes of food and giving money for stove repairs. Mrs. Nicholas took the stove repair money and bought Christmas for the children, cooking on one burner for seven more years.
Based on the emotional distress Nicholas has suffered since 1985, and the resulting emotional disability that prevents him from permanent, competitive employment, we find the award for general damages, while high, to not be in error.
PUNITIVE DAMAGES
In this case, the plaintiffs sought to recover punitive damages under Mississippi and/or Illinois law. Later, the trial court ruled that punitive damages were not applicable. However, during voir dire, the jurors were questioned regarding their willingness to enter a punitive damage award, if proven. The defendants argue that this preconditioned the jurors to punish the defendants and that the jury's damage award was tainted by improper references to punitive damages during voir dire. We reject this argument. We note that the trial court instructed the jury, close in time to their deliberations, that neither punitive nor speculative damages could be awarded. This proper instruction to the jury was sufficient to overcome any prejudicial effect which may have resulted in voir dire, which occurred approximately one month earlier.
We also note that the plaintiffs answered the appeal, objecting to the trial court's decision not to apply the law from other venues regarding punitive damages. Regarding conflicts of law on punitive damages, La. C.C. art. 3546 provides:
Punitive damages may not be awarded by a court of this state unless authorized:
(1) By the law of the state where the injurious conduct occurred and by either the law of the state where the resulting injury occurred or the law of the place where the person whose conduct caused the injury was domiciled; or
(2) By the law of the state in which the injury occurred and by the law of the state where the person whose conduct caused the injury was domiciled.
The plaintiffs concede that the resulting injury occurred in Louisiana. Louisiana law does not authorize the imposition of punitive damages under the facts of this case.
We find that the domicile of Allstate is determined by La. C.C. art. 3548 which provides:
For the purposes of this Title, and provided it is appropriate under the principles of Article 3542, a juridical person that is domiciled outside this state, but which transacts business in this state and incurs a delictual or quasi-delictual obligation arising from activity within this state, shall be treated as a domiciliary of this state.
Accordingly, for purposes of this case, we find that Allstate is domiciled in Louisiana. Even if the injurious conduct occurred in Illinois or Mississippi, where punitive damages may be allowed, the resulting injury occurred in Louisiana and the tort-feasor is domiciled in Louisiana, a state in which punitive damages are not allowed.
However, the plaintiffs also urge application of La. C.C. art. 3542 which provides:
Except as otherwise provided in this Title, an issue of delictual or quasi-delictual obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.
That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: (1) the pertinent contacts of each state to the parties and the events giving rise to the dispute, including the place of conduct and injury, the domicile, habitual residence, or place of business of the parties, and the state in which the *845 relationship, if any, between the parties was centered; and (2) the policies referred to in Article 3515, as well as the policies of deterring wrongful conduct and of repairing the consequences of injurious acts.
According to the plaintiffs, the law of the states of Illinois and Mississippi regarding punitive damages will be seriously impaired if we refuse to impose their provisions on that issue in this case. This argument is not convincing and we choose to follow the clear dictates of La. C.C. art. 3546 to decide this issue. Punitive damages may not be awarded in this case and the trial court was correct in so holding.
INTEREST
The defendants correctly argue that the trial court improperly awarded interest on the general damage award from the date of the breach of contract.[2] We find that the general damage award was for a tort claim; accordingly, interest on such awards runs from the date of judicial demand. La. R.S. 13:4203; Morris & Dickson Company, Inc. v. Jones Brothers Company, Inc., 29,379 (La. App.2d Cir.4/11/97), 691 So.2d 882, writ denied, 97-1259 (La.9/5/97), 700 So.2d 509. Therefore, we find that the legal interest on amounts awarded to the plaintiffs runs from the date of the judicial demand, November 4, 1992.
JUROR MISCONDUCT
The defendants assert that the trial court erred in denying the motion for mistrial they made after the jury foreman, an acquaintance of the plaintiffs' son, spoke to the plaintiffs' expert economist. The record reveals that, during a recess, this juror inquired of the economist whether he knew either of the economics professors who had taught the juror. The economist said he knew one of the professors. The juror then remarked that that professor was a good teacher, and the economist agreed. This was the entirety of their conversation. After denying the defendants' motion for mistrial, the trial court spoke to the juror outside of the presence of the rest of the jury and admonished him not to speak to witnesses. When the juror indicated that he had been under the impression that he was only forbidden to talk about the case, the trial judge clarified that the prohibition was against speaking to the parties, witnesses and attorneys on any subject. Also, the record during voir dire demonstrates that this juror attended school with the plaintiff's son; however, they were not close friends and they had seen each other infrequently since high school graduation. The defendants unsuccessfully challenged him for cause.
Improper behavior by a jury is not defined but must be determined by the facts and circumstances of the particular case. Bossier v. DeSoto General Hospital, 442 So.2d 485 (La.App. 2d Cir.1983), writ denied, 443 So.2d 1122 (La.1984). The mere violation of a sequestration order does not compel that a mistrial be declared. Although misconduct of jurors may be a cause for granting a mistrial, the misconduct must be such that it is impossible to proceed to a proper judgment. Contact or communication between a juror and a party or counsel during the trial of a civil action may be sufficient ground for the declaration of a mistrial where it appears that the act or occurrence in question is potentially, or may have been actually, prejudicial to the complaining party. Jordan v. Intercontinental Bulktank Corporation, 621 So.2d 1141 (La.App. 1st Cir. 1993), writs denied, 623 So.2d 1335, 1336 (La.1993). Presumably, the same rule would apply to contact between a juror and a witness. In the instant case, it is apparent that the juror's conduct, while a technical violation of the judge's admonition not to speak to witnesses, was an unintentional error caused by a minor misunderstanding. *846 The defendants were not prejudiced by the juror's conduct, and the trial court did not abuse its discretion in denying the motion for mistrial.
CONCLUSION
For the foregoing reasons, the district court's judgment awarding Rodney Nicholas $444,000 for lost salary or commissions, and $159,000 in lost retirement benefits is reversed. The award of $850,000 for emotional distress and enjoyment of life in favor of Rodney Nicholas and the award of $15,000 in favor of Neva Nicholas, and against Allstate and William Monie, Jr., are affirmed. The finding of liability against Larry Rhodes is reversed. Interest shall begin to run from the date suit was filed. Costs are assessed to be paid one-half by the plaintiffs and one-half by the defendants.
AFFIRMED IN PART; REVERSED IN PART.
NORRIS, C.J., concurs in part and dissents in part.
WILLIAMS, J., dissents with written reasons.
CARAWAY, J., dissents with written reasons.
NORRIS, C.J., concurring in part and dissenting in part.
I respectfully concur in Judge Gaskins's opinion that affirms the damage award in favor of Rodney Nicholas and the loss of consortium award in favor of Neva Nicholas against Allstate and William Monie Jr. for intentional infliction of emotional distress.
I dissent, however, from reversing the awards in favor of Rodney Nicholas for loss of salary or commissions and retirement. I believe the R-830 agreement at issue in this case is a modified at-will employment contract. See, e.g., Williams v. Delta Haven Inc., 416 So.2d 637 (La. App. 2 Cir.), writ denied 421 So.2d 249 (1982); Morgan v. Avondale Shipyards, 376 So.2d 516 (La.App. 4 Cir.1979). Allstate admitted such a modification at oral argument; the evidence adduced at trial conclusively shows that the company not only believed this to be the case, but treated the contract as modified to restrict its right to terminate for unsatisfactory performance. Under this modification, when Allstate sought to terminate Nicholas because of unsatisfactory work, the company was obligated to give him notice and a reasonable opportunity to bring his performance up to satisfactory standards. Furthermore, Allstate was obligated to perform its obligations in good faith. La. C.C. arts.1906, 1918, 1927, 1966, 1971, 1983; Bond v. Allemand, 632 So.2d 326, 328 (La.App. 1 Cir.1993), writ denied 637 So.2d 468 (1994).
This record quite obviously shows that Allstate acted in intentional bad faith in seeking to terminate Nicholas for unsatisfactory performance and did not afford him a good faith effort to bring his performance to satisfactory standards. Thus, Allstate is guilty of a bad faith breach of its modified at-will R-830 contract. Damages for lost wages and retirement benefits are recoverable.
Furthermore, nonpecuniary general damages were proper for this breach of contract. La. C.C. art.1998. The record leaves no doubt that Allstate, by its bad faith breach of the contract, intended to aggrieve the feelings of Nicholas.
In sum, I would affirm the jury verdict and judgment of the trial court in its entirety.
WILLIAMS, J., dissenting.
Although in agreement with the majority's decision concerning the at-will employment contract, I respectfully dissent with regard to the issue of intentional infliction of emotional distress.
In a footnote, the majority mentions in passing that the jury was not provided with the definition of outrageous conduct set forth in White v. Monsanto, 585 So.2d *847 1205 (La.1991). The record shows that the parties requested that the trial court give a jury charge setting forth the elements necessary to recover for intentional infliction of emotional distress as stated in the White case. However, over the timely objections of the parties, the trial court declined to include such an instruction. Thus, the jurors were not provided with the correct standard by which to evaluate the plaintiffs' burden of proof and the nature of defendants' conduct with respect to this tort claim. Consequently, the lack of an instruction which provides a definition of intentional infliction of emotional distress that is consistent with White necessarily affects any assessment of the jury's finding and the weight given the verdict.
In concluding that the evidence is sufficient to support the jury's finding that Monie's behavior was outrageous, the majority refers to testimony describing several incidents of insulting or unfair treatment of Nicholas by the defendants. However, an appellate court is required to do more than simply review the record for some evidence which supports the trial court's finding. The reviewing court must evaluate the entire record to determine whether a reasonable factual basis exists for the jury's finding, and whether that finding is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993).
Considering this standard of review and applying the analysis of White, supra, to the facts of the present case, I must conclude that the evidence contained in the record does not provide a reasonable factual basis for the jury's finding that the defendants' conduct, when viewed either in isolation or as a pattern, amounted to such extreme and outrageous conduct as to give rise to recovery for the intentional infliction of emotional distress.
The plaintiffs complain that Nicholas was not the lowest producer and did not deserve to be placed on Corrective Review. The evidence indicates that Nicholas was an average insurance sales agent. As an Allstate sales manager, Monie was interested in increasing the productivity of less active agents. The fact that he chose to focus on Nicholas for placement in the corrective review process may seem arbitrary, but not outrageous, particularly since a method of comparison indicated that Nicholas was one of the less productive agents. Similarly, Monie's use of the term "scum," which Nicholas acknowledged he did not hear directed at him personally, and the reference to Nicholas as the "lowest" agent in the peer group, while uncalled for, cannot reasonably be considered as beyond the bounds of decency.
Rhodes' written statement that Nicholas had "failed miserably" in his review performance was exaggerated, and Rhodes' act of having Nicholas called back from vacation to receive notice of termination appears insensitive. However, such behavior does not amount to the extreme and outrageous conduct necessary to allow recovery for intentional infliction of emotional distress.
Nor does the evidence establish that the defendants intended to inflict severe emotional distress on Nicholas. The majority and the plaintiffs emphasize the testimony of several witnesses as indicative of Monie's intent to inflict such distress. Ebbs' testimony suggests that Monie's intent in having Nicholas placed in the review process was to "stir things up from the bottom," so that other agents would be more productive. Plaintiffs presented testimony from Cliff Johnson, a former agent who retired from Allstate, who stated that he thought Monie had sought to make Nicholas an example to pressure other agents into joining the Neighborhood Office Agent program.
Such motives, while unsavory, do not primarily reflect a desire to inflict severe emotional distress. Disciplinary action and conflict in a pressure-packed workplace environment, although calculated to cause some degree of mental anguish, are not ordinarily actionable. White, supra.
*848 In addition, the evidence does not indicate that the defendants knew severe emotional distress would be substantially certain to result from their conduct. Nicholas acknowledged that he did not inform any other Allstate employees about his anxiety. Nicholas testified that in response to defendants' conduct, he at times felt humiliated, anxious, confused, upset and worried. Such emotions, while sincere, are not sufficiently severe to establish the plaintiffs' right to recover damages for intentional infliction of emotional distress.
This court has previously considered the issue of whether a party's acts constitute outrageous conduct. The case of Smith v. Ouachita Parish School Board, 29,873 (La. App.2d Cir.9/24/97), 702 So.2d 727, involved a tenured teacher who was working as a guidance counselor when the school board demoted and moved her to another school for a position with few duties, causing her to feel depressed, embarrassed and ashamed. The school board later reassigned Smith to another school for a special education job, which included assisting with clerical duties. Smith also found this job humiliating. Subsequently, she was admitted to a hospital for treatment of depression. A psychologist opined that Smith's demotion and job-related stress had aggravated her pre-existing depression. This court found that although Smith's due process rights were violated, the school board did not engage in extreme or outrageous conduct in demoting Smith and placing her in various nonteaching positions.
After reviewing the entire record, I must conclude that the plaintiffs failed to satisfy their heavy burden of proving that defendants engaged in the type of extreme or outrageous conduct, as defined in White v. Monsanto, necessary to impose liability for intentional infliction of emotional distress. Nor does the record provide a reasonable factual basis for the finding that the emotional distress of Nicholas was so severe as to be more than a reasonable person could be expected to endure. Consequently, the jury was clearly wrong in finding that the defendants intentionally inflicted emotional distress on Nicholas. Therefore, the jury's award of general damages should be vacated.
Loss of Consortium
Neva Nicholas' claim for loss of consortium is derivative of her husband's damages. Ferrell v. Fireman's Fund Insurance Co., 96-3028 (La.7/1/97), 696 So.2d 569. Thus, in concluding that Rodney Nicholas is not entitled to recover damages for intentional infliction of emotional distress, I would also reverse the award to Neva Nicholas for her derivative claim of loss of consortium.
The majority states that because the jury's verdict concerning intentional infliction of emotional distress has been affirmed, a discussion of the jury's findings of fraud and detrimental reliance is unnecessary. However, the jury specifically found that fraud and detrimental reliance were substantial factors in causing damage to Nicholas. Presumably, these findings influenced the jury's decision to award $850,000 in general damages. Therefore, I will briefly discuss each issue.
Fraud
Fraud is a misrepresentation or a suppression of the truth made with an intention either to obtain an unjust advantage for one party, or to cause a loss or inconvenience to another. Ballard's Inc. v. North American Land Development Corp., 28,437 (La.App.2d Cir.6/26/96), 677 So.2d 648.
At trial and in their briefs, plaintiffs repeatedly allege that there was "manipulation" of the peer group analysis data. However, Ebbs testified that one could not manipulate an agent's production figures because the data was calculated by a computer at the regional office. Plaintiffs also complain that Ebbs improperly used 27 categories to "make it appear" that Nicholas was the lowest producing agent. The evidence indicates that these measurement categories were actual lines of insurance carried by Allstate, as shown by the List 60E and the Agent Growth, Profit Profile (AGPP).
*849 George Bishop testified that he independently verified the fact that with reference to the 27 measurement categories, Nicholas was the agent with the lowest production in the peer group. Although agents may not have been routinely evaluated with this number of categories, plaintiffs have failed to show that their use was fraudulent. There is no evidence that any of the defendants created or used false production numbers in the review process. Regarding the alleged forgery of Ebbs' signature, plaintiffs did not establish who signed the document, if indeed it was not Ebbs, or under what circumstances.
Plaintiffs contend that Allstate did not include some items of favorable information in Nicholas' personnel file. However, this file was "reconstructed" and the evidence does not establish that information was withheld due to fraudulent intent. Particularly in light of Allstate's ability to subjectively measure Nicholas' work performance and to dismiss him at will, the above-mentioned incidents cannot establish an intent to obtain an unjust advantage or to cause a loss of an assured job. Based upon this record, the evidence is insufficient to support the jury's finding that defendants engaged in fraudulent practices in regard to Nicholas' employment.
Detrimental Reliance
A party may be obligated by a promise when he knew or should have known that the promise would be relied upon by the other party, who was reasonable in so relying. LSA-C.C. art.1967. To recover under the theory of detrimental reliance, one must prove three elements: a representation by conduct or word; justifiable reliance thereon; and a change of position to one's detriment because of that reliance. Orr v. Bancroft Bag, Inc., 29,046 (La. App.2d Cir.1/22/97), 687 So.2d 1068.
During the trial and in their briefs to this court, plaintiffs argued that Allstate failed to perform several promises on which Nicholas relied. Plaintiffs assert that Allstate did not honor promises that Ebbs would assist Nicholas during the review process, and that he would receive credit for certain "lost" policies. Although Ebbs did not hold regular meetings, All-state responded by extending the Personal Review period for thirty days. Additionally, in several annual evaluations, Nicholas stated he did not need training, and at other times he received assistance in his sales strategy. The evidence also indicates that the lost policies were not located, so that credit could not be given. The record does not explain why photocopies of these policies were not available or why replacement applications could not be completed and submitted.
Nicholas signed the agent compensation agreement and worked as an Allstate agent. The plaintiffs have failed to establish that Nicholas made a change of position to his detriment either in reliance on the terms of the employment contract regarding an opportunity to improve, or in reliance on the CEO's promise regarding quotas. Thus, based on the above circumstances, the jury was clearly wrong in finding sufficient evidence of detrimental reliance.
CONCLUSION
For the foregoing reasons, the district court's judgment awarding Rodney Nicholas $850,000 for emotional distress and loss of enjoyment of life, and awarding Neva Nicholas $15,000 for loss of consortium, should be reversed. I would render judgment in favor of the defendants, dismissing plaintiffs' claims.
CARAWAY, J., dissenting.
In this case, the majority fails to distinguish between the ordinary emotional trauma of an employee's dismissal from employment and the intentional infliction of emotional distress which might be visited upon that same employee. There are two standards, somewhat in tension with each other, for measuring the employer's conduct.
On the one hand, an employer can be subjective, inaccurate, arbitrary, and unfair in the relations leading to dismissal of *850 an at-will employee who is not otherwise protected from discrimination by membership in a protected class. Stevenson v. Lavalco, Inc., 28,020 (La.App.2d Cir.2/28/96), 669 So.2d 608. See also, Louisiana's statutes restricting specific discriminatory practices in employment, La. R.S. 23:312 for reasons of age; La. R.S. 23:961, et seq. for exercising political rights; La. R.S. 23:965 for serving as a juror; and La. R.S. 23:332 for race, color, religion, sex or national origin. Emotional trauma results in varying degrees when employees go through downward spirals that result in involuntary dismissal. The words commonly used for termination, "firing" or "axed," reflect a general understanding of the unpleasantness of the situation. While this "ordinary" emotional trauma is not actionable, it surely can be extremely traumatic, embarrassing, and disheartening when the worst of an employer's uncaring subjectivity results in the unfair dismissal of an employee. The employee trusts during his employment in the general, moral duty that one should not be led on and that an employer should be forthright with the employee in the expectations regarding continued employment. Nevertheless, the employer's hiding of unfair assessments with inaccurate information regarding the dismissal process is not fraud or actionable bad faith. Our law chooses not to involve itself with the unfair and subjective treatment leading to these broken at-will relationships in a manner which is somewhat analogous to no-fault divorce. The law encourages freedom to easily part ways over disputes regarding employment relations.
On the other hand, an employer can intentionally inflict emotional distress upon an employee that amounts to an actionable tortious offense. White v. Monsanto Co., as cited by the majority, recognized this cause of action which may occur both inside and outside the workplace. The emotional distress suffered therefore by the victim must be the product of conduct which stands apart from the conflict and ill-feelings which accompany a subjective and unfair termination of an employee. White defined the conduct as "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." White v. Monsanto Co., 585 So.2d at 1209.
Most significant, the jury in the present case was never given White's "extreme and outrageous conduct" definition for the tort of intentional infliction of emotional distress. Instead, under a section of the jury instructions entitled "Fraud and Intentional Infliction of Emotional Distress," the jury was informed that they could award tort damages for Allstate's misrepresentation of the truth or failure to tell the truth to the plaintiff with the intention either to obtain an unjust advantage or to cause a loss or inconvenience to the plaintiff. Such instruction conflicts with the at-will employer's right to be deliberately inaccurate in the reasons for dismissal. Nevertheless, citing the manifest error doctrine, the majority now defers to the jury's finding of the tort of intentional infliction of emotional distress without that jury being informed of White's onerous test for extreme and outrageous conduct.
A case which illustrates the distinction between the expected trauma of employment termination and trauma caused by extreme and outrageous conduct is Dean v. Ford Motor Credit Co., 885 F.2d 300 (5th Cir.1989). In Dean, the Texas plaintiff brought a Title VII gender-based claim for her discharge from employment. She claimed that she and other women were not promoted and that she ultimately suffered a retaliatory discharge. The plaintiff's evidence showed that after she questioned her employer's promotion system she began to be called upon unfairly to do more work in unfamiliar work settings. She was also singled out and subjected to additional periodic job performance reviews. Her job performance was downgraded by these performance reviews and she was eventually informed that she would be released after a final 60-day evaluation if her performance did not improve. While the evidence outlined in the *851 opinion of the United States Fifth Circuit showed that an unfair and manipulative performance review process was visited upon the plaintiff over a lengthy period of time, the court ultimately affirmed the district court's ruling that the employer in the at-will employment relationship had grounds to dismiss the plaintiff and to refuse her promotion and that no Title VII violation had occurred. But this was not the end of the dispute.
As an additional claim, the plaintiff presented evidence of an outrageous incident that occurred in the course of her termination ordeal which she charged as intentional infliction of emotional distress by her employer. The evidence showed, and the jury found, that while she worked in the capacity of a cashier processing checks, one of her supervisors had placed endorsed checks into her purse in an effort to set her up for a charge of theft. Affirming the jury's verdict that this incident had caused the plaintiff severe emotional distress, the federal court applied the "extreme and outrageous" conduct test and ruled:
The fact that the "check incidents" occurred and that the defendant was responsible for them is precisely what takes this case beyond the realm of an ordinary employment dispute and into the realm of an outrageous one. Such conduct simply will not be tolerated. In support of its argument the defendant notes that it never accused the plaintiff of theft and that merely imputing careless work habits to a plaintiff is not outrageous conduct. The fact that the defendant did not accuse the plaintiff of theft is irrelevant. Merely causing the innocent plaintiff to be subject to such an accusation of crime and putting her in fear that it might come passes the bounds of conduct that will be tolerated by a civilized society and is, therefore, outrageous conduct.
Id. p. 307.
Despite the added element of the plaintiff's Title VII claim which was not available to Nicholas in this case, the analysis in Dean demonstrates that an employee at-will may continue in employment over an extended period of unfair abuse and suffer great trauma with the false hope that persisting with the abusive employer might somehow bring about change and fairness. That cumulative trauma suffered at her own volition by the employee, who can but does not leave the abusive environment, may not be redressed. Nevertheless, an outrageous act by the employer may occur which, even when measured outside of the emotional distress of the workplace, is a recognizable independent tort.
I see no independent tort "going beyond all bounds of decency" in Allstate's insensitive and subjective performance review and dismissal of Nicholas, an underperforming employee by most standards. For many years following his termination until informed by Ebbs in 1992, Nicholas apparently also missed the outrageousness of his employer's termination process. This reveals the final flaw in the majority's reasoning for the test for extreme and outrageous conduct. The various incidents which allegedly support a pattern and cumulation of outrageous conduct ending with Nicholas' dismissal in 1985 must have likewise had a severe emotional impact upon Nicholas in a manner sufficient to give notice in 1985 of the outrageousness of Allstate's action. If the church camp firing was reprehensible, Nicholas understood and experienced that outrageous and reprehensible event at that time without the need to be informed of Allstate's ulterior motives. In other words, the valid prescription issue raised by Allstate also goes to the substance of the claimed infliction of emotional distress. Just as with the crime or intentional tort of assault, had the victim, Nicholas, not realized he was assaulted in 1985, Ebbs informing him many years later does not then create an actionable claim. No claim ever existed. Thus, Nicholas' lack of timely prosecution of his claim is most telling of the lack of substance of the alleged tort.
The extreme and outrageous conduct for the tort of intentional infliction of emotional *852 distress must be clearly seen apart from the inevitable conflicts and emotions of employee/employer relations. Citing what Monie said in private about Nicholas' scalp and the corporate "scum line," the majority now attributes more significance to those comments than to the profane tirade which the White employees experienced first hand. White's test for extreme and outrageous conduct has been misapplied by the majority in the significant setting of at-will employment, and I respectfully dissent.
APPLICATION FOR REHEARING
Before NORRIS, C.J., WILLIAMS, GASKINS, CARAWAY and DREW, JJ.
Rehearing denied.
NOTES
[1] We note that the three-part test set forth in White v. Monsanto, supra, was not included in the jury instructions although all parties requested that instruction. The definition for intentional act was included, however. The record does not reveal why the instruction was later omitted and only a general objection was made to the omission; however, neither side appealed this omission. We find that the failure to include the White v. Monsanto test does not render the jury charges so incorrect or inadequate as to preclude the jury from reaching a proper verdict based on the law and facts. Gulf States Land and Development, Inc., v. Ouachita National Bank in Monroe, 29, 134 (La.App.2d Cir.4/4/97), 705 So.2d 189, writs denied, 97-1160 and 97-1199 (La.9/19/97), 701 So.2d 168. Consequently, we will review this issue under the manifest error rule.
[2] The defendants also complained that the interest on damages awarded for future salary and commission were erroneously computed, but these damages have been reversed.
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388 F.3d 858
C.R. BARD, INC. and Davol Inc., Plaintiffs-Appellants,v.UNITED STATES SURGICAL CORP., Defendant-Appellee.
No. 04-1135.
United States Court of Appeals, Federal Circuit.
DECIDED: October 29, 2004.
Appeal from the United States District Court for the District of Delaware, Kent A. Jordan, J.
Claire Laporte, Foley Hoag LLP, of Boston, Massachusetts, argued for plaintiffs-appellants. With her on the brief was Peter B. Ellis.
Drew M. Wintringham, III, Clifford Chance US, LLP, of New York, New York, argued for defendant-appellee. With him on the brief was Mark W. Rueh.
Before NEWMAN, MICHEL, and PROST, Circuit Judges.
MICHEL, Circuit Judge.
1
C.R. Bard, Inc. and its subsidiary, Davol Inc., (collectively, "Bard") appeal from the December 10, 2003, final judgment of non-infringement of claim 20 of U.S. Patent No. 5,356,432 ("'432 patent") in favor of United States Surgical Corp. ("U.S. Surgical"). The appeal was submitted for decision following oral argument on September 8, 2004. Because the district court did not err in construing the mesh surgical plug of claim 20 as requiring a pleated surface, we affirm.
BACKGROUND
2
This patent case involves a device used to repair hernias. As explained by the district court, "[a] hernia is a relaxation or weakening of the muscle wall, usually in the lower abdomen, which permits tissue to protrude through the muscle wall defect." C.R. Bard, Inc. v. United States Surgical Corp., 102 F.Supp.2d 199, 201 (D.Del.2000) ("Claim construction order"). Put simply, a hernia defect is a hole in the muscle wall and the invention in this case is a device used to plug the hole. Indeed, devices such as the invention in this case are commonly called "plugs" in the art.
3
Traditionally, hernias were repaired by suturing together separated strands in the weakened muscle wall. Id. Prior to the '432 patent, the use of cylindrical plugs made of surgical mesh to repair hernias was known in the art. These mesh plugs filled at least some portion of the hernia defect and became fixed in place through "`fibroblasting,' wherein the muscle tissue attaches itself to the mesh." Id. Other mesh plugs were also known in the art, including a mesh plug rolled into a conical, rather than a cylindrical, shape and a mesh plug formed by suturing a square piece of mesh into a conical, four-lobed configuration. In addition to plugs, a method of repair in which a flat piece of surgical mesh was stapled or sutured over the hernia defect was also known.
4
On January 22, 1992, Drs. Ira Rutkow and Alan Robbins disclosed to Bard employees the invention that culminated in the device claimed in the '432 patent. See Claim construction order, 102 F.Supp.2d at 202 ("Bard's project notebook shows that Rutkow and Robbins contemplated using a 3-layered design, comprising an exterior, pleated layer, and two interior layers for support."). Although the exact relationship between Bard and Drs. Rutkow and Robbins does not appear to be in the present record, Bard claims, the district court stated, and U.S. Surgical does not dispute that Bard prosecuted the patent application that matured into the '432 patent on behalf of Drs. Rutkow and Robbins. See id.
5
The device claimed in the '432 patent is an implant that includes a mesh plug with a conformable surface and mesh filler material inside the plug. '432 patent, Abstract. The conformable surface allows the plug to fill irregularly shaped hernia defects more completely than other plugs. The mesh filler material provides bulk and stiffness to the implant.
6
The only claim at issue in this appeal is claim 20 of the '432 patent as amended during reexamination, which recites:
7
20. An implantable prosthesis for repairing a tissue or muscle wall defect, comprising:
8
a hollow plug, formed of a surgical mesh fabric having openings therein for tissue ingrowth, constructed and arranged to securely fit within and occlude the tissue or muscle wall defect and which is radially compressible upon insertion into the defect from a first configuration which is larger than the defect into a second configuration which approximates the shape of the defect, the surface of said hollow plug being conformable to irregularities in the tissue or muscle wall defining the defect upon insertion of said hollow plug into the defect, said hollow plug being extremely pliable, allowing localized portions of the hollow plug to adapt to irregularities in the tissue or muscle wall defect.
9
'432 Reexamination Certificate, col. 2, ll. 10-24 (original emphases and alteration noting deletion omitted; emphases added).
10
In the intrinsic record, the claimed plug is consistently described as having pleats. The Summary of the Invention states that "[t]he present invention is an implantable prosthesis" and that "[t]he implant includes a pleated surface which increases the pliability of the implant, allowing the prosthesis to conform to irregularities in the tissue or muscle wall surrounding the opening." '432 patent, col. 1, ll. 37 (first quotation); id. at col. 1, ll. 51-55 (second quotation; emphasis added). The Abstract describes "[a]n implantable prosthesis including a conical mesh plug having a pleated surface which conforms to the contours of the defect being repaired." Id., Abstract (emphasis added). Statements in latter sections in the specification describing preferred embodiments all refer to a pleated plug. E.g., id. at col. 2, ll. 56-60 ("The surface of the conical plug is pleated 18 which enhances the flexibility and pliability of the implant, allowing the device to conform to irregularities in the shape of the hernia without kinking.") (emphasis added); id. at col. 4, ll. 39-43 ("The resulting implant includes a hot molded conical plug with a pleated surface....") (emphasis added); id. at col. 5, ll. 37-40 ("The pleated surface is extremely pliable ....") (emphasis added). Finally, the prosecution history includes a number of arguments in which the claimed plug is distinguished on the basis that the claimed plug is pleated. In particular, during the reexamination, Bard stated that "the surface of the inventive plug is pleated." (Emphasis added.)
11
Bard brought suit against U.S. Surgical, claiming that U.S. Surgical made and sold a mesh plug that infringed claim 20 and induced surgeons to infringe method claim 21 of the '432 patent. In its claim construction order, the district court concluded that the plug in claim 20 must contain "pre-formed pleats."1 102 F.Supp.2d at 217. This conclusion was based alternatively on an examination of the specification and a conclusion that claim 20 contained means-plus-function limitations requiring pre-formed pleats. Id. at 215-17. Because the accused device admittedly did not include a pleated plug, the district court granted summary judgment that U.S. Surgical did not infringe claim 20 literally or under the doctrine of equivalents. C.R. Bard, Inc. v. United States Surgical Corp., 107 F.Supp.2d 489, 491-94 (D.Del.2000) ("Summary judgment order"). The district court, however, denied U.S. Surgical's motion for summary judgment on claim 21. Id. at 494. After Bard prevailed at a jury trial and in post-trial motions on claim 21, the parties settled their dispute involving claim 21. Bard timely appealed the final judgment as to claim 20, and we have jurisdiction under 28 U.S.C. § 1295(a)(1).
DISCUSSION
I. Applicable Law
12
"Determination of patent infringement requires a two-step analysis: (1) the scope of the claims must be construed; and (2) the allegedly infringing device must be compared to the construed claims." Mars, Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1373 (Fed.Cir.2004). We review the district court's claim construction de novo. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454-56 (Fed.Cir.1998) (en banc). The district court's grant of summary judgment of non-infringement is also reviewed without deference. Mars, Inc., 377 F.3d at 1373.
13
A long line of cases indicates that the intrinsic record is the primary source for determining claim meaning. E.g., Bell Atl. Network Servs., Inc. v. Covad Communications Group, Inc., 262 F.3d 1258, 1268 (Fed.Cir.2001); Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996); Autogiro Co. of Am. v. United States, 181 Ct.Cl. 55, 384 F.2d 391, 397-98 (1967). The intrinsic record includes the specification and the prosecution history. Masco Corp. v. United States, 303 F.3d 1316, 1324 (Fed.Cir.2002). Under this approach to claim construction, evidence extrinsic to the patent document "can shed useful light on the relevant art," but is less significant than the intrinsic record in determining the "legally operative meaning of disputed claim language." Vanderlande Indus. Nederland BV v. Int'l Trade Comm'n, 366 F.3d 1311, 1318 (Fed. Cir.2004). Particularly, our caselaw suggests that extrinsic evidence cannot alter any claim meaning discernible from intrinsic evidence. See, e.g., Intel Corp. v. VIA Techs., Inc., 319 F.3d 1357, 1367 (Fed.Cir. 2003) ("When an analysis of intrinsic evidence resolves any ambiguity in a disputed claim term, it is improper to rely on extrinsic evidence to contradict the meaning so ascertained.").
14
Language in some of our recent cases, however, suggests that the intrinsic record, except for the claims, should be consulted only after the ordinary and customary meaning of claim terms to persons skilled in the pertinent art is determined. See, e.g., Tex. Digital Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193, 1204 (Fed.Cir. 2002), cert. denied, 538 U.S. 1058, 123 S.Ct. 2230, 155 L.Ed.2d 1108 (2003). The language in these cases emphasizes technical and general-usage dictionaries in determining the ordinary meaning. Id. Under this approach, where the ordinary meaning of a claim term is thus evident, the inventor's written description of the invention, for example, is relevant and controlling insofar as it provides clear lexicography or disavowal of the ordinary meaning. See id. ("[T]he presumption in favor of a dictionary definition [of a claim term] will be overcome where the patentee, acting as his or her own lexicographer, has clearly set forth an explicit definition of the term different from its ordinary meaning. Further, the presumption also will be rebutted if the inventor has disavowed or disclaimed scope of coverage, by using words or expressions of manifest exclusion or restriction, representing a clear disavowal of claim scope.").
15
Bard cites these cases in a failed attempt to contend that dictionary definitions somehow trump or override the intrinsic record in determining the meaning of a claim term. Like the many other litigants who have advanced such a position, Bard extracts dicta from these cases that is taken out of context. Bard's reliance on Texas Digital Systems is a good example. Bard block quotes language from Texas Digital Systems, which advises that dictionaries might be more objective and reliable than other sources for determining the meaning of claim terms. Bard, however, fails to quote language from that opinion emphasizing the need to consult the intrinsic record, such as the following: "The objective and contemporaneous record provided by the intrinsic evidence is the most reliable guide to help the court determine which of the possible meanings of the terms in question was intended by the inventor to particularly point out and distinctly claim the invention." Tex. Digital Sys., Inc., 308 F.3d at 1203. Furthermore, Bard fails to recognize that the holding of Texas Digital Systems is narrow. The Texas Digital Systems court construed nine claims but used dictionary definitions in only two of its constructions. In those two constructions, the Texas Digital Systems court concluded that the dictionary definition and intrinsic record were consistent with one another. Thus, Texas Digital Systems cannot be read as holding that a dictionary definition trumps the intrinsic record.
16
Despite Bard's contentions to the contrary, cases such as Texas Digital Systems do not require, or even allow, the Court to disregard the intrinsic record. Instead, these cases merely suggest a methodology that emphasizes the use of dictionaries and claim that if courts adopt this methodology, claim terms "will be more accurately determined" and improperly narrow constructions "will be more easily avoided." Id. at 1205.
17
In any event, we need not decide in this case the precise relationship between ordinary and customary meaning, dictionary definitions, and the intrinsic record,2 because the district court's claim construction must be affirmed even under Bard's preferred methodology. As demonstrated below, both the specification and the prosecution history require that the plug in claim 20 be pleated.
II. Ordinary and Customary Meaning
18
Because we conclude that the district court's claim construction must be affirmed under either methodology offered by the parties, we begin by consulting the ordinary and customary meaning of the claim terms as requested by Bard.
19
Bard argues that the ordinary and customary meanings of the terms "conformable" and "pliable" do not require pleating. Bard proffers general-usage dictionary definitions for the terms "conformable" and "pliable." One representative definition of the term "conformable" is "corresponding; similar." American Heritage Collegiate Dictionary 292 (3d ed. 1993). A definition from the same dictionary for the term "pliable" is "easily bent," with synonyms including "flexible" and "supple." Id. at 1050-51.
20
Bard's dictionary definitions are largely unhelpful. First, even under the cases Bard cites, the ordinary and customary meaning of a term does not govern if the intrinsic record contains clear lexicography or disavowal of claim scope. Tex. Digital Sys., Inc., 308 F.3d at 1204. Because we conclude below that the intrinsic record demonstrates that the plug in claim 20 must be pleated, the ordinary and customary definitions of "conformable" and "pliable" are not controlling. Second, because claim scope in this case turns most directly on the term "plug," the proffered dictionary definitions of "conformable" and "pliable" are largely inapposite. Finally, we question the need to consult a dictionary to determine the meaning of such well-known terms. Courts, including the Texas Digital Systems court, regularly forgo detailed dictionary analyses if the term is as commonplace as "conformable" or "pliable." See, e.g., Tex. Digital Sys., Inc., 308 F.3d at 1207 (determining the ordinary meaning of "controlling the durations" without referring to a dictionary). Indeed, Bard itself "submits that merely rephrasing or paraphrasing the plain language of a claim by substituting synonyms does not represent genuine claim construction."
III. Specification of the '432 patent
21
U.S. Surgical contends that the plug in claim 20 must be pleated because, in various ways and places, the specification defines the claimed plug as including pleats.3 In two places, the patent describes in general terms what it deems to be the invention. In both places, the patent unequivocally defines the claimed plug as having pleats. First, the Summary of the Invention begins by stating that "[t]he present invention is an implantable prosthesis." '432 patent, col. 1, ll. 36. In the next paragraph, before the embodiments of the invention are described, the patent states that "[t]he implant includes a pleated surface." Id. at col. 1, ll. 51-52 (emphasis added). Second, the Abstract describes "[a]n implantable prosthesis including a conical mesh plug having a pleated surface which conforms to the contours of the defect being repaired." Id., Abstract (emphasis added).
22
Bard claims that a statement in the specification is not "determinative of claim construction merely because it appears in the `Summary of the Invention' section." Although a statement's location is not "determinative," the location can signal the likelihood that the statement will support a limiting definition of a claim term. Statements that describe the invention as a whole, rather than statements that describe only preferred embodiments, are more likely to support a limiting definition of a claim term. See Digital Biometrics, Inc. v. Identix, Inc., 149 F.3d 1335, 1347 (Fed.Cir.1998) (relying on "global comments made to distinguish the applicants' `claimed invention' from the prior art" during the prosecution of the patent in construing a claim term). Statements that describe the invention as a whole are more likely to be found in certain sections of the specification, such as the Summary of the Invention. See Microsoft Corp. v. Multi-Tech Sys., Inc., 357 F.3d 1340, 1348 (Fed.Cir.) ("Those statements, some of which are found in the `Summary of the Invention' portion of the specification, are not limited to describing a preferred embodiment, but more broadly describe the overall inventions of all three patents."), cert. denied, ___ U.S. ___, 125 S.Ct. 61, ___ L.Ed.2d ___ (2004). Accordingly, other things being equal, certain sections of the specification are more likely to contain statements that support a limiting definition of a claim term than other sections, although what import to give language from the specification must, of course, be determined on a case-by-case basis. In this case, the plug claimed by the '432 patent is defined globally as requiring a pleated surface, which limits claim 20.
23
Bard further contends that these statements do not limit claim 20 to pleated plugs because the statements are merely "passing reference[s]" and relies for this argument on Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898 (Fed.Cir.), cert. denied, ___ U.S. ___, 125 S.Ct. 316, ___ L.Ed.2d ___ (2004). Liebel-Flarsheim involved patents related to powered fluid injectors used in medical procedures. Id. at 900. The trial court construed the claims as requiring the use of a "pressure jacket," reasoning that the term "syringe receiving opening" was ambiguous and that each of the two embodiments in the specification disclosed the syringe receiving opening being located at the front end of a pressure jacket. Id. at 904. This court rejected the trial court's reasoning for several reasons, the first of which was that "[t]he specification does not define `opening' restrictively, nor is there anything in the specification that supports the district court's conclusion that the term is ambiguous." Id. at 905.
24
Contrary to Bard's characterization, the holding of Liebel-Flarsheim did not depend on the number of times the term "pressure jacket" was used or on details of preferred embodiments. Instead, the Liebel-Flarsheim court rejected the trial court's reasoning because, inter alia, the specification did not clearly define the term in question, even implicitly. In this case, however, the specification explicitly defines the inventive plug as "having" or "includ[ing] a pleated surface." See '432 patent, Abstract (first quotation); id. at col. 1, ll. 52 (second quotation). Accordingly, Liebel-Flarsheim provides no support for Bard's position.
25
Bard finally contends that these statements do not define the terms "conformable" and "pliable" as requiring pleating. Even if true, this argument is irrelevant because the statements define the words "implant" or "plug." In the Summary of the Invention, the phrase "includes a pleated surface" modifies the word "implant." See '432 patent, col. 1, ll. 51-55 ("The implant includes a pleated surface which increases the pliability of the implant"). In the Abstract, the phrase "having a pleated surface" modifies the word "plug." See id., Abstract (describing "[a]n implantable prosthesis including a conical mesh plug having a pleated surface which conforms to the contours of the defect being repaired"). Accordingly, whether or not the patent describes pleating as the only way to achieve conformability or pliability is irrelevant because the patent requires the "implant" or "plug" to have a pleated surface.
26
This point can also be made from another perspective. Claim 20 covers a specific structure, namely the surface of a mesh plug. Whether or not the patent states that pleating is the only structure that could achieve certain effects, such as conformability or pliability, is irrelevant because the patent defines the claimed structure as including pleats. In other words, because the language requiring pleating applies to the structure, not to the effects produced by the structure, Bard's contention that the patent does not state that pleats are the only way to achieve conformability and pliability is simply beside the point.
27
Both parties also point to the preferred embodiments. Under our precedent, a patentee's choice of embodiments can shed light on the intended scope of the claim, but a patent claim term is not limited merely because the embodiments in the specification all contain a particular feature. See Liebel-Flarsheim, 358 F.3d at 907-08. On the other hand, a construction that excludes a preferred embodiment "is rarely, if ever, correct." Vitronics Corp., 90 F.3d at 1583.
28
Bard points to language in the specification that does not use the term "pleated" to argue that a construction in which the plug in claim 20 must have a pleated surface would exclude a preferred embodiment. That language states in pertinent part, "In another embodiment of the invention, a filler body is positioned in a mesh cone and packs the implant when the plug is compressed by placement in the narrow hernia opening, providing the bulkiness believed to be essential for non-recurrent repair of abdominal wall hernias." '432 patent, col. 2, ll. 3-8 (emphasis added). Bard contends that construing claim 20 to require a pleated plug would improperly exclude this preferred embodiment, which describes a "mesh cone" without mentioning pleating.
29
We find this argument unpersuasive for two reasons. First, the "embodiment" to which Bard refers is merely a description of one aspect of the claimed implant, namely the filler body. That the patent does not explicitly mention the pleated structure of the plug's outer surface is unsurprising given the focus in that paragraph on the filler body, which is contained inside the surface of the plug. Second, because the patent globally defined the plug as having a pleated surface, the term "pleated" need not be repeated each time a term describing some other aspect of the plug is used. Accordingly, the failure to recite the term "pleated" before "mesh plug" does not mean that the patent discloses an embodiment with a non-pleated plug.
30
U.S. Surgical argues that the plug in claim 20 must be pleated because neither the embodiments nor the drawings describe a non-pleated plug. It is true that many of the descriptions of the plug in the specification explicitly require pleating and are strikingly similar to the language employed in claim 20. For example, the language of claim 20—"said hollow plug being extremely pliable, allowing localized portions of the hollow plug to adapt to irregularities in the tissue or muscle wall defect" —can be compared with the following language describing a preferred embodiment —"The pleated conical plug is extremely pliable, allowing localized portions of the implant to adapt to the irregular contour 40 of the defect." '432 Reexamination Certificate, col. 2, ll. 22-24 (first quotation); '432 patent, col. 4, ll. 45-48 (second quotation). The only significant difference between these two quotations is an explicit description of pleating. Similarly close comparisons can be made between other descriptions of preferred embodiments and the disputed terms in claim 20. Id. at col. 1, l. 66 to col. 2, l. 2; id. at col. 2, ll. 56-60; id. at col. 3, ll. 16-18; id. at col. 4, ll. 39-43; id. at col. 5, ll. 37-40; see also id. at col. 3, ll. 22-32 (describing multiple pleat configurations).
31
Accordingly, the specification demonstrates that Bard clearly defined the terms "implant" and "plug" in claim 20 as requiring a pleated surface. Statements of general applicability clearly define the claimed plug as "having" or "includ[ing] a pleated surface." See '432 patent, Abstract (first quotation); id. at col. 1, ll. 52 (second quotation). Further, statements describing preferred embodiments of the surface of the plug universally describe a "pleated conical plug." E.g., '432 patent, col. 4, ll. 45-48 (located in the Description of the Preferred Embodiments).
32
Although the statements in the specification suffice by themselves to demonstrate that the plug in claim 20 must be pleated, we also consider the prosecution history of the '432 patent, which confirms the analysis of the specification.
III. Prosecution History of the '432 patent
A. Initial Examination
33
The prosecution history of the '432 patent equally supports our conclusion that the plug in claim 20 requires a pleated surface. We begin with the initial examination.
34
On February 5, 1993, Bard filed a patent application with respect to the present invention by Drs. Rutkow and Robbins. The examiner rejected a number of the claims in the initial application that matured into the '432 patent, including claim 20 (application claim 21), on a variety of grounds. In response, Bard's attorney conducted an interview with the examiner and, thereafter, submitted an amendment and accompanying remarks. Of the amendments and arguments made by Bard, three merit discussion because they explicitly or implicitly address pleating.4
35
First, the examiner rejected claim 20 (application claim 21) based on U.S. Patent No. 5,147,374 ("Fernandez"). Fernandez disclosed a device used in hernia repair in which (1) surgical mesh was rolled into a tight cylinder, (2) one end of the cylinder was slit to produce flaps, (3) the non-slit portion of the cylinder was inserted into the hernia defect, and (4) the flaps along with a flat sheet of surgical mesh were stapled to tissue adjacent to the hernia defect. To overcome Fernandez, Bard argued that "the implant disclosed in Fernandez does not contain pleats, is not conformable to an irregular shaped defect, is not compressible into a reduced configuration which approximates the shape of the defect upon insertion therein and does not contain a filler body or freely moveable mesh petals as is claimed." (Emphasis added.)
36
Second, to overcome the examiner's rejection based on the indefiniteness of the claim language on compressibility, Bard argued that "the claims do not recite that the surgical mesh fabric is compressible but, rather, that the implant formed from such material is compressible from a first configuration which is larger than the defect into a second configuration which approximates the shape of the defect."
37
Third, in the interview, Bard demonstrated the difference in pliability and flexibility of the claimed device as compared to prior art devices. Bard later described this interview, arguing:
38
The claimed device easily assumed the shape of the irregular opening while the stiffer prior art devices left gaps around the boundary of the opening. It was also pointed out to the Examiner that the Fernandez plug does not contain pleats as is found in the preferred embodiment of the claimed device and as is expressly required by certain of the pending claims. It was further explained to the Examiner that it is the texturing of the implant which permits the claimed plug to conform to irregularities in the shape of the defect without kinking or buckling.
39
(Emphasis added).
40
Pleating is implicated in each of the responses to the examiner's rejections described above. In distinguishing Fernandez and describing the interview, Bard explicitly relied on pleating as a material distinction over the prior art. Further, Bard argued that compressibility is based on the configuration of the mesh surface, not the nature of the mesh fabric itself. The emphasis on the configuration of the mesh implicates pleating. Such an implication is also supported by Bard's argument that "it is the texturing of the implant which permits the claimed plug to conform to irregularities in the shape of the defect."
41
Although pleating is explicitly or implicitly described by each of these arguments, limiting claim 20 to require pleating based solely upon amendments and arguments made during the initial examination would likely be improper. Most importantly, because pleating is described in alternative arguments and many claims contain an explicit pleating limitation, the pleating arguments do not necessarily apply to claim 20. For example, Bard argued, "It was also pointed out to the Examiner that the Fernandez plug does not contain pleats as is found in the preferred embodiment of the claimed device and as is expressly required by certain of the pending claims." (Emphasis added.)
B. Reexamination
42
Having determined that amendments and arguments made during the initial examination suggest a close connection between pleating and claim 20 but do not necessarily require the plug in claim 20 be pleated, we now turn to the reexamination. Bard requested that the '432 patent be reexamined because of certain art that was submitted to the examiner but not considered during the initial examination.5
43
The reexamination focused on the latter of two articles authored by Ermanno E. Trabucco. See Ermanno E. Trabucco, A New Preperitoneal Plug Technic for Recurrent Groin Hernioplasty (undated manuscript) ("Trabucco"). In the request for reexamination, Bard described two ways in which the claimed device was distinguishable from Trabucco. First, Bard distinguished Trabucco by noting that the plug "disclosed in Trabucco I and II does not include a pleated surface." Second, the Trabucco plug "is stiff as compared to the flexible plug claimed in the '432 patent." Like arguments made during the initial examination, this argument describing pleating does not necessarily apply to and limit claim 20. Bard distinguished Trabucco using two alternative arguments, only one of which explicitly required pleating, and the reexamination initially involved all claims in the '432 patent.
44
The examiner allowed all device claims that expressly included pleating and rejected claims 19 and 20, which were the only device claims that did not expressly include pleating. The rejection of claims 19 and 20 was based on the examiner's determination that the Trabucco plug was radially compressible, flexible, and conformable.
45
In responding to the examiner's rejection, Bard clearly distinguished the plug claimed in claims 19 and 20 from Trabucco's plug on the basis of its plug having pleats. Bard began the response by addressing conformability, contending that it was demonstrated in the interview that the Trabucco plug was not radially compressible to the same degree as the claimed device. Next, in addressing flexibility and pliability, Bard stated:
46
As explained in the specification of the reexamination application, the surface of the inventive plug is pleated with [sic] enhances the flexibility and pliability of the implant, allowing the prosthesis to conform to irregularities in the shape of the hernia without kinking.
47
(Emphases added.) In the final argument, Bard again addressed conformability, arguing that the claimed device conforms "simply with insertion into the defect," whereas the Trabucco plug does not so conform.
48
U.S. Surgical contends, and we agree, that the statement "the surface of the inventive plug is pleated" is an unequivocal statement constituting a clear disclaimer of scope in claim 20. In the initial examination and early stages of the reexamination, alternative arguments based on pleating could not conclusively demonstrate that the plug in claim 20 must be pleated because other claims were at issue and those other claims expressly required pleating. But the only claims at issue when Bard stated that "the surface of the inventive plug is pleated" were claims 19 and 20, which were virtually indistinguishable from one another and neither of which expressly required pleating.
49
Bard counters that the statement "the surface of the inventive plug is pleated" referred only to the pleated preferred embodiment demonstrated to the examiner during the interview and contends, therefore, that the statement does not limit claim 20. Bard's argument is unpersuasive because the statement "the surface of the inventive plug is pleated" referred to the claimed plug in general, not merely to the embodiment demonstrated during the interview. This can be seen by the context of the statement, which was preceded by the words "[a]s explained in the specification" and was located in a different paragraph from the discussion of the interview. Additionally, the statement uses the term "the inventive plug," whereas the discussion of the interview in the preceding paragraph describes "a plug embodying the claimed invention."
50
Bard further argues that the statement "the surface of the inventive plug is pleated" is merely an inaccurate statement. See Storage Tech. Corp. v. Cisco Sys., Inc., 329 F.3d 823, 832 (Fed.Cir.2003) ("The applicants' inaccurate statement cannot override the claim language itself, which controls the bounds of the claim."). Bard, however, provides no evidence demonstrating that its statement was inaccurate or otherwise a mistake. Further, the context of this argument suggests that it was intentionally made to overcome a rejection by the examiner.
51
The examiner maintained the rejection of claims 19 and 20 but suggested that they would be allowed if specific means-plus-function language were inserted at the end of both claims. The examiner cited language from the specification that described a "pleated conical plug" in making this suggestion. In response, Bard stated that "[i]n accordance with the Examiner's suggestion, claims 19 and 20 have been amended to clearly distinguish the arrangement shown in the Trabucco article," but Bard failed to add the specific means-plus-function language required by the examiner to claim 20. The examiner then allowed claims 19 and 20, describing both as means-plus-function claims.
52
It is unclear what import, if any, to draw from Bard's failure to follow the examiner's suggestion for claim 20 as it did for claim 19. Although Bard did not add the term "pleated" or explicit means-plus-function language to claim 20, they did adopt language substantially identical to the language suggested by the examiner, which language implicitly required pleating.
C. Conclusion as to the Prosecution History
53
In examining the prosecution history, we note Bard made a number of arguments distinguishing the prior art on the basis that the prior art did not disclose a pleated plug. Many of these arguments are not necessarily applicable to claim 20 because the arguments related to claims in addition to claims 19 and 20 and were offered in the alternative with other arguments that did not address pleating. But in the only response in which claims 19 and 20 alone were considered, Bard made a clear statement to the examiner that "the surface of the inventive plug is pleated." This statement, when combined with the rest of the prosecution history, demonstrates that Bard therein clearly defined the plug of claim 20 as having pleats. Accordingly, the prosecution history provides an independent ground for construing claim 20 as requiring a plug with a pleated surface.
54
IV. Conclusion as to Claim Construction and Infringement
55
As described in detail above, Bard clearly defined the plug in claim 20 as having pleats in both the specification and the prosecution history. Accordingly, we affirm the district court's claim construction requiring "pre-formed pleats." Claim construction order, 102 F.Supp.2d at 217. Because an analysis of the intrinsic record suffices to support this construction, we do not consider, in the alternative, whether the district court properly construed claim 20 as containing means-plus-function limitations requiring pre-formed pleats even though claim 20 did not include the words "means for" or similar language.6 We thus need not decide whether the presumption against such a conclusion is overcome by determining whether claim 20, drawn to structure, fails to describe specific structure. We merely note that the district court's opinion contains extensive and careful reasoning to support such a construction.
56
Bard does not dispute that the district court's judgment of non-infringement must be affirmed if this Court affirms the district court's construction of claim 20. Accordingly, we affirm the district court's judgment of non-infringement of claim 20.
57
Accordingly, the judgment of the district court is
58
AFFIRMED.
Notes:
1
Although Bard contends that the plug in claim 20 does not need to be pleated, Bard does not dispute that the term "pleated" refers to pre-formed, permanent folds, rather than spontaneous pleat-like folds formed upon insertion of unpleated conical plugs
2
Resolution of this question may be approachingSee Phillips v. AWH Corp., 376 F.3d 1382 (Fed.Cir. July 21, 2004) (granting petition for en banc rehearing to address broadly the law of claim construction).
3
Despite the suggestion to the contrary in the concurrence, this opinion's use of the term "define" is not intended to invoke the theory that the inventors acted as lexicographers and redefined words differently from their ordinary meaning in the art. Instead, we use the term merely to denote that "the specification makes clear at various points that the claimed invention is narrower than the claim language might imply" based on a reading of the specification as a wholeAlloc, Inc. v. Int'l Trade Comm'n, 342 F.3d 1361, 1370 (Fed.Cir. 2003), cert. denied, ___ U.S. ___, 124 S.Ct. 2390, 158 L.Ed.2d 963 (2004). The term takes on similar meaning when applied in this opinion to the prosecution history.
4
The examiner also rejected claim 20 (application claim 21) based on U.S. Patent No. 2,836,181 ("Tapp"). Tapp disclosed a device that employed axial compressibility in repairing a damaged vein or artery. To overcome Tapp, applicants argued, inter alia, that "the pleated surface allows radial compression of the claimed device." Applicants also amended claim 20 (application claim 21) to include a claim limitation that the device be "radially compressible." '432 patent, col. 8, l. 18
5
The examiner had not considered the art because it was undated, and the examiner initially refused reexamination on the same ground. Thereafter, the Director of the Patent Examining Group granted patentees' petition for reconsideration of the examiner's denial of reexamination, determining that patentees had made a binding admission that the art cited was prior art
6
U.S. Surgical raises a number of additional arguments that need not be reached. These include whether claim 20 included a "kinking and buckling" limitation and whether statements applicants made during the prosecution of foreign patent applications limited the claims of the '432 patent
59
PROST, Circuit Judge, concurring-in-part and concurring in the result.
60
I concur with the majority's conclusion with regard to the reexamination. In this case, the inventors clearly and deliberately disclaimed any coverage of non-pleated plugs they might otherwise have had when they stated during reexamination that "the surface of the inventive plug is pleated" in an attempt to overcome the prior art-based rejections of claims 19 and 20. Under the theory that the inventors acted as lexicographers, the majority holds that this statement, among others, shows that the inventors "clearly defined the plug of claim 20 as having pleats." Ante, at 869 (emphasis added). The statement, in my view, is a surrender of claim scope, which precludes Bard from recapturing coverage of non-pleated plugs. Litton Sys., Inc. v. Honeywell, Inc., 140 F.3d 1449, 1458 (Fed. Cir.1998). Because the inventors clearly disclaimed coverage of non-pleated plugs in the reexamination, I believe we may affirm the judgment of the district court on that basis alone; accordingly, I find it unnecessary to reach the remaining grounds for affirmance relied upon by the majority.
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106 F.2d 420 (1939)
HAMMONDS
v.
COMMISSIONER OF INTERNAL REVENUE.
No. 1832.
Circuit Court of Appeals, Tenth Circuit.
August 30, 1939.
*421 Fred P. Branson, of Muskogee, Okl. (W. K. Garnett and Chas. H. Garnett, both of Oklahoma City, Okl., on the briefs), for petitioner.
Warren F. Wattles, Sp. Asst. to Atty. Gen. (James W. Morris, Asst. Atty. Gen., and Sewall Key, Sp. Asst. to Atty. Gen., on the briefs), for respondent.
Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.
PHILLIPS, Circuit Judge.
This is a petition to review a decision of the Board of Tax Appeals involving income taxes of Mamie S. Hammonds[1] for the years 1931 and 1932.
In exchange for personal services rendered in the state of Texas and elsewhere during coverture, petitioner acquired an undivided one-half interest in certain oil and gas leases situated in the state of Texas. She gave no consideration therefor other than her personal services.
Petitioner, her husband, O. O. Hammonds, and their co-owner sold and assigned certain of the leases in 1931 for an agreed cash consideration of $189,800, and a further consideration of $451,850 to be paid out of the assignee's share of the oil from the leases, as and when produced. $139,800 of the cash consideration was paid in 1931. The balance of the cash consideration remained unpaid due to the fact that certain checks given therefor were dishonored. An agreement was entered into whereby the unpaid balance of the cash consideration was to be paid in future installments. From the sale of the leases, petitioner and her husband received of the cash consideration $69,900 in 1931 and $17,392.50 in 1932. They also received from payments out of the oil produced $25,555.51 in 1932.
Petitioner and her husband filed separate income tax returns for the years 1931 and 1932 in which they treated the gain derived from the sale of the leases as community property and each returned one-half of such gain. They also treated the amount of the cash consideration paid in 1931 and 1932 as a cash bonus and claimed a depletion deduction of 27½ per cent thereof.
The Commissioner held that the entire consideration received for the leases in 1931 and 1932 was the separate property of petitioner, denied the depletion allowance, and proposed a deficiency against petitioner. The Board made a depletion allowance based on the payments received out of oil produced, otherwise sustained *422 the action of the Commissioner, and ordered a deficiency assessment of $4,896.24 for the year 1931 and $1,799.54 for the year 1932.
I. Were the Leases Community Property of Petitioner and O. O. Hammonds?
Petitioner and O. O. Hammonds were married in 1906 and since 1927 have been bona fide residents of Oklahoma City, Oklahoma. Under the laws of Oklahoma the earnings of the wife are her separate property.[2]
Under the law of Texas oil and gas in place are part of the realty and an oil and gas lease transfers to the lessee an interest in real estate.[3]
Articles 4613 and 4614 of Vernon's Ann.Texas Stat. Vol. 13, provide that all property, both real and personal, of a member of the community, owned or claimed by him or her before marriage and that acquired afterwards by gift, devise, or descent, and the increase of all lands thus acquired, and the rents and revenues derived therefrom, shall constitute his or her separate property.
Article 4619, Vernon's Ann.Texas Stat. Vol. 13, reads as follows:
"Sec. 1. All property acquired by either the husband or wife during marriage, except that which is the separate property of either, shall be deemed the common property of the husband and wife; * * * all the effects which the husband and wife possess at the time the marriage may be dissolved shall be regarded as common effects or gains, unless the contrary be satisfactorily proved."
It is a fundamental postulate of the community property system that whatever is gained during coverture, by the toil, talent, or other productive faculty of either spouse, is community property.[4]
Indeed, the sole source from which the community estate must arise is the toil, talent, or other productive faculty of the spouses and the earnings and income from community property itself.
While the community system is believed *423 to have had its origin in the Teutonic peoples, the community property statutes of Arizona, California, Idaho, Louisiana, New Mexico, Nevada, Texas, and Washington are drawn from the Spanish, Mexican, or French law. The statutes of France and Spain regulating the property rights of husband and wife were real, not personal, statutes. They operated on things and not persons and applied to all acquisitions made in those countries by married persons, whether resident or nonresident therein.[5]
And such is the construction placed upon the community property statutes of other jurisdictions where they are couched in general terms and make no reference to the residence of the spouses.[6]
In Heidenheimer v. Loring, 6 Tex.Civ. App. 560, 26 S.W. 99, 101, the court said:
"The statute of Texas declaring that all property acquired by either husband or wife during the marriage shall be deemed the common property of both will control as to real estate situated in Texas, *424 although the parties may both reside in another state, where a different rule of law may apply to such property."
In Monroig v. Parker, 6 Porto Rico Fed.Rep. 595, 600, 601, the court said:
"Complainants allege that this law does not apply to an American citizen not domiciled in Porto Rico. There might be some question on the evidence as to where the domicil of the defendants is, but that is not material. The lex rei sitae governs all matters relating to real property. Unless a foreigner is prohibited from owning land, or except so far as conditions are affixed to his ownership, he holds land in Porto Rico upon the same title as anyone else. It is not material whether he comes to Porto Rico to live or not. Whatever rights in real property are given to a married woman by the Porto Rican law apply, so far as relates to the land owned, to the wife of the landowner, whether she ever comes to Porto Rico or not. There cannot be two laws governing the same real property at the same time."
In 11 Am.Jur. p. 182, § 11, the rule is stated as follows:
"In the absence of an antenuptial contract between the parties, the respective rights of the husband and wife in real property are governed by the law of the place where such property is situated, rather than by the law of the domicil of the parties or of the place where the marriage was celebrated. Accordingly, upon consideration of comity, real estate acquired in a state by a nonresident married couple is governed by the lex rei sitae."
In 23 Tex.Jur. 146, § 117, it is said:
"If the parties have their domicile in Texas, their acquisitions of personal property in another state are governed by our laws. If the acquisition be of real property in another state, comity requires that the title be determined by the law of the state where it is situated. Upon the same consideration of comity, real estate acquired in Texas by a nonresident married couple is governed by our law."
The general rule in the community property states that marital rights in lands, regardless of the residence of the husband and wife, are regulated by the law of the situs is subject to the qualification that where property is acquired in a community property state, through purchase by funds which are the separate property of one of the spouses, or in exchange for separate property of one of the spouses, the character of the funds or of the property given in exchange is transmitted to the property acquired.[7] Separate property remains separate through all its mutations and changes so long as it can be clearly and indisputably traced and identified.
It is contended that the qualification should be extended to embrace not only property acquired with separate funds or through the giving in exchange of separate property, but also property acquired through the rendition of personal services. No authority is cited in support of this extension of the qualification to the general rule.[8] It is argued, however, that had petitioner received cash or other personal property in payment for her services, and with such cash or personal property acquired the leases in Texas, the latter would have been her separate property, and that the same result should follow where she exchanged her services directly for such leases.
To so hold would violate the fundamental concept of the community property system that property acquired during coverture through the toil, talent, or other productive faculty of either spouse is conclusively presumed to be community property. Furthermore, it would make the qualification or exception to the general rule that community statutes operate upon things and regulate the marital rights of land acquired in a community property *425 state by nonresidents as broad as the general rule itself, and leave no field of operation for the latter. Under the community property statutes, property acquired through gift, devise, or inheritance, and the increase or earnings thereof is separate property. Under the qualification, property acquired with separate property or funds is separate property. Community property is derived solely from the toil, talent, or other productive faculty of the spouses and from the earnings of community property itself. Thus, it will be seen that should we extend the qualification to embrace real property acquired through the toil, talent, or other productive faculty of the spouses, the result would be to encompass the general rule and make the qualification thereto the rule rather than the exception.
We conclude that the community property statute in Texas is a real statute; that it operates on things, not persons; and that real property acquired in the state of Texas during coverture by the toil, talent, or productive faculty of either spouse is community property, irrespective of the residence of the spouses.
The leases being community property, petitioner and O. O. Hammonds were entitled to file separate returns, each reporting one-half of the income derived from the sale thereof. See Poe v. Seaborn, 282 U.S. 101, 51 S.Ct. 58, 75 L.Ed. 239.
II. Was Petitioner Entitled to a Depletion Allowance?
The petitioner was not a lessor. Her sole interest was that of lessee. She sold and assigned the whole of that interest in 1931. The cash consideration was not in the nature of a bonus or advance royalty. Rather, it was a part payment for the interest sold and assigned. The sole economic interest reserved by petitioner was in the oil runs to the extent of the consideration to be paid out of such runs. Hence, any depletion allowance should be predicated on that economic interest. It follows that petitioner was not entitled to an allowance or deduction for depletion on account of the cash consideration.[9]
Reversed and remanded with instructions to modify the order in accordance with this opinion.
NOTES
[1] Hereinafter referred to as petitioner.
[2] O.S.1931, §§ 1659, 1665, 32 Okl.St. Ann. §§ 9, 15; Enid City R. Co. v. Reynolds, 34 Okl. 405, 126 P. 193; Muskogee Electric Traction Co. v. Green, 91 Okl. 200, 217 P. 155.
[3] Dunn v. Tennant, Tex.Civ.App., 82 S. W.2d 728; Stephens v. Stephens, Tex. Civ.App., 292 S.W. 290, 294; Sibley v. Pickens, Tex.Civ.App., 273 S.W. 897; Stephens County v. Mid-Kansas Oil & Gas Company, 113 Tex. 160, 254 S.W. 290, 29 A.L.R. 566; Chesson v. Commissioner, 5 Cir., 57 F.2d 141.
[4] De Blane v. Lynch & Co., 23 Tex. 25, 29; Logan v. Logan, Tex.Civ.App., 112 S.W.2d 515, 525; In re Pepper's Estate, 158 Cal. 619, 112 P. 62, 64, 31 L. R.A.,N.S., 1092; In re Caswell's Estate, 105 Cal.App. 475, 288 P. 102, 104; Seeber v. Randall, 9 Cir., 102 F. 215, 216; Speed v. Gilliland, Tex.Civ.App., 18 S. W.2d 762, 764; Strickland v. Wester, 131 Tex. 23, 112 S.W.2d 1047, 1048; Pottorff v. J. D. Adams Co., Tex.Civ. App., 70 S.W.2d 745, 746; Succession of Howell, 177 La. 276, 148 So. 48, 50; Drewett v. Carnahan, La.App., 183 So. 103, 107; Blair v. Roth, 9 Cir., 22 F.2d 932, 933; Pedder v. Commissioner, 9 Cir., 60 F.2d 866, 867; Shea v. Commissioner, 9 Cir., 81 F.2d 937, 939.
In De Blane v. Lynch & Co., supra, the court said: "It is true, that in a particular case, satisfactory proof might be made, that the wife contributed nothing to the acquisitions; or, on the other hand, that the acquisitions of property were owing wholly to the wife's industry. But from the very nature of the marriage relation, the law cannot permit inquiries into such matters. The law, therefore, conclusively presumes that whatever is acquired, except by gift, devise or descent, or by the exchange of one kind of property for another kind, is acquired by their mutual industry."
In Logan v. Logan, supra, the court said [112 S.W.2d 525]: "In addition to the statutory negative definition of community property, a positive definition approximately correct may also be framed out of the materials of the typical community of the Spanish law, and community property may thus be defined as all property and pecuniary rights obtained by, or in the name of, either spouse after the marriage, by toil, talent, thrift, energy, industry, or other productive faculty, and all the rents, issues, profits, fruits, and revenues of separate property."
In Seeber v. Randall, supra, the court said [102 F. 216]: "Under the community law of Spain and Mexico, the community property embraced, among other things, the rents, issues, and profits of the separate property of the spouses, and all property, of whatever nature, which the spouses acquired by their own labor and industry. Schm. Civil Law Spain & Mexico, art. 44, pp. 12, 13; 6 Am. & Eng. Enc. Law, 308, and notes."
[5] Saul v. His Creditors, 5 Mart.,N.S., La., 569, 16 Am.Dec. 212; Cole's Widow v. His Executors, 7 Mart.,N.S., La., 41, 18 Am.Dec. 241; Williams v. Pope Mfg. Co., 52 La.Ann. 1417, 27 So. 851, 859, 50 L.R.A. 816, 78 Am.St.Rep. 390.
In Cole's Widow v. His Executors, supra, the court said:
"In the case of Saul v. His Creditors [5 Mart.,N.S., La., 569, 16 Am.Dec. 212], which lately underwent so much discussion in this court, principles were established, which greatly facilitate the investigation of the rights of the parties now before us. It is true in that case, husband and wife had both resided in this state; and in the present instance, the husband alone lived in Louisiana. But we then determined that the law, or, to adopt the language of the jurisprudence of the continent of Europe, the statute, which regulated the rights of husband and wife, was real, not personal; that it regulated things, and subjected them to the laws of the country within which they were found. It follows, then, as a consequence, that property within the limits of this state, must, on the dissolution of the marriage, be distributed according to the laws of Louisiana, no matter where the parties reside; because, viewing the statute as real, it is the thing on which it operates that gives it application, not the residence of the person who may profit by the rule it contains. Quando verba consuetudinis, vel statuti, disponunt circa rem, tunc de bonis judicandum est secundum consuetudinem loci, ubi res sunt situat: quia consuetudo afficit res ipsas, sive possideantur a cive, sive a forensi. Greg. Lopez, Gloss. 2, Par. 4, tit. 11, 1. 24, Matienso, lib. 5, tit. 9, b. 2, gl. 1, n. 25. * * *
"The law of the fuero real, it is true, does not speak of one of the spouses coming into the country, nor does it provide for the case where both live under another government, at the dissolution of the marriage; but it is a necessary consequence of the statute being real, that the property acquired within the limits of the state, and found there on the marriage being dissolved, should be governed by its provisions, no matter where the parties reside."
In Williams v. Pope Mfg. Co., supra, the court said:
"It has been frequently held that the community law of this state is a real, and not a personal, statute; and the decisions on the subject refer to the opinion of our predecessors in the important and conspicuous case of Saul v. His Creditors, 5 Mart. (N.S.) [La.], 569 [16 Am.Dec. 212], as, the original source from which that doctrine emanated, in which the court, after a most extensive exploration of Spanish and French statutes and decisions interpreting them, and from which our statute is derived, made the following very conclusive statement, viz.: `We think the state and condition of both husband and wife are fixed by the marriage in relation to everything but property, independent of this law; and, as it regulates property alone, it is not a personal statute. * * * We consider it real.' (Our italics.) And, considering our community law a real statute, which deals with property that is situated in the state, and not with the personal rights or condition of the spouses, the court makes this observation, viz.: `On the subject before us the writers who treat of it * * * agree in stating that a real statute that is, one which regulates property within the limits of the state where it is in force controls personal ones, which follow a man wherever he goes. Indeed, it has been * * * admitted that where the personal statute of the domicile is in opposition to a real statute of situation, the real statute will prevail.' (Our italics.)"
[6] Monroig v. Parker, 6 Porto Rico Fed. Rep. 595, 600, 601; Jacobson v. Bunker Hill & S. Mining & C. Co., 3 Idaho, Hasb., 126, 28 P. 396; Heidenheimer v. Loring, 6 Tex.Civ.App. 560, 26 S.W. 99, 101; Gratton v. Weber, C.C.Wash., 47 F. 852; 31 C.J. § 1079, p. 14.
[7] Thayer v. Clarke, Tex.Civ.App., 77 S. W. 1050, 1052; In re Arms' Estate, 186 Cal. 554, 199 P. 1053, 1056; Brookman v. Durkee, 46 Wash. 578, 90 P. 914, 915, 12 L.R.A.,N.S., 921, 123 Am.St.Rep. 944, 13 Ann.Cas. 839; Mayor v. Breeding, Tex.Civ.App., 24 S.W.2d 542, 545; McKay on Community Property, 2d Ed., p. 431, § 639; 31 C.J. pp. 14, 15, §§ 1077, 1079.
[8] Joiner v. Joiner, 131 Tex. 27, 112 S. W.2d 1049, is distinguishable. There, the real estate was acquired in Texas, not through the exchange of personal services, but with funds which were the earnings and separate property of the husband. Furthermore, Joiner and his wife separated in 1908 and were living separate and apart when the funds with which the Texas properties were purchased were earned by Joiner.
[9] Commissioner v. Fleming, 5 Cir., 82 F.2d 324; Darby-Lynde Co. v. Alexander, 10 Cir., 51 F.2d 56; Helvering v. Elbe Oil Land Development Co., 303 U. S. 372, 58 S.Ct. 621, 82 L.Ed. 904; Laird v. Commissioner, 5 Cir., 97 F.2d 730.
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351 So.2d 1 (1977)
Dr. Leslie S. WRIGHT et al.
v.
Edward P. TURNER et al.
Dr. Leslie S. WRIGHT et al.
v.
Charles M. HOHENBERG et al.
Dr. Leslie S. WRIGHT et al.
v.
James J. CARTER et al.
SC 2564-SC 2566.
Supreme Court of Alabama.
September 23, 1977.
As Corrected On Denial of Rehearing November 4, 1977.
William J. Baxley, Atty. Gen., and William T. Stephens and Winston T. Lett, Asst. Attys. Gen., State of Alabama, for appellants.
William H. Morrow, Jr. and Truman Hobbs, Montgomery, for appellees.
BLOODWORTH, Justice.
By these three consolidated appeals, Act No. 130, the State Ethics Act (Acts of Legislature, Regular Session 1975, Vol. 1, page 604) which amended and re-enacted the former Ethics Act (Act No. 1056, Regular Session *2 1973, Vol. III, page 1699) is being challenged again. For the history of these two acts, see Mr. Justice Beatty's opinion for the Court in Comer v. City of Mobile, 337 So.2d 742 (Ala.1976), in which we disposed of the several constitutional challenges there presented to Act No. 130.
Two principal issues are raised by these appeals. First, are members of the Board of Bar Commissioners of the Alabama State Bar, members of the Judicial Compensation Commission, and members of the Court of the Judiciary "public officials" within the meaning of that term in the State Ethics Act and thus subject to the Act? Second, would application of the Ethics Act to these parties violate the "separation of powers" doctrine of the Alabama Constitution?
We answer the first question in the negative and therefore need not reach the constitutional issue. Moreover, we do not consider the constitutional validity of a statute unless essential to a disposition of the cause. Rainey v. Ford Motor Credit Co., 294 Ala. 139, 313 So.2d 179 (1975); City of Mobile v. Gulf Dev. Co., 277 Ala. 431, 171 So.2d 247 (1965).
These cases commenced on May 19, 1974, when appellees Edward Turner, et al., Charles M. Hohenberg, et al., and James J. Carter, et al., who are members of the Board of Bar Commissioners of the Alabama State Bar Association, the Judicial Compensation Commission, and the Court of Judiciary, respectively, instituted these actions against appellants, members of the Alabama State Ethics Commission and the Attorney General of Alabama, seeking to restrain them from applying and enforcing the provisions of the 1973 Ethics Act to them in their capacity as members of these entities. On May 15, 1974, Circuit Judge Eugene Carter entered a temporary restraining order; on May 21, 1974, he entered a preliminary injunction.
Appellants thereafter filed answers to appellees' complaints denying the substantive allegations of the complaints and incorporating motions to dismiss them.
By agreement of counsel for all parties, further proceedings were suspended pending final determination of the constitutionality of the 1973 Ethics Act. On November 19, 1974, Judge Carter upheld the constitutionality of the Act.
On August 7, 1975, the Alabama Legislature passed an amended and re-enacted Ethics Act over the Governor's veto. This 1975 amended version withstood a challenge to its constitutionality by the City of Mobile and certain individuals in Comer v. City of Mobile, supra, although two of its provisions were held to be unconstitutional.
Subsequently, at a pre-trial hearing of these cases, appellees filed an amendment to their complaints advancing the same challenges to the 1975 Ethics Act as they had made to the 1973 version. Appellees further averred that appellants' attempt to apply the provisions of the 1975 Ethics Act to them violated the "separation of powers" clauses of the Alabama Constitution of 1901, contained in sections 42, 43, and 139 et seq.
On May 4, 1977, Circuit Judge William Thetford, to whom the case had been reassigned upon the retirement of Judge Carter, entered a permanent injunction, enjoining appellants from taking any action to apply any of the provisions against appellees or their successors in office solely by reason of their service as members of these entities.
We now proceed to consider whether appellees are "public officials" within the meaning of that term in the Act.
Section 2(k) of the Ethics Act defines "public official" as follows:
"(k) `Public Official' means any elected official at the state, county, or municipal level of government and any person appointed under state, county, or municipal law to an office where in the conduct of such office such person has administrative and discretionary authority for the receipt or expenditure of public funds. This definition shall also include members of state boards, commissions, committees, councils and authorities, however selected, Presidents, Vice-Presidents, Chief *3 Purchasing Officials and Chief Financial Officials of all schools, colleges and universities of the State; members of city and county industrial boards, planning and zoning boards, school boards, boards of adjustment, utility boards, housing boards, public hospital boards, and any boards, commissions, committees, authorities or councils having jurisdiction with respect thereto, in all cities whose population is more than 15,000 according to the last decennial census.[1] This definition excludes members of all other boards not named including but not limited to those commissions, committees, councils, boards or authorities, functioning solely for cultural or historical purposes and advisory board members and members of boards of trustees of institutions of higher learning of the State of Alabama."
In interpreting the provisions of a statute, we must ascertain and effectuate the intent of the legislature. Tillman v. Sibbles, 341 So.2d 686 (Ala.1977); State ex rel. City of Birmingham v. City of Tarrant City, 294 Ala. 304, 315 So.2d 583 (1975).
In ascertaining legislative intent, we are entitled to consider conditions which may arise under the provisions of statutes and to examine the results which will flow from giving the language in question a particular meaning over another. League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974).
At the outset, we should say that the express provisions of § 2(k) of the Ethics Act leave this matter in some doubt. Nowhere does the statute explicitly refer to the Board of Bar Commissioners of the Alabama State Bar, the Judicial Compensation Commission, or the Court of Judiciary. Appellants earnestly contend that the following language clearly demonstrates that appellees are covered by the Ethics Act: "This definition (public officials) shall also include members of state boards, commissions, committees, councils and authorities, however selected . . .." Appellees just as vigorously contend that the above-quoted language is not dispositive of the issue, and insist that the following language demonstrates that they are not covered by the act: "This definition excludes members of all other boards not named including, but not limited to those commissions, committees, councils, boards or authorities, functioning solely for cultural or historical purposes and advisory board members . .."
Upon close examination, we think it clear that none of the appellees are covered by the Ethics Act, and, therefore, that none need comply with it.
Under the statutory definition, these appellees are not "elected officials." Nor are they "appointed [officials who] in the conduct of such office . . . [have] administrative and discretionary authority for the receipt or expenditure of public funds," with, perhaps, the possible exception of the Bar Commissioners.
The plainest case is that of the Judicial Compensation Commission. Although it is a constitutionally mandated body and is required to "recommend to the legislature the salary and expense allowances to be paid from the state treasury for all judges of this state except for municipal and probate judges," its members are expressly excluded from the definition of "public officials" found in the Ethics Act.
This is equally true for the Court of Judiciary. Its five members' primary function is to hear complaints filed against judges by the Judicial Inquiry Commission. Since its creation four years ago, it has convened for no more than a few times each year. Its members serve without pay in a position which may be charitably characterized as "thankless." Plainly, we think, the members of the Court of Judiciary are not "public officials."
Likewise, it seems clear to us that the members of the Board of Bar Commissioners of the Alabama State Bar Association are not "public officials" either.
*4 It might be argued that because the Bar Commissioners receive and expend public funds through their discretionary budgeting of receipts from lawyers' licenses, they fall within the second part of the definition. Tit. 46, § 32, Code of Alabama 1940 (Recompiled 1958). But, we think not for the reasons which hereafter appear.
The members of the Board of Bar Commissioners act on matters relating exclusively to their professional association of attorneys. They serve without pay. They are required to meet once each year, although in practice, they usually meet five or six times annually. Their significant duties, with respect to disbarment and reinstatement, are subject to Supreme Court review. Clearly, they should not be characterized as "public officials" in any common sense or legal definition of the term.
Historic definitions as to the meaning of the term "public officers" are not particularly helpful to us in a resolution of the question as to whether members of the Board of Bar Commissioners are, or are not, "public officials" within the meaning of that term in the Ethics Act. Nevertheless, we proceed to examine those definitions found in our case law.
In State v. Baumhauer, 244 Ala. 1, 7, 12 So.2d 326, 330 (1942), the following appears: "[I]n Harrington v. State, 200 Ala. 480, 76 So. 422, 423, it is pointed out that `when we speak of a public officer as a state, county, or municipal officer, we usually mean a person who, by lawful authority, has been invested with a part of the sovereign functions of government.'"
In State v. Stone, 240 Ala. 677, 680, 200 So. 756, 758 (1941), we find the following: "It seems to be well settled that one who performs a public function, and his authority is derived directly from the state by legislative enactment, and the law prescribes his duties, powers, and authority, such an one is a public officer of the state."
In Hard v. State, 228 Ala. 241, 153 So. 725, 726, the above quoted language from State v. Stone appears. The opinion also quotes from United States v. Hartwell, 6 Wall. (73 U.S.) 385, 393 18 L.Ed. 830: "An office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument, and duties."
Members of the Board of Bar Commissioners do have some functions which derive directly from legislative enactments. See Tit. 46, § 25, Code of Alabama 1940. It is clear, however, from the terms of the Code, that their duties are, for the most part, dependent upon Supreme Court approval.
This dependency was underscored in the opinion authored for the Court by Justice Shores in Board of Commissioners, Alabama State Bar v. State ex rel. Baxley, 295 Ala. 100, 109, 324 So.2d 256, 262 (1975): "Although the Board (of Bar Commissioners) was created by the legislature, it was created as an arm to this court and any action by the Board is subject to review or approval by this court. The legislature has not created an entity which is not subject to control or regulation, the Board is subject to the control of this court."
Moreover, the members of the Board receive neither emolument nor salary by virtue of their membership on the Board, although they do receive reimbursement for actual expenses.
There are two more reasons we may give for the result we reach in these cases.
The first reason emanates from the long-standing maxim of statutory construction that a reviewing court is bound to presume that the legislature, when amending a statute, was aware of the judicial construction placed upon it and that, absent indications of intent to the contrary, the legislature did not see fit to change such judicial construction in the course of the amendment. Coden Beach Marina, Inc. v. City of Bayou La Batre, 284 Ala. 718, 228 So.2d 468 (1969).
The first Ethics Act, passed in 1973, did not use the term "public official" nor did the definition of that term correspond with any term we find in the 1973 Ethics Act, except for the following. The 1973 Act employed the term "state official" and defined it thusly:
*5 "(k) `State Official' means any elected official of the legislative, judicial, or executive branch of state government, and any person appointed under Alabama law to an office in either branch where, in the conduct of such office, administrative and discretionary powers attend the appointment. Also, this definition shall mean an appointed member of any commission or committee which has administrative or policy-making control of any governmental function, but shall not mean members of commissions or committees functioning solely for advisory or research purposes."
This definition, which appears to be much broader than the present act, in encompassing even more persons, was nevertheless held not to include appellees by the decision of the Circuit Court of Montgomery County in 1974. When the Ethics Act was revised in 1975, the legislature did not specifically list appellees in the definition of the term "public official." This being so, we think it clear that the above-cited rule of statutory construction dictates the conclusion we reach.
The other reason for the result we reach is as follows. The avowed purpose of the Ethics Act is to eliminate conflicts of interest between the private interests of an elected official or a government employee and his (her) duties as such. Appellants do not suggest, in brief, a single instance in which appellees might become involved in a conflict of interest by reason of their service on these entities. However, the dissent suggests that conflicts could arise if a bar commissioner or attorney member of the Court of Judiciary solicited or received a gift or favor in return for his vote or if a lawyer member of the Judicial Compensation Commission used his official position to obtain personal financial gain for himself by arranging for his assignment as a guardian ad litem. In the unlikely event that such actions did occur, they would constitute violations of one or more provisions of the Code of Professional Responsibility governing attorneys and would subject them to disbarment.
In sum, the dissent would have it both ways! On the one hand, it says these appellees are "public officials," under the Ethics Act; therefore, they have to comply with the provisions requiring the filing of financial disclosure statements. On the other hand, it says these appellees do not have to comply with the other provisions of the Act "dealing with restrictions and prohibitions on the actions of public officials."
Public officials are public officials. Either these appellees are, or they are not, public officials. If they are, as the dissent suggests, they are subject to all provisions. If they are not, as we hold, they are subject to none of the Act's provisions. To hold otherwise would constitute judicial legislation.
Appellants argue that our holding will place appellees above the law and make them immune from compliance with ethical standards. This is patently untrue. Those members of these entities who are attorneys are subject to the Code of Professional Responsibility, with its attendant "Ethical Considerations" and "Disciplinary Rules." Those members who are judges are bound by the Canons of Judicial Ethics. And, of course, all members are bound to obey the law or suffer the consequences.
AFFIRMED.
FAULKNER, JONES, ALMON, SHORES, and EMBRY, JJ., concur.
BEATTY, J., concurs specially.
TORBERT, C. J., and MADDOX, J., dissent.
BEATTY, Justice (concurring specially).
I concur in the majority opinion but for a different reason. In my opinion, the "public officials" covered by the Ethics Law are only those who have "administrative and discretionary authority for the receipt or expenditure of public funds," and I believe it is implicit in the findings of the lower court that these officials have no such authority. See the definition of "public official" in the Amendatory Act, Act No. 130, and referred to in Comer v. City of Mobile, 337 So.2d 742 (Ala.1976).
*6 TORBERT, Chief Justice (dissenting):
Ethics or conflict of interest statutes are of recent vintage. One legislative enactment (1975 Ala. Acts Reg. Sess. No. 130) attempts to deal with (1) persons elected at the state, county, or municipal level of government, (2) persons appointed under state, county or municipal law to an office involving administrative and discretionary authority over public funds, and (3) members of state boards, commissions, committees, councils and authorities, however selected; therefore it necessarily follows that the scope and application of such statute be broad. The difficulty presented by specificity, usually sought in statutory law, is further compounded where, as here, it is necessary to delicately balance the equities between the public's right to know and to foster the public interest over private gain, and at the same time encourage, recruit and retain those best qualified to render public service. The worthy goal that there be confidence in the integrity of our government is further complicated by the fact that, in our scheme of government in this state, citizens are called upon to render public service on a part-time basis (and sometimes without any compensation). The government must not unduly restrict their opportunity to acquire and retain private economic interests which are available to all citizens.
The legislature, in the exercise of its lawful powers, passed Act No. 130 (codified at Ala. Code tit. 55, §§ 327(8)-327(37) (Interim Supp.1975)) in the 1975 regular session in recognition of the fact that:
"It is essential to the proper operation of democratic government that public officials be independent and impartial; that governmental decisions and policy be made in the proper channels of the governmental structure; that public office not be used for private gain other than the remuneration provided by law; and that there be public confidence in the integrity of government."
Ala. Code tit. 55, § 327(8)(a) (Interim Supp. 1975) (emphasis added). This statement indicates that the legislature intended Act No. 130 to be broad in its coverage. However, the legislature also intended the enforcement of the provisions of Act No. 130 to be balanced with the prevention of undue restrictions on the outside employment of part-time public officials:
"It is the policy and purpose of this chapter to implement these objectives of protecting the integrity of all governmental units of this state and of facilitating the recruitment and retention of qualified personnel by prescribing essential restrictions against conflicts of interest in state government without creating unnecessary barriers to the public service."
Ala. Code tit. 55, § 327(8)(d) (Interim Supp. 1975). Thus, while I dissent from the majority's holding that the appellees are not "public officials," it does not necessarily follow that all of the provisions of Act No. 130 must be applied to the appellees.
The majority is in error in its assertion that the members of the Board of Bar Commissioners, the Court of the Judiciary, and the Judicial Compensation Commission are not "public officials" within the context of Act No. 130. Though the statute does not expressly mention these governmental bodies by name, the construction of "public official" must necessarily be broad. Ala. Code tit. 55, § 327(9)(k) (Interim Supp.1975). It is noted that the statutory definition includes "members of state boards, commissions, committees, councils and authorities, however selected." Id. The majority holds that, in any case, the members of the Judicial Compensation Commission are "advisory board members," and thus are expressly excluded from the definition of "public official." Id. This proposition, though possessing logical appeal at first glance, is also in error. The members of the Judicial Compensation Commission are empowered to make recommendations to the legislature in regard to judicial salaries. Ala. Const. art. 6, § 148(a). Though this appears to be an advisory function, it must be noted that the recommendations of the commission become law unless rejected or altered by the legislature. Id. § 148(d). This potential power of appropriation removes the commission from the category of "advisory board."
*7 In addition to the Act's definition of "public official," it is helpful to consider this court's interpretation as to public officials generally. Using the identical case authority cited by the majority, it seems abundantly clear that members of the Board of Bar Commissioners of the Alabama State Bar, the Judicial Compensation Compensation, and the Court of the Judiciary are, in fact, public officials under our previous decisions. A public official usually means "a person who, by lawful authority, has been invested with a part of the sovereign functions of government." Harrington v. State ex rel. Van Hayes, 200 Ala. 480, 481, 76 So. 422, 423 (1917). He is "one who performs a public function, and his authority is derived directly from the state by legislative enactment," and through such law his duties, powers and authority are prescribed. Hard v. State ex rel. Owen, 228 Ala. 241, 242, 153 So. 725, 726 (1934); accord, State ex rel. Haas v. Stone, 240 Ala. 677, 680, 200 So. 756, 758 (1941).
As to the Board of Bar Commissioners, the administration of laws relating to the examination of applicants for the license to practice law and the administration of rules governing discipline of lawyers are all a part of the sovereign functions of government, and these duties and powers are prescribed by statute. Ala. Code tit. 46, § 25 (1958). To hold that members of the Board of Bar Commissioners are not "public officials" because they have duties which are dependent upon Supreme Court approval is without merit. The fact that a public official is supervised by or subject to regulation or approval of a higher official or body does not lessen the importance of the official public function of that person.
The Court of the Judiciary, as well as the Judicial Compensation Commission, were created under the new Judicial Article to the Alabama Constitution. The members of these governmental bodies exercise significant state powers which are specified in the constitution. The members of the Court of the Judiciary have the power to remove from office, suspend, or censure a state judge. Ala. Const. art. 6, § 157(a). The powers and duties of the members of the Judicial Compensation Commission are also significant as previously discussed.
The members of the Board of Bar Commissioners, the Court of the Judiciary, and the Judicial Compensation Commission occupy offices created by state law, and they exercise specified powers as defined by the Alabama Constitution or by statute. It matters not that they receive no salary by virtue of their office so long as they derive their powers, duties and authority from law and are invested with a part of the sovereign functions of government. They fit within the definition of "public official" in Title 55, section 327(9)(k) of the Alabama Code (Interim Supp.1975).
The majority argues that the legislature, when amending the Ethics Act in 1975, was aware that the Circuit Court of Montgomery County had held that the statutory definition in the 1973 Act did not cover the appellees. Since the legislature did not specifically list the appellees in the 1975 Act, the majority feels that Act No. 130 was not intended to be applied to the appellees under the authority of Coden Beach Marina, Inc. v. City of Bayou La Batre, 284 Ala. 718, 228 So.2d 468 (1969). The majority's reliance on Coden Beach is misplaced for two reasons. First, the court in Coden Beach was dealing with a previous Supreme Court construction of a particular legislative actnot a circuit court ruling on the viability or coverage of the act. Id. at 723, 228 So.2d at 471-72. Second, the circuit court decision cited by the majority merely granted a preliminary injunction to the appellees; there was no adjudication on the merits of their construction of the statute.
Act No. 130 has already been attacked as "vague and overbroad," but in our recent case of Comer v. City of Mobile, 337 So.2d 742 (Ala.1976), we held:
"After careful consideration of the foundation of the trial court's decree and our own consideration of the merits of this challenge, we find that the Act itself is not vague or overbroad."
Id. at 750. Nevertheless, the appellees argue that, since the objective behind Act No. *8 130 is to eliminate conflicts of interest, the application of the Act to them would be overbroad since no conflict of interest could arise by their service on these governmental bodies. The majority agrees with this assertion. However, it is obvious to me that conflicts could clearly arise. Surely a bar commissioner or a lawyer-member of the Court of the Judiciary should not solicit nor receive "anything of value, including a gift, favor or service or a promise of future employment, based on any understanding that [his] vote . . . [in a proceeding to discipline a lawyer or judge] would be influenced thereby." Ala. Code tit. 55, § 327(11) (Interim Supp.1975). Surely no lawyer-member of the Judicial Compensation Commission should use his "official position or office to obtain direct personal financial gain for himself" by arranging for his assignment as a guardian ad litem for injured minors seeking court approval of settlements. Id. § 327(10)(a). The fact that such conflicts might actually arise proves that the legislature did not enact an overbroad statute.
On the other hand, I do not believe that an actual or potential conflict of interest could arise to warrant proscribing the appellees from receiving "any money . . for advice or assistance on matters concerning the legislature." Id. § 327(12). I would hold such restrictions to be overbroad in regard to the appellees and in no way reasonably related to the evils sought to be eliminated. The appellees are part-time public officials who serve without compensation. They must rely on outside employment for their living. Thus, the public's interest in governmental integrity must be balanced with the appellees' interests in serving the public without having their outside employment overly restricted. LegislationConflicts of Interest: A New Approach, 18 U.Fla.L.Rev. 675, 684 (1966). Therefore, I would hold that those provisions in Act No. 130 dealing with restrictions and prohibitions on the actions of public officials should not be applied to the appellees unless it could be shown that such provisions rationally relate to the elimination of actual conflicts of interest. Manning, The Purity Potlatch: An Essay on Conflicts of Interest, American Government, and Moral Escalation, 24 Fed.B.J. 239, 255 (1964).
I base my construction of Act No. 130 in accordance with the following well-established rule:
"Where the terms of a statute do not indicate with reasonable certainty their intended application to particular cases, though their general intent and application are clear, they should be given such a construction as is conducive to fairness and justice, and in harmony with the general spirit and policy of the statute, rather than one which is offensive thereto, if that construction is reasonably consistent with the language used."
Age-Herald Pub. Co. v. Huddleston, 207 Ala. 40, 45, 92 So. 193, 197 (1921) (emphasis added); accord, Cole v. Gullatt, 241 Ala. 669, 672, 4 So.2d 412, 415 (1941). "The fact that a statute might be susceptible of misapplication does not necessarily make it unconstitutional," Stein v. Howlett, 52 Ill.2d 570, 580, 289 N.E.2d 409, 414 (1972), therefore to avoid an unconstitutional application of Act No. 130, I would limit certain provisions of the Act with regard to the appellees. Such limitations "can best be [further refined] when actual cases requiring such interpretation are presented." Stein v. Howlett, 52 Ill.2d at 581, 289 N.E.2d at 415. The limitations arrived at above clearly follow from an examination of not only the general language of the Act, "but also from the reason and necessity for the act, the evil [conflicts of interest] sought to be remedied, and the object and purpose sought to be obtained." Rinehart v. Reliance Insurance Co., 273 Ala. 535, 538, 142 So.2d 254, 256 (1962); accord, Cole v. Gullatt, 241 Ala. 669, 672, 4 So.2d 412, 415 (1941).
The appellees, as public officials, come within the ambit of Act No. 130, and the financial disclosure provisions of the Act are rationally related to the legislative goal of eliminating conflicts of interest. It has been stated that:
*9 "The public's right to know and the government interest in both the prevention of official misconduct and the cultivation of public confidence in the integrity of government outweigh the public servant's interest in financial privacy so long as the disclosure statute is not overbroad in its reach."
Staines, A Model Act for Controlling Public Corruption Through Financial Disclosure and Standards of Conduct, 51 Notre Dame Law. 636, 663 (1976). The disclosure requirements in Act No. 130 are not overbroad, Ala. Code tit. 55, § 327(19) (Interim Supp.1975), and they rationally relate to the compelling legislative goal stated in section 327(8)(a). The appellees should be required to file in accordance with Act No. 130, and the restrictive provisions should be tempered or simply not applied to the appellees in accordance with the legislative purpose behind the Act. Ala. Code tit. 55, § 327(8)(d) (Interim Supp.1975).
Purity in government is a splendid ideal, but "one ideal pursued singlemindedly will eventually collide with another equally valid" one. Manning, supra at 256. Aided by established rules of statutory construction viewed in the light of modern circumstances, this court is called upon to resolve the delicate balance between public and private interests in the case at hand.
MADDOX, Justice (dissenting).
I can neither agree with the majority opinion nor with the Chief Justice's dissent, except I do agree with one short paragraph in the majority opinion which is directed at the Chief Justice's dissent, and which reads:
"Public officials are public officials. Either these appellees are, or they are not, public officials. If they are, as the dissent suggests, they are subject to all provisions. If they are not, as we hold, they are subject to none of the Act's provisions. To hold otherwise would constitute judicial legislation."
The legislature very carefully defined "public official." It used specific words such as "this definition shall also include" and "this definition excludes" and the original Act which is filed with the Department of Archives and History shows that the "public official" definition was amended by both houses of the legislature. I believe that the legislature was well aware of which "public officials" it intended to include and exclude. Whether these particular "public officials" should or should not have been included was a question addressed to legislative choice and the intent of the legislature is plain to me. I believe that this Court has changed the legislative intent by use of the rule of statutory construction, and as a consequence, the Court has necessarily substituted its choice for that of the legislature.
ON REHEARING
BLOODWORTH, Justice.
OPINION CORRECTED. APPLICATION FOR REHEARING OVERRULED.
FAULKNER, JONES, ALMON, SHORES, EMBRY, and BEATTY, JJ., concur.
TORBERT, C. J., and MADDOX, J., dissent.
NOTES
[1] Our decision in Comer v. City of Mobile, ante, declared unconstitutional and struck the italicized portions of this sentence.
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681 F.2d 810
U. S.v.Mahoney
81-1841
UNITED STATES COURT OF APPEALS Third Circuit
3/26/82
1
E.D.Pa.
AFFIRMED
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230 N.W.2d 472 (1975)
194 Neb. 123
Virgil MILLER, Appellant,
v.
Tom KINGSLEY, Sr., Appellee.
Tim ADRIAN and James Gordon, a partnership, Appellants,
v.
Vernon DAHLGREN, Appellee.
Gayle SCHULTZE, Appellant,
v.
Darrell LAVENE, Appellee.
Nos. 39821-39823.
Supreme Court of Nebraska.
June 12, 1975.
*473 Robert A. Munro, Munro, Parker, Munro & Grossart, Kearney, for appellants.
John E. Dier, Holdrege, William H. Sherwood, Oxford, for appellees.
Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.
BOSLAUGH, Justice.
These cases were proceedings to register foreign judgments. Although each case involves different parties and the amounts of the judgments are different, they involve similar facts and questions of law. The cases were consolidated for trial in the District Court and were consolidated in this court for briefing, argument, and consideration.
The judgments were obtained in the District Court of Norton County, Kansas, in 1967. Each judgment included an item of $275 in punitive damages. They arose out of the sale of cattle by residents of Kansas to residents of Nebraska. The defendants alleged the cattle were afflicted with coccidiosis when they were shipped into Nebraska, and were delivered in violation of section *474 54-753.05, R.R.S.1943. The defendants further alleged the judgments were repugnant to the laws of Nebraska because they included punitive damages in violation of Article I, section 3, of the Constitution of Nebraska. The defendants raised other issues which are not important to the decision in the present appeals.
The parties stipulated that the question relating to punitive damages would be tried first and all other issues reserved. The trial court found the judgments were repugnant to the laws of Nebraska because they included awards of punitive damages and dismissed the petitions and cross-petitions. The plaintiffs have appealed.
It is a fundamental rule of law in this state that punitive, vindictive, or exemplary damages are not allowed. The measure of recovery in all civil cases is compensation for the injury sustained. Abel v. Conover, 170 Neb. 926, 104 N.W.2d 684.
Under the Uniform Enforcement of Foreign Judgments Act, a judgment of another state is entitled to registration if it is entitled to full faith and credit in this state. §§ 25-1587 to 25-15,104, R.R.S.1943. The defendants contend the judgments involved in these cases were not entitled to full faith and credit because they were in conflict with the fundamental law of Nebraska. The question is one of federal law. It involves a construction of the full faith and credit clause of the Constitution of the United States and the act of 1790 implementing that provision.
Section 1 of Article IV of the Constitution of the United States provides: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." Congress has provided the manner in which judicial proceedings of other states shall be authenticated and has provided that such proceedings shall have the same full faith and credit in every court within the United States as they have by law or usage in the courts of the state from which they are taken. 28 U.S.C.A. § 1738.
The general rule is that a judgment of a state court which had jurisdiction has the same credit, validity, and effect in every other court in the United States which it had in the state where it was pronounced. A state may not refuse to enforce a judgment of a foreign state on the ground that it would result in a violation of the public policy of the forum state.
In Fauntleroy v. Lum, 210 U.S. 230, 28 S.Ct. 641, 52 L.Ed. 1039, the Supreme Court of the United States held that Mississippi was required to enforce a Missouri judgment based upon a Mississippi transaction upon which no recovery could have been had in Mississippi. The transaction was a gambling contract in cotton futures which was illegal and void under Mississippi law. In holding that the Missouri judgment was valid in Mississippi, Mr. Justice Holmes stated: "The doctrine laid down by Chief Justice Marshall was `that the judgment of a state court should have the same credit, validity, and effect in every other court in the United States, which it had in the State where it was pronounced, and that whatever pleas would be good to a suit thereon in such State, and none others, could be pleaded in any other court of the United States.'"
In Roche v. McDonald, 275 U.S. 449, 48 S.Ct. 142, 72 L.Ed. 365, the court stated: "It is settled by repeated decisions of this Court that the full faith and credit clause of the Constitution requires that the judgment of a State court which had jurisdiction of the parties and the subject-matter in suit, shall be given in the courts of every other State the same credit, validity and effect which it has in the State where it was rendered, and be equally conclusive upon the merits; and that only such defenses as would be good to a suit thereon in that State can be relied on in the courts of any other State."
*475 In Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561, the court stated: "The situations where a judgment of one State has been denied full faith and credit in another State, because its enforcement would contravene the latter's policy, have been few and far between. * * * The Full Faith and Credit Clause is not to be applied, accordion-like, to accommodate our personal predilections. It substituted a command for the earlier principles of comity and thus basically altered the status of the States as independent sovereigns. * * It ordered submission by one State even to hostile policies reflected in the judgment of another State, because the practical operation of the federal system, which the Constitution designed, demanded it." (Citations omitted.)
The rule is stated in Restatement as follows: "A valid judgment rendered in one State of the United States will be recognized and enforced in a sister State even though the strong public policy of the latter State would have precluded recovery in its courts on the original claim." Restatement, Conflict of Laws 2d, § 117, p. 339. See, also, Leflar, American Conflicts Law, § 87, p. 201; Goodrich & Scoles, Conflict of Laws, § 211, p. 398; Annotation, 44 A.L.R.3d 960.
A distinction is made between the judgments and statutes of a foreign state. Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279; Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149. The authorities cited by the defendants may be distinguished upon this ground. As stated in Magnolia Petroleum Co. v. Hunt, supra: The forum state need not give application to the statute of another state where the statute is in conflict with the laws or policy of the forum.
Williams v. North Carolina, supra, cited by the defendants, was decided upon the ground that North Carolina was not bound by the finding of the Nevada court concerning the jurisdictional fact of domicile. The issue as to whether the Kansas court had jurisdiction in the cases at bar was reserved by the trial court and is not before us at this time.
The judgment in each case is reversed and the cause remanded for further proceedings.
Reversed and remanded.
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652 S.W.2d 206 (1983)
SCHNUCK MARKETS, INC., Plaintiff-Appellant,
v.
TRANSAMERICA INSURANCE COMPANY and Mission Insurance Company, Defendants-Respondents.
No. 44151.
Missouri Court of Appeals, Eastern District, Division Four.
April 19, 1983.
Motion for Rehearing and/or Transfer Denied May 26, 1983.
*207 J. Roger Edgar, Jacquelyn J. Givens, St. Louis, for plaintiff-appellant.
Carter, Brinker, Doyen & Kovacs by Gary P. Paul, Clayton, for Transamerica Ins. Co.
Moser, Marsalek, Carpenter, Cleary, Jaeckel & Keaney by Joseph H. Mueller and Jerome C. Simon, St. Louis, for Mission Ins. Co.
Motion for Rehearing and/or Transfer to Supreme Court Denied May 26, 1983.
SATZ, Judge.
Plaintiff, Schnuck Markets, Inc., (Schnucks) brought this action for declaratory relief against Transamerica Insurance Company (Transamerica) and Mission Insurance Company (Mission), seeking a declaration of Schnucks' rights under three policies of liability insurance. Each policy covered a different period of time. These policies were issued by Transamerica, as the primary insurer, to Schnucks. Mission issued an "umbrella" policy, providing excess coverage to Schnucks. The parties agree the coverage in Mission's policy is dependent upon the coverage of the underlying Transamerica policies.
Schnucks' petition for declaratory judgment describes 12 actions which were pending against Schnucks at the time of the filing of its petition. In its petition, Schnucks alleges that Transamerica's policies provide coverage for all liability imposed on Schnucks as a result of these actions and obligates Transamerica to defend Schnucks against all claims arising in these actions.[1] The actions are basically three types: service letter actions under § 290.140 RSMo 1978; wrongful or false arrest actions; and actions in negligence for personal injuries, i.e., two automobile accident cases and one "slip and fall" case. Each of these causes of action contains a prayer for punitive damages or allegations of gross negligence and willful and wanton misconduct. Transamerica informed Schnucks by letters that punitive damages may not be covered by the insurance policies and advised Schnucks that it could obtain its own attorneys regarding the punitive damage claims. Defendant Mission also advised Schnucks that there was no coverage for punitive damages under its policy of insurance.
Schnucks requested the trial court to declare that the insurance policies in question include coverage for punitive damages and that Transamerica and Mission breached their respective contracts in each instance. Transamerica and Mission denied their respective policies provided coverage for prayed for punitive damages or punitive damages awarded because of alleged willful or wanton misconduct. The trial court found the terms of the policies do not include coverage for punitive damages and further concluded the public policy of Missouri prohibits such coverage. Summary judgment was entered in favor of Transamerica and Mission. Schnucks appeals.
On appeal, Schnucks makes three basic arguments. First, Schnucks contends the terms of the policies provide coverage for punitive damage. Second, Schnucks argues the public policy prohibition against an individual shifting his liability for punitive damages by insurance coverage should not apply to Schnucks, because Schnucks' liability for punitive damage, in the underlying lawsuits, would be imposed against Schnucks only vicariously and without Schnucks' actions or omissions being "directly or indirectly an element in the commission of the harm." Third, by advising Schnucks it would not defend against a claim for punitive damages, Transamerica breached its contract. We disagree with *208 Schnucks' first argument, and, thus, do not reach its second and third arguments.
Schnucks' first argumentthat the policies provided coverage for punitive damages is based upon its interpretation of the following language of the policies:
"The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence."[2]
Schnucks narrows the scope of its inquiry by focusing on that part of the policy provision providing protection for "all sums which the insured shall become legally obligated to pay" and suggests that the question of whether this provision, as quoted by Schnucks, is sufficiently broad to include liability for punitive damages is a question of first impression in Missouri. By narrowing its inquiry to the latter quoted phrase, Schnucks eliminates qualifying language which we consider critical. The policy does not simply provide coverage for "all sums which the insured may become legally obligated to pay" but, rather, provides coverage for "all sums which the insured may become legally obligated to pay as damages because of bodily injury ..." [or] ... "personal injury."[3] (Emphasis added) Construction of this latter phrase is not a question of first impression in Missouri. Language almost identical to this phrase was construed by this Court in Crull v. Gleb, 382 S.W.2d 17 (Mo.App.1964).
In the Crull case, this Court was confronted with the issue of whether an automobile liability insurance policy covered punitive damages. Although not quoted verbatim, the Court stated that the policy provided coverage for
"all sums which the insured may become legally obligated to pay as damages because of bodily injury, sickness or disease, including death resulting therefrom, and injury and destruction to property arising out of the ownership or use of defendant's automobile, ...." Id. at 19.
To resolve the coverage issue the Court apparently made two separate inquiries: (1) whether the terms of the policy provided coverage for punitive damages and (2) whether the policy was void as a matter of public policy. Answering the first inquiry, the Court construed the policy as providing no coverage for punitive damages. The Court stated, without discussion: "There is no language in the policy that provides for the payment of judgments for punitive damages. The policy covers only damages for bodily injury and property damage sustained by any person. Punitive damages do not fall in this category." Id. at 23.
Having concluded the policy in question provided no coverage for punitive damages, it was unnecessary for the Court to determine whether a policy which does cover punitive damage is void as a matter of public policy. However, the court did make this determination, concluding that such a *209 policy was void.[4] Arguably, the Court's interpretation of the policy language may have been affected by public policy considerations and, arguably, the invalidation of the policy on public policy grounds may have made the interpretation of the policy language mere dicta.[5] Nonetheless, the Court did construe the meaning of the terms in question and this interpretation of the policy language in Crull was accepted by our colleagues in the Western District in Colson v. Lloyd's of London, 435 S.W.2d 42, 46-47 (Mo.App.1968).[6]
Our threshold question here is whether our construction of the policy language in issue should be inconsistent with the construction placed on almost identical language in Crull and accepted in Colson. The virtue of consistency in the law is axiomatic. On the other hand, "foolish consistency is the hobgoblin of little minds." The meaning of the words used in the Crull case has not changed within the last 20 years. Thus, unless the Crull interpretation is foolish or irrational, there is no sense in now construing the same language inconsistently and ignoring Crull's interpretation of that language as being arrived at because of public policy considerations or dismissing it as mere dicta. Although not explicitly articulated in Crull, we find there is a rational basis underpinning the Court's construction of the language in Crull.
Punitive damages are not in the same category as damages "for bodily injury" or "for personal injury." "The chief purpose of punitive damages is punishment to the offender, and a deterrent to similar conduct by others." Crull v. Gleb, supra at 23.[7] Punitive damages are never awarded as compensation. Probst v. Probst, 595 S.W.2d 289, 292 (Mo.App.1979). They "are mere incidents to the cause of action and are considered separate and apart from and in addition to the assessment of actual damages." Holcroft v. Missouri-Kansas-Texas R. Co., 607 S.W.2d 158, 163 (Mo.App.1980). While actual damages are measured by the extent of the injury, punitive damages are measured by the extent of the malice of the actor. Schmidt v. Central Hardware Company, 516 S.W.2d 556, 560 (Mo.App.1974); Holcroft v. Missouri-Kansas-Texas R. Co., supra at 163; Compare MAI 4.01 (actual damages) with MAI 10.01-10.03 (punitive damages). Since punitive damages are never awarded merely because of a "bodily injury" or "personal injury" but only when the actor's conduct displays the requisite malice, we find they are not in the category of damages for "bodily injury" or "personal *210 injury". See, e.g., Cavin's Inc. v. Atlantic Mut. Ins. Co., 27 N.C.App. 698, 220 S.E.2d 403, 406 (N.C.Ct.App.1975).[8]
Schnucks argues that in Crull this Court's contractual construction regarding the punitive damage question turned on the Court's evaluation of public policy considerations which have no application to the present case. Schnucks contends the "majority of decisions which have construed [the language in issue] have found the ... language is sufficiently broad to include punitive damages." Although not numerous, these cases basically fall in two broad classifications: (1) Those cases in which the courts find the language to be plain and unambiguous and conclude the words "all damages" means "all" damages, Norfolk & Western Railway Co. v. Hartford Accident and Indemnity, 420 F.Supp. 92 (N.D.Ind. 1976);[9]Southern Farm Bureau Casualty Ins. Co. v. Daniel, 246 Ark. 849, 440 S.W.2d 582, 584 (Ark.1969);[10]Carroway v. Johnson, 245 S.C. 200, 139 S.E.2d 908, 910 (S.C. 1965). (2) Those courts which reach the same conclusion by starting with an opposite premise. Rather than finding the terms in question "plain and unambiguous," these courts find the language to be "ambiguous," and, applying the doctrine of contra proferentum, they construe the perceived ambiguities against the insurer who drafted the policy. Dayton Hudson Corp. v. American Mutual Liability Ins. Co., 621 P.2d 1155, 1158 (Okl.1980); Harrell v. Travelers Indemnity Co., 279 Or. 199, 567 P.2d 1013, 1015 (Or.1977); Greenwood Cemetery, Inc. v. Travelers Indemnity, 238 Ga. 313, 232 S.E.2d 910, 913 (Ga.1977). There is, perhaps, a third group of cases in which the court appears to base its construction of the policy language on the reasonable expectations of the insured, Lazenby v. Universal Underwriters Ins. Co., 214 Tenn. 639, 383 *211 S.W.2d 1, 5 (Tenn.1964);[11]Abbie Uriguen Olds Buick, Inc. v. United States F.I. Co., 95 Idaho 501, 511 P.2d 783, 788 (Idaho 1973).[12] As used in these cases, the rule of construction, in some respects, parallels the rule for construing adhesion contracts. See Estrin Const. Co., Inc. v. Aetna Cas. & Sur., 612 S.W.2d 413, 419 (Mo.App.1981). See also Robin v. Blue Cross Hosp. Service, Inc., 637 S.W.2d 695, 697 (Mo. banc 1982).[13]
We understand and appreciate the logic of the decisions Schnucks relies on. However, opposing these decisions which find the terms in question either "unambiguous" or "ambiguous" and construe the terms as providing coverage for punitive damages are the decisions of our appellate courts which find no ambiguity and construe, Crull v. Gleb, 382 S.W.2d supra at 23, with agreement, See Colson v. Lloyd's of London, 435 S.W.2d supra at 46-47, these same terms as providing no coverage for punitive damage. Moreover, the construction urged by Schnucks gains no support from the rule of reasonable expectations peculiar to adhesion contracts. Neither Schnucks nor the other parties explicitly consider the present insurance contracts to be adhesion contracts; nor do we. "An adhesion contract is a form of contract created by the stronger of the contracting parties. It is offered on a `take this or nothing basis' .... Consequently, the terms of the contract are imposed upon the weaker party who has no choice but to conform ...." Robin v. Blue Cross Hosp. Service, Inc., 637 S.W.2d supra at 697. The present policies were negotiated between Schnucks and Transamerica, and between Schnucks and Mission. From the record, neither Transamerica nor Mission, when compared to Schnucks, can be characterized as the "stronger party" who "imposed" the policy terms in question upon Schnucks on a "take this or nothing basis." Id. at 697.
Schnucks does, however, argue that its prior course of dealings with Transamerica raises a reasonable expectation of coverage for punitive damages. Schnucks cites language used in Lazenby v. Universal Underwriters Ins. Co., 383 S.W.2d at 5, for the principle that its policies should be interpreted in accord with this expectation. (See language quoted in fn. 11, supra). To support this argument factually, Schnucks uses a letter written by Mr. Ned L. Shively, Transamerica's vice-president in charge of claims. Schnucks interprets this letter as stating that in the past Transamerica covered all claims for damages against Schnucks, *212 including those that originated in a prayer for punitive damages.[14] Transamerica counters with the equally forceful argument that the course of dealings between it and Schnucks is reflected in the series of letters sent by Transamerica to Schnucks advising Schnucks, after each of the underlying lawsuits was filed, that the policy then in force did not cover punitive damages. Moreover, Transamerica argues that Schnucks, in effect, acquiesed in Transamerica's denial of coverage for punitive damages when it renewed its policy a second and third time while continuing to receive the letters denying coverage for punitive damages.
Neither Schnucks' nor Transamerica's argument is relevant and, thus, neither argument is persuasive. Our courts have interpreted the language in the Schnucks-Transamerica policy without finding any ambiguity. Crull v. Gleb, supra; see also, Colson v. Lloyd's of London, supra. In the absence of ambiguity, extrinsic evidence may not be used to construe the meaning of a contract. E.g., J.E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 264 (Mo. banc 1973). Therefore, neither Shively's letter nor the series of letters sent from Transamerica to Schnucks can be used to change the meaning of the policy language in question.
As we have noted, the meaning of the policy language in question varies from jurisdiction to jurisdiction, probably varying as much as the dialects of those jurisdictions vary. We see no need to compound that variance by varying the meaning of that language, within our jurisdiction, as the composition of our courts vary.
Having concluded the policies in question provide no coverage for punitive damages, we do not reach the question of whether our state's public policy prohibits insurance coverage for vicariously imposed punitive damages and whether Transamerica breached its contracts by refusing to defend Schnucks against claims for punitive damages.
Judgment affirmed.
SMITH, P.J., and PUDLOWSKI, J., concur.
NOTES
[1] The policies provide blanket liability coverage for damages because of bodily injury or property damage caused by an accident. Under coverage P, the policies provide personal liability insurance for damages because of personal injury arising out of specified intentional torts, including false arrest, detention or imprisonment, malicious prosecution and libel. By amendment to coverage P, the policy also covers service letter actions.
[2] Under Section VIII, Definitions, "bodily injury" means:
"[B]odily injury, sickness or disease sustained by any person which occurs during the policy period, including death of any kind resulting therefrom."
"Occurrence" means:
"[A]n accident, including continuous or repeated exposure to conditions which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured."
Under coverage P, Personal Injury Liability Insurance Coverage Supplement, Transamerica was obligated to pay on behalf of the insured "all sums which the insured shall be legally obligated to pay as damages because of injury (herein called "personal injury").
Coverage P provides for damages sustained by any person or organization arising out of certain activities in the conduct of the named insured's business, specifically including false arrest and libel. Under Section IV of Coverage P "damages" is defined as:
"[O]nly those damages which are payable because of personal injury arising out of an offense to which this insurance applies."
By an amendment to that supplement, injury arising out of failure to issue or the issuing of a service letter, as required by statutes, which is alleged to be improper or to contain any false or defamatory statement or material is covered.
[3] See fn. 2, supra.
[4] The Court's premise was that insurance coverage for punitive damages nullifies the dual purpose of punitive damagespunishment and deterrence. The Court stated: "If a person is able to insure himself against punishment, he gains a freedom inconsistent with the establishing of sanctions against such misconduct. It is undisputed that insurance against criminal fines would be void as violative of public policy. The same public policy should invalidate any insurance contract against civil punishment that punitive damages represent ...." Id. 382 S.W.2d at 23.
[5] Conversely, the Court's conclusion that no coverage for punitive damages was provided makes the public policy conclusion mere dicta.
[6] In Colson, the court construed a policy entitled: "False Arrest Insurance." The insured was an association of law enforcement officers. The Court held this policy covered liability for punitive damages. Colson v. Lloyd's of London, supra at 46-47. The policy in Colson provided coverage
"... against loss by reason of liability imposed by law upon the assured, by reason of any false arrest, assault and battery (as herein defined), false imprisonment or malicious prosecution which may be committed during the currency period of this certificate: ...." Id. at 43-44.
The Colson court distinguished the language in its policy from the language in Crull by noting that the Crull language excluded coverage for punitive damages because it requires that liability "arise out of bodily injury" while the Colson language "covers any `loss ... imposed by law'", including loss caused by an award of punitive damages. Id. at 46-47.
[7] In its brief, Transamerica correctly points out that in some states, including Connecticut, Michigan, New Hampshire and Iowa, punitive damages are awarded as compensation to the plaintiff rather than as punishment to the defendant, and, in other states, punitive damages are awarded both as punishment to the defendant and as compensation to the plaintiff. See, Note, Insurance For Punitive Damages: A Reevaluation, 28 Hastings L.J. 431, 434 (1976).
[8] In support of its holding, the Court stated:
"Punitive damages, as the descriptive name clearly implies, are awarded as a punishment. They are never awarded as compensation. `They are awarded above and beyond actual damages, as a punishment for the defendant's intentional wrong. They are given to the plaintiff in a proper case, not because they are due, but because of the opportunity the case affords the court to inflict punishment for conduct intentionally wrongful.' ... Punitive damages are never awarded merely because of a personal injury inflicted nor are they measured by the extent of the injury; they are awarded because of the outrageous nature of the wrongdoer's conduct. Being awarded solely as punishment to be inflicted on the wrongdoer and as a deterrent to prevent others from engaging in similar wrongful conduct, punitive damages can in no proper sense be considered as being awarded `only with respect to personal injury' or as damages which are payable [`] because of personal injury.' Compensatory damages, which are awarded to compensate and make whole the injured party and which are therefore to be measured by the extent of the injury, are the only damages which are payable `because of personal injury'." Id. 220 S.E.2d at 406.
[9] In the Norfolk case, the only question "seriously in dispute" was whether coverage for punitive damages was against the public policy of Indiana. In a footnote, the Court stated:
"Of course, a threshold question may be posed, whether the language of the insurance contract admits of a construction which allows coverage for punitive damages. The contract covers `all sums which the insured shall become legally obligated to pay.' The contract's explanation of the term `damages' is that it `includes' certain items, namely, that it `includes damages for death [etc.].' The explanation does not attempt to be all-inclusive, and it is in any event a circular definition. The contract nowhere mentions punitive damages, although it was within Hartford's power to exclude such coverage. The policy unambiguously covers `all sums.' Punitive damages are a form of damages; when liquidated by judgment, they are a `sum.' Thus, this contract does not even present such an ambiguity as would call into play the rule that ambiguities in insurance contracts should be resolved in favor of the insured." Id. 420 F.Supp. at 94, fn. 1.
[10] In support of its conclusion that punitive damages were covered, the court stated:
"When we consider that under our law, one cannot become legally obligated to pay punitive damages unless actual damages have been sustained and assessed, we find that punitive damages constitute a sum which the insured becomes legally obligated to pay as damages because of bodily injuries sustained." Id. 440 S.W.2d at 584.
This logic is obscure. The court may be confining the term "actual damages" to that class of cases in which the plaintiff must show a measurable injury before he has valid claim for any kind of damages.
[11] Construing policy terms almost identical to the terms in issue here, the court stated:
"The language in the insurance policy in the case at bar, which is similar to many types of liability policies, has been construed by most courts, as a matter of interpretation of the language of the policy, to cover both compensatory and punitive damages. Since most courts have so construed this language in the policy, we think the average policy holder reading this language would expect to be protected against all claims, not intentionally inflicted." Id. 383 S.W.2d at 5.
[12] To find the policy covered punitive damages, the court reasoned:
"We point out that the policy provisions ... make no distinction as between actual and punitive damages. Punitive damages are not specifically excluded from the policy language. Under the provision of the policy, the company promises to pay on behalf of the insured all sums which the insured shall be legally obligated to pay as damages caused by the use of any automobile. The law is clear in Idaho that insurance policies are to be construed most liberally in favor of recovery.... Since policies are written by companies without any arms length bargaining between the parties all ambiguities are resolved in favor of the insured." (Emphasis theirs). Id. 511 P.2d at 789.
[13] The Supreme Court defined an adhesion contract to be:
"... a form contract created by the stronger of the contracting parties. It is offered on a `take this or nothing' basis. See Estrin, 612 S.W.2d at 418 n. 3. Consequently, the terms of the contract are imposed upon the weaker party who has no choice but to conform. 3 Corbin on Contracts, § 559 (1960). These terms unexpectedly or unconscionably limit the obligations and liability of the drafting party. See Corbin on Contracts, § 559 (Kaufman Supp.1980). Because of these circumstances, some courts look past the wording of the contract and consider the entire transaction in order to effectuate the reasonable expectations of the parties. 3 Corbin on Contracts, §§ 534-542 (1960); Restatement (Second) of Contracts, §§ 226-227 (Tentative Draft 1973)." Id. 637 S.W.2d at 697.
[14] Shively's letter was written after the present declaratory judgment action was filed. In its brief, Schnucks quotes the following portion of the letter:
"On the positive side, as is our practice, we have settled and paid numerous claims made against you, out of court, and in a lump sum, even though we were initially confronted with a claimant's demand for both compensatory and punitive damages, stated in separate amounts. In cases where the court settled the issue and awards were given, the award in each instance has been a lump sum. The initial demand for punitive and/or exemplary dameges was either dropped by the claimant, denied by the court or disguised in the compensatory award given.
By such results, we have demonstrated a pattern of fairly defending and protecting your interests."
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 15-659V
(not to be published)
*************************
*
CHRISTINE MARQUIS, *
* Special Master Corcoran
*
Petitioner, * Filed: April 25, 2017
*
v. * Decision; Attorney’s Fees and Costs.
*
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
Respondent. *
*
*************************
Lawrence R. Cohan, Anapol Weiss, Philadelphia, PA, for Petitioner.
Michael Patrick Milmoe, U.S. Dep’t of Justice, Washington, DC, for Respondent.
ATTORNEY’S FEES AND COSTS DECISION1
On June 25, 2015, Christine Marquis filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner alleged that she
suffered from Guillain-Barré syndrome as a result of her November 6, 2012, receipt of the
influenza vaccine. The parties filed a stipulation for damages on October 27, 2016 (ECF No. 24),
which I adopted by decision that same day. ECF No. 25.
1
This Decision has been designated "not to be published," which means I am not directing it to be posted on the Court
of Federal Claims's website. However, it will nevertheless be made public in accordance with the E-Government Act
of 2002, 44 U.S.C. § 3501 (2012). As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to
the published decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b),
each party has fourteen days within which to request redaction “of any information furnished by that party: (1) that is
a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical
files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine
Rule 18(b). Otherwise, the whole decision will be available in its present form. Id.
2
The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Petitioner has now filed a motion requesting final attorney’s fees and costs, dated March
28, 2017. See ECF No. 30. Respondent filed a response on April 14, 2017, indicating that he is
satisfied that the statutory requirements for an award of attorney’s fees and costs are met in this
case, but deferring to my discretion the determination of the amount to be awarded. ECF No. 31
at 2. Petitioner then filed a reply reiterating her arguments as to why an award of attorney’s fees
and costs were appropriate, as well as requesting an additional $725.00 for 2.5 hours of work
performed by Mr. Carney on that reply brief. ECF No. 32.
Petitioner requests reimbursement of attorney’s fees and costs in the combined amount of
$31,565.63. This amount represents $480 billed by Larry Cohan ($400/hr for 1.2 hours),
$24,998.00 by David Carney ($290/hr), $1,087.50 by the paralegal ($125/hr), and $5,000.13 in
costs. ECF No. 30. In accordance with General Order #9, Petitioner affirmed that she incurred no
out-of-pocket costs.
The total amount of attorney’s fees requested for Mr. Cohan are reasonable and in keeping
with the decisions of other special masters. Gannuscio v. Sec’y of Health & Human Servs., No.
15-344, 2017 WL 1228701, at *2 (Fed. Cl. Spec. Mstr. March 7, 2017). The hourly rate requested
is also consistent with my prior determinations. See Kelley v. Sec’y of Health & Human Servs.,
No. 14-505V, 2016 WL 1594008, at *1 (Fed. Cl. Spec. Mstr. March 29, 2016). I similarly find that
the paralegal and administrative costs requested are reasonable and award them in full.
However, consistent with the recent decisions by Special Master Gowen and myself, I will
reduce the requested hourly rate of Mr. Carney from $290 to $275, from 2014 through October
2016. This results in a total reduction of $1,475.50, and reflects a rate that falls within the ranges
established by McCulloch v. Sec’y of Health & Human Servs., No. 09-293V, 2015 WL 5634323
(Fed. Cl. Spec. Mstr. Sept. 1, 2015) for an attorney of Mr. Carney’s experience. See e.g.,
Gannuscio, 2017 WL 1228701, at *2; Shaikh v. Sec'y of Health & Human Servs., No. 13-767V,
2016 WL 4933613 (Fed. Cl. Spec. Mstr. Aug. 11, 2016); Rodd v. Sec'y of Health & Human Servs.,
No. 13-122V, 2016 WL 2727147 (Fed. Cl. Spec. Mstr. Apr. 13, 2016). In addition, although in
previous instances I have reduced the number of hours spent on a reply brief such as the one filed
here, I do not find that two and half hours is excessive and will award the amount requested in the
reply brief. Kelley, 2016 WL 1594008, at *2.
After applying the reduction to Mr. Carney’s rate, the total award is $30,090.13, to be made
in the form of a check payable jointly to Petitioner and Petitioner’s counsel, Lawrence Cohan, Esq.
Payment of this amount represents all attorney’s fees and costs available under 42 U.S.C. § 300aa-
2
15(e). 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 Petitioner’s motion.3
IT IS SO ORDERED.
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
3
Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately)
a notice renouncing their right to seek review.
3
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428 B.R. 839 (2010)
In re Steven Gerard LAPKE, also known as Steven Gerard Lapke, MD, formerly doing business as Family Health & Wellness, P.C., Debtor.
Steven Gerard Lapke, Debtor-Appellant,
v.
Mutual of Omaha Bank, Creditor-Appellee.
No. 10-6008.
United States Bankruptcy Appellate Panel of the Eighth Circuit.
Submitted: April 20, 2010.
Filed: May 10, 2010.
*840 John Turco, Henry Nicholas Carriger, Omaha, NE, for Appellant.
James B. Cavanagh, Brittney J. Krause, Omaha, NE, for Appellee.
Before KRESSEL, Chief Judge, SCHERMER and VENTERS, Bankruptcy Judges.
SCHERMER, Bankruptcy Judge.
Debtor Steven Gerard Lapke (the "Debtor") appeals from the bankruptcy court's[1] order dismissing his case under 11 U.S.C. § 707(b)(1) and (3). We have jurisdiction over this appeal from the final orders of the bankruptcy court. See 28 U.S.C. § 158(b). For the reasons stated herein, we affirm.
*841 ISSUE
The main issue on appeal is whether debt owed by the Debtor in connection with loans on his home constitutes consumer debt, even though the Debtor did not sign some of the underlying loan documentation. Since we find that the debt qualifies as the Debtor's consumer debt, we also consider whether the bankruptcy court correctly decided that the Debtor's bankruptcy filing was an abuse of the provisions of Chapter 7. We agree with the bankruptcy court's determination that the Debtor's filing of this case was abusive.
BACKGROUND
On February 15, 2009, the Debtor filed his voluntary petition for relief under Chapter 7 of Title 11 of the United States Code (the "Bankruptcy Code"). This is the second Chapter 7 case filed by the Debtor in the past two years. The Debtor filed his first case, Case No. BK07-81140-TJM, in 2007 as a joint case with his wife. In response to motions to dismiss filed by the United States Trustee and Nebraska State Bank, which is now known as Mutual of Omaha Bank, the bankruptcy court dismissed the Debtor's 2007 bankruptcy case under section 707(b)(3) of the Bankruptcy Code. It determined that (1) the debts of the Debtor and his wife were primarily consumer debts; and (2) their Chapter 7 case should be dismissed as an abuse of the provisions of Chapter 7. See In re Lapke, No. BK 07-81140-TJM, 2008 WL 901846 (Bankr.D.Neb. Mar.31, 2008); In re Lapke, No. BK 07-81140-TJM, 2008 WL 355575 (Bankr.D.Neb. Jan.23, 2008).
The Debtor is a medical doctor who earned a significant income. Prior to both of his bankruptcy filings, the Debtor did business as a professional corporation under the name "Family Health & Wellness, P.C." Thereafter, he practiced medicine as an independent contractor. The Debtor's expenses are high, evidencing a comfortable lifestyle for himself and his family.
In 2004, the Debtor and his wife purchased a home. As of the petition date, two Wells Fargo entities ("Wells Fargo") held three notes, each secured by the Debtor's home. The Debtor and his wife financed the original home purchase with a loan from another institution, which was later refinanced with Wells Fargo. They both signed a deed of trust securing the first loan from Wells Fargo, but the Debtor did not sign the promissory note evidencing the debt ("Note 1"). Wells Fargo was also the holder of a second promissory note ("Note 2"), secured by a second deed of trust ("DOT2") on the Debtor's home. The Debtor did not sign Note 2 or DOT 2. In addition, Wells Fargo was the holder of a third promissory note secured by a third deed of trust encumbering the Debtor's home, both of which were signed by the Debtor and his wife.
In the Debtor's first bankruptcy case, the Debtor and his wife treated the debts owed to Wells Fargo as consumer debt. After dismissal of their joint case, the Debtor and his attorney discovered that the Debtor did not sign Notes 1 and 2. The Debtor then filed his individual Chapter 7 case. The Debtor bases his ability to proceed in his individual case on a mere technicality. According to the Debtor, since he had not signed Notes 1 and 2 and DOT 2, he was not personally liable for such obligations and they were not consumer debts. He admitted that the third home loan constitutes consumer debt. The Debtor argued further that, even if his debts were primarily consumer debts, his bankruptcy filing was not an abuse of the provisions of Chapter 7.
Mutual of Omaha Bank filed its Motion to Dismiss the Debtor's case under Bankruptcy Code section 707(b), claiming that the Debtor has primarily consumer debt *842 and that the issue of abuse was res judicata in accordance with the proceedings in the Debtor's first Chapter 7 case. The bankruptcy court examined the Debtor's calculation of his consumer debt and his business or other debt. It explained that the Debtor improperly included the debt owed to Wells Fargo for Note 1 and Note 2 in his calculation of business or other debt, when such debt should be classified as consumer debt. It also examined the circumstances of the Debtor's financial condition in light of its finding of abuse in the Debtor's first Chapter 7 case. Accordingly, the bankruptcy court granted the Bank's Motion to Dismiss, determining that: (1) the amount owed to Wells Fargo under Notes 1 and 2 was consumer debt; (2) the Debtor had predominantly consumer debt; and (3) the Debtor's bankruptcy filing was an abuse of the provisions of Chapter 7.
STANDARD OF REVIEW
We review the bankruptcy court's findings of fact for clear error and its conclusions of law de novo. First Nat'l Bank of Olathe, Kan. v. Pontow, 111 F.3d 604, 609 (8th Cir.1997). A finding that a debt secured by real property is a consumer debt is a finding of fact that will only be reversed for clear error. Cox v. Fokkena (In re Cox), 315 B.R. 850, 854 (8th Cir. BAP 2004). "A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Anderson v. Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)(quoting U.S. v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). We review a bankruptcy court's order of dismissal for abuse under an abuse of discretion standard. Nelson v. Siouxland Fed. Credit Union (In re Nelson), 223 B.R. 349, 352 (8th Cir. BAP 1998).
DISCUSSION
Bankruptcy Code section 707(b) governs dismissal of Chapter 7 cases for abuse. It applies only to debtors whose debts are primarily consumer debts. Section 707(b)(1) provides, in pertinent part, that "the court . . . may dismiss a case filed by an individual debtor under [Chapter 7] whose debts are primarily consumer debts, . . . if it finds that the granting of relief would be an abuse of the provisions of [Chapter 7]." 11 U.S.C. § 707(b)(1)(emphasis added). Mutual of Omaha Bank's allegation of abuse is predicated upon section 707(b)(3). Section 707(b)(3) explains the criteria for a court to consider when determining whether, if a presumption of abuse does not apply, the filing of a debtor with primarily consumer debts was, nevertheless, abusive. It provides, in pertinent part, that a court "shall consider(A) whether the debtor filed the petition in bad faith; or (B) the totality of the circumstances. . . of the debtor's financial situation demonstrates abuse." 11 U.S.C. § 707(b)(3).
Consumer Debt
The parties did not dispute the bankruptcy court's determination that including the debt associated with Notes 1 and 2 in the calculation of consumer debt would result in the Debtor having primarily consumer debt, rather than primarily business or other debt. Accordingly, our analysis concerns whether the amounts owed to Wells Fargo under Notes 1 and 2 constitute consumer debt. We agree with the bankruptcy court's decision that they do.
The first and second home loans represent claims against the Debtor's property. As such, they are claims against the Debtor. Bankruptcy Code section 101(12) defines "debt" as "liability on a claim." 11 U.S.C. § 101(12). In turn, the definition *843 of "claim" is broad including, in pertinent part, a "(A) right to payment . . . or; (B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment . . ." 11 U.S.C. § 101(5). Section 102(2) includes rules of construction for the Bankruptcy Code. It explains that the phrase "`claim against the debtor' includes claim against property of the debtor." 11 U.S.C. § 102(2). Moreover, the United States Supreme Court construed the definitions above and determined that the term "claim" included a lien on a debtor's real property that was not accompanied by the debtor's personal liability. See Johnson v. Home State Bank, 501 U.S. 78, 84-87, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991).
The next step in our analysis is to determine whether the claims against the Debtor were consumer debts.
The plain language of Bankruptcy Code section 101(8) defines "consumer debt" as "debt incurred by an individual primarily for a personal, family or household purpose." 11 U.S.C. § 101(8). Debt secured by real property that is used as the debtor's personal residence is generally consumer debt. See, e.g., Cox, 315 B.R. at 855. To determine whether a debt is a consumer debt, we must examine the Debtor's purpose in incurring it. Id. When the debtor incurs a debt secured by real property to purchase a home or make improvements to it, the debt is for family or household purposes. Id. "It is difficult to conceive of any expenditure that serves a `family . . . or household purpose' more directly than does the purchase of a home. . ." Zolg v. Kelly (In re Kelly), 841 F.2d 908, 913 (9th Cir.1988).
The bankruptcy court found that the evidence did not show that the loans could be characterized as anything other than home mortgage loans. We accept the bankruptcy court's finding as correct. The record does not suggest that the first and second home loans were for anything other than to finance the Debtor's residence. In fact, at least the first Wells Fargo loan, the largest one, was taken to refinance his original home loan. Nevertheless, the Debtor included the third loan as consumer debt, but attempts to escape the same characterization of the first two loans.
The Debtor's argument hinges on a mere technicalityhis failure to sign certain loan documentation. According to the Debtor, his failure to sign two promissory notes secured by his home and one associated deed of trust evidence a lack of volition, which he claims to be a requirement for a consumer debt. We disagree with the Debtor's position. The Debtor's volition, or lack thereof, is not determinative under the facts of this case. See, e.g., In re Walton, 69 B.R. 150, 154 n. 4 (E.D.Mo.1986)(obligation to state for dependent children payments that debtor "obviously did not seek" was consumer debt that arose from lack of discipline in meeting ordinary obligations), aff'd on other grounds, 866 F.2d 981 (8th Cir.1989); In re Evans, 334 B.R. 148, 151 (Bankr. D.Md.2004)(debt on debtor's home was consumer debt even though debtor did not sign the promissory note evidencing it).[2]
First, the facts show that, regardless of whether he signed the loan documentation, the Debtor intended to obtain funds from Wells Fargo to finance or refinance his *844 home. Next, the Debtor cannot escape the fact that the amounts owed under Notes 1 and 2 constitute claims against the Debtor since they are claims against his property and the associated debts were incurred, whether by the Debtor or his wife or both of them, for personal, family or household purposes. Lastly, the Debtor admitted that the third loan was consumer debt. If we were to accept the Debtor's argument, a debt could never be classified as a consumer debt when the associated claim against the debtor existed by virtue of a claim against his property. Certainly that cannot be the case.
Moreover, in the Debtor's first Chapter 7 case, the Debtor and his wife included the first two Wells Fargo loans as their consumer debt. It does not make sense that the character of the Debtor's obligation suddenly changed in his second case, only after he discovered that he had failed to sign some of the underlying loan documentation.
In sum, we find that where a debtor's home serves as collateral for a loan and the loan is for personal, family or household purposes, the amount owed to the lender is classified as consumer debt.
When calculating the amount of consumer and non-consumer debt before the bankruptcy court, the Debtor included $679,833.00 owed to Wells Fargo under Notes 1 and 2 as "business/other" debt. He claimed that the total non-consumer debt equaled $1,347,828.15 and the consumer debt equaled $373,200.75. The bankruptcy court's determination that the amount under Notes 1 and 2 was consumer debt, rather than business debt, caused it to subtract the $679,833.00 amount from the calculation of "business/other" debt and add it to consumer debt. As a result, consumer debt in the amount of $1,053,033.75 "far exceed[ed]" non-consumer debt, which amounted to only $667,995.15. We adopt the bankruptcy court's calculations as correct and, accordingly, we agree that the Debtor's consumer debt outweighed his non-consumer debt.
The next step in our analysis is to review the bankruptcy court's decision that the Debtor's filing was an abuse of the provisions of Chapter 7.
Abuse
The bankruptcy court was correct when it refused to overturn its previous decision, in Case No. BK07-81140, that the granting of relief would be an abuse of the provisions of Chapter 7. The Debtor did not show a significant change in his circumstances in this case that would merit a different result. In addition, he chose not to appeal from or otherwise challenge the bankruptcy court's determination of abuse in his first Chapter 7 case.
Frivolous Appeal
Federal Rule of Bankruptcy Procedure 8020 provides, in pertinent part, that "[i]f a . . . bankruptcy appellate panel determines that an appeal . . . is frivolous, it may, after a separately filed motion or notice from the . . . bankruptcy appellate panel and reasonable opportunity to respond, award just damages and single or double costs to the appellee." Fed. R. Bankr.P. 8020. "An appeal is frivolous when the result is obvious or when the appellant's argument is wholly without merit." Tina Livestock Sales, Inc. v. Schachtele (In re Schachtele), 343 B.R. 661, 666 (8th Cir. BAP 2006)(quoting Newhouse v. McCormick & Co., Inc., 130 F.3d 302, 305 (8th Cir.1997)).
After the bankruptcy court's dismissal of the Debtor's first Chapter 7 case, the Debtor filed his individual Chapter 7 case, which raised the same issues under section 707(b) that were raised in his initial Chapter *845 7 case, under almost identical facts. He sought a different result based on an inconsequential technicality, that he had not signed some of the underlying loan documentation. The bankruptcy court alerted the Debtor that it perceived his efforts as "an attempt to take advantage of a perceived loophole in [section] 707" and an effort to "frustrate the purposes of Chapter 7." The Debtor did not stop. He ignored the bankruptcy court's admonition and proceeded with this appeal, raising issues that caused the appellee to incur unnecessary fees and expenses.
The Debtor's appeal appears to us to be frivolous. However, we decline to initiate the procedures under Rule 8020 absent additional proceedings in this matter.
CONCLUSION
For the foregoing reasons, we AFFIRM the decision of the bankruptcy court.
NOTES
[1] The Honorable Thomas L. Saladino, Chief United States Bankruptcy Judge for the District of Nebraska.
[2] The Debtor claimed that the Note 1 and Note 2 debt was statutorily imposed on him under section 102(2). He cited case law in an attempt to support his argument that the debt cannot be consumer debt because the Debtor supposedly did not incur it voluntarily. They are factually distinct from the situation here. Moreover, some of the cases discuss a debtor's lack of volition as only one consideration that led to the court's determination that a debt was not a "consumer debt." Lastly, the cases come from authority that is not binding on this Court and are unconvincing to this Court.
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613 F.3d 1318 (2010)
In Re: The CELOTEX CORPORATION, The Asbestos Settlement Trust, Debtors.
Claremont McKenna College, et al., Plaintiffs-Appellants,
v.
Asbestos Settlement Trust, et al., Defendants-Appellees.
No. 09-12000.
United States Court of Appeals, Eleventh Circuit.
August 11, 2010.
*1319 Catherine H. McElveen, Edward James Westbrook, Richardson, Patrick, Westbrook & Brickman, LLC, Mt. Pleasant, SC, for Plaintiffs-Appellants.
Jeffrey W. Warren, Bush, Ross, P.A., Karen Cox, Bush, Ross, Gardner, Warren & Rudy, Tampa, FL, Melanie K. Sharp, Erika R. Caesar, Young, Conaway, Stargatt & Taylor, LLP, Wilmington, DE, for Defendants-Appellees.
Before EDMONDSON and CARNES, Circuit Judges, and GOLDBERG,[*] Judge.
GOLDBERG, Judge:
The Appellants are six colleges[1] ("the Colleges") who brought asbestos-related property damage claims against the Asbestos Settlement Trust ("the Trust"). The Trust originally disputed the Colleges' request for payment on certain claims and commenced adversary proceedings in bankruptcy court. Eventually, the Trust made payments to the Colleges and moved to dismiss the proceedings. The Colleges opposed dismissal, arguing that they were entitled to a payment of post-judgment interest on their claims at the federal judgment rate prescribed by 28 U.S.C. § 1961 ("judgment-rate interest"). See 28 U.S.C. § 1961 (2006). The bankruptcy court rejected the Colleges' argument and granted the Trust's motion for dismissal. The district court affirmed the bankruptcy court's order of dismissal. As explained further below, we AFFIRM the order of dismissal.
BACKGROUND
A. Establishment of the Trust
Lawsuits based on exposure to asbestos led Celotex Corporation, and its then *1320 wholly-owned subsidiary Carey Canada Inc., (collectively "Debtors") to file for protection under Chapter 11 of the Bankruptcy Code. In re Celotex Corp., 204 B.R. 586, 589-90 (Bankr.M.D.Fla.1996). In December 1996, after years of negotiations between the Debtors and other interested parties and multiple proposed reorganization plans, the bankruptcy court entered an order confirming the Debtor's reorganization plan. Id. at 616. A principal feature of the Plan was the creation of the Trust. The Trust was established in accordance with section 524(g) of the Bankruptcy Code, a provision specifically applicable to Chapter 11 reorganizations involving asbestos tort liabilities, to resolve and pay asbestos-related claims. See 11 U.S.C. § 524(g)(2)(B)(i).
The Plan Documents[2] establish the process by which claims are determined and paid by the Trust. Under the Plan Documents, property damage claims ("PD claims") are administered by a Property Damage Claims Administrator ("the Administrator"). Plan art. 4.2(a)(8), (b)(8); Trust Agreement arts. 1.2, 3.3(c); APDCRP § IV(A)(34). If the Administrator allows a PD claim, the allowed claim is then submitted to the Trustees for payment to the claimant.
Because the Trust's current and future liabilities for asbestos claims exceed the Trust assets, the Trust operates as a limited fund that pays PD claimants a fraction of the value of their allowed claims. The Plan directs the Trustees to pay all allowed PD claims according to a "payment percentage," which the Trustees may adjust from time to time to ensure substantially equal treatment of all present and future claims. See Plan art 5.1; Trust Agreement arts. 3.3(c), 3.4(a). In the event of a dispute under the Plan, the bankruptcy court has jurisdiction to enforce and interpret the provisions of the Plan Documents. Plan art. 13.3(c)-(e); accord Trust Agreement arts. 9.13-9.14.
B. Disputes over Certain PD Claims
Seven PD claims filed by the Colleges and allowed by the Administrator (the "Allowed Claims") are at issue in this proceeding. When the Administrator submitted the Allowed Claims to the Trust for payment, the Trustees originally refused to pay on grounds that the Colleges failed to satisfy the legal prerequisites for payment. The Trust then commenced adversary proceedings against the Colleges in bankruptcy court. In opposing motions, each party sought an order from the bankruptcy court upholding its respective interpretation of the Plan Documents. The dispute largely related to the relative authority of the Administrator and the Trustees over PD claims. On April 1, 2004, the bankruptcy court granted the Colleges' motion for summary judgment and directed the Trust to pay the Colleges' Allowed Claims. See generally Asbestos Settlement Trust. v. Claremont McKenna College (In re Celotex Corp.), Adv. No. 02-522 (Bankr. M.D. Fla. April 1, 2004).
*1321 While the Trust did not pay the Colleges after the bankruptcy order, the Trustees' later decision to pay the Allowed Claims was in response to this Court's decision in a dispute between the Trust and another PD claimant, the City of New York. See generally Asbestos Settlement Trust v. City of New York (In re Celotex Corp.), 487 F.3d 1320 (11th Cir.2007) ("NYC Appeal"). The Trust had disputed certain allowed PD claims of the City of New York (the "NYC Claims"). The bankruptcy court ultimately granted summary judgment in favor of the City of New York and ordered the Trust to pay the NYC Claims.
In connection with the bankruptcy court's determination, the court approved an agreement between the Trust and the City of New York regarding the calculation of the liquidated amount for the NYC Claims. Under the terms of the agreement, if payment of the NYC Claims was ultimately directed by a final non-appealable order, the Trust's payment amount to the City of New York would include an additional amount based upon the rate of return earned by the Trust on its investment portfolio during the pendency of the appeal. Meanwhile, the Trust and the Colleges never reached a similar agreement as to the actual amounts to be paid on the Colleges' Allowed Claims.
After the district court affirmed the bankruptcy court's order requiring the Trust to pay the NYC Claims, the Trust appealed to this Court. See generally NYC Appeal, 487 F.3d 1320. The Colleges' Allowed Claims remained in the bankruptcy court during the pendency of the NYC Appeal. On appeal, this Court considered the relative powers of the Trustees and the Administrator under the Plan Documents. See generally NYC Appeal, 487 F.3d 1320. This Court determined, among other matters, that the Plan Documents did not confer to the Trustees the power to independently review and overrule the Administrator's decisions in resolving PD claims. Id. at 1329-30, 1332, 1334. Furthermore, this Court found that the Administrator's actions and decisions were subject to review only for abuse of discretion. Id. at 1337-38.
C. The Trust's Payments on the Colleges' Allowed Claims
In July 2007, after evaluating this Court's decision in the NYC Appeal, the Trust determined that it should no longer withhold payment of the Colleges' Allowed Claims and paid the Colleges. The payments did not include judgment-rate interest on the Allowed Claims. Instead, to calculate the amount paid to the Colleges, the Trust used the same formula that had been used, per agreements, to determine the amount paid to the City of New York and other PD claimants on their allowed claims. Accordingly, the Trust sent payments to the Colleges in amounts that were based upon the total allowed costs determined for each claim, subject to the payment percentage, plus an additional amount calculated pursuant to a formula that factors into account the rate of return earned by the Trust on its investment portfolio during the time that the Colleges' Allowed Claims were under judicial review.
The Trust then moved to dismiss the adversary proceedings against the Colleges on the basis that the issues had been resolved by the payments on the Colleges' Allowed Claims. The Trust reasoned that its payments were in full satisfaction of the Colleges' Allowed Claims. The Colleges opposed dismissal, asserting that they were entitled to judgment-rate interest on their Allowed Claims pursuant to 28 U.S.C. § 1961 rather than the rate of return on the Trust's investment. 28 U.S.C. § 1961 provides that "[i]interest shall be allowed on any money judgment in a civil *1322 case recovered in a district ... at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of judgment." 28 U.S.C. § 1961. According to the Colleges, application of judgment-rate interest would require an additional payment from the Trust slightly exceeding $100,000.
The bankruptcy court interpreted the Plan Documents and determined that the Colleges were not entitled to judgment-rate interest on their claims. Order on Motion for Dismissal with Prejudice, Adv. No. 02-522, 6-10 (Bankr.M.D.Fla. March 31, 2008) ("Bankruptcy Court Dismissal Order"). The bankruptcy court therefore granted the Trust's motion to dismiss and denied the College's request for additional payment. Id. at 14-16. The district court affirmed the bankruptcy court's order of dismissal. Claremont McKenna College v. Asbestos Settlement Trust (In re Celotex Corp.), No. 08-2343 (M.D.Fla. March 18, 2009) ("District Court Dismissal Order"). The Colleges appeal to this Court, which has jurisdiction pursuant to 28 U.S.C. § 1291.
STANDARD OF REVIEW
In the bankruptcy context, this Court sits as a "`second court of review...' and employs the same standards of review as the district court." In re Issac Leaseco, Inc., 389 F.3d 1205, 1209 (11th Cir.2004). Legal conclusions by either the bankruptcy court or the district court are reviewed de novo and findings of fact are reviewed for clear error. In re Optical Technologies., Inc., 425 F.3d 1294, 1300 (11th Cir.2005).
DISCUSSION
The only issue before this Court is whether the Colleges have a legal right to judgment-rate interest pursuant to 28 U.S.C. § 1961. A money judgment in a civil case recovered in federal district court carries the federal judgment-rate interest. 28 U.S.C. § 1961.[3]
The Colleges contend that, under the Plan Documents, when a PD claim achieves "allowed claim" status, it becomes a judgment against the Trust that carries the same right to judgment-rate interest as a judgment in the federal court system. Accordingly, the Colleges maintain that the district and bankruptcy courts erred as a matter of law in determining that the Colleges were not entitled to judgment-rate interest on their Allowed Claims. This Court rejects the Colleges' claim because the express provisions of the Plan Documents and the fundamental purpose of the Trust do not establish that the Colleges are entitled to judgment-rate interest.
A. The Plan Documents do not establish a legal right to judgment-rate interest
The Plan Documents "set forth the entire agreement" and state that "[n]o entity shall be bound by any terms ... other than as expressly provided for [t]herein." Plan art. 13.10; accord Trust art. 9.9; see NYC Appeal, 487 F.3d at 1335. A confirmed plan's provisions are binding on its debtors as well as its creditors, in this *1323 case, the Colleges. 11 U.S.C. § 1141(a); see 11 U.S.C § 1142(a). The Plan Documents, therefore, bind the Trust and the Colleges, and their provisions control as to the allowance and payment of PD claims. To determine whether the Colleges are entitled to judgment-rate interest, we must independently interpret the terms of the Plan Documents. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 112, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) ("As they do with contractual provisions, courts construe terms in trust agreements without deferring to either party's interpretation.").
The plain language of the Plan Documents negates the claim that the Colleges are legally entitled to judgment-rate interest. The Colleges rely upon provisions in the Plan Documents stating that an allowed asbestos claim is a "final, nonappealable judgment against the Trust," Plan art. 1.9, and that an allowed claim is deemed "a judgment against the Trust." APDCRP § IV(A)(5)(6). However, these provisions never mention interest, let alone state a right to judgment-rate interest on allowed claims. Meanwhile, other provisions in the Plan Documents speak directly to interest on PD claims. The Plan Documents state that, "[e]xcept as expressly stated in the Plan or otherwise [a]llowed by Final Order of the Bankruptcy Court, no interest ... shall be [a]llowed on any [c]laim ..." Plan art. 13.15. The following provision reiterates that "[n]o ... interest shall be paid with respect to any [c]laim ... except as specified herein or as [a]llowed by a Final Order of the Bankruptcy Court." Plan art. 13.16 (emphasis added). In addition, the APDCRP defines the costs that may be included in the calculation of "allowed costs" for PD claims; the definition expressly excludes pre-judgment and post-judgment interest. APDCRP § IV(A)(6). Nowhere do the Plan Documents mention the inclusion of interest in payments on allowed claims.
The Colleges attempt to circumvent the provisions in the Plan Documents expressly prohibiting interest payments by arguing that they refer to earlier phases of claims processing. The Colleges maintain that there are three distinct phases of claims processing: submission, evaluation, and payment. According to the Colleges, the provisions in the Plan Documents expressly prohibiting interest payments refer to the earlier submission and evaluation phases of claims processing before a claim is allowed by the Administrator. In contrast, in the payment stage, when a claim becomes an "allowed claim," the Colleges contend that the claim assumes a special status as a "judgment," and the plain meaning of the term "judgment" carries statutory interest.
Although the Colleges' interpretation has some force, we do not find that an "allowed claim" under the Plan Documents carries the same legal rights as a money judgment in the federal court system, and specifically, the right to judgment-rate interest. "The Plan Documents must be construed as a whole with each provision given reasonable meaning and effect." NYC Appeal, 487 F.3d at 1333. The Colleges focus on part of the Plan's definition of "allowed" in isolation, stating that an allowed asbestos claim constitutes a "final, non-appealable judgment against the Trust." Plan art 1.9. This same provision states in pertinent part that "`[a]llowed' means ... any [a]sbestos [c]laim that is liquidated and allowed pursuant to the applicable Asbestos Claims Resolution Procedures or, if applicable, pursuant to a Final Order of the Bankruptcy Court" but only to the extent so allowed. Id. (emphasis added); see also APDCRP § IV(A)(5) ("Allowed [c]laim shall mean and refer to any [c]laim allowed for payment ...") *1324 (emphasis added). Thus, despite the Colleges' argument that an "allowed claim" is distinct from a "claim," an "allowed claim" is nevertheless a type of claim. The Plan Documents clearly state that "no ... interest shall be paid with respect to any [c]laim ... except as specified or as [a]llowed by" a bankruptcy court order. Plan art. 13.16 (emphasis added). Provisions in the Plan Documents generally likening "allowed claims" to "judgments," do not override the plain terms of the Plan Documents which expressly preclude a right to interest.
"The confirmed Plan Documents are `the result of extensive arms length negotiations' among the interested parties and embody `various settlements and compromises.'" NYC Appeal, 487 F.3d at 1335 (quoting In re Celotex Corp., 204 B.R. at 597). If "allowed claim" status was intended to trigger the accrual of judgment-rate interest, the Plan Documents could have expressly so provided.
The Colleges' attempt to read a legal right to judgment-rate interest into this Court's decision in the NYC Appeal is also unpersuasive. See generally NYC Appeal, 487 F.3d 1320. This Court referred to provisions in the Plan Documents likening allowed claims to judgments against the Trust in connection with establishing the binding nature of allowed claims on the Trust. See id. at 1329-30. The question of interest, and specifically the question of whether the Plan Documents required the payment of interest on allowed claims, was not an issue before this Court in that case. Nor did this Court read a right to interest into the Plan provisions referring to the enforceability of allowed claims. See id., (stating that "[d]eeming a claim `allowed' is not just a procedural formality; it also affects the claim's enforceability"); Plan art. 1.9; APDCRP § IV(E)(2). In fact, this Court recognized that, despite the binding nature of allowed claims, the Trust has a right to invoke judicial review if it believes the Administrator abused its discretion in allowing a claim. See NYC Appeal, 487 F.3d at 1337.[4] The characterization of allowed claims as "judgments" in the Plan Documents to establish the binding nature of an allowed claim does not suggest that judgment-rate interest accrues.
Therefore, the Plan Documents, construed as a whole, do not establish that the Colleges are entitled to judgment-rate interest pursuant to 28 U.S.C.1961.
B. The method of payment is consistent with the Trust's purpose
We also reject the Colleges' claim that the equities support awarding the Colleges judgment-rate interest. Once the judicial process resolved the dispute concerning the extent of the Trustee's authority over allowed claims, the Trust paid the Colleges' Allowed Claims. Included in the payment to the Colleges was an additional amount representing their ratable share of the return on the Trust's investments that had accrued during the duration of the litigation over the Colleges' Allowed Claims.
This method of payment to the Colleges is consistent with the Trust's mandate of equal and fair treatment to all claimants. Trust Agreement arts. 2.2 (stating that a purpose of the Trust is to ensure that all holders of similar PD claims are paid in substantially the same manner), 3.1(a), 3.4(a); see 11 U.S.C. § 524(g)(2)(B)(ii)(V) (the Bankruptcy Code provision under *1325 which the Trust was established which states that the Trustee must pay all claimants with similar claims in a substantially equivalent manner). The Colleges' argument that the payment rate was imposed on the Colleges without an express agreement does not adequately consider the Trustees' responsibility to pay "all claimants with similar claims in a substantially equivalent matter." Trust Agreement 3.4(e)(iii). The Trust has not paid statutory judgment-rate interest to any other PD claimant. Even if no other claimant would benefit from the application of judgment-rate interest because the additional amount they received from the Trust was greater, the Trust acted consistent with its mandate by using the same method of computation in making additional payments to all similarly situated PD claimants, including the Colleges.
Awarding judgment-rate interest would frustrate the Trust's purpose to ensure, to the extent possible that funds are available to pay present claims and future demands that involve similar claims in substantially the same manner. See Trust Agreement art. 2.2, 3.4(e)(iii); see also In re Celotex Corp., 204 B.R. at 605. A stated purpose of the Trust is to "preserve, hold, manage, and maximize the Trust Assets for use in paying Allowed Asbestos Claims." Plan art. 5.1. However, the Plan Documents recognize that, when the Trust was established, the total number and amount of claims that ultimately may be allowed was unknown. Trust Agreement art. 3.4(a); see Bankruptcy Dismissal Order, Adv. No. 02-522 at 9. The Trust consequently pays claimants only a percentage of their allowed claim amounts. Plan art. 5.1; Trust Agreement art 3.4(a).
Given that PD claimants receive only a percentage of their allowed claim amounts, and given that the Trust's resources are not unlimited, the bankruptcy court correctly reasoned that "the Plan Documents do not contemplate the accrual of post-judgment interest on [a]llowed [c]laims at the federal statutory rate." Bankruptcy Dismissal Order, Adv. No. 02-522 at 10. Unlike the method of payment used by the Trust, the federal statutory rate is not linked to the Trust's return on investments and thus, additional payments on certain allowed claims at such a rate could potentially deplete the pool of money from which all claimants obtain money damages. Therefore, as the bankruptcy court reasoned, awarding judgment-rate interest to the Colleges would be "inconsistent with the purpose of the Trust to preserve its assets for use in paying all present and future Claims in substantially the same manner." Id. at 10.
C. The Additional Payment to the Colleges Does Not Establish that the Colleges are Legally Entitled to Judgment-Rate Interest.
The Colleges also erroneously claim that the only way to harmonize the Trust's actions with the Plan Documents is to recognize that the Plan does not prohibit interest on allowed claims, and that, in fact, the Trust's failure to pay judgment rate interest violates provisions in the Plan Documents. Despite the Colleges' argument to the contrary, the act of paying an additional amount to the Colleges does not lead to the conclusion that the Plan Documents trigger a right to judgment-rate interest.
The Trustees stand as fiduciaries to all claimants. The Trustees, therefore, must consider their responsibilities to both PD claimants and personal injury claimants, including present and future claimants of both types, and must pay similar claims in substantially the same manner. See Trust Agreement arts. 2.2, 3.1(a), 3.4(a); see also 11 U.S.C. § 524(g)(2)(B)(ii)(V).
*1326 Under the Plan Documents, once a claim is allowed, the Trustees have "complete discretion to determine the timing and the appropriate method for making payments," subject to the requirements of the Plan Documents. Trust Agreement art. 3.4(c).
As the bankruptcy court explained, the Plan Documents do not contemplate a considerable lapse of time between the Administrator's determination to allow a claim and payment by the Trust. Bankruptcy Dismissal Order, Adv. No. 02-522 at 12; see Trust Agreement arts. 3.3(a); 3.4(e)(iii) (providing for prompt payment by the Trust once an Administrator allows a claim). Consequently, when the Trustees finally paid the disputed claims to the City of New York, the payment included an additional amount based upon the Trust's return on the City of New York's share of the Trust's assets that were not distributed to the City of New York during the course of adversary proceedings.
By using this method of calculating the additional payment, the Trustees did not deplete the Trust of assets that it otherwise would have retained had it paid the claimants promptly after their claims were allowed. Nor did this method permit other recipients to benefit from the delay in payment on certain allowed claims.
The Trust made similar additional payments, based upon the same formula, to other delayed payment recipients. The Trust, therefore, made an additional payment to the Colleges, using the same method of computation, for the significant period of judicial review during which the Trust withheld payment on the Colleges' Allowed Claims.
This additional payment does not necessitate the conclusion that the Plan Documents require judgment-rate interest. The payments were within the Trustees' discretion and are consistent with the Trust's obligation to pay similar claims in substantially the same manner. See Trust Agreement arts. 2.2, 3.1(a), 3.4(a); see also 11 U.S.C. § 524(g)(2)(B)(ii)(V).
CONCLUSION
Based on the foregoing reasons, we uphold the district court's decision affirming the bankruptcy court's order of dismissal.
AFFIRMED.
NOTES
[*] Honorable Richard W. Goldberg, Judge, United States Court of International Trade, sitting by designation.
[1] Claremont McKenna College, Michigan State University, Prince George's Community College, Rochester Institute of Technology, the University of Cincinnati, and Fairfield University.
[2] The documents that govern the resolution of the issue are: 1) The Modified Joint Plan of Reorganization Under Chapter 11 of the United States Bankruptcy Code for the Celotex Corporation and Carey Canada Inc. (the "Plan"); 2) The Second Amended and Restated Asbestos Settlement Trust Agreement (the "Trust Agreement"); and 3) The Third Amended and Restated Asbestos Property Damage Claims Resolution Procedures ("APDCRP"), (collectively, "The Plan Documents"). The APDCRP is annexed to and incorporated by reference within the Trust Agreement, and along with the Trust Agreement, is in turn incorporated within the Plan. Plan arts. 1.26, 1.106, 1.143, 1.146; Trust Agreement art. 1.2. In the event of inconsistencies, the Plan controls. Trust Agreement art. 9.13.
[3] Courts have found that judgment-rate-interest pursuant to 28 U.S.C. § 1961 applies to the judgments entered by a bankruptcy court. See, e.g., In re Am. Way Serv. Corp., 229 B.R. 496, 538 (Bankr.S.D.Fla.1999); In re Pester Refining Co., 964 F.2d 842, 849 (8th Cir. 1992) ("Because a bankruptcy court is part of the district court, the statute applies to bankruptcy proceedings."); Ocasek v. Manville Corp. Asbestos Disease Comp. Fund, 956 F.2d 152, 154 (7th Cir. 1992).
[4] In fact, this Court upheld the Trust's decision to withhold payment on an illustrative patent claim, reversing and remanding the bankruptcy court's grant of summary judgment to the City of New York on the claim. NYC Appeal, 487 F.3d at 1338-39.
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732 P.2d 1181 (1987)
The CITY OF MONTROSE, Colorado, Petitioner-Appellant,
v.
PUBLIC UTILITIES COMMISSION OF the STATE OF COLORADO, and Daniel E. Muse, L. Duane Woodard, Edythe S. Miller, individually and as commissioners thereof, and Rocky Mountain Natural Gas Co., Inc., Respondents-Appellees.
No. 84SA532.
Supreme Court of Colorado, En Banc.
February 23, 1987.
*1183 John R. Kappa, City Atty., Montrose, for petitioner-appellant.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Eugene C. Cavaliere, Deputy Atty. Gen., Denver, for respondents-appellees.
LOHR, Justice.
This is an appeal by the City of Montrose from a judgment of the District Court for *1184 Montrose County upholding a decision of the Public Utilities Commission on certiorari review under section 40-6-115, 17 C.R.S. (1984). The Public Utilities Commission (Commission) entered the decision following a hearing concerning revised tariffs filed by Rocky Mountain Natural Gas Company, Inc. (Rocky Mountain) for the purpose of increasing rates and charges for natural gas in its western slope service area. Pursuant to section 40-3-106(4), 17 C.R.S. (1984), enacted in 1981, the Commission had previously directed Rocky Mountain to file revised tariffs containing the provision that any franchise fees paid by Rocky Mountain to a municipality be surcharged only to customers within that municipality rather than being divided among all customers in Rocky Mountain's rate area. The City of Montrose did not challenge Rocky Mountain's rates and charges but objected to this method of surcharging franchise fees and contended in the rate proceeding that the statute on which the surcharge order was based violates several provisions of the Colorado and United States constitutions. On appeal from the Commission's decision, the district court rejected these arguments and sustained the order of the Commission. We agree that the constitutional challenges are not meritorious, and we therefore affirm the judgment of the district court.
I.
"Municipal franchise charges are sums paid to a municipality by utilities such as Rocky Mountain by agreement for the privilege of providing utility service within that municipality and of constructing and maintaining utility lines in streets, alleys and other municipal property." City of Montrose v. Public Utilities Commission, 629 P.2d 619, 621 (Colo.1981). Rocky Mountain has a franchise agreement with each municipality that it serves, including the City of Montrose (City). These franchise agreements all extend for terms of twenty to twenty-five years. In each case, the franchise charge to be paid by Rocky Mountain is either two percent or three percent of the gross receipts from sales within the municipality.
This is not the first time that these parties have been before us regarding the way that Rocky Mountain surcharges the franchise fees back to its customers. Prior to December 1975, Rocky Mountain treated the franchise fees as general operating expenses and included them within the formula used to determine its rates. Therefore, as operating expenses, all customers shared the cost of those charges. Then, in December of 1975, the Commission ordered Rocky Mountain to surcharge the franchise fees solely to customers living within the municipalities imposing the fees. Based on this order, Rocky Mountain surcharged only its customers within the City for the franchise fee negotiated with the City. The City challenged the order of the Commission and the case ultimately came before this court. On February 5, 1979, we announced our opinion in City of Montrose v. Public Utilities Commission, 197 Colo. 119, 590 P.2d 502 (1979) (Montrose I). In Montrose I, we held that the Commission's surcharge order was unjust and discriminatory, and that it was arbitrary and capricious because it was not supported by any evidence in the record. Therefore, pursuant to the standards for judicial review set forth in section 40-6-115(3), 17 C.R.S. (1973),[1] we directed that the surcharge order be set aside.
In April of 1979, the Commission ordered Rocky Mountain to file new tariffs, and directed that those tariffs should provide that municipal franchise fees would be surcharged to all customers and that the surcharges would be set forth on each customer's bill as a separate item. The City objected to this order, contending that the franchise fees should have been charged as operating costs and included in the formula for computing reasonable rates rather than surcharged independently. The City also objected to that part of the Commission's order requiring the surcharge to be set forth as a separate item on each customer's *1185 bill. We ultimately affirmed the decision of the district court rejecting the City's contentions. City of Montrose v. Public Utilities Commission, 629 P.2d 619 (Colo.1981) (Montrose II).
While our decision in Montrose II was pending, the General Assembly enacted Senate Bill 139, which is codified in relevant part at section 40-3-106(4), 17 C.R.S. (1984). Section 40-3-106(4) provides:
The commission shall order a fixed public utility, except a municipally owned utility, to increase its rates only to its customers in a municipality by adding a surcharge to recover the amount such fixed public utility pays to that municipality as a cost of doing business within that municipality under a franchise or pursuant to a license or occupation tax levied by the municipality, so long as the increase in rates by such fixed public utility is pursuant to a method of surcharge approved by the commission. Occupation tax as used in this subsection (4) does not include the employer and employee tax imposed by a municipality for the privilege of employment within that municipality.[2]
On July 14, 1981, the Commission issued Decision No. C81-1220 directing Rocky Mountain to file amended tariffs providing for surcharge of municipal franchise fees in the manner required by section 40-3-106(4). Three days later, on July 17, 1981, Rocky Mountain filed for a rate increase with the Commission. The City intervened in the proceedings before the Commission, known as Investigation and Suspension Docket No. 1523 (I & S 1523), concerning this requested rate increase.
On September 28, 1981, the hearing examiner entered his Recommended Decision (Decision No. R81-1623) establishing new rates and charges for Rocky Mountain. Decision No. R81-1623, however, omitted any reference as to how municipal franchise fees were to be treated. The City filed exceptions to the hearing officer's recommended decision, asserting that the hearing officer had erred in failing to enter an order concerning the treatment of municipal franchise fees, in failing to order Rocky Mountain to perform a cost of service study on a municipal/nonmunicipal basis and file new tariffs based thereon (see Montrose I, 197 Colo. at 123-24, 590 P.2d at 506), in failing to require separate municipal/nonmunicipal rates for each customer class, and in failing to order that municipal franchise fees be surcharged system-wide. The Commission, by Decision No. C81-1840, adopted the findings, conclusions and recommended order of the hearing examiner and denied the exceptions that the City had filed to the hearing examiner's recommended decision. The City filed an Application for Rehearing with the Commission, and the Commission rejected the application on November 24, 1981, in Decision No. C81-1954.
The City sought certiorari review of both Decision No. C81-1840 and Decision No. C81-1954 in the Montrose County District *1186 Court pursuant to section 40-6-115(1), 17 C.R.S. (1984). The district court rejected the numerous challenges to the constitutionality of section 40-3-106(4) advanced by the City and affirmed the decisions of the Commission. Thereafter, the City appealed to this court pursuant to section 40-6-115(5), 17 C.R.S. (1984), raising the same arguments that it presented to the district court. We now turn to the City's arguments.[3]
II.
A.
The City argues that section 40-3-106(4) violates Article XXV of the Colorado Constitution because that statute is an attempt to regulate utility rates, a function delegated to the Commission by Article XXV. We disagree.
Article XXV provides:
In addition to the powers now vested in the General Assembly of the State of Colorado, all power to regulate the facilities, service and rates and charges therefor, including facilities and service and rates and charges therefor within home rule cities and home rule towns, of every corporation, individual, or association of individuals, wheresoever situate or operating within the State of Colorado, whether within or without a home rule city or home rule town, as a public utility, as presently or as may hereafter be defined as a public utility by the laws of the State of Colorado, is hereby vested in such agency of the State of Colorado as the General Assembly shall by law designate.
Until such time as the General Assembly may otherwise designate, said authority shall be vested in the Public Utilities Commission of the State of Colorado; provided however, nothing herein shall affect the power of municipalities to exercise reasonable police and licensing powers, nor their power to grant franchises; and provided, further, that nothing herein shall be construed to apply to municipally owned utilities.
Although Article XXV grants the Commission broad authority to regulate public utilities in this state, that authority is subject to restrictions that may be imposed by the legislature. Montrose II, 629 P.2d at 622; Peoples Natural Gas v. Public Utilities Commission, 626 P.2d 159, 161-62 (Colo.1981); Mountain States Legal Foundation v. Public Utilities Commission, 197 Colo. 56, 59, 590 P.2d 495, 497 (1979). In Peoples Natural Gas, we said, "Under [Article XXV], the authority of the Public Utilities Commission has been made subject to restrictions which may be imposed by the General Assembly.... Once the legislature acts, the scope of the commission's authority and procedure is necessarily controlled by statute." 626 P.2d at 161 (citation omitted). Thus, we made it clear that the legislature may restrict the Commission's discretion in matters of rate making.
*1187 We believe that the statute at issue in the present case, section 40-3-106(4), is such a legislative restriction placed on the discretion of the Commission. Section 40-3-106(4) does nothing more than restrict the manner in which the Commission may exercise its discretion to order privately owned fixed public utilities to surcharge the costs of franchise fees back to the utilities' customers. Accordingly, section 40-3-106(4) does not violate Article XXV of the Colorado Constitution.
B.
The City argues next that section 40-3-106(4) interferes with the right of home rule cities, such as Montrose, to grant franchises. Article XX, Sections 4 and 6,[4] and Article XXV of the Colorado Constitution expressly preserve the right of home rule cities to grant franchises relating to streets, alleys, or public places. See Community Tele-Communications, Inc. v. Heather Corp., 677 P.2d 330, 336 (Colo.1984). However, we are unable to see how section 40-3-106(4) interferes with the City's right to grant franchises. As the district court pointed out, the City is still free to negotiate and grant franchises and to collect franchise fees. Section 40-3-106(4) does not limit a home rule city's discretion to exercise these functions. Likewise, section 40-3-106(4) in no way alters, restricts or abolishes a privately owned fixed public utility's obligation to pay to a municipality with which the utility has a franchise agreement the entire amount of the franchise fee negotiated. Indeed, the City admits that the amount of franchise fees to be paid by utilities to municipalities is unaffected by section 40-3-106(4).
The City contends, however, that by transferring the liability for franchise fees to municipal customers alone, section 40-3-106(4) has effectively eliminated the consideration that a municipality receives in return for granting a franchise and that the franchise fee is thereby converted into the functional equivalent of a sales tax on municipal customers. This, in the City's view, adversely affects its power to grant franchises. With this we cannot agree.
As the Commission correctly points out, there is nothing in the power to grant franchises that immunizes customers within a municipality charging a franchise fee from paying an increment to cover this cost as a part of their rates for service. In State ex rel. City of West Plains v. Public Service Commission, 310 S.W.2d 925 (Mo.1958), the Missouri Supreme Court was faced with a challenge similar to that presented by the City in the present case. In that case, Missouri's Public Service Commission had authorized a telephone company to pass on the cost of occupation taxes imposed by a municipality solely to the subscribers within the municipality imposing the tax. The City of West Plains contended that this order interfered with *1188 its authority under the Missouri Constitution to impose such taxes. In rejecting this argument, the Missouri Supreme Court concluded:
The argument is that [West Plains], pursuant to constitutional authority, levied an occupation tax against [the telephone company] but that the commission, by its order, has converted the tax into one against the subscribers to the telephone service. The conclusion is fallacious. The utility remains the party taxed and the utility still pays the taxthe only effect of the commission's order in that respect is to permit the utility to collect the money with which to pay the tax from the tax beneficiaries rather than from all subscribers. It must be apparent that a utility's subscribers will always provide the money for payment of all taxesthe utility has no other source of revenuethe only question is which subscribers should pay the tax. Under the commission's order, [the telephone company] receives no more money and no higher rate of return than it would receive under its prior practice of collecting occupation taxes system-wide.
Id. at 934. See also City of Spartanburg v. Public Service Commission, 281 S.C. 223, 314 S.E.2d 599, 600 (1984); Ogden City v. Public Service Commission, 123 Utah 437, 260 P.2d 751, 753-54 (1953).
This reasoning applies with equal force to the facts of the present case. Were we to accept the City's argument, it would follow that municipal residents should not have to pay any part of the cost of franchise fees imposed by the municipality. Such a result is not required by Article XX, Sections 4 and 6, or Article XXV of the Colorado Constitution. We therefore conclude that section 40-3-106(4) does not interfere with the right to grant franchises guaranteed to home rule cities by the Colorado Constitution.
C.
Relying on our opinion in Montrose I, the City contends that section 40-3-106(4) violates the equal protection of the laws as guaranteed by the United States and Colorado constitutions because it treats municipal and nonmunicipal ratepayers differently in the absence of a rational basis to do so. The City's reliance on Montrose I is misplaced.
In Montrose I we held, among other things, that the Commission's order requiring fixed public utilities to surcharge municipal franchise fees to customers living within the municipalities imposing the franchise fees violated the statutory requirement that decisions of the Commission are to be "just and reasonable." See § 40-6-115(3), 17 C.R.S. (1984); Montrose I, 197 Colo. at 122-23, 590 P.2d at 504-05. Section 40-6-115(3), 17 C.R.S. (1984), provides in pertinent part:
The review [of a decision of the Commission] shall not extend further than to determine whether the commission has regularly pursued its authority, including a determination of whether the decision under review violates any right of the petitioner under the constitution of the United States or of the State of Colorado, and whether the decision of the commission is just and reasonable and whether its conclusions are in accordance with the evidence.
(Emphasis added.)
The City argues that our decision in Montrose I requires us to hold that section 40-3-106(4) violates the equal protection of the laws since we found that the decision of the Commission under review in Montrose I, which ordered Rocky Mountain to do what section 40-3-106(4) now requires Rocky Mountain to do, was unjust and discriminated against municipal ratepayers to the unfair benefit of ratepayers living outside municipal boundaries. By its terms, however, section 40-6-115(3) requires more of a Commission decision in the way of justness and reasonableness among various classes of ratepayers than do the equal protection clauses of the United States and Colorado constitutions. To read the statute as requiring only that a decision of the Commission meet constitutional equal protection criteria would render the "just and *1189 reasonable" clause of little value. However, each clause of a statute must be presumed to have a purpose, see Colorado State Civil Service Employees Ass'n v. Love, 167 Colo. 436, 450, 448 P.2d 624, 630 (1968), and, when possible, every clause of a particular statute will be given effect so as not to render any part of the statute meaningless, Colorado General Assembly v. Lamm, 700 P.2d 508, 517 (Colo.1985). The language of section 40-6-115(3) plainly specifies that the rates set by the Commission be just and reasonable, not simply that they do not discriminate among classes in a way that would violate minimum constitutional equal protection requirements. See also §§ 40-3-101 (requiring that all charges and service of a public utility be "just and reasonable"), -102 (granting authority to the Commission "to prevent unjust discriminations" by public utilities in rates and charges), and -111 (authorizing Commission, after a hearing, to change rates or other charges set if those rates and charges are "unjust, unreasonable, discriminatory, or preferential, or in any way violate any provision of law"), 17 C.R.S. (1984). Therefore, our decision in Montrose I is not dispositive of the City's equal protection claim, and that claim must be analyzed under settled equal protection principles.
Equal protection of the laws is guaranteed to all persons by the fourteenth amendment to the United States Constitution and the due process clause of Article II, Section 25, of the Colorado Constitution. See Millis v. Board of County Commissioners, 626 P.2d 652, 657 (Colo.1981). A regulatory classification that neither impinges on fundamental rights nor affects suspect classes does not deny equal protection of the laws if the distinctions made have a reasonable basis and are rationally related to a legitimate state interest. Collopy v. Wildlife Commission, 625 P.2d 994, 1002 (Colo.1981). The City concedes that the rational basis test is applicable here. Under rational basis analysis, the City, as the party asserting the unconstitutionality of section 40-3-106(4), has the burden of proving that the statute is constitutionally invalid beyond a reasonable doubt. Branson v. City & County of Denver, 707 P.2d 338, 340 (Colo.1985). We conclude that the City has not carried its burden of proof.
The legislature could have reasonably concluded that section 40-3-106(4) would reduce the incentive of municipalities to negotiate inflated franchise fees. If such fees are surcharged system-wide by the utility, a municipality knows that its citizens will not have to pay the entire cost of any fee the municipality is able to negotiate. Municipalities could therefore drive up the cost of utility service of all consumers within the system even though residents of the municipality would receive the majority of the benefits of the franchise fee. The higher the franchise fee, the greater the amount of funds that flow into the municipality's general fund. There is the possibility, therefore, that a municipality could place an increasingly greater burden on customers outside its boundaries to support the municipality. Section 40-3-106(4), however, provides a disincentive for municipalities to negotiate inflated franchise fees since whatever fee a municipality is able to obtain from a utility will be paid for, in the end, by the municipality's own residents. See Ogden City v. Public Service Commission, 123 Utah 437, 260 P.2d 751, 752-53 (1953); City of Newport News v. Chesapeake & Potomac Telephone Co., 198 Va. 645, 96 S.E.2d 145, 148-49 (1957). This increases the pressure on city officials to negotiate reasonable franchise fees, for a higher franchise fee is more likely to result in a higher number of objections from municipal residents, to whom the city officials are politically answerable.
The legislature could also have reasonably concluded that although customers who do not live in municipalities are benefited *1190 to some extent by the franchises, see Montrose I, 197 Colo. at 122-23, 590 P.2d at 505, customers who live within municipalities charging franchise fees receive the majority of the benefits of the franchises. The franchise fee most often goes into the general fund of the municipality. The general fund usually covers the cost of fire protection, police protection, parks, streets, and ambulance service, among other thingsbenefits which are enjoyed to some degree by residents outside the municipality but which are enjoyed primarily by municipal residents. We are persuaded that the legislature could have reasonably concluded that municipal customers receive a great enough share of the benefits of the franchises that they should be required to pay for the costs of the franchise fees. Neither the equal protection clause of the fourteenth amendment to the United States Constitution nor the due process clause of Article II, Section 25, of the Colorado Constitution requires that mathematical symmetry be attained between benefits received and payment for those benefits. Cf. Colorado Dept. of Social Services v. Board of County Comm'rs, 697 P.2d 1, 13-15 (Colo.1985); Friends of Chamber Music v. City & County of Denver, 696 P.2d 309, 320-22 (Colo.1985).
We conclude that section 40-3-106(4) does not violate the equal protection of the laws.
D.
The City argues that section 40-3-106(4) constitutes special class legislation, which is prohibited by Article V, Section 25, of the Colorado Constitution.[5] The City argues that section 40-3-106(4) constitutes prohibited special legislation because it requires that some expenses, such as franchise fees and occupation taxes, be charged only to utility customers within a municipality but does not require that other operating expenses be charged in the same manner. Absent a reasonable basis for distinguishing between different types of operating expenses, the City contends that section 40-3-106(4) violates Article V, Section 25. We do not agree.
Article V, Section 25, of the Colorado Constitution was enacted by the people for the purpose of preventing class legislationthat is, legislation that applies to some classes but not to others without a reasonable basis for distinguishing between them, or legislation that exempts some members of a class from coverage without a reasonable basis for the exemption. Therefore, Article V, Section 25, is concerned with the composition of the group that is covered by a particular piece of legislation, rather than the scope of the subject matter of the legislation. For instance, in McCarty v. Goldstein, 151 Colo. 154, 376 P.2d 691 (1962), we upheld a statute of limitations that applied to doctors, chiropractors, osteopaths, chiropodists, midwives, and dentists, but not to other health care professionals such as X-ray technicians, dental hygienists, psychologists and therapists. The statute did not violate Article V, Section 25, because there was a reasonable basis for distinguishing between who was covered and who was not, and it was "general and uniform in its operation upon all in like situation." Id. at 157-58, 376 P.2d at 692-93.
In City of Denver v. Bach, 26 Colo. 530, 58 P. 1089 (1899), we held that a statute that required clothing stores and pawn shops to close on Sundays violated Article V, Section 25. In that case we said:
It is clear that the ordinance, in so far as it affects dealers in clothing, is directed to a particular class of merchants, and exempts others without any substantial reason back of it why it is made to operate *1191 only upon them, and not generally upon all dealers in merchandise, or all avocations. It compels them to refrain from doing business on Sunday, and yet allows their neighbors engaged in the sale of articles not mentioned in the ordinance a privilege which they are denied. We conclude, therefore, that the ordinance does not affect all alike, and that a business or occupation which is not liable to interfere with public morality, or tend to create disorder, and over which the city has no special control, cannot be singled out, and made the subject of prohibition on Sunday.
Id. at 533-34, 58 P. at 1090.
Article V, Section 25, therefore, does not require that the legislature include within a law every item that could be made the subject of such legislation. Rather, Article V, Section 25, prohibits the legislature from exempting classes or members of a class from the coverage of a particular statute without justification. See Mosko v. Dunbar, 135 Colo. 172, 179-83, 309 P.2d 581, 585-88 (1957); Rifle Potato Growers Co-operative Ass'n v. Smith, 78 Colo. 171, 175-76, 240 P. 937, 939 (1925). A law is not local or special when it is general and uniform in its operation upon all in like situation. Denver Urban Renewal Authority v. Byrne, 618 P.2d 1374, 1385 (Colo.1980).
Section 40-3-106(4) applies to all privately owned fixed public utilities. For purposes of Article V, Section 25, then, the question is whether the legislature acted reasonably in exempting municipally owned fixed public utilities and privately owned non-fixed public utilities (i.e., transportation utilities) from coverage, rather than whether the legislature acted reasonably in choosing not to include all operating expenses within the coverage of section 40-3-106(4). The City, however, does not contend that the distinction between privately owned fixed public utilities and other public utilities is unreasonable.[6] The City's contentions based on Article V, Section 25, are misconceived.
We reject the City's argument that section 40-3-106(4) violates Article V, Section 25, of the Colorado Constitution.
E.
The City contends that section 40-3-106(4) is void because it delegates to the Commission the power to interfere with the authority of municipalities with respect to franchises in violation of Article V, Section 35, of the Colorado Constitution. This claim is without merit.
Article V, Section 35, provides:
The general assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, or to levy taxes or perform any municipal function whatever.
The City argues that section 40-3-106(4) gives the Commission the authority to interfere with the City's constitutional power to grant franchises. However, the City's power to negotiate with and grant franchises to privately owned fixed utilities is unaffected by section 40-3-106(4). That statute merely limits the discretion of the Commission in determining how a privately owned fixed public utility will be allowed to recoup the cost of franchise feesa matter not within the domain of local self-government. See Town of Holyoke v. Smith, 75 Colo. 286, 293, 226 P. 158, 160 (1924) (subjects to which protection of Article V, Section 35, extend are only "such as properly fall within the domain of local self-government"). Municipalities have never had the authority *1192 to determine how franchise fees will be surcharged to a privately owned fixed public utility's customers. That authority rests within the discretion of the Commission, a discretion that has now been restricted by section 40-3-106(4).
The other arguments advanced here by the City are substantially similar to those it made with regard to Article XX, Sections 4 and 6, and Article XXV. Those arguments are discussed and rejected in Part II B of this opinion. They are no more persuasive here. Section 40-3-106(4) does not violate Article V, Section 35, of the Colorado Constitution.
F.
The City next contends that section 40-3-106(4) diminishes the obligation of Rocky Mountain to the City and its residents in violation of Article V, Section 38, of the Colorado Constitution in that it converts the franchise fee into a sales tax upon the City's citizens, thereby effectively diminishing the consideration and value of the franchise fee to the City and its residents. This argument is also without merit.
Article V, Section 38, provides:
No obligation or liability of any person, association, or corporation, held or owned by the state, or any municipal corporation therein, shall ever be exchanged, transferred, remitted, released, or postponed or in any way diminished by the general assembly, nor shall such liability or obligation be extinguished except by payment thereof into the proper treasury. This section shall not prohibit the write-off or release of uncollectible accounts as provided by general law.
Were we to agree with the City's argument, it would follow that residents of a municipality granting a franchise could not be surcharged by the utility paying the franchise fee for any part of the cost of that fee since such a surcharge would diminish the consideration and value of the franchise to residents of the municipality. This result is not intended or required by Article V, Section 38.
The flaw in the City's argument is that it attempts to equate a surcharge with a sales tax. We have previously rejected this argument in Part II B of this opinion. Rocky Mountain's legal obligation to the City is unchanged by section 40-3-106(4), for Rocky Mountain is still legally obligated to pay the City 100% of the franchise fee it agreed to pay and is still obligated to furnish adequate gas service at reasonable rates and charges. That being the case, section 40-3-106(4) does not violate Article V, Section 38, of the Colorado Constitution.
G.
The City's final argument attacking the constitutionality of section 40-3-106(4) is that the statute imposes a new liability upon the City's residents in violation of Article XV, Section 12, of the Colorado Constitution. Article XV, Section 12, provides:
The general assembly shall pass no law for the benefit of a railroad or other corporation, or any individual or association of individuals, retrospective in its operation, or which imposes on the people of any county or municipal subdivision of the state, a new liability in respect to transactions or considerations already past.
The City relies on our decision in City of Colorado Springs v. State, 626 P.2d 1122 (Colo.1980), where we held that the Pension Reform Act of 1978 unconstitutionally imposed a "new liability" on the City of Colorado Springs "in respect to transactions or considerations already past" by requiring Colorado Springs to pay unfunded accrued liabilities of the firemen's pension plan. Id. at 1127-29. That case, however, is distinguishable from the present one.
In City of Colorado Springs, we noted that accrued liabilities for payments to be made from a pension fund to its beneficiaries *1193 relate to "transactions or considerations already past" because "[t]hey are based upon work performed by employees in the past and are properly viewed as a form of compensation for that past work." Id. at 1128. The Pension Reform Act of 1978 imposed a new liability on Colorado Springs with respect to these accrued liabilities because it required Colorado Springs "to contribute an amount in excess of that which could be collected based on [the amount the city had previously been obligated to pay for those liabilities]." Id. at 1129. Colorado Springs had paid the amount statutorily required during the time the liabilities accrued. When the legislature determined that the funds collected for those accrued liabilities would be inadequate to fund them, it attempted to require cities to pay an additional amount to accomplish such funding. Therefore, the Pension Reform Act of 1978 imposed a new liability on cities because it required them to pay an amount in addition to the contributions they had been required by statute to make during the time the liabilities accrued. The cities had paid once and the legislature could not require them thereafter to pay an additional amount for those past obligations.
In the present case, section 40-3-106(4) does not require Rocky Mountain or any other privately owned fixed public utility to surcharge municipal customers for amounts that were previously surcharged to, and already paid by, rural customers for the franchise fees. If section 40-3-106(4) required privately owned fixed public utilities to surcharge municipal customers for amounts previously paid to fixed public utilities by rural customers, we would have little difficulty in striking down the statute. Section 40-3-106(4), however, contains no such requirement. Rocky Mountain's liability for franchise fees to the City was not increased by section 40-3-106(4). Although municipal customers will be surcharged more than they were prior to the enactment of section 40-3-106(4), the increase is not a "new liability" within the meaning of Article XV, Section 12. We are not persuaded that Article XV, Section 12, creates a vested right in municipal ratepayers to any particular method of allocating franchise fees.
III.
The City urges that if section 40-3-106(4) is found to be constitutional, either the Commission or Rocky Mountain is nevertheless required by our decision in Montrose I to undertake a system-wide study breaking down all costs to Rocky Mountain along municipal/nonmunicipal lines and to base its rates on the results of that study. We decline to impose such a requirement on either the Commission or Rocky Mountain.
In Montrose I, we held that the Commission could order a utility to surcharge municipal fees solely to municipal residents only if a cost of service study was done "to determine how costs of service for a natural gas utility break down along municipal/non-municipal lines...." Montrose I, 197 Colo. at 123, 590 P.2d at 506. Section 40-3-106(4), however, effectively overruled that portion of our holding in Montrose I by restricting the discretion of the Commission with regard to how certain municipal fees may be surcharged. As there is no constitutional requirement that franchise fees be charged to all customers or that rates be set with mathematical equality, the legislature acted within its authority in choosing not to require the cost of service study sought by the City. The legislature has spoken on this matter and it is not within the purview of this court to question the legislature's choice of policy.
The judgment of the district court is affirmed.
NOTES
[1] Section 40-6-115(3), 17 C.R.S. (1973), is now codified at section 40-6-115(3), 17 C.R.S. (1984).
[2] Section 40-3-106(4) does not define "fixed public utility," nor is that term defined elsewhere in the Colorado Revised Statutes. In section 40-1-103(1)(a), 17 C.R.S. (1984), however, a public utility is defined in relevant part as a
common carrier, pipeline corporation, gas corporation, electrical corporation, telephone corporation, telegraph corporation, water corporation, person, or municipality operating for the purpose of supplying the public for domestic, mechanical, or public uses and every corporation, or person declared by law to be affected with a public interest....
Each of the entities referred to, with the exception of common carriers, would appear to fall under a common sense definition of "fixed" since the service provided by those entities is delivered by means of stationary facilities and equipment. This is not the case with common carriers. Section 40-1-102(3), 17 C.R.S. (1984), defines a common carrier as "every person directly or indirectly affording a means of transportation, or any service or facility in connection therewith, within this state by railroad, motor vehicle, aircraft, or other vehicle whatever by indiscriminately accepting and carrying for compensation passengers or property ... between fixed points or over established routes or otherwise...." Therefore, it appears likely that "fixed public utility," as used in section 40-3-106(4), was intended to refer to all public utilities except common carriers. However, we need not resolve this question definitively for the purpose of this opinion.
[3] The district court agreed with the Commission's finding in Decision No. C81-1840 that municipal franchise fee surcharges were not in issue in I & S 1523, but nevertheless ruled on the City's claims. The Commission argues that the issue of the constitutionality of section 40-3-106(4) is not properly before this court because the decisions that the City appealed from, Decision Nos. C81-1840 and C81-1954, did not treat the issue of how Rocky Mountain was to surcharge its customers for the franchise fees. We are satisfied, however, that the issue of municipal versus system-wide surcharging was before the Commission in I & S 1523 and is therefore properly before us.
As Decision No. C81-1220 issued by the Commission made clear, Rocky Mountain was required to comply with section 40-3-106(4). This order applied to the tariffs filed by Rocky Mountain in I & S 1523, and the rates ultimately approved by the Commission in Decision No. C81-1840 were subject to that statute by operation of law and by way of the Commission's Decision No. C81-1220. Furthermore, the City raised the issue in its exceptions filed to the hearing officer's recommended decision. In rejecting the exceptions filed by the City, the Commission noted, in Decision No. C81-1840, "[A]t the present time this Commission lawfully cannot decline to implement [section 40-3-106(4)]." Moreover, Rocky Mountain in fact implemented section 40-3-106(4) after I & S 1523 was initiated. We conclude that the issue of the constitutionality of section 40-3-106(4) was raised before the Commission by the City and is properly before this court.
[4] Article XX, Section 4, provides in relevant part:
No franchise relating to any street, alley or public place of the said city and county shall be granted except upon the vote of the qualified taxpaying electors, and the question of its being granted shall be submitted to such vote upon deposit with the treasurer of the expense (to be determined by said treasurer) of such submission by the applicant for said franchise.
Originally, Article XX, Section 4, applied only to the City and County of Denver. Article XX, Section 6, however, made the provisions of Article XX, Section 4, applicable to all home rule cities and towns. Article XX, Section 6, provides in relevant part:
The people of each city or town of this state, having a population of two thousand inhabitants as determined by the last preceding census taken under the authority of the United States, the state of Colorado or said city or town, are hereby vested with, and they shall always have, power to make, amend, add to or replace the charter of said city or town, which shall be its organic law and extend to all its local and municipal matters.
. . . . .
From and after the certifying to and filing with the secretary of state of a charter framed and approved in reasonable conformity with the provisions of this article, such city or town, and the citizens thereof, shall have the powers set out in sections 1, 4 and 5 of this article....
....
[5] Article V, Section 25, of the Colorado Constitution provides:
The general assembly shall not pass local or special laws in any of the following enumerated cases, that is to say [a number of specific subjects are listed]. In all other cases, where a general law can be made applicable no special law shall be enacted.
[6] For instance, municipally owned fixed public utilities do not pay the fees and taxes covered by section 40-3-106(4). Furthermore, the Commission has no authority to control the rates of municipally owned public utilities operated within municipal boundaries. Colo. Const. art. V, § 35; City of Loveland v. Public Utilities Commission, 195 Colo. 298, 301, 580 P.2d 381, 383 (1978).
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108 B.R. 585 (1989)
In re Paul J. FRAGAPANE and Janice E. Fragapane, Debtors.
Paul A. FRAGAPANE and Janice E. Fragapane, Plaintiffs,
v.
Mary Ann RABIN, et al., Defendants.
Bankruptcy No. B89-811, Adv. No. B89-155.
United States Bankruptcy Court, N.D. Ohio, E.D.
November 30, 1989.
Steven Davis, Cleveland, Ohio, for plaintiffs.
Mary Ann Rabin, Cleveland, Ohio, trustee.
Henry Epp, Cleveland, Ohio, for defendant, Gus Georgalis.
MEMORANDUM OF OPINION AND ORDER
RANDOLPH BAXTER, Bankruptcy Judge.
The Plaintiffs, Paul and Janice Fragapane (Debtors), seek to avoid a judgment lien which attached to certain real property owned by them prepetition pursuant to § 522(h) of the Bankruptcy Code.[1] Upon a review of the parties' respective briefs, the following findings and conclusions are hereby made.
The facts are generally undisputed. Prior to the Debtors' filing their petition for relief under Chapter 7, the Defendant, Gus Georgalis (Georgalis) obtained a judgment against the Debtors in an amount of $21,215.00, plus costs and a specified rate of interest. Following the receipt of the judgment, Georgalis caused a judgment lien to be placed upon certain real property owned by the Debtors located in Westlake, Ohio. The lien was perfected within ninety days of the Debtors' filing their bankruptcy petition. *586 Once the Debtors' Chapter 7 petition was filed and the case trustee took no action to avoid the lien, this action ensued.
The dispositive issue is whether the Debtors can avoid a prepetition lien where no such action was exercised by the duly appointed trustee. Georgalis contends, inter alia, that the Debtors are without authorization to avoid his judgment lien since there exists adequate value in the property to protect their statutory exemption entitlement and pay any liens affecting the property. For the following reasons, it is hereby determined that the position asserted by Georgalis is without merit, and the subject lien may be avoided by the Debtors.
Generally, § 522 of the Bankruptcy Code [11 U.S.C. 522, et seq.] addresses the subject of exemptions. Subsection (h) of that section, however, provides an avoidance provision for a debtor to avoid a transfer or recover a setoff in certain instances where the case trustee has not attempted to do so. Once avoidance is successfully pursued under § 522(h), the debtor may exempt the property from the estate to the extent allowed if the prepetition transfer was made involuntarily and the debtor took no action to conceal the property. 11 U.S.C. § 522(g). Further, any avoidance sought by the debtor under provisions of §§ 544, 545, 547 and 548 are subject to any applicable limitations of § 546 of the Bankruptcy Code.
In the present action, the trustee took no action to avoid the lien which attached within ninety days prepetition. The Debtors' action seeks to avoid that transfer under § 547 as a preferential transfer. An examination of the pleadings reveals that the parties have stipulated to the requirements of a § 547 preferential transfer. In fact, Georgalis has asserted that the trustee, "although clearly empowered to do so, chose not to set aside the Georgalis lien as a preference" (Reply to Motion For Judgment, p. 4). Under § 522(h), the Debtors clearly were empowered to seek avoidance of the subject lien under one of several cumulative avoiding statutes. They chose to seek avoidance under § 547(b) which has been achieved by the parties' stipulation. As the legislative history to § 522(g) provides, this section is primarily designed to give the debtor the rights the trustee could have, but has not, pursued. See, S.Rep. No. 95-989 to accompany S. 2266, 95th Cong., 2d Sess. (1978) p. 76; H.R. No. 95-595 to accompany H.R. 8200, 95th Cong., 1st Sess. (1977) pp. 360-363, U.S.Code Cong. & Admin.News 1978, p. 5787.
Under applicable nonbankruptcy law, the debtors are entitled to an exemption of $10,000.00 in the subject real property. This exemption amount was duly claimed by the Debtors. Georgalis' argument that the Debtors are not empowered to avoid the lien since the property has sufficient value to pay the Debtors' exemption amount in addition to any liens is a non-issue. The provisions of § 522(h) are not conditioned upon whether or not an exemption is impaired. Rather, it gives a debtor unfettered authority to avoid a lien under one of the avoiding statutes, subject only to § 546, where the trustee has not attempted to avoid the prepetition transfer. Thusly, it is hereby held that the lien constituted a preferential transfer avoidable under § 547; the Debtors are statutorily empowered to bring this action under § 522(h).
Accordingly, judgment is hereby granted in favor of the Plaintiffs and the subject lien is hereby avoided.
IT IS SO ORDERED.
NOTES
[1] 11 U.S.C. § 522(h):
The debtor may avoid a transfer of property of the debtor or recover a setoff to the extent that the debtor could have exempted such property under subsection (g)(1) of this section if the trustee had avoided such transfer, if (1) such transfer is avoidable by the trustee under section 544, 545, 547, 548, 549, or 724(a) of this title or recoverable by the trustee under section 553 of this title; and (2) the trustee does not attempt to avoid such transfer.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOHN F. LOONIE, for himself and as a
participant in The Sheet Metal
Workers National Pension Fund,
Plaintiff-Appellant,
v.
OAKLEIGH J. THORNE; MARIA E.
DEQUATRO,
Defendants-Appellees,
and
EDWARD J. CARLOUGH, Substituted by
JUNE CARLOUGH as representative of
the Estate of Edward J. Carlough,
Deceased; CAVET SYNDER; GORDON
JONES; RICHARD S. DOMANICO;
RAYMOND J. SWEENEY; HARRY HUGE;
No. 95-2300
KRISTA FOGLEMAN; ROGOVIN, HUGE &
SCHILLER; DONOVAN, LEISURE,
NEWTON & IRVINE, formerly Rogovin,
Huge & Schiller, and Donovan,
Leisure, Rogovin, Huge & Schiller;
SHEA & GOULD; WALTER CARLOUGH,
Defendants,
v.
DONALD FISHER; BOARD OF TRUSTEES;
SHEET METAL WORKERS NATIONAL
PENSION FUND,
Third Party Defendants,
RAYMOND J. SWEENEY; HARRY HUGE;
ROGOVIN, HUGE & SCHILLER,
Defendants-Amici Curiae.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-93-1596-A)
Submitted: April 9, 1996
Decided: November 4, 1996
Before HALL and NIEMEYER, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Vacated and remanded by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
J. Hardin Marion, William Willis Carrier, III, Lawrence Joseph
Quinn, Jennifer Carie Holmes, TYDINGS & ROSENBERG, Balti-
more, Maryland, for Appellant. Thomas Robert Folk, Grayson Pollard
Hanes, HAZEL & THOMAS, P.C., Falls Church, Virginia; Maria E.
Dequatro, New Bern, North Carolina, for Appellees. James J.
McGuire, New York, New York; John Quinn Rounsaville, Jr., Anne
D. Bolling, Steven P. Finizio, WILMER, CUTLER & PICKERING,
Washington, D.C.; Michael Charles Montavon, Fairfax, Virginia, for
Amicus Curiae.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant Loonie appeals from the district court's orders dismiss-
ing his claims against Maria DeQuatro for fraud and conversion and
2
granting summary judgment in favor of Oakleigh Thorne on a mal-
practice claim. We vacate the district court's orders and remand to
allow the district court to reconsider the claims in light of an interven-
ing decision of this court.
Loonie is a participant in the Sheet Metal Workers' National Pen-
sion Fund, an employee benefit plan governed by the Employee
Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.A.
§§ 1001-1461 (West 1985 & 1996 Supp.). He alleged in his complaint
that Thorne, a real estate appraiser, was hired by the Fund as an advi-
sor on the purchase of a conference center and that Thorne negli-
gently failed to discover a zoning conflict. Loonie alleged that
DeQuatro, as a consultant to the Fund, wrongfully converted fund
assets by making personal purchases with Fund money and defrauded
the Fund by misrepresenting the nature of her purchases. The district
court dismissed these state law claims because it found they were pre-
empted by ERISA.
After the district court entered these orders this court considered an
appeal dealing with the factually-related case of Custer v. Sweeney,
___ F.3d ___, No. 95-1077 (4th Cir. July 22, 1996). This court held
in Custer that a legal malpractice claim did not fall under ERISA's
preemptive umbrella. Slip op. at 15. Because the district court did not
have the benefit of Custer when it decided that Loonie's claims
against DeQuatro and Thorne were preempted by ERISA, we vacate
those orders and remand the case back to the district court for further
proceedings.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED
3
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04/27/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
January 18, 2018 Session
KARESA RIVERA ET AL. v. WESTGATE RESORTS, LTD., L.P. ET AL.
Appeal from the Chancery Court for Sevier County
No. 15-1-002 Telford E. Forgety, Jr., Chancellor
No. E2017-01113-COA-R3-CV
The plaintiffs accepted an offer of judgment from the defendant company, which
included payment of the plaintiffs’ reasonable attorney’s fees and expenses in an amount
to be determined by the trial court. The trial court awarded attorney’s fees and expenses
to the plaintiffs in the amount of $56,423.24, expressly determining such amount to be
reasonable. The defendant company has appealed. Inasmuch as the trial court failed to
consider the factors listed in Tennessee Supreme Court Rule 8, Rule of Professional
Conduct 1.5 (“RPC 1.5”) when making its determination regarding a reasonable award of
attorney’s fees, we vacate the trial court’s fee award and remand this matter for further
proceedings concerning this issue. We accordingly decline to award fees to the plaintiffs
on appeal.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Vacated; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., and JOHN W. MCCLARTY, JJ., joined.
Gregory C. Logue and Robert L. Vance, Knoxville, Tennessee, for the appellant,
Westgate Resorts, Ltd., L.P.
John O. Belcher, Nashville, Tennessee, and Richard T. Wallace, Sevierville, Tennessee,
for the appellees, Karesa Rivera and Gabriel Rivera.
OPINION
I. Factual and Procedural Background
On January 5, 2015, the plaintiffs, Karesa and Gabriel Rivera, filed a complaint in
the Sevier County Chancery Court against Westgate Resorts, Ltd., L.P., a/k/a Westgate
Resorts, Ltd. (“Westgate”); Stephen A. Wilson; James Z. Brown; and Michael W. Lewis
(collectively, “Defendants”). In this complaint, the Riveras stated that in May 2014, they
traveled to Pigeon Forge, Tennessee, for a family vacation, where they were approached
by an employee of Westgate. According to the Riveras, this employee asked the Riveras
to attend a time-share sales presentation in exchange for receiving free breakfast and
show tickets. The Riveras attended the time-share sales presentation on May 29, 2014,
and were solicited to purchase a time-share interest at the Westgate Resort in Gatlinburg.
The Riveras claimed that Mr. Wilson, Mr. Brown, and Mr. Lewis talked with the
Riveras during the time-share sales presentation and made various representations and
promises regarding the purchase of a time-share interest, including that Westgate would
“buy [the time-share interest] back” if the Riveras were not satisfied with their purchase.
Although the Riveras did eventually agree to purchase a time-share interest, they later
asserted that they were pressured to sign documents that they were not given sufficient
opportunity to review and did not understand. According to the Riveras, within two to
three weeks following their execution of the purchase agreement for a time-share interest,
they began to contact Westgate to ascertain whether Westgate would “buy it back.” The
Riveras stated that following repeated refusals by Westgate to relieve the Riveras of their
obligations, the Riveras consulted with counsel and filed the instant action.
The Riveras averred that Defendants violated the Tennessee Time-Share Act,
violated the Tennessee Consumer Protection Act, and made negligent and fraudulent
misrepresentations. The Riveras sought to rescind the contract and have their purchase
money refunded. The Riveras also sought damages, including treble and punitive
damages, as well as attorney’s fees.
The record reflects that on October 12, 2016, the Riveras filed a notice of
acceptance of Westgate’s offer of judgment, dated October 11, 2016. The parties agreed
that the Riveras would be allowed to rescind the contract and that all obligations between
the parties would be cancelled. The parties further agreed that all claims would be
released and that Westgate would pay to the Riveras (1) their purchase funds of
$3,587.20; (2) additional damages of $8,000.00; and (3) an award of “reasonable
attorneys’ fees and expenses in an amount to be set by the Court.” In addition, the
Riveras’ claims against the other defendants would be dismissed with prejudice.
Westgate’s offer of judgment was attached as an exhibit. The Riveras affirmed that they
had accepted the offer of judgment. They asked the trial court to determine the amount
of attorney’s fees and expenses and enter judgment accordingly.
The Riveras subsequently submitted a motion requesting that the trial court set the
amount of attorney’s fees, with an attached affidavit from their counsel. The Riveras
sought attorney’s fees and expenses in the amount of $56,423.24. Westgate filed a
2
response in opposition to the Riveras’ motion regarding attorney’s fees, asserting that the
amount sought was unreasonable. Westgate argued that the court should consider the
factors listed in Tennessee Supreme Court Rule 8, RPC 1.5 when making its
determination regarding a reasonable award of attorney’s fees.
Westgate further claimed that an offer to rescind the purchase agreement and
refund the monies paid by the Riveras had been extended to the Riveras by Westgate on
January 21, 2015, approximately two weeks following the filing of the Riveras’
complaint. According to Westgate, it made another written offer of settlement on April
15, 2016, which included rescission, a full refund, and compensation for “reasonable”
damages and attorney’s fees. The Riveras failed to accept either of these previous offers,
and litigation continued. Westgate contended that the vast majority of fees and expenses
were incurred after these offers were made. Westgate attached an affidavit executed by
defense counsel, detailing the terms of the prior offers of settlement.
The Riveras filed a reply to Westgate’s opposing response, stating that the prior
offers made by Westgate contained no offer of damages beyond refund of the purchase
monies and reasonable attorney’s fees, despite the Riveras’ claim for punitive and treble
damages. The Riveras reiterated that the fee award they were seeking was reasonable.
The trial court entered a final order on May 10, 2017, stating in pertinent part:
On March 3, 2017, this Court held a hearing on Plaintiffs’ Motion to
Set Amount of Attorney’s Fees and Expenses (the “Motion”) to determine a
reasonable amount of attorneys’ fees and expenses to be awarded to
Plaintiffs.
Having considered the Offer of Judgment and the Notice of
Acceptance thereof; the Motion; Defendants’ Response thereto; the
Plaintiffs’ Reply; all materials filed in support of and in response to the
Motion; the oral argument of counsel on the issue of the award of
attorneys’ fees and expenses; and the record as a whole, the Court finds that
the Motion should be granted, that the Plaintiffs should receive an award of
reasonable attorneys’ fees in the amount of $51,866.75 and expenses in the
amount of $4,556.49, for a total award of fees and expenses in the amount
of $56,423.24, and that judgment should be entered pursuant to Tenn. R.
Civ. P. 68.
Pursuant to the terms of the offer of judgment, the trial court also dismissed the Riveras’
claims against Mr. Wilson, Mr. Brown, and Mr. Lewis with prejudice. Westgate, as the
sole remaining defendant, timely appealed.
3
II. Issues Presented
Westgate has presented three issues on appeal, which we have restated slightly:
1. Whether the trial court erred by failing to apply the factors set forth
in Tennessee Supreme Court Rule 8, RPC 1.5 when setting the
reasonable amount of attorney’s fees to be awarded to the Riveras.
2. Whether the trial court erred by setting an award of attorney’s fees
and expenses that is unreasonable pursuant to the factors listed in
RPC 1.5.
3. Whether the trial court erred by declining to limit the amount of
recovery to the terms of Westgate’s reasonable offer of settlement
pursuant to Tennessee Code Annotated § 47-18-109(c)(4).
The Riveras present the following additional issue, which we have also restated slightly:
4. Whether the Riveras are entitled to an award of reasonable attorney’s fees
and expenses incurred on appeal.
III. Standard of Review
As our Supreme Court has previously explained with regard to an award of
attorney’s fees by the trial court:
The trial court’s determination of a reasonable attorney’s fee is “a
subjective judgment based on evidence and the experience of the trier of
facts,” United Med. Corp. of Tenn., Inc. v. Hohenwald Bank & Trust Co.,
703 S.W.2d 133, 137 (Tenn. 1986), and Tennessee has “no fixed
mathematical rule” for determining what a reasonable fee is. Killingsworth
v. Ted Russell Ford, Inc., 104 S.W.3d 530, 534 (Tenn. Ct. App. 2002).
Accordingly, a determination of attorney’s fees is within the discretion of
the trial court and will be upheld unless the trial court abuses its discretion.
Kline v. Eyrich, 69 S.W.3d 197, 203 (Tenn. 2002); Shamblin v. Sylvester,
304 S.W.3d 320, 331 (Tenn. Ct. App. 2009). We presume that the trial
court’s discretionary decision is correct, and we consider the evidence in
the light most favorable to the decision. Henderson v. SAIA, Inc., 318
S.W.3d 328, 335 (Tenn. 2010); Keisling v. Keisling, 196 S.W.3d 703, 726
(Tenn. Ct. App. 2005). The abuse of discretion standard does not allow the
4
appellate court to substitute its judgment for that of the trial court, Williams
v. Baptist Mem’l Hosp., 193 S.W.3d 545, 551 (Tenn. 2006); Myint v.
Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998), and we will find an
abuse of discretion only if the court “applied incorrect legal standards,
reached an illogical conclusion, based its decision on a clearly erroneous
assessment of the evidence, or employ[ed] reasoning that causes an
injustice to the complaining party.” Konvalinka v. Chattanooga-Hamilton
Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008); see also Lee Med.,
Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010).
Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011).
IV. Propriety of the Trial Court’s Fee Award
Westgate asserts that the trial court erred by failing to apply the factors listed in
Tennessee Supreme Court Rule 8, RPC 1.5 when making its determination regarding the
amount of a reasonable attorney’s fee award. Westgate further asserts that if the factors
were properly considered, the amount awarded would be deemed unreasonable.
The Riveras contend that the offer of judgment they accepted was conclusive,
pursuant to Tennessee Rule of Civil Procedure 68, and that no right of appeal lies
therefrom unless specifically preserved in the offer. Rule 68 provides:
At any time more than 10 days before the trial begins, a party
defending against a claim may serve upon the adverse party an offer to
allow judgment to be taken against the defending party for the money or
property, or to the effect specified in the offer, with costs then accrued.
Likewise a party prosecuting a claim may serve upon the adverse party an
offer to allow judgment to be taken against that adverse party for the money
or property or to the effect specified in the offer with costs then accrued. If
within 10 days after service of the offer the adverse party serves written
notice that the offer is accepted, either party may file the offer and notice of
acceptance, together with proof of service thereof, with the court and
thereupon judgment shall be rendered accordingly. An offer not accepted
shall be deemed withdrawn and evidence thereof is not admissible except in
a proceeding to determine costs. If the judgment finally obtained by the
offeree is not more favorable than the offer, the offeree shall pay all costs
accruing after the making of the offer. The fact that an offer is made but
not accepted does not preclude a subsequent offer.
As this Court has previously elucidated regarding a Rule 68 offer of judgment:
5
Rule 68 judgments are akin to consent orders, which are “conclusive
upon the consenting parties, and can neither be amended nor in any way
varied without like consent; nor can it be reheard, appealed from or
reviewed upon writ of error.” Nance v. Pankey, 880 S.W.2d 944, 946
(Tenn. Ct. App. 1993). However, a party may appeal from a consent order
upon a claim of lack of actual consent, fraud in its procurement, mistake, or
lack of the court’s jurisdiction to enter the judgment. Swift & Co. v. United
States, 276 U.S. 311, 323-24, 48 S.Ct. 311, 72 L.Ed. 587 (1928). “A
judgment by consent is in substance a contract of record made by the
parties and approved by the court.” 49 C.J.S Judgments § 227. The
cardinal rule of contract interpretation is that the court “must attempt to
ascertain and give effect to the intent of the parties.” Christenberry v.
Tipton, 160 S.W.3d 487, 494 (Tenn. 2005). In attempting to ascertain the
intent of the parties, the court must examine the language of the contract,
giving each word its usual, natural, and ordinary meaning. See Wilson v.
Moore, 929 S.W.2d 367, 373 (Tenn. Ct. App. 1996). The “court’s initial
task in construing a contract is to determine whether the language of the
contract is ambiguous.” Planters Gin Co. v. Fed. Compress & Warehouse
Co., 78 S.W.3d 885, 889-90 (Tenn. 2002). Where the language of a
contract is clear and unambiguous, its literal meaning controls the outcome
of the dispute. Id. at 890.
Jackson v. Purdy Bros. Trucking Co., Inc., No. E2011-00119-COA-R3-CV, 2011 WL
4824198, at *3 (Tenn. Ct. App. Oct. 12, 2011).
In the case at bar, the offer of judgment accepted by the Riveras provided that they
would receive an award of “reasonable attorneys’ fees and expenses in an amount to be
set by the Court.” This language expressly requires the trial court to determine a
“reasonable” amount of attorney’s fees and expenses to be awarded. Such determination
regarding the reasonableness of the amount awarded would inherently require the court to
consider the factors listed in Tennessee Supreme Court Rule 8, RPC 1.5. See First
Peoples Bank of Tenn. v. Hill, 340 S.W.3d 398, 410 (Tenn. Ct. App. 2010) (determining
that a fee award made pursuant to a contractual provision must be reasonable and must
take into consideration the appropriate factors). Therefore, if the trial court failed to
properly consider those factors, thereby potentially setting an unreasonable fee, Westgate
should clearly have the ability to appeal that decision because an unreasonable award
would be in violation of the parties’ contractual agreement.
Concerning the reasonableness of a fee award, Tennessee Supreme Court Rule 8,
RPC 1.5 states in pertinent part:
6
(a) A lawyer shall not make an agreement for, charge, or collect an
unreasonable fee or an unreasonable amount for expenses. The
factors to be considered in determining the reasonableness of a fee
include the following:
(1) the time and labor required, the novelty and difficulty
of the questions involved, and the skill requisite to
perform the legal service properly;
(2) the likelihood, if apparent to the client, that the
acceptance of the particular employment will preclude
other employment by the lawyer;
(3) the fee customarily charged in the locality for similar
legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the
circumstances;
(6) the nature and length of the professional relationship
with the client;
(7) the experience, reputation, and ability of the lawyer or
lawyers performing the services;
(8) whether the fee is fixed or contingent;
(9) prior advertisements or statements by the lawyer with
respect to the fees the lawyer charges; and
(10) whether the fee agreement is in writing.
The trial court’s final judgment does not expressly discuss or analyze the above-
listed factors. Moreover, in the trial court’s memorandum opinion attached to and
incorporated into the final judgment, the court also failed to analyze or discuss the above
factors.
7
Westgate maintains that this Court has previously vacated an award of attorney’s
fees when the trial court failed to consider the RPC 1.5 factors. For example, in
Southwind Prop. Assoc., Inc. v. Ford, No. W2016-01169-COA-R3-CV, 2017 WL
991108, at *13 (Tenn. Ct. App. Mar. 14, 2017), this Court recently stated:
From our review, the trial court’s ruling makes no mention of many
of the factors outlined under Rule 1.5. While the trial court’s order states
that the trial court “is aware” of the “amount involved” in this case, the trial
court provides no specific explanation for the large attorney’s fee award
relative to the small recovery by the Association in this case. Tenn. Sup.
Ct. R. 8, RPC 1.5(4). Additionally, although the invoices contained in the
record on appeal reflect charges up to $300.00 per hour, the trial court made
no finding as to “the fee customarily charged in the locality for similar legal
services[.]” Tenn. Sup. Ct. R. 8, RPC 1.5(3). Most importantly, neither the
trial court’s oral ruling, nor its written order, contains any finding that the
award is reasonable under the circumstances. As we have explained:
When the trial court has exercised its discretion in light of the
appropriate factors and found the fee to be reasonable, we
simply review for abuse of discretion. . . . Where, however,
there is no finding that the fee is reasonable, and no way to
ascertain whether the court made the award in light of the
appropriate factors, there is no way for us to accord the
normal deference to the trial court.
First Peoples Bank [v. Hill], 340 S.W.3d [398,] 410 [(Tenn. Ct. App.
2010)]. Where this Court is unable to discern whether the trial court
actually evaluated the amount of the fee to see if it is reasonable in light of
the appropriate factors, the correct approach is to vacate the award and
“remand [the] case to the trial court for a new determination of an
attorney’s fee award under [Supreme Court Rule 8, RPC 1.8] and the
applicable case law.” Ferguson Harbour Inc. v. Flash Market, Inc., 124
S.W.3d 541, 553 (Tenn. Ct. App. 2003). Because the trial court’s oral and
written rulings provide this Court with no illumination as to whether it
considered the reasonableness of the requested fee in light of the factors
outlined in Rule 1.5, we must likewise vacate and remand this case with
instructions to consider the reasonableness of the fee awarded under the
circumstances of this case and the applicable factors.
8
See also First Peoples Bank of Tenn., 340 S.W.3d at 410 (“[W]e will vacate the award of
attorney’s fees and, rather than try to make a determination in the first instance, remand
to the trial court for determination of a reasonable fee.”).
Similarly, in the case at bar, the trial court failed to properly consider the RPC 1.5
factors when making its determination regarding a “reasonable” award of attorney’s fees.
As such, the issue of a reasonable award of attorney’s fees and expenses must be
remanded to the trial court for determination pursuant to the applicable factors. See
Southwind, 2017 WL 991108, at *13 (holding that where this Court is “unable to discern
whether the trial court actually evaluated the amount of the fee to see if it is reasonable in
light of the appropriate factors, the correct approach is to vacate the award” and remand
the issue to the trial court for determination).
V. Consideration of Prior Settlement Offers
Westgate posits that because it communicated prior settlement offers to the
Riveras that were not accepted and because one of those prior offers included attorney’s
fees and other damages aimed at “making the Riveras whole,” any attorney’s fees
incurred by the Riveras following that offer should not be awarded. Westgate bases this
argument on the language of Tennessee Code Annotated § 47-18-109(c)(4), a provision
contained within the Tennessee Consumer Protection Act, which states:
In any private action commenced under this section, the court may, upon
the introduction of proof that the person against whom the action is filed
has made a written, reasonable offer of settlement which has been
communicated to the affected party, limit the amount of recovery to the
terms of the offer of settlement.
We recognize that this statutory subsection has been utilized in other cases to limit the
amount of fees awarded following transmittal of a reasonable, written settlement offer
that was not accepted. See Scott v. Noland Co., No. 03A01-9502-CV-00072, 1995 WL
440375, at *6 (Tenn. Ct. App. July 26, 1995).
In the case at bar, however, the trial court addressed Westgate’s argument
regarding the prior settlement offers at great length in its memorandum opinion, wherein
the court ultimately determined that the prior settlement offer that included attorney’s
fees was not for a discrete amount and did not specifically address the Riveras’ claims for
treble or punitive damage claims. The settlement offer communicated in April 2016
stated in pertinent part:
9
With depositions on the horizon, I wanted to recommunicate
Westgate’s offer to rescind the contract between Plaintiffs and Westgate, as
well as Westgate’s willingness to make Plaintiffs whole for their alleged
losses resulting from the transaction, including reasonable attorneys’ fees. I
would like to point out that Westgate’s initial offer to rescind the contract
was communicated to Plaintiffs on June 21, 2015, just 16 days after
Plaintiffs filed their Complaint, which was Westgate’s first notice that
Plaintiffs even wanted to rescind. In response to Westgate’s offer to
rescind, on February 16, 2015, Plaintiffs demanded a payment of $90,000
from Westgate. This demand did not include even an allegation that
Plaintiffs had actually sustained $90,000 in damages, much less support for
such a claim.
Since Plaintiffs’ demand of $90,000, Plaintiffs have confirmed in
written discovery that their total alleged compensatory damages are
$3,974.80. Westgate is willing to reimburse Plaintiffs this amount. If
Plaintiffs claim they have suffered additional compensatory damages,
please let me know those amounts, and to the extent they are reasonable,
Westgate will also agree to pay those amounts. In addition, Plaintiffs
objected to Westgate’s request that they disclose the amount of attorneys’
fees they have paid. Please provide those, and to the extent they are
reasonable, Westgate will also agree to reimburse Plaintiffs for those fees.
As the trial court explained in its memorandum opinion:
I don’t think what we had at that time constituted a concrete offer of
settlement. It wasn’t a concrete—it wasn’t an offer of settlement that could
have been accepted. Let’s say as to the ultimate offer of judgment . . . it
was concrete in terms of dollar amounts. It was concrete, and it was
accepted when it became concrete in terms of dollar amount. It didn’t get
that way until October 11, 2016.
Moreover, the Riveras contend that the offer they accepted was the only offer that
contained any specific amount of additional damages over and above a simple refund of
their purchase monies. Upon our review of the prior settlement offers, we agree. To the
extent that the Riveras sought payment of more than compensatory damages, the October
11, 2016 offer of judgment was the first offer to pay such damages. We further agree
with the trial court that the prior offer made in April 2016 was not sufficiently definite to
be accepted without further negotiation. In addition, the Riveras’ claims also implicated
the Tennessee Time-Share Act and alleged negligent and fraudulent misrepresentations
by Westgate, and thus the claims were not solely based in the Consumer Protection Act.
10
We therefore affirm the trial court’s determination that attorney’s fees should not be
limited to the amount incurred prior to the previous settlement offer pursuant to
Tennessee Code Annotated § 47-18-109(c)(4).
VI. Attorney’s Fees on Appeal
The Riveras seek an award of attorney’s fees on appeal pursuant to the Tennessee
Consumer Protection Act and the Tennessee Time-Share Act. Inasmuch as Westgate has
prevailed with regard to an issue on appeal, however, we determine that an award of
attorney’s fees on appeal to the Riveras is not warranted.
VII. Conclusion
For the foregoing reasons, we vacate the trial court’s award of attorney’s fees and
expenses and remand this issue to the trial court for further proceedings consistent with
this opinion. We decline to award the Riveras additional attorney’s fees incurred on
appeal. Costs on appeal are assessed one-half to the Riveras and one-half to Westgate.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
11
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Jerry M. Gilbert and Dolores L. Gilbert v. Danny R. Bartel, M.D., North Texas Neurology Associates, Inc., and North Texas Neurology Associates, L.L.P.
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-03-300-CV
JERRY M. GILBERT AND APPELLANTS
DOLORES L. GILBERT
V.
DANNY R. BARTEL, M.D., NORTH APPELLEES
TEXAS NEUROLOGY ASSOCIATES,
INC., AND NORTH TEXAS NEUROLOGY
ASSOCIATES, L.L.P.
------------
FROM THE 30
TH
DISTRICT COURT OF WICHITA COUNTY
------------
OPINION
------------
The issue in this case is whether limitations bars the Appellants’ medical malpractice claims. Appellants, the Gilberts, sued Appellees Dr. Danny R. Bartel, individually, and North Texas Neurology Associates, L.L.P. and North Texas Neurology Associates, Inc. vicariously (collectively Bartel), claiming Bartel negligently diagnosed Mrs. Gilbert’s cancer and neglected to provide adequate treatment. The trial court granted Bartel’s motion for summary judgment, which alleged that the Gilberts did not file suit within two years of the tort or breach, as the Medical Liability and Insurance Improvement Act requires.
(footnote: 1) The Gilberts argue that their claims are not barred and request that we reverse and remand the case for trial. We disagree. Because we hold that article 4590i section 10.01 bars the Gilberts’ claims, we affirm the trial court’s judgment.
Background
In late July 1998, Mrs. Gilbert was suffering from back pain and went to a chiropractor. On October 28, 1998, Mrs. Gilbert was hospitalized for continuing lower back pain. Bartel, her attending physician, examined Mrs. Gilbert and ordered x-rays, a bone scan, an MRI, and a lumbar myelogram. The initial x-ray showed a compression fracture. The radiologist who interpreted the scan found no evidence of spinal stenosis or other neural compromise but noted the “very abnormal appearance” of the bony structures, which he described as “severely osteoporotic” and “almost moth-eaten,” suggesting either “diffuse severe osteoporosis is present, or metabolic bone disease or perhaps even neoplasm such as multiple myeloma.” Although he recommended clinical correlation of these findings, the radionuclide bone scan had already ruled out myeloma. Bartel concluded that Mrs. Gilbert’s pain was attributed to both osteoporosis and a compression fracture. Bartel discharged her from the hospital on November 13, 1998.
Continuing to experience lower back pain, Mrs. Gilbert returned to Bartel for additional diagnostic tests and treatment throughout the next two years. The additional diagnostic studies she underwent included the following: (1) Dexa scan of the lumbar spine and AP of the spine on November 30, 1998; (2) MRI of the lumbar spine on January 5, 1999; (3) bone density analysis on April 14, 1999; (4) MRI of the lumbar spine on November 24, 1999; (5) myelogram and CT scan of the lumbar spine on December 7, 1999; (6) Dexa scan of the lumbar spine and left femoral neck on December 15, 1999; and (7) electromyelogram on December 14, 2000. Bartel saw Mrs. Gilbert in his office on December 10, 1998, March 8, 1999, June 1, 1999, and December 5, 2000. Based upon these additional studies and office visits, Bartel treated Mrs. Gilbert for lower back pain due to osteoporosis and a compression fracture. Bartel suggested that Mrs. Gilbert see a neurosurgeon for surgery. She saw the neurosurgeon but refused surgery, requesting less invasive treatment.
Early on in the two-year treatment, Bartel began to suspect that Mrs. Gilbert’s back was broken due to osteoporosis and manipulations received from her chiropractor. Based on Bartel’s diagnosis that Mrs. Gilbert’s chiropractor was at least partially responsible for her broken back, the Gilberts sued the chiropractor using Bartel as an expert.
On January 22, 2001, Mrs. Gilbert was hospitalized for right shoulder and left hip pain. After reviewing the shoulder and hip x-rays, Bartel suggested that Gilbert see an oncologist. On January 26, 2001, the oncologist diagnosed Gilbert with bone marrow cancer.
On February 28, 2001, represented by counsel, the Gilberts filed suit against Bartel, the hospital, and other physicians for failing to diagnose her with cancer prior to her second hospitalization on January 21, 2001. More specifically, the Gilberts complained that, based upon a review of the records of the first hospitalization by the oncologist who made the diagnosis, the myelogram studies and lab work performed in 1998 “showed multiple myeloma in the early stages that should have been diagnosed and treated.” On December 5, 2001, the Gilberts voluntarily nonsuited all their claims against all defendants.
On January 15, 2003, thirteen months later, the Gilberts filed this pro se suit against Bartel that is almost identical to the suit filed in February 2001. Bartel then filed a motion for summary judgment on the ground that the statute of limitations had run on the Gilberts’ claims. The trial court granted summary judgment on all the Gilberts’ claims.
The Gilberts now file this pro se appeal raising nineteen issues. We construe the Gilberts’ issues as alleging basically that (1) the trial court erred by granting summary judgment on the health care liability claims based on the limitations ground because Bartel’s failure to diagnose Mrs. Gilbert’s cancer while treating her for an osteoporotic fracture of her spine constituted a continuing course of treatment for purposes of determining when the statute of limitations began to run; (2) it was impossible or exceedingly difficult for the Gilberts to discover the nature of Mrs. Gilbert’s injury and bring suit before limitations barred their claims, and the Gilberts brought suit within a reasonable period of time after discovering the nature of Gilbert’s injury; and (3) Bartel fraudulently concealed the nature of Gilbert’s injury. Additionally, the Gilberts argue that the trial court abused its discretion by sustaining Bartel’s objections to all of their evidence presented in response to Bartel’s motion for summary judgment.
Summary Judgment Standard of Review
In a summary judgment case, the issue on appeal is whether the movant met his summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law.
(footnote: 2)
The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant.
(footnote: 3)
Therefore, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant.
(footnote: 4)
In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence are disregarded and the evidence favorable to the nonmovant is accepted as true.
(footnote: 5)
Evidence that favors the movant’s position will not be considered unless it is uncontroverted.
(footnote: 6) The summary judgment will be affirmed only if the record establishes that the movant has conclusively proved all essential elements of the movant's cause of action or affirmative defense as a matter of law.
(footnote: 7)
Limitations for Medical Negligence Claims
Article 4590i, section 10.01 establishes an absolute two-year statute of limitations for health care liability claims.
(footnote: 8) Section 4.01(a) of article 4590i requires any person asserting a health care liability claim to give written notice of the claim to each physician and health care provider at least sixty days before filing suit.
(footnote: 9) Notice given in accordance with section 4.01(a) tolls the applicable statute of limitations for seventy-five days, effectively creating a two-year-and-seventy-five-day statute of limitations.
(footnote: 10) The limitations period for medical negligence claims is measured from one of three dates: (1) the occurrence of the breach or tort; (2) the last date of the relevant course of treatment; or (3) the last date of the relevant hospitalization.
(footnote: 11) The Texas Supreme Court has repeatedly held that a plaintiff may not choose the most favorable date that falls within section 10.01’s three categories.
(footnote: 12) Rather, if the date the alleged tort occurred is ascertainable, limitations must begin on that date.
(footnote: 13) Thus, if the date is ascertainable, further inquiry into the second and third categories is unnecessary.
(footnote: 14)
There may be instances when the exact date the alleged tort occurred cannot be ascertained.
(footnote: 15) In that situation, the statute resolves doubts about the time of accrual in the plaintiff’s favor by using the last date of treatment or hospitalization as a proxy for the actual date of the tort.
(footnote: 16) Before the last date of treatment becomes relevant to determining when limitations begins, however, the plaintiff must establish a course of treatment for the alleged injury.
(footnote: 17) Furthermore, if the defendant committed the alleged tort on an ascertainable date, whether the plaintiff established a course of treatment is immaterial because limitations begins to run on the ascertainable date.
(footnote: 18)
The primary issue of disagreement between the parties, and the issue we must first resolve, is the date the limitations period began. In this case, the Gilberts argue that the specific date of the alleged tort cannot be ascertained and that the alleged tort occurred during a continuing course of treatment, which started on October 28, 1998—when Bartel first examined Mrs. Gilbert in the hospital—and continued until January 25, 2001—when Bartel examined Mrs. Gilbert for the last time during her second hospitalization. The Gilberts therefore assert that the limitations period did not begin until the last date of treatment, January 25, 2001, and that this suit is not barred by the statute of limitations. Conversely, Bartel contends that the date of the alleged negligence is readily ascertainable and that the limitations period began on October 30, 1998, the most recent date of the only tests that marginally suggested cancer.
Negligent Diagnosis Claim
The Gilberts’ petition essentially alleges two claims: negligence and gross negligence for the failure to properly diagnosis and treat Mrs. Gilbert for cancer. The Gilberts allege that Bartel should have known Mrs. Gilbert had cancer after reviewing multiple tests conducted while she was hospitalized the first time and before releasing her from the hospital on November 13, 1998.
The Gilberts contend that Bartel was negligent in not taking actions that would have led to earlier discovery of Mrs. Gilbert’s cancer. Bartel could have possibly been negligent by failing to conduct proper screening, to recognize symptoms of cancer, or to refer Mrs. Gilbert to a specialist only on those occasions when he saw her or when he ordered diagnostic tests:
(footnote: 19)
October 28–November 13, 1998 hospitalization;
November 30, 1998 Dexa scan of the lumbar spine and AP of the spine;
December 10, 1998 office visit;
January 5, 1999 MRI of the lumbar spine;
March 8, 1999 office visit;
April 14, 1999 bone density analysis;
June 1, 1999 office visit;
November 24, 1999 MRI of the lumbar spine;
December 7, 1999 myelogram and CT scan of the lumbar spine;
December 15, 1999 Dexa scan of the lumbar spine and left femoral neck;
December 5, 2000 office visit;
December 14, 2000 electromyelogram; and
January 21–25, 2001 hospitalization.
We conclude that the dates of Bartel’s alleged negligence are readily ascertainable and that it is therefore immaterial whether Bartel established a course of treatment for Mrs. Gilbert’s back pain.
(footnote: 20)
Although we would normally look at each ascertainable date to determine whether the limitations period could have begun on any of those dates, the Gilberts failed to affirmatively argue that the limitations period began on any dates other than November 13, 1998 and January 25, 2001.
(footnote: 21) Rather, the Gilberts argued in the trial court only that these dates establish Bartel’s course of treatment for Mrs. Gilbert and that the limitations period, therefore, should be measured from the last date of that treatment, January 25, 2001. Therefore, we must only examine the November 13, 1998 and January 25, 2001 dates.
(footnote: 22)
Viewing the evidence in the light most favorable to the Gilberts, there is an issue of fact about whether Bartel committed the alleged tort on November 13, 1998, by failing to recognize the possibility of cancer from tests done during Mrs. Gilbert’s first hospitalization and releasing her from the hospital. Thus, November 13, 1998 is a tort date for which the limitations period may be measured.
On the second date, January 25, 2001, Bartel referred Mrs. Gilbert to an oncologist for testing that detected Mrs. Gilbert’s cancer. Thus, the limitations period is not measured from January 25, 2001 because that date is not the date of the alleged tort.
(footnote: 23) On January 25, 2001, Bartel did exactly what Appellants contend he should have done previously—he examined Mrs. Gilbert and referred her to an oncologist for additional examinations, which led to the discovery of her cancer. Because Bartel did not commit the alleged tort on January 2001, the limitations period could not have begun on that date.
(footnote: 24) In this case, the date of Bartel’s alleged negligence is readily ascertainable. It is therefore immaterial whether Bartel established a course of treatment for Mrs. Gilbert’s back injury.
(footnote: 25) Thus, because the alleged tort date, November 13, 1998, is ascertainable and the Gilberts did not file suit within two years of that date, article 4590i, section 10.01 bars the Gilberts’ negligent diagnosis claim. Furthermore, although Bartel concedes that the Gilberts sent notice of their claim, they may not use the seventy-five day tolling provision in section 4.01(c) because they filed suit after the statute of limitations had already expired.
(footnote: 26) Consequently, the trial court did not err by granting Bartel’s motion for summary judgment on the negligent diagnosis claim.
Negligent Treatment Claim
The Gilberts allege that the summary judgment evidence demonstrated a course of treatment that Bartel administered for Mrs. Gilbert’s back problems. They further allege that, because there was some evidence that the January 2001 hospitalization examination for hip and shoulder pain related to the continuing relationship between Bartel and Mrs. Gilbert to treat Mrs. Gilbert’s back pain, there was a fact issue about when the course of treatment for her back pain ended. We disagree.
Because, as we hold above, the date the alleged tort or breach took place is ascertainable, a course of treatment analysis is immaterial to determining when limitations began to run.
(footnote: 27) It is also unimportant to our inquiry whether the tort is characterized as a failure to diagnose cancer or as an improper course of treatment based on a misdiagnosis.
(footnote: 28) The Gilberts’ complaint is that Bartel was negligent in not taking actions—testing, referrals to specialists, proper examinations—that would have led to earlier discovery of Mrs. Gilbert’s cancer. Those events, or nonevents, occurred on specific ascertainable dates.
(footnote: 29) The Texas Supreme Court has held that when a physician fails to diagnose a condition, the continuing nature of the diagnosis does not extend the tort for limitations purposes.
(footnote: 30) “‘While the failure to treat a condition may well be negligent, we cannot accept the self-contradictory proposition that the failure to establish a course of treatment is a course of treatment.’”
(footnote: 31) Furthermore, neither the mere continuing relation between physician and patient nor the continuing nature of a diagnosis is sufficient to create a course of treatment.
(footnote: 32)
In this case, Bartel treated Mrs. Gilbert for osteoporosis and a compression fracture. The Gilberts agree that Bartel’s diagnosis of Mrs. Gilbert’s compression fracture was correct and that he continued to treat her for a osteoporosic compression fracture. Thus, they do not allege that Bartel’s course of treatment was not proper for osteoporosis and a compression fracture. Rather they allege that the treatment was not proper for cancer, which they allege he negligently failed to diagnose. Consequently, because as set forth above, the dates of Bartel’s alleged negligence are ascertainable, and thus a course of treatment analysis is immaterial, we hold that the trial court did not err by granting Bartel’s motion for summary judgment on the Gilberts’ negligent treatment claim when the only measurable limitations date argued by the Gillberts is November 13, 1998, which fell more than two years before the date of suit.
Fraudulent Concealment
Fraudulent concealment in medical negligence cases estops a health-care provider from relying on limitations to bar a plaintiff’s claim.
(footnote: 33) The plaintiff must show the health-care provider actually knew a wrong occurred, had a fixed purpose to conceal the wrong, and did conceal the wrong from the patient.
(footnote: 34) Fraudulent concealment tolls limitations until the plaintiff discovers the fraud or could have discovered the fraud with reasonable diligence.
(footnote: 35)
The Texas Supreme Court has held that article 4590i, section 10.01 “does not abolish fraudulent concealment as an equitable estoppel to the affirmative defense of limitations.”
(footnote: 36) A plaintiff who asserts fraudulent concealment to avoid summary judgment on limitations grounds must raise a fact issue that would support this assertion.
(footnote: 37)
In this case, the Gilberts argue that limitations does not bar their claims because Bartel fraudulently concealed the negligent nature of his misdiagnosis from the October 1998 tests. The Gilberts claim that when Bartel suspected the cancer in January 2001, Bartel actually knew he committed malpractice in failing to diagnose the cancer earlier. The Gilberts contend that Bartel’s explanations about Mrs. Gilbert’s failure to improve from the compression fracture followed by the diagnosis of cancer when Mrs. Gilbert was hospitalized for shoulder and hip pain were designed to conceal this negligence. Furthermore, the Gilberts argue that Bartel’s summary judgment motion did not consider the fraudulent concealment allegations, and therefore, the trial court’s judgment should be reversed and remanded. We disagree.
The Gilberts’ contention that Bartel’s summary judgment motion did not consider the fraudulent concealment claim is without merit. To avoid summary judgment on limitations grounds, the Gilberts must have raised a fact issue to support their fraudulent concealment assertion.
(footnote: 38) The Gilberts had to raise a fact issue showing Bartel knew the Gilberts had been wronged and concealed that fact to deceive them.
(footnote: 39)
In this case, although the Gilberts allege that the trial court erred by sustaining Bartel’s objections to their evidence, our review of the record shows that the Gilberts failed to offer any admissible evidence.
(footnote: 40) Accordingly, the Gilberts did not raise a fact issue demonstrating that Bartel knew about the alleged negligence and that he concealed this wrong to deceive them. Because the Gilberts did not raise a fact issue to support their fraudulent concealment claim, the limitations period was not tolled and limitations bars their claims.
(footnote: 41)
The Texas Constitution’s Open Courts Provision
The Texas Constitution guarantees that persons bringing common-law claims will not unreasonably or arbitrarily be denied access to the courts.
(footnote: 42) A statute that unreasonably or arbitrarily abridges a person’s right to obtain redress for injuries that another person’s harmful act causes is an unconstitutional due course of law violation.
(footnote: 43) Consequently, our constitution’s open courts provision protects a person from legislative acts that cut off a person’s right to sue before there is a reasonable opportunity to discover the wrong and bring suit.
(footnote: 44) The legislature cannot abrogate the right to bring a well-established common-law claim without showing that the statute’s objectives and purposes outweigh denying the constitutionally guaranteed right of redress.
(footnote: 45)
To establish an open courts violation in an article 4590i case, a litigant must first show a cognizable, common-law claim that article 4590i’s limitations provision restricts.
(footnote: 46) The litigant must then show that the restriction is unreasonable or arbitrary when balanced against the statute’s purpose and basis.
(footnote: 47) The limitations provision in article 4590i, section 10.01 does not violate the open courts guarantee if the plaintiff had a reasonable opportunity to discover the alleged wrong and bring suit before the limitations period expired.
(footnote: 48)
The Gilberts argue that our constitution’s open courts provision precludes article 4590i, section 10.01 from barring their negligence claims.
(footnote: 49) The Gilberts allege that they did not learn about the cancer until two years after Mrs. Gilbert’s first hospitalization when Bartel began treating her for osteoporosis and the compression fracture. They filed suit against Bartel just over a month after learning of the cancer but then nonsuited the case. They then waited an additional thirteen months before filing this suit. The Gilberts contend, however, that the two-year limitations period should not bar their claims because they did not know there was a causal connection between Bartel’s misdiagnosis and Mrs. Gilbert’s cancer until after the hospitalization in January 2001.
In this case, the Gilberts’ negligence claims against Bartel are examples of well-established medical malpractice common-law claims.
(footnote: 50) The Texas Supreme Court has held that article 4590i, section 10.01 bars these claims.
(footnote: 51) Therefore, it was the Gilberts’ burden to raise a fact issue demonstrating that they did not have a reasonable opportunity to discover the alleged wrong before the limitations period expired to trigger the open courts guarantee.
(footnote: 52) Because the Gilberts failed to present any admissible evidence to support their claims, they have not met their burden to raise an issue of fact on this point.
Additionally, even if we take as true the Gilberts’ assertion that they could not have sued within the two-year limitations period because they did not discover Bartel’s negligence until Mrs. Gilbert’s last hospital visit in January 2001, the open courts provision does not save the Gilberts’ claims. A plaintiff may not obtain relief under the open courts provision if he does not use due diligence and sue within a reasonable time after learning about the alleged wrong.
(footnote: 53)
Here, the summary judgment evidence shows that the Gilberts knew about the alleged injury, Mrs. Gilbert’s cancer, when they first brought suit against Bartel at least thirteen months before bringing this suit. The Gilberts offer no justifiable or excusable explanation for their delay in bringing this second suit. Therefore, the Gilberts did not raise a fact issue establishing that they did not have a reasonable opportunity to discover the alleged wrong and bring suit within the limitations period or that they sued within a reasonable time after discovering the alleged wrong.
(footnote: 54) Thus, the open courts provision does not apply to save the Gilberts’ time-barred negligence claims.
(footnote: 55) Accordingly, the trial court did not err by holding that limitations barred the Gilberts’ claims.
Conclusion
Having held that article 4590i, section 10.01 bars the Gilberts’ negligent and gross negligent diagnosis and treatment claims, and that the Gilberts did not raise a fact issue to support their fraudulent concealment allegation or their contention that our open courts provision saves their negligence claims, we overrule each of the Gilberts’ nineteen issues. We affirm the trial court’s judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL B: DAUPHINOT, HOLMAN, and MCCOY, JJ.
DELIVERED: July 15, 2004
FOOTNOTES
1:See
Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2052 (former
Tex. Rev. Civ. Stat.
art. 4590i, § 10.01),
repealed by
Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (current version at
Tex. Civ. Prac. & Rem. Code Ann
. § 74.251 (Vernon 2004)). This action was filed January 15, 2003, before the new Act’s September 1, 2003, effective date. This opinion will refer to the former statute as article 4590i.
2:Tex. R. Civ. P.
166a(c);
S.W. Elec. Power Co. v. Grant,
73 S.W.3d 211, 215 (Tex. 2002);
City of Houston v. Clear Creek Basin Auth.
, 589 S.W.2d 671, 678 (Tex. 1979).
3:S.W. Elec. Power Co.,
73 S.W.3d at 215;
Rhone-Poulenc, Inc. v. Steel,
997 S.W.2d 217, 223 (Tex. 1999);
Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co.
, 391 S.W.2d 41, 47 (Tex. 1965).
4:Great Am.
, 391 S.W.2d at 47.
5:Rhone-Poulenc,
997 S.W.2d at 223;
Harwell v. State Farm Mut. Auto. Ins. Co.
, 896 S.W.2d 170, 173 (Tex. 1995).
6:Great Am.
, 391 S.W.2d at 47.
7:Clear Creek Basin
, 589 S.W.2d at 678;
KPMG Peat Marwick v. Harrison County Hous. Fin. Corp.
, 988 S.W.2d 746, 748 (Tex. 1999);
Ryland Group, Inc. v. Hood,
924 S.W.2d 120, 121 (Tex. 1996).
8:Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2052 (repealed 2003).
9:Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2048 (former
Tex. Rev. Civ. Stat.
art. 4590i, § 4.01),
repealed by
Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (current version at
Tex. Civ. Prac. & Rem. Code Ann
. § 74.051 (Vernon 2004)).
10:Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039, 2048 (repealed 2003);
De Romo v. St. Mary Hosp. Found
., 843 S.W.2d 72, 75 (Tex. App.—Amarillo 1992, writ denied).
11:Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039 (repealed 2003);
Shah v. Moss
, 67 S.W.3d 836, 841 (Tex. 2001).
12:Shah
, 67 S.W.3d at 841;
Earle v. Ratliff
, 998 S.W.2d 882, 886 (Tex. 1999);
Husain v. Khatib
, 964 S.W.2d 918, 919 (Tex. 1998);
Bala v. Maxwell
, 909 S.W.2d 889, 891 (Tex. 1995).
13:Shah
, 67 S.W.3d at 841;
Rogers v. United Reg’l Health Care Sys.
, 109 S.W.3d 47, 50 (Tex. App.—Fort Worth 2003, no pet.);
Karley
v. Bell
, 24 S.W.3d 516, 520 (Tex. App.—Fort Worth 2000, pet. denied).
14:Shah
, 67 S.W.3d at 841.
15:Id
.
16:Rogers
, 109 S.W.3d at 51.
17:Shah
, 67 S.W.3d at 841.
18:Id
.
19:See Bala
, 909 S.W.2d at 892;
Rowntree v. Hunsucker
, 833 S.W.2d 103, 108 (Tex. 1992).
20:See Husain
, 964 S.W.2d at 919.
21:See Karley
, 24 S.W.3d at 520.
22:See id
. at 521.
23:See
id
.
24:See Husain
, 964 S.W.2d at 920;
Bala
, 909 S.W.2d at 892
;
Voegtlin v. Perryman
, 977 S.W.2d 806, 811
(Tex. App.—Fort Worth 1998, no pet.).
25:See Shah
, 67 S.W.3d at 841.
26:Rogers
, 109 S.W.3d at 51.
27:See
Shah
, 67 S.W.3d at 841.
28:Husain
, 964 S.W.2d at 920.
29:See id
.
30:Bala
, 909 S.W.2d at 892;
Rowntree
, 833 S.W.2d at 108.
31:Bala
, 909 S.W.2d at 892
;
Rowntree
, 833 S.W.2d at 105-06;
see also Husain,
964 S.W.2d at 919;
Kimball v. Brothers
, 741 S.W.2d 370, 372 (Tex. 1987);
Chambers v. Conaway
, 883 S.W.2d 156, 158 (Tex 1993).
32:Rowntree
, 833 S.W.2d at 105.
33:Id
.
34:Id
.
35:Id
.;
Velsicol Chem. Corp. v. Winograd
, 956 S.W.2d 529, 531 (Tex. 1997).
36:Shah
, 67 S.W.3d at 841;
Borderlon
v. Peck
, 661 S.W.2d 907, 909 (Tex. 1983).
37:Shah
, 67 S.W.3d at 841.
38:See
id
. at 846.
39:See
id
.
40:Tex. R. Civ. P.
166a(f);
United Blood Servs. v. Longoria,
938 S.W.2d 29, 30 (Tex. 1997);
Town N. Nat’l Bank v. Broaddus,
569 S.W.2d 489, 494 (Tex. 1978);
Abe’s Colony Club, Inc. v. C&W Underwriters, Inc.,
852 S.W.2d 86, 88 (Tex. App.—Fort Worth 1993, writ denied).
See generally
Hon. David Hittner & Lynne Liberato,
Summary Judgments in Texas,
34
Hous. L. Rev.
1303, 1337-44 (1998), for a discussion of proper affidavits in the summary judgment context.
41:See Shah
, 67 S.W.3d at 846.
42:Tex. Const.
art. 1, § 13 (“All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”);
Shah
, 67 S.W.3d at 841;
Jennings v. Burgess
, 917 S.W.2d 790, 793 (Tex. 1996).
43:Shah
, 67 S.W.3d at 842;
Earle
, 998 S.W.2d at 889;
Jennings
, 917 S.W.2d at 793.
44:Shah
, 67 S.W.3d at 842.
45:Id.
;
Weiner v. Wasson
, 900 S.W.2d 316, 318 (Tex. 1995);
Sax v. Votteler
, 648 S.W.2d 661, 665–66 (Tex. 1983).
46:Shah
, 67 S.W.3d at 842.
47:Id
.
48:Id
.
49:See
Tex. Const.
art. I, § 13.
50:See
Shah
, 67 S.W.3d at 846.
51:Id
.
52:See
id.
at 846–47.
53:Id
. at 847;
Voegtlin
, 977 S.W.2d at 812;
Fiore v. HCA Health Servs. of Tex., Inc.
, 915 S.W.2d 233, 237 (Tex. App.—Fort Worth 1996, writ denied).
54:See
Shah
, 67 S.W.3d at 847.
55:See id
. at 847;
see also Fiore
, 915 S.W.2d at 237;
Hall v. Dow Corning Corp.
, 114 F.3d 73, 77 (5th Cir. 1997) (applying Texas law to hold that a fifteen-month delay was excessive as a matter of law).
| {
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} |
This opinion is subject to administrative correction before final disposition.
Before
KING, MCCONNELL, and FOIL,
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Robert T. DOYLE
Master-at-Arms Seaman (E-3),
U.S. Navy
Appellant
No. 201900051
Decided: 11 December 2019.
Appeal from the United States Navy-Marine Corps Trial Judiciary.
Military Judge: Commander Hayes Larson, U.S. Navy. Sentence ad-
judged 23 October 2018 by a special court-martial convened at Naval
Station Norfolk, Virginia, consisting of a military judge sitting alone.
Sentence approved by the convening authority: reduction to E-1, con-
finement for 110 days, and a bad-conduct discharge.
For Appellant: Captain Scott F. Hallauer, JAGC, USN.
For Appellee: Brian K. Keller, Esq.
_________________________
This opinion does not serve as binding precedent under
NMCCA Rule of Appellate Procedure 30.2(a).
_________________________
PER CURIAM:
After careful consideration of the record, submitted without assignment of
error, we have determined that the findings and sentence are correct in law
United States v. Doyle, NMCCA No. 201900051
and fact and that no error materially prejudicial to Appellant’s substantial
rights occurred. Articles 59 and 66, UCMJ, 10 U.S.C. §§ 859, 866.
The findings and sentence are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
2
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STATE ex rel. OKLAHOMA BAR ASSOCIATION v. MAYES
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STATE ex rel. OKLAHOMA BAR ASSOCIATION v. MAYES2020 OK 62465 P.3d 1271Case Number: SCBD-6934Decided: 06/30/2020THE SUPREME COURT OF THE STATE OF OKLAHOMA
Cite as: 2020 OK 62, 465 P.3d 1271
STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant,
v.
BRENT EARL MAYES, Respondent.
ORDER APPROVING RESIGNATION FROM OKLAHOMA BAR ASSOCIATION PENDING DISCIPLINARY PROCEEDINGS
¶1 Before this Court is (1) the affidavit of Respondent Brent Earl Mayes filed pursuant to Rule 8.1 of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2011, ch. 1, app. 1-A, requesting that he be allowed to resign his membership in the Oklahoma Bar Association (OBA) and relinquish his right to practice law, and (2) the OBA's Application for Order Approving Resignation.
¶2 THE COURT FINDS AND HOLDS:
¶3 On September 22, 2015, the OBA admitted Mayes to membership. On June 16, 2020, the OBA filed with this Court Mayes's affidavit of resignation pending disciplinary proceedings. Mayes executed his affidavit on June 2, 2020, and submitted it to the OBA on June 11, 2020.
¶4 Mayes's affidavit of resignation reflects that (a) it was freely and voluntarily rendered; (b) he was not subject to coercion or duress; and (c) he was fully aware of the consequences of submitting his resignation.
¶5 Mayes's affidavit of resignation states that on March 18, 2020, the Supreme Court of Kansas issued its Order of Disbarment in the Matter of Brent E. Mayes, Bar Docket No. 27058, which resulted from Mayes's improper handling and misconduct in four personal injury cases while employed with the DeVaughn James law firm in Wichita, Kansas. The misconduct involved dishonesty, conversion, incompetency, and conflict of interest. The facts of these cases are as follows:
a. The Young and Guffey Matters involved the conversion of funds belonging to one client (Guffey) to pay off a vehicle loan balance of $2,433.05 for another client (Young). Mayes intentionally misrepresented to Guffey in her settlement statement that the funds at issue were paid to a "Medical Physician" to have Guffey approve the release of funds. The law firm repaid Guffey the funds that belonged to her, and Mayes reimbursed the law firm.
b. The Rodriguez Matter involved miscalculating the repayment of eight medical bills totaling $1,375.00 for a client after the settlement of a personal injury claim. Mayes misled the client to believe she could obtain additional money damages from the other driver's insurance policy to pay the outstanding medical bills when the driver had already executed a release and that Mayes had sent a demand letter to the driver when he had not.
c. Cumpston Matter involved misrepresenting to a client that Mayes had filed suit against an insurer for failure to pay a claim when he had not. After making these misrepresentations, Mayes conducted research and determined that such a suit was not viable under Oklahoma law.
¶6 Mayes is aware that these allegations would constitute violations of Rules 1.15, 8.4(a), 8.4(c), and 8.4(d) of the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S. 2011, ch. 1, app. 3-A, and Rule 1.3 of the RGDP, as well as his oath as an attorney.
¶7 Mayes's affidavit of resignation further states:
a. He understands that the surrender of his law license in Kansas is sufficient for the OBA to initiate reciprocal discipline proceedings against him pursuant to Rule 7 of the RGDP, but he has requested to voluntarily resign his membership in Oklahoma;
b. He is aware that the OBA has the burden of proving the allegations against him, but he waives any and all rights to contest the allegations;
c. He is aware that approval of his resignation is discretionary with this Court;
d. He is familiar with and agrees to comply with Rule 9.1 of the RGDP, agrees to comply with Rule 11 of the RGDP as a prerequisite to reinstatement, and agrees to make no application for reinstatement prior to the expiration of five (5) years from the effective date of his resignation;
e. He acknowledges that the Client Security Fund may receive claims from his former clients and agrees to reimburse the Fund for the principal amounts and statutory interest for claims which it approves and pays as a prerequisite to his reinstatement to the practice of law;
f. He acknowledges and agrees to cooperate with the Office of General Counsel in the task of identifying any active client cases wherein documents and files need to be returned or forwarded to new counsel, and in any client cases where fees or refunds are owed by Mayes;
g. He acknowledges that the OBA has incurred no costs in the investigation of this matter; and,
h. He has surrendered his OBA membership card to the Office of the General Counsel.
¶8 We determine the effective date of resignation to be the date Mayes submitted his resignation to the OBA, June 11, 2020.1
¶9 This Court finds Mayes's resignation pending disciplinary proceedings is in compliance with all the requirements set forth in Rule 8.1 of the RGDP and should be accepted,
¶10 Mayes's OBA number is 32458, and his official roster address, as shown by OBA records, is Brent Earl Mayes, 918 Winding Lane, Derby, Kansas 67037.
¶11 IT IS THEREFORE ORDERED that the OBA's Application for Order Approving Resignation is approved, and Mayes's resignation is deemed effective on the date Mayes submitted his resignation to the OBA, June 11, 2020.
¶12 IT IS FURTHER ORDERED that Mayes's name be stricken from the Roll of Attorneys and that he make no application for reinstatement to membership in the OBA prior to the expiration of five (5) years from the effective date of his resignation. See RGDP Rules 8.2 and 11.1.
¶13 IT IS FURTHER ORDERED that Mayes comply with Rule 9.1 of the RGDP and return all client files and refund unearned fees. As a condition of reinstatement, Mayes shall reimburse the Client Security Fund for any monies expended because of his malfeasance or nonfeasance. See RGDP Rule 11.1(b).
¶14 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE this day 29th of June, 2020.
/S/NOMA D. GURICH, CHIEF JUSTICE
CONCUR: Gurich, C.J., Darby, V.C.J., Kauger, Winchester, Edmondson, Colbert, Combs, Kane, and Rowe, JJ.
FOOTNOTES
1 Mayes states his intent that his resignation be effective from the date and time of its execution and that he will conduct his affairs accordingly. The OBA requests the Court make the resignation effective retroactive to the date of its execution by Respondent. We note Mayes executed the resignation on June 2, 2020, and submitted the resignation to the OBA on June 11, 2020. The OBA filed Mayes's resignation with this Court on June 16, 2020. The ten business days between June 2nd and June 16th is not sufficiently contemporaneous for treating the resignation as effective from the date of execution. However, the three business days between June 11th and June 16th is sufficiently contemporaneous. See State ex rel. Okla. Bar Ass'n v. Claborn, 2019 OK 14, ¶ 10, 440 P.3d 660, 663 (holding the Court may determine an effective date for the resignation to be the date it was submitted to the OBA when the resignation is contemporaneously filed with this Court and finding two days to be sufficiently contemporaneous).
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85 Wn.2d 109 (1975)
530 P.2d 635
JOHN ORTBLAD et al, Appellants,
v.
THE STATE OF WASHINGTON et al, Respondents.
No. 42964.
The Supreme Court of Washington, En Banc.
January 10, 1975.
Peterson, Bracelin, Creech & Young, by William R. Creech, for appellants.
Slade Gorton, Attorney General, and William G. Boland and Robert E. Hauth, Assistants, for respondents.
Herbert H. Fuller, amicus curiae.
*110 HAMILTON, J.
This is a class action for injunctive relief, a declaratory judgment, damages, and a writ of mandate. Plaintiffs (appellants), individually and as class representatives, challenge the failure of the defendants (respondents), Director of the Office of Program Planning and Fiscal Management (hereafter referred to as the Budget Director) and the Governor, to follow the merit system salary plan devised by the State Personnel Board.
The essential facts are not in dispute. Plaintiffs are state civil service employees and a union. The State Personnel Board established by the civil service act, RCW 41.06, is required each year to conduct a survey of salary rates in private industry, devise a pay plan for state civil service employees accordingly, and submit the plan to the Budget Director. In 1968, the salary recommendation was approved by the Budget Director and included in the Governor's 1969-71 biennial budget and in the funds appropriated by the legislature. Subsequent recommendations from the Personnel Board to the Budget Director have, however, been reduced before inclusion in budget requests, on the grounds of adverse "fiscal impact."
The hub about which plaintiffs' varying claims revolve is their principal contention that the Budget Director is without authority to alter, amend, or modify the salary plan advanced by the Personnel Board. Concluding to the contrary, the trial court granted defendants' motion to dismiss for failure to state a claim upon which relief could be granted. Plaintiffs appeal. We affirm the order of the trial court in part and reverse in part.
[1] Certain procedural matters are preliminary. The defendants urge that this appeal should be dismissed because of the failure of plaintiffs to file a statement of facts certified by the trial judge as required on review of a summary judgment. American Universal Ins. Co. v. Ranson, 59 Wn.2d 811, 370 P.2d 867 (1962); Kataisto v. Low, 73 Wn.2d 341, 438 P.2d 623 (1968). As above noted, this action was disposed of in the trial court not by way of summary judgment but by dismissal for failure to state a claim upon which relief *111 could be granted. Although it is true that, since the trial court considered material beyond the pleadings, i.e., affidavits and interrogatories, such a motion to dismiss would ordinarily be treated as a motion for summary judgment under civil rule 56, and so fall within the ambit of Ranson and Kataisto; nevertheless, we are of the view that since the basic operative facts are undisputed and the core issue is one of law, the better reasoning is that employed by the Court of Appeals in Loger v. Washington Timber Prods., Inc., 8 Wn. App. 921, 924, 509 P.2d 1009 (1973):
No purpose would exist for treating the motion for judgment on the pleadings as one for summary judgment and granting an opportunity to present factual evidence pertinent under CR 56 if whatever might be proven would be immaterial.... [W]hen the content of the interrogatories, depositions and admissions would make no difference to the disposition of the motion, whether considered by the trial court or not, then there is no need to convert the motion ... into a motion for summary judgment ...
Such is the situation here. Accordingly, we do not dismiss the appeal for failure to file a statement of facts.
The defendants next assert that the trial court properly dismissed without prejudice an incidental claim of unfair labor practices for failure of plaintiffs to exhaust their administrative remedies. In affirming the trial court's order, we agree with this position insofar as any definitive or specific unfair labor practice might be concerned. However, such does not affect this appeal or otherwise interfere with a disposition of the basic issue in controversy. More is involved here than an allegation of unfair labor practice. This action and the issue raised concern the entire scheme of civil service salary plans. Accordingly, we will reach the merits.
[2] Defendants finally contend that any claim of error with respect to the dismissal of plaintiffs' claim for damages is waived because of plaintiffs' failure to specifically assign error to that ruling or to argue such a claim of error in their brief. We agree. ROA I-43 requires that, for consideration *112 by this court, an alleged error must be included in the assignments of error in the appellants' brief. DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 372 P.2d 193 (1962), adds the further requirement that assignments of error must be supported by argument in the brief. While some of plaintiffs' assignments of error are arguably broad enough to include consideration of the claim for damages, no supporting argument on the question of damages is presented. Such a claim of error is therefore waived.
We now proceed to the merits. This controversy results from the status of state civil service employees in Washington, and specifically arises as a result of the failure of the Budget Director to adopt the wage and salary plan devised by the Personnel Board. In 1960, Initiative 207 was passed by the voters and became the state civil service act, RCW 41.06. Its purpose was to establish a merit system of personnel for the State of Washington. A Personnel Board was established and directed among its duties to adopt a salary schedule "to reflect not less than the prevailing rates in Washington state private industries ..., such adoption and revision subject to approval by the state budget director in accordance with the provisions of chapter 43.88 RCW; ..." RCW 41.06.150.[1] Employees are given a right to participate in the development and administration of personnel policies, including "pay plans." RCW 41.06.140.[2] Chapter 43.88 gives the Budget Director various powers and duties, including the following:
*113 (c) Review any pay and classification plans, and changes thereunder, developed by any agency for their fiscal impact: Provided, That none of the provisions of this subsection shall affect merit systems of personnel management now existing or hereafter established by statute relating to the fixing of qualifications requirements for recruitment, appointment, or promotion of employees of any agency. He shall advise and confer with agencies including the legislative budget committee and the legislative council regarding the fiscal impact of such plans and may amend or alter said plans, ...
RCW 43.88.160(1) (c).
Under this scheme, the Budget Director has variously approved the plan as submitted and included it without alteration in the biennial budget submitted to the legislature, or reduced the salary plan on a percentage basis before inclusion in budget requests, on grounds of "fiscal impact." Plaintiffs contend that the State has a duty to pay its employees at a rate comparable to that prevalent in private industry and that the plan devised by the Personnel Board is exempt from review of alteration under RCW 43.88.160 because it is a merit system of personnel management. The defendants respond that the merit system exception does not apply to pay plans, and the Budget Director is specifically authorized to alter or amend Personnel Board recommendations on grounds of "fiscal impact." RCW 43.88.160(1) (c).
[3] As to the construction of the statutes, we agree with the defendants. The statutes as written clearly give the Budget Director power beyond automatic approval of the plan devised by the Personnel Board. By the terms of the civil service act itself, such approval is to be in accord with RCW 43.88. The relevant language is found in RCW 43.88.160(1) (c), quoted above. Unless the merit system exception *114 of the proviso applies, it is clear that the role of the Budget Director, while not permitting "piecemeal" alterations of the plan,[3] does include amendment or alteration of such plans because of "fiscal impact." We do not think the merit system exception applies to the pay plans developed by the Personnel Board; the proviso refers to systems "relating to the fixing of qualifications requirements for recruitment, appointment, or promotion of employees of any agency." No mention of salary schemes is made. It appears from the language that "qualifications requirements" refers to classification plans rather than pay plans. We conclude that the proviso does not apply, and the Budget Director is not required to adopt automatically the salary plan recommended by the Personnel Board.
However, plaintiffs contend that this scheme results in an abridgment of their collective bargaining rights. The existence of such a right and its statutory implementation are matters of some complication under current Washington statutes. A straightforward interpretation is made very difficult by the fact that the statutory scheme is complex and incomplete. A right of collective bargaining is clearly granted to state civil service employees by the statutes, including the specific right to bargain for wages. The civil service act, RCW 41.06.340,[4] expressly incorporates certain provisions of the public employees collective bargaining act, RCW 41.56.140-.190, by which a public employer's refusal to engage in collective bargaining is denominated an unfair labor practice. "Public employer" is defined by RCW 41.56.030 as "any officer, board, commission, council, or other person or body acting on behalf of any public body *115 governed by this chapter as designated by RCW 41.56.020, or any subdivision of such public body." RCW 41.56.020 defines the scope of the bargaining chapter to be "any county or municipal corporation, or any political subdivision of the state of Washington except as otherwise provided ..." "Collective bargaining" is defined as follows:
(4) "Collective bargaining" means the performance of the mutual obligations of the public employer and the exclusive bargaining representative to meet at reasonable times, to confer and negotiate in good faith, and to execute a written agreement with respect to grievance procedures and collective negotiations on personnel matters, including wages, hours and working conditions, which may be peculiar to an appropriate bargaining unit of such public employer, ...
(Italics ours.) RCW 41.56.030(4).
The right to bargain for wages is thus conferred upon employees. It is to be presumed that the bargaining right thus contemplated was to be effective to have some measurable result, to be more than formality. The bargaining right presupposes a corresponding duty. It is the placement of this duty which is unclear in the statutes and which gives rise to the chief difficulty here. RCW 41.06.150 gives employing state agencies the authority to negotiate "on all personnel matters over which the appointing authority of the appropriate bargaining unit of such agency may lawfully exercise discretion; ..." Herein lurks an interpretive difficulty of some proportions. Individual employing agencies have no discretion over wages. Indeed, on this ground they have so far refused to negotiate wages. The Personnel Board is similarly disabled by the same statute; its function is to devise a state pay plan commensurate with private industry wages and to forward that plan to the Budget Director for his use "in preparing budgets to be submitted to the succeeding legislature." RCW 41.06.160.[5] Any negotiating by the Personnel Board therefore *116 is subject to the review of another executive department and thus does not constitute effective collective bargaining on the subject of wages.
[4] We recognize that any wage negotiating by any administrative departments of the state acting as public employers, is in a sense never final, since the power over appropriations remains with the legislature.[6] However, within the sphere of the executive branch, we believe the right granted was not an empty one but was intended to implement effective wage negotiations for state civil service employees. We therefore conclude that the appropriate "public employer" for purposes of wage bargaining, is the Budget Director. We find his authority to negotiate in his power to review the plan forwarded by the Personnel Board; and we find his duty to negotiate in the grant of a right which is not otherwise effective.
The defendants argue against this solution contending that the Budget Director has no salary-fixing discretion, for that power was expressly removed by the civil service act. It is true that prior to the civil service initiative, the original Budget Director, whose powers can be traced to the State Director of Efficiency in 1921, had authority to prepare and recommend to the Governor a salary system for state employees. This power was repealed in 1961 by the civil service act. This repealer, however, reflects not a legislative scheme, but rather the decision of the people of Washington to place salary setting power in the hands of a Personnel Board, which presumably was contemplated as an agency with which employees could bargain effectively *117 on all personnel matters including wages. The original language of the initiative, RCW 41.06.150, was as follows:
The Board shall adopt and promulgate rules and regulations, consistent with the purposes and provisions of this act and with the best standards of personnel administration, regarding the basis for, and procedures to be followed for, ... agreements between agencies and employee organizations providing for grievance procedures and collective negotiations on personnel matters, including wages, ...
(Italics ours.) Laws of 1961, ch. 1, § 15, p. 16.
In 1969, the legislature removed the wage agreements language from this statute altogether, without, however, repealing the grant of collective bargaining rights found in RCW 41.06.340. The statute now empowers the Personnel Board to make rules relating to collective bargaining "on all personnel matters over which the appointing authority of the appropriate bargaining unit of such agency may lawfully exercise discretion; ..." The removal of the wage agreements language emphasizes the limited powers of individual agencies. The question of wages is not within the province of individual agencies because it is not within the areas over which they may "lawfully exercise discretion." The only function of the Personnel Board specifically related to wages is the adoption of the salary plan. Thus the grant of a right to collective bargaining on wages is nowhere given procedural actuality by the statutes.
The defendants argue that the Budget Director has no authority to bargain. We find that by necessary implication a power to bargain (and a duty to do so) is to be found in favor of the Budget Director. The cases cited by defendants support our conclusion. An administrative agency created by statute such as the Budget Director has only those powers expressly granted by the statute or necessarily implied therefrom. State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956).
But where a person or board is charged by law with a specific duty, and the means for its performance are appointed *118 by law, there is no room for implied powers, ...
State ex rel. State Bd. of Medical Examiners v. Clausen, 84 Wash. 279, 282, 146 P. 630 (1915). The duty in question is a duty to engage in collective bargaining on the subject of wages. No means for performance is appointed by law. The Budget Director is empowered to "review" the pay plan forwarded by the Personnel Board. We therefore find an implied power in the Budget Director to bargain with state civil service employees.
However, the defendants argue also that no duty to engage in collective bargaining is imposed by the statutes on any agency, especially since the civil service act incorporates only the sections of the collective bargaining act which enumerate unfair labor practices, but not the definitional sections of that statute. We consider this argument to be semantical. The right to wage bargaining is expressly granted to employees and is obviously meaningless without a duty on the part of public employers. Refusal to bargain is an unfair labor practice for public employers. To read the incorporated sections of the collective bargaining act without their explanatory definitions is to import confusion and irrelevancy to the statute. The defintions of RCW 41.56.030 are clearly broad enough to encompass the Budget Director as a public employer and therefore impose a duty to bargain.
The defendants interpret RCW 41.06.150 as limiting the State's obligation at the bargaining table to the matters there delineated. They argue that under RCW 41.06.150, the Personnel Board is to promulgate rules defining the duties of agencies in bargaining with employees, but no agency is compelled to bargain with employees of any other agency, or to bargain on matters over which the appointing authority of the agency cannot lawfully exercise discretion. They urge that since the Budget Director is not the appointing authority of the agencies employing plaintiffs, he cannot be an appropriate "designee" of the Personnel Board, and has *119 no salary-fixing discretion. We think the defendants have misconstrued the statute. It is true that no agency can bargain on matters over which it cannot exercise discretion, In fact, no agency short of the Budget Director is empowered to "exercise discretion" on the "personnel matter" of wages, as opposed to work conditions. The Personnel Board establishes a regulatory framework for negotiations which are within the discretion of the agencies and develops a salary schedule; it has itself no discretion over wages. Development of a salary schedule can be conceptually and practically separated from actual wage negotiating; no mention of wages is otherwise found in RCW 41.06.150. The statute does not speak to wage negotiation at all.
We conclude that RCW 41.06.150 does not resolve the question of wage negotiations in civil service, and that the solution which appears most logical and appropriate is for the Budget Director to be responsible for bargaining with state civil service employees on the subject of wages.
We recognize that the Budget Director may not have heretofore been considered as a bargaining agent. However, we believe that if the right to bargain for wages is not to be an empty one, the State's bargainer must be a final stop on the journey to the legislature.
The order of dismissal is affirmed as to all defendants, except the Budget Director as to whom it is reversed and remanded for such further proceedings in mandamus as may be necessary, timely, and appropriate.
HALE, C.J., and FINLEY, ROSELLINI, HUNTER, STAFFORD, WRIGHT, UTTER, and BRACHTENBACH, JJ., concur.
Petition for rehearing denied March 31, 1975.
NOTES
[1] The pertinent portion of RCW 41.06.150 reads as follows:
"The board shall adopt and promulgate rules and regulations, consistent with the purposes and provisions of this chapter and with the best standards of personnel administration, regarding the basis for, and procedures to be followed for, ... adoption and revision of a state salary schedule to reflect not less than the prevailing rates in Washington state private industries and other governmental units for positions of a similar nature, such adoption and revision subject to approval by the state budget director in accordance with the provisions of chapter 43.88 RCW;..."
[2] "It shall be the duty of the board to make rules and regulations providing for employee participation in the development and administration of personnel policies. To assure this right, personnel policies, rules, classification and pay plans, and amendments thereto, shall be acted on only after the board has given twenty days notice to, and considered proposals from, employee representatives and agencies affected. Complete and current compilations of all rules and regulations of the board in printed, mimeographed or multigraphed form shall be available to the public in the office of the director of personnel free of charge." RCW 41.06.140.
[3] In 1967, the Attorney General concluded that the revision powers of the Budget Director with respect to the salary schedule did not include authority to alter individual specific items. Attorney General Opinion, March 21, 1967.
[4] "Each and every provision of RCW 41.56.140 through 41.56.190 shall be applicable to this chapter as it relates to state civil service employees and the state personnel board, or its designee, whose final decision shall be appealable to the state personnel board, which is granted all powers and authority granted to the department of labor and industries by RCW 41.56.140 through 41.56.190." RCW 41.06.340.
[5] "In adopting or revising classification and salary schedules as set forth in RCW 41.06.150 the board shall give full consideration to prevailing rates in other public employment and in private employment in this state and for this purpose shall have made periodic wage surveys with one such survey to be conducted each year prior to the convening of each regular session of the state legislature, the results of such wage survey to be forwarded with a recommended state salary schedule to the governor and state budget director for their use in preparing budgets to be submitted to the succeeding legislature." RCW 41.06.160.
[6] See, e.g., D. Sullivan, Public Employee Labor Law 60 (1969).
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765 F.Supp. 752 (1991)
UNITED STATES, Plaintiff,
v.
VALLEY STEEL PRODUCTS COMPANY and Valley Industries, Inc., Defendants.
Court No. 88-08-00686.
United States Court of International Trade.
June 7, 1991.
*753 Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice (A. David Lafer, Sr. Trial Counsel); of counsel: Kathleen L. Bucholtz, Deputy Regional Counsel, U.S. Customs Service, for plaintiff.
Guilfoil Petzall & Shoemake (Jim J. Shoemake and Kurt S. Odenwald), for defendants.
MEMORANDUM OPINION
TSOUCALAS, Judge:
Defendants, Valley Steel Products Company and Valley Industries, Inc. (collectively "Valley"), move to strike the Government's request for relief and seek a determination in advance of trial that the Government may not recover a penalty greater than that which is reasonably calculated to make it whole.
The underlying action involves an attempt by the United States to recover approximately $13 million in civil penalties from defendants pursuant to section 592 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1592 (1988), for false and fraudulent statements, acts and/or omissions, which defendants made, or aided and abetted, in connection with forty-three consumption entries of steel products.
Valley asserts first that, since section 592 is remedial in nature, "the government is not entitled to recover a penalty that is greater than any loss of revenue proven by the government and its costs in this action." Memorandum in Support of Motion to Strike Plaintiff's Request for Relief at 6. This argument is remarkably similar to one propounded by defendants and rejected by the Court in United States v. Valley Steel Prods. Co., 14 CIT ___, 729 F.Supp. 1356 (1990). There the defendants alleged that the Government's effort to extract civil penalties under section 1592 violated the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution because defendants had already been subject to criminal sanctions for the same acts.
In rejecting defendants' claims, the court stated that, where a civil penalty is not fixed by statute, serves a remedial purpose and provides a reasonable remedy, it was not a violation of the Double Jeopardy Clause to impose civil as well as criminal penalties. Id. at ___, 729 F.Supp. at 1359. The court added that the statute did not lose its remedial nature because of the difficulty in ascertaining the precise monetary loss suffered by the Government. It was sufficient that the cost of investigating and prosecuting the case, as well as the "diffuse harm from trade, economic, and foreign policy repercussions" had damaged the Government. Id. at ___, 729 F.Supp. at 1360. Hence, Valley's argument that the Government is not entitled to a penalty which is greater than the proven loss of revenue is scurrilous at best. The purpose of this penalty is not just to replace lost levies, but to remedy a wrong, whether or not that wrong can be traced to precise revenue losses.[1]
Valley also claims that the Government cannot recover civil penalties regarding seventeen of the forty-three entries because it already has recovered sums from Hanwa and Samsung, two firms which supplied *754 Valley with steel. Though the allegations regarding Valley relate to the same falsified documents as the allegations against Hanwa and Samsung, the role of Valley was not the same as the role of the others. Hanwa and Samsung were charged with entering merchandise into the United States by means of a false statement or document, while Valley is charged with aiding or abetting Hanwa and Samsung in their illegal acts. Two separate provisions of section 592 are implicated: 19 U.S.C. § 1592(a)(1)(A) and 19 U.S.C. § 1592(a)(1)(B).
In addition, while the Government may not assess multiple penalties for a single violation, Customs is empowered under section 592 "to assess separate penalties for separate violations on the same merchandise." United States v. F.H. Fenderson, Inc., 11 CIT 199, 205, 658 F.Supp. 894, 899 (1987). In Fenderson, both the exporter and the customhouse broker were charged with violations of section 592 arising from the same transaction. Defendants there asserted the same defense as Valley, to wit, that Customs had assessed multiple penalties for the same violation. However, the court found that the alleged violations "were the result of separate and distinct acts" where the exporter's violation was presenting invoices containing false statements and the broker's violation was filing entries with incorrect dutiable values. Id.
Here, in the seventeen cases in which both Valley and the others were charged, Valley's alleged violation was aiding and abetting Hanwa and Samsung in their illegal acts by participating and assisting in "designing and implementing the plan which enabled its suppliers to submit ... false documents. Valley did this by agreeing to accept and then pay the amounts stated on the falsely inflated invoices provided by its suppliers. Further, Valley established an elaborate mechanism by which it could surreptitiously receive a refund of its overpayments." Plaintiff's Opposition to Defendants' Motion to Strike Plaintiff's Request for Relief at 8. These allegations are separate and distinct from those with which Hanwa and Samsung, as the importers of record, were charged. Therefore, the Court holds that the Government is not barred from attempting to assess penalties against Valley for these acts. Of course, whether the Government can prove its allegations against Valley is a separate issue for the trier of fact.
Valley also asserts that if the full amount of relief sought by the Government, over $13 million, is granted, it would constitute an "excessive fine," which is proscribed by the Eighth Amendment. Since the amount claimed by the Government falls within the statutory limit in that it is "an amount not to exceed the domestic value of the merchandise," the Court cannot declare that, as a matter of law, it is excessive. 19 U.S.C. § 1592(c)(1).[2] Moreover, no fine has yet been assessed, and the trial has not even begun. For the Court, at this stage, to suggest what a proper fine might be would be wholly inappropriate and would constitute an unconstitutional advisory opinion. The amount of the penalty to be assessed is within the sound discretion of the Court, but only after a violation of section 592 has been proven. 19 U.S.C. § 1592(e)(1). See also Valley Steel, 14 CIT at ___, 729 F.Supp. at 1359. If and when a penalty is assessed, then the issue of whether the penalty is excessive may be raised.
Lastly, defendants assert that the Due Process Clause of the Fifth Amendment precludes the relief requested. Valley cites to a decision of the Supreme Court wherein it was stated that civil penalties come into conflict with the Due Process Clause where they are "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable." St. Louis, Iron Mountain & S. Ry. Co. v. Williams, 251 U.S. 63, 67, 40 S.Ct. 71, 73, 64 L.Ed. 139 (1919).
The penalty claimed by the Government in this case is within the range prescribed *755 by the statute. 19 U.S.C. § 1592(c)(1). Since defendants have not attacked the constitutionality of the statute itself, and since no trial has been held to determine whether a penalty will be assessed at all, the issue of whether the potential penalty violates the Due Process Clause is not ripe for decision.
Accordingly, defendants' motion to strike plaintiff's request for relief is denied.
NOTES
[1] 19 U.S.C. § 1592(a)(1) provides:
(1) General Rule. Without regard to whether the United States is or may be deprived of all or a portion of any lawful duty thereby, no person, by fraud, gross negligence, or negligence
(A) may enter, introduce, or attempt to enter or introduce any merchandise into the commerce of the United States by means of
(i) any document, written or oral statement, or act which is material and false, or
(ii) any omission which is material, or
(B) may aid or abet any other person to violate subparagraph (A).
(Emphasis added.)
[2] 19 U.S.C. § 1592(c)(1) provides that: "A fraudulent violation of subsection (a) of this section is punishable by a civil penalty in an amount not to exceed the domestic value of the merchandise."
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Slip Op. 17-
UNITED STATES COURT OF INTERNATIONAL TRADE
हZDEMIR BORU SAN. VE TIC. LTD. STI.,
Plaintiff,
v.
UNITED STATES, Before: Gary S. Katzmann, Judge
Defendant, Court No. 16-00206
and
ATLAS TUBE and
INDEPENDENCE TUBE CORPORATION,
Defendant-Intervenors.
OPINION
[Commerce’s Final Determination is sustained in part and remanded in part. Plaintiff’s Motion for
Judgment on the Agency Record is denied in part.]
Dated:2FWREHU
David L. Simon, Law Office of David L. Simon, of Washington, DC, argued for plaintiff. With
him on the brief was Mark B. Lehnardt of Washington, DC.
Kelly Ann Krystyniak, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of New York, NY, argued for defendant. With her on the brief were Chad
A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, Claudia Burke,
Assistant Director, and Tara K. Hogan, as Senior Trial Counsel. Of counsel on the brief was Emily
R. Beline, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department
of Commerce, of Washington, DC. With them on the supplemental brief was Robert E. Kirschman,
Jr., Director. Of counsel on the supplemental brief was Brandon J. Custard, Office of the Chief
Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington,
DC.
Court No. 16-00206 Page 2
Cynthia C. Galvez, Attorney, Wiley Rein LLP, of Washington, DC, argued for defendant-
intervenor Independence Tube Corp. With her on the brief were Timothy C. Brightbill and Alan
H. Price.
John W. Bohn, Attorney, Schagrin Associates, of Washington, DC, argued for defendant-
intervenor Atlas Tube. With him on the brief was Roger B. Schagrin.
Katzmann, Judge: The Trade Preferences Extension Act of 2015 (“TPEA”), Pub. L. No.
114-27, § 502, 129 Stat. 362, 383–84 (2015), which was signed into law on June 29, 2015, made
numerous amendments to the antidumping and countervailing duty laws found under Title 19 of
the United States Code. Specifically, 19 U.S.C. § 1677e(b) and (c) were amended, and (d) was
added. 1 In what appears to be a matter of first impression, the countervailable subsidy case now
before the court provides an occasion to consider these TPEA amendments as they concern the
application, by the United States Department of Commerce (“Commerce”), of facts available and
adverse inferences to a respondent company.
Plaintiff, हzdemir Boru San. ve Tic. Ltd. Sti (“हzdemir”), a Turkish producer and exporter
to the United States of heavy walled rectangular welded carbon steel pipes and tubes (“HWR pipes
and tubes”), brought this action against Defendant, the United States (“the Government”), on
October 9, 2016, challenging elements of Commerce’s final determination in Heavy Walled
Rectangular Welded Carbon Steel Pipes and Tubes from the Republic of Turkey: Final Affirmative
Countervailing Duty Determination, 81 Fed. Reg. 47,349 (Dep’t Commerce July 21, 2016) (final
results of investigation), and the subsequent Amended Final Affirmative Countervailing Duty
Determination and Countervailing Duty Order, 81 Fed. Reg. 62,874 (Dep’t Commerce Sept. 13,
2016) (“Final Determination”), as well as the corresponding Issues and Decision Memorandum
1
These TPEA amendments affect all antidumping and countervailing duty determinations made
on or after August 6, 2015. See Dates of Application of Amendments to the Antidumping and
Countervailing Duty Laws Made by the Trade Preferences Extension Act of 2015, 80 Fed. Reg.
46,793 (Dep’t Commerce Aug 6, 2015).
Court No. 16-00206 Page 3
for the Final Determination, July 14, 2016, P.R. 241 (“IDM”). Summons, ECF No. 1; Complaint
¶ 1, ECF No. 5 (“Compl.”). Specifically, हzdemir argues that Commerce’s application of adverse
facts available (“AFA”) to हzdemir regarding the Turkish Exemption from Property Tax (“EFPT”)
program, and Commerce’s inclusion of two particular land parcels in the Land for Less-than-
Adequate-Remuneration (“LTAR”) benchmark, are actions unsupported by record evidence and
contrary to law. Compl. ¶¶ 21–24. हzdemir thus asks this court to hold unlawful the Final
Determination on these grounds, and to remand it to the agency for a redetermination consistent
with the court’s judgment. Compl. at 6. The Government, and defendant-intervenors Independence
Tube Corporation (“Independence”) and Atlas Tube Corporation (“Atlas”) RSSRVH ह]GHPLU¶V
motion.
For the reasons set forth hereafter, the court finds that the Final Determination is supported
by substantial evidence 2 and in accordance with law with respect to the AFA issue, but not with
respect to the Land for LTAR issue, and thus remands it to Commerce.
BACKGROUND
A. Statutory and Regulatory Framework
1. Countervailable Subsidies: Basic Principles
If Commerce determines that the government of a country is providing, directly or
indirectly, a countervailable subsidy with respect to the manufacture, production, or export of a
class or kind of merchandise imported, or sold, or likely to be sold for import, into the United
States, and the International Trade Commission determines that an industry in the United States is
materially injured or threatened with material injury thereby, then Commerce shall impose a
countervailing duty (“CVD”) upon such merchandise equal to the amount of the net
2
Regarding the substantial evidence standard of review, see infra p.19.
Court No. 16-00206 Page 4
countervailable subsidy. See Section 701 of the Tariff Act of 1930, as amended, 19 U.S.C. §
1671(a) (2012). 3 Generally, a subsidy is countervailable if it consists of a foreign government’s
financial contribution to a recipient, which is specific, and also confers a benefit upon the recipient,
as defined under 19 U.S.C. § 1677(5). A benefit is conferred when, in the case where goods or
services are provided, such goods or services are provided for less than adequate remuneration.
19 U.S.C. § 1677(E)(iv). Furthermore, the statute states that:
[T]he adequacy of remuneration shall be determined in relation to
prevailing market conditions for the good or service being provided
or the goods being purchased in the country which is subject to the
investigation or review. Prevailing market conditions include price,
quality, availability, marketability, transportation, and other
conditions of purchase or sale.
Id. The regulation on “adequate remuneration” states that:
[Commerce] will normally seek to measure the adequacy of
remuneration by comparing the government price to a market-
determined price for the good or service resulting from actual
transactions in the country in question. Such a price could include
prices stemming from actual transactions between private parties,
actual imports, or, in certain circumstances, actual sales from
competitively run government auctions. In choosing such
transactions or sales, [Commerce] will consider product similarity;
quantities sold, imported, or auctioned; and other factors affecting
comparability.
19 C.F.R. § 351.511(a)(2)(i) (2015).
The subsidy must also be “specific” as defined under 19 U.S.C. § 1677(5A). In the case
of domestic subsidies like those alleged in this case, a specific subsidy can be one that is “limited
3
Further citations to the Tariff Act of 1930, as amended, are to the relevant provision of Title 19
of the U.S. Code, 2012 edition. Citations to 19 U.S.C. § 1677e, however, are not to the U.S.
Code 2012 edition, but to the unofficial U.S. Code Annotated 2017 edition. The current
U.S.C.A. reflects the amendments made to 19 U.S.C. § 1677e (2012) by the Trade Preferences
Extension Act of 2015, Pub. L. No. 114-27, § 502, 129 Stat. 362, 383–84 (2015), which are
integral to this case.
Court No. 16-00206 Page 5
to an enterprise or industry located within a designated geographical region within the jurisdiction
of the authority providing the subsidy.” 19 U.S.C. § 1677(5A)(D)(iv). An investigation of
countervailable subsidies shall commence whenever an interested party files a petition with
Commerce, on behalf of an industry, 4 which alleges the elements necessary for the imposition of
the duty, and which is accompanied by information reasonably available to the petitioner
supporting those allegations. 19 U.S.C. § 1671a(b)(1), (c)(2).
2. Legal Standard for Application of Facts Available and Adverse Inferences
During the course of its countervailing duty proceeding, Commerce requires information
from both the producer respondent and the foreign government alleged to have provided the
subsidy. See Fine Furniture (Shanghai) Ltd. v. United States, 748 F.3d 1365, 1369–70 (Fed. Cir.
2014). Information submitted to Commerce during an investigation is subject to verification.
19 U.S.C. § 1677m(i)(1).
When a respondent: (1) withholds information that has been requested by Commerce, (2)
fails to provide such information by Commerce’s deadlines for submission of the information or
in the form and manner requested, (3) significantly impedes an antidumping proceeding, or (4)
provides information that cannot be verified, then Commerce shall “use the facts otherwise
available [FA] in reaching the applicable determination.” 19 U.S.C. § 1677e(a)(2). 5 Unaltered by
4
“The term ‘industry’ means the producers as a whole of a domestic like product, or those
producers whose collective output of a domestic like product constitutes a major proportion of the
total domestic production of the product.” 19 U.S.C. § 1677(4)(A).
5
19 U.S.C. § 1677e(a) provides:
If--
(1) necessary information is not available on the record, or
(2) an interested party or any other person--
(A) withholds information that has been requested
by [Commerce] . . .
Court No. 16-00206 Page 6
the TPEA, this FA subsection thus asks whether necessary or requested information is missing
from the administrative record, and provides Commerce with a methodology to fill the resultant
informational gaps. See Nippon Steel Corp. v. United States, 337 F.3d 1373, 1381 (Fed. Cir.
2003).
Under certain circumstances, in an investigation, Commerce may determine to assign an
AFA rate to an investigated respondent as to a given subsidy program, instead of the
countervailable subsidy rate that the respondent might receive for that program under normal
circumstances. Typically, an AFA rate is higher than the normally calculable subsidy rate for an
investigated program, and thus ultimately results in a higher CVD rate. See 19 U.S.C. § 1677e
(addressing both FA and AFA).
Commerce “may use an inference that is adverse to the interests of that party in selecting
from among the facts otherwise available,” AFA, if it “finds that an interested party has failed to
cooperate by not acting to the best of its ability to comply with a request for information[.]” Id. §
1677e(b)(1)(A). 6 A respondent’s failure to cooperate to “the best of its ability” is “determined by
(B) fails to provide such information by the
deadlines for submission of the information or in
the form and manner requested . . .
(C) significantly impedes a proceeding under this
subtitle, or
(D) provides such information but the information
cannot be verified . . .
[Commerce] . . . shall . . . use the facts otherwise available in
reaching the applicable determination under this subtitle.
6
19 U.S.C. § 1677e(b)(1) provides:
In general
If [Commerce] . . . finds that an interested party has failed to
cooperate by not acting to the best of its ability to comply with a
Court No. 16-00206 Page 7
assessing whether [it] has put forth its maximum effort to provide Commerce with full and
complete answers to all inquiries.” Nippon Steel, 337 F.3d at 1382.
When applying an adverse inference, Commerce may rely on information from the petition,
a final determination in the investigation, a previous administrative review, or any other
information placed on the record. 19 U.S.C. § 1677e(b)(2); 19 C.F.R. § 351.308(c)(1)-(2) (2015).
Relevantly, section 502 of the TPEA amended 19 U.S.C. § 1677e(b) to provide that Commerce “is
not required to determine, or make any adjustments to, a countervailable subsidy rate . . . based on
any assumptions about information the interested party would have provided if the interested party
had complied with the request for information.” 19 U.S.C. § 1677e(b)(1)(B).
Pursuant to subsection (c), if the information relied upon is secondary -- as opposed to
primary information, which is obtained in the course of the investigation -- then Commerce “shall,
to the extent practicable, corroborate that information from independent sources that are
reasonably at [its] disposal.” 19 U.S.C. § 1677e(c)(1) (emphasis added). As regards the issues in
this case, the TPEA did not substantially amend the corroboration requirement. 7
request for information from [Commerce] . . . [Commerce] . . . in
reaching the applicable determination under this subtitle—
(A) may use an inference that is adverse to the interests of
that party in selecting from among the facts otherwise
available; and
(B) is not required to determine, or make any adjustments to,
a countervailable subsidy rate . . . based on any assumptions
about information the interested party would have provided
if the interested party had complied with the request for
information.
(emphasis added).
7
The TPEA added to 19 U.S.C. § 1677e(c) an exception to the corroboration requirement,
specifically that “[Commerce] . . . shall not be required to corroborate any dumping margin or
countervailing duty applied in a separate segment of the same proceeding.” 19 U.S.C. §
1677e(c)(2). This added subsection is not relevant to the instant proceeding.
Court No. 16-00206 Page 8
If Commerce uses an adverse inference, then in selecting among the facts otherwise
available, and ultimately choosing an AFA rate, the agency utilizes the statutory authorization
found in subsection (d), which was added to the statute by the TPEA. Per subsection (d)(1),
Commerce
[m]ay . . . (i) use a countervailable subsidy rate applied for the same
or similar program in a countervailing duty proceeding involving the
same country; or (ii) if there is no same or similar program, use a
countervailable subsidy rate for a subsidy program from a
proceeding that [Commerce] considers reasonable to use[.]
19 U.S.C. § 1677e(d)(1)(A)(i)–(ii) (emphasis added). In carrying out this AFA rate selection
procedure, Commerce may select “the highest such rate” made available. 19 U.S.C. § 1677e(d)(2).
In doing so, Commerce “is not required . . . to estimate what the countervailable subsidy rate . . .
would have been if the interested party found to have failed to cooperate . . . had cooperated,” or
to demonstrate that the countervailable subsidy rate used as an AFA rate “reflects an alleged
commercial reality of the interested party.” 19 U.S.C. § 1677e(d)(3).
Prior to the enactment of the TPEA, Commerce articulated a policy that it employs when
selecting AFA rates. Commerce still follows this policy, and employed it in the underlying
proceeding:
In selecting AFA rates for programs on which a company has failed
to fully cooperate, it is [Commerce’s] practice to use the highest
calculated program-specific rates determined for a cooperating
respondent in the same investigation, or, if not available, rates
calculated in prior CVD cases involving the same country.
Specifically, [Commerce] applies the highest calculated rate for the
identical program in the investigation if a responding company used
the identical program, and the rate is not zero.
If there is no identical program match within the investigation, or if
the rate is zero, [Commerce] uses the highest non-de minimis rate
calculated for the identical program in another CVD proceeding
involving the same country.
Court No. 16-00206 Page 9
If no such rate is available, [Commerce] will use the highest non-de
minimis rate for a similar program (based on treatment of the
benefit) in another CVD proceeding involving the same country.
Absent an above-de minimis subsidy rate calculated for a similar
program, [Commerce] applies the highest calculated subsidy rate for
any program otherwise identified in a CVD case involving the same
country that could conceivably be used by the non-cooperating
companies.
IDM at 4 (citations omitted) (emphasis added).
Commerce has explained the rationale behind its AFA policy:
[Commerce’s] practice when selecting an adverse rate from among
the possible sources of information is to ensure that the result is
sufficiently adverse “as to effectuate the statutory purposes of the
AFA rule to induce respondents to provide the Department with
complete and accurate information in a timely manner.”
Id. (citations omitted). Importantly, Commerce maintains that its practice also ensures “that the
party does not obtain a more favorable result by failing to cooperate than if it had cooperated
fully.” Id. (quoting Statement of Administrative Action, accompanying the Uruguay Round
Agreements Act, H.R. No. 103–316, vol. 1, at 870 (1994), reprinted in 1994 U.S.C.C.A.N. at 4199
(“SAA”)); 8 compare 19 U.S.C. § 1677e(d)(3).
B. Prior Proceedings
On July 21, 2015, Atlas, Independence, and additional petitioners, 9 filed with Commerce
a CVD petition concerning imports of HWR pipes and tubes from the Republic of Turkey
(“Turkey”). See Petition for the Imposition of Antidumping and Countervailing Duties Pursuant
8
The SAA “shall be regarded as an authoritative expression by the United States concerning the
interpretation and application of the Uruguay Round Agreements and this Act in any judicial
proceeding in which a question arises concerning such interpretation or application.” 19 U.S.C. §
3512(d).
9
Bull Moose Tube Company, EXLTUBE, Hannibal Industries, Inc., Maruichi American
Corporation, Searing Industries, Southland Tube, and Vest, Inc. See IDM at 1.
Court No. 16-00206 Page 10
to Sections 701 and 731 of the Tariff Act of 1930, as Amended July 21, 2015 Volume V –
Information Relating to the Republic of Turkey – Countervailing Duties, P.R. 9 (“Petition”); CVD
Investigation Initiation Checklist (Aug. 10, 2015), P.R. 31, C.R. 22 (“Initiation Checklist”).
Commerce initiated its investigation on August 17, 2015. Heavy Walled Rectangular
Welded Carbon Steel Pipes and Tubes from the Republic of Turkey: Initiation of Countervailing
Duty Investigation, 80 Fed. Reg. 49,207 (Dep’t Commerce Aug. 17, 2015). The period of
investigation (“POI”) was January 1, 2014 through December 31, 2014. Id. Commerce selected
हzdemir as one of two mandatory respondents in the investigation, 10 pursuant to section 19 U.S.C.
§ 1677f-1(e)(2) 11 and 19 C.F.R. § 351.204(c)(2) (2015). 12 IDM at 2.
10
The other company was MMZ Onur Boru Profil uretim San Ve Tic. A.S. IDM at 2. MMZ is
not otherwise relevant to the instant proceeding.
11
19 U.S.C. § 1677f-1(e)(2) provides:
If [Commerce] determines that it is not practicable to determine
individual countervailable subsidy rates . . . because of the large
number of exporters or producers involved in the investigation or
review, [Commerce] may--
(A) determine individual countervailable subsidy rates for a
reasonable number of exporters or producers by limiting its
examination to--
(i) a sample of exporters or producers that the
administering authority determines is statistically
valid based on the information available to the
administering authority at the time of selection, or
(ii) exporters and producers accounting for the
largest volume of the subject merchandise from the
exporting country that the administering authority
determines can be reasonably examined; . . .
12
19 C.F.R. § 351.204(c)(2) provides:
Exporters and producers examined--
(1) In general. In an investigation, [Commerce] will attempt
to determine an . . . individual countervailable subsidy rate
for each known exporter or producer of the subject
merchandise. . . .
Court No. 16-00206 Page 11
On September 9, 2015, Commerce issued a CVD Questionnaire to respondents and the
Government of Turkey (“GOT”). Countervailing Duty Questionnaire Countervailing Duty (CVD)
Investigation Heavy Walled Rectangular Welded Carbon Steel Pipes and Tubes From the
Republica of Turkey C-489-823, P.R. 37 (“Questionnaire”). The GOT filed its response to the
Questionnaire on October 28, 2015, along with a number of supportive exhibits. P.R. 63, C.R. 27
(“GOT QR”); Law Concerning Incentives on Investments and Employment and on the
Amendment of Certain Laws (Law No. 5084), P.R. 67, C.R.92 (“GOT QR Ex. 9); The provinces
under the Article 2 of Law Concerning Incentives on Investments and Employment and on the
Amendment of Certain Law (Law No. 5084), P.R. 125, C.R. 93 (“GOT QR Ex. 10”); Article 4 of
Law No. 3365, P.R. 134 (“GOT QR Ex. 19”). By its counsel, हzdemir filed the following relevant
substantive submissions: on October 30, 2015, its questionnaire response (“QR”), P.R. 134, C.R.
104, and on November 30, 2015, its response to Commerce’s supplemental questionnaire (“SQR”),
P.R. 186, C.R. 147.
On December 28, 2015, Commerce published its preliminary determination. Heavy
Walled Rectangular Welded Carbon Steel Pipes and Tubes from the Republic of Turkey:
Preliminary Affirmative Countervailing Duty Determination and Alignment of Final
Determination With Final Antidumping Determination, 80 Fed. Reg. 80,749 (Dep’t Commerce
Dec. 28, 2015) (“Preliminary Determination”). It was accompanied by Commerce’s
memorandum, Countervailing Duty Investigation of Heavy Walled Rectangular Welded Carbon
Steel Pipes and Tubes from the Republic of Turkey: Decision Memorandum for the Preliminary
Determination, dated December 18, 2015, P.R. 199 (“Preliminary Decision Memo”). The
(2) Limited investigation. Notwithstanding paragraph (c)(1)
of this section, [Commerce] may limit the investigation by
using a method described in . . . [19 U.S.C. § 1677f-1(e)].
Court No. 16-00206 Page 12
foregoing two documents were accompanied by a third, company specific memorandum entitled
Preliminary Determination Calculation Memorandum for Özdemir Boru Profil San. ve Tic. Sti.,
dated December 18, 2015, P.R. 202, C.R. 161 (“Preliminary Calculation Memo”). हzdemir was
assigned a preliminary CVD rate of 1.35 percent. 13 Preliminary Determination at 80,750. Also
on December 28, 2015, हzdemir filed a request for correction of ministerial error. Compl. ¶ 12.
In the Preliminary Decision Memo, Commerce preliminarily determined under the
Provision of Land for LTAR program that the Zonguldak organized industrial zone (“OIZ”) land
VROGWRह]GHPLULQFRQVWLWXWHGDILQDQFLDOFRQWULEXWLRQZLWKLQWKHPHDQLQJRI 86&
1677(5)(E)(iv), 14 and that it was specific under § 1677(5A)(D)(iv). 15 Commerce further
preliminarily determined that the program FRQIHUUHGDEHQHILWXSRQह]GHPLUWRWKHH[WHQWWKDWWKH
ODQGLQTXHVWLRQZDVVROGWRह]GHPLUIRU/7$5DVGHVFULEHGXQGHU 86& ( LY
In making an LTAR determination, Commerce compares the price actually paid to a benchmark
13
MMZ Onur Boru Profil uretim San Ve Tic. A.S. received a subsidy rate of 7.69 percent.
Preliminary Determination at 80,750. Companies not individually-investigated were assigned an
“all-others” rate of 4.39 percent, calculated by weighing the subsidy rates of the individual
companies selected as respondents by those companies’ exports of the subject merchandise to the
United States. Id.
14
19 U.S.C. § 1677(5)(E)(iv) provides:
A benefit shall normally be treated as conferred where there is a
benefit to the recipient, including -- . . .
(iv) in the case where goods or services are provided, if such
goods or services are provided for less than adequate
remuneration, and in the case where goods are purchased, if
such goods are purchased for more than adequate
remuneration.
15
19 U.S.C. § 1677(5A)(D)(iv) provides:
Where a subsidy is limited to an enterprise or industry located within
a designated geographical region within the jurisdiction of the
authority providing the subsidy, the subsidy is specific.
Court No. 16-00206 Page 13
value, pursuant to 19 C.F.R. § 351.511(a). As a benchmark, Commerce used land values that it
had previously used in its investigation of line pipe from Turkey, Welded Line Pipe from the
Republic of Turkey: Final Affirmative Countervailing Duty Determination, 80 Fed. Reg. 61,371
(Dep’t Commerce Oct. 13, 2015). See Preliminary Decision Memo at 11–12. Commerce
SUHOLPLQDULO\ GHWHUPLQHG ह]GHPLU¶V QHW VXEVLG\ UDWH XQGHU Whis program to be 0.55 percent ad
valorem. Id. at 12.
As to the EFPT program at issue in this case, Commerce preliminarily concluded that
ह]GHPLU KDG QRW XVHG LW EDVHG RQ ह]GHPLU¶V UHVSRQVHV WR &RPPHUFH¶V TXHVWLRQQDLUHV
Preliminary Decision Memo at 16. Specifically, in response to Commerce’s questions regarding
that program, ह]GHPLUVWDWHGWKDW
[It] did not receive any benefits under this program. Eligibility for
this program is limited to enterprise located within certain
designated regions. 6LQFHQRQHRIWKHह]GHPLU¶VSODQWVDUHORFDWHG
LQWKRVHUHJLRQVह]GHPLUZDVQRWHOLJLEOHWRXVHWKLVSURJUDP
QR at 33.
Commerce subsequently conducted verifications of हzdemir’s QR. Verification of the
4XHVWLRQQDLUH5HVSRQVHVRIह]GHPLU%RUX3Uofil San ve Tic. Ltd Sti. (Mar. 10, 2016), P.R. 227,
C.R. 235 (“Verification Report”); Verification Exhibit 2, C.R. 173–75; Verification Exhibit 10,
C.R. 173, 191–92; Verification Exhibit 15, C.R. 203. During verification, Commerce discovered
WKDWह]GHPLUZDV eligible for, and did receive, an EFPT subsidy during the five years prior to the
period of investigation, because it possessed buildings in the Zonguldak OIZ in Turkey.
Verification Report at 2, &RPPHUFHGHWHUPLQHGWKDWह]GHPLUZDVXQDEOHWRGHPRQVWrate at
verification that it had not received this subsidy during the POI as well. Ministerial Error
Allegations in the Final Determination (Aug. 19, 2016), P.R. 252 at 5 (“Min. Error Dec. Memo”).
Court No. 16-00206 Page 14
On March 24, 2016, हzdemir filed its case brief. P.R. 233, C.R. 237. The GOT filed its case brief
the same day. P.R. 232.
On July 21, 2016, Commerce published its original final determination, wherein the agency
FRQWLQXHGWRILQGWKDWह]GHPLUZDVVXEVLGL]HGE\UHDVRQRILWVSXUFKDVHRIFHUWDLQUHDOSURSHUWy
IURPWKHJRYHUQPHQWDW/7$5DQGDVVLJQHGह]GHPLUDVXEVLG\UDWHRI percent ad valorem
for that program. IDM at 15. Regarding the EFPT program, Commerce determined that “Özdemir
withheld information requested by” the agency and thus had failed to cooperate to the best of its
ability in reporting benefits under this program. Id. at 5; see 19 U.S.C. § 1677e(a)(2)(A).
Commerce consequently assigned ह]GHPLUDQ$)$UDWHIRUWKH()37SURJUDPDQGEHLQJXQDEOH
to locate an above-de minimis application of that same program in a Turkish proceeding, resorted
to the third tier of its hierarchy. IDM at 6–7; see 19 U.S.C. § 1677e(b). Under that tier, Commerce
uses the highest non-de minimis rate for a similar program, based on treatment of the benefit, in
another CVD proceeding involving the same country. IDM at 6. Commerce selected an AFA
CVD rate of 14.01 percent, derived from Final Affirmative Countervailing Duty Determinations;
Certain Welded Carbon Steel Pipe and Tube Products From Turkey, 51 Fed. Reg. 1268, 1270 (Jan.
10, 1986) (“CWP&T 1986”). IDM at 7 n.29. In that determination, 14.01 percent was the
program-specific rate applied for the Export Tax Rebate and Supplemental Tax Rebate program.
In applying that programmatic rate, Commerce found that the CWP&T 1986 program and the
EFPT program were “[a] match, based on program type and treatment of benefit.” Id. at 7.
Commerce next addressed corroboration of the selected CWP&T 1986 rate per 19 U.S.C.
§ 1677e(c). IDM at 8. Commerce noted that in determining the reliability of the selected rate,
“there typically are no independent sources for data on company-specific benefits resulting from
countervailable subsidy programs.” Id. However, Commerce determined that “no information
Court No. 16-00206 Page 15
has been presented which calls into question the reliability of these previously calculated subsidy
rates that we are applying as AFA.” Id. As to relevance, Commerce found that, “[f]or those
programs which the [agency] found a program-type match, . . . because these are the same or
similar programs, they are relevant to the programs under investigation in this case.” Id. “Due to
the lack of certain record information concerning the programs under investigation,” Commerce
“corroborated the rates it selected to the extent practicable.” Id.; see 19 U.S.C. § 1677e(c)(1).
As to the Provision of Land for LTAR program, &RPPHUFH GHWHUPLQHG ह]GHPLU¶V QHW
subsidy rate to be 0.54 percent ad valorem. IDM at 15.
हzdemir subsequently alleged that Commerce made a ministerial error with respect to its
application of AFA to the EFPT program. Min. Error Dec. Memo. Commerce acknowledged that
it inadvertently characterized its application of an adverse inference to the EFPT program as
UHVXOWLQJIURPह]GHPLU¶VIDLOXUHWRIROORZTXHVWLRQQDLUHLQVWUXFWLRQVWRUHSRUWDOO³RWKHUVXEVLGLHV´
received from the GOT, but concluded that an adverse inference was nonetheless appropriate
EHFDXVHह]GHPLUIDLOHGWRUHVSRQGDFFXUDWHO\WRVSHFLILFTXHVWLRQVDERXWWKDWSURJUDPLQLWVLQLWLDO
questionnaire response. Min. Error Dec. Memo at 4–5, 5 n.21. Accordingly, Commerce published
the amended Final Determination LQZKLFKLWGLGQRWFKDQJHWKH VXEVLG\ UDWHIRU ह]GHPLU on
September 13, 2016.
2Q2FWREHU ZLWKLQWKLUW\GD\VDIWHUWKHSXEOLFDWLRQRIWKH&9'RUGHUह]GHPLU
timely filed its summons. Sum.; see 19 U.S.C. § 1516a(a)(2)(A); USCIT Rule 3(a)(2). ह]GHPLU
filed its complaint the same day. Compl. Atlas moved to intervene as defendant-intervenor on
October 28, and the court granted the motion the same day. ECF Nos. 7, 11. Independence filed
a motion to intervene as defendant-intervenor on November 8, and the court granted it the next
day. ECF Nos. 12, 15. 3XUVXDQWWR86&,75XOHह]GHPLUILOHGLWVPRWLRQIRUMXGJPHQWRQ
Court No. 16-00206 Page 16
the agency record on February 21, 2017. ECF Nos. 26, 27 (“Pl.’s Br.”). The Government filed its
responsive brief in opposition on May 28. ECF No. 33 (“Def.’s Br.”). Independence and Atlas
filed their respective responsive briefs in opposition on May 30. ECF Nos. 34, 35 (“Independence
Br.” and “Atlas Br.”). ह]GHPLUILOHGLWVUHSO\RQ-XQH ECF Nos. 36, 37 (“Pl.’s Reply”). Oral
argument was held before the court on September 12, 2017. ECF No. 52.
हzdemir argues before this court that the Final Determination was unsupported by
substantial evidence, and was contrary to law, in regards to the apSOLFDWLRQRI$)$WRह]GHPLU
regarding the EFPT program, and in the inclusion of certain land parcels in the benchmark for the
Land for LTAR program.
JURISDICTION AND STANDARD OF REVIEW
The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1581(c), and 19 U.S.C.
§ 1516a(a)(2)(A)(i)(II), and will sustain Commerce's countervailable subsidy determinations
unless they are “unsupported by substantial evidence on the record, or otherwise not in accordance
with law.” 19 U.S.C. § 1516a(b)(1)(B)(i); Changzhou Wujin Fine Chem. Factory Co., Ltd. v.
United States, 701 F.3d 1367, 1374 (Fed. Cir. 2012).
DISCUSSION
I. 7KH $SSOLFDWLRQ RI $)$ WR ह]GHPLU LV Supported by Substantial Evidence and in
Accordance with Law.
A. Commerce’s Use of Facts Otherwise Available is Supported by Substantial Evidence.
1. Parties’ Arguments
हzdemir argues that it correctly reported its “non-use” of the EFPT program, and placed
all necessary documentation on the record. Pl.’s Br. at 21–ह]GHPLUH[SODLQVWKDW&RPPHUFH
asked in the Questionnaire, under the heading of “Program-Specific Questions,” that it report only
on subsidies received during the POI, calendar year 2014:
Court No. 16-00206 Page 17
For each program, if your company (including cross-owned affiliate
required to respond, as well as all trading companies) did not apply
for, use, or benefit from that program during the POI, you must
clearly state so. Otherwise, please answer the questions listed.
Questionnaire at Sec. III p. ह]GHPLU DUJXHV WKDW LW IROlowed this instruction, answering that
³ह]GHPLUGLGQRWUHFHLYHDQ\EHQHILWVXQGHU[the EFPT] program.” QR at 33; Pl.’s Br. at 23. The
Property Tax Law creating this subsidy program provides a 0.2 percent property tax exemption on
buildings built in an OIZ for the first five years following completion of construction. GOT QR
DWह]GHPLUthus submits that because it completed its building on the OIZ property in 2008,
SQR at 5, the company was exempted from paying property tax on it specifically from 2009
through 2013. GOT QR at 76–84; GOT QR Ex. 19; Pl.’s Br. at 22. As Commerce confirmed:
³ह]GHPLUGLGQRWPDNHDQ\WD[SD\PHQWVfor buildings located at its facility in the Zonguldak OIZ
for the first five years following completion of the buildings’ construction (i.e., December 24,
2008).” Verification Report at 9; see Verification Exhibit 10 at 534 (acknowledging that Özdemir
had “completed construction of factory and begun production” as of December 25, 2008); Pl.’s Br.
at 22.
हzdemir asserts in conjunction that because the exemption is a tax program, Petition at
24, 16 Initiation Checklist at 25, Questionnaire at 14, and thus a recurring subsidy, the benefit is
expensed in the year received. 19 C.F.R. § 351.524(a) (2015) (“[Commerce] will allocate
(expense) a recurring benefit to the year in which the benefit is received.”); Pl.’s Br. at 23.
7KHUHIRUHWKHEHQHILWZDVXVHGDWWKHODWHVWLQSULRUWRWKH32,3O¶V%UDWह]GHPLU
points to the QR and the GOT QR, and argues that the record “contains every element necessary
16
“The benefit equaled the difference between the amount that would have been paid in taxes
without the program and the amount actually paid.” Petition at 24.
Court No. 16-00206 Page 18
for an exact calculation of any putative benefit attributable” to the EFPT program. 17 Id. Further,
SHU ह]GHPLU WKH DPRXQW RI DQ\ VXEVLG\ VR FDOFXODWHG ZRXOG EH ZHOO EHORZ WKH OHYHO RI
countervailability. Pl.’s Br. at 24.
,QGHSHQGHQFH DUJXHV WKDW ह]GHPLU QRZ DWWHPSWV WR DUWLILFLDOO\ UHGXFH LWV incorrect QR
statement to the point that it did not receive benefits under the EFPT program during the POI,
ignoring the portion of that statement where it stated that it was altogether ineligible for the
program for geographic reasons. Independence Br. at 10. Independence also refers to Commerce’s
specific instructions that “[it is] investigating alleged subsidies received over a time period
corresponding to the AUL,” meaning for the POI and the preceding 14 years. Questionnaire at
Sec. II, p. II-2; Independence Br. at 10. Atlas argues that हzdemir’s incorrect QR statement could
not be verified, and thus triggered 19 U.S.C. § 1677e(a)(2)(D). 18 Atlas Br. at 12–14. Further,
bHFDXVHह]GHPLUGLGQRWDWWHPSWFRUUHFWLRQXQWLOverification, after the responsive deadline had
passed, Verification Report at 2, 9, Atlas argues that 19 U.S.C. § 1677e(a)(2)(B) was also triggered.
Atlas Br. at 13. 19 Atlas also argues that 19 U.S.C. § 1677e(a)(2)(C) was implicated, since even if
17
ह]GHPLUDOVRFRQWHQGVWKDWLWFDQQRWEHVDLGWRKDYHLPSHGHGWKHLQYHVWLJDWLRQsee 19 U.S.C. §
1677e(a)(2)(C), because it provided an accurate QR response regarding EFPT benefits during the
POI. Pl.’s Br. at 25.
18
Atlas notes that “Commerce is given wide latitude to determine its verification procedures,”
meaning that the agency possesses significant discretion in administering that element of the
investigative process. Atlas Br. at 16 (quoting Max Fortune Indus. Co. v. United States, Slip Op.
13-52, 2013 WL 1811907 at *3 (Apr. 15, 2013)). The court owes Commerce’s verification
decisions “considerable deference.” Atlas Br. at 16 n.37 (quoting Daewoo Elecs. Co. v. Int'l Union
of Elec. Elec., Tech., Salaried & Mach. Workers, AFL-CIO, 6 F.3d 1511, 1516 (Fed. Cir. 1993)).
19
Both defendant-LQWHUYHQRUVDUJXHWKDWWKHUHFRUGGRHVQRWLQIDFWVKRZWKDWह]GHPLUGLGQRW
receive a benefit from the EFPT program during the POI. Independence asserts that “it is fair to
assume that हzdemir did receive a benefit under the [EFPT] program during the POI” because the
record does not demonstrate that the company paid property taxes specifically on its factory
location in the OIZ. Independence Br. at 11 (citing Min. Error Dec. Memo. at 4–5).
Atlas submits the record does not definitively demonstrate that the EFPT program applies
only during the first five years following construction, as it would have had to in this case to
Court No. 16-00206 Page 19
हzdemir’s incorrect QR response regarding the receipt of EFPT benefits were verifiable, हzdemir
regardless “significantly impede[d]” the CVD investigation. Atlas Br. at 21. This is because
Commerce’s verification team, upon its arrival in Turkey, would have required an entirely different
VHWRILQIRUPDWLRQLQRUGHUWRYHULI\WKDWह]GHPLUKDGQRWUHFHLYHGDQ()37SURJUDPEHQHILWGXULQJ
the POI. 20 Atlas Br. at 22.
7KH*RYHUQPHQWDUJXHVWKDW&RPPHUFH¶VFRQFOXVLRQWKDWह]GHPLUZLWKKHOGLQIRUPDWLRQ
and failed to cooperate to the best of its ability in providing the requested information about use
of the EFPT program is supported by substantial evidence on the record. IDM at 5–6; Def.’s Br.
at 10–11. The Government also argues that Commerce should not have been required to calculate
WKHDOOHJHGO\GHPLQLPLVVXEVLG\UDWHEDVHGRQUHFRUGHYLGHQFHDVह]GHPLUFRQWHQGVLWFRXOGDQG
should have, because Commerce’s resort to facts otherwise available was statutorily authorized
DQGUHDVRQDEOHLQOLJKWRIह]GHPLU¶V45PLVVWDWHPHQW'HI¶V%UDW
2. Analysis
The court concludes that Commerce’s application of AFA is supported by substantial
evidence on the record. Substantial evidence is “more than a mere scintilla,” but “less than the
weight of the evidence.” Altx, Inc. v. United States, 370 F.3d 1108, 1116 (Fed. Cir. 2004). “A
precede the POI. Atlas Br. at 17–19. Atlas adds that “Commerce did not verify that Özdemir’s
2013 property taxes were due LQUDWKHUWKDQLQ´QRUGLGLWYHULI\WKHYDOXHWKDWह]GHPLU
purports its building carries. Atlas Br. at 20–21.
Because this possibility does not implicate the triggering of Commerce’s resort to facts
otherwise available under 19 U.S.C. § 1677e(a), the court does not reflect in depth on defendant-
intervenors suggestions regarding EFPT benefits received during the POI.
20
,Q UHVSRQVH WR ह]GHPLU¶V DUJXPHQW WKDW WKH SRUWLRQV RI LWV 45 LQFRUUHFWO\ OLQNLQJ WKH ()37
program to geographic location are not relevant to the question of whether a benefit was received
during the POI, Atlas argues that the statute expressly contemplates that the conditions for
application of facts otherwise available under § 1677e(a)(2) apply even where (a)(1) does not,
meaning AFA may apply even where Commerce cannot find that “necessary information is not
available on the record.” Atlas Br. at 15.
Court No. 16-00206 Page 20
finding is supported by substantial evidence if a reasonable mind might accept the evidence as
sufficient to support the finding.” Maverick Tube Corp. v. United States, 857 F.3d 1353, 1359
(Fed. Cir. 2017) (citing Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). “The
substantiality of evidence must take into account whatever in the record fairly detracts from its
weight.” CS Wind Vietnam Co. v. United States, 832 F.3d 1367, 1373 (Fed. Cir. 2016). This
includes “contradictory evidence or evidence from which conflicting inferences could be drawn.”
Suramerica de Aleaciones Laminadas, C.A. v. United States, 44 F.3d 978, 985 (Fed. Cir. 1994)
(quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). However, “the possibility
of drawing two inconsistent conclusions from the evidence does not prevent an administrative
agency's finding from being supported by substantial evidence.” Matsushita Elec. Indus. Co. v.
United States, 750 F.2d 927, 933 (Fed. Cir. 1984) (citing Consolo v. Fed. Mar. Comm'n, 383 U.S.
607, 619–20 (1966)).
Commerce “shall . . . use the facts otherwise available” if one of the criteria spelled out in
86&H D RU DUHPHW$OOSDUWLHVDJUHHWKDWह]GHPLUSURYLGHGDQLQFRUUHFWQR
response regarding the EFPT program. QR at 32–33. The statute is triggered “[if] . . . an interested
party . . . withholds information that has been requested by [Commerce].” Regarding the EFPT
program, Commerce specifically UHTXHVWHG WKDW ह]GHPLU DQVZHU TXHVWLRQV IRXQG LQ WKH
Questionnaire Standard Questions Appendix. QR at 33; Questionnaire at Sec. III pp.18–19. The
questions therein do not request simple answers, but rather pose several questions requiring
detailed answers about a firm’s history with the program in question, benefits received thereunder,
and records kept demonstrating those benefits. Questionnaire at Sec. III p.19. For the purposes
RIWULJJHULQJIDFWVRWKHUZLVHDYDLODEOHLWLVRIQRPRPHQWWKDWVRPHSDUWRIह]GHPLU¶VLQFRUUHFW
45VWDWHPHQWVXSSRUWVWKHSURSRVLWLRQWKDWह]GHPLUGLGQRWUHFHLYH()37EHQHILWVGXULQJWKH32,
Court No. 16-00206 Page 21
In fact, हzdemir’s argument that the Questionnaire instructions demand responses only regarding
the POI, Pl.’s Br. at 21, is undermined by Commerce’s specific instruction that “[it is] investigating
alleged subsidies received over a time period corresponding to the [15-year] AUL,” meaning for
the POI and the preceding 14 years. Questionnaire at Sec. II p.II-2. The contrast between
हzdemir’s brief, incorrect QR statement, and the detailed information that Commerce requested,
as well as the explicitly noted AUL informational timeframe, constitute substantial evidence on
the record that हzdemir “with[e]ld[] information that has been requested by [Commerce]”
pursuant to 19 U.S.C. § 1677e(a)(2)(A).
The court is QRWSHUVXDGHGE\ह]GHPLU¶VDUJXPHQWWKDW&RPPHUFHFRXOGKDYHUHIHUUHGWR
the record to calculate the precise countervailable subsidy received under the EFPT program,
rather than rely on facts otherwise available. The possibility that the record does contain the
information necessary to calculate a putative countervailable subsidy is irrelevant to the statutory
triggers found in § 1677e(a), VSHFLILFDOO\ ZKHWKHU ³DQ LQWHUHVWHG SDUW\´ VXFK DV ह]GHPLU KDV
“with[e]ld[] information that has been requested by [Commerce].” 19 U.S.C. § 1677e(a)(2)(A).
हzdemir has provided no authority stating otherwise. 21 More to the point, because that possibility
does not implicate the statutory standard, it does not detract from the substantiality of the evidence
supporting tKHFRQFOXVLRQWKDWह]GHPLU¶VLQFRUUHFW45UHVSRQVe did trigger § 1677e(a)(2)(A). See
CS Wind, 832 F.3d at 1373.
B. Commerce’s Application of AFA is Supported by Substantial Evidence and in
Accordance with Law.
21
Indeed, § 1677e(a)(1), which triggers facts otherwise available where “necessary information is
not available on the record,” is read not in tandem with, but alternately to, (a)(2), as discernible by
their separation with the conjunctive “or.” See supra n.5. That necessary information is present
in the record before Commerce, thus obviating § 1677e(a)(1), does not necessarily prevent the
triggering of a subsection of (a)(2) as well.
Court No. 16-00206 Page 22
1. Commerce’s Decision to Apply an Adverse Inference is Supported by Substantial
Evidence.
हzdemir argues that it fully cooperated in the investigation, and thus Commerce had no
factual basis in the record to apply AFA under 19 U.S.C. § 1677e(b)(1). Pl.’s Br. at 24; see supra
n.5 ह]GHPLU DFNQRZOHGJHV WKDW its QR statement regarding EFPT benefits was in error, but
submits that Commerce knew throughout the investigation that EFPT program qualification was
based on location in an OIZ, and not on the province in which the property was located. Initiation
Checklist at 25; Pl.’s Br. at 25. ह]GHPLU again argues that the operative fact is that it did not
receive an EFPT benefit during the POI, and notes that Commerce verified that any property tax
H[HPSWLRQDSSOLFDEOHWRह]GHPLUZRXOGKDve ended before the POI began. Verification Report at
9; Pl.’s Br. at 26 ह]GHPLU JHQHUDOO\ DVVHUWV DOVR WKDW LW ³GLG QRW KLGH DQ\ LQIormation from
Commerce,” having spent four pages in its QR explaining that one of its plants “is located in the
Zonguldak OIZ,” and that it provided all the payment and title information related to that property,
including information establishing that construction of that building was completed in December
2008 -- thus cutting off the applicable property tax benefit before the POI began in 2014. Pl.’s Br.
at 26; QR at 13–16, Exs. 8–10; SQR at 5.
हzdemir argues in its Reply that Commerce impermissibly applied a per se rule in
GHWHUPLQLQJWKDWह]GHPLU³IDLOHGWRDFWWRthe best of its ability” and therefore warranted an adverse
inference. 19 U.S.C. § 1677e(b)(1); Pl.’s Reply at 16–ह]GHPLUDUJXHVWKDWLQVWHDGWKH³EHVW
of its ability standard” calls for an assessment of materiality. Pl.’s Reply at 17.
The court is persuaded by the Government’s argument that substantial evidence supports
Commerce's decision to apply AFA. “If [Commerce] . . . finds that an interested party has failed
to cooperate by not acting to the best of its ability to comply with a request for information from
[Commerce], [then Commerce] . . . may use an inference that is adverse to the interests of that
Court No. 16-00206 Page 23
party in selecting from among the facts otherwise available.” 19 U.S.C. § 1677e(b)(1)(A); see 19
C.F.R. § 351.308; QVD Food Co. v. United States, 658 F.3d 1318, 1324 (Fed. Cir. 2011)
(discussing burdens of proof in administrative proceedings before Commerce). Commerce “may
employ [such] inferences . . . to ensure that the party does not obtain a more favorable result by
failing to cooperate than if it had cooperated fully.” Viet I-Mei Frozen Foods Co. v. United States,
839 F.3d 1099, 1109 (Fed. Cir. 2016) (quoting SAA at 870). “Because Commerce lacks subpoena
power, Commerce's ability to apply adverse facts is an important one.” Maverick Tube, 857 F.3d
at 1360 (quoting Essar Steel Ltd. v. United States, 678 F.3d 1268, 1276 (Fed. Cir. 2012)). Thus,
“[t]he purpose of the adverse facts statute is ‘to provide respondents with an incentive to cooperate’
with Commerce's investigation.” Id. (quoting F.lli De Cecco Di Filippo Fara S. Martino S.p.A. v.
United States, 216 F.3d 1027, 1032 (Fed. Cir. 2000)). “Compliance with the ‘best of its ability’
standard is determined by assessing whether respondent has put forth its maximum efforts to
provide Commerce with full and complete answers to all inquiries in an investigation.” Maverick
Tube, 857 F. 3d at 1360 (quoting Nippon Steel, 337 F.3d at 1382).
Substantial evidence supports both Commerce’s ILQGLQJWKDWह]GHPLUGLGQRWDFWWRWKH
best of its ability to comply with Commerce’s request for information, and its decision to apply an
adverse inference in consequence. As explained supra, the Questionnaire asks for a detailed series
of answers regarding the respondent’s history with the EFPT program. Questionnaire at 18–19.
ह]GHPLUVWDWHGLQLWV45WKDWLW³GLGQRWUHFHLYHDQ\EHQHILWVXQGHU>WKH()37@SURJUDP(OLJLELOLW\
for this program is limited to enterprises located within certain designated regions. Since none of
WKHह]GHPLU¶VSODQWVDUHORFDWHGLQWKRVHUHJLRQVह]GHPLUZDVQRWHOLJLEOHWRXVHWKLVSURJUDP´
QR at 33. $WYHULILFDWLRQ&RPPHUFHGLVFRYHUHGWKDWWKLVUHVSRQVHZDVQRWDFFXUDWHDVह]GHPLU
Court No. 16-00206 Page 24
had taken advantage of the EFPT program, and did have facilities in the designated region. 22
Verification Report at 2, 9&RPPHUFH¶VUHVXOWLQJFRQFOXVLRQWKDWह]GHPLUKDGZLWKKHOGUHTXHVWHG
information, pursuant to 19 U.S.C. § 1677e(a)(2)(A), by failing to report use of the EFPT program
was reasonable and supported by substantial evidence. IDM at 5. Accordingly, resort to facts
otherwise available was warranted. Id. So too was Commerce’s decision to apply an adverse
inference reasonable. Id. DW7KHUHFRUGVKRZVWKDWह]GHPLUGLGQRW³SURYLGH&RPPHUFHZLWK
full and complete answers to all inquiries in [the] investigation,” as regards the EFPT program.
Maverick Tube, 857 F.3d at 1360. While “[t]he best-of-one’s-ability standard ‘does not require
perfection and recognizes that mistakes sometimes occur,’ it “does not condone inattentiveness,
carelessness, or inadequate record keeping.” Papierfabrik Aug. Koehler SE v. United States, 843
F.3d 1373, 1379 (Fed. Cir. 2016) (quoting Nippon Steel, 337 F.3d at 1382). In summary,
³&RPPHUFHUHTXHVWHGLQIRUPDWLRQIURP>ह]GHPLU@ZKLFK>ह]GHPLU@GLGQRWSURYLGHDQGQHYHU
claimed that it was unable to provide.” 23 Maverick Tube, 857 F.3d at 1360; IDM at 6; Verification
Report at 2, 9. Commerce’s decision to apply an AFA rate was therefore supported by substantial
evidence on the record.
ह]GHPLU¶VDVVHUWLRQWKDWLWLQDGYHUWHQWO\ SURYLGHGthe incorrect QR statement regarding
EFPT benefits does not advance its argument here. “While intentional conduct, such as deliberate
concealment or inaccurate reporting, surely evinces a failure to cooperate, the statute does not
22
&RPPHUFH DOVR GHWHUPLQHG WKDW ह]GHPLU ZDV XQDEOH WR SURYLGH LQformation showing that it
actually paid property taxes on the factory located in the Zonguldak OIZ during the POI. Min.
Error Decision Memo at 5.
23
7KHFRXUWQRWHVWKDWह]GHPLUFRXOGUHDVRQDEO\KDYHSURYLGHGFRUUHFWHGLQIRUPDWLRQUHJDUGLQJ
its use of the EFPT program in its SQR. See 645DW+RZHYHUह]GHPLUGLGQRWGRVRId.; see,
e.g., Fresh Garlic Producers Ass'n v. United States, 39 CIT ___, ___, 121 F. Supp. 3d 1313, 1325
(2015).
Court No. 16-00206 Page 25
contain an intent element.” Nippon Steel, 337 F.3d at 1383, cited in Essar Steel, 678 F.3d at 1276.
Rather, “the statutory trigger for Commerce's consideration of an adverse inference is simply a
failure to cooperate to the best of respondent's ability, regardless of motivation or intent.” Id. The
FRXUW DOVR ILQGV XQSHUVXDVLYH ह]GHPLU¶V DUJXPHQWV WKDW LWV LQFRUUHFW 45 statement was not
material, and thus could not justify an adverse inference. Pl.’s Reply at 14–16. Neither the statute
nor binding precedent impose that standard on Commerce; the animating inquiry of the adverse
inferences provision is whether “an interested party has failed to cooperate by not acting to the
best of its ability to comply with a request for information from [Commerce].” 19 U.S.C. §
1677e(b)(1); see Maverick Tube, 857 F.3d at 1360–61. &RQWUDU\ WR ह]GHPLU¶V PDWHULDOLW\
articulation, the “best of its ability” standard “expects respondents to ‘(a) take reasonable steps to
keep and maintain full and complete records . . . ; (b) have familiarity with all of the records it
maintains in its possession, custody, or control; and (c) conduct prompt, careful, and
comprehensive investigations of all relevant records that refer or relate to the imports in question.’”
Papierfabrik, 843 F.3d at 1379 (quoting Nippon Steel, 337 F.3d at 1382). ह]GHPLU¶VHPSKDVLVRQ
EFPT benefits received during the POI is besides the point. Rather, the relevant point is that
Özdemir did not put forth its best efforts to provide “full and complete” answers to Commerce’s
inquiries in its QR. Nippon Steel, 337 F.3d at 1382; see Essar Steel, 678 F.3d at 1276 (“Without
the ability to enforce full compliance with its questions, Commerce runs the risk of gamesmanship
and lack of finality in its investigations.”).
7KHFRXUWLVOLNHZLVHXQSHUVXDGHGE\ह]GHPLU¶VDUJXPHQWWKDW&RPPHUFHFRXOGKDYHXVHG
additional tax information provided at verification to ascertain its participation in the EFPT
program during the POI and beforehand. The purpose of verification is not to “continue the
information-gathering stage of [Commerce’s] investigation.” Borusan Mannesmann Boru Sanyive
Court No. 16-00206 Page 26
Ticaret A.S. v. United States, 39 CIT ___, ___, 61 F. Supp. 3d 1306, 1349 (2015) (quoting agency
position), aff’d, Maverick Tube, 857 F.3d 1353. “Verification is intended to test the accuracy of
data already submitted, rather than to provide a respondent with an opportunity to submit a new
response.” Tianjin Mach. Imp. & Exp. Corp. v. United States, 28 CIT 1635, 1644, 353 F. Supp.
2d 1294, 1304 (2004), aff'd, 146 F. App’x 493 (Fed. Cir. 2005). “Commerce . . . is under no
obligation to request or accept substantial new factual information from a respondent after
discovering that a response cannot be corroborated during verification.” Id.; see 19 C.F.R. §
351.307(d) (2015). Nor is it for this court to mold Commerce’s verification procedures more
strictly than the statute provides. Indeed, the statute gives Commerce wide latitude in its
verification procedures, Micron Tech., Inc. v. United States, 117 F.3d 1386, 1396 (Fed. Cir. 1997)
(citing American Alloys, Inc. v. United States, 39 F.3d 1469, 1475 (Fed. Cir. 1994)), and further
“Congress has implicitly delegated to Commerce the latitude to derive verification procedures ad
hoc.” Id. More generally, the Federal Circuit “ha[s] recognized Commerce's authority to apply
adverse facts, even when a party provides relevant factual information if a party has not acted to
the best of its ability to provide the information.” Essar Steel, 678 F.3d at 1278; see Nippon Steel,
337 F.3d at 1378–83.
TKHRSHUDWLYHSRLQWLVWKDWह]GHPLUSRVVHVVHGLQIRUPDWLRQWKDW&RPPHUFHUHTXHVWHG in its
Questionnaire, and upon being asked to provide that information with supportive details and
H[SODQDWLRQV ह]GHPLU GLG QRW SURYLGH LW QR at 33. “Such behavior cannot be considered
‘maximum effort to provide Commerce with full and complete answers.’” Maverick Tube, 857
F.3d at 1361 (quoting Nippon Steel, 337 F.3d at 1382). Commerce’s decision to apply an adverse
inference, and an AFA rate, was thus supported by substantial evidence on the record.
Court No. 16-00206 Page 27
2. Commerce Selection of the AFA Rate was in Accordance with Law.
Commerce used the third level of its methodology in applying the CWP&T 1986 rate 24 to
हzdemir in this proceeding. IDM at 6–7 (“If no such rate is available, the Department will use the
highest non-de minimis rate for a similar program (based on treatment of the benefit) in another
CVD proceeding involving the same country.”) (emphasis added). In a two-pronged argument,
हzdemir contends that even if it did not act to the best of its ability in responding to Commerce’s
Questionnaire, Commerce nonetheless violated its AFA selection criteria in assigning the 14.01
percent program-VSHFLILFUDWHWRह]GHPLU3O¶V%UDW
First, हzdemir argues that “Commerce should have stopped at its second preference,”
rather than reach the third, “because a rate had been calculated for an identical program in a prior
CVD proceeding involving the same country.” Pl.’s Br. at 28. ThDWUDWHSHUह]GHPLULVD
percent subsidy rate applied to respondent Toscelik for the EFPT program in the investigation of
oil country tubular goods (“OCTG”). Pl.’s Br. at 28 (citing Certain Oil Country Tubular Goods
From the Republic of Turkey: Final Affirmative Countervailing Duty Determination and Final
Affirmative Critical Circumstances Determination, 79 Fed. Reg. 41,964 (Dep’t Commerce July
18, 2014) and accompanying IDM)ह]GHPLUDsserts that a rate of 0.01 percent is not de minimis,
and disputes the validity of Commerce’s 0.5 percent de minimis threshold by asserting that
“Commerce’s practice is to treat programs with ad valorem subsidy rates below 0.005 [percent] as
de minimis.” Pl.’s Br. at 29–30 (citing Circular Welded Carbon Steel Pipes and Tubes From
Turkey: Final Results of Countervailing Duty Administrative Review, 77 Fed. Reg. 46,713 (Dep’t
Commerce Aug. 6, 2012)). हzdemir contends that, though Commerce cited a previous usage of
24
See supra p.14, regarding CWP&T 1986 (the 1986 Final Affirmative Countervailing Duty
Determinations; Certain Welded Carbon Steel Pipe and Tube Products From Turkey, 51 Fed.
Reg. 1268).
Court No. 16-00206 Page 28
the 0.5 percent de minimis AFA threshold, it provided no reasoning in either the Final
Determination or the cited decision explaining why that threshold should apply. Pl.’s Br. at 30
(citing Wheatland Tube Co. v. United States, 161 F.3d 1365, 1369 (Fed. Cir. 1998); U.H.F.C. Co.
v. United States, 916 F.2d 689, 700 (Fed. Cir. 1990)).
Second, हzdemir argues that even if Commerce’s selection of the CWP&T 1986 14.01
percent rate as AFA was justified, it was nonetheless inconsistent with Commerce’s regulatory
criteria. Pl.’s Br. at 30–31. हzdemir contends that the 1986 program was not a “match, based on
program type and treatment of the benefit.” IDM at 7. $FFRUGLQJWRह]GHPLUWKH³WUHDWPHQW´RI
a benefit refers to its attribution, which is fundamentally different between an export subsidy and
a domestic subsidy. Pl.’s Reply at 8. Specifically, the 1986 Export Tax Rebate program was an
export subsidy, rather than a domestic subsidy, attributed only to export sales rather than total
VDOHV 3O¶V %U DW 3HU ह]GHPLU ³>W@KH EHQHILW IURP DQ H[SRUW VXEVidy is attributed to a
company’s export sales only, while the benefit from a domestic subsidy is attributed to a
company’s total sales.” Pl.’s Reply at 8 (citing 19 C.F.R. § 351.525(b)(2)–(3) (2015)). 25
7KH FRXUW FRQVWUXHV ह]GHPLU¶V DUJXPHQW DV DQ assertion that Commerce acted in an
arbitrary and capricious fashion, and thus, not in accordance with law. When determining whether
Commerce’s interpretation and application of the statute is in accordance with law, this Court must
consider “whether Congress has directly spoken to the precise question at issue,” and, if not,
whether the agency’s interpretation of the statute is reasonable. Apex Frozen Foods Private Ltd.
v. United States, 862 F.3d 1337, 1344 (Fed. Cir. 2017) (quoting Chevron U.S.A. Inc. v. Natural
25
)XUWKHUPRUH ह]GHPLU DUJXHV WKDW XQGHU WKH IRXUWK DOWHUQDWLYH UHVSRQGHQWV FRXOG QRW
“conceivably” use that program, as it was terminated nearly 30 years ago; if the rate could not
“conceivably” be used under the fourth alternative, it could certainly not be “similar” under the
third alternative. Pl.’s Br. at 31; Pl.’s Reply at 2.
Court No. 16-00206 Page 29
Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984)). If the Court determines that the statute is
silent or ambiguous with respect to the specific issue, then the traditional second prong of the
Chevron analysis asks what level of deference is owed Commerce's interpretation. Chevron, 467
U.S. at 842–43; see United States v. Mead Corp., 533 U.S. 218, 228 (2001). “Chevron requires us
to defer to the agency's interpretation of its own statute as long as that interpretation is reasonable.”
Koyo Seiko Co., Ltd. v. United States, 36 F.3d 1565, 1573 (Fed. Cir. 1994); see Kyocera Solar,
Inc. v. United States Int'l Trade Comm'n, 844 F.3d 1334 (Fed. Cir. 2016).
The court notes that under the plain text of 19 U.S.C. § 1677e(d), added to the statute by
the TPEA, Commerce has broad discretion to “use a countervailable subsidy rate applied for the
same or similar program in a countervailing duty proceeding involving the same country,” and to
“apply any of the countervailable subsidy rates or dumping margins specified under that paragraph,
including the highest such rate or margin.” No party has contended that this language is
ambiguous. In the context of Commerce’s execution of its statutory mandates, “reviewing courts
must accord deference to the agency in its selection and development of proper methodologies.” 26
Thai Pineapple Pub. Co. v. United States, 187 F.3d 1362, 1365 (Fed. Cir. 1999) (citing Daewoo
Elecs. Co. v. Int'l Union of Elec. Elec., Tech., Salaried & Mach. Workers, AFL-CIO, 6 F.3d 1511,
1516 (Fed. Cir. 1993)). To the extent that the statutory language poses some ambiguity ripe for
interpretation, “[o]ur review centers on whether the agency's interpretations of statutes and
regulations it administers are reasonable.” Thai Pineapple, 187 F.3d at 1365 (citing Chevron, 467
U.S. at 844; Daewoo, 6 F.3d at 1516).
26
The parties do not dispute the validity of Commerce’s established AFA rate selection hierarchy,
Pl.’s Br. at 27–28, Def.’s Br. at 15–16, but only whether Commerce adhered to it in the underlying
proceeding. See Essar Steel, Ltd. v. United States, 753 F.3d 1368, 1373–74 (Fed. Cir. 2014).
Court No. 16-00206 Page 30
हzdemir presents no binding authority to support the proposition that Commerce is bound
to a practice of treating programs with ad valorem subsidy rates below 0.005 percent, but not
DERYH DV GH PLQLPLV IRU WKH SXUSRVH RI VHOHFWLQJ $)$ UDWHV 1RU GRHV ह]GHPLU RIIHU
determinations by Commerce evidencing that practice. See SKF USA Inc. v. United States, 263
F.3d 1369, 1382 (Fed. Cir. 2001) (“[A]n agency action is arbitrary when the agency offer[s]
insufficient reasons for treating similar situations differently.”), aff’d, 332 F.3d 1370 (Fed. Cir.
2003). Commerce, however, cited to a previous determination explicitly stating, twice, the
agency’s practice of treating programmatic rates of 0.5 percent or less ad valorem as de minimis.
IDM at 7 n.26 (citing Pre-Stressed Concrete Steel Wire Strand from the People's Republic of
China: Final Affirmative Countervailing Duty Determination, 75 Fed. Reg. 28,557 (Dep’t
Commerce May 10, 2010) and accompanying IDM at “1. Grant Under the Tertiary Technological
Renovation Grants for Discounts Program,” “2. Grant Under the Elimination of Backward
Production Capacity Award Fund.” (“[A]ll previously calculated rates for grant programs from
prior China CVD investigations have been de minimis (e.g., less than 0.5 percent ad valorem).”)).
Thus Commerce’s application of the 0.5 percent threshold was not inconsistent with prior agency
practice, and was not arbitrary and capricious, or discordant with law, on those grounds.
The court also finds unavailing ह]GHPLU¶V VXEVLGLDU\ DUJXPHQW WKDW &RPPHUFH GLG QRW
sufficiently justify the usage of a 0.5 percent de minimis threshold. Commerce did provide a
justification of applying that threshold in the same paragraph to which it appended a footnote
characterizing the threshold as its normal practice. IDM at 6–7 n.26. Specifically, the purpose of
skipping over de minimis rates, and therefore in applying the 0.5 percent de minimis threshold in
the contest of AFA rate selection, is “to ensure that the result is sufficiently adverse ‘as to effectuate
the statutory purposes of the AFA rule to induce respondents to provide [Commerce] with
Court No. 16-00206 Page 31
complete and accurate information in a timely manner.’” IDM at 6 (quoting Notice of Final
Determination of Sales at Less than Fair Value: Static Random Access Memory Semiconductors
From Taiwan, 63 Fed. Reg. 8909, 8932 (Dep’t Commerce Feb. 23, 1998)). Commerce intends
that this practice will ensure “that the party does not obtain a more favorable result by failing to
cooperate than if it had cooperated fully.” IDM at 6 (quoting SAA at 870). “Commerce has wide,
though not unbounded, discretion ‘to select adverse facts that will create the proper deterrent to
non-cooperation with its investigations and assure a reasonable margin.’” Papierfabrik, 843 F.3d
at 1380 (quoting De Cecco, 216 F.3d at 1032). Indeed, Commerce’s methodology here, consistent
with the TPEA at 19 U.S.C. § 1677e(d)(1)–(2), has been sustained by the Federal Circuit as
permissible, under the previous iteration of the statute. Essar Steel, Ltd. v. United States, 753 F.3d
1368, 1373–74 (Fed. Cir. 2014). Even under the previous iteration of the statute, where AFA rates
were to “be a reasonably accurate estimate of the respondent's actual rate,” there was too expected
“some built-in increase intended as a deterrent to noncompliance.” Id. at 1373 (quoting De Cecco,
216 F.3d at 1032). Under that framework, Commerce’s decision to disregard ह]GHPLU¶VGHVLUHG
AFA rate of 0.01 percent ad valorem, derived from the Final OCTG determination, 79 Fed. Reg.
41,964, was reasonable, and in accordance with law. 27
The court turns to हzdemir’s argument that Commerce is invalidly applying a new standard
in selecting a “similar” program for AFA purposes, Pl.’s Br. at 31, and finds it unpersuasive.
हzdemir contends that Commerce’s practice of determining similarity on the basis of relevant
subsections of 19 C.F.R. §§ 351.504–20, as represented in SolarWorld Americas, Inc. v. United
27
To the extent that Commerce’s application of 0.5 percent as the AFA threshold, or its selection
of the highest available rate over that threshold, in the context of the proceedings at issue, also
raises a question of factual support, the court finds that these decisions were supported by
substantial evidence on the record.
Court No. 16-00206 Page 32
States, 41 CIT ___, ___, 229 F. Supp. 3d 1362, 1368 (2017), conflicts with the agency’s similarity
determination in this case. Most significantly, SolarWorld does not interpret the relevant statutory
provision, 19 U.S.C. § 1677e(d), which was added by the TPEA. Section 1677e(d)(1)(A)(i)
permits Commerce to “use a countervailable subsidy rate applied for the same or similar program
in a [CVD] proceeding involving the same country.” The “similar” qualifier is undefined, and it
is within Commerce’s purview to effectuate it and give it meaning. The court asks “whether the
agency's interpretations of statutes and regulations it administers are reasonable.” Thai Pineapple,
187 F.3d at 1365 (citing Chevron, 467 U.S. at 844; Daewoo, 6 F.3d at 1516). From the statute’s
structure, it is patent that Commerce is entitled to interpret “similar,” as the following subsection,
(ii), provides that “if there is no same or similar program, [Commerce may] use a countervailable
subsidy rate for a subsidy program from a proceeding that [Commerce] considers reasonable to
use.” 19 U.S.C. § 1677e(d)(1)(A). This language indicates a Congressional judgment that
Commerce will determine whether a subsidy program is similar, and even if none is found, the
agency will hDYHGLVFUHWLRQWRDSSO\D³UHDVRQDEOH´UDWHIURPDQRWKHUSURJUDPह]GHPLUSUHVHQWV
no binding precedent that would compel this court to remand Commerce’s determination for
insufficient explanation of similarity, let alone precedent directing this court to read § 1677(d) less
deferentially to Commerce’s discretion than the provision’s text provides. “[U]nder Chevron, an
agency can only reject a prior interpretation of an ambiguous statute if it explains why it is doing
so.” Mid Continent Nail Corp. v. United States, 846 F.3d 1364, 1382 (Fed. Cir. 2017). ह]GHPLU
has presented no prior interpretation by Commerce of the word “similar” in the context § 1677e(d)
against which the court could construe the agency’s current interpretation. 28
28
Because the court holds that Commerce’s selection of an AFA rate in accordance with the third
tier of methodology was reasonable and in accordance with law, the court does not address
हzdemir’s contention that Commerce impermissibly applied a rate that could not have
“conceivably” been used because it was terminated well prior to the underlying proceeding. Pl.’s
Court No. 16-00206 Page 33
Further, SolarWorld does not necessarily stand for the proposition that a subsidy which is
or could be classified under a given subsection of § 351 cannot be “similar,” for the purposes of
AFA rate selection, to a subsidy which is or could be classified under a different subsection of §
351. Indeed, SolarWorld cites Commerce’s statement that it “does not look at the ‘next most
similar program.’” 229 F. Supp. 3d at 1368. Assuming arguendo that SolarWorld does support
ह]GHPLU¶VLQWHUSUHWDWLRQह]GHPLUKDVIDLOHGWRHVWDEOLVK that the 1986 Export Tax Rebate program
falls under a subsection of § 351 such that it is bereft of similarity to the EFPT program, which
falls under § 351.509, for AFA rate selection purposes. See Pl.’s Br. at 19–20. Indeed, at the time
of the CWP&T 1986 proceeding, the subsidy identification regulatory regime under 19 C.F.R. §§
351.504–20 was not in force. In the instant case, Commerce looked to the foreign government’s
treatment of the benefit in determining whether it is a “similar” program. On the record, it was
well within Commerce’s discretion to conclude that where the two programs are both tax
programs, a sufficient nexus of similarity was established. In sum, Commerce is statutorily
authorized to determine, and did reasonably determine, what constitutes similarity for the purposes
RI $)$ UDWH VHOHFWLRQ DQG ह]GHPLU¶V DUJXPHQW that Commerce must apply some different
standard, without textual or precedential support, is unavailing.
3. Commerce Corroborated the AFA Rate to the Extent Practicable, with the Support
of Substantial Evidence and in Accordance with Law.
Br. at 31. This argument implicates the fourth tier of Commerce’s AFA rate selection
methodology, where “[a]bsent an above-de minimis subsidy rate calculated for a similar program,
[Commerce] applies the highest calculated subsidy rate for any program otherwise identified in a
CVD case involving the same country that could conceivably be used by the non-cooperating
companies.” IDM at 6 (citing 75 Fed. Reg. 28,557; Lightweight Thermal Paper from the People's
Republic of China: Final Affirmative Countervailing Duty Determination, 73 Fed. Reg. 57,323
(Dep’t Commerce Oct. 2, 2008), and accompanying IDM at “Selection of the Adverse Facts
Available Rate.”).
Court No. 16-00206 Page 34
हzdemir argues that Commerce failed to corroborate the 14.01 percent rate, which the
agency must do “to the extent practicable, . . . from independent sources that are reasonably at [its]
disposal,” whenever it uses “secondary information other than information obtained in the course
of an investigation.” Pl.’s Br. at 32 (quoting 19 U.S.C. § 1677e(c)(1)). हzdemir contends that the
CWP&T 1986 Export Tax Rebate program is not relevant because it is not similar to the EFPT
program based upon treatment of benefit. Pl.’s Br. at 33. Furthermore, tRह]GHPLU&RPPHUFH¶V
application of a terminated program as AFA means “that Commerce did not evaluate probative
value (relevance) with a full review of its own files.” Pl.’s Reply at 3.
हzdemir additionally argues that “Commerce must select secondary information that has
some grounding in commercial reality.” Gallant Ocean (Thai.) Co. v. United States, 602 F.3d
)HG&LU ह]demir contends that, though the TPEA removed any statutory
requirement “to demonstrate that the countervailable subsidy rate . . . reflects an alleged
commercial reality of the interested party,” commercial reality remains relevant as it pertains to
industry-wide or program-wide considerations. Pl.’s Br. at 32. हzdemir argues that on a program-
wide basis, the 14.01 percent rate is far removed from the commercial reality of any alleged EFPT
program benefits, which are typically far smaller than that amount. Pl.’s Br. at 33.
7RWKHH[WHQWWKDWह]GHPLUcontends that Commerce’s verification was not performed in
accordance with law, that argument fails. As explained supra, Commerce is empowered to
formulate the methodologies it uses to execute its statutory mandates. Thai Pineapple, 187 F.3d
at 1365. In this case, as noted, the statute requires that Commerce “shall, to the extent practicable,
corroborate [secondary information] from independent sources that are reasonably at [its]
disposal.” 19 U.S.C. § 1677e(c)(1). “Corroborate means that the [Commerce] will satisfy [itself]
Court No. 16-00206 Page 35
that the secondary information to be used has probative value.” SAA 29 at 870. “The statute does
not prescribe any methodology for corroborating secondary information . . . .” Mittal Steel Galati
S.A. v. United States, 31 CIT 730, 734, 491 F. Supp. 2d 1273, 1278 (2007), appeal dismissed, 253
F. App’x 19 (2007). Commerce states that it “will, to the extent practicable, examine the reliability
and relevance of the information to be used.” IDM at 8. ह]GHPLU KDV SURIIHUHG QR DXWKRULW\
demonstrating -- and this court does not conclude -- that on its face Commerce’s methodology is
unreasonable or not in accordance with law.
To WKHH[WHQWWKDWह]GHPLU attacks Commerce’s findings regarding probative value for lack
of substantial evidence support on the record, the court is again unpersuaded. Substantively,
corroboration by Commerce requires satisfaction that the secondary information to be used, here
the AFA rate from the CWP&T 1986 proceeding, has probative value. SAA at 870. Commerce
demonstrates probative value by “demonstrating the rate is both reliable and relevant.” Ad Hoc
Shrimp Trade Action Comm. v. United States, 802 F.3d 1339, 1354 (Fed. Cir. 2015). Critically,
as noted, Commerce is charged with corroborating AFA rates selected from secondary information
“to the extent practicable,” and with “independent sources reasonably at [its] disposal.” 19 U.S.C.
§ 1677e(c)(1). No more is required. Commerce explained that its corroboration was
circumscribed by “the lack of certain record information concerning the programs under
investigation,” and, generally, the lack of “independent sources for data on company-specific
benefits resulting from countervailable subsidy programs.” IDM at 8. Commerce, empowered to
craft methodology to execute its statutory mandate, thus confronted these limitations by reviewing
information concerning Turkish subsidy programs in other cases. Id. Under those circumstances,
Commerce determined that the CWP&T 1986 rate was relevant because it was similar, in the sense
29
Regarding the SAA, see supra p. 9 & n.8.
Court No. 16-00206 Page 36
of 19 U.S.C. § 1677e(d)(1)(A)(i), to the EFPT program at issue. Id. Commerce’s interpretation
of the term “similar” is permissible and entitled to deference. Accordingly, here its analysis of
relevance for the purposes of probative value and corroboration, performed “to the extent
practicable,” is supported by substantial evidence. Commerce determined that the CWP&T 1986
rate was reliable because it was “calculated in . . . previous Turkey CVD investigations or
administrative reviews.” IDM at 8. Under the limitations articulated by the agency, and under the
statutory standard, Commerce’s statement regarding reliability served the purposes of
corroboration “to the extent practicable.” 19 U.S.C. § 1677e(c)(1). हzdemir has not provided
binding authority that would impose on Commerce a corroboration standard stricter than that
identified in the statute and the legislative history. See § 1677e(c)(1); SAA at 869–70. For these
reasons, on the facts before the court, Commerce’s corroboration of its selected AFA rate, as well
as its explanation of the probative value thereof, IDM at 8, was reasonable, and supported by
substantial evidence.
Additionally, हzdemir’s commercial reality argument fails because it is contrary to plain
statutory language. ह]GHPLU¶VFDVHODZFLWDWLRQV, which interpret a prior version of the statute, do
not persuade this court to read the current iteration of the statute contrarily to its unambiguous text.
Commerce “is not required, for the purposes of subsection (c),” which covers corroboration of
secondary information, “or for any other purpose . . . to demonstrate that the countervailable
subsidy rate . . . [used] reflects an alleged commercial reality of the interested party.” 19 U.S.C. §
1677e(d)(3) (emphasis added). As the current statute disclaims any obligation to consider an
interested party’s alleged commercial reality “for any . . . purpose,” there exists no basis upon
which to conclude that such an analysis remains relevant with regard to industry-wide or program-
ZLGHFRQVLGHUDWLRQVDVह]GHPLUDUJXHV3O¶V%UDW; see Fresh Garlic Producers Ass'n v. United
Court No. 16-00206 Page 37
States, 39 CIT ___, ___, 121 F. Supp. 3d 1313, 1329 (2015) (comparing TPEA § 502(d)(3), 129
Stat. at 384, with Gallant Ocean, 602 F.3d at 1324). Commerce’s decision not to rely on an
interested party’s “alleged commercial reality,” § 1677e(d)(3), IDM at 5, when selecting an AFA
rate was thus made in accordance with law. 30
C. &RPPHUFHGLGQRW7UHDWह]GHPLULQDQ$UELWUDU\DQG&DSULFLRXV)DVKLRQYLV-à-vis the
Property Tax Exemption.
हzdemir also asserts that Commerce treated it differently from similarly situated
respondents so as to constitute arbitrary and capricious behavior. Pl.’s Br. at 33 (citing SKF, 263
F.3d at 1382 ह]GHPLUSRLQWVWR&RPPHUFH¶VLQYHVWLJDWLRQRIUHLQIRUFLQJEDUIURP7XUNH\
Pl.’s Br. at 34 (citing Steel Concrete Reinforcing Bar From the Republic of Turkey: Final
Affirmative Countervailing Duty Determination Final Affirmative Critical Circumstances
Determination, 79 Fed. Reg. 54,963 (Dep’t Commerce Sept. 15, 2014) and accompanying IDM
(“Rebar from Turkey”)). In that proceeding, Turkish respondent Içdas reported that it had received
no benefits under the “lump-sum” program, which allowed respondents to deduct 0.5 percent of
their foreign exchange income from taxable income for tax purposes, only for Commerce to
discover at verification that Içdas had received this benefit in the POI. Id. Commerce therefore
determined that Içdas had failed to cooperate, and applied AFA. Id. However, Commerce
explained that “[t]he Deductions for Taxable Income for Export Revenue program is well known
30
7RWKHH[WHQWह]GHPLUDUJXHVWKDW&RPPHUFH¶VGHWHUPLQDWLRQZDVQRWVXSSRUWHGE\VXEVWDQWLDO
evidence because the agency did not address an alleged commercial reality in any respect, the court
disagrees, and holds that Commerce’s determination was supported by substantial evidence. The
operative point is that under the statute, Commerce need not analyze, or make any findings
regarding, an alleged commercial reality. 19 U.S.C. § 1677e(d)(3)(B). As no record support, let
alone the support of substantial evidence on the record, is required to buttress Commerce’s
GHWHUPLQDWLRQDQ\DUJXPHQWEDVHGRQODFNRIUHFRUGVXSSRUWRQWKDWEDVLVPXVWIDLOह]GHPLUKDV
offered no precedent or binding authority holding otherwise.
Court No. 16-00206 Page 38
to the Department, having examined, verified, and countervailed it in numerous Turkey CVD
cases.” Id. Commerce calculated an AFA benefit of 0.10 percent. Id. ह]GHPLUDUJXHVWKDWKHUH
as in Rebar from Turkey, Commerce is familiar with the program at issue, having countervailed
the EFPT program on numerous occasions, and that the record contains all information required
to calculate the amount of the benefit. Pl.’s Br. at 34. 3HUह]GHPLUWKHGLIIHUHQFHKHUHLVWKDW
हzdemir reported the non-use of the program, and Commerce verified that non-use, while in Rebar
from Turkey, Commerce discovered the respondent’s affirmative use of the program at issue
during verification. Id. at 35. Altogether, ह]GHPLUDUJXHVWKDW “while Commerce filled the gap in
the record for Içdas based upon the maximum possible benefit and record information about Içdas,
Commerce here disregarded its institutional knowledge and record evidence, and instead sought
WKHKLJKHVWUDWHLWFRXOGILQGWRLPSRVHRQह]GHPLU´ Id.
The court does not find this argument persuasive. While Rebar from Turkey involved a
Turkish respondent and a subsidy program that was “well known to [Commerce],” insofar as it
KDGEHHQFRXQWHUYDLOHGQXPHURXVWLPHVEHIRUHKDQGह]GHPLUIDLOVWRHVWDEOLVKWKDW&RPPHUFH¶V
treatment of respondent Içdas constitutes a practice to which the agency must now be bound. That
the operative statutory provisions, to wit, § 1677e(b), (c), were modified, and, in the case of (d),
added, further defeats the contention that the two situations are sufficiently similar so as to bind
Commerce’s behavior in the latter investigation to that in the former. SKF, 263 F.3d at 1382.
Even if Rebar from Turkey could be considered a “similar situation” to the underlying proceeding
for the purposes of an arbitrariness analysis, the record does express “[]sufficient reasons” for
&RPPHUFH¶V$)$VHOHFWLRQDQGDSSOLFDWLRQWRह]GHPLUSKF, 263 F.3d at 1382. As described
supra, under the new statutory standard imposed by the TPEA amendments, Commerce’s AFA
Court No. 16-00206 Page 39
selection methodology, and ultimate selection, were supported by substantial evidence and made
in accordance with law.
II. Commerce’s Benchmark Calculation was Not Supported by Substantial Evidence
and in Accordance with Law.
As noted, also before the court is हzdemir’s contention that Commerce’s inclusion of two
particular land parcels -- namely, those located in Istanbul and Yalova Altinova (“Yalova”) -- in
the Land for LTAR benchmark, is unsupported by record evidence and contrary to law. Citing 19
U.S.C. § 1677 and 19 C.F.R. § 351.511, the Government argues that Commerce’s usage of its
“preferred benchmark: publicly available, market-determined prices from industrial land sales
between private parties in Turkey,” was supported by substantial evidence. Def.’s Br. at 21–22
(citing IDM at 15).
As set forth, supra pp.3–4, to determine whether a foreign government provided a subsidy,
Commerce must determine whether a government authority provides a specific financial
contribution to a person and a benefit is conferred. 19 U.S.C. § 1677(5)(B). In determining
whether a benefit is conferred, the statute provides that “a benefit shall normally be treated as
conferred where there is a benefit to the recipient, including . . . if such goods or services are
provided for less than adequate remuneration.” 19 U.S.C. § 1677(5)(E)(iv). The adequacy of
remuneration is determined in relation to prevailing market conditions in the country that is subject
to the investigation. “Prevailing market conditions include price, availability, marketability,
transportation, and other conditions of purchase or sale.” 19 U.S.C. § 1677(5)(E).
Consistent with the statute, Commerce’s regulations set forth the basis for identifying
appropriate market-determined benchmarks for measuring the adequacy of remuneration for
government-provided goods. 19 C.F.R. § 351.511. Where feasible, Commerce should “compar[e]
the government price to a market-determined price for the good . . . resulting from actual
Court No. 16-00206 Page 40
transactions in the country in question.” Id. § 351.511(a)(2)(i). When market-determined prices
are unavailable or unusable, Commerce will resort to comparison to a world market price; if a
world market price is also unavailable, Commerce may assess “whether the government price is
consistent with market principles.” Id. § 351.511(a)(2)(ii)–(iii).
When Commerce uses an actual transaction price or a world market price, it will “adjust
the comparison price to reflect the price that a firm actually paid or would pay if it imported that
product,” including “delivery charges and import duties.” 19 C.F.R. § 351.511(a)(2)(iv). “[T]his
practice ensures that the Department engages in a fair comparison between the government price
and the price that a company ‘would pay if it imported the product.’” United States Steel Corp. v.
United States, 33 CIT 1935, 1946 (2009) (quoting 19 C.F.R. § 351.511(a)(2)(iv)).
As noted, to calculate the land benchmark in the investigation here, Commerce used its
preferred benchmark: publicly available, market-determined prices from industrial land sales
between private parties in Turkey. IDM at 15. Specifically, Commerce used land parcels under
the category “Investment Land for Industrial Facilities,” a designation that corresponds to land
suitable for production of subject merchandise. Id. at 28. To derive an average price from all the
parcels, Commerce stated that it moderated any differences in the infrastructure levels of the land
parcels, and claims that it satisfied the comparability requirements of 19 C.F.R. § 351.511.
हzdemir argues that Commerce’s decision to include allegedly anomalous prices with the
benchmark for land valuation is unsupported by record evidence and not in accordance with law.
Pl.’s Br. at 35. “When confronted with a colorable claim that the data that Commerce is
considering is aberrational, Commerce must examine the data and provide a reasoned explanation
as to why the data it chooses is reliable and non-distortive.” Mittal Steel Galati S.A. v. United
States, 31 CIT 1121, 1135, 502 F. Supp. 2d 1295, 1308 (2007). Here, Commerce included a total
Court No. 16-00206 Page 41
of fourteen advertisements for sale of land parcels in Turkey in 2009 and 2010 (listed in descending
price order in the table, below), and used the simple average of 89.62 TL/m2 as the benchmark:
Benchmark Land Price Data
Price (TL/m2)
Indexed to 2008
L ti
Istanbul 512.17
Yalova Altinova 304.90
Gaziantep 67.09
Gaziantep 66.67
Gaziantep 59.09
Kirklarei 51.22
Kirklarei 42.35
Kirklarei 36.58
Kirklarei 36.58
Ankara 26.01
Tekirdag Corlu 23.47
Tekirdag Corlu 14.42
Tekirdag Corlu 11.29
Gaziantep 2.87
Simple Average TL/m2 Price 89.62
Özdemir argues that Commerce should not include parcels of land located in highly
developed provinces, such as Yalova and Istanbul, because these properties are highly priced and
anomalous vis-à-vis prices in areas outside of Istanbul and Yalova. Pl.’s Br. at 41.
Özdemir further argues that Commerce’s analysis of the types of properties being
compared is based entirely upon petitioners’ speculative statements. Pl.’s Br. at 42. Specifically,
Özdemir contends that “Commerce’s analysis is not based upon record evidence, however, but
rather on petitioner’s unsupported speculation about land values in Turkey.” Id. Özdemir takes
issue with Commerce’s reliance on petitioners’ arguments:
We agree with the petitioners that the mere fact that past or current
usage of the Istanbul and Yalova parcels was ‘agricultural’ does not
undermine comparability for benchmarking purposes. What
matters, as the petitioners correctly implied, is the usage for which
these parcels were being offered on the market for future use.
Specifically, these parcels were being offered for industrial
Court No. 16-00206 Page 42
development and, for that purpose, were classified as ‘investment
land for industrial facilities.’ This puts them in essentially the same
category in the land market as the other parcels in the benchmark,
and in deriving an average price from all the parcels, we thereby
moderate any differences in, e.g., the levels of infrastructure
development, maintaining a reasonable level of comparability that
satisfies the requirements of 19 C.F.R. § 351.511.
Pl.’s Br. at 38–39 (quoting IDM at 28).
7KH FRXUW LV SHUVXDGHG E\ ह]GHPLU¶V DUJXPHQWV WKDW, based on the facts in the record,
Commerce’s creation of the land benchmark is deficient. Commerce must consider relevant record
evidence in determining the comparability of land parcels it uses in creating a reasonable
benchmark that lacks distortive pricing. See 19 C.F.R. § 351.511(a)(2)(i) (“In choosing such
transactions or sales, [Commerce] will consider product similarity; quantities sold, imported, or
auctioned; and other factors affecting comparability.”).
The land price data for Istanbul (512.17) and Yalova (304.90) deviate substantially from
the land price data associated with the other parcels. As Özdemir points out, the Istanbul and
Yalova property values are 571 percent and 340 percent, respectively, of the average of all fourteen
parcels; they are 763 percent and 454 percent, respectively, of the next-highest-priced parcel
(67.06 TL/m2); and, when the highest two and lowest three parcel prices are removed, the Istanbul
and Yalova parcels are 1127 percent and 671 percent of the 45.45 TL/m2 average of the remaining
nine parcels. 7KHFRXUWLVVDWLVILHGWKDWह]GHPLU¶VDUJXPHQWWKXV constitutes at least a “colorable
claim that the data that Commerce is considering is aberrational.” Mittal Steel Galati S.A., 502 F.
Supp. 2d at 1308. Regarding the “publicly available information concerning industrial land prices
in Turkey [used] for purposes of calculating a comparable commercial benchmark price for land
available in Turkey,” Commerce summarily states that it
found that the selected land prices, including those of the Yalova and Istanbul parcels,
Court No. 16-00206 Page 43
“serve as comparable commercial benchmarks under 19 CFR 351.511(a)(2)(i).” IDM at 15.
Commerce also states that it effectively moderates any differences in the land parcels by
“deriving an average price from all the parcels.” IDM at 28. These concise statements do not
constitute a reasoned explanation as to why the data Commerce chose is reliable and non-
distortive, given the disparities noted supra, and in light of a colorable claim that the data are
aberrational. See Mittal Steel, 502 F. Supp. 2d at 1308. Nor does Commerce explain how precisely
a simple average of prices offsets the potentially distortive data which contributes to the derived
average.
7KH FRXUW WXUQV WR ह]GHPLU¶V DUJXPHQWV UHJDUGLQJ WKH SURSHUW\ ORFDWLRQ DQG OHYHO RI
development underlying the Yalova and Istanbul parcels. “As Commerce’s own benchmarking
method indicates, using ‘comparables’ of proximate parcels (e.g., in location, terrain, size,
features) is an accepted proposition for purposes of land and realty valuation.” Toscelik Profil Ve
Sac Endustrisi A.S. v. United States, 38 CIT ___, Slip Op. 14-126 at 14 n.14 (Oct. 29. 2014) (Not
Reported in F. Supp. 3d). It may be that land located in highly developed areas is worth several
times more than land in lesser developed areas in Turkey. See table supra. In light of the presence
of a colorable claim that the relevant price data is aberrational, Commerce’s summary statements
in the IDM do not carry the support of substantial evidence in the resolution of the question. See
IDM at 27. On remand, Commerce should consider, pursuant 19 C.F.R. § 351.511(a)(2), the
relevance of the locations, and the level of land development, of the Yalova and Istanbul parcels.
The court finally addresses ह]GHPLU¶VDUJXPHQWWKDW&RPPHUFHXQGXO\emphasizes future
use of the relevant properties, at the expense of their current and past uses. A reasonable person
interested in participating in a real estate transaction could believe that actual current or past use
are equally important as future use to consider in assessing the price of land offered in online
Court No. 16-00206 Page 44
advertisements. Conf. Joint App. Memo. To File, P.R. 200. Despite agreeing with petitioners’
implication, Commerce does not explain in the IDM why potential future use factors more
prominently in its analysis under 19 U.S.C. § 1677(5)(E)(iv) and 19 C.F.R. § 351.511(a)(2) than
past or current uses. IDM at 28. Commerce must explain its focus on a land parcel’s future use,
at least as advertised in regard to the relevant parcel. See Changzhou Wujin, 701 F.3d at 1377
(“The grounds upon which an administrative order must be judged are those upon which the record
discloses that its action was based.” (quoting SEC v. Chenery Corp., 318 U.S. 80, 87)).
The court does not take issue with the Government’s characterization that benchmark data
“need not – and rarely does – perfectly match the benefit it is used to measure.” Def. Br. at 23.
However, as to HDFKRIWKHIDFWXDOPDWWHUVKLJKOLJKWHGE\ह]GHPLU, and based on the record before
the court, Commerce has failed, in constructing and applying its land benchmark, to articulate a
rational connection between the facts it found and the choices it made. See Motor Vehicle Mfr.
Ass’n of the U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington
Truck Lines Inc. v. United States, 371 U.S. 156, 168 (1962)). “[I]t is the agency's responsibility,
not this Court's, to explain its decision,” and Commerce must do so based on the record before it.
Id. at 57. Commerce’s determination therefore lacks the support of substantial evidence on the
record. Maverick Tube, 857 F.3d at 1359.
The court thus remands this case for reconsideration and further explanation consistent
with the court’s opinion. If Commerce chooses to maintain its current position on remand, it must
explain why, specifically, the prices associated with the land sale data for the Yalova and Istanbul
provinces are not aberrational, and how its average price derivation successfully moderates the
land parcel price disparities. Commerce should consider the record as a whole in reaching its
conclusions regarding the comparability of those land parcels. See CS Wind, 832 F.3d at 1373
Court No. 16-00206 Page 45
(“The substantiality of evidence must take into account whatever in the record fairly detracts from
its weight.”); 19 C.F.R. § 351.511. Commerce must also explain whether the Yalova and Istanbul
parcels are located in a highly developed area of Turkey, as compared to other parts of Turkey,
and how Commerce’s findings with respect to that issue affect its overall analysis; and why future
usage of the relevant land parcels, as purported in online advertisements, is “what matters” under
19 U.S.C. § 1677(E)(iv) and 19 C.F.R. § 351.511. IDM at 28.
CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that हzdemir’s motion for judgment on the agency record is denied in part;
and it is further
ORDERED that Commerce’s determination regarding the Land for LTAR issue is
remanded for further consideration consistent with this opinion; and it is further
ORDERED that Commerce’s Final Determination is sustained in all other respects; and it
is further
ORDERED that Commerce shall file its remand determination with the court within 60
days of this date; and it is further
ORDERED that the parties shall have 30 days thereafter to file comments; and it is further
ORDERED that the parties shall have 15 days thereafter to file replies to comments on the
remand determination.
/s/ Gary S. Katzmann
Gary S. Katzmann, Judge
Dated:2FWREHU
New York, New York
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909 F.2d 213
134 L.R.R.M. (BNA) 3039, 116 Lab.Cas. P 10,258
AIR WISCONSIN PILOTS PROTECTION COMMITTEE, James M. Fenske,Gary M. Pelach, Richard J. Magiera, and Thomas K.Bly, Plaintiffs-Appellants,v.Clifford R. SANDERSON, Trustee and Acting Chairman of AirWisconsin Master Executive Council, et al.,Defendants-Appellees.
No. 89-3350.
United States Court of Appeals,Seventh Circuit.
Argued June 14, 1990.Decided July 30, 1990.
Harvey M. Silets, Susan W. Brenner, Silets & Martin, Chicago, Ill., Arthur M. Wisehart, Steven Lim, Wisehart & Koch, New York City, for plaintiffs-appellants.
Irving M. Friedman, Michael B. Erp, Katz, Friedman, Schur & Eagle, Chicago, Ill., Robert S. Savelson, Peter Herman, Cohen, Weiss & Simon, New York City, Thomas J. Kassin, Michael H. Campbell, Ford & Harrison, Atlanta, Ga., for defendants-appellees.
Before POSNER, FLAUM and KANNE, Circuit Judges.
POSNER, Circuit Judge.
1
Two officers of the Air Wisconsin Master Executive Council, a subordinate body of the Air Line Pilots Association, International ("ALPA"), together with two other Air Wisconsin pilots and an association that these four men have formed called the Air Wisconsin Pilots Protection Committee, have sued ALPA, and several individuals who are agents of ALPA, charging violations of the Railway Labor and Landrum-Griffin Acts. The individual defendants are trustees whom ALPA appointed to wrest control of the Air Wisconsin Master Executive Council from the plaintiffs. The district judge granted the defendants' motion for summary judgment and dismissed the suit.
2
The facts are not in dispute. In 1985 Air Wisconsin acquired by merger Mississippi Valley Airlines, a slightly smaller but basically similar airline. ALPA represented the pilots of both airlines in collective bargaining under the Railway Labor Act (which applies to airlines as well as to railroads), and each group of pilots had seniority rights based on the length of their service with their respective airline. The merger of the airlines required merger of the seniority lists. ALPA had previously issued a policy statement to govern the merger of seniority lists of pilots whom it represents. The statement directs each group of pilots to choose two representatives to negotiate the merger of the lists, and if the negotiations break down, as they did here, the dispute is to be submitted to a board of arbitrators whose award "shall be final and binding on all parties to the arbitration and shall be defended by ALPA."
3
Air Wisconsin's pilots wanted the seniority lists merged on the basis purely of length of service: the pilot hired earliest by either airline would have the greatest seniority in the post-merger Air Wisconsin, the next pilot to be hired by either airline would have the second greatest seniority, and so on down the line. Mississippi Valley's pilots wanted credit for the fact that, before the merger, their airline had been growing more rapidly than Air Wisconsin. The arbitrators split the difference. Their award, set forth in a lengthy document rich in a jargon unfamiliar to us, gave Mississippi Valley's pilots greater seniority than they would have obtained if only length of service had been considered, but less than they had asked for. Some, and probably a majority, of the pilots of the pre-merger Air Wisconsin were unhappy with the award, but none attempted to challenge it in court. Instead, some of them tried to replace ALPA as the collective bargaining representative of Air Wisconsin's pilots with a newly created union, since ALPA was committed by its policy statement to defending the arbitration award. In 1986 the National Mediation Board conducted an election pursuant to the Railway Labor Act to determine whether ALPA or the new union would represent Air Wisconsin's pilots for collective bargaining purposes. A majority of the pilots, presumably composed of a small minority of the pre-merger Air Wisconsin pilots plus an overwhelming majority of the former Mississippi Valley Airlines pilots, voted to retain ALPA.
4
Undaunted by this defeat, the disgruntled Air Wisconsin pilots decided to change the locus of their struggle to the Air Wisconsin Master Executive Council. ALPA does not have locals, but at each airline that it represents there is a committee, called the Master Executive Council, elected by the pilots of that airline. These committees are subordinate bodies of ALPA. Their powers are defined in ALPA's constitution and by-laws, and are various; for example, a proposal to call a strike may not be submitted to an airline's pilots unless first approved by the Master Executive Council for the airline. But their powers do not include the power to act as collective bargaining representative--ALPA itself is the bargaining representative of the pilots employed by ALPA-organized airlines. And the councils are forbidden to "initiate any action that is inconsistent with the Constitution and By-Laws or with the best interests of the Association or the general membership."
5
Unheeding of this prohibition the Air Wisconsin Master Executive Council, dominated by pilots of the pre-merger Air Wisconsin, sent a letter to all Air Wisconsin pilots enclosing a proposal to replace the merged seniority list created by the arbitration award with a list based on length of service--just as the representatives of the Air Wisconsin's pilots before the merger had proposed to the arbitrators--plus a secret ballot to be used to vote for or against the proposal. The cover letter stated that the proposal would "pass" if a majority of the ballots "ratified" it. Upon learning of this and related acts of defiance, ALPA placed the Master Executive Council in trusteeship. The suit claims that by thus squelching the Council's attempt to reopen the issue of seniority, ALPA violated its duty (imposed on collective bargaining representatives by interpretation of the Railway Labor Act) to represent Air Wisconsin's original pilots fairly; violated ALPA's constitution, by-laws, and policy statements; and violated the provisions of the Landrum-Griffin Act that govern trusteeships and that guarantee union members the right to vote and the right of free speech.
6
The suit was brought in 1987, and in 1989 the plaintiffs again failed in their effort to decertify ALPA as the collective bargaining representative of Air Wisconsin's pilots. They thus have struck out not only before the arbitrators but twice in the electoral marketplace. They have refused to call it quits and instead, in the characteristic style of modern Americans, have turned to the courts.
7
A union empowered by federal law to be the exclusive representative of a group of workers for purposes of bargaining with their employer over wages and over terms and conditions of employment has a correlative duty, fiduciary in character, to represent all members of the group fairly, that is, without favoritism, prejudice, or other discrimination. Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 909, 17 L.Ed.2d 842 (1967). ALPA satisfied that duty in this case, however, by establishing, long before the case arose, a fair process for determining seniority in an airline resulting from a merger. Representatives of the affected workers negotiate, and if they are unable to come to terms the matter is referred to arbitration. The plaintiffs disagree violently with the result of the arbitration in this case but have not pointed to any features of the process--whether the method of selecting the arbitrators, or their background, or the procedures they employed--as being unfair. More important, ALPA's belief that such arbitrations should be final and binding and its corollary that ALPA shall be obligated to defend them would not have prevented the pilots from challenging the arbitration award in court, if the award were infected by fraud or by a serious conflict of interest or were inconsistent with the terms of reference to arbitration. Brotherhood of Locomotive Engineers v. Atchison, Topeka & Santa Fe Ry., 768 F.2d 914, 921 (7th Cir.1985); Dreis & Krump Mfg. Co. v. International Ass'n of Machinists & Aerospace Workers, 802 F.2d 247, 253 (7th Cir.1986). (But they mounted no challenge.) ALPA's policy signifies only that if the award is valid, it is definitive so far as ALPA is concerned. The reason for the policy is not hard to see. If ALPA were free to ignore the merged seniority list, the employees of the post-merger airline would have very little job security; as a concomitant, disputes over seniority would fester--as they have done in this case, in which the plaintiffs are indirectly challenging the finality of the merged seniority list.
8
The system that ALPA has created for determining seniority in a merged work force is not biased in favor of one group of workers or prejudiced against another. It was as likely to yield an award in favor of Air Wisconsin's pilots as in favor of Mississippi Valley's. It is fair, and nothing more is required to comply with the duty of fair representation, since "so long as the union does not intentionally harm a member or class of members, it will be deemed to have represented its members fairly." Olsen v. United Parcel Service, 892 F.2d 1290, 1294 (7th Cir.1990). That the system ALPA has created places a good deal of power in the hand of arbitrators is not a sign of "unfairness" in the limited sense relevant to evaluating claims of breach of the duty of fair representation, especially since the alternative would be to encourage continuing and acrimonious disputes among workers by opening seniority to continual revision. It is not in the interest of organized labor to incite workers to fight among themselves over job rights. Nor is it in the workers' own interest, behind the veil of ignorance, that is, before they know whether they have been the winner or loser of the arbitration. Here as elsewhere finality serves important social purposes and we certainly cannot pronounce ALPA unfair for giving the arbitrators' determination of seniority as much finality as it has done.
9
The plaintiffs argue with great vigor that since it is a violation of the duty of fair representation to discriminate against a minority, Steele v. Louisville & Nashville R.R., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944), it is all the more certainly a violation to discriminate against a majority; the pilots employed by Air Wisconsin before the merger constituted a majority of the pilots of the airline resulting from the merger, and therefore their preference in the matter of seniority should have been honored. With respect, this is a very poor argument. Minority rights imply a limitation on the rights of the majority; hence the latter rights cannot be derived from the former, as the plaintiffs would have us do. What is more, it was the arbitrators, not ALPA, that overrode majority preferences. The system whereby disputes over seniority are referred to arbitration is not slanted against majority preferences except insofar as any method of dispute resolution other than majority vote of the disputants may be said to be slanted against such preferences. And it is indeed the system for resolving such disputes that the plaintiffs are attacking, or at least should be attacking. If the system is fine and only the specific arbitration award is improper, the plaintiffs are in the wrong forum. They should have challenged the award in court when it was rendered, as in Beardsly v. Chicago & North Western Transportation Co., 850 F.2d 1255, 1270-71 (8th Cir.1988). As we shall see, such a challenge is now time barred.
10
It cannot be said too often that the judicial remedies available to employees unhappy with their collective bargaining representative are highly limited. Antrim v. Burlington Northern, Inc., 847 F.2d 375, 378 (7th Cir.1988); Dober v. Roadway Express, Inc., 707 F.2d 292, 294 (7th Cir.1983). If the employees don't like the union that represents them, they can vote it out, id. at 295, as in fact the plaintiffs in this case have twice tried to do. Majority preferences are secured in this as in many cases by the franchise, Le'Mon v. NLRB, 902 F.2d 810, 814 (10th Cir.1990); Gorski v. Local Union 134, 636 F.Supp. 1174, 1181 (N.D.Ill.1986), making all the more perverse the plaintiffs' argument that courts should be quicker to intervene to protect majorities than to protect minorities and inclining us to agree with those courts that have held that the duty of fair representation does not run to the majority. Le'Mon v. NLRB, supra, 902 F.2d at 814-15; NLRB v. Local 299, 782 F.2d 46, 50-52 (6th Cir.1986).
11
We do not wish to sound starry-eyed about democracy. We realize that majority rule is not always efficacious and that majority preferences sometimes, perhaps often, are thwarted by the machinations of interest groups; and these and other systemic problems with aggregating preferences by voting are not touched by the efforts of the Landrum-Griffin Act, of which more later, to democratize union governance. But in general, and so far as we know also in the specific setting of collective bargaining representation in the airline industry, a majority is better protected by the electoral process than a minority is. It is therefore the minority that has the more legitimate fear concerning the behavior of the collective bargaining representative. That is why the legal duty of fair representation is oriented toward the concerns of minorities, whether a racial minority systematically discriminated against by the union or a group of dissidents on the outs with the union leadership whom the leadership seeks to punish or an individual worker with a grievance against the company whom the union deliberately and unjustifiably refuses to assist. This case has no flavor of any of these systematic failures of representation. The plaintiffs are unable to explain why, if ALPA is oppressing a majority of Air Wisconsin's pilots, the pilots have twice failed to vote ALPA out as their representative for collective bargaining.
12
We need not decide whether, if the plaintiffs and their allies ever succeed in ousting ALPA in favor of a union not pledged to defend the arbitrators' award, the matter of seniority can be reopened in collective bargaining negotiations with the airline, or otherwise revisited. The plaintiffs say the award became a provision of the collective bargaining agreement and expired when that agreement expired. We leave aside the merit of this contention beyond noting that an attempt by a majority of the employees in a collective bargaining unit to gang up against a minority of employees in the fashion apparently envisaged by the plaintiffs could itself be thought a violation of the duty of fair representation by the union that the majority used as its tool. Alvey v. General Electric Co., 622 F.2d 1279, 1289-90 (7th Cir.1980).
13
The plaintiffs' further claim that ALPA has violated its constitution, plus other enactments that give the members contractual entitlements, need not detain us too long. It is true that the constitution sets as a goal for ALPA the adoption of uniform principles of seniority, but this is preamble-like language in a document intended to set forth general principles rather than exact guidelines--a document that does not mention airline mergers at all. The language in question could not have been intended to bar ALPA from using arbitrators to determine seniority in merger situations and giving their determinations finality, especially when elsewhere the constitution empowers ALPA's executive board to interpret the constitution and (what is pretty much the same thing) establish policy for the union. It is true that the policy statement to which we referred earlier states that the "seniority of a pilot shall be based upon the length of service as a pilot with the Company," but this too is "preambular" language and does not appear in the section of the policy statement concerned with the merger of seniority lists when companies merge. The statement's arbitration provision governs there, and it implies that the arbitrators should consider such factors as type of equipment and route structure, along with date of hire and length of service. The directive concerning seniority within each company is intended, as the policy statement elsewhere makes clear, to facilitate the merger of seniority lists by preventing a situation from arising in which as a result of an airline merger a pilot of one of the pre-merger airlines might jump ahead of another pilot of the same airline in seniority. It is not intended to dictate the terms on which the lists shall be merged.
14
Despite what we have just said, there might be enough ambiguity in the documents to create a triable issue concerning ALPA's obligations to the employees of the post-merger airline but for two further considerations, each dispositive. The first is the principle that a union's interpretation of its own constitution, by-laws, and other promulgations is entitled to judicial deference; we must be able to call the interpretation unreasonable, perhaps even "patently unreasonable," before we can set it aside. Local Union No. 657 v. Sidell, 552 F.2d 1250, 1257 (7th Cir.1977); Millwright Local No. 1079 v. United Brotherhood of Carpenters & Joiners, 878 F.2d 960, 962 (6th Cir.1989); Loretangeli v. Critelli, 853 F.2d 186, 192 (3d Cir.1988); Newell v. International Brotherhood of Electrical Workers, 789 F.2d 1186, 1189 (5th Cir.1986). The reason is to protect the internal affairs of unions from heavy-handed judicial interference, and is consistent with what has become in the last half century a settled though not total aversion to federal judicial intervention in labor relations. Gustafson v. American Train Dispatchers' Ass'n, 788 F.2d 1284, 1287 (7th Cir.1986). There is no way in which ALPA's interpretation of the provisions bearing on the merger of seniority lists could be thought unreasonable.
15
Second, if the plaintiffs thought the arbitration award invalid because rendered in violation of the union's constitution and merger policy statement, the way to raise the point was to challenge the award in court, which they had six months to do. United Independent Flight Officers, Inc. v. United Air Lines, Inc., 756 F.2d 1262, 1269-73 (7th Cir.1985). They have mounted a collateral attack on the award without even trying to bring themselves within the narrow limits of the rules that permit such attacks.
16
On both counts they are barred from making breach of contract arguments that seem in any event to have no merit. We move therefore to the Landrum-Griffin issues, where again we can be brief. ALPA destroyed such independence as the Air Wisconsin Master Executive Council may have had by placing it in a trusteeship controlled by ALPA. 29 U.S.C. Sec. 462; International Brotherhood of Boilermakers v. Local Lodge 714, 845 F.2d 687 (7th Cir.1988). It did this because the council's officers had expressed their disagreement with ALPA's policy of defending the finality of arbitration awards that establish merged seniority lists and had acted on their disagreement by mailing to Air Wisconsin's pilots a proposal to cancel the award, together with a ballot for voting on the proposal. The creation of the trusteeship may seem, therefore, an act of retaliation for the exercise of the right of free speech. That right, however, insofar as it is sought to be asserted against a private entity such as ALPA, derives not from the First Amendment (a limitation on governmental, not private, action) but from the Landrum-Griffin Act itself, which confers on union members a right of free speech but subordinates it to "reasonable [union] rules as to the responsibility of every member toward the [union] as an institution and to his refraining from conduct that would interfere with its performance of its legal or contractual obligations." 29 U.S.C. Sec. 411(a)(2); see United Steelworkers of America v. Sadlowski, 457 U.S. 102, 111, 121 n. 16, 102 S.Ct. 2339, 2345, 2346 n. 16, 72 L.Ed.2d 707 (1982).
17
The quoted language might have been written with these plaintiffs in mind. They used their positions as officers of the Air Wisconsin Master Executive Council to interfere with ALPA's performance of its duty of collective bargaining on behalf of the airline's pilots and to undermine ALPA's contractual commitment (made in the policy statement on mergers) to defend the arbitrators' award. The Council is not the collective bargaining representative and has no authority either to adopt or even to bargain for the adoption of a new seniority list. The plaintiffs are free to express their views, as vociferously as they care to do, concerning the seniority list, without thereby forfeiting positions to which they have been elected, Sheet Metal Workers' Int'l Ass'n v. Lynn, 488 U.S. 347, 109 S.Ct. 639, 102 L.Ed.2d 700 (1989); but they are not entitled to continue to exercise a trust that they have abused. In asking Air Wisconsin's pilots to vote on a matter confided to another body (ALPA), the plaintiffs used their offices to subvert the policies and commitments of the union, and by thus undermining the union by deed and not just by word they passed out of the protective field of Landrum-Griffin's free-speech clause even as broadly defined in Lynn.
18
What we have said answers the remaining contentions, that the trusteeship was imposed for an improper, retaliatory purpose and that it abridged the union members' right to vote. Collective bargaining under the Railway Labor Act and the other federal labor statutes illustrates representative rather than participatory democracy. The union conducts the negotiations. The workers vote on whether to be represented and by which union, and on whether to ratify the agreement negotiated by their representative, and on other proposals by the representative such as a strike call; but once an agreement is in force they have no right to change it until it expires. This is another example of intelligent finality. The agreement has a term of years (normally three) and during that time the workers are bound by it.
19
The plaintiffs make some other contentions, concerning procedural details of the trusteeship, but they have no possible merit so we pass them by in silence. The judgment of the district court dismissing the suit was correct, and is
20
AFFIRMED.
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469 F.Supp. 14 (1977)
Karl KAHN, Jeffrey L. Henze, Karen Snelson, Adrian Rose, Donald J. Bessee, David Levine-McDonald, Natalia Shul, Rafael Espinoza, and Al Hart, in behalf of themselves and all other similarly situated members of Hotel and Restaurant Employees' and Bartenders International Union, Local Unions 44, 110, 41, 283 and 9, Plaintiffs,
v.
HOTEL AND RESTAURANT EMPLOYEES' AND BARTENDERS INTERNATIONAL UNION, Local Joint Board of Culinary Workers, Bartenders and Hotel Service Workers of San Francisco, Local Unions 44, 110, 41, 283 and 9, and the Executive Boards of each such union, Defendants.
No. C-75-1903-CBR.
United States District Court, N. D. California.
February 3, 1977.
*15 *16 Dan M. Siegel, Oakland, Cal., for plaintiffs.
Davis, Cowell & Bowe, Alan C. Davis, San Francisco, Cal., for defendants.
MEMORANDUM OF OPINION
RENFREW, District Judge.
This is a class action brought under the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. §§ 401 et seq., challenging the merger of five San Francisco union locals into one. Plaintiffs contend that defendants violated the terms of both the international union's constitution and the bylaws and constitution of each of the local unions; that defendant officers failed to meet their fiduciary duties under § 501 of the LMRDA, 29 U.S.C. § 501 ("Title V"); and that defendants violated § 101(a)(1) and (2) of the LMRDA, 29 U.S.C. § 411 ("Title I"), by denying certain union members their rights to free speech and to an equal vote.
Prior to October 1, 1975, culinary employees in the San Francisco area were represented by five different locals of the Hotel and Restaurant Employees' and Bartenders' International Union ("International").[1] By letter dated April 8, 1975, International President Edward T. Hanley advised the executive officers of each San Francisco local that all five organizations would be merged into a single local union.[2] Defendants' Exhibit 3. After being informed of Hanley's letter, the membership of each local union voted to authorize their officers and executive board to enter into a merger agreement. Shortly thereafter, Anthony Anselmo, Administrative Assistant to the International President, began conducting discussions to arrive at a satisfactory merger plan. On May 27, 1975, the officers and executive board of each local agreed to a "Memorandum of Understanding" concerning the proposed merger. Defendants' Exhibit 5.
*17 On May 30, 1975, President Hanley signed a "Declaration and Order for Merger" ordering that, effective October 1, 1975, the five San Francisco locals would be merged into a single new local union to be known as Hotel and Restaurant Employees' and Bartenders' Union, Local 2, San Francisco, California ("Local 2"). Defendants' Exhibit 4. By letter dated June 18, 1975, the officers who attended the merger meetings with Anselmo notified the general membership that the merger would become effective the following October 1, that the next election of local officers would occur in April, 1978, and that no present officer or executive board member would lose his or her job due to the merger. Plaintiffs' Exhibit L.
On June 30, 1975, one Harold Treskunoff, not a named plaintiff in this action, filed a charge with the National Labor Relations Board ("NLRB") complaining that the decision to merge was illegal. Treskunoff alleged that union officers "restrained and coerced * * * [union members] by failing and refusing to permit * * * said employee-members to participate in" the decision to merge. Defendants' Exhibit 27. On September 2, 1975, the NLRB Regional Director, Natalie P. Allen, found that the merger had taken place in accordance with the International Constitution and refused to issue a complaint on Treskunoff's charge. Defendants' Exhibit 28.
Plaintiffs filed this action on September 11, 1975, seeking, inter alia, to enjoin (1) completion of the proposed merger without approval by the membership, (2) implementation of bylaws for Local 2 without a vote of the membership, (3) election of Local 2 officers before approval of the bylaws by a majority vote of the membership, and (4) acceptance of Local 2 officers elected or appointed prior to the entry of any order granting injunctive relief. Plaintiffs also ask the Court to compel the election of new Local 2 officers within six months of the effective date of the merger. On the day they filed suit, plaintiffs obtained a temporary restraining order enjoining the merger until September 15, 1975, when the matter could be heard by this Court. On September 15, this Court denied plaintiffs' application for a temporary restraining order and set a date for trial.
By letter dated October 9, 1975, Joseph Belardi, President of Local 2, sent a copy of proposed bylaws to members of Local 2 and informed them that a ratification vote would be held on October 24. Defendants' Exhibits 30 and 31. In a letter dated the next day, Belardi informed plaintiffs Bazan and Snelson that they could appoint election observers and that they could use the facilities of the union's printer to print and distribute election material to union members. Defendants' Exhibit 29. Belardi distributed a circular to the membership approximately one week before the election urging them to vote in favor of the bylaws. Plaintiffs' Exhibit R. Plaintiffs distributed no election materials to the general membership. The election was held on October 24 and the new bylaws were ratified by a vote of 3166 to 2449, with 440 challenged ballots. On December 30, 1975, plaintiffs filed a supplemental complaint asking the Court to void the October 24 election and order that a new vote be held.
Plaintiffs allege a myriad of violations in the formation of Local 2. Many of these claims are overlapping and redundant, but they can be broken down into three general categories: objections to the merger itself, objections to the ratification of the Local 2 bylaws, and objections to the appointment rather than the election of Local 2 officers.
I. THE MERGER
Plaintiffs argue that they were denied an equal vote in the merger decision, as guaranteed by § 101 of the LMRDA, 29 U.S.C. § 411(a)(1).[3] In fact, plaintiffs had no right to vote on that issue at all.
*18 International President Hanley ordered the merger in question on May 30, 1975, pursuant to Article V, Section 16 of the International Constitution.[4] Section 16 was adopted at the 1974 Special Convention for the explicit purpose of allowing the International President to order the merger of local unions without the consent of the membership. A similar provision giving the General Executive Board the power to merge the International with other unions was also passed at the same Convention. See Article IV, Section 11, International Constitution. Those who opposed the adoption of the new merger provisions did so
"on the basis that it takes away from the Local Unions the right to their own self-determinations as to how they want to merge with and whom they want to merge with." First Day Proceedings, 1974 Special Convention at 28 (remarks of Delegate Joseph J. Canale) [sic]. Plaintiffs' Exhibit A.
"You are taking our democratic rights away or not giving us a chance to vote." Id. (remarks of Delegate Joseph Massimino) [sic].
President Hanley argued that vesting the International President with the unilateral power to merge was necessary to the well-being of the union:
"Now, it is not my desire to be a god or to have total authority, but in the event that I have to act in that fashion, by God, I want the authority to do it!" Id. at 29 (remarks of President Hanley).
Plaintiffs concede the validity of Article V, Section 16, but argue that it was exercised in an "unreasonable and discriminatory manner." Supplemental Memorandum in Opposition to Motion for Summary Judgment at 3 (filed June 21, 1976). Plaintiffs' arguments, however, actually boil down to the contention that union members were denied an equal opportunity to vote in May, 1975, on whether to authorize "their officers to attend meetings to determine the terms and conditions of the merger." Id. Without reaching the merits of plaintiffs' arguments,[5] the fact remains that the decision to merge was committed solely to the discretion of President Hanley and the General Executive Board. President Hanley sought the advice and consent of the officers of the five locals for obvious and practical reasons. Their consultation was, however, only consultation. Whether there were irregularities in the May voting has no bearing on the validity of President Hanley's merger order of May 30, 1975. The guarantee of an equal right to vote contained in § 101 does not give union members the right to vote on every union decision. Lear Siegler, Inc. v. International U., United A., A. & A. I. Wkrs., 287 F.Supp. 692, 697 (W.D.Mich.1968); Cleveland Orch. Com. v. Cleveland Federation, Etc., 193 F.Supp. 647, 650 (N.D.Ohio 1961), aff'd, 303 F.2d 229 (6 Cir. 1962).
Plaintiffs also contend that the merger violated § 501 of the LMRDA, 29 U.S.C. § 501, because union officials did not allow a meaningful vote on the question of merging the unions and did not reveal their financial interest in being retained as officers in the merged local. First, as discussed supra, there was no vote on the merger. Second, since President Hanley and the General Executive Board could and did unilaterally order the merger, any failure to *19 divulge such information would not affect the validity of the merger itself. See Blanchard v. Johnson, 388 F.Supp. 208, 214 (N.D.Ohio 1975), modified, 532 F.2d 1074 (6 Cir. 1976) (§ 501 duty requires full disclosure on issues that "the rank and file, must decide"). Moreover, the interest of the local union officers was divulged to the membership. In a letter to all union members, dated June 18, 1975, and signed by officers of each local union, the rank and file were informed:
"As we enter into the merger no present officers will stand to lose their positions, including all Executive Board Members as well as all members." Plaintiffs' Exhibit L.
Plaintiffs also argue that defendants had a fiduciary duty to divulge that certain officers would receive pay raises in their new jobs. After reviewing the salaries received by the local officials before and after the merger, the Court finds that no breach of a § 501 fiduciary duty has occurred. Any pay raises that occurred are minimal and can be explained by differing duties in the new local.
Congress did not intend the LMRDA to engender court interference with the internal management of union affairs. See S.Rep.No.187, 86th Cong., 1st Sess. (1959), 2 U.S.Code, Cong. & Admin. News, pp. 2318, 2323 (1959). As the Court of Appeals for the Second Circuit observed in Gurton v. Arons, 339 F.2d 371, 375 (2 Cir. 1964), a case involving § 501:
"The provisions of the L.M.R.D.A. were not intended by Congress to constitute an invitation to the courts to intervene at will in the internal affairs of unions. Courts have no special expertise in the operation of unions which would justify a broad power to interfere. The internal operations of unions are to be left to the officials chosen by the members to manage those operations except in the very limited instances expressly provided by the Act."
Section 501 applies only to union officials' actions that are not authorized by the unions' constitution or bylaws. United Mine Workers of America v. Boyle, 78 CCH Lab. Cas. ¶ 11,183 at 20,051 (D.D.C.1975); Terrazas v. Fitzsimmons, 76 CCH Lab.Cas. ¶ 10,750 at 18,553 (C.D.Cal.1974). And courts give great deference to the judgment of union officials in such matters:
"Courts are reluctant to substitute their judgment for that of union officials in the interpretation of the union's constitution, and will interfere only where the official's interpretation is not fair or reasonable." Vestal v. Hoffa, 451 F.2d 706, 709 (6 Cir. 1971), cert. denied, 406 U.S. 934, 92 S.Ct. 1768, 32 L.Ed.2d 135 (1972) (citations omitted).
Article V, Section 16 empowers the International President to merge local unions "under such terms and conditions and subject to such qualifications as [he] may determine, taking into consideration" such factors as "appear appropriate." Plaintiffs have failed to present any evidence suggesting that the salary increases given to Local 2 officers were unreasonable or inappropriate. Thus, the Court can find no violation of § 501.
II. THE BYLAWS ELECTION
The membership of Local 2 ratified a set of bylaws in a supervised election held on October 24, 1975. Plaintiffs argue that the election should be voided for a variety of reasons, but primarily because it was held in violation of § 101 of the LMRDA. Plaintiffs contend that defendants denied union members an equal right to vote by failing to inform them properly of the issue before them.
As discussed supra, one of Congress's primary considerations in drafting the LMRDA was to avoid unnecessary judicial interference in union elections. As a result, "Congress made suit by the Secretary [of Labor] the exclusive post-election remedy" for violations of Title IV of the Act.[6]Trbovich v. Mine Workers, 404 U.S. *20 528, 531-532, 92 S.Ct. 630, 633, 30 L.Ed.2d 686 (1972). Accord, Davis v. Turner, 395 F.2d 671, 672 (9 Cir.), cert. denied, 393 U.S. 987, 89 S.Ct. 467, 21 L.Ed.2d 449 (1968). By directing litigation through the Secretary, Congress hoped "to protect unions from frivolous litigation and unnecessary judicial interference with their elections * * *." 404 U.S. at 532, 92 S.Ct. at 633. Because of this clear congressional intent, courts are quite reluctant to allow plaintiffs to bypass administrative remedies by framing their claims in terms of Title I violations. See, e. g., Calhoon v. Harvey, 379 U.S. 134, 139-141, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964); Davis v. Turner, supra, 395 F.2d at 672; Gurton v. Arons, supra, 339 F.2d at 374-375; Fennelly v. Local 971, 400 F.Supp. 375 (D.Mass.1975). As the Supreme Court emphasized in Calhoon v. Harvey, supra, 379 U.S. at 139, 85 S.Ct. at 295:
"Plainly, [§ 101] is no more than a command that members and classes of members shall not be discriminated against in their right to nominate and vote."
Plaintiffs seek to invoke § 101 in this case on the ground that defendants' failure to call a special meeting to discuss the proposed bylaws and failure to send union members a copy of the proposed bylaws more than ten days before the election,[7] combined to deny union members their right to an informed vote.[8] Plaintiffs rely upon Blanchard v. Johnson, 388 F.Supp. 208 (N.D.Ohio 1975), modified, 532 F.2d 1074 (6 Cir. 1976), and Sheldon v. O'Callaghan, 497 F.2d 1276 (2 Cir.), cert. denied, 419 U.S. 1090, 95 S.Ct. 681, 42 L.Ed.2d 682 (1974), as precedent for their arguments, but both cases turned on very different facts.
In Blanchard v. Johnson, supra, union members were forced to vote on an affiliation agreement without full disclosure of all relevant information and under misleading circumstances:
"The letter attached to the ballot purported to represent the entire agreement between Local 47 and the ILA [International Longshoremen's Association], but it contained no mention of the previously discussed oral agreements, of any per capita tax, or of any constitutional provision of the ILA." 388 F.Supp. at 212.
The district court concluded that "any right to vote which is guaranteed by [29 U.S.C.] § 411 must be the right to a meaningful vote" and that "[a] meaningful vote is not a deliberately uninformed vote, because as such there is no choice, no selection, but merely a shot in the dark." 388 F.Supp. at 213-214. The Court of Appeals for the Sixth Circuit affirmed the district court on this issue, but cautioned that a court "is not unfettered in its determination of what constitutes * * * a `meaningful vote.'" 532 F.2d 1074, 1078. The Court of Appeals emphasized that the judiciary should exercise *21 a "sound reluctance" to interfere with union affairs. 532 F.2d at 1078.
Sheldon v. O'Callaghan, supra, is also quite distinguishable from the instant case. In that case union officials deliberately distorted campaign information in a referendum on a new constitution and denied opponents a chance to mail information to union members. 497 F.2d at 1281-1282. In the case at bar, defendants neither denied plaintiffs an opportunity to communicate their views,[9] nor relegated union members' votes to "shots in the dark." Defendants gave plaintiffs an opportunity to mail campaign literature to each union member, mailed a notice of the referendum and copy of the bylaws to each union member, and held an open meeting to discuss the bylaws. This is clearly a case in which the Court should exercise its "sound reluctance" to intervene in internal union affairs. See Blanchard v. Johnson, supra, 532 F.2d at 1078.
Plaintiffs also seek to frame their "lack of informed vote" argument in terms of a Title V breach of fiduciary obligations. For the same reasons discussed above, plaintiffs fail to make their case.
Plaintiffs further contend that, apart from the LMRDA, the bylaws election was not held in accordance with the bylaws of the five pre-existing local unions because the officers did not call a special meeting to discuss the proposed bylaws and did not give members sufficient advance notice of the election. Plaintiffs also assert that defendants violated both the pre-existing local constitutions and the International Constitution by not allowing amendment to the bylaws. With the dismissal of the federal law claims, this Court will also dismiss plaintiffs' state breach of contract claims. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Walling v. Beverly Enterprises, 476 F.2d 393, 398 (9 Cir. 1973).
Even if the Court were to consider these "breach of contract" claims, plaintiffs' arguments are without merit. Local 2 is not bound to call special meetings in conformance with bylaw provisions of the pre-merger local unions. A merged union can hardly be held to the varied and possibly conflicting provisions in the bylaws of its predecessors. Moreover, Local 2 did conduct an open discussion of the proposed bylaws at its regular meeting on October 21, 1975. See Defendants' Exhibit 33. On October 14, 1975, union officials also sent the membership copies of the proposed bylaws along with notice of the election and the October 21 meeting. Similarly, plaintiffs' allegation that the officers would not allow members to amend the bylaws is unfounded. While the October 24 referendum consisted of a yes/no vote, Local 2 members have amended the bylaws since October 24, 1975. See Defendants' Exhibit 36 at p. 2 (amendments passed); Defendants' Exhibit 37 at p. 2 (amendment proposed for future vote). A union is under no obligation to submit each proposed bylaw to a seriatim vote. Sheldon v. O'Callaghan, supra, 497 F.2d at 1280.
III. THE ELECTION OF OFFICERS
Plaintiffs contend that defendants' decision to appoint Local 2 officers and not to have an election until April 1978 violated § 101(a) and the pre-existing local union bylaws. As discussed above, Local 2 is a new and independent local union and is not bound by the bylaws of the pre-merger locals.
Section 101 guarantees union members an equal right to nominate candidates and vote in elections, but it makes that right "subject to reasonable rules and regulations in such organization's constitution and bylaws." 29 U.S.C. § 411(a)(1). President Hanley appointed the new officers of Local 2, and the membership approved bylaws which provide that the first nominations and election will take place in March and April of 1978. Article V, Section 16 of the International Constitution gives President Hanley authority to order the merger of *22 locals "under such terms and conditions and subject to such qualifications as [he] may determine." The election will be held within 2½ years of the formation of Local 2 and satisfies the 3-year requirement of Article X, Section 10 of the International Constitution and Article VI, Section 1(a) of the Local 2 Constitution. Plaintiffs do not explain how this decision, approved by the members themselves, discriminates against members or a class of members. See Calhoon v. Harvey, supra, 379 U.S. at 139, 85 S.Ct. 292.
Plaintiffs are really asserting a Title IV claim, 29 U.S.C. § 481, over which this Court has no jurisdiction. Title IV governs the election of local officers, and 29 U.S.C. §§ 482 and 483 make clear that the administrative remedies provided therein "shall be exclusive." In any event, § 481 provides that local labor organizations must elect officers every three years, and § 483 provides that if elections are held within that three-year limit,
"[n]o labor organization shall be required by law to conduct elections of officers with greater frequency or in a different form or manner than is required by its own constitution or bylaws * * *."
29 C.F.R. § 452.14 provides:
"The initial selection of officers by newly formed or merged labor organizations is not subject to the requirements of Title IV. [Footnote omitted.] Such labor organizations may have temporary or provisional officers serve until a regular election subject to the Act can be scheduled. An election under all the safeguards prescribed in these regulations must be held within a reasonable period after the organization begins to function."
Plaintiffs may argue to the Secretary of Labor that 2½ years before an election is unreasonable. They have given this Court no reason to so believe.
IV. ORDER
The above Memorandum of Opinion constitutes the Court's findings of fact and conclusions of law as required by Rule 52(a) of the Federal Rules of Civil Procedure. Accordingly,
IT IS HEREBY ORDERED that defendants' motion for summary judgment is granted.
IT IS HEREBY FURTHER ORDERED that counsel for defendants shall promptly prepare an appropriate form of judgment, obtain approval of counsel for plaintiffs as to form, and submit it to the Court for execution. The parties shall bear their respective costs.
NOTES
[1] The five local unions were Dining Room Employees, Local 9; Bartenders, Local 41; Cooks, Pastry Cooks and Assistants, Local 44; Miscellaneous Culinary Employees, Local 110; and Hotel, Motel, Club and Service Workers, Local 283.
[2] In the letter, President Hanley stated his reasons for ordering the merger:
"There are several reasons why a merger in this instance is desirable, many of which I have discussed in the Catering Industry Employee. Under the present circumstances, there is costly duplication of office facilities and expenses, staff effort, and other related expenses. Experience to date has proven that not only are overall operating expenses reduced, but such mergers enable the new local to better serve the present membership and to more effectively organize the unorganized." Defendants' Exhibit 3 at p. 1.
[3] 29 U.S.C. § 411(a)(1) provides:
"Every member of a labor organization shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization's constitution and bylaws."
[4] Article V, Section 16 of the Hotel and Restaurant Employees' and Bartenders' International Union Constitution provides:
"The General President with the approval of the General Executive Board, shall have the power to merge local unions and other subordinate bodies under such terms and conditions and subject to such qualifications as the General President may determine, taking into consideration such circumstances as financial conditions, jurisdiction, location and such other factors as appear appropriate in connection with the local unions and other subordinate bodies involved."
[5] It is worth noting, however, that the merger has been approved by both Natalie P. Allen, NLRB Regional Director, and Carl Rolnick, Director of the Office of Labor-Management Standards Enforcement. See Defendants' Exhibit 28 and Letter of September 23, 1976, from Carl Rolnick (filed December 10, 1976).
[6] Title IV of the LMRDA, codified at 29 U.S.C. §§ 481-483, governs the terms of office and election procedures to be followed in labor organizations.
[7] The 15-day notice requirement contained in 29 U.S.C. § 481(e) applies to the election of officers. Congress did not provide for a set period of notice in all union referenda. In this instance "reasonable notice" such as required by 29 U.S.C. § 411(a)(3)(A) for votes concerning dues increases is sufficient. See Local No. 2, Int. Bro. of Tel. Wkrs. v. International Bro. of T.W., 362 F.2d 891, 895 (1 Cir.), cert. denied, 385 U.S. 947, 87 S.Ct. 321, 17 L.Ed.2d 226 (1966).
[8] Plaintiffs also allege that defendants' failure to make copies of the proposed bylaws available in Chinese and Spanish denied union members their right to an equal vote as guaranteed by § 101. Plaintiffs do not state in their complaint, however, that any named plaintiff was actually injured by this omission. Therefore, plaintiffs do not have standing to assert the claim. As the Supreme Court emphasized in Warth v. Seldin, 422 U.S. 490, 502, 95 S.Ct. 2197, 2207, 45 L.Ed.2d 343 (1975):
"[Plaintiffs] must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent. Unless these petitioners can thus demonstrate the requisite case or controversy between themselves personally and respondents, `none may seek relief on behalf of himself or any other member of the class.' O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)."
Moreover, plaintiffs have not shown that any union member was prejudiced in this case, nor have they cited any authority for requiring a union to print all election materials in several languages.
[9] Plaintiffs have presented no credible evidence that defendants denied union members their § 101 right to free speech at any time during the consideration of the merger or new bylaws.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-05-00156-CR
Thomas James Clemens, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. 3040165, HONORABLE JON N. WISSER, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Thomas Clemens was convicted of attempted arson of David Leibson's home. In
three issues on appeal, Clemens argues that the evidence is legally and factually insufficient to
support his conviction and that the district court erred in admitting the testimony of Sandra Budge,
a criminalist for the State Fire Marshal, stating that various items found on Leibson's property
contained gasoline. Because the evidence is legally insufficient to support the conviction, we will
reverse the judgment of the district court and render a judgment of acquittal.
BACKGROUND
Clemens was charged with attempted arson of a habitation. See Tex. Penal Code
Ann. § 15.01(a) (West 2003), § 28.02 (West Supp. 2006). The indictment specified that:
on or about the 17th day of January A.D. 2004, . . . [Clemens] did then and there,
with the specific intent to commit the offense of arson of . . . a habitation, do an act,
to-wit: threw an incendiary device through the window of said habitation which
device, a bottle of flammable liquid and a fuse was in the manner of its use or
intended use was capable of causing death or serious bodily injury, which amounted
to more than mere preparation that tended but failed to effect the commission of the
offense intended.
Clemens waived his right to a jury trial, and a bench trial was held.
The following information was revealed through testimony introduced at trial.
Clemens and Leibson were roommates and resided at Leibson's house in Austin, Texas. After
Clemens moved out of the house, he sued Leibson, claiming that Leibson had failed to return
property to him. The court ordered Leibson to return various items to Clemens's attorney.
Some time after Clemens filed suit, Leibson's bedroom window was shattered at
approximately midnight one evening in January 2004 while Leibson was in the room. Although the
window shattered, the exterior screen remained intact, and whatever hit the window did not enter
the house. After putting on his pants, Leibson ran outside to investigate and saw Clemens rushing
to his car. Although Leibson admitted that it was dark, he testified that he recognized Clemens.
Further, Leibson stated that Clemens yelled an expletive at him upon seeing him outside and that he
recognized Clemens's voice. Leibson observed Clemens drive off and, subsequently, called the
police to report the incident. Officer Rivera, the responding officer, testified that, after investigating,
he could not determine what had hit the screen and window causing the window to break. However,
he testified that Leibson identified Clemens as the party responsible for breaking the window.
Leibson's neighbor, Donna Doyle, testified that around nine o'clock the next
morning, while she was cleaning her living room, she saw Clemens walk down Leibson's porch
steps, cut through Leibson's yard, and walk by Leibson's car. Doyle testified that, although she had
never talked to him, she had seen Clemens at Leibson's house before and recognized him. Doyle
stated that the next time she looked up from cleaning, approximately a minute later, she saw a fire
underneath Leibson's car.
After seeing the fire, Doyle ran out of her house and over to Leibson's car. She
testified that the fire had been set using beer bottles and a paper sack. In addition, she stated that she
noticed that there was liquid inside the bottles but did not smell anything. She further testified that
the fire intensified when she inadvertently knocked one of the bottles over while attempting to move
the bottles away from the car's gas tank using her broom. After unsuccessfully attempting to
extinguish the fire, Doyle then knocked on Leibson's front door and told him about the fire. Leibson
was able to extinguish the fire and, subsequently, called the police. Leibson testified that, during his
attempt to extinguish the fire, he noticed that the beer bottles had rags placed into the necks of the
bottles and noticed that the area smelled like gasoline.
Officer Arturo Gonzalez responded to Leibson's call. He testified that, when he
arrived at the scene, he could see that there had been a small fire underneath Leibson's car. He also
observed several beer bottles that were filled with fluid and had rags stuffed into their necks. Officer
Gonzalez testified he could smell gasoline in the area around the car.
While inspecting the remainder of the house, Leibson found another bottle on the
ground near the window that had been broken the night before. Leibson testified that the bottle must
have been the object that hit the exterior window screen and shattered his bedroom window. He
further opined that the screen must have prevented the bottle from entering his house. Leibson
informed Officer Gonzalez about the bottle, and Officer Gonzalez noticed that, like the bottles found
underneath Leibson's car, this bottle also contained liquid and had a rag stuffed into its neck. He
further noticed that the rag was burned on both ends. Although he did not pick up the bottle to sniff
it and admitted that he did not know for certain what was in the bottle, Officer Gonzalez testified that
he could faintly smell gasoline near the bottle but that the smell was not as strong as it was near
Leibson's car. Leibson also testified that he found yet another bottle on the other side of his house
and that he could smell gasoline near that bottle as well.
Sandra Budge, a criminalist for the State Fire Marshal's arson laboratory, also
testified at the trial. She stated that part of her job was to test evidence she received from law
enforcement officials for the presence of ignitable liquid residue. She stated that, in conducting an
analysis for this case, she tested three liquid samples collected from the beer bottles and concluded
that each sample contained gasoline.
The district court found Clemens guilty of attempted arson, a second-degree felony,
and assessed punishment at ten years' imprisonment, but the sentence was suspended to four years
of community supervision. Clemens appeals the judgment of the district court.
DISCUSSION
In his first issue on appeal, Clemens contends that the evidence is legally insufficient
to support his conviction. In his second issue, Clemens argues that the evidence is factually
insufficient. Alternatively, Clemens asserts that there is a material variance between the evidence
offered at trial and the crime alleged in the indictment. In his third issue on appeal, Clemens argues
that the district court erred in admitting Budge's testimony regarding tests she performed on the three
liquid samples she received because no proof of chain of custody was offered. Because we conclude
that the evidence is legally insufficient to support Clemens's conviction, we need not address
Clemens's second and third issues.
The Evidence is Legally Insufficient
Clemens argues that the evidence is insufficient to support his conviction for the
crime of attempted arson of a habitation. Clemens insists that the evidence presented, if it proves
anything, only proves that he placed all the beer bottles on Leibson's property on the morning of the
fire and insists that proof of such an act does not prove the crime charged.
In determining whether evidence is legally sufficient to support a conviction, we
consider all the evidence in the light most favorable to the verdict and determine whether a rational
trier of fact could have found the defendant guilty of all the elements of the offense beyond a
reasonable doubt based on the evidence and reasonable inferences from the evidence. Drichas v.
State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005); Guevara v. State, 152 S.W.3d 45, 49 (Tex.
Crim. App. 2004). In making this determination, appellate courts consider all the evidence
regardless of whether the evidence was properly or improperly admitted. See Moff v. State, 131
S.W.3d 485, 488 (Tex. Crim. App. 2004). Further, appellate courts are not to re-evaluate the weight
and credibility of the record evidence, nor should they substitute their judgment for that of the
fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). A fact-finder's verdict
must not be disturbed unless it is found to be "irrational or unsupported by more than a 'mere
modicum' of the evidence." Epps v. State, 811 S.W.2d 237, 240 (Tex. App.--Dallas 1991, no pet.)
(quoting Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)).
A person commits the offense of arson if he starts a fire or causes an explosion with
intent to destroy certain types of property. Tex. Penal Code Ann. § 28.02. Arson of a habitation is
a first-degree felony, and attempted arson of a habitation is a second-degree felony. See id. §§ 28.02
(arson of habitation is first-degree felony), 15.01(d) (West 2003) (attempt constitutes crime whose
punishment level is one category lower than completed offense). A person is guilty of attempt if,
with specific intent to commit an offense, "he does an act amounting to more than mere preparation
that tends but fails to effect the commission of the offense intended." Id. § 15.01(a). "Attempt" is
more comprehensive than "intent," and it implies both a purpose and an actual effort to carry that
purpose into execution. Flores v. State, 902 S.W.2d 618, 620 (Tex. App.--Austin 1995, pet. ref'd).
Conviction for an attempted criminal offense does not require accomplishment of every act short of
actual commission of the offense. Id. Specific intent to commit an offense means that the accused
intended to bring about the offense in question. Graves v. State, 782 S.W.2d 5, 6 (Tex.
App.--Dallas 1989, pet. ref'd). Intent may be inferred from circumstantial evidence. Roane v. State,
959 S.W.2d 387, 389 (Tex. App.--Houston [14th Dist.] 1998, pet. ref'd).
When the evidence is viewed in the light most favorable to the verdict, we believe
that the evidence fails to establish beyond a reasonable doubt that Clemens was guilty of the crime
of attempted arson of Leibson's house. In making its case against Clemens, the State was required
to prove that Clemens committed an act "amounting to more than mere preparation" that tended but
failed to effect the commission of the offense intended: setting Leibson's house on fire. See Tex.
Penal Code Ann. §§ 15.01(a), 28.02. The act alleged in the indictment stated that Clemens "threw
an incendiary device," specifically "a bottle of flammable liquid," "through the window" of
Leibson's house. See Mosher v. State, 901 S.W.2d 547, 549 n.1 (Tex. App.--El Paso 1995, no pet.)
(fire investigator testified that Molotov cocktail is generally made from glass bottle containing
flammable liquid with rag or paper wick in top part of bottle that is lit prior to bottle being thrown
at intended target). Because the act was an essential element of the crime, the State had the burden
of proving the act beyond a reasonable doubt. See Short v. State, 874 S.W.2d 666,
667 (Tex. Crim. App. 1994).
It should be noted that the evidence against Clemens is entirely circumstantial. See
Nicholson v. State, 162 S.W.3d 389, 395 n.5 (Tex. App.--Beaumont 2005, pet. ref'd)
("Circumstantial evidence is 'direct proof of a secondary fact which, by logical inference,
demonstrates the ultimate fact to be proven.'") (quoting Cowan v. State, 840 S.W.2d 435, 438 n.10
(Tex. Crim. App. 1992)). Although circumstantial evidence can be sufficient to support a
defendant's conviction, see Muttoni v. State, 25 S.W.3d 300, 308 (Tex. App.--Austin 2000, no pet.),
the State's case cannot impermissibly rest on inference upon inference, see Massey v. State, 226
S.W.2d 856, 860 (Tex. Crim. App. 1950).
At first glance, the evidence presented appears compelling that Clemens engaged in
criminal activity on Leibson's property. However, upon closer examination, we are forced to
conclude that insufficient evidence, circumstantial or otherwise, was presented demonstrating the
sequence of events necessary to convict Clemens of the crime charged in the indictment. To find
Clemens guilty of the offense charged, several inferences have to be made. First, based on the
discovery of the bottle near the broken window, it must be inferred, without any direct evidence, that
the bottle was the object thrown at the bedroom window and that it was on the ground during the
investigation by Officer Rivera the night of the incident but was overlooked. Further, based on the
facts that the rag found in the bottle was burned at both ends and that Clemens was seen on the
property the next day immediately prior to a fire being set underneath Leibson's car, it must be
inferred that the rag was lit when the bottle was thrown. From these inferences, it must further be
inferred that Clemens had the intent to commit the offense of arson of a habitation. This evidence
requires an impermissible inference upon an inference and is insufficient to support a conviction for
attempted arson of a habitation. Compare Massey, 226 S.W.2d at 860 (State's case rested on
inference that flammable liquid was used and, from that inference, on inference that this showed
willful burning), with Taylor v. State, 735 S.W.2d 930, 942 (Tex. App.--Dallas 1987), aff'd, Arnold
v. State, 786 S.W.2d 295 (Tex. Crim. App. 1990) (no impermissible inference upon inference existed
because there was testimony by firefighter that flammable agents had been used).
Even if the State's case does not require an impermissible inference upon an
inference, the evidence presented at trial is still insufficient to prove attempted arson of a habitation.
Although Leibson testified that he saw Clemens rushing to his car shortly after the window was
broken, no witness observed Clemens throw any object at the window, nor is there any evidence,
other than Clemens's mere presence, that he threw anything at the house. See Mosher, 901 S.W.2d
at 549 (evidence sufficient where neighbor saw defendant throw Molotov cocktail at victim's house).
Further, no evidence was introduced showing that the bottle found near the window was the object
that shattered the bedroom window. There was no evidence indicating that the bottle had been
damaged, in any way, as a result of its alleged collision with Leibson's house. Indeed, from the
testimony, it seems that the bottle was not only unbroken but still contained some liquid, despite
being plugged with only a rag. In addition, there is no evidence establishing that the bottle found
beneath the bedroom window was present on Leibson's property during the crucial time between
when the window was shattered and the next morning when the fire under the car was set. The only
evidence concerning the bottle's location at this critical time is to the contrary: neither Leibson nor
Officer Rivera saw a bottle when they searched the area around the window shortly after the window
was broken. Cf. id. at 548 (broken remains of Molotov cocktail were discovered by victim shortly
after she heard something hit her house). The bottle was not discovered until the next morning when
the bottles under the car were discovered and another bottle was found near Leibson's house on the
side opposite Leibson's bedroom. Finally, other than the testimony that the rag stuffed into the neck
appeared burned on both ends, there is no evidence that the bottle was thrown at the house while lit.
No evidence was introduced indicating that Leibson's house, window screen, or yard sustained any
damage from fire. Cf. id. at 549 (garage door, front of house, brush, and grass in front of house
sustained fire damage). The only evidence concerning such damage is to the contrary: Officer
Gonzalez testified that Leibson's house had not sustained any fire damage. The evidence presented
does not establish that the bottle found beneath Leibson's bedroom window was the object that was
thrown at or shattered Leibson's window, nor does the evidence establish that the rag in the bottle's
neck was lit when the bottle was thrown. The establishment of these facts by some evidence other
than an impermissible inference upon an inference from other evidence was necessary to convict
Clemens of the crime charged--the throwing of an incendiary device through Leibson's window
with the intent to set fire to the house.
In light of the previous discussion, we must conclude that (1) the State's case
impermissibly rested on inference upon inference and (2) Clemens's conviction for attempted arson
of a habitation is not supported by more than a mere modicum of the evidence. Accordingly, we
conclude that the evidence is legally insufficient to support Clemens's conviction for the offense
charged. Therefore, we sustain his first issue. Having sustained Clemens's first issue on appeal, we
need not address Clemens's second and third issues.
CONCLUSION
Because the evidence was insufficient to support Clemens's conviction, we reverse
the judgment of the district court and render a judgment of acquittal. See Wheeler v. State, 35
S.W.3d 126, 131-32 (Tex. App.--Texarkana 2000, pet. ref'd).
David Puryear, Justice
Before Chief Justice Law, Justices Puryear and Waldrop
Reversed and Rendered
Filed: January 11, 2007
Do Not Publish
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SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
845
CA 12-01990
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.
IN THE MATTER OF BAKER HALL, DOING BUSINESS
AS BAKER VICTORY SERVICES,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
CITY OF LACKAWANNA ZONING BOARD OF APPEALS
AND CITY OF LACKAWANNA, RESPONDENTS-APPELLANTS.
BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR
RESPONDENTS-APPELLANTS.
DAMON MOREY LLP, CLARENCE (COREY A. AUERBACH OF COUNSEL), FOR
PETITIONER-RESPONDENT.
Appeal from a judgment (denominated order) of the Supreme Court,
Erie County (Timothy J. Walker, A.J.), entered July 25, 2012 in a
proceeding pursuant to CPLR article 78. The judgment granted in part
the petition and annulled the determination of respondent City of
Lackawanna Zoning Board of Appeals.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.
Memorandum: Petitioner commenced this proceeding pursuant to
CPLR article 78 seeking, inter alia, to annul the determination of
respondent City of Lackawanna Zoning Board of Appeals (ZBA) that a
residential treatment facility (RTF) proposed by petitioner is not a
permitted use in the mixed residential (MR) district in which
petitioner sought to construct it. We conclude that Supreme Court
properly granted the petition to that extent. Although “[t]he
interpretation by a zoning board of its governing code is generally
entitled to great deference by the courts . . . , an interpretation
that runs counter to the clear wording of a [code] provision is given
little weight” (Matter of Emmerling v Town of Richmond Zoning Bd. of
Appeals, 67 AD3d 1467, 1467-1468 [internal quotation marks omitted]).
Here, the ZBA’s determination that the proposed RTF is not permitted
in an MR district is contrary to the clear wording of Lackawanna City
Code (City Code) § 230-80 and the sections of the multiple residence
law that are incorporated by reference therein (see generally Matter
of McGrath v Town of Amherst Zoning Bd. of Appeals, 94 AD3d 1522,
1523-1524, lv denied 19 NY3d 809).
Finally, we note that, inasmuch as petitioner did not take a
-2- 845
CA 12-01990
cross appeal from the judgment, it is precluded from obtaining the
affirmative relief it seeks (see Millard v Alliance Laundry Sys., LLC,
28 AD3d 1145, 1148; see generally Hecht v City of New York, 60 NY2d
57, 61).
Entered: September 27, 2013 Frances E. Cafarell
Clerk of the Court
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UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
July 6, 2006
ERRATA
Appeal No. 05-1324
FALKNER V. INGLIS
Decided: May 26, 2006 Precedential Opinion
Please make the following changes:
Page 13, lines 18: change “Falkner’s” to – Inglis’—
Page 13, lines 22: change “Inglis’” to – Falkner’s —
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676 A.2d 345 (1996)
STATE of Vermont
v.
Phillip J. DOYEN.
No. 94-627.
Supreme Court of Vermont.
March 15, 1996.
Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant Attorney General, Montpelier, for plaintiff-appellant.
Robert M. Paolini of Martin & Paolini, Barre, for defendant-appellee.
Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.
JOHNSON, Justice.
In this case, we decide whether Vermont has jurisdiction to prosecute the offense of custodial interference, 13 V.S.A. § 2451, where the defendant commits no act within Vermont. The trial court dismissed the charge against defendant, reasoning that the alleged conduct took place in New Hampshire, Hawaii, and other states, but not in Vermont. The State contends that where the child and the child's lawful custodian are residents of Vermont, Vermont retains jurisdiction to prosecute the offense, regardless of where the child is held or kept by defendant. We reverse the trial court's dismissal and reinstate the charge against defendant.
I.
The parties stipulated to the following facts. Defendant exercised his visitation rights under a court order and, with the permission of the custodial parent, obtained custody of his daughter in Vermont on June 30, 1994. The visitation period ended on July 17, 1994, but defendant failed to return his daughter to her mother, the custodial parent, on that date. Instead, sometime after June 30, 1994, defendant left Vermont with the child and traveled to a number of places, including New Hampshire, California, and Hawaii. Although defendant returned to Vermont with the child on July 5, 1994, for a doctor's appointment, after July 17, 1994 defendant was not in Vermont with the child.
Defendant was eventually found in Hawaii, where he waived extradition, and returned to Vermont. In October 1994, he was arraigned on the charge of custodial interference. Defendant *346 moved to dismiss the charge for lack of subject matter jurisdiction. The trial court granted the motion, and the State appeals.
II.
Defendant argues that his conduct cannot be punished by the State of Vermont because he acted exclusively outside of Vermont. Defendant apparently assumes that the crime of "keeping a child from the child's lawful custodian" occurs where the child is kept, not where the lawful custodian is located. Neither the language of the statute nor the weight of precedent from other states supports defendant's position.
13 V.S.A. § 2451 states, in relevant part:
(a) A person commits custodial interference by taking, enticing or keeping a child from the child's lawful custodian, knowingly, without a legal right to do so, when the person is a relative of the child and the child is less than eighteen years old.
. . . .
(c) It shall be a defense to a charge of keeping a child from the child's lawful custodian that the person charged with the offense was acting in good faith to protect the child from real and imminent physical danger. . . . This defense shall not be available if the person charged with the offense has left the state with the child.
The statute explicitly contemplates application to a person who has kept a child outside of Vermont. Defendant, however, argues that the language in subsection (c) refers only to those who "snatch" a child in Vermont and then leave the state to avoid detection, unlike defendant, who had a legal right to pick up the child in Vermont and to leave the state during the visitation period. This interpretation would have some merit if subsection (c) established a defense to "taking" or "enticing" the child from the child's lawful custodian. But subsection (c) applies only to a charge of "keeping" a child. The only plausible interpretation of this language is that the statute is intended to apply to a person, like defendant, who keeps a child outside of Vermont when the child's lawful custodian is a resident of Vermont.
We also find persuasive the reasoning of courts from other jurisdictions that have held that the custodial parent's state of residence has jurisdiction over the crime of custodial interference, regardless of where the defendant flees with the child. At least four other state supreme courts have considered this issue and ruled in favor of exercising jurisdiction. See State v. Doyle, 121 Idaho 911, 828 P.2d 1316, 1321 (1992) (act of "keeping" or "withholding" child from lawful custodian occurred in Idaho, although parents exchanged custody in Oregon and defendant remained outside of Idaho); Trindle v. State, 326 Md. 25, 602 A.2d 1232, 1235 (1992) (intended result of defendant's conducti.e., depriving lawful custodian of custody formed "an essential ingredient of her offense" and had effect in Maryland, although defendant acted entirely outside of state); State v. Kane, 625 A.2d 1361, 1363-64 (R.I. 1993) (Rhode Island court retained jurisdiction over extraterritorial custodial violations, because conduct necessarily produced detrimental effect within Rhode Island); Rios v. State, 733 P.2d 242, 249 (Wyo.1987) (Wyoming could exercise jurisdiction over extraterritorial conduct that caused result within Wyoming). A number of intermediate appellate courts have issued similar decisions. See, e.g., Wheat v. State, 734 P.2d 1007, 1010-11 (Alaska Ct.App.1987) (Alaska had jurisdiction to prosecute offense because prohibited result of keeping child from lawful custodian occurred in Alaska); State v. Aussie, 175 Ariz. 125, 854 P.2d 158, 160 (Ct.App. 1993) (venue proper because deprivation of lawful custody occurred in custodial parent's home county); People v. Haynie, 826 P.2d 371, 374 (Colo.Ct.App.1991) (though not in state, defendant had legal duty to return children and could be prosecuted for failure to do so); State v. Evans, 212 Ga.App. 415, 442 S.E.2d 287, 289 (1994) (custodial parent's domicile proper venue for prosecution, even though child was to be returned to custodial parent at defendant's residence); People v. Caruso, 152 Ill.App.3d 1074, 105 Ill.Dec. 821, 826, 504 N.E.2d 1339, 1344 (1987) (offense of child abduction based on omission to perform duty imposed by law of state; therefore, Illinois had jurisdiction despite defendant's absence from state); People v. Harvey, 174 *347 Mich.App. 58, 435 N.W.2d 456, 457 (1989) (Michigan had jurisdiction over parental kidnapping charge because detrimental effects of defendant's intentional retention of child out of state occurred within state); Roberts v. State, 619 S.W.2d 161, 164 (Tex.Crim.App. 1981) (act of defendant retaining child out of state resulted in violation of Texas custody decree; thus, Texas had jurisdiction to prosecute offense).
III.
Defendant argues that the cases from other jurisdictions are based on jurisdictional statutes and precedents that Vermont lacks. Such differences are always grounds for caution in considering precedent from other states. Nonetheless, our analysis is aided by the work of courts that have previously considered this question. The cases identify two possible bases for jurisdiction over a charge of custodial interference. One approach is to consider a defendant's failure to return a child to the child's lawful custodian a crime of omission occurring in the lawful custodian's state of residence. An alternative ground for jurisdiction is the recognition that a state may impose criminal sanctions for out-of-state conduct that has a detrimental effect within the state.
Although most crimes are committed by an affirmative act, under some circumstances a failure to act can result in criminal liability. 1 W. LaFave & A. Scott, Substantive Criminal Law § 3.3, at 282 (1986). For example, a taxpayer who fails to file a tax return may be subject to criminal penalties. See 32 V.S.A. § 5894(b) (establishing criminal penalties for knowing failure to file tax return when due). To face criminal liability for a failure to act, however, a person must have been bound by a legal duty to act. LaFave & Scott, supra, § 3.3(a), at 283. Here, defendant had a legal duty under a court order to return the child to her lawful custodian in Vermont. The information charging defendant with "knowingly ke[eping] the child from the child's lawful custodian without a legal right to do so" is based on his failure to fulfill his legal duty, and that failure can fairly be considered a criminal omission.[1] See, e.g., Doyle, 828 P.2d at 1320 ("keeping" or "withholding" child from lawful custodian is crime of omission).
We recognize that Vermont, unlike some other states, does not have a jurisdictional statute explicitly authorizing prosecution for crimes of omission. See, e.g., Colo.Rev.Stat. Ann. § 18-1-201(3) (West 1986) (location of offender immaterial to commission of offense based on omission to perform duty imposed by state law); Ill.Comp.Stat.Ann. ch. 720, act 5, § 1-5(c) (Smith-Hurd 1993) (offense based on omission to perform duty imposed by state law is committed within state, regardless of location of offender); Model Penal Code § 1.03(1)(e) (1985) (authorizing conviction of person for omission to perform legal duty imposed by state law "with respect to domicile, residence or a relationship to a person, thing or transaction in the State"). Indeed, Vermont lacks the type of general jurisdictional statute illustrated by Model Penal Code § 1.03. The absence of such a statute does not, however, preclude Vermont's exercise of jurisdiction. Where there is a legal duty to act, "`failure to perform that duty is, for the purpose of jurisdiction, tantamount to an act.'" LaFave & Scott, supra, § 2.9, at 185 (quoting Restatement of Conflict of Laws § 70, cmt. a (1934)); see also State v. Damon, 317 A.2d 459, 460-61 (Me.1974) (although defendant was outside of Maine when he violated furlough, offense was wilful failure to return to prison in Maine; offense was committed in Maine and Maine had jurisdiction to prosecute). Under this analysis, defendant has committed an act within Vermont just as if he had remained in Vermont with the child, and Vermont may properly prosecute him.
*348 Alternatively, several states have jurisdictional statutes authorizing prosecution for an offense if "either the conduct that is an element of the offense or the result that is such an element occurs within this State." Model Penal Code § 1.03(1)(a) (1985); see, e.g., Ariz.Rev.Stat.Ann. § 13-109(A) (1989) (criminal prosecutions tried in county where conduct constituting any element of offense or result of such conduct occurred); Ill.Comp. Stat.Ann. ch. 720, act 5, § 1-5(b) (Smith-Hurd 1993) (offense committed partly within state if result that is element of offense occurs within state); Tex.Penal Code.Ann. § 1.04(a)(1) (West 1994) (state has jurisdiction over offense if conduct or result that is element of offense occurs inside state). Again, however, such a statute is not a prerequisite for the exercise of jurisdiction. See Rios, 733 P.2d at 249 (lack of specific statute does not preclude exercising jurisdiction over extraterritorial conduct causing result within state). Indeed, the Model Penal Code provision is close to the common-law view that "a state has power to make conduct or the result of conduct a crime if the conduct takes place or the result happens within its territorial limits." LaFave & Scott, supra, § 2.9(a), at 180; see also United States v. Columba-Colella, 604 F.2d 356, 358 (5th Cir.1979) (objective territorial theory of jurisdiction permits sovereign state to attach criminal consequences to extraterritorial act, if act was intended to have effect within state); People v. McLaughlin, 80 N.Y.2d 466, 591 N.Y.S.2d 966, 967-68, 606 N.E.2d 1357, 1358-59 (1992) (basis of New York's jurisdiction in criminal cases is territorial principle derived from common law; general rule is that state has jurisdiction if either alleged conduct or some consequence of it occurred within state); Restatement (Second) of Conflict of Laws § 37 (1971) ("A state has power to exercise judicial jurisdiction over an individual who causes effects in the state by an act done elsewhere with respect to any cause of action arising from these effects. . . .").
The United States Supreme Court has also endorsed this view of a state's criminal jurisdiction. In Strassheim v. Daily, 221 U.S. 280, 285-86, 31 S.Ct. 558, 560, 55 L.Ed. 735 (1911), the Court permitted Milton Daily's extradition to Michigan, where he had been indicted for bribery, although Daily had acted outside of Michigan. The Court stated:
If a jury should believe the evidence, and find that Daily did the acts [alleged], the usage of the civilized world would warrant Michigan in punishing him, although he never had set foot in the state until after the fraud was complete. Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if he had been present at the effect, if the state should succeed in getting him within its power.
Id. at 284-85, 31 S.Ct. at 560.[2]
Defendant's conduct resulted in the child's mother losing custody of the child. That result occurred, and could only occur, in Vermont, the mother's state of residence. Moreover, the result is not incidental to the offense charged, but is in fact an element of the offense as defined by statute. 13 V.S.A. § 2451(a) ("A person commits custodial interference by . . . keeping a child from the child's lawful custodian, knowingly, without a legal right to do so. . . .") (emphasis added); see also Doyle, 828 P.2d at 1320 (elements of offense of custodial interference include "(1) an intentional (2) taking, enticing away, keeping, or withholding which (3) unlawfully deprives the custodian of custody"). As Vermont has succeeded in gaining personal jurisdiction over defendant, both the common law and Supreme Court precedent allow his prosecution for out-of-state conduct that had the effect of unlawfully depriving a Vermont resident of custody of her child.
*349 IV.
Defendant argues, however, that Vermont law, specifically 13 V.S.A. § 2 and related precedent of this Court, precludes Vermont from punishing his conduct. Section 2 states:
A person who, with intent to commit a crime, does an act within this state in execution or part execution of such intent, which culminates in the commission of a crime either within or without this state, shall be punished for such crime in this state in the same manner as if the same had been committed entirely within this state.
In State v. Harrington, 128 Vt. 242, 250, 260 A.2d 692, 697 (1969), this Court interpreted § 2 in the context of a prosecution for blackmail (13 V.S.A. § 1701). The defendant, a Vermont lawyer, had mailed a threatening letter in Vermont to a recipient in New Hampshire. The threat was based on certain compromising pictures taken in New Hampshire. The defendant argued that because his conduct affected persons and property in New Hampshire, Vermont lacked jurisdiction to prosecute the offense. The Court disagreed, and held that Vermont could prosecute the defendant because he had committed an "`act within this state . . . so related to the crime that if nothing more had followed, it would have amounted to an attempt.'" Id. (quoting People v. Werblow, 241 N.Y. 55, 148 N.E. 786, 790-91 (1925)).
In support of his position, defendant relies on People v. Gerchberg, 131 Cal.App.3d 618, 181 Cal.Rptr. 505 (1982). There, the court held that California could not prosecute a New York resident for failing to return his children to the lawful custodian in California at the end of a visitation period. Id. at 507. Under the "settled law" of California, the court noted, "California cannot punish for conduct taking place outside of California unless the defendant has, within this state, committed acts which amount to at least an attempt to commit a crime punishable under California law."[3]Id. at 506. Defendant argues that the language of § 2 and our decisions in Harrington and State v. Huginski, 139 Vt. 95, 422 A.2d 935 (1980), similarly restrict Vermont's jurisdiction to prosecute out-of-state conduct. Following this reasoning, Vermont lacks jurisdiction to prosecute defendant, because he has "done nothing in this state even approaching an attempt," Gerchberg, 181 Cal.Rptr. at 506, to violate 13 V.S.A. § 2451.
We note first that if defendant's conduct is viewed as a crime of omission, § 2 poses no bar to his prosecution. As we have already discussed, a failure to perform a legal duty, for jurisdictional purposes, is tantamount to an act. Vermont, as "the state wherein the act is legally required to be performed," has jurisdiction over the crime of omission. La-Fave & Scott, supra, § 2.9(a), at 185. As both the conduct and the result occurred within Vermont, § 2 is irrelevant.
Moreover, we do not agree that § 2 should be interpreted to deprive Vermont of a state's common-law jurisdiction over out-of-state conduct that produces harmful results within the state. Nothing in § 2 indicates that the grant of jurisdiction is exclusive. Indeed, the title of § 2 when enacted, "An act to provide for penalties for certain acts," suggests that the statute was intended to expand, rather than contract, Vermont's jurisdiction. 1925, No. 129. The statute does, for example, abrogate the restrictive common-law rule that a crime has only one situs, and only the place of the situs has jurisdiction. See LaFave & Scott, supra, § 2.9(a), at 180 (describing common-law rule). The situs is the place of the act or omission if the crime is defined only in those terms, but the situs is the place of the result if the result is an element of the crime. Id. at 180-81. Section 2 extends Vermont's jurisdiction to include acts committed within the state, where the result, and therefore the situs of the crime, is in another state. Another problem resolved by § 2 is jurisdiction over offenses consisting of several acts, where some of the acts are committed out of state.
Our interpretation of § 2 in Harrington is consistent with this view of the statute. In *350 Harrington, the blackmail threat was communicated in New Hampshire. At common law, only New Hampshire could have prosecuted the offense. Section 2, however, permitted Vermont to prosecute the offense, because the defendant, with intent to commit a crime, had committed an act within Vermont (the mailing of the letter). In fact, the issue in Harrington, whether Vermont could "attach legal consequences to any overt act committed within its boundaries, even though the final impact and injury may occur elsewhere," Harrington, 128 Vt. at 250, 260 A.2d at 697, is the reverse of the question posed in this case.
Our decision in Huginski, however, poses a more difficult obstacle. There we considered whether Vermont had jurisdiction to prosecute defendant, a Connecticut resident, with counseling or procuring the burning of his house in Vermont. None of the conversations or arrangements regarding the arson occurred in Vermont, and the defendant did not actually participate in the burning of the house. Huginski, 139 Vt. at 98, 422 A.2d at 937. We reversed the conviction for lack of jurisdiction, stating that "[t]he penal laws of a state are enacted as an exercise of sovereignty and are thus restricted in their application to places within the boundaries of the state." Id. at 97-98, 422 A.2d at 937. The decision briefly mentions § 2, but rejects it as a ground for jurisdiction, because the "defendant's acts [within Vermont] did not constitute an attempt to commit either crime set forth in the information." Id. at 99, 422 A.2d at 937.
Huginski discusses neither the commonlaw principles of jurisdiction nor the Supreme Court's decision in Strassheim. Moreover, the broad language in Huginski is inconsistent with our earlier decision in State v. Jost, 127 Vt. 120, 241 A.2d 316 (1968). In Jost the Court held that Vermont had jurisdiction to prosecute a defendant for false advertising, although the defendant had written the advertising material in Canada and mailed it to a newspaper publisher in Boston. Id. at 124, 241 A.2d at 320. Copies of the newspaper were circulated in Vermont. The Court stated the "well-settled" principle that "one [who], while absent from the jurisdiction, commits an offense within the state by means of an innocent agency, may be held liable in that state if that is where the crime is accomplished." Id. at 124, 241 A.2d at 319.
On reconsideration, we conclude that Huginski overstated the limits on Vermont's jurisdiction to prosecute out-of-state conduct causing detrimental effects within Vermont. That jurisdiction exists at common law and has not been abrogated by statute. To the extent that Huginski is inconsistent with this opinion, it is hereby overruled. Vermont has made the result of defendant's conduct, the lawful custodian's loss of custody, a crime; that is enough to provide jurisdiction over the offense, even though the acts producing the result occurred elsewhere.
The Wyoming Supreme Court, inquiring whether "any [other] jurisdiction . . . would have taken an interest in pursuing [the defendant's] unlawful conduct," concluded that "the initiative to pursue the matter could only be found where the mother, who was entitled to custody, lives." Rios, 733 P.2d at 250. We are equally skeptical that Hawaii or California or any other state where defendant sojourned with his daughter would have cared to prosecute him for his conduct. The harm occurred in Vermont, and Vermont is the proper state to pursue the prosecution.
Reversed. The charge against defendant is reinstated and the matter remanded for further proceedings not inconsistent with this opinion.
NOTES
[1] A close analogy is the crime of nonsupport of a child, which is a crime of omission occurring where the child resides. See People v. Jones, 257 Cal.App.2d 235, 64 Cal.Rptr. 622, 623 (1967) (offense of nonsupport of minor child is crime of omission committed at place where child resides); State v. Shaw, 96 Idaho 897, 539 P.2d 250, 252-53 (1975) (Idaho had jurisdiction to prosecute defendant for nonsupport, although defendant resided in Nevada at times relevant to charge); State v. Klein, 4 Wash.App. 736, 484 P.2d 455, 457 (1971) (nonsupport is continuing omission to act wherever child is located).
[2] Given the United States Supreme Court's holding in Strassheim, we find unpersuasive the Minnesota Supreme Court's contrary holding in State v. McCormick, 273 N.W.2d 624, 628 (Minn. 1978). There, the court held that a Minnesota statute specifically criminalizing a parent's out-of-state detention of a child with intent to deny another's rights under a court order violated the Sixth Amendment to the United States Constitution. The court did not mention Strassheim, but cited only a New York case from 1855 for the proposition that "`[t]he penal acts of one state can have no operation in another state.'" Id. at 626 (quoting People v. Merrill, 2 Parker's Crim.R. 590, 603 (N.Y.Sup.Ct.1855)).
[3] The holding in Gerchberg was overruled by statute. Cal.Penal Code § 784.5 (1985) allows for jurisdiction of a criminal action for child abduction in the "jurisdictional territory in which the victimized person resides . . . at the time of the taking or deprivation."
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NUMBER 13-12-00468-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ORLANDO REYES
A/K/A ORLANDO MARTINEZ REYES, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Perkes
Memorandum Opinion by Justice Perkes
Appellant Orlando Reyes appeals his conviction for indecency with a child by
contact, a second-degree felony. See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011).
A jury found appellant guilty and assessed punishment at fifty years’ confinement in the
Texas Department of Criminal Justice, Institutional Division. By two issues, which we
have re-ordered, appellant argues that (1) the evidence is insufficient to support his
conviction; and (2) the trial court failed to include a “not guilty” verdict form for the
indecency charge. We affirm.
I. BACKGROUND1
D.S., a four-year-old girl, approached her paternal aunt, Monica, and told her, “[A]
man touched me down there.” Monica testified that she asked D.S., “What man?” and
D.S. responded, “Diana’s man.” Diana is D.S.’s great aunt. Monica asked, “Diana’s
boyfriend?” and D.S. answered, “Yes.” Appellant is Diana’s boyfriend.
D.S. was taken to a hospital, where Elizabeth Williams, a Sexual Assault Nurse
Examiner, examined her. Williams’s report reflected: “Patient states, ‘Diana’s
boyfriend touched me there (patient points to female sexual organ) with him [sic] hand
more than once. It hurts.’” The report was admitted into evidence, and Williams read
the foregoing statement to the jury. Williams found no trauma but testified that digital
penetration does not always cause trauma.
D.S. testified. She was five at the time of appellant’s trial. The State asked D.S.
if anyone touched the places on her body that nobody is supposed to see or touch. D.S.
responded that “Guero” had. Guero is the nickname of Monica’s brother, Adam Rivera,
not appellant. The State thereafter asked D.S. whether it was appellant who touched her
in those places, and D.S. responded, “Yes.” Using a doll, D.S. then showed where
appellant allegedly touched her, and the record reflects D.S. pointed to “the middle of the
1
Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
2
doll which is the vaginal area.” D.S testified that one night she awoke because appellant
was “[t]ouching my middle part.” On cross-examination, however, the defense asked
D.S. to locate on the doll the places where Guero touched her, and D.S. pointed to the
“middle portion.” The following exchange between the State and D.S. occurred on
redirect examination:
Q Do you know who [appellant] is?
A Yes.
Q When you talk about [appellant], is that Diana’s man? Was he
Diana’s boyfriend?
A Uh-huh.
Q “Yes”? Okay.
And [appellant] touched you there one time in the middle. Can you
say it aloud?
A Yes.
Q Okay. Who is Guero? Is that [appellant]?
A Uh-huh.
Pamela Rodriguez, a forensic interviewer at the Children’s Advocacy Center,
interviewed D.S. after the alleged touching. D.S. told Rodriguez several times that
appellant touched her on her “private,” which D.S. indicated was her vagina by pointing to
it. Rodriguez testified that D.S. was consistent in the details of appellant touching her.
The trial court admitted a video recording of Rodriguez’s interview, and it was published to
the jury for consideration.
3
The State called Patricia Goldberg to testify. Goldberg was Adam Rivera’s (a/k/a
Guero) probation officer. Goldberg testified that Rivera was placed on community
supervision in 2010, but that in March 2011, the State moved to revoke Rivera’s
community supervision. Goldberg affirmed on cross-examination that from March 2011
through appellant’s trial, Rivera was in confinement. D.S.’s outcry was in July 2011.
II. SUFFICIENCY OF THE EVIDENCE
By his second issue, appellant argues the evidence is insufficient to support the
verdict of guilty of indecency with a child. We disagree.
A. Standard of Review
“The standard for determining whether the evidence is legally sufficient to support
a conviction 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.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.
App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original);
see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.).
“The jury is the exclusive judge of the credibility of the witnesses and of the weight to be
given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the
evidence.” Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc)
(citing Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). Juries are
permitted to make reasonable inferences from the evidence presented at trial, and
circumstantial evidence is as probative as direct evidence in establishing the guilt of an
actor. Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007).
4
We measure the sufficiency of the evidence by the elements of the offense as
defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327
(Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997)). Such a charge is one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily
restrict the State’s theories of liability, and adequately describes the particular offense for
which the defendant was tried. Id. A person commits indecency with a child if the
person engages in sexual contact with a child younger than seventeen years of age or
causes the child to engage in sexual contact. TEX. PENAL CODE ANN. 21.11(a)(1).
B. Discussion
The law has long recognized that the testimony of a single witness can be
sufficient to support a felony conviction. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex.
Crim. App. 1971); Shah v. State, 403 S.W.3d 29, 35 (Tex. App.—Houston [1st Dist.] 2012,
pet. ref’d); see also Molina v. State, No. 13-12-00480-CR, 2013 WL 4330222, at *5 (Tex.
App.—Corpus Christi Aug. 15, 2013, no pet.) (mem. op., not designated for publication).
A child victim’s outcry statement alone can be sufficient to sustain a conviction for a
sexual offense. See Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991)
(en banc); Saldana v. State, 287 S.W.3d 43, 60 (Tex. App.—Corpus Christi 2008, pet.
ref’d).
D.S. testified that appellant touched her in her “middle,” and she showed the jury
the vaginal area on a doll as the location of the touching. D.S.’s outcry reflected that
appellant touched her and that she felt pain as a result of the contact. The jury viewed
5
the video recording of Rodriguez’s interview with D.S. in which D.S. repeatedly claimed
appellant touched her on her private. When Rodriguez asked D.S. if anyone else
touched her there, D.S. said, “No.” Monica testified that when she discussed going to
court with D.S., D.S. asked, “Because of what [appellant] did to me?” Goldberg testified
that Rivera (a/k/a Guero) had been confined since March 25, 2011, more than three
months before D.S.’s outcry in early July 2011.
Appellant primarily challenges D.S.’s identification of him as the person who
improperly touched her. The jury, however, is the exclusive judge of a witness’s
credibility and the jury alone reconciles conflicts in the evidence. See Wesbrook, 29
S.W.3d at 111 (jury determines credibility); Hooper, 214 S.W.3d at 14 (jury can make
reasonable inferences). Here, the jury could have reconciled D.S.’s testimony at trial,
and could have concluded that appellant touched D.S. based upon the entirety of her
testimony, the content of her outcry report statements, and the evidence that Rivera was
confined at the time of the abuse.2 The jury was free to disbelieve appellant’s denial,
which appellant gave to police during a recorded interview.
Viewing the evidence in the light most favorable to the prosecution, we conclude a
rational jury could have found the essential elements of indecency with a child by contact
2
Appellant also challenges D.S.’s credibility, arguing that she was inconsistent about her location
at the time of the touching. Monica testified that D.S. and her family lived with Diana and appellant until
about June 2011, when D.S. and her family moved to a new address. Appellant’s contention relies on
Detective Crispen Mendez’s testimony that the child’s statement indicated the touching occurred at the old
address even though D.S. told Rodriguez it happened at her “new house.” Detective Mendez testified,
however, that he did not talk to D.S., deferring to the Child Advocacy Center for the interview. Rodriguez
conducted that interview. We conclude that a rational jury could have reconciled this evidence, and that
D.S.’s credibility was for the jury’s determination. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim.
App. 2000) (en banc).
6
beyond a reasonable doubt. See Johnson, 364 S.W.3d at 293–94. We overrule
appellant’s second issue.
III. VERDICT FORMS
By his first issue, appellant contends the trial court erred in omitting from the jury
charge a “not guilty” verdict form in its submission of the lesser-included offense of
indecency with a child.
The State charged appellant with aggravated sexual assault and the
lesser-included offense of indecency with a child. The trial court submitted the verdict
forms to the jury in the manner shown below:
VERDICT FORMS
COUNT 1
USE ONLY ONE FORM:
We, the Jury, find the Defendant, ORLANDO REYES AKA
ORLANDO MARTINEZ REYES, not guilty of Count 1: Aggravated
Sexual Assault of a Child, as alleged in the indictment
_________________
PRESIDING JUROR
OR
We, the Jury, find the Defendant, ORLANDO REYES AKA
ORLANDO MARTINEZ REYES, guilty of the lesser-included offense of
Indecency with a Child.
_________________
PRESIDING JUROR
7
OR
We, the Jury, find the Defendant, ORLANDO REYES AKA
ORLANDO MARTINEZ REYES, guilty of Count 1: Aggravated Sexual
Assault of a Child, as alleged in the indictment.
_________________
PRESIDING JUROR
Before the trial court read the jury charge to the jury, it asked the defense whether
it had any objections to the jury charge. The following excerpt contains the defense’s
response:
[THE DEFENSE]: No, Your Honor. In fact, I have reviewed it with my
client. There are no objections to the proposed
Charge.
THE COURT: Thank you. State has rested their case.
[THE DEFENSE]: We don’t have any objections to the Charge. My
client reviewed it again.
The court read the charge to the jury, and the jury retired for deliberations.
The jury returned with a verdict. The presiding juror had signed two verdict forms:
one finding appellant not guilty for aggravated sexual assault and one finding appellant
guilty for indecency with a child. The trial court informed the attorneys, “They [the jurors]
are doing exactly what we thought they would do; not guilty on the Count 1 aggravated
sexual assault and guilty on the indecency. They did not pay attention to the top where it
says only use one form.” At that point, appellant moved for mistrial on the grounds that
the verdict forms were improper for failing to include a “not guilty” option on the
lesser-included offense. The trial court denied the mistrial motion.
8
A. Standard of Review
When used, a verdict form becomes part of a jury charge, and we review
verdict-form errors as jury-charge errors. Jennings v. State, 302 S.W.3d 306, 307 (Tex.
Crim. App. 2010). When we are presented with an argument that a trial court committed
jury-charge error, we must conduct a two-step review: “First, the reviewing court must
determine whether the jury charge contains error. Second, the court must determine
whether sufficient harm resulted from the error to require reversal.” Mann v. State, 964
S.W.2d 639, 641 (Tex. Crim. App. 1998) (en banc); see Benn v. State, 110 S.W.3d 645,
648 (Tex. App.—Corpus Christi 2003, no pet.).
B. Discussion
Texas law has long recognized that a trial court need not attach a verdict form to a
jury charge, but if it does, “it must set out every ‘guilty’ or ‘not guilty’ option that is available
to the jury.” Jennings, 302 S.W.3d at 310; see Oates v. State, 51 Tex. Crim. 449, 455,
103 S.W. 859, 862–63 (Tex. Crim. App. 1907); Williams v. State, 24 Tex. App. 637, 667, 7
S.W. 333, 336 (1888). It is improper to submit a verdict form that omits any “guilty” or
“not guilty” option available to the jury. Jennings, 302 S.W.3d at 310.
Here, the verdict form, which was similar to the improper verdict form analyzed in
Jennings, did not have a “not guilty” option for the lesser-included offense of indecency
with a child. We hold this to be error, and the State concedes it was error.
C. Harm
Upon finding error, we apply one of the two following standards of review: “Where
there has been a timely objection made at trial, an appellate court will search for only
9
‘some harm.’ By contrast, where the error is urged for the first time on appeal, a
reviewing court will search for ‘egregious harm.’” Mann, 964 S.W.2d at 641 (quoting
Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994)). The Texas Code of
Criminal Procedure provides, “Before [the jury] charge is read to the jury, the defendant or
his counsel shall have a reasonable time to examine the same and he shall present his
objections thereto” in writing or dictated to the court reporter in the presence of the court
and the state’s counsel. TEX. CRIM. PROC. CODE ANN. art. 36.14 (West 2007). For an
objection to be timely, the defendant must object to the charge before it is read to the jury.
See Shaw v. State, 243 S.W.3d 647, 655 n.7 (Tex. Crim. App. 2007); Pendleton v. State,
434 S.W.2d 694, 696 (Tex. Crim. App. 1968); Villarreal v. State, 429 S.W.2d 508, 510
(Tex. Crim. App. 1968).
Here, when appellant was given the opportunity to object to the verdict forms
before the trial court read the charge to the jury, appellant twice declared he had no
objection. Appellant did not challenge the verdict forms until after the jury returned with a
verdict. We hold that the challenge was untimely, and we review the record for
egregious harm. See Mann, 964 S.W.2d at 641; Benn, 110 S.W.3d at 648.
Jury-charge error is egregiously harmful if it affects the very basis of the case,
deprives the defendant of a valuable right, or vitally affects a defensive theory. Allen v.
State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008) (citing Stuhler v. State, 218 S.W.3d
706, 719 (Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim.
App. 2007)). In sum, the error must have been so harmful as to effectively deny the
accused a fair and impartial trial. See Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim.
10
App. 2008). Egregious harm is difficult to prove, and it is evaluated on a case-by-case
basis. Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011).
In determining whether appellant was deprived of a fair and impartial trial, we
review “the entire jury charge, the state of the evidence, including the contested issues
and weight of probative evidence, the argument of counsel[,] and any other relevant
information revealed by the record of the trial as a whole.” Id. (quoting Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (en banc)). We will examine “any . . . part
of the record as a whole which may illuminate the actual, not just theoretical, harm to the
accused.” Id. at 490 (quoting Almanza, 686 S.W.2d at 174).
1. Entire Jury Charge
The jury charge instructed the jury to find appellant not guilty of the lesser-included
offense unless it found the evidence showed guilt beyond a reasonable doubt. The
charge outlined appellant’s presumption of innocence, and it stated that the prosecution
had the burden of proving each element of the offense beyond a reasonable doubt. The
charge continued, “In the event you have a reasonable doubt as to the Defendant’s guilt
after considering all the evidence before you, and these instructions, you will acquit him
and say by your verdict, ‘Not Guilty’.”
Viewed in its entirety, we hold the jury charge impressed on the jury the need to
find the elements of indecency beyond a reasonable doubt to convict on that ground.
This factor weighs against finding egregious harm.
11
2. State of the Evidence
As discussed earlier in this opinion, the evidence was legally sufficient to prove
beyond a reasonable doubt that appellant was guilty of indecency with a child. This
factor weighs against finding egregious harm. See, e.g., Smith v. State, 397 S.W.3d
765, 771–72 (Tex. App.—San Antonio 2013, no pet.); Bui v. State, 964 S.W.2d 335, 347
(Tex. App.—Texarkana 1998, pet. ref’d).
3. Argument of Counsel
In his final words to the jury, defense counsel argued, “I see no other way to vote
but a not guilty on both counts; on the indecency and on the aggravated assault.” This
comment emphasized that the jury could find appellant not guilty on the indecency
charge. This factor weighs against finding egregious harm.
4. Other Relevant Information
After the jury returned with the verdict in which the jury signed two forms, the trial
court returned the jury for additional deliberations with additional oral instructions on how
to use the verdict forms. The trial court instructed:
In regards to Count 1, and there is only one count, if your verdict is
not guilty of anything, then your signature needs to be on the top paragraph.
If your verdict is that he is guilty of the lesser included offense of
Indecency with a Child but not guilty of the aggravated sexual assault, your
verdict, your signature needs to be on line 2.
If your verdict is that you find him guilty of the aggravated sexual
assault of a child, then your verdict needs—your signature needs to be on
paragraph 3.
The court instructed the jury that its signature should only appear on one form. The jury
deliberated and returned the original verdict form, scratching out the signature that had
12
appeared on the first paragraph and leaving the signature that had been placed on the
second paragraph.
We consider the court’s additional instructions highly relevant. The instructions
informed the jury of the manner whereby it could find appellant not guilty of either offense.
The jury was not left alone to speculate whether a “not guilty” finding was unavailable for
the lesser-included charge. Also relevant is the fact that the trial court polled the jury to
confirm the verdict reflected each juror’s intent. The jurors all asserted that the verdict
matched their personal intent. This factor weighs against finding egregious harm.
D. Summary
The trial court’s verdict form was deficient because it failed to include a “not guilty”
paragraph for the lesser-included offense. See Jennings, 302 S.W.3d at 310. Having
considered the relevant factors, we conclude that although the trial court’s submission of
the verdict form lacking a “not guilty” option for the lesser-included offense was error, it did
not cause appellant egregious harm. See Taylor, 332 S.W.3d at 489. We overrule
appellant’s first issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
5th day of December, 2013.
13
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSEL DOCKET NUMBER
EX REL. GLENN SCHWARZ, CB-1208-17-0022-U-4
Petitioner,
v.
DATE: October 12, 2017
DEPARTMENT OF THE NAVY,
Agency.
THIS STAY ORDER IS NONPRECEDENTIAL 1
Sheryl Golkow, Esquire, Dallas, Texas, for the petitioner.
Malvina Winston, Esquire, Washington, D.C., for the petitioner.
Cheri L. Cannon, Esquire, and Smenta K. Chabbra, Esquire, Washington,
D.C., for the relator.
Jennifer B. Toler, Esquire, and Anakah D. Harrison, Cherry Point, North
Carolina, for the agency.
BEFORE
Mark A. Robbins, Vice Chairman
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
ORDER ON STAY EXTENSION REQUEST
¶1 Pursuant to 5 U.S.C. § 1214(b)(1)(B), the Office of Special Counsel (OSC)
requests a 60-day extension of the previously granted stay of the agency’s
removal of Mr. Schwarz. For the reasons discussed below, OSC’s request is
GRANTED and the stay is extended through December 11, 2017.
BACKGROUND
¶2 On June 28, 2017, OSC requested a 45-day initial stay of the agency’s
June 8, 2017 decision to reinstate Mr. Schwarz’s removal for allegedly violating a
settlement and abeyance agreement. Special Counsel ex rel. Glenn Schwarz v.
Department of the Navy, MSPB Docket No. CB-1208-17-0022-U-1, Stay Request
File (U-1 SRF), Tab 1. Mr. Schwarz previously had filed a complaint of
whistleblower reprisal with OSC on September 10, 2016, which was resolved via
a November 22, 2016 settlement agreement. Id. at 7. As part of the settlement
agreement, the agency agreed to hold Mr. Schwarz’s pending removal action in
abeyance for a period of 2 years, provided that he complied with certain
performance and conduct standards. Id. On June 8, 2017, the agency reinstated
Mr. Schwarz’s removal for failing to comply with the performance and conduct
standards set forth in the settlement agreement. Id. In particular, the agency
charged that Mr. Schwarz was less than candid on two occasions, engaged in
off-duty misconduct that disrupted the workplace by sending two Facebook
messages to a retired employee, improperly attested to his time and attendance on
several occasions, and failed to follow instructions to request leave at least 1 day
in advance on one occasion. Id. at 7-9.
¶3 In its initial stay request, OSC argued that it had reasonable grounds to
believe that the agency reinstated Mr. Schwarz’s removal based on reprisal for
protected disclosures he had made concerning the agency’s improper testing of
aircraft fueling equipment and improper testing and disposing of jet fuel. Id. at
10-15. OSC asserted that an investigation by the agency’s Inspector General
3
substantiated Mr. Schwarz’s disclosures. Id. at 6. OSC further asserted that
attendant circumstances suggested that Mr. Schwarz’s protected disclosures
and/or activities were a contributing factor in the decision to reinstate his removal
because the June 8, 2017 removal notice directly referenced Mr. Schwarz’s
communications with OSC and the agency’s reasons for reinstating the removal
action were weak and lacked a nexus to Government efficiency. Id. at 14-15. On
June 30, 2017, OSC’s initial stay request was granted. U-1 SRF, Tab 2.
¶4 On July 28, 2017, OSC filed a timely request to extend the stay for an
additional 90 days. 2 Special Counsel ex rel. Glenn Schwarz v. Department of the
Navy, MSPB Docket No. CB-1208-17-0022-U-3, Stay Request File (U-3 SRF),
Tab 1. OSC’s request was granted in part, and the stay was extended for 60 days
through October 12, 2017. U-3 SRF, Tab 5.
¶5 On September 27, 2017, OSC filed a timely request to extend the stay for
an additional 60 days. Special Counsel ex rel. Glenn Schwarz v. Department of
the Navy, MSPB Docket No. CB-1208-17-0022-U-4, Stay Request File
(U-4 SRF), Tab 1. The agency has filed a timely response. U -4 SRF, Tabs 3-4.
ANALYSIS
¶6 A stay granted pursuant to 5 U.S.C. § 1214(b)(1) is issued to maintain the
status quo ante while OSC and the agency involved resolve the disputed matter.
Special Counsel v. Department of Transportation, 74 M.S.P.R. 155, 157 (1997).
The purpose of the stay is to minimize the conseq uences of an alleged prohibited
personnel practice. Id. In evaluating a request for an extension of a stay, the
record will be reviewed in the light most favorable to OSC, and a stay extension
request will be granted if OSC’s prohibited personnel practice claim is not clearly
2
Prior to this, on July 25, 2017, the agency’s motion to terminate the stay and
Mr. Schwarz’s motion to modify the stay were denied. Special Counsel ex rel. Glenn
Schwarz v. Department of the Navy, MSPB Docket No. CB-1208-17-0022-U-2,
Stay Request File, Tab 10.
4
unreasonable. Id. at 158. An extension may be granted for any period that is
considered appropriate. 5 U.S.C. § 1214(b)(1)(B); Special Counsel ex rel.
Waddell v. Department of Justice, 105 M.S.P.R. 208, ¶ 3 (2007).
¶7 In its request for an extension, OSC asserts that it has conducted interviews
with Mr. Schwarz’s first- and second-level supervisors, it has identified a third
witness to interview, and it is in the process of reviewing over 3,000 pages of
documents from the agency. U-4 SRF, Tab 1 at 2-3. OSC further asserts that it
expects the agency to produce additional documents and that it has reason to
believe that it will interview other witnesses as the investigation progresses.
Id. at 3. The agency consents to a 30-day extension but asserts that any extension
beyond 30 days is unnecessary. 3 U-4 SRF, Tab 3 at 4. In support of its argument,
the agency asserts that the third witness is an agency attorney who is not a new
witness and whose interview has been scheduled for October 11, 2017, prior to
the expiration of the current stay. Id. at 4-5. The agency further asserts that,
although it has produced over 3,000 documents, OSC received the bulk o f those
documents prior to September 1, 2017, and there are no further outstanding
document requests. Id. at 5-6 & n.3. Viewing the record in the light most
favorable to OSC and considering the fact that the evidentiary record supporting
OSC’s initial stay request does not appear to have changed materially since the
initial stay was granted, an extension of the stay is appropriate. See Special
Counsel ex rel. Waddell v. Department of Justice, 103 M.S.P.R. 372, ¶ 5 (2006).
¶8 The length of the extension, however, requires a separate determination.
Special Counsel ex rel. Waddell v. Department of Justice , 104 M.S.P.R. 141, ¶ 7
(2006). Although the agency opines that a 30-day extension is appropriate to
allow OSC to complete its investigation, OSC is in a better position than the
3
The agency concedes that a 30-day extension is reasonable “[i]n light of minor
scheduling conflicts from both OSC and a witness that briefly delayed the
investigation.” U-4 SRF, Tab 3 at 5.
5
agency to determine how much time is needed to complete the review process.
See Special Counsel v. General Services Administration , 45 M.S.P.R. 601, 605
(1990). Further, a 60-day extension would allow OSC time to initiate any future
action it deems appropriate, such as drafting a prohibited personnel practice
report, seeking resolution of the matter with the agency, and/or filing a petition
for corrective action with the Board. See 5 U.S.C. § 1214. Accordingly, 60 days
is a reasonable amount of time to extend the stay.
ORDER
¶9 Pursuant to 5 U.S.C. § 1214(b)(1)(B), a 60-day extension of the stay is
hereby granted, and it is ORDERED as follows:
(1) The stay issued on June 30, 2017, is extended through and including
December 11, 2017, on the terms and conditions set forth in that
Order;
(2) The agency shall not effect any changes in Mr. Schwarz’s duties or
responsibilities that are inconsistent with his salary or grade level, or
impose upon him any requirement that is not required of other
employees of comparable position, salary, or grade level;
(3) Within 5 working days of this Order, the agency shall submit
evidence to the Clerk of the Board showing that it has complied with
this Order;
(4) Any request for an extension of this stay pursuant to 5 U.S.C.
§ 1214(b)(1)(B), as amended by Pub. L. No. 115-42, 4 and 5 C.F.R.
§ 1201.136(b), must be received by the Clerk of the Board and the
agency, together with any further evidentiary support, on or before
November 24, 2017; and
4
As passed by the House of Representatives on May 25, 2017, passed by the Senate on
June 14, 2017, and signed into law on June 27, 2017.
6
(5) Any comments on such a request that the agency wants considered
pursuant to 5 U.S.C. § 1214(b)(1)(C) and 5 C.F.R. § 1201.136(b)
must be received by the Clerk of the Board on or before December 1,
2017.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
| {
"pile_set_name": "FreeLaw"
} |
622 So.2d 198 (1993)
STATE of Louisiana
v.
Scott Jude BOURQUE.
No. 92-KA-0968.
Supreme Court of Louisiana.
July 1, 1993.
Rehearings Denied September 2, 1993.
*208 Thomas E. Guilbeau, Lafayette, for applicant.
Richard P. Ieyoub, Atty. Gen., New Orleans, Bernard E. Boudreaux, Jr., Dist. Atty., Franklin, John P. Haney, Haney, Akers, & Segura, New Iberia, for respondent.
KIMBALL, Justice[*].
A St. Martin Parish grand jury indicted Scott Jude Bourque for the first degree murder of his estranged girlfriend, Charlotte Perry, in violation of LSA-R.S. 14:30. After trial by jury, the defendant was found guilty as charged and unanimously sentenced to death after two aggravating circumstances were found. The trial judge sentenced defendant to death in accordance with the recommendation of the jury. This is the direct appeal of his conviction and sentence.
On appeal, Bourque relies on seventy-seven (77) assignments of error for the reversal of his conviction and sentence, fifty-three (53) of which have been briefed.[1]*209 Although we find no error was committed in the guilt phase of the trial, and affirm the defendant's conviction, we find an arbitrary factor may have been injected into the penalty phase of the trial, mandating that we vacate the sentence of death and remand for a new sentencing hearing.
FACTS
The following facts were adduced in the guilt phase of the defendant's trial. On March 17, 1990, Kenneth Perry received a telephone call from his twenty-eight year old daughter, Charlotte. Ms. Perry told her father the defendant had taken her from her place of employment, as he had done on a prior occasion. When he learned this, Mr. Perry drove to Scott Bourque's trailer in Kaplan, Louisiana, to retrieve his daughter and some of her belongings. Charlotte Perry and the defendant had had a prior relationship but had broken up a few months earlier.
When he arrived, Mr. Perry saw Ms. Perry outside the trailer and spoke to her briefly. The defendant approached and told the two Perrys he wanted them to accompany him to Holly Beach. When Mr. Perry declined, the defendant became abusive, using foul language toward Ms. Perry. The defendant threatened to kill Ms. Perry and her father.
The defendant continued to curse Ms. Perry and threatened to shoot both Perrys while he walked back to his trailer. He stated that if they left, he would burn all of Ms. Perry's belongings. After conferring with his daughter, and learning of her desire to retrieve a camera and dress the defendant had in his trailer, Mr. Perry walked up to the trailer. While talking to the defendant, Mr. Perry noticed the barrel of a gun held by the defendant. He told his daughter to get in his car, and the two Perrys drove away.
Terry Loignon, the owner of The Barn Lounge in Gueydan, Louisiana, saw the defendant in his bar about a month later, on the evening of April 15, 1990. Loignon first saw the defendant in the bar between 9 p.m. and 10 p.m. Loignon knew the defendant owned a nickel-plated 9 MM pistol and a shotgun, and he saw the pistol in the defendant's possession that night. Cheryl Oberg, the bartender at The Barn Lounge that evening, served the defendant a single shot of Tequila around 10 p.m. Both Loignon and Oberg observed the defendant was speaking and walking normally. The defendant left the bar at approximately 10 to 10:30 p.m.
April 15, 1990 was Easter Sunday and Theresa Stoute, her daughter Charlotte Perry, her oldest son Kenny Paul Perry, and her friend Carroll Romero were at her residence in St. Martinville, Louisiana in the early evening. Ms. Perry had lived at home since January 30, 1990.
While eating dinner about 7:30 p.m., the telephone rang. Because Ms. Perry had been receiving threatening calls from the defendant, Mrs. Stoute routinely answered the phone. When Mrs. Stoute answered the call, the defendant told her, "Ms. Perry, tell Charlotte I love her and I love you." Mrs. Stoute told the defendant she would do so and hung up the phone.
Later, as the family cleaned up the kitchen, the phone rang again. This time the defendant told Mrs. Stoute, "Ms. Perry, tell Charlotte I love her very much and this is the last day of my life." The defendant had said similar things in the past to Mrs. Stoute. Ms. Perry seemed distressed after being told of the call.
Kenny Paul Perry left the house between 10 p.m. and 10:30 p.m. that evening. Ms. Perry took a bath while her mother and Carroll Romero went into a bedroom to watch television. At approximately 11 p.m., Ms. Perry's seventeen year old brother, Michael, came home. Mrs. Stoute talked to her two children in the kitchen, but soon returned to the bedroom where she fell into a light sleep.
*210 Soon thereafter, Michael Perry moved to answer a knock at the back door while Ms. Perry, who was in a nightgown, began to walk down the hall. The defendant was at the door. Without saying a word to Michael, the defendant walked past him toward the hall where he saw Ms. Perry. Michael saw the defendant had a shotgun with a pistol grip and heard him command, "Charlotte, come here."
Michael grabbed his keys, closed the door, and ran outside to get help. He drove his car to a nearby police station and told the officer on duty that there was a man with a gun in his house who would probably use it. After relaying his address, Michael jumped back in his car to go home.
Meanwhile, Mrs. Stoute was awakened from her light sleep by scrambling sounds in the hallway in front of her room. She opened her bedroom door and saw the defendant pulling her daughter down the hall. Mrs. Stoute yelled at the defendant that he couldn't do this to her daughter, then grabbed on to Ms. Perry and tried to keep the defendant from taking her. Because the two women were smaller, the defendant pulled both women down the hall and into the den.
As the group passed the kitchen counter and entered the brighter light of the kitchen, Mrs. Stoute was able to see a shotgun in the defendant's right hand and that his finger was on the trigger. Mrs. Stoute looked at the defendant just as he raised the shotgun, placing it at Mrs. Stoute's throat.
Acting instinctively, Mrs. Stoute grabbed the barrel of the shotgun and pushed it away toward her shoulder, as the defendant pulled the trigger. Mrs. Stoute heard her daughter scream while she was spun around by the blast, falling face down on the floor. Right before the defendant pulled Ms. Perry out of the door, Mrs. Stoute heard her say, "No, Scotty, no, no, I don't want to go." Mrs. Stoute, still conscious, tried to rise from the floor to follow but was unable to do so. When she turned her head and looked at her left hand, she saw her thumb had been shot off. She believed she was going to die.
Awakened by the noise in the hall and the shotgun blast, Carroll Romero walked down the hall to find Mrs. Stoute face down and bleeding on the floor. He saw the defendant's back retreating out the back door and although he could hear Ms. Perry, he could not see her. Romero did not know if Mrs. Stoute was alive until she spoke, telling him the defendant had shot her and had taken her daughter. Romero told Mrs. Stoute not to get up because she was bleeding and called an ambulance. He ran into the kitchen and brought back a kitchen towel to wrap her hand; he also obtained a blanket because Mrs. Stoute was shivering. Because Mrs. Stoute also feared for her son, Michael, whom she had not seen, Romero walked to the edge of the porch.
From that vantage point, Romero saw the defendant trying to force Ms. Perry toward his white, Chevy Corsica four-door sedan. Ms. Perry was fighting back to keep from going into the car, all the while begging the defendant to let her go. Romero reentered the house and called Ms. Perry's grandfather. He then heard a shot and went outside.
Michael Perry, who had just returned from the police station and had parked his car directly across the street from his house, saw the defendant just as he was forcing Ms. Perry out of the house. Michael saw his sister resisting the whole way. When they were about 10 feet from the defendant's car, the defendant could force Ms. Perry to go no further. At that point, the defendant let Ms. Perry go and shot her with his 9 MM pistol. Michael exited his car and started toward his sister. When the defendant looked over at the brother, Michael retreated back to his car. As soon as Michael retreated, the defendant walked back to Ms. Perry, raised the pistol, and shot her three more times as she lay on the ground. The defendant then ran to his car, put the two weapons in the back seat, and sped away.
By the time Romero came outside again, the defendant was walking back to Ms. *211 Perry. Romero saw the defendant use both hands to point the pistol and shoot the victim as she lay on the ground. He saw the defendant speed away and noticed Michael Perry standing across the street.
Inside the house, Mrs. Stoute heard a shot, then three more shots. At the time, she believed the defendant had killed her children, Charlotte and Michael. Romero ran back into the house to comfort her.
Michael got into his car and followed the defendant to obtain the license number of the car the defendant was driving. He stopped at a gas station to write the number down, then went to his grandfather's house to tell him what had happened. After that, Michael drove home and found police officers at the scene.
Patrol Officer Cheryl Degeyter of the St. Martin Parish Sheriff's Office was the first officer on the scene. She checked Ms. Perry and found no pulse. After entering the house, she found Mrs. Stoute lying face down and called for an ambulance. When Michael came in, she questioned him. As a result of this information, she secured an arrest warrant for Scott Bourque.
Other sheriff's officers arrived. The crime scene was secured and Mrs. Stoute was transported by ambulance to the hospital. Spent shell casings were retrieved from the area around Ms. Perry's body. Shotgun pellets were found in the residence on the floor and in the walls, along with shot sleeve and wadding from a shotgun. This evidence, along with the clothing worn by the two women, and two bullets later recovered from Ms. Perry's body, was turned over to the Acadiana Crime Lab for analysis.
In the early morning hours of April 16, 1990, Ian Robinson, a photo journalist from England, was awakened by knocking at the door of the friend's apartment in Metairie, Louisiana, where he was staying. Robinson opened the door and saw the defendant, who asked if his friend was at home. Robinson told the defendant the friend was not there, but invited the defendant inside.
The defendant told Robinson, "I've got to get away, I've got to escape," then stated he had just shot or killed three people. Robinson, who had been trained as a social worker, believed he could handle the situation and attempted to calm the agitated defendant. He asked the defendant his name and talked to him. When the defendant asked for a drink, Robinson handed him a bottle of vodka. Before drinking the vodka, Robinson observed the defendant's speech and movements were normal.
Robinson noticed a pistol in the defendant's pants; the defendant later placed the pistol on the coffee table. Robinson attempted to make some phone calls to get help but was unsuccessful in reaching anyone on the first two calls. On the third call, Robinson reached the bartender of a nearby bar, Lefty's, but was unable to talk to him because the defendant was in the room. At some point, the defendant's pager went off and he made a telephone call. Robinson heard the defendant tell the other person that he was sorry, to look after his child, and that he would not be taken alive. The defendant also told the other party he would not see him again. The defendant indicated he knew he would "fry for this."
After this phone call, the defendant became nervous about staying at the apartment and wanted to leave. He indicated he wanted to take Robinson's car but Robinson convinced him his car was not working. The defendant related his plans to first get to his brother in eastern New Orleans, then flee the country. Robinson was to ditch the defendant's car later. The defendant told Robinson he had about $9000 in cash and showed him a large amount of money.
The two men left the apartment. When Robinson entered the defendant's car, he noticed a shotgun leaning against the passenger seat. Wishing to place the weapon as far away from the defendant as possible, Robinson placed the shotgun on the back seat and buried it under a bag of clothing. The defendant placed the pistol on the floorboard of the car on the driver's side.
When the men passed Lefty's bar, Robinson suggested stopping there for a drink and the defendant agreed. Both men ordered *212 a beer when the bartender came over but Robinson was unable to speak to him. At some point, Robinson was able to slip away to the bathroom and write a note alerting the bartender to the situation.
After reading the note, the bartender made Robinson aware that several off-duty police officers were in the bar. Robinson was able to signal them and two officers followed him into the bathroom. Once there, Robinson told the officers of the situation. One of the off-duty officers told another person to go across the street and call for assistance.
Robinson left the bar with the intention of hiding the pistol. He was unable to do this, however, because the defendant followed him and asked what he was doing. Robinson made an excuse; the defendant then locked his car doors and the men returned to the bar. Shortly thereafter, Jefferson Parish Sheriff's officers entered the bar, stated there was a problem with a white car in the parking lot, and asked who was the owner. The defendant admitted the car was his and followed the officers outside. Robinson followed the officers outside and observed the defendant talking to the officers for about a half hour with no difficulty.
Sgt. Norman Schultz of the Jefferson Parish Sheriff's Office (JPSO) responded to the call at the bar at 2:30 a.m. on April 16, 1990. He observed the 9 MM pistol and a bank bag lying on the floorboard of the defendant's locked car through the window. When the defendant emerged from the bar, JPSO Officer Richard Reggio advised him of his rights. Questioning ceased after the defendant indicated he wanted a lawyer. A pat down for weapons revealed several shotgun shells and over $8000 in cash. While being detained, the defendant made two inculpatory statements. At one point during his detention he stated, "Yeah, I did it, so what?" Later, while being placed in a police vehicle to wait, the defendant volunteered, "Oh, by the way, I killed three people tonight."
The defendant was detained for approximately forty-five minutes to an hour before the JPSO received confirmation from the St. Martin Parish Sheriff's Office that there was an arrest warrant for him. The defendant was arrested and transported to Jefferson Parish lock-up. His vehicle was secured with tape and towed to the Jefferson Parish impound lot. A search warrant was obtained for his car. The 9 MM pistol, a 12-gauge shotgun, a clothing bag, a small travel bag, empty 9 MM shell casings, and a box of shotgun shells were recovered from the vehicle. This evidence was transferred to the Acadiana Crime Lab.
At trial, the state introduced this evidence and the testimony of several experts. Dr. Emile Laga, the coroner for St. Martin Parish who performed the autopsy on Ms. Perry, was accepted as an expert in forensic pathology. He testified the cause of death was multiple gunshot wounds which caused massive bleeding and resulted in cardiac arrest.
He found a deep cut on the victim's right wrist. He found one bullet traveled through her left hand and into her head, lodging in the left side of her neck. This was a defensive wound, received when the victim raised her hand to protect herself. Although this wound was potentially fatal, it was not necessarily or immediately so. This bullet was recovered from the victim's body.
Another bullet entered the victim's body in the right chest, passed through a lung, and exited through the victim's back. No bullet was recovered for this wound. Dr. Laga testified a person would not die immediately from this wound.
Dr. Laga testified the fatal bullet entered the victim's left neck, traveled through the chest cavity into the abdominal cavity, tearing apart the heart and damaging the liver, and lodging in the muscles of the victim's back. This bullet was recovered from the victim's body. Dr. Laga testified this bullet was fired from a downward angle into the body.
Christopher Henderson of the Acadiana Crime Lab was accepted by the court as an expert in forensic chemistry, blood splatters, ballistics, and firearms. He testified *213 the pistol recovered from the defendant's car was a Smith and Wesson 9 MM semi-automatic pistol which contained one live cartridge in the chamber and three 9 MM cartridges in the magazine. Henderson determined the spent shell casings found outside the Stoute residence near the body of Ms. Perry had been fired from the pistol, as were the bullets removed from the victim's body during the autopsy. By comparing gun powder residue, Henderson was able to determine the bullet that entered the victim's right chest was fired from 6" to 24" away.
The shotgun seized from the defendant's car was a 12-gauge Revelation shotgun with one spent shell in the chamber and five live shells containing # 4 shot in the magazine. The spent shell had never been ejected from the gun; it was determined to be a Winchester Super X, three-inch magnum, 12-gauge shell which had contained # 4 shot. The shotgun pellets, shot sleeve and wadding recovered from inside the Stoute residence and the fragments recovered from Mrs. Stoute's shoulder were also # 4 shot.
Dr. Lawrence O. Broussard was accepted as an expert in the field of surgery. He had operated on Mrs. Stoute and described her injury as a gaping wound of the right shoulder, 8" × 5" in diameter, extending from the base of the neck to the tip of the shoulder. Although the major artery and vein had not been severed, Mrs. Stoute could have bled to death from her injuries had she not received prompt medical assistance. In addition, her left thumb had been shot away at the joint. Dr. Broussard testified a shotgun blast at the same distance to the throat area below the chin would have been immediately fatal.
The defense put on no witnesses during the guilt phase of the trial. The jury returned a unanimous verdict of guilty of first degree murder as charged.
At the penalty phase of the trial, the state reintroduced all the evidence presented at the guilt phase and additionally presented the testimony of twelve witnesses who would testify as to the defendant's character and propensities. Deputy Stan Suire of the Vermilion Parish Sheriff's Department testified that he investigated a complaint against the defendant made by Mr. Perry and his daughter on March 17, 1990. When he arrived at the defendant's residence to investigate the complaint, Deputy Suire found a small fire in which several of Ms. Perry's belongings were burning. The defendant was not at the residence.
The other eleven witnesses offered testimony to show the defendant killed a man named Jasper Fontenot at The Barn Lounge in Gueydan approximately one hour before he killed Ms. Perry at her mother's residence in St. Martinville.[2] Terry Loignon, the owner of the bar, testified the defendant entered the bar around 9 p.m. on April 15, 1990. The defendant asked Loignon if the man with whom he was playing pool was Jasper Fontenot and Loignon indicated this was so. Later, Loignon saw the defendant talking to Fontenot but stated the two men did not appear to be arguing. The defendant asked Loignon for permission to use Loignon's telephone at his nearby residence and left the bar to do so. He returned ten or fifteen minutes later and sat at the end of the bar.
A little while later, Loignon saw the defendant come around a corner of the bar, take out his pistol, and state, "I'll take care of this shit." As Loignon grabbed the defendant's hand, the gun fired into the floor.[3] When Loignon released the defendant's hand, the defendant pushed Loignon away and shot Fontenot. After hearing the defendant state, "That wasn't enough," Loignon saw the defendant fire two more shots at Fontenot. The defendant then turned and left the bar.
*214 Three other eyewitnesses testified they were in The Barn Lounge and saw the defendant shoot Jasper Fontenot. Four spent 9 MM casings and a bullet were recovered from the bar, as well as lead fragments in the ceiling.
Dr. Laga performed the autopsy on Jasper Fontenot. He testified the cause of death was a single gunshot wound to the chest. A bullet was recovered from Fontenot's body. This bullet and the other evidence recovered from the bar were turned over to the Acadiana Crime Lab.
Christopher Henderson testified the bullet recovered from the bar, the bullet recovered from Fontenot's body, and the four spent shell casings were fired from the 9 MM pistol recovered from the defendant's car in Jefferson Parish. No determination could be made from the lead fragments recovered from the bar's ceiling.
The defense presented evidence the defendant had spent a good portion of the day prior to the shootings drinking. The defendant's cousin, Marian Meaux, saw the defendant at Bennigan's Restaurant in Lafayette at noon on April 15, 1990. At that time, the defendant was drinking with a female friend. Meaux joined them and stayed at Bennigan's drinking for the entire afternoon until they left at 6 p.m. to go to another bar in Maurice, Louisiana. Their loud behavior in Bennigan's caused the manager to talk to them. Meaux testified both he and the defendant were intoxicated but stayed at the other bar until 9 p.m. The defendant was drinking Scotch all day with shots of Tequila every fifteen or twenty minutes. Meaux testified this was heavy drinking for the defendant. Meaux noticed the defendant's speech was not slurred but was rather loud. Meaux thought the defendant was walking normally.
The defense presented the testimony of the manager of Bennigan's, who confirmed the defendant had been drinking the afternoon of April 15, 1990. He noticed the defendant having a heated discussion at the bar with another person but was able to control the situation by talking to the two men. Although the manager stated the men had obviously been drinking, he did not think they were intoxicated.
A Jefferson Parish Sheriff's Office deputy who was working at the lock-up when the defendant was booked, testified he had marked on a booking sheet that the defendant appeared intoxicated. The booking sheet noted the defendant had the appearance and smelled of alcohol. The booking sheet also showed when asked if he had ever been hospitalized for drug abuse, the defendant informed the officer he had. The defense also presented the testimony of a prison drug rehabilitation therapist who stated the defendant had successfully completed a drug program in the parish prison and had subsequently become a tutor in the program.
The defendant's mother, Rita Durand, testified the defendant was her only child and that he had a thirteen year old daughter who lived with her mother and stepfather. The defendant's mother and father separated when the defendant was seven and a half years old. The defendant initially lived with his mother, but at thirteen began living with his maternal grandparents because his mother remarried and the defendant did not get along with his stepfather. He finished grammar school and up to the eleventh grade in high school in Kaplan, Louisiana, except for a short period when he attended a private school in Covington, Louisiana. Mrs. Durand stated the defendant had quite a few behavioral problems in school and was a discipline problem. After Mrs. Durand separated from her second husband, the defendant came to live with her for six months before returning to live with his grandparents. In fact, the trailer in Kaplan, Louisiana where the defendant lived before the shootings occurred was next door to his grandparent's house. Mrs. Durand had visited her son frequently.
Mrs. Durand testified the defendant had been unable to hold a job for long, although he had done parish road construction and had worked in various oilfield related jobs. The defendant had also worked for his father at his father's service station.
*215 When Mrs. Durand visited the defendant in the parish jail the week after the shootings, he was very upset, crying about what had happened. He has cried about the shootings each time she has visited him since then. Mrs. Durand testified she visits the defendant as often as she can. She stated she loved her son and would not forget him while he was in prison. The defendant did not testify.
After hearing the above evidence, the jury unanimously recommended the death penalty, finding two statutory aggravating circumstances: (1) that the murder of Charlotte Perry was committed during the perpetration or attempted perpetration of an attempted aggravated kidnapping, and (2) that the offender knowingly created the risk of death or great bodily harm to more than one person.
PRETRIAL ISSUES
Assignments of Error Nos. 1, 2, 3
Recusal issues
By these assignments, the defendant asserts the trial court erred in denying his motions to recuse the district attorney or his assistants from prosecuting the case. The defendant also claims as error the denial of his motion to have Assistant District Attorney (ADA) Phil Haney, sequestered as a defense witness.
The record shows three motions to recuse were filed. The first motion sought to recuse ADA Haney based on his involvement in the investigation of the case and based on the defense's intention to call him as a witness.[4] The second motion asserted the district attorney's office could not be fair and impartial because Tom Lovas, an investigator for the district attorney's office, was the brother-in-law of one of the victims, Theresa Stoute (and hence, the uncle of Charlotte Perry). The motion also stated the defendant was the stepson of the Chief Deputy of the St. Martin Parish Sheriff's Office. The third motion reurged the reasons set forth in the previous motions and asserted the district attorney withheld impeachment evidence on one of the state's witnesses, failed to comply with discovery rules, and failed to comply with the Rules of Professional Conduct.
La.C.Cr.P. art. 680 mandates recusal of the district attorney when he:
(1) Has a personal interest in the cause or grand jury proceeding which is in conflict with fair and impartial administration of justice;
(2) Is related to the party accused or to the party injured, or to the spouse of the accused or party injured, or to a party who is a focus of a grand jury investigation, to such an extent that it may appreciably influence him in the performance of the duties of his office; or
(3) Has been employed or consulted in the case as attorney for the defendant before his election or appointment as district attorney.
Separate hearings were held for each motion filed. See La.C.Cr.P. art. 681. The first motion was heard January 4, 1991. Haney testified he accompanied Detective Eddie Romero to Jefferson Parish on April 16, 1990 to help pick up the defendant and transport him back to St. Martin Parish. The St. Martin Parish Sheriff's office regularly called an assistant district attorney for assistance whenever a person was charged with first or second degree murder to ensure correct legal procedures were observed. In keeping with this practice, Haney checked the search warrant for the defendant's car to make sure it was valid, made some legal suggestions, and accompanied the Jefferson Parish officer to the district judge to have the warrant signed. While Haney and Romero had arrived in Jefferson Parish between 3:30 a.m. and 5 a.m., Haney did not see the defendant until sometime after lunch.
Prior to the drive back to St. Martin Parish, Romero read the defendant his *216 rights and instructed him not to talk about the case. Romero and the defendant sat in the front seat of the unmarked police vehicle while Haney sat in back. Although Haney could see the defendant in the front seat, he could not observe the defendant's characteristics and mannerisms. At some point, the defendant indicated he wanted to speak to his stepfather, Chief Deputy Durand. Haney did not discuss anything about the case with the defendant.
Romero confirmed Haney's testimony in all important respects. He testified Haney did not participate in the investigation, did not gather evidence, and did not instruct Romero in any way. According to Romero, Haney was there in a legal advisory capacity only. Romero added only that on the trip to St. Martin Parish, the defendant talked of weather, traffic, family, and made a brief comment about "messing up real bad." According to the officer, Haney made no conversation whatsoever.
After hearing this testimony, the trial judge found that the fact Haney may have been in the defendant's presence for the trip back to St. Martin Parish did not make him a necessary witness, especially considering nothing of significance occurred during the trip. So finding, the trial judge refused to recuse Haney from prosecuting this case. Defense counsel objected. This court denied a writ on the issue on January 24, 1991. See, 573 So.2d 1125 (La.1991).
The second motion was heard February 18, 1991. The defense introduced the file and argued the district attorney's office could not be fair and impartial based on the familial relationships between the district attorney's office and the victims, and the familial relationship between the defendant and the St. Martin Parish Sheriff's office. The trial judge held the familial relationship between the victims and the district attorney's investigator would not impair the duty of the prosecutor to prosecute and denied the motion. The trial judge questioned how the relationship between the defendant and the Chief Deputy Sheriff was a ground for recusal of the district attorney's office. The defense objected to the denial of the motion. This court denied writs on the issue on March 14, 1991, with the notation: "Denied on the showing made at this time." See 576 So.2d 56 (La.1991).
The third motion was heard March 14, 1991. In the motion, the defense reurged the information alleged in the two previous motions and alleged the state withheld impeachment evidence regarding Detective Romero, a state witness, despite a discovery motion to disclose this information. At the hearing, Romero admitted he had been convicted for violating the civil rights of a murder suspect in 1986 by striking the suspect with a baseball bat. The defense showed this information was not disclosed in answer to its discovery motion. The first court-appointed attorney to represent the defendant, Kim Kidd, who filed the motion, was a former ADA who had knowledge of Romero's conviction.
In response, the state elicited testimony Romero did not threaten or coerce the defendant in this investigation. Romero stated the district attorney's office did not advise him to withhold information regarding his conviction. Attorney Kidd testified he knew of Romero's conviction at the time he filed the discovery motion. He claimed he was not working for the district attorney's office at the time he filed the discovery motion and the district attorney's office did not ask him to conceal the information.
The trial court denied the third motion to recuse. The defense objected. In a writ filed to this court, the focus of the defense's argument shifted to his prior claim that Haney would be called as a defense witness because Haney had relevant knowledge concerning the defendant's defense of intoxication or intoxication as a mitigating circumstance. Writ application, No. 91-KD-0672, p. 2. The defense claimed Haney's testimony was vital. Id., p. 3. This court denied a writ on March 22, 1991. See 577 So.2d 4 (91-KD-0672) (La.1991).
ADA Haney
On appeal, Bourque contends the trial court erred in failing to recuse Haney or to order his sequestration. In a motion to recuse the district attorney, "the defendant bears the burden of showing by a *217 preponderance of the evidence that the district attorney has a personal interest in conflict with the fair and impartial administration of justice." State v. Edwards, 420 So.2d 663, 673 (La.1982). While this standard of proof is applicable for the disqualification of an assistant district attorney, the grounds for disqualification are not necessarily restricted to the statutory grounds to recuse a district attorney as set forth in La.C.Cr.P. art. 680. See State v. Allen, 539 So.2d 1232, 1234 (La.1989).
The record is clear the actions taken by Haney did not amount to participating in the investigation of this case. Haney undertook actions only within his role as assistant district attorney. Compare State v. Whitmore, 353 So.2d 1286, 1290-91 (La. 1977) (motion to recuse properly denied and district attorney's actions described as "routine" where district attorney took stand at suppression hearing to refute allegations of promises of leniency and took stand at trial to lay foundation for admission of confession); State v. Sheppard, 350 So.2d 615, 633 (La.1977) (motion to recuse district attorney properly denied and actions described as "consistent with his function as the prosecutorial force" where district attorney interviewed defendant immediately after arrest and held a press conference regarding the arrest); State v. Bennett, 341 So.2d 847, 858 (La.1976) (same as above). Thus, the trial court properly denied the defendant's motion to recuse the assistant district attorney.
Further, there was no error in the trial court's refusal to order Haney sequestered. See State v. Fallon, 290 So.2d 273, 279 (La.1974) ("because defense counsel desires to interrogate as his witness an assistant district attorney actively engaged in the trial does not mean that the defense may compel his sequestration and disrupt the trial"); La.Code Evid. art. 615.
There was nothing preventing the defendant from calling Haney to the witness stand. The general rule acknowledges the right of a criminal defendant to call relevant witnesses to present a defense but maintains the broad discretion of a trial court, while determining the competency and relevancy of witnesses, to prevent the calling of a prosecutor as a defense witness unless the prosecutor possesses unique information relevant and material to the theory of the defense. State v. Tuesno, 408 So.2d 1269, 1272-73 (La.1982). The record shows the trial court did not prevent the defendant from calling Haney to testify.
Defense counsel did not call Haney to the stand, citing the trial court's refusal to sequester Haney as precluding the defense from calling Haney as a witness. The defense feared Haney's position as prosecutor would influence the jury to give more credence to his testimony. The trial court noted Haney was to have been called as a witness for two specific purposes. The first purpose was to testify as to Bourque's condition at the time Haney traveled with the defendant from Jefferson Parish to St. Martin Parish. The trial court noted Haney's participation in the case had neither lessened nor increased his knowledge about that particular instance. The second purpose was to testify as to preliminaries regarding the voluntariness of certain statements which may have been made by the defendant during the trip. The trial court noted these statements were not introduced in evidence, so there was no need to call Haney for the second purpose. While not disagreeing with the court's analysis, defense counsel reiterated its reasoning. When invited to proffer the evidence, defense counsel declined.
The record supports the trial court's finding Haney was not a necessary witness for the defense. Although the defense claimed Haney was necessary to its defense of intoxication, the testimony adduced at trial shows this is not so. Charlotte Perry was killed about 11 p.m. on April 15, 1990. The first person to whom defendant spoke after the shooting was Ian Robinson in Metairie sometime after midnight. Robinson did not think Bourque was intoxicated. Thereafter, Bourque drank vodka at the apartment and at least one beer at the Metairie bar. Jefferson Parish officials were the next persons to be in contact with the defendant. Some of them testified the defendant did not appear intoxicated. Considering *218 Haney did not come in contact with Bourque until the afternoon of the next day, the importance and relevance of his testimony with regard to the defense's claim of intoxication is unsubstantiated. More likely witnesses for the intoxication defense would have been those persons who saw the defendant either immediately before or after the shooting of Charlotte Perry. See Tuesno, 408 So.2d at 1273.
District Attorney's office
The defense moved to recuse the district attorney's entire office in its second and third motions based on the family relationship existing between the district attorney's investigator and the victims and the defendant's relationship with the Chief Deputy Sheriff of St. Martin Parish. In brief to this court, Bourque also contends the district attorney should have been recused because the first defense counsel appointed to represent the defendant, Kim Kidd, was a former assistant district attorney. Bourque argues there was a conflict of interest not remedied by Kidd's dismissal as lead defense counsel because Kidd served as a consultant during jury selection.
The district attorney's investigator, Tom Lovas, is Mrs. Stoute's brother-in-law and was Charlotte Perry's uncle. Although admitting in an earlier writ application to this court that Lovas was not involved in the investigation of this case,[5] the defendant claims this relationship would cause Lovas to influence the actions of the district attorney's office to such an extent the entire office's prosecutorial function would be tainted.
We disagree. The defendant did not present any evidence tending to show a personal interest on behalf of the entire district attorney's office which would threaten the fair and impartial administration of justice. "The mere presence of a victim's relative in the district attorney's office does not support a finding of recusal." State v. West, 561 So.2d 808, 811 (La.App. 2 Cir.), writ denied, 566 So.2d 983 (La.1990) (where victim of robbery was father of assistant district attorney not assigned to case).
The defendant is the stepson of Alan Durand, Chief Deputy of St. Martin Parish. Upon his return to St. Martin Parish, Bourque requested he be allowed to talk to his stepfather. He now claims this meeting violated his rights to an attorney and to remain silent and gives rise to an appearance of impropriety. The defendant concedes, however, he can point to no prejudice which resulted from this interview. No statements made at this time were introduced in evidence. We agree with the trial court; defendant has not carried his burden of showing how the district attorney's office could be influenced to the extent it could not operate in a fair and impartial manner by the defendant's family relationship with a sheriff's deputy.
Although conceding the prior employment relationship between the district attorney's office and Kim Kidd is not enough to warrant recusal, the defendant asserts Kidd learned of evidence favorable to the defense while an assistant district attorney. At the hearing on the third motion to recuse, Kidd acknowledged he knew Romero had been convicted of a civil rights violation when Kidd represented the defendant. Romero admitted the conviction and provided some details. When the defense sought to question Romero regarding any civil consequences of the action, the trial court sustained the state's objection on the grounds of relevancy. The defendant now argues he could have shown a conflict of interest between the district attorney's office and Kidd had he been allowed to continue with this line of questioning.
The record shows the correctness of the trial court's holding. Romero was thoroughly questioned as to the prior conviction and any relevance it would have on the investigation of this matter. Both Romero and Kidd denied any instructions from the district attorney's office to conceal Romero's conviction. Under La.Code Evid. art. 609.1(C), the trial court properly allowed into evidence only the fact of conviction, *219 the name of the offense, the date of the offense, and the sentence imposed.
Early in the case and directly after he had been appointed to represent the defendant, Kidd filed a motion to withdraw as lead defense counsel based on his close relationship with Tom Lovas and Alan Durand. The trial court granted the motion and new counsel was appointed.
New defense counsel subsequently and specifically requested Kidd's assistance in selecting the jury due to Kidd's greater familiarity with the jury pool in St. Martin Parish. The state vehemently objected, arguing the defendant would raise the issue on appeal, as has occurred. Only after much reluctance, and the forceful argument of defense counsel, did the trial court permit Kidd to participate in this limited capacity. Considering the defense's forceful argument to retain Kidd in the extremely limited capacity he filled, and defense counsel's assurances no prejudice would result to the defendant, we find no error in the trial court's ruling.
Assignment of Error No. 4
Indictment issue
The defendant argues the trial court erred in denying his motion to quash the indictment. Bourque contends the indictment was defective because it did not contain the aggravating circumstances the state would rely on to prove first degree murder. Although he acknowledges the defect complained of may be remedied by advance notice prior to trial, he claims he did not receive such information.
The indictment in this case states, in pertinent part, "that one SCOTT JUDE BOURQUE... with force and arms, on or about the 15th day of April [1990] [d]id commit first degree murder of Charlotte Louise Perry, in violation of La.R.S. 14:30FIRST DEGREE MURDER."
Under La. Const. art. I, § 13, an accused shall be informed of the nature and cause of the accusation against him. That requirement is implemented by La. C.Cr.P. art. 464 which sets forth the requirements of an indictment. La.C.Cr.P. art. 465 authorizes the use of specific short form indictments in charging certain offenses, including first degree murder. The indictment at issue follows the short form authorized in Art. 465. The use of short form indictments is constitutionally valid. State v. Baylis, 388 So.2d 713, 719 (La. 1980); State v. Liner, 373 So.2d 121, 122 (La.1979). The indictment at issue was not defective.
Contrary to the defendant's assertion, the record shows he received notice well in advance of trial of the aggravating circumstances the state relied on to prove first degree murder in the state's answer filed October 19, 1990. In fact, the defendant's motion to quash, filed January 25, 1991, argued the evidence was insufficient to support a finding of first degree murder under R.S. 14:30(A)(1), and that R.S. 14:30(A)(3) was unconstitutionally vague and overbroad.
The defendant's other arguments regarding the sufficiency of the evidence will be discussed in other sections of this opinion.
Assignments of Error Nos. 5, 6, 7
Jefferson Parish issues
By these assignments, the defendant contends the trial court committed reversible error in failing to suppress evidence seized from his car pursuant to a warrant, evidence seized from his person incident to his arrest, and inculpatory oral statements he gave while in Jefferson Parish and on the ride back to St. Martin Parish.
evidence seized from car
As to the evidence seized from his car, the defendant asserts the search warrant was not based on probable cause as it was not based on the personal knowledge of the police officer who prepared the warrant. Most of the information was provided by Ian Robinson. The defendant complains there was nothing to indicate Robinson's credibility and points out Robinson failed to provide a written statement or testify before the signing judge.
In order to be valid, "a search warrant may issue only upon probable cause established to the satisfaction of the judge, by *220 the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant." La.C.Cr.P. art. 162; La. Const. art. I, § 5. This court has held probable cause exists "when the facts and circumstances within the affiant's knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched." State v. Byrd, 568 So.2d 554, 559 (La.1990) (citation omitted).
A judicial officer "must make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, there is a `fair probability' that evidence of a crime will be found in a particular place." Byrd, 568 So.2d at 559. On appeal, this court must find only that the issuing judicial officer had a "substantial basis" for finding the existence of probable cause. Id.; See Illinois v. Gates, 462 U.S. 213, 239-41, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
The application for the complained-of search warrant states the affiant, JPSO Sergeant Schultz, was informed by Detective Romero of the St. Martin Parish Sheriff's office about a white male murdered in Vermillion Parish on April 15, 1990 with a 9 MM semiautomatic handgun. A witness had positively identified Scott Bourque as the person who committed the murder. Sgt. Schultz was also informed that, about one hour later, Scott Bourque was identified as having been involved in another shooting in St. Martin Parish. At that location, one person was shot and killed with a 9 MM handgun and a second victim was shot with a shotgun and seriously injured.
From Ian Robinson, Sgt. Schultz learned the defendant had arrived at the apartment of his friend in Metairie, La., where Robinson was staying, at approximately 2 a.m. The defendant asked to stay and told Robinson he had killed three people. Robinson saw Bourque use the telephone and confirm that the defendant thought the people he had shot had been killed. Robinson observed the defendant in possession of a chrome plated 9 MM semi-automatic pistol. Robinson saw a 12-gauge shotgun in the white Chevrolet Corsica driven by Bourque and placed this weapon on the back seat under some clothes. Robinson told Sgt. Schultz that Robinson had known police officers frequented the lounge and he took the defendant there to obtain help. While at the bar, Robinson alerted the bartender of the defendant's earlier inculpatory statement. The bartender relayed the information to an off-duty police officer, who in turn requested an off-duty fireman to contact police.
Sgt. Schultz was notified and came to the location after other Jefferson Parish officers had arrived and detained the defendant. Sgt. Schultz contacted his superior, who in turn contacted the St. Martin Parish Sheriff's office to verify the defendant was wanted for murder. After receiving confirmation from St. Martin Parish, Bourque was arrested. In the affidavit, Sgt. Schultz stated he personally observed a 9 MM semi-automatic, chrome-plated pistol on the floor of the driver's seat and a bank bag through the window of the vehicle.
A review of the affidavit supporting the application for the search warrant of the defendant's car shows there was a substantial basis for finding probable cause. Thus, there was no error in the trial court's denial of Bourque's motion to suppress the evidence seized from the defendant's vehicle.
The fact that the information contained in the affidavit supporting the application for the search warrant was not completely based on the personal knowledge of the attesting officer but on what he had been told by others is no bar to finding the warrant valid. This court has repeatedly held the facts necessary to show probable cause may be established by hearsay evidence. State v. Duncan, 420 So.2d 1105, 1109 (La.1982); State v. Jeffcoat, 403 So.2d 1227, 1229 (La.1981). As to the reliability of Robinson's information, there is a presumption of inherent credibility attaching to citizen informants. State v. Kyles, 513 So.2d 265, 271 (La.1987), cert. denied, 486 *221 U.S. 1027, 108 S.Ct. 2005, 100 L.Ed.2d 236 (1988); State v. Morris, 444 So.2d 1200, 1203 (La.1984). The defendant has shown no evidence to rebut this presumption.
evidence seized from the defendant
As to the evidence seized from the defendant's person in Jefferson Parish, Bourque contends no search warrant authorized the seizure. He claims discrepancies in the testimony of JPSO officers regarding the number of shells the defendant had on his person are significant because the booking sheets are inconsistent with the testimony of these officers. Bourque also argues no foundation was laid for the introduction and use of these booking sheets at the suppression hearing and therefore, they should not have been used as competent evidence.
Officers may conduct a limited search for weapons during a lawful investigatory stop, State v. Ruffin, 448 So.2d 1274, 1279 (La.1984); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), especially where such a search is necessary to neutralize the threat of physical harm. State v. Cobb, 419 So.2d 1237, 1242 (La. 1982). The state bears the burden of proving the validity of a warrantless search. Ruffin, 448 So.2d at 1279; Cobb, 419 So.2d at 1242.
At the suppression hearing, Officer Reggio of the Jefferson Parish Sheriff's Office testified he and other JPSO officers entered Lefty's Lounge and asked the defendant to accompany them outside because there was a question concerning the automobile he was driving. Once outside, the officers patted down the defendant to search for weapons.
Prior to this, Officer Reggio had been informed by Robinson the defendant might have been involved in a homicide. In addition, Officer Reggio had personally observed a handgun on the driver's seat floorboard of the defendant's vehicle.
Officer Reggio recovered two shotgun shells and a large roll of money from the defendant. Deciding the shotgun shells were not a threat, Officer Reggio returned both the shells and the money to the defendant. No items were removed from the defendant until after he was arrested and taken to lock up.
Sgt. Schultz testified three shotgun shells were taken from the defendant at booking. Sgt. Schultz also referred to the booking sheet used to record all of the defendant's property taken from him at lock up. The defense objected on the basis no proper foundation was laid for introduction of the booking sheet. The state responded by withdrawing the booking sheet from evidence. The trial court denied the defendant's motion to suppress the items seized from his person in Jefferson Parish.
The suppression hearing record shows the JPSO officers carried their burden of showing a lawful investigatory stop. Considering the officers saw a weapon in plain view in the defendant's vehicle, and had information the defendant may have been involved in a homicide earlier in the evening, a limited pat down search for weapons on the defendant's person was warranted. The discrepancy between the number of shells observed by Sgt. Schultz and Officer Reggio would go toward the weight to be afforded the evidence, not its admissibility. The defendant's argument regarding the booking sheet is moot, since the state withdrew it from evidence at the suppression hearing and did not attempt to introduce it at trial.
oral inculpatory statements made by the defendant
The defendant claims the trial court erred in failing to suppress certain inculpatory oral statements which he made while detained in Jefferson Parish and after he invoked his right to confer with an attorney.
To protect the privilege against self-incrimination guaranteed by the Fifth Amendment, the police must terminate interrogation of an accused in custody if the accused requests the assistance of counsel. Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966). "[W]hen counsel is requested, interrogation must cease, and officials may not reinitiate *222 interrogation without counsel present, whether or not the accused has consulted with his attorney." Minnick v. Mississippi, 498 U.S. 146, 153, 111 S.Ct. 486, 491, 112 L.Ed.2d 489 (1990); State v. Abadie, 612 So.2d 1, 4-5 (La.1993), petition for cert. filed. Once an accused has expressed his desire to deal with law enforcement officials only through counsel, he "is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981).
The state bears the burden of proving, beyond a reasonable doubt, that a statement given by the defendant was voluntary, and not influenced by fear, duress, intimidation, menaces, threats, inducements, or promises. State v. Brooks, 541 So.2d 801, 814 (La.1989); State v. Narcisse, 426 So.2d 118, 125 (La.1983), cert. denied 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983); La.C.Cr.P. art. 703(D); LSA-R.S. 15:451. Whether a statement is voluntary is a fact question; thus, the trial judge's ruling, based on conclusions of credibility and weight of the testimony, is entitled to great deference and will not be disturbed on appeal unless there is no evidence to support the ruling. Brooks, 541 So.2d at 814.
In making its determination, the trial judge must consider any physical condition of the defendant which might be relevant to the voluntariness inquiry, including intoxication. "Intoxication can render a statement involuntary if the intoxication is of such a degree that it negates defendant's comprehension and renders him `unconscious of the consequences of what he is saying.'" Narcisse, 426 So.2d at 125-26 (citations omitted); State v. Simmons, 443 So.2d 512, 515 (La.1983).
At the suppression hearing, Officer Reggio testified he advised the defendant of his rights in the parking lot of Lefty's Lounge by reading from a Miranda card. Once Bourque requested a lawyer, Officer Reggio stopped any and all questioning of the defendant. Later, the officer assisted in placing the defendant in a police unit when Bourque "just turned around, right out of the blue, and he said, oh, by the way, I killed three people tonight."[6] Immediately thereafter, another officer asked defendant where these people were and whether law enforcement officers could help them in any way.
Reggio stated the officers had been at the scene between an hour and an hour and a half. The statement given by the defendant was not made in response to interrogation, threats, force, or coercion.
Officer Reggio stated the defendant did not have any trouble walking or talking. The defendant appeared to understand his rights and gave appropriate answers to questions asked of him. When asked if he had provided the defendant with the means of contacting an attorney, the officer stated the defendant was entitled to a phone call after he arrived at the lock up.
Bourque contends his statement was not spontaneous, considering the length of time it took from the time he was detained until his arrest. Citing La.C.Cr.P. art. 230[7], he claims the police should have given him access to an attorney immediately, either by taking him to the station sooner or permitting him to make a telephone call at the scene. He disputes that the statement was voluntary, considering the time he was kept waiting, the late hour, and his alleged intoxicated state.
The trial court agreed a person arrested has a right to an attorney from the moment of arrest under La.C.Cr.P. art. 230. However, in effecting that right, and under the circumstances present here, and further *223 considering this was a parking lot of a bar in the early morning hours, the trial court found it would be difficult to afford an arrested person that right immediately and on the scene. Under the circumstances, the fact the officers immediately ceased questioning coupled with the fact the defendant would be afforded an opportunity to call an attorney within minutes of his arrest, the trial court found the officers sufficiently complied with protecting the defendant's statutory and constitutional rights. The trial court denied the motion to suppress the oral statement.
The facts adduced at the suppression hearing clearly support the trial court's ruling. The defendant was advised of his constitutional right to remain silent and his right to an attorney. The statement made after those warnings were given was spontaneous and not in response to police interrogation. State v. Castillo, 389 So.2d 1307, 1310 (La.1980), cert. denied, 453 U.S. 922, 101 S.Ct. 3159, 69 L.Ed.2d 1004 (1981) ("Spontaneous and voluntary statements, not given as a result of police interrogation or compelling influence, are admissible in evidence without Miranda warnings even where a defendant is in custody.").
Bourque complains about two other inculpatory statements. On the ride from Jefferson Parish to St. Martin Parish with Detective Romero and ADA Haney, the defendant stated he had "messed up real bad." In addition, the defendant apparently gave a taped statement to authorities at the St. Martin Parish Jail shortly after his arrival there after he spoke to his stepfather but before he spoke to an attorney. Although the statement made in the car and statements allegedly made at the St. Martin Parish Jail were not entered as evidence, Bourque contends they showed the denial of his right to counsel. As discussed supra, the defendant was not denied his right to counsel. Since these statements were not entered in evidence, the defendant was not prejudiced thereby.
Assignment of Error No. 8
Pre-trial issues
The defendant asserts the trial court erred in denying defense counsel's motion for continuance at a pretrial motion hearing. He claims the motion hearing was of critical importance to the defense since it was seeking the recusal of the assistant district attorney prosecuting the case.
The record shows several motions were scheduled for a January 4, 1991 hearing after a defense continuance from an earlier date. Gary LeGros entered an appearance as counsel for the defendant and stated he was to be brought in as co-counsel in the matter. Lead defense counsel, Don Hernandez, was not present due to a death in the family. Since LeGros had been brought in as co-counsel the afternoon before the hearing, the scheduled motions would have to be continued again. The state objected, since several out-of-town witnesses had been inconvenienced. The trial court overruled the state's objection.
LeGros then filed the first motion to recuse ADA Haney. LeGros stated he had no evidence to present, but was prepared to argue the motion and the attached memorandum. The state objected and asked this motion also be continued because the state had not had a chance to review the motion. The defense agreed. The state then decided it could proceed with the recusal motion. Contradictorily, the defense then moved for a continuance at a bench conference. The state complained of the delays caused by the defense's tactics. The trial court denied the motion for continuance, holding:
it is the feeling of the Court that this involves an isolated particularized sort of an issue that can well be determined and can well be handled by you at this time.
Vol. 3, pp. 718-19.
Defense counsel objected to the ruling. Haney and Detective Romero were then called to the stand and questioned. As previously discussed, this first motion to recuse was denied by the trial court.[8]
*224 "The granting or refusal of a motion for a continuance rests within the sound discretion of the trial judge." State v. Simpson, 403 So.2d 1214, 1216 (La.1981). This ruling will not be disturbed absent a clear abuse of discretion. State v. Washington, 407 So.2d 1138, 1148 (La.1981); Simpson, 403 So.2d at 1216. Whether a refusal is justified depends on the circumstances of the case. In general, this court has declined to reverse a conviction based on the denial of a motion for continuance absent a showing of specific prejudice. Id.
The record supports the trial court's conclusion that LeGros's performance was more than adequate. In addition, the defense urged the recusal issue in two other motions, both of which were denied after hearings. Thus, the defense had two more opportunities to put on evidence to support its motions to recuse the district attorney or his assistants. There was no abuse of the trial court's discretion in denying the motion for continuance. The defendant can show no prejudice from the ruling.
Assignment of Error No. 9
The defendant asserts the trial court erred in refusing to allow further questioning of Detective Romero at the hearing on the third motion to recuse. Bourque contends the specifics of Romero's 1986 battering of a potential murder suspect was important in two respects. First, the information would have been important impeachment evidence as to Romero's credibility. Second, since Romero was not prosecuted locally for the offense, but by federal authorities, and since Haney and Kim Kidd (the first appointed counsel for the defendant), were assistant district attorneys at the time, the information gave rise to the inference of a substantial friendship between Romero, Haney, and Kidd.
As discussed supra,[9] Romero admitted the conviction at the hearing. Under La. Code Evid. art. 609.1, "only the fact of a conviction, the name of the offense, the date thereof, and the sentence imposed is admissible." None of the circumstances requiring further disclosure is applicable here. Further, Romero did not testify at trial. Any impeachment value of the information was thus mooted. Even assuming a friendship existed between Romero, Haney, and Kidd, the defendant cannot show any possible prejudice to his defense.
VOIR DIRE
Assignments of Error Nos. 10, 11, 12
Sequestration issues
Bourque argues the trial court erred in failing to order individual sequestered voir dire. He claims there was substantial pretrial publicity of both the Perry shooting and the shooting in Vermilion Parish which contaminated the potential jurors. The defendant also claims that increasing the number of jurors questioned from panels of three to six was without justification.
There is no provision in our law which prohibits or requires the sequestration of prospective jurors for individual voir dire. State v. Copeland, 530 So.2d 526, 535 (La.1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1558, 103 L.Ed.2d 860 (1989); State v. Comeaux, 514 So.2d 84, 88 (La. 1987); State v. David, 425 So.2d 1241, 1247 (La.1983). The manner in which voir dire is conducted, such as whether the jurors should be called singly or in groups of a certain number, is left to the trial court's discretion. La.C.Cr.P. art. 784, Comment c; Copeland, 530 So.2d at 535. The burden is on the defendant to show that the trial court abused its discretion in refusing to sequester the venire at voir dire. Comeaux, 514 So.2d at 88. The trial court does not err in refusing requests for individual voir dire without a showing of special circumstances. Copeland, 530 So.2d at 535; Comeaux, 514 So.2d at 88. The defendant must show there will be a significant possibility that individual jurors will be ineligible to serve because of exposure to potentially prejudicial material. David, 425 So.2d at 1247. The fact that a case is a capital case does not alone establish the existence of special circumstances. Copeland, 530 So.2d at 535; Comeaux, 514 *225 So.2d at 88; State v. Wingo, 457 So.2d 1159, 1165 (La.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2049, 85 L.Ed.2d 322 (1985).
Bourque claims this case presented special circumstances requiring individual voir dire and points to the sensational nature of the mother/daughter shooting and the fact of the Vermilion Parish shooting. Prior to trial, the defendant filed a Motion for Individual, Sequestered Voir Dire Examination based on pretrial publicity. In the motion and at the hearing on the motion, defendant reserved his right to move for a change of venue after voir dire had commenced if it appeared impossible to obtain a fair and impartial trial in St. Martin Parish. No such motion was ever filed.
The record shows the trial judge initially ordered panels of three prospective jurors to be examined outside the presence of the jury venire. Each panel was asked whether they had heard anything about the case, whether through television, newspaper, radio, or word of mouth. If a prospective juror indicated he or she had any knowledge whatsoever, the other members of the panel were removed and the juror was examined more particularly as to his or her knowledge. Any juror who had knowledge of the Vermilion Parish shooting was promptly excused either by the court or on joint motion of the state and defense counsel. Any juror who stated he or she could not put aside any knowledge they possessed about the case in the face of the evidence that was to be presented from the witness stand was similarly excused. The record does not support the defendant's claim that the jurors empanelled had any knowledge of the Vermilion Parish shooting or prejudicial knowledge of the shooting of Charlotte Perry and Theresa Stoute.
In addition, the record shows there was no error in the trial court's enlargement of the panels from three to six prospective jurors. After three days of voir dire examination taking the prospective jurors in panels of three, no juror had yet been empanelled. On the fourth day of voir dire examination, the trial judge announced he would enlarge the panels of prospective jurors to six. As before, the trial court allowed separate examination of any prospective juror who indicated he or she had knowledge of the case.
The record reveals no abuse of discretion by the trial judge in enlarging the panels to six persons. The "special circumstances" alleged by Bourque were provided for in the manner in which the voir dire examination was accomplished.
Assignments of Error Nos. 13, 14, 15, 16, 17, 18
Individual Juror Objections
By these assignments, Bourque contends the trial court erred in refusing to excuse several jurors based on his challenges for cause. This required him to exercise peremptory challenges for all but one of these jurors. He claims as error the court's failure to grant him additional peremptory challenges.
"[A]n erroneous ruling of a trial judge which deprives a defendant of one of his peremptory challenges constitutes a substantial violation of a constitutional or statutory right requiring reversal of his conviction and sentence." State v. McIntyre, 365 So.2d 1348, 1351 (La.1978). In order to prevail on this claim where the defendant has used a peremptory challenge after his challenge for cause has been denied, the defendant must show "(1) that a challenge for cause by the defendant was erroneously denied by the trial judge; and (2) that all of the defendant's peremptory challenges had been exhausted." State v. Lee, 559 So.2d 1310, 1316 (La.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1431, 113 L.Ed.2d 482 (1991). In the instant case, Bourque's peremptory challenges were exhausted before completion of the panel; therefore, his objection to the rulings refusing to sustain his challenges for cause are properly before this court.
La.C.Cr.P. art. 797 provides the state or the defendant may challenge a juror for cause on the following grounds:
(1) The juror lacks a qualification required by law;
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or *226 impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence.
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;
(4) The juror will not accept the law as given to him by the court; or
(5) The juror served on the grand jury that found the indictment, or on a petit jury that once tried the defendant for the same or any other offense.
"[A] challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror's responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied." State v. Hallal, 557 So.2d 1388, 1389-90 (La.1990); State v. Jones, 474 So.2d 919, 926 (La.1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2906, 90 L.Ed.2d 992 (1986). A trial judge is afforded great discretion in determining whether cause has been shown to reject a prospective juror. Such determinations will not be disturbed on review unless a review of the voir dire as a whole indicates an abuse of discretion. Jones, 474 So.2d at 926.
GARY THERIOT
The defendant contends the trial court erred in refusing his challenge for cause on the grounds that Gary Theriot was reluctant to accept intoxication either as a defense to specific intent in the guilt phase or as a mitigating circumstance in the penalty phase.
When asked his opinion of the death penalty, Mr. Theriot responded: "If a person is going to kill someone, and if it's in his state of mind, I believe he should get the same punishment. There's no reason why two people should kill each other." Further questioning by defense counsel elicited responses which indicated Mr. Theriot would be unable to consider mitigating circumstances. The state was later able to rehabilitate Mr. Theriot by explaining the differences between the two phases of trial and what was expected of Mr. Theriot in each phase. At that point, Mr. Theriot responded he would be willing to consider mitigating evidence before deciding whether to impose a sentence of death. He indicated he could vote for either life imprisonment or the death penalty at the penalty phase of the trial, depending on the evidence presented.
Defense counsel re-examined Mr. Theriot at length. In this exchange, Mr. Theriot reiterated he would consider all the evidence before making a determination of guilt or innocence and in determining the appropriate penalty. Mr. Theriot also stated defense counsel had misled him in their earlier exchange. After discussing intoxication as a defense to specific intent in the guilt phase, the following exchange occurred:
MR. THERIOT: Yes, I would consider the fact of intoxication on making my decision. I would have to consider it, yes.
DEFENSE COUNSEL: But is your support for the death penalty so vigor [sic] that that would cloud the consideration of the mitigating factors?
MR. THERIOT: I'd probably say yes.
Vol. 8, p. 1773
The state again attempted to rehabilitate the juror and elicited the response that Mr. Theriot's philosophy regarding the death penalty was not so strong it would outweigh his ability to give consideration to mitigating factors.
The defense challenged Mr. Theriot for cause. The trial court decided to question Mr. Theriot to clear up any confusion. Prior to the court's questioning, counsel for the state and defense agreed that "prevent" was a synonym for "preclude."
COURT: If at the end of the trial, and after you have heard all of the evidence, *227 the lawyer's arguments to you and my instructions to you on the law, and at that time you become convinced that the defendant has proved to you that he was so intoxicated that it prevented him from having specific intent, would you give him the benefit of that, and either find him not guilty or guilty of some lesser charge which would not require specific intent, and I need a yes or a no from you on that, sir. Do you understand my question?
MR. THERIOT: Yes, sir.
COURT: Are there any words or any language that gives you trouble that I can maybe translate for you
MR. THERIOT: I understand what you're saying, it's just a hard question to answer.
COURT: Yes, sir. But I need an answer from you, either yes or no.
MR. THERIOT: I would say, yes.
COURT: Alright. Thank you, sir.
Vol. 8, pp. 1778-79
The trial court denied the defense's challenge for cause, finding Mr. Theriot "has stated point blank that he would give the benefit of intoxication." Defense counsel objected to the ruling and exercised a peremptory challenge against Mr. Theriot.
A challenge for cause should be granted when a prospective juror makes clear he or she expresses a predisposition as to the outcome of a trial. The challenge is properly denied, however, where subsequent questioning of a prospective juror indicates he or she is able to disregard previous views and make a decision based solely on the evidence presented at trial. Lee, 559 So.2d at 1318. "When assessing whether a challenge for cause should be granted, the trial judge must look at the juror's responses during [his or] her entire testimony, not just `correct', isolated answers; or, for that matter, `incorrect', isolated answers." Id., 559 So.2d at 1318 (citations omitted).
Although Mr. Theriot's initial answers to defense questioning indicated he would be unable to follow the law and consider the mitigating effects of the defense of intoxication in either the guilt or penalty phase of trial, a review of his entire testimony shows he would assess all of the evidence presented before making a decision. Part of the confusion of his examination stemmed from defense counsel's questions, as counsel acknowledged in the following exchange:
MR. THERIOT: I said I'm sorry if I confused so many people.
DEFENSE COUNSEL: No, I think I was the person who did the confusing.
Vol. 8, p. 1775
Mr. Theriot was successfully rehabilitated by the questioning of the trial court. The challenge for cause was properly denied.
THOMAS J. STEPHENS
At trial, the defendant challenged this potential juror based on Mr. Stephens' poor health, his relationship with the St. Martin Parish Sheriff, and his concerns about missing a pending election. Defense counsel objected to the trial court's denial of the challenge for cause and exercised a peremptory challenge against Mr. Stephens. The defendant now contends the trial court erred in denying his challenge for cause based on Mr. Stephens' stated concern for his aging father, the juror's own questionable health, and his concerns about voting in an upcoming election.
The record reveals no support for the defendant's claims. With regard to his own health, Mr. Stephens stated he had had heart surgery and had an upcoming appointment scheduled with a vascular surgeon for a test. He stated he became dizzy and nauseous when he worked under his car or under the sink to do plumbing while lying on his back with his arms extended. Mr. Stephens was not taking medication other than aspirin for his condition and was on a low-fat diet. He indicated that, as long as his appointment could be rescheduled and his doctor approved, he would have no trouble serving on the jury.
As to his concern for his father, Mr. Stephens explained he checked on his father *228 about twice a day, ran errands for him, and took him to weekly hospital or doctors' appointments. He admitted he "would feel a little disturbed" about missing the Easter holiday with his father.[10] Mr. Stephens informed the court, however, of a cousin whom his father would call on. He also stated he did not believe that his concern for his father would mean he would miss something of significance during the trial.
The record shows the extent of Mr. Stephens's political activity was also insufficient as a basis for a challenge for cause. When told he may not be able to vote in an upcoming election, Mr. Stephens indicated this would "disturb [him] to some extent" and he "would feel like I'm letting [his candidate] down." Earlier, however, he indicated if the court could not arrange some sort of absentee voting procedure, then "I just can't vote" and stated that "I understand."
With regard to his friendship with law enforcement personnel, Mr. Stephens stated he had friends who were police officers whom he saw when they rode by in their units. Mr. Stephens indicated he was friendly with the St. Martin Parish Sheriff and that he saw the sheriff on occasion, depending on the sheriff's activities. When defense counsel attempted to ask Mr. Stephens whether he would tend to believe the testimony of some of the sheriff's deputies over other witnesses, the state objected to the phrasing of the question. Although the trial court overruled the state's objection, defense counsel never returned to the issue.
The defendant failed to show that Mr. Stephens's friendship with law enforcement personnel destroyed an otherwise impartial attitude of the prospective juror. "Previous associations with either law enforcement agencies or personnel will not alone disqualify a prospective juror from service." Jones, 474 So.2d at 926. If Mr. Stephens' friendship was such as would disqualify him as a juror, it was for defense counsel to show such disqualification in the voir dire. State v. Chapman, 410 So.2d 689, 711 (La.1982).
Considering Mr. Stephens's responses to the voir dire examination as a whole, it cannot be said the trial judge abused his discretion in denying the defense's challenge for cause.
MARY ANN SYLVESTER
The defendant contends the trial court erred in refusing his challenge for cause for this prospective juror. Defense counsel objected to the ruling and exercised a peremptory challenge against Mrs. Sylvester. The defendant argues, that as the mother of seven children, Mrs. Sylvester would be worried about their welfare and the fact she would miss the Easter holiday with them to the point she could not be a qualified juror. Bourque also contends Mrs. Sylvester had a "deep-seated feeling" about murder which affected her qualifications.
The record shows these claims to be unfounded. Mrs. Sylvester indicated she had seven children, ages eleven through six months. Although her husband had some physical limitations due to a back problem, she stated her mother-in-law could help out and she would feel comfortable with that arrangement. Mrs. Sylvester stated it might affect her only "somewhat" if she had to miss the Easter holiday with her children and it might cause her to be less attentive. She later stated, however, there was nothing which would prevent her from sitting as a fair and impartial juror.
Mrs. Sylvester indicated she could vote for a life sentence although she did believe death was an appropriate penalty for some crimes. She stated she did not favor the death penalty as punishment every time a murder was committed.
When questioned by defense counsel, Mrs. Sylvester stated murder was the type of crime which particularly upset her and acknowledged her personal feelings might *229 flow over into the decision making process. She indicated she might have trouble following the judge's instructions not to allow this.
The state attempted to rehabilitate Mrs. Sylvester by asking her whether she was upset at the defendant or had any personal problem with him because he was charged with murder. Mrs. Sylvester responded negatively and further agreed her dislike of the crime of murder would not allow her to disregard the judge's instructions. She indicated she would be able to be a fair and impartial juror.
Once again defense counsel questioned Mrs. Sylvester. When questioned as to her conflicting responses, Mrs. Sylvester told defense counsel his earlier questions were unclear and that she had been confused. She indicated, however, her personal feelings were not going to enter into her deliberations. On further rehabilitation by the state, Mrs. Sylvester stated she would base her verdict on the evidence, would be fair and impartial to the defendant throughout the trial, and could follow the judge's instructions no matter what they were.
When considering Mrs. Sylvester's responses as a whole, the record supports the finding the trial court did not abuse its discretion in denying the defendant's challenge for cause. Lee, 559 So.2d at 1318.
TERRY A. BOREL
The defendant contends the trial court erred in denying his challenge for cause of this prospective juror. Bourque argues Mr. Borel had a conflict of interest in that he had been permitted to pay a fine in lieu of jail time for a petty theft and his appreciation to the district attorney rendered him unable to be a fair and impartial juror.
The record shows Mr. Borel was charged for taking gravel from the side of a road seven or eight years prior to his voir dire examination. Instead of going to court, Mr. Borel met with the district attorney, Danny Guidry, and paid a fine of $200. Mr. Borel agreed the district attorney had helped him and had done him a favor by handling the case in that manner so that Mr. Borel would not have to miss a whole day of work.
Mr. Borel later stated he did not feel he had been "let off" by the district attorney's office. He felt the judge in the case had set the fine and he just paid it at the district attorney's office rather than going to court. He repeatedly affirmed this experience would not affect his ability to be fair and impartial to the defendant.
The trial court denied Bourque's challenge for cause, finding the relationship between Mr. Borel and the district attorney's office "remote." Defense counsel objected to the ruling and exercised a peremptory challenge against Mr. Borel. The trial court did not abuse its discretion in denying the defendant's challenge for cause. The defendant has failed to show Mr. Borel's one-time involvement with the district attorney's office, and with a different district attorney, would prevent Mr. Borel from being a fair and impartial juror. See Lee, 559 So.2d at 1317 (where prospective juror had previously hired district attorney for unrelated legal matters, and who stated he might do so in the future, this court held insufficient to grant challenge for cause absent showing the relationship would have influenced the juror's decision); La.C.Cr.P. art. 797(3).
MASIL L. ROACH
The defendant contends the trial court erred in refusing to excuse this prospective juror for cause. He argues Mrs. Roach indicated she would be unable to consider the defense of intoxication as a mitigating factor in the penalty phase. Bourque asserts his argument against this prospective juror is different from the others whose challenges for cause were denied by the trial court. Instead of exercising a peremptory challenge against Mrs. Roach, defense counsel accepted her as a juror due to the fact the defense had only one peremptory challenge left at this time during jury selection.
Since Bourque accepted this juror after his challenge for cause was rejected without exercising his remaining peremptory *230 challenge, he has waived his right to assert this claim on appeal. See Fallon, 290 So.2d at 282.
RICKY G. MELANCON
The defendant contends the trial court erred in failing to excuse this prospective juror for cause based on his predisposition in favor of the death penalty and the fact that his sister, a physical therapist, had treated Theresa Stoute. The trial court rejected defense counsel's challenge for cause. Defense counsel objected to the ruling and exercised a peremptory challenge.
Reading the record of the voir dire examination of this potential juror as a whole, it is clear Mr. Melancon stated he could consider both a life sentence and the death penalty at the penalty phase of trial, depending on the circumstances of the crime and the evidence presented. Lee, 559 So.2d at 1318 (challenge for cause was not warranted for juror who stated initial reaction would have been to give defendant death penalty but further questioning showed she would assess all evidence before making a decision).
The record also shows the only information Mr. Melancon's sister related to him was the fact that she was treating a woman who had been injured by a gunshot wound. Mr. Melancon knew Theresa Stoute had been shot in the shoulder and that her hand, thumb, or fingers were somehow involved in her treatment. Mr. Melancon also overheard a conversation between his sister and his wife in which his sister stated Theresa Stoute was going to physical therapy and was in pain. In this way, Mr. Melancon also learned the woman's daughter had been shot.
It is clear from the attorneys' questioning of Mr. Melancon that he knew no details about the shooting of Charlotte Perry and Theresa Stoute. Neither did he know any details of the Vermilion Parish shooting. There is no indication this information alone would prejudice him to the point that he could not be a fair and impartial juror. See State v. Clark, 340 So.2d 208, 215 (La.1976), cert. denied, 430 U.S. 936, 97 S.Ct. 1563, 51 L.Ed.2d 782 (1977) (even where prospective juror knows victim of the offense the defense must show the juror's acquaintance with victim is such that it is reasonable to conclude it would influence the juror in arriving at a verdict to be a sufficient ground for a challenge for cause). The trial court did not abuse its discretion in refusing the defendant's challenge for cause.
Assignments of Error Nos. 19, 20, 21, 22
Juror Examination Issues
By these assignments, Bourque contends the prosecutor incorrectly explained the legal concepts of first degree murder, specific intent, and the intoxication defense for the prospective jurors and improperly used a chart in its explanation. The defendant argues the only correct method to convey these concepts to prospective jurors was to use the statutory definitions.
Defense counsel objected to the following statement made by the prosecutor as he explained the elements of first degree murder during voir dire:
The law also says that when this person has a specific intent to kill or inflict great bodily harm on more than one person, that's [sic] not necessary for the shootings to take place simultaneously.
Vol. 6, p. 1306.
The trial court overruled the defense's objection, rejecting defense counsel's suggestion to restrict the prosecutor to reading the definition of the crime in the statute.
Bourque contends the state incorrectly informed the prospective jurors the shootings and the criminal intent did not have to exist at the same time. For this proposition, the defendant relies on State v. Andrews, 452 So.2d 687, 689 (La.1984), where the court reduced a conviction for first degree murder to second degree murder after finding no rational trier of fact could have concluded beyond a reasonable doubt that the defendant, by firing at one person, actively intended to kill the person and another who was not present.
Andrews is distinguishable from the present case. The defendant in Andrews, *231 Reginald Andrews, went in search of two brothers with whom he had had a barroom fight earlier in the evening. Finding one brother, Andrews chased after him with a gun. The man escaped and no shots were fired. At another location, Andrews saw the other brother, whom he shot and killed.
This court has rejected the idea that LSA-R.S. 14:30(A)(3), defining first degree murder as occurring when the offender has a specific intent to kill or to inflict great bodily harm upon more than one person, must be interpreted solely as occurring by a defendant's single act, such as when a bomb explodes in a crowded building. Instead, this court has determined the legislature intended this type of first degree murder to include "those murderers who formed an intent to commit multiple killings and who did in fact create the risk of multiple deaths through a single act or a closely related series of acts that resulted in at least one death." State v. Williams, 480 So.2d 721, 727 (La.1985) (emphasis supplied); see also State v. Ward, 483 So.2d 578, 581-82 (La.1986), cert. denied 479 U.S. 871, 107 S.Ct. 244, 93 L.Ed.2d 168 (1986) (death penalty may be justified when a "single consecutive course of conduct" contemplates and causes the death of one person and great bodily harm to another). Thus, considering the jurisprudence, the prosecutor's explanation of first degree murder was a correct statement of the law.
In order to explain the concept of first degree murder to the jurors, the prosecutor prepared a chart. Defense counsel objected to its use, but the objection was overruled. The defendant argues the chart contained the statutory language and the jurisprudential language complained of above. The record shows the chart was not offered in evidence and its provisions were not transcribed for the record. As found supra, the chart presented only correct statements of statutory and jurisprudential law. Therefore, there was no prejudice to the defendant in the use of the chart.
The defendant contends the prosecutor incorrectly explained the defense of intoxication to a group of prospective jurors. The record shows the trial court instructed the prosecutor to change his wording as the explanation given was not technically correct.[11] Thus, the trial court corrected the error and the prospective jurors were properly informed.
The defendant contends the prosecutor incorrectly explained the concept of specific intent to a group of prospective jurors. Specifically, the prosecutor stated specific intent could be inferred by looking to the person's actions. The trial court overruled the defense's objection. There was no error in the trial court's action; this was a correct statement of law. See State v. Brooks, 505 So.2d 714, 717 (La.1987), cert. denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987) ("specific intent is a state of mind and, as such, it need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of the defendant"); La.Code Evid. art. 404(B)(1).
The defendant contends the prosecutor also gave an incorrect instruction to a group of prospective jurors when trying to explain the concept of reasonable doubt. The prosecutor made the following statement:
That's right. I mean, that's what the law says. The [law] says we don't have to prove it beyond all doubt, but just beyond all reasonable doubt. There's very few things in life if you think about it you can come up with, well, I could *232 come up with a reason or an excuse, or, you know, speculating on something, but is it a reasonable
Vol. 6, p. 1492.
Defense counsel objected to the use of the word "speculating" as it might connote a lower burden of proof. At a bench conference, the prosecutor and defense counsel agreed on the use of the words "possible doubt." As with the objection to the prosecutor's statement regarding intoxication, the trial court was given an opportunity to correct the error and the prospective jurors were properly instructed on these concepts of law.
Assignments of Error Nos. 23, 24
Jury Procedure Issues
By these assignments, Bourque complains he was prejudiced by the trial court's method of numbering prospective jurors and in calling panels for examination. He claims Mark Hebert and Louis Wyatt, and unnamed others, failed to appear for jury duty on the date the jury venire assembled. In the meantime, the trial judge assigned numbers to prospective jurors in a random manner by drawing lots after the names were added to a box from sealed containers.
When these prospective jurors appeared, the trial judge assigned them the last available numbers rather than renumbering the entire venire. Defense counsel objected on the grounds this procedure violated the random selection provisions of the constitution. The trial judge overruled the objections.
The defendant also contends the manner in which prospective jurors were called in panels was prejudicial. Because of the large number of prospective jurors, one hundred and eighty-two[12], the trial judge allowed those prospective jurors who were further down the list to go home. They were instructed to contact the courthouse each evening and listen to a recorded message which would relay which prospective jurors should appear the following day. When a numbered juror was late, the trial judge would call the next numbered juror. When the absent prospective juror appeared, he or she was placed on the next panel for examination. Bourque complains this procedure was not random.
In a related argument, Bourque asserts it was prejudicial error for the trial court to fail to include a prospective juror, Mitchell Francis, in the selection process. Prospective juror Francis was assigned # 100. Evidently, he did not appear for voir dire examination on the day he was assigned and did not report to court until twelve persons had been selected for the jury. When questioned by the trial court, Mr. Francis asserted the court machine had not played a message. Defense counsel objected when it appeared the trial judge was going to place Mr. Francis and Mr. Collins George, who had also failed to appear on his scheduled day, on the next civil jury venire.[13] Ultimately, the trial court did not have to decide what to do with these potential jurors, since two alternate jurors were selected from the next panel questioned. Bourque claims prejudice.
La.C.Cr.P. art. 419 provides "[a] general venire, grand jury venire, or petit jury venire shall not be set aside for any reason unless fraud has been practiced, some great wrong committed that would work irreparable injury to the defendant, or unless persons were systematically excluded from the venires solely upon the basis of race." The defendant bears the burden of proving "fraud or that some irreparable injury was caused by the selection process." State v. Brown, 414 So.2d 726, 728 (La.1982); Lee, 559 So.2d at 1313. Bourque has failed to show the assignment of numbers to prospective jurors was anything other than random or that he suffered any prejudice in the method used by the trial court.
*233 La.C.Cr.P. art. 784 provides "[i]n selecting a panel, names shall be drawn from the petit jury venire indiscriminately and by lot in open court and in a manner to be determined by the court." Comment C provides that the details of how the panels are to be selected are left to the trial court's discretion. It was well within the trial court's discretion what number, and which numbers, were called to compose the various panels for examination.
A defendant is not entitled to a mistrial when allegations of prejudice are premised on the absence of prospective venirepersons which are not substantiated by evidence proffered as proof of the prejudice. State v. Badon, 338 So.2d 665, 667 (La.1976). Bourque offers no proof to show whether he was prejudiced by the trial court's failure to include Mr. Francis in the panel being questioned or how the prejudice occurred. Thus, the defendant does not state a merited claim on appeal.
GUILT PHASE
EVIDENTIARY MATTERS
Assignment of Error No. 25
Evidence of Other Crimes
Bourque contends it was reversible error for the trial court not to exclude any and all evidence concerning the March 17, 1990 incident at his residence. Specifically, the defendant argues the testimony of Mr. Perry that his daughter had been taken from her place of employment on this and another occasion was hearsay and beyond the scope of other crimes evidence for which he had been placed on notice. The defendant also argues the information regarding prior threats was not evidence of motive, plan, or intent under La.Code Evid. art. 404(B) and was not in compliance with State v. Prieur, 277 So.2d 126 (La.1973).
Generally, evidence of other crimes is inadmissible in the guilt phase of a trial unless the probative value of the evidence outweighs its prejudicial effect and unless other safeguards are met. State v. Hamilton, 478 So.2d 123, 129 (La.1985), cert. denied, 478 U.S. 1022, 106 S.Ct. 3339, 92 L.Ed.2d 743 (1986). This evidence is generally inadmissible because, in the determination of guilt or innocence, the admission of evidence of other crimes which the defendant has committed creates the risk the defendant will be convicted of the present offense simply because he is a "bad person." The defendant may not be prepared to face such attacks and the jury may become confused by the introduction of collateral issues. Prieur, 277 So.2d at 128. Thus, before the state can introduce evidence of other crimes, it is required to give the defendant advance notice such evidence will be offered. Prieur, 277 So.2d at 130.
An exception to the general rule of denying admissibility occurs where the state offers evidence of other crimes for purposes other than to show the character of the defendant. La.Code Evid. art. 404(B)(1) provides:
Except as provided in Article 412 [not relevant here], evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.
Evidence which constitutes an integral part of the crime, formerly known as res gestae, is admissible without prior notice to the defense. La.C.Cr.P. art. 720; Prieur, 277 So.2d at 128.
The record shows the state notified the defendant of its intent to use evidence of the threats made by the defendant against Charlotte Perry and her father on March 17, 1990 in the guilt phase of the trial by its amended answer to a discovery motion filed October 30, 1990. This evidence was to be offered to show the intent of the *234 defendant at the time of the murder.[14]
A hearing was held pretrial to determine whether the stated evidence would be admissible in the guilt phase. After listening to the testimony of Mr. Perry and Deputy Stan Suire, the trial court ruled the prior threats admissible. At the trial, the state was careful not to elicit testimony regarding how Ms. Perry came to be at the defendant's trailer on March 17 or about any other occasion. It was only through defense counsel's cross examination that Mr. Perry revealed the defendant had taken the victim from her place of employment on this and on a prior occasion. On re-direct, the state inquired whether Ms. Perry had been visiting the defendant of her own free will on March 17. When Mr. Perry attempted to answer the question, the defense objected to the testimony on the grounds of hearsay. Although the state argued the defense had opened the door on this issue, the trial court sustained the hearsay objection.
Thus, the record shows the defendant was given proper notice under Prieur that the previous threats made by the defendant against the victim and her father were going to be presented. The evidence of the defendant and victim's prior relationship and the prior threats were relevant to show the defendant's motive and intent for the subsequent shooting. See State v. Welch, 615 So.2d 300, 302-03 (La.1993) ("the primary purpose of the evidence was not to prove [the defendant's] bad character but to illustrate the volatile nature of his relationship with the victim and his inability to put her behind him and `get on with his life.'").
As to Mr. Perry's testimony characterizing the defendant's actions as an abduction, and alluding to another incident in which the defendant abducted the victim, this testimony was elicited by defense counsel when counsel tried to characterize Mr. Perry's earlier testimony as showing the victim had been voluntarily "visiting" the defendant. There was, thus, no prosecutorial misconduct. La.C.Cr.P. art. 770. The trial court sustained defense counsel's objection when the prosecutor attempted to explore the subject further. Defendant can point to no error on the part of the state or by the trial court, and this court finds none.
Assignments of Error Nos. 26, 27
Statements of Other Crimes
The defendant asserts the trial court erred in failing to grant defense counsel's motions for mistrial. During the course of trial, two state witnesses testified the defendant made an oral inculpatory statement to them or in their presence to the effect the defendant "had just killed three people."[15] Bourque contends this was prohibited evidence of other crimes, as it referred specifically to the Fontenot shooting.
Under LSA-R.S. 15:450[16], a defendant is entitled to insist upon introduction of the entirety of a statement sought to be used against him but may waive this statutory right. The law is clear that when the state seeks to introduce a confession or statement of the defendant which contains other crimes evidence, the defendant has two options. State v. Morris, 429 So.2d 111, 121 (La.1983).
He may waive his right to have the whole statement used, object to the other crimes evidence, and require the court to excise it before admitting the statement; or, he may insist on his right to have the statement used in its entirety so as to receive any exculpation or explanation that the whole statement may afford. A *235 third alternative, that of keeping the whole statement out, is not available to defendant, unless, of course, the confession itself is not admissible.
Morris, 429 So.2d at 121; State v. Celestine, 443 So.2d 1091, 1096 (La.1983), cert. denied, 469 U.S. 873, 105 S.Ct. 224, 83 L.Ed.2d 154 (1984); State v. Sonnier, 379 So.2d 1336, 1355 n. 7 (La.1979).
The record shows the state saw the possible problem with these statements and filed a motion in limine to determine pretrial which option the defendant would choose. In the motion, the state suggested the witnesses be instructed to refer to the number of people as "some," rather than "three."
At the hearing on the motion in limine, the state reiterated its desire to safeguard the proceedings. Defense counsel objected to use of the word "some," but the only suggestion the defense offered to cure the problem was to keep the statements out of evidence altogether. The trial court appeared reluctant to "redraft" or "doctor" the inculpatory statements and took the matter under advisement. Both defense counsel and the prosecutor were instructed to present memos on the issue, but this was apparently not done and no ruling was made on the matter prior to trial.[17]
At trial, once the statement was elicited, defense counsel objected and moved for a mistrial. Outside the presence of the jury, the trial judge told counsel he was inclined to give the jury a Prieur instruction but otherwise felt the statement was admissible to show specific intent. Both the state and defense counsel agreed, however, on the inapplicability of Prieur. The defense objected to the statement and no instruction was given to the jury. The state elicited the statement again during questioning of Officer Reggio, to which the defense lodged another objection.
Although the trial court failed to make a ruling pretrial concerning the admissibility of the statements, it appears from the record the defendant did not waive his right to compulsory completeness or exercise his right to excise the other crimes evidence. Instead, he "sought exclusively a remedy the law does not afford, complete suppression of an otherwise admissible inculpatory statement." Morris, 429 So.2d at 121; Sonnier, 379 So.2d at 1355 n. 7. Because the statement was otherwise admissible, the trial court did not err in denying the motion for mistrial. Comeaux, 514 So.2d at 96.
Assignment of Error No. 29
Res Gestae Evidence
Bourque contends the trial court erred in allowing the introduction of any evidence concerning the shooting of Mrs. Stoute, as this was evidence of other crimes.[18] He claims several problems were raised when the state decided to sever its charge of attempted first degree murder regarding the shooting of Mrs. Stoute from the charge of first degree murder for the killing of Charlotte Perry. Specifically, he argues he was unable to take the stand and testify in the first degree murder trial for fear he would be cross-examined about the events surrounding the attempted first degree murder for which he had not been tried.
The evidence regarding the shooting of Mrs. Stoute was admissible under La.Code Evid. art. 404(B)(1) to prove the specific intent to kill more than one person necessary to a finding of first degree murder. In addition, the shooting of Mrs. Stoute was an integral part of the killing of Ms. Perry. Thus, whether the charges of first degree murder and attempted first degree murder were severed or not makes no difference since the evidence regarding Mrs. Stoute's injuries was admissible in the first degree murder trial under Art. 404(B)(1). The trial court committed no error in admitting this evidence. La.C.Cr.P. art. 720; *236 Prieur, 277 So.2d at 128 (res gestae evidence admissible).
Assignments of Error Nos. 30, 31, 32, 33, 34, 35, 36, 37, 38
Physical Evidence
By these assignments, the defendant argues the trial court erred in allowing in evidence certain photographs of the victim and her mother as well as certain items of clothing worn by the two women. The defendant argues the question of whether he killed Charlotte Perry and wounded Mrs. Stoute was not at issue as it was admitted by defense counsel in opening argument. Since the fact of and cause of death were not at issue, the defendant contends the gruesome nature of the pictures only prejudiced the jury. In particular, the nightgown of Mrs. Stoute was irrelevant and inflammatory, considering the defendant was not on trial for the shooting of Mrs. Stoute. Immediately prior to trial, the defense objected to several of the photographs. While the trial court found some of them to be gruesome, it found the pictures' probative nature outweighed any prejudicial effect.
The photographic exhibits complained of are 11" × 14" color photographs mounted on poster board which show the following:
S-1: A close-up, autopsy photograph depicting the head and left hand of the victim, showing the defensive wound in the hand and the penetration of the head;
S-8C A medium-distance, autopsy photograph depicting the exit wound in the victim's back;
S-8A A photograph at the scene depicting the victim from the front, wearing a long nightgown and socks, lying as found on the driveway and showing the location of spent shell casings;
S-8B A photograph at the scene depicting the victim from the back, wearing a long nightgown and socks, lying as found on the driveway and showing the location of spent shell casings;
S-6 A photograph depicting the living room of the Stoute residence and showing a blood stain on the floor;
S-21A A photograph depicting Mrs. Stoute, wearing a nightgown, lying on her living room floor, after she had been rolled over. Although there is blood in the picture, there is no clear view of the wounds.
The admission of gruesome photographs will not be overturned unless it is clear the prejudicial effect of the photographs outweighs their probative value. State v. Lindsey, 543 So.2d 886, 894-95 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990); State v. Eaton, 524 So.2d 1194, 1201 (La.1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 818, 102 L.Ed.2d 807 (1989). "This court will not find that photographs were admitted in error unless they are so gruesome as to overwhelm the jurors' reason and lead them to convict the defendant without sufficient other evidence." Copeland, 530 So.2d at 543; Eaton, 524 So.2d at 1201. The fact the photographs are gruesome does not, in and of itself, prevent their admissibility. Comeaux, 514 So.2d at 97.
Post-mortem photographs at the scene or autopsy photographs of murder victims are admissible to prove corpus delicti, to provide positive identification of the victim, to corroborate other evidence establishing the cause of death, the manner in which death occurred, and the location, severity, and number of wounds. Copeland, 530 So.2d at 543; Eaton, 524 So.2d at 1201; Comeaux, 514 So.2d at 96-97. This court has held "the defendant cannot deprive the State of the moral force of its case by offering to stipulate to what is shown in photographs." State v. Perry, 502 So.2d 543, 559 (La.1986), cert. denied, 484 U.S. 872, 108 S.Ct. 205, 98 L.Ed.2d 156 (1987); State v. Harvey, 358 So.2d 1224, 1229 (La. 1978).
We find the photographic evidence offered was relevant and probative in proving the state's case against the defendant. La.Code Evid. art. 403. Although the autopsy photographs of the victim were graphic, they helped establish the cause of death and the victim's attempt to defend herself. Compare Perry, 502 So.2d at 558 *237 (color photographs of five victims shot in the head showing destruction of the skulls found held admissible); Copeland, 530 So.2d at 542-43 (color photograph depicting child's head which had been partially blown away by shotgun blast held admissible). The photographs of the victim at the scene corroborated the testimony of law enforcement officers as to the location of spent shell casings, the location of the victim, and the manner in which she died. Considering the distance at which these photographs were taken, they were not gruesome. Compare Comeaux, 514 So.2d at 96 (photographs of two victims; one lying face down in pool of blood; the other lying face up, almost completely nude, with smears of blood on the body, held admissible).
The photograph of Mrs. Stoute helped to establish the serious nature of her injuries. This was necessary to show the defendant's intent to kill or to cause great bodily harm to her and was essential for a finding that the defendant had the intent to kill more than one person when he killed Ms. Perry. The fact that Mrs. Stoute had been rolled over and was not lying face down as she testified she was directly after the shooting does not detract from the overall relevance of the photograph.
The photograph of Mrs. Stoute's living room with the bloodstain on the floor corroborates Mrs. Stoute's testimony of her struggle with the defendant in trying to keep him from taking her daughter out of the house and her description of where in her house she was shot.
As to the nightgowns worn by the women and introduced in evidence at trial, the record shows state offered to stipulate Mrs. Stoute's nightgown was in an evidence bag and to not show the garment to the jury. The defense objected to the introduction of the gown at all on grounds of relevance and prejudice. The trial court allowed the garment admitted and displayed to the jury, finding the nightgown relevant to the question of specific intent and further finding display of the garment was preferable to having Mrs. Stoute disrobe to show her injury. The state offered the same stipulation to the defense for the clothing worn by Charlotte Perry. The defense refused to stipulate, again citing relevance and prejudice as grounds. After argument outside the presence of the jury, the trial court overruled the defense's objections and permitted the introduction of the nightgowns.
This court has held the relevancy of the clothing of a victim "is self-evident and needs no discussion." Copeland, 530 So.2d at 543 (citation omitted). Although there was blood on the garments at the location of the womens' injuries, this would not be sufficient to overwhelm a juror's reason. The trial court did not err in its rulings.
Assignments of Error Nos. 39, 40
Testimonial Evidence
By these assignments, Bourque contends it was prejudicial error for the trial court to qualify the state's witness, Christopher Henderson, as an expert in firearms and blood spatters. He also argues he was prejudicially surprised by the testimony of the surgeon who treated Mrs. Stoute, Dr. Broussard.
La.Code Evid. art. 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Trial courts are vested with great discretion in determining the competence of an expert witness, and rulings on the qualification of a witness as an expert will not be disturbed unless there was an abuse of that discretion. State v. Trahan, 576 So.2d 1, 8 (La.1990).
The record shows Christopher Henderson, who worked at the Acadiana Crime Lab, was initially qualified as an expert in forensic chemistry after detailing his experience and training. Included in this discussion was a description of Henderson's continuing education and training which covered yearly training on firearms and trace evidence. Henderson *238 had previously been qualified as an expert in all eight parishes served by the Acadiana Crime Lab and had never been refused qualification as an expert.
Henderson related he went to the Stoute household to view the scene. When he mentioned there appeared to be high velocity blood splatters in the living room, defense counsel objected on the basis Henderson was not qualified to testify as an expert in the area of blood splatters. Further questioning as to Henderson's training in this area elicited the response the witness had been previously qualified to testify in this area. He attended a week long school on blood splatters and their relevance to crime scenes given by one of the leaders in the field. Henderson testified he had continued his education in the area since that time. The trial court then qualified him as an expert in the field of blood splatters. Henderson thereafter related the location of blood splatters in the Stoute living room.
Later, the state asked Henderson what type of testing he performed on the weapons and the shell casings recovered at the Stoute residence. Defense counsel objected. On further questioning by the state as to his experience and training, Henderson restated his primary field at the lab was in the area of trace evidence and ballistics or firearms identification. The state reiterated Henderson had been qualified as an expert in such in each parish covered by the crime lab and that Henderson had never been refused qualification. The defense had no questions and the trial court accepted Henderson as an expert in the field of ballistics and firearms.
Henderson then testified the shell casings recovered at the scene had been fired from the 9 MM pistol discovered in Bourque's vehicle. He stated the lead fragments and wadding found in the Stoute residence were consistent with having been shot out of the shotgun found in Bourque's possession. He also determined the pistol which shot Charlotte Perry had been held six to twenty-four inches away from her when the shots were fired.
As to Henderson's qualification as a firearms and ballistics expert, the record shows there was no abuse of discretion by the trial court. Henderson's primary fields were trace evidence and ballistics. He received continuing, yearly training in this field. In addition, he had been qualified as an expert in each parish which the crime lab served and had never been refused expert qualification.
Although Henderson's qualifications as an expert in blood splatters were not as extensive, the record reveals no reversible error occurred in accepting him as an expert. Henderson testified only as to the location of blood splatters. No specialized knowledge was needed for this testimony; any fact witness could have done the same. Henderson did not provide any expert opinion relating to this testimony, for example, the origin of the splatters, the distance traveled, or the speed of the splatters. Thus, even assuming the trial court erred in qualifying Henderson as an expert in this field, no prejudicial error resulted. Although the defendant claims the testimony regarding the blood splatters was introduced solely to inflame the jury, the evidence did help corroborate Mrs. Stoute's testimony that the direction of the shotgun blast was upward.
Defendant's additional contention that the testimony linking the spent casings to the defendant's weapon was irrelevant and cumulative is also meritless as the evidence was relevant to proving the defendant was guilty of the charged offense.
The defendant argues the trial court erred in allowing Dr. Broussard, the surgeon who operated on Mrs. Stoute, to testify regarding her injuries. He complains the state failed to answer a discovery motion seeking this information and failed to give the defense notice this witness would testify.
The record shows the defense did request the identity of all expert witnesses who would testify at trial in a pretrial motion. The state's answer claimed it was not required to provide this information. Although the defense was allowed time *239 after the hearing to submit further motions and to file objections to the state's answer for discovery, none were filed.
When Dr. Broussard was called at trial, the defense objected and claimed surprise. The state argued the doctor was on its witness list. In addition, the state argued it had received no reports from the doctor and had spoken to him for the first time the morning he was to testify. The trial court overruled the objection, noting no discoverable reports had been generated by the witness. The trial court found the doctor's testimony to be relevant to the issue of specific intent to kill or inflict great bodily harm on more than one person. Defense counsel did not ask for a recess, continuance, or mistrial.
Under La.C.Cr.P. art. 719, on motion of the defense the trial court must order the state to allow the defendant to obtain reports of examinations and tests which will be used at trial. Any exculpatory evidence must be produced even if it is not intended to be used at trial. As noted by the trial court, no reports were generated by this expert; thus, no technical violation of this statute occurred.
Considering the extent of Mrs. Stoute's injuries, the defense's claim of surprise regarding this witness is not well taken. However, even assuming the state's discovery responses were deficient, "exclusion of evidence or declaration of a mistrial are not required in all cases of discovery violations." Jones, 474 So.2d at 928; State v. Williams, 448 So.2d 659, 664 (La.1984) ("the failure of the state to comply with the discovery procedure will not automatically command reversal"); La. C.Cr.P. art. 729.5.[19] The defendant must show actual prejudice resulted from the discovery violation. Jones, 474 So.2d at 928; Williams, 448 So.2d at 664. Defendant argues the testimony was irrelevant because the cause and extent of Mrs. Stoute's injuries were never in dispute; therefore he claims the testimony was prejudicial in that it only served to inflame the jury.
In his testimony, Dr. Broussard described Mrs. Stoute's injuries. He testified that although no artery was severed, she could have died from loss of blood had she not received treatment in time. In addition, the doctor testified that had Mrs. Stoute been shot by a shotgun blast at the same distance in the throat, she would have been killed promptly. This information was relevant to the issue of specific intent.
Mrs. Stoute had already testified as to her injuries. The doctor's testimony in this regard was, thus, cumulative. A review of the testimony shows it was not unduly inflammatory. Furthermore, because the defendant can show no specific prejudice he suffered as a result of the doctor's testimony, any discovery error in failing to provide the doctor's name in pretrial is harmless.
Assignments of Error Nos. 41, 42, 43
Closing Arguments
By these assignments, Bourque contends the prosecutor made improper remarks during closing argument in the guilt phase of trial regarding the defendant's failure to testify or to put on a defense which require the reversal of his conviction.
The defendant argues the prosecutor made an indirect reference to his decision not to testify in the following instance:
PROSECUTOR: ... I don't think there's any doubt that Mr. Bourque attempted to forcibly seize and carry Charlotte Perry out of her residence and away from her home. There's been absolutely no evidence to contradict the statements of Ms. Stoute, Mr. Perry, the brother of Ms. Perry *240 DEFENSE COUNSEL: Excuse me. Judge, we need to approach the bench.
Vol. 16, pp. 3842-43.
At a bench conference the defense moved for a mistrial, which was overruled. The defendant claims that, since he was the only other person at the scene, and the only other person who had knowledge of the events, this statement was a comment on his failure to testify.
A defendant relies on the Fifth and Fourteenth Amendments to the U.S. Constitution to protect his right against self-incrimination by forbidding the prosecution to comment on the defendant's failure to take the stand. See Lee, 559 So.2d at 1320. In addition to this federal protection, state law provides for a mandatory declaration of mistrial if the prosecutor refers directly or indirectly to the failure of the defendant to testify in his own defense. La.C.Cr.P. art. 770(3). The purpose behind the rule "is to prevent attention from being drawn to the fact that the defendant has not testified in his own behalf," and to prevent the jury from drawing unfavorable inferences from the fact. State v. Fullilove, 389 So.2d 1282, 1284 (La.1980).
Under the statutory rule, where the prosecutor makes a direct reference to a defendant's failure to take the stand, a mistrial must be declared. In that event, the Court will not attempt to determine what effect the statement had on the jury. State v. Johnson, 541 So.2d 818, 822 (La. 1989); Fullilove, 389 So.2d at 1284.
Where the prosecution makes a reference to a defendant's failure to take the stand which is indirect, this Court tries to determine the remark's intended effect on the jury, "to distinguish indirect references to the defendant's failure to testify (which are impermissible) from general statements that the prosecution's case is unrebutted (which are permissible)." Johnson, 541 So.2d at 822; Fullilove, 389 So.2d at 1284. "A statement that the state's evidence is uncontradicted is not necessarily a prohibited comment on defendant's failure to testify." State v. Jackson, 454 So.2d 116, 118 (La.1984).
In order to determine the prosecutor's intent, this Court has held "in cases where the prosecutor simply emphasized that the state's evidence was unrebutted, and there were witnesses other than the defendant who could have testified on behalf of the defense but did not do so, we have held that the prosecutor's argument did not constitute an indirect reference to the defendant's failure to take the stand." Johnson, 541 So.2d at 822 (emphasis in original). "On the other hand, where the defendant is the only witness who could have rebutted the state's evidence, `a reference to the testimony as uncontroverted focuses the jury's attention on the defendant's failure to testify' and mandates a mistrial." Id., (citation omitted).
The record shows there was another witness who had knowledge of the event referred to by the prosecutor besides the defendant, Mrs. Stoute, Kenneth Perry, or Michael Perry. Carroll Romero was in the Stoute residence and observed the defendant's attempts to pull Charlotte Perry to his car, her attempts to fight off the defendant, and the defendant's subsequent shooting of her. Since there was at least one other witness besides the defendant who could have rebutted the testimony referred to by the prosecutor, the defendant is incorrect in contending the prosecutor's remark was an indirect comment on his failure to testify. See Johnson, 541 So.2d at 822; Jackson, 454 So.2d at 118.
In addition, it is clear the prosecutor's comments were not intended to focus the jury's attention on the failure of the defendant to testify. State v. Smith, 433 So.2d 688, 697 (La.1983). "Instead, the comments were directed to the events of the crime which the defense did not contest." Lee, 559 So.2d at 1321 (where prosecutor argued the events of the crime known only to the defendant and two others showed premeditation). The defense did not contest the events of this crime. Defense counsel admitted in opening argument the defendant "caused the sorrow, *241 the pain, and the suffering that occurred [at the Stoute residence] on April the 15th, 1990." In closing argument the defense did not deny the defendant shot and killed Charlotte Perry while trying to maneuver her into his car or that the defendant shot and wounded Mrs. Stoute. Instead, the defense only argued what interpretation should be placed on those actions.[20]
In a related argument, the defendant contends the prosecutor's references in closing argument to the defense of intoxication, when the defense had presented no evidence in the guilt phase regarding intoxication, was a comment on the defendant's failure to present evidence or to present a defense. During argument, the prosecutor stated:
... What was in his mind? What was he concerned about then? He was concerned about getting away from what he had just done. He put his two weapons in the car, started his car, and where did he go? Did he go back to where he lived? No. He drove all the way to Metairie, Louisiana. This man that was intoxicated. The defense of intoxication. You remember, he drove all the way from Gueydon [sic] over here, did all those things, drove all the way to Metairie, but the defense is intoxication.
Vol. 16, p. 3865.
Defense counsel objected, arguing the prosecutor's comment was a comment on the fact the defense did not produce any evidence relative to the defense of intoxication. The trial court stated the defense of intoxication was still viable and noted it was going to give a jury instruction on the matter. The objection was overruled.
Under La.C.Cr.P. art. 774, closing arguments should be restricted "to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case. The argument shall not appeal to prejudice." See State v. Messer, 408 So.2d 1354, 1356 (La.1982). Generally, before a verdict will be overturned on the basis of improper argument, the reviewing court must be convinced the jury was influenced by the remarks and the remarks contributed to the verdict. State v. Moore, 432 So.2d 209, 220 (La.1983), cert. denied, 464 U.S. 986, 104 S.Ct. 435, 78 L.Ed.2d 367 (1983); Messer, 408 So.2d at 1357.
The record shows the defense filed a notice of intent to advance the defense of intoxication. In addition, the defense spoke about intoxication and the jurors' attitudes about it throughout voir dire. The defense now claims the intoxication defense was to be used only at penalty phase, and thus, it was error for the state to discuss the defense at the guilt phase.
Although the defense did not argue the defense of intoxication in either its opening or closing arguments at the guilt phase of the trial, the issue was nevertheless raised through questioning of witnesses. Defense counsel elicited testimony regarding the defendant's consumption of alcohol during cross-examination of bar owner, Terry Loignon. On direct examination, the prosecutor questioned Cheryl Oberg, the bartender at The Barn Lounge, about the drink she served the defendant. The defense followed up questioning her about the issue on cross-examination. The trial court charged the jury on intoxication as a defense in its jury instructions. In addition, the jury was also instructed the defendant *242 did not have to call witnesses or produce any evidence.
The prosecutor's argument referring to the defense of intoxication was a proper comment regarding evidence, or lack of evidence, raised at trial. In addition, there is no indication the jurors were improperly influenced by the remark or that the remark prejudicially contributed to the verdict.
Assignment of Error No. 44
Verdict
Bourque contends the evidence was insufficient to support the verdict of guilty of first degree murder under either LSA-R.S. 14:30(A)(1) or LSA-R.S. 14:30(A)(3).
Specifically, he claims there was insufficient evidence to prove he killed the victim while engaged in an attempted aggravated kidnapping. He claims the evidence, at most, supports a finding he was engaged in committing a second degree kidnapping or a simple kidnapping.[21] He also claims the state failed to prove he had the specific intent to kill or inflict great bodily harm to more than one person. He points to the fact he did not kill Michael Perry despite opportunity and the fact Mrs. Stoute did not die.
"Due process requires that a criminal defendant be convicted only upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." State v. Tassin, 536 So.2d 402, 409 (La.1988), cert. denied, 493 U.S. 874, 110 S.Ct. 205, 107 L.Ed.2d 159 (1989); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); LSA-R.S. 15:271. In reviewing the sufficiency of the evidence supporting a conviction, this court must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
The state alleged the defendant committed first degree murder either by violating LSA-R.S. 14:30(A)(1), by killing Charlotte Perry during the commission of an attempted aggravated kidnapping, or by violating LSA-R.S. 14:30(A)(3), by killing Charlotte Perry with the specific intent to kill or inflict great bodily harm upon more than one person.
In order to prove the crime of first degree murder committed under R.S. 14:30(3), the state was required to prove two elements: 1) the defendant killed the victim; and 2) the defendant had the specific intent to kill or to inflict great bodily harm upon more than one person.
The state proved beyond a reasonable doubt the defendant killed Charlotte Perry. Both Michael Perry and Carroll Romero saw the defendant shoot Charlotte Perry several times on the sidewalk in front of her home. The coroner testified the multiple gunshot wounds caused the chest cavity of the victim to fill with blood, leading to cardiac arrest.
The defendant contends the state failed to prove the second element, however, because he did not have specific intent to kill both Charlotte Perry and her mother. He again relies on State v. Andrews, 452 So.2d 687, 689 (La.1984), where the court reduced a conviction for first degree murder to second degree murder after finding no rational trier of fact could have concluded beyond a reasonable doubt that the defendant, by firing at one person, actively intended to kill that person and another.[22]
As stated previously,[23] this court has rejected the idea that R.S. 14:30(A)(3) must *243 be interpreted solely as occurring by a defendant's single act, such as when a bomb explodes in a crowded building. Instead, this court has determined the legislature intended this type of first degree murder to include "those murderers who formed an intent to commit multiple killings and who did in fact create the risk of multiple deaths through a single act or a closely related series of acts that resulted in at least one death." Williams, 480 So.2d at 727 (emphasis supplied); see also Ward, 483 So.2d at 581-82 (death penalty may be justified when a "single consecutive course of conduct" contemplates and causes the death of one person and great bodily harm to another).
The state may, thus, prove the second element of R.S. 14:30(A)(3) by proving the defendant, with specific intent to kill or cause great bodily harm, killed one person and caused great bodily harmto another if the actions were committed in a single consecutive course of conduct. In this case, the evidence supports that finding. From the time the defendant began struggling in the hallway of the Stoute residence with Ms. Perry and Mrs. Stoute until he fatally shot Ms. Perry outside the house, the defendant was engaged in a single consecutive course of conduct.
The state bore its burden of proving specific intent to kill or to inflict great bodily harm to both women. "A specific intent to kill can be inferred from someone pointing a gun at close range and pulling the trigger." Tassin, 536 So.2d at 411. The crime lab expert testified one of the gunshots was fired at Ms. Perry from a range of six to twenty-four inches away. Although the defendant claims he did not have the specific intent to injure Mrs. Stoute and only pointed the shotgun at her to cease her interference, the evidence shows it was only Mrs. Stoute's instinctive reaction to push the shotgun away from her throat as the defendant pulled the trigger that saved her from an immediate death. There was no evidence the defendant tried to render aid or contact medical personnel which would tend to show the alleged accidental nature of the shooting. Thus, the state proved all the elements necessary to prove the defendant committed first degree murder under R.S. 14:30(A)(3).
Finding that the state presented sufficient evidence to prove first degree murder under R.S. 14:30(A)(3), it is unnecessary to determine if the evidence supported a finding of first degree murder under R.S. 14:30(A)(1), as well. See Copeland, 530 So.2d at 540-41 (conviction for first degree murder upheld where state failed to prove existence of one predicate felony but did establish killing occurred during commission of a second predicate felony).
Assignments of Error Nos. 45, 46, 47
Jury instructions
Bourque contends the trial court committed reversible error in giving a confusing jury instruction on reasonable doubt and in giving an incorrect instruction on "direct" and "circumstantial" evidence at the close of the guilt phase of trial.
As to the reasonable doubt instruction, the trial court gave the following instruction:
The burden is on the State to prove the defendant's guilt beyond a reasonable doubt. In considering the evidence, you must give the defendant the benefit of every reasonable doubt arising out of the evidence or lack of evidence. If you're not convinced of the guilt of the defendant beyond a reasonable doubt, you must find him not guilty.
While the State must prove guilt beyond a reasonable doubt, it does not have to prove guilt beyond all possible doubt. Reasonable doubt is a doubt based on reason and common sense, and is present when, after you have carefully considered all of the evidence, you cannot say that you are convinced of the guilt of the defendant.
If two conclusions can be reasonably drawn from the evidence, one of innocence *244 and one of guilt, the jury must adopt the one of innocence.
Now, you must determine the facts only from the evidence presented in Court. The evidence which you should consider consists of the testimony of the witnesses and the exhibits which the Court permitted to be introduced into evidence.
You must not consider any evidence which was not admitted, or which you were instructed to disregard, or to which an objection was sustained.
Vol. 16, pp. 3892-93.
The defendant complains that after instructing the jury to consider the "lack of evidence" in its determination of reasonable doubt, the jury was then instructed it could determine facts "only from the evidence presented in court." The defendant argues this is misleading. He contends the jury may have held it against him that he did not present evidence or take the stand in his own defense. The defendant asserts the jurors might also have thought the state's unrebutted evidence was necessarily an accurate depiction of events. He claims this error could not have been harmless.
Under La.C.Cr.P. art. 801, a party may not assign as error any jury instruction or failure to give an instruction unless a specific objection is made before the jury retires to deliberate or within such time as would give the court a reasonable opportunity to cure the alleged error. The record shows the defendant failed to object to the instruction on reasonable doubt on these grounds.[24] The lack of a contemporaneous objection precludes the defense from asserting the error on appeal. Failure to bring the alleged error to the attention of the trial judge prevented the judge from correcting the error. State v. Leblanc, 506 So.2d 1197, 1201 (La.1987); State v. Simmons, 443 So.2d 512, 521 (La.1983); State v. Lee, 343 So.2d 1060, 1061 (La.1977) (in the absence of contemporaneous objection, the defendant's complaint that the jury charge was confusing does not present an issue reviewable on appeal). See also La. C.Cr.P. art. 841.
Even assuming the alleged error was preserved for appeal, the defendant's arguments are meritless. "In analyzing jury instructions, our cases caution against taking certain phrases out of context of the charge as a whole." State v. West, 568 So.2d 1019, 1023 (La.1990). The proper test for determining the correctness of a jury instruction is "whether, taking the instruction as a whole, reasonable persons of ordinary intelligence would understand the charge." Id.
The trial judge properly instructed the jury as to reasonable doubt. In addition to the questioned instruction, the jurors were instructed not to single out any instruction and disregard others. The jurors were instructed the defendant was not required to prove his innocence, to put on witnesses, to produce evidence, or to testify. Further, the trial judge instructed "[n]o presumption of guilt may be raised, and no inference of any kind may be drawn from the fact that the defendant did not testify."[25] Reading the jury charge as a whole, it is clear persons of ordinary intelligence would have understood the charge.
The defendant also complains of the jury instruction regarding direct and circumstantial evidence. The trial judge instructed the jury as follows:
Now, evidence is either direct or circumstantial. Direct evidence is evidence which, if believed, proves a fact. Circumstantial evidence or indirect evidence is evidence which, if believed, proves a fact, and from that fact you may logically and reasonably conclude that another fact exists.
*245 You cannot find a defendant guilty solely on circumstantial evidence unless the facts proved by the evidence exclude every reasonable hypothesis of innocence.
Vol. 16, pp. 3894-95.
The defendant objected, asking that the words "if believed" be stricken and replaced by "proven beyond all reasonable doubt." The defendant argues on appeal the instruction as given lessened the standard of proof.
It should be noted initially that the trial judge's charge on direct and circumstantial evidence is a direct quote of the charge suggested in Louisiana Jury Instructions, Criminal-Civil Section 3.6.[26] This information is also contained in the Louisiana Judges' Bench Book.[27] As the editors' note to both sources reveals,
[t]he first paragraph attempts to distinguish direct evidence from circumstantial evidence. See Cleary et al, McCormick on Evidence, § 185 West (2nd Ed.1972); Wigmore, Law of Evidence, § 25 Little, Brown and Company (3rd Ed.1940).
The second paragraph is taken directly from La.R.S. 15:438 and states the rule to be applied when the state's case depends on circumstantial evidence. See State v. Smith, 339 So.2d 829 (La.1976); State v. Elzie, 343 So.2d 712 (La.1977); State v. Allen, [129 La. 733] 56 So. 655 (La.1911).
The charge given was a correct statement of the law. See State v. Davenport, 445 So.2d 1190, 1196 (La.1984) (special charge unnecessary where this definition was correct statement of law in general charge). In addition, the trial judge instructed the jury the state had to prove its case beyond a reasonable doubt. Thus, the jurors were instructed as to the proper standard of proof.
PENALTY PHASE
Assignments of Error Nos. 28, 48, 49
Evidence of Unadjudicated Crimes
By these assignments, Bourque presents multiple arguments contending the trial court committed reversible error by allowing evidence of other crimes, specifically the Vermilion Parish shooting of Jasper Fontenot and including an autopsy photograph of Fontenot, to be admitted in the penalty phase of the trial. At the time of trial, Bourque had been charged with but not convicted of Fontenot's murder.
The defendant claims there is no statutory basis to allow the introduction of this evidence and the state may do so only within the context of the specific aggravating factors listed at LSA-C.Cr.P. art. 905.4.
Even if no error was committed in introducing the evidence, the defendant claims prejudice by its introduction in this case because the evidence: 1) did not meet the criteria of State v. Brooks, 541 So.2d 801 (La.1989); 2) was inherently prejudicial; 3) was unrelated to the shooting of Charlotte Perry and her mother; 4) gave him no chance to rebut expert testimony because he did not receive adequate prior notice; 5) infringed on his Fifth Amendment right not to incriminate himself in a future prosecution; 6) was only proper rebuttal evidence; and 7) was not truly indicative of his character and propensities, as the events of the evening in question were isolated, unrelated incidences in his life.
Admissibility of Other Crimes Evidence in Penalty Phase
The character of a defendant convicted of first degree murder is automatically at issue in the sentencing phase of the trial, whether the defendant has placed character in issue or not. State v. *246 Jackson, 608 So.2d 949, 953 (La.1992); State v. Jordan, 440 So.2d 716, 719 (La. 1983); La.C.Cr.P. art. 905.2. This court has previously determined the enumerated aggravating circumstances of La.C.Cr.P. art. 905.4 should not be considered as limiting the scope, or controlling the admissibility, of the sentencing hearing's inquiry into a defendant's character. Rather, the purpose behind Art. 905.4 is to require the jury to find one of the specified aggravating circumstances exists beyond a reasonable doubt before the jury may consider imposing a sentence of death. Jackson, 608 So.2d at 953-54; La.C.Cr.P. art. 905.3. "As long as one statutory aggravating circumstance is proved, the prosecutor can introduce other evidence relevant to and probative of the circumstances of the murder and the character and propensities of the murderer." Jackson, 608 So.2d at 954.
This court has held that evidence of unrelated, unadjudicated crimes constitutes relevant and probative evidence of the defendant's character and propensities. Jackson, 608 So.2d at 954-56; Brooks, 541 So.2d at 813; see also Ward, 483 So.2d at 588. In Brooks, the court held evidence of unadjudicated crimes was admissible at the sentencing phase of a trial once the trial court determines: "1) the evidence of defendant's connection with commission of the unrelated crimes is clear and convincing; 2) the proffered evidence is otherwise competent and reliable; and 3) the unrelated crimes have relevance and substantial probative value as to the defendant's character and propensities, which is the focus of the sentencing hearing under La.C.Cr.P. art. 905.2." Id., 541 So.2d at 814.
In Jackson, this court reaffirmed the holding of Brooks, but placed limitations on the type of evidence of unadjudicated crimes that could be introduced at the penalty phase. The court limited evidence of unadjudicated crimes "to that which involves violence against the person of the victim," and "to that conduct for which the period of limitation for instituting prosecution had not run at the time of the indictment of the accused for the first degree murder for which he is being tried." Jackson, 608 So.2d at 955.
In this case, the state gave notice of its intent to introduce evidence of the Fontenot shooting in its amended answer to defendant's motion for discovery filed October 30, 1990. On January 18, 1991, the trial court held a hearing and determined the evidence of other crimes was admissible should the case proceed to a penalty phase after conviction for first degree murder.[28] Thus, the defendant received proper notice the unadjudicated evidence would be presented at his sentencing hearing.[29]Hamilton, 478 So.2d at 132 ("fundamental fairness dictates that an accused receive adequate prior notice that evidence of unrelated criminal activity may be offered by the prosecutor in an effort to punish him for the charged crime").
The evidence of the shooting of Jasper Fontenot satisfied all the criteria of Brooks as well as the limitations expressed in Jackson. At a pretrial hearing, the trial judge determined the evidence to be admissible, specifically finding the evidence relevant to the defendant's character and propensities. The Fontenot shooting was a crime of violence against a person and was committed within the time restrictions articulated in Jackson.
Although the Fontenot shooting was unrelated to the shooting of Charlotte Perry and Theresa Stoute, it was relevant evidence of Bourque's character and propensities. Jackson, 608 So.2d at 955 ("crimes of violence against the person indicate moral qualities and character traits pertinent to the propensity to commit first degree murder").
*247 The defendant's assertion that he was not prepared to rebut or address any expert testimony also lacks merit. The defendant was aware of the testimony of the state's forensic and firearms expert since it was offered at a pretrial hearing. The only other expert witness the state presented at the sentencing hearing was the doctor who performed Fontenot's autopsy. The doctor testified only as to the cause of Fontenot's death. The defendant does not assert what information he would have which would have rebutted that evidence.
The defendant contends his Fifth Amendment right against self-incrimination was violated by introduction of the other crimes evidence. Bourque complains he could not contest any evidence of the Vermilion Parish shooting without having these statements used against him at a future criminal proceeding. No Fifth Amendment violation occurred here; Bourque's assignment of error is premature. The purpose of the Fifth Amendment's protection against self-incrimination protects a defendant from being compelled to testify. In this case, the defendant did not take the witness stand. The defendant's Fifth Amendment right would only have been activated had he testified, and had that testimony been used at a subsequent criminal proceeding. To the extent the potential use of his penalty phase testimony at a later trial compelled him not to testify, the only constitutional right implicated is one of due process. In Jackson, this court held due process is not violated where the clear and convincing standard of Brooks is met, and the jury's sentencing discretion is further limited so arbitrary factors are not considered.[30]Jackson, 608 So.2d at 955.
Due to the lack of other evidence of violent crime, the jury was aware the shootings of Charlotte Perry, Theresa Stoute, and Jasper Fontenot were isolated incidences in the defendant's life.
Other Crimes Evidence Injected Arbitrary Factor
Although the defendant's arguments complaining of the admissibility of the evidence of the Fontenot shooting lack merit, and we find the evidence was fully admissible under both Brooks and Jackson, we must conclude an arbitrary factor was injected into the sentencing proceedings in this case which invalidated the jury's subsequent recommendation of the death penalty.
La.C.Cr.P. art. 905.9 requires this court to review every sentence of death to determine if it is excessive. In making this determination, the court examines (1) whether the sentence was imposed under the influence of passion, prejudice or other arbitrary factors; (2) whether the evidence supports the finding of a statutory aggravating circumstance; and (3) whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. See Louisiana Supreme Court Rule 28.[31]
A jury's discretion to impose a sentence of death must be "suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976). While this court has determined the state may present evidence of unrelated unadjudicated crimes charged against a defendant in order to show the defendant's character and propensities, that authority is not unlimited. *248 In Jackson, this court imposed restrictions on this type of evidence "in order to insure that due process is not violated by the injection of arbitrary factors into the jury's deliberations and to prevent a confusing or unmanageable series of mini-trials of unrelated and unadjudicated conduct during the sentencing hearing." Id., 608 So.2d at 955.
At the penalty phase of this trial, the state presented the testimony of twelve witnesses, eleven of which testified exclusively as to the Fontenot shooting.[32] Four eyewitnesses testified they saw the defendant shoot Jasper Fontenot. Other witnesses testified to the chain of custody of physical evidence recovered at the scene. Finally, the coroner testified as to Fontenot's cause of death. During this expert testimony, an autopsy picture of Fontenot was accepted in evidence.
Excepting the testimony of one witness who testified regarding the instant offense, the state produced no other evidence of the character of the defendant. In short, the state presented a prohibited "mini-trial" on the issue of the defendant's guilt or innocence of the killing of Jasper Fontenot.
It is important to remember the capital sentencing jurors must be able to weigh the fact that the defendant has not yet been judged guilty of the unadjudicated conduct introduced to show the defendant's character and propensities. With regard to this unadjudicated conduct, the defendant is entitled to a presumption of innocence which cannot be overcome except by a finding of guilt by a jury whose sole province is the defendant's guilt or innocence for that offense. In order to preserve this presumption of innocence to which the defendant is entitled, the capital jury may only consider that the defendant has been connected with the unadjudicated criminal conduct.
In the penalty phase of this case, the state introduced four eyewitnesses to the Fontenot shooting who testified to what they saw, multiple law enforcement officers who testified about the evidence gathered and its chain of custody, and the coroner who testified about Fontenot's cause and manner of death. This evidence went far beyond the mere showing of the existence of an allegation of criminal conduct which the capital jurors could consider in its evaluation of the defendant's character and propensities and instead attempted to prove the defendant's culpability for this unadjudicated crime beyond a reasonable doubt.
Introduction of evidence beyond that necessary to show criminal conduct has been committed and that the defendant has been accused of or connected to that criminal conduct, as well as some minimal evidence in support of these allegations, impermissibly shifts the focus of a capital sentencing jury from considering the character and propensities of the defendant to a determination of guilt or innocence of the unadjudicated criminal conduct.
We cannot say the jury's focus, which should have been narrowed to a determination of the appropriate penalty for this first degree murder, was not shifted to a determination of the defendant's guilt in the Fontenot shooting. Thus, we find an arbitrary factor was injected into the jury's sentencing determination which invalidated the jury's subsequent recommendation of the penalty of death. Due to this finding, we need not consider the defendant's remaining assignments of error regarding the penalty stage of his trial.
*249 CONCLUSION
For the foregoing reasons the defendant's conviction of first degree murder is AFFIRMED. The sentence of death is reversed and vacated and the case is remanded to the district court for a new sentencing trial. La.C.Cr.P. art. 905.1(B).
CONVICTION AFFIRMED; DEATH SENTENCE REVERSED AND VACATED; NEW PENALTY HEARING ORDERED.
DENNIS, J., concurs with reasons.
MARCUS, J., concurs in the affirmance of the conviction but dissents from the reversal of the sentence of death.
LEMMON, J., dissents in part and assigns reasons.
NOTES
[*] Pursuant to Rule IV, Part 2, § 3, Watson, J. was not on the panel which heard and decided this case. See the footnote in State v. Barras, 615 So.2d 285 (La.1993).
[1] Generally, assignments of error which have been neither briefed nor argued are considered abandoned. Consistent with this court's practice in death penalty cases, however, all assignments of error will be reviewed. See State v. Bay, 529 So.2d 845, 851 (La.1988) (and cases cited therein). Those assignments which have been briefed will be discussed in the main opinion; all others will be contained in an unpublished Appendix, which will remain a part of the record. The opinion will follow the order of the assignments of error as contained in the defendant's brief.
[2] Subsequent to this trial, Bourque was tried for and convicted of second degree murder for the killing of Jasper Fontenot. For purposes of this appeal, however, this court must only consider the defendant's status at the time of trial.
[3] Another witness, Cheryl Oberg, testified a shot went into the wall of the bar over the telephone. Both witnesses were correct. Evidence showed a round was fired into the floor and another round was fired into the wall by the telephone. See Vol. 17, pp. 4010, 4012.
[4] It should be noted the proper procedural vehicle in which to request removal of an assistant district attorney from prosecuting a case is a Motion to Disqualify. Recusation is a proceeding which is not applicable to the assistant district attorney. La.C.Cr.P. art. 680, Comment (a); State v. Fallon, 290 So.2d 273, 279 (La.1974).
[5] See No. 91-KD-9586, at 3.
[6] Defendant's argument that the statement also constitutes evidence of other crimes is addressed in Assignments of Error Nos. 26, 27.
[7] La.C.Cr.P. art. 230 provides "[t]he person arrested has, from the moment of his arrest, a right to procure and confer with counsel and to use a telephone or send a messenger for the purpose of communicating with his friends or with counsel."
[8] See Assignments of Error Nos. 1, 2, 3.
[9] See Assignments of Error Nos. 1, 2, 3.
[10] The defendant's trial, held almost one year after the Perry shooting, was expected by defense counsel to last through Easter 1991. Prospective jurors were questioned regarding this possibility during voir dire.
[11] During voir dire examination of a panel of prospective jurors, the prosecutor inquired:
Do you understand there is two ways for the defense of intoxication to come in? One is where it's involuntary, that is, where somebody may put something in somebody's drink without them knowing it. And the second one is if he says I'm voluntarily intoxicated, then the condition has to be to such a degree that you have to be convinced by a preponderance of the evidence that this person didn't know that he was committing the murder.
Vol. 6, p. 1353.
Defense counsel objected to the words "didn't know" and at a bench conference, the trial judge cautioned the prosecutor to use the terms "have the requisite specific intent." vol. 6, p. 1355.
[12] Vol. 9, p. 2095.
[13] Although defense counsel's objection comes after the court's questioning of Mr. George, the record seems clear the court was contemplating the same action for both. Vol. 14, pp. 3420-27.
[14] By this motion, the state also notified the defense of its intent to introduce evidence of the Fontenot shooting in the penalty phase of trial to show the defendant's character and propensities.
[15] Vol. 15, p. 3648, 3655 (testimony of Ian Robinson); Vol. 15, p. 3699 (testimony of Officer Reggio).
[16] LSA-R.S. 15:450 provides "[e]very confession, admission or declaration sought to be used against any one must be used in its entirety, so that the person to be affected thereby may have the benefit of any exculpation or explanation that the whole statement may afford."
[17] It also appears the state may have tried to withdraw the motion in limine and to just proceed with the statements. Vol. 4, p. 989.
[18] The defense filed a motion in limine seeking to exclude all evidence of the shooting of Mrs. Stoute. In a pretrial hearing on the matter, the trial court denied the motion. Vol. 5, pp. 1019-22.
[19] La.C.Cr.P. art. 729.5 provides in pertinent part: "If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate."
[20] It is unclear whether this issue would be subject to harmless error analysis. In Jackson, this court found the harmless error doctrine applicable in reviewing a prosecutor's indirect comment on a defendant's failure to testify. Id., 454 So.2d at 118. In Johnson, the court questioned whether such an analysis is appropriate where the statutory rule mandates a mistrial where an improper reference has been made. We need not decide the issue here since we find no error was made. We note, however, the proper analysis 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, 2081, 124 L.Ed.2d 182 (1993) (emphasis in original).
[21] At the time of the offense, second degree kidnapping was not one of the enumerated felonies which constituted a first degree murder under LSA-R.S. 14:30(A)(1). Since that time, second degree kidnapping has been added to the list. See Acts 1990, No. 526, § 1, effective September 7, 1990.
[22] See also State v. Stewart, 458 So.2d 1289, 1291 (La.1984).
[23] See Assignments of Error Nos. 19, 20, 21, supra.
[24] Defense counsel did object to the statement "while the State must prove guilt beyond a reasonable doubt, it does not have to prove guilt beyond all possible doubt," and requested it be deleted. Vol. 16, 3834.
[25] Vol. 16, p. 3892.
[26] Joseph, Lamonica, and Johnson, Louisiana Jury Instructions, Criminal-Civil (1980).
[27] Joseph and Lamonica, Louisiana Judges' Benchbook, Vol. I, Jury Instructions-Criminal, 3.6 (1985).
[28] As noted in Jackson, the trial judge may schedule this hearing either prior to trial or outside the presence of the jury during the course of the trial. Jackson, 608 So.2d at 955 n. 8.
[29] The defendant's trial was held over one month later, from March 18-28, 1991.
[30] As to the type of information a jury may consider in the sentencing portion of a bifurcated procedure, the Supreme Court has held it is a constitutionally indispensable requirement in a capital case that the sentencing authority consider "the character and record of the individual offender and the circumstances of the particular offense." Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976).
[31] This Capital Sentence Review is generally accomplished after all the defendant's assignments of error are reviewed and found to lack merit. In this case, a finding that an arbitrary factor was injected in the penalty phase negates the necessity for further review of the defendant's additional assignments of error in the penalty phase.
[32] The only witness not to testify about the shooting in Vermilion Parish was Deputy Suire, who investigated the Perrys' complaint against the defendant on March 17, 1990.
| {
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} |
120 F.3d 991
38 Fed.R.Serv.3d 632, 27 Envtl. L. Rep. 21,506,47 Fed. R. Evid. Serv. 757,Prod.Liab.Rep. (CCH) P 15,020,97 Cal. Daily Op. Serv. 5803,97 Daily Journal D.A.R. 9348
David SCHUDEL, et al., Plaintiffs,andDeborah Guaragna-Williams, Plaintiff-Appellee,v.GENERAL ELECTRIC CO., a foreign corporation; KaiserAluminum And Chemical Corporation, a foreigncorporation, Defendants-Appellants.David SCHUDEL; Daniel Glass; Merlin E. Carlson; TimothySchudel; Sandra Schudel, husband and wife, and the maritalcommunity composed thereof; Kathrene Rae Howell; Craig A.Thompson; John Hopkins; Ruth Hopkins, husband and wife,and the marital community composed thereof, Plaintiffs-Appellants,v.GENERAL ELECTRIC CO., a foreign corporation; KaiserAluminum And Chemical Corporation, a foreigncorporation, Defendants-Appellees.
Nos. 95-35092, 95-35145.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Oct. 8, 1996.Decided July 23, 1997.
Joe G. Hollingsworth, Donald W. Fowler and Katharine R. Latimer, Spriggs & Hollingsworth, Washington, DC, and James B. King, Keefe, King & Bowman, Spokane, WA, for defendants-appellants-cross-appellees.
Craig F. Schauermann, Schauermann & Thayer, Vancouver, WA, and Marcia M. Meade, Dawson & Meade, Spokane, WA, for plaintiffs-cross-appellants David Schudel, Timothy Schudel, Daniel Glass, Sandra Schudel, Merlin Carlson, Kathrene Howell, and Craig Thompson.
Thomas C. Phelan, Vancouver, WA, for plaintiffs-cross-appellants John and Ruth Hopkins.
Craig F. Schauermann, William K. Thayer, and David I. Gedrose, Schauermann & Thayer, Vancouver, WA, for plaintiff-appellee Deborah Guaragna-Williams.
Kit A. Pierson, Jenner & Block, Washington, DC, for amicus curiae.
Appeals from the United States District Court for the Eastern District of Washington; Fred Van Sickle, District Judge, Presiding. D.C. No. CV-92-00081-FVS.
Before BROWNING, D.W. NELSON, and FERNANDEZ, Circuit Judges.
JAMES R. BROWNING, Circuit Judge:
1
This diversity case involves claims for damages from negligence and loss of consortium against defendants General Electric Company and Kaiser Aluminum and Chemical Corporation. Kaiser contracted with General Electric to clean up polychlorinated biphenyls (PCBs) at Kaiser's Trentwood facility in Spokane, Washington. Nine of the ten plaintiffs were employed by General Electric on the cleanup.1 These plaintiffs alleged they developed various neurological and respiratory problems from exposure to two cleaning solvents, trichloroethane (TCA) and perchloroethylene (Perc).
2
A jury returned verdicts for the plaintiffs. The defendants moved for JNOV or new trial. The district court affirmed the verdict in favor of one plaintiff, Deborah Williams. The court granted JNOV with respect to respiratory injuries2 asserted by Merlin Carlson ("Carlson") and with respect to neurological injuries3 asserted by Kathrene Froese, John Hopkins, and Ruth Hopkins ("the Froese plaintiffs"). The court ordered a new trial with respect to injuries of Carlson and the Froese plaintiffs as to which JNOV had not been granted. Finally, the court granted JNOV on all claims asserted by the five remaining plaintiffs ("the Schudel plaintiffs"4).
3
Defendants appeal the verdict in favor of plaintiff Williams. The other plaintiffs appeal the granting of motions for JNOV or new trial. We address four issues: (1) whether the district court had jurisdiction over the defendants' motions for JNOV or new trial; (2) whether we have jurisdiction to review the district court's order for JNOV and new trial as to Carlson and the Froese plaintiffs; (3) whether the district court erred by granting JNOV against the Schudel plaintiffs without considering expert testimony the court concluded after trial had been erroneously admitted; and (4) whether the district court properly admitted expert testimony on behalf of plaintiff Williams.
4
I. District Court Jurisdiction Over the Defendants' Motions for JNOV or New Trial
5
Plaintiffs argue the district court lacked jurisdiction to consider defendants' motions for JNOV or new trial because the motions were not properly served.5 When the motions were filed, Federal Rules of Civil Procedure 50 and 59 required the defendants to both file and serve such motions within ten days after entry of judgment.6 Defendants filed the motions and delivered them to Federal Express for service on the tenth day after judgment. While personal delivery or delivery to the U.S. Postal Service would have satisfied the service requirement, delivery to Federal Express did not. Magnuson v. Video Yesteryear, 85 F.3d 1424, 1431 (9th Cir.1996).
6
Rules 50 and 59 were amended in 1995, however, to require only that such motions be filed, not served, no later than 10 days after entry of judgment. See Fed.R.Civ.P. 50(b), 59(b). The amendments took effect December 1, 1995, and "govern all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings in civil cases then pending." S.Ct. Order, Amendments to the Federal Rules of Civil Procedure (Apr. 27, 1995).
7
This proceeding was pending on December 1, 1995, and no prejudice will result from application of the amendments. All parties have briefed the substantive, non-jurisdictional arguments in detail. No additional action on the part of the court or the parties is required to proceed. We have applied amended federal rules of appellate procedure retroactively in similar circumstances, see Schroeder v. McDonald, 55 F.3d 454, 459-60 (9th Cir.1995); Wallis v. J.R. Simplot Co., 26 F.3d 885, 888 (9th Cir.1994), and do so here.
8
II. Appellate Jurisdiction Over Order Granting JNOV and New Trial to Carlson and the Froese Plaintiffs
9
The district court granted JNOV with respect to respiratory injuries allegedly sustained by Carlson and with respect to neurological injuries allegedly sustained by the Froese plaintiffs. The court vacated the verdicts for these plaintiffs on the ground that they were "tainted" by the evidence of the injuries as to which JNOV had been granted, and ordered a new trial as to Carlson's neurological injuries and the Froese plaintiffs' respiratory injuries. The court certified appeals from the orders for new trial pursuant to Federal Rule of Civil Procedure 54(b).7
10
We have jurisdiction to review final judgments on entire claims, not on individual issues. An order adjudicating only one issue that is not determinative of an entire claim is not appealable even if a district court certifies the order under Rule 54(b). Arizona State Carpenters Pension Trust Fund v. Miller, 938 F.2d 1038, 1039 (9th Cir.1991). We must determine independently whether a certified judgment is final as to a particular claim.8 Id.
11
Litigants who advance a single legal theory of liability applied to one set of facts allege a single claim. Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 743, 96 S.Ct. 1202, 1206, 47 L.Ed.2d 435 (1976). Carlson and Froese alleged a single claim of negligence, not separate claims for neurological injury and respiratory injury. Similarly, the Hopkinses alleged claims for negligence and loss of consortium, not separate claims for neurological injury and respiratory injury as to each claim.
12
The district court granted JNOV as to issues related to certain injuries allegedly suffered by plaintiffs because of defendants' negligence. We have no jurisdiction to review the court's rulings on these issues because the claims for negligence and the derivative claims for loss of consortium have not been finally determined. The order granting new trial is also interlocutory and not immediately appealable. Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 101 S.Ct. 188, 189-90, 66 L.Ed.2d 193 (1980); Roy v. Volkswagenwerk Aktiengesellschaft, 781 F.2d 670, 671 (9th Cir.1985).9
III. Excising Testimony in Granting JNOV
13
The Schudel plaintiffs argue the district court erred in excising the previously admitted testimony of Dr. Paula Lantsberger before granting defendants' motion for JNOV. We agree.
14
Dr. Lantsberger was the only witness on causation on behalf of the Schudel plaintiffs. Dr. Lantsberger described symptoms and offered specific testimony regarding causation under two theories: a specific condition causation theory; and a "whole person aggravation" theory. The defendants filed a motion to exclude Dr. Lantsberger's causation testimony prior to trial and a motion to strike the testimony during trial. The district court did not rule on these motions.
15
After the jury returned verdicts in favor of plaintiffs and defendants moved for JNOV, the court held that Dr. Lantsberger's causation testimony based on the "whole body aggravation" theory had been admitted erroneously. The court then considered the sufficiency of the remaining evidence to support the jury verdicts and granted the motion for JNOV. The court denied defendants' alternative request for a new trial.
16
Four circuits have held that, when deciding a motion for JNOV, a trial court may not ignore evidence erroneously admitted at trial, reasoning that excluding evidence after the verdict is unfair to a party who may have relied on the determination that the evidence was admissible.10 "If evidence is ruled inadmissible during the course of the trial, the plaintiff has the opportunity to introduce new evidence. However, when that evidence is ruled inadmissible in the context of deciding a motion for JNOV, the plaintiff, having relied on the evidence already introduced, is unable to remedy the situation." Jackson v. Pleasant Grove Health Care Ctr., 980 F.2d 692, 696 (11th Cir.1993).
17
We recently indicated we would abide by the same rule. See Central Office Tel., Inc. v. American Tel. & Tel. Co., 108 F.3d 981, 993 (9th Cir.1997). We now hold that when ruling on a Rule 50(b) motion, a district court should not exclude evidence erroneously admitted at trial. The record should be taken as it existed when the trial closed. This rule promotes certainty: litigants need not supplement conditionally admitted evidence, perhaps unnecessarily; and district courts need not speculate as to what other evidence might have been offered if the evidence had been excluded at trial. The rule promotes fairness: punishing a litigant for the court's erroneous admission of evidence is unfair; and the remedy of a new trial is available to put both sides on an equal footing. Jackson, 980 F.2d at 696 n. 4.
18
The district court properly concluded that Dr. Lantsberger's testimony based on the "whole person aggravation" theory of causation did not meet the standard of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (Daubert I ), (outlined in Part IV of this opinion), and should have been excluded. Once the jury rendered its verdict based on the improperly admitted evidence, however, the district court erred in excising that evidence when ruling on the motion for JNOV. Considering all the evidence admitted at trial, including Dr. Lantsberger's "whole person aggravation" theory testimony, we conclude there was sufficient evidence to support the jury verdicts in favor of the Schudel plaintiffs.
19
Nonetheless, these verdicts may not stand. The district court erred in denying defendants' motion for new trial. A new trial should be granted when the erroneous admission of evidence affected the substantial rights of the parties. Fed.R.Civ.P. 61. Dr. Lantsberger's testimony was the only evidence of causation; its erroneous admission was undoubtedly prejudicial.
IV. The Defendants' Appeal
20
Defendants argue the neurological symptom causation testimony of Dr. William Morton, Dr. Daniel Goldstein, and Dr. Lantsberger underlying the jury verdict for Deborah Williams was not admissible under Federal Rule of Evidence 702.11
A.
21
The Supreme Court held in Daubert I, 509 U.S. at 590-91, 113 S.Ct. at 2795-96, that Rule 702 requires the trial judge to determine that proposed scientific expert testimony will be both reliable and relevant. See also Daubert v. Merrell Dow Pharm., 43 F.3d 1311, 1313 (9th Cir.1995) (Daubert II ).
22
Scientific knowledge is reliable if it is "ground[ed] in the methods and procedures of science" and "connotes more than subjective belief or unsupported speculation." Daubert I, 509 U.S. at 590, 113 S.Ct. at 2795. In determining reliability, "[t]he focus ... must be solely on principles and methodology, not on the conclusions that they generate." Id. at 595, 113 S.Ct. at 2797.
23
Evidence of scientific knowledge is relevant if the "reasoning or methodology properly can be applied to the facts in issue." Id. at 593, 113 S.Ct. at 2796; see also Daubert II, 43 F.3d at 1315 (evidence of scientific knowledge must "logically advance[ ] a material aspect of the proposing party's case"). A court's determination of relevance must consider the applicable substantive standard. See id. at 1320. Under Washington tort law, a plaintiff must show that the "the act complained of 'probably' or 'more likely than not' caused the subsequent disability." O'Donoghue v. Riggs, 73 Wash.2d 814, 440 P.2d 823, 830 (1968). This is virtually the same as the standard under California tort law applied in Daubert II. See 43 F.3d at 1320. Under this standard, we held in Daubert II that expert testimony offered to prove causation did not satisfy the relevance requirement because the evidence suggested only that use of the drug at issue "could possibly have caused plaintiffs' injuries," rather than "more likely than not" caused the injuries, i.e., that use of the drug more than doubled the likelihood the injuries would occur. 43 F.3d at 1320-22.
B.
24
The district court approved reliance by Williams' experts on interview data collected by Diane Nebel. Nebel contacted many of the workers at the Kaiser facility after one of the project supervisors fell ill with Legionnaire's disease. Nebel found no evidence of a Legionnaire's outbreak, but did discover that some of the workers, including the plaintiffs, suffered from various medical symptoms. The data collected in Nebel's Legionnaire's disease investigation provided the basis for much of the scientific testimony presented by Williams' experts at trial.
25
The district court acted within its discretion in approving the use of this data by Williams' expert witnesses. Dr. Goldstein and Dr. Lantsberger both testified the data was of the type toxicologists consider reliable and regularly rely upon. See Fed.R.Evid. 703.
26
Dr. Morton testified that plaintiff Williams suffered from solvent-induced toxic encephalopathy which "more probably than not" was caused by exposure to Perc and TCA. Dr. Morton's testimony met Daubert 's relevance requirement. However, it did not meet Daubert 's requirement of reliability.
27
Dr. Morton's conclusions were based on extrapolation from studies that: (1) involved organic solvents other than TCA or Perc; and (2) examined long-term exposure at relatively low chemical concentrations or short-term exposure at very high concentrations, rather than the short-term, moderate-level exposure sustained by Williams. Dr. Morton did not establish it was scientifically acceptable to draw general conclusions about the neurotoxicity of TCA and Perc from studies of other chemicals; indeed, the testimony indicated small differences in molecular structure often have significant consequences.
28
As to differences in length and intensity of exposure, the district court erroneously reasoned that because there was evidence that acute exposure to TCA and Perc can cause toxic encephalopathy, whether Williams' exposure was sufficient to cause her symptoms was a question for the jury. Williams' exposure was neither long enough nor intense enough to fall within the ranges described in the studies Dr. Morton relied upon. Extrapolation was necessary to make the studies relevant, and there was no showing that the necessary extrapolation was scientifically acceptable.12
29
Dr. Goldstein's testimony suffered from similar deficiencies. Dr. Goldstein conceded that only five organic solvents, none of which were involved in this case, had been proven to be neurotoxic. He also testified that it would be improper to infer conclusions as to the toxicity of TCA and Perc based on the toxicity of other solvents, and that repeated exposure to nonpersistent toxins such as organic solvents over a long period must be documented to establish a causal relationship.
30
Dr. Goldstein acknowledged that the biochemical mechanism of neurotoxicity from TCA and Perc has not been demonstrated. Only two studies cited by Dr. Goldstein involved TCA and Perc, and neither met Daubert standards. The Altman study found no relationship between exposure to Perc and the toxic encephalopathy or loss of consciousness alleged by the plaintiffs. The Kalifant study involved long-term (7-15 years), repetitive exposures to TCA at high levels.
31
Dr. Lantsberger's testimony failed to meet Daubert 's relevance requirement. She testified it was only a "possibility," not a "probability," that Williams suffered organic brain damage from exposure to solvents at the facility. Dr. Lantsberger admitted she could not testify to a specific cause and effect relationship between Williams' exposure and health problems. She relied instead on a "whole person aggravation" theory without establishing that the theory had a scientific basis.
32
Dr. Lantsberger's testimony regarding the hazards of TCA and Perc was inadmissible under Daubert. Dr. Lantsberger, like Dr. Goldstein, relied on the Altman and Kalifant articles to reach her neurotoxicity conclusions, and like Dr. Goldstein, admitted that medical science has not determined the effects of short-term exposure to the solvents involved.
33
Plaintiff Williams points to other expert witnesses whose testimony was not challenged by defendants. Only one of these experts provided causation testimony, and his testimony related only to Williams' respiratory injury.
34
Considering all the evidence admitted at trial, including the erroneously admitted evidence, we hold the district court properly denied defendants' motion for JNOV with respect to Williams. Admission of the challenged expert testimony was prejudicial, however, because it was the sole causation evidence with respect to Williams' neurological symptoms. Accordingly, we vacate the judgment entered on the jury verdict, reverse the district court's denial of defendants' motion for a new trial, and remand.
CONCLUSION
35
We lack jurisdiction to review the district court's grant of JNOV and new trial as to plaintiffs Merlin Carlson, Kathrene Froese, John Hopkins, and Ruth Hopkins, and DISMISS their appeals.
36
We REVERSE the grant of JNOV and the denial of the motions for new trial as to plaintiffs David Schudel, Tim Schudel, Sandra Schudel, Daniel Glass, and Craig Thompson, and REMAND.
37
We find plaintiff Deborah Williams' neurological expert testimony on causation inadmissible, VACATE the judgment entered on the jury verdict in her favor, REVERSE the denial of the motion for new trial, and REMAND.
38
DISMISSED in part, and VACATED, REVERSED, and REMANDED in part. No costs allowed.
1
The tenth plaintiff, Sandra Schudel, did not work at the site, but asserted a loss of consortium claim as the wife of plaintiff Tim Schudel
2
With respect to Carlson, the term "respiratory injuries" applies to respiratory injuries, fatigue, overall body pain, and all other alleged injuries that do not fall within the term "neurological injuries."
3
With respect to these plaintiffs, the term "neurological injuries" applies to neurological injuries, headaches, rashes, and all other alleged injuries that do not fall within the term "respiratory injuries."
4
David Schudel, Tim Schudel, Sandra Schudel, Daniel Glass, and Craig Thompson
5
Plaintiff Carlson does not raise this issue; his attorney was timely served
6
See former Fed.R.Civ.P. 50(b) ("Such a motion [for judgment as a matter of law] may be renewed by service and filing not later than 10 days after entry of judgment."); former Fed.R.Civ.P. 59(b) ("A motion for a new trial shall be served not later than 10 days after the entry of judgment.")
7
Under Fed.R.Civ.P. 54(b), when a lawsuit involves multiple claims or multiple parties, a district court "may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment."
8
Carlson and the Froese plaintiffs argue the standard of review is not de novo, but abuse of discretion. We review the certification of an appeal under Rule 54(b) for abuse of discretion. Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 797 (9th Cir.1991). Even though a decision is certified under Rule 54(b), however, we must independently ensure that we are dealing with a final judgment before exercising jurisdiction. Arizona State Carpenters, 938 F.2d at 1039
9
Carlson and the Froese plaintiffs argue this court has jurisdiction to review a conditional grant of a new trial under Fed.R.Civ.P. 50(c). See Air-Sea Forwarders, Inc. v. Air Asia Co., 880 F.2d 176, 190 n. 15 (9th Cir.1989) (stating that appellate courts may review conditional new trial orders because the plain language of Rule 50(c)(1) expressly permits this review). The district court ordered a new trial under Rule 50(b), not Rule 50(c)(1). The order was not conditioned on reversal of the order granting JNOV. Rule 50(b) does not provide for review of non-conditional new trial orders
10
See Jackson v. Pleasant Grove Health Care Ctr., 980 F.2d 692, 695-96 (11th Cir.1993); Douglass v. Eaton Corp., 956 F.2d 1339, 1343-44 (6th Cir.1992); Sumitomo Bank v. Product Promotions, Inc., 717 F.2d 215, 218 (5th Cir.1983); Midcontinent Broadcasting Co. v. North Cent. Airlines, Inc., 471 F.2d 357, 358-59 (8th Cir.1973). The Third Circuit has held that such exclusion is proper as long as other evidence relating to the same issue was not barred during trial as cumulative, reasoning that the moving party has a competing interest in litigating a case only once and expressing doubt that litigants would hold back significant evidence at trial. Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1199-1200 (3d Cir.1993)
11
Defendants also argue the trial court should have held a pretrial hearing on the admissibility of the testimony of Williams' experts. Because we conclude the expert testimony should have been excluded, we do not decide whether a pretrial hearing should have been held
12
Given our analysis of the admissibility of Dr. Morton's testimony, we need not consider defendants' contention that his testimony should have been excluded because testimony based on case reports is not admissible under Daubert
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551 A.2d 1347 (1988)
Nathaniel SPANN, Appellant,
v.
UNITED STATES, Appellee.
No. 86-953.
District of Columbia Court of Appeals.
Argued November 16, 1988.
Decided December 30, 1988.
Lisa Greenman, Public Defender Service, with whom James Klein, Public Defender Service, Washington, D.C., was on the brief, for appellant.
Roy W. McLeese, III, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and Michael W. Farrell and Elizabeth Trosman, *1348 Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.
Before NEWMAN, BELSON and TERRY, Associate Judges.
TERRY, Associate Judge:
Appellant was convicted of assault[1] and robbery.[2] On this appeal he presents no challenge to the assault conviction. His sole contention is that an inculpatory statement which he made at the time of his arrest should have been suppressed, on the ground that the statement was impermissibly elicited from him when a police officer asked the robbery victim[3] a question while the officer and the victim were standing only a few feet away from him. We hold that the police officer's conduct did not subject appellant to interrogation or its functional equivalent, and that the statement therefore was properly admitted into evidence. Accordingly, we affirm the judgment of conviction.[4]
I
On the day after Thanksgiving Day 1984, shortly before noon, Robert Aiken and Jose Roman-Capdeville were working at a construction site near 17th and Fuller Streets, N.W., when they heard a woman scream. The men ran toward Mozart Place, where the scream had come from, and there they saw a woman pointing toward appellant, who was running at a "slow jog" down Mozart Place toward Euclid Street. Because appellant was "suspicious-looking," the two men followed him at a distance. At the corner of Mozart Place and Euclid Street, appellant turned left and headed toward 16th Street, intermittently slowing down to a walk and then speeding up to a jog.
At about the same time, Officer Lawrence Julian of the United States Secret Service was on his motorcycle, driving south on 16th Street, when he received a radio report that someone was hitting a woman on Mozart Place. As he approached the corner of 16th and Euclid, he saw Aiken and Roman-Capdeville pursuing appellant. When they saw Julian, they stopped and told him what they had seen and heard. Appellant by that time had crossed 16th Street and entered Meridian Hill Park, so Officer Julian headed his motorcycle in that direction.
Marina Fuentes was also walking through the park on her way to work. Just as Officer Julian entered the park, appellant ran up to Mrs. Fuentes and demanded her money and her purse. When she resisted, he hit her in the face, causing her to drop the purse to the ground. Appellant picked it up and opened it, but when he saw Officer Julian coming toward him on a motorcycle, he threw the purse into the bushes and ran. Julian gave chase and caught up with him on the east side of the park. Officer Julian got off his motorcycle and told appellant that he was under arrest for taking Mrs. Fuentes' purse. Just as the officer was putting handcuffs on him, before he even had a chance to advise him of his Miranda[5] rights, appellant spontaneously told Julian that he was trying to return the purse to Mrs. Fuentes, not to take it from her.
Meanwhile, two Metropolitan Police officers, Kevin Graves and Paul Swope, received a radio run in their scout car to assist a Secret Service officer at 16th and Euclid Streets. Graves and Swope responded *1349 to the call. When they reached the scene of the arrest, Officer Julian was in the process of advising appellant of his rights. Officer Swope stayed with Julian and appellant, while Graves walked over to talk to Mrs. Fuentes, who was standing a short distance away. Because Fuentes' ability to speak English was limited, Graves enlisted the aid of a passerby, a Mr. Montez, to serve as an interpreter. Graves, Fuentes, and Montez were within six feet of appellant when Graves asked Fuentes, through Montez, whether appellant was the man who took her purse. Fuentes pointed to appellant and said, "That's the one." Immediately after Fuentes spoke these words, Graves testified, appellant "blurted out" that "he struck Nanny and [that] she owed him $30." Upon hearing appellant's statement, Graves moved the interview with Fuentes about twenty-five feet away, in an attempt to get out of earshot of appellant. There they were joined by Swope, who continued the interview while Graves returned to where Julian and appellant were standing and readvised appellant of his Miranda rights. Graves also recovered the purse from the bushes.
Appellant moved to suppress both the exculpatory statement he made to Officer Julian and the inculpatory statement he made to Officer Graves. After a hearing, the trial court ruled that neither statement would be suppressed because neither was the product of custodial interrogation. Appellant does not now contest the court's ruling with respect to the exculpatory statement, but he does maintain that the inculpatory statement should have been suppressed as a product of the functional equivalent of interrogation.
II
Officer Julian advised appellant of his Miranda rights almost immediately upon arrest, but appellant said nothing in response. We need not decide what rights, if any, appellant may have invoked by his silence, see Morris v. United States, 469 A.2d 432, 437 & n. 3 (D.C.1983), because we agree with the trial court that his subsequent inculpatory statement was not the product of interrogation.[6]
The procedural safeguards of Miranda apply not only to express custodial questioning but also to its "functional equivalent," i.e., "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689-1690, 64 L.Ed.2d 297 (1980) (footnotes omitted); see United States v. Alexander, 428 A.2d 42, 51 (D.C.1981). Since appellant was never subjected to direct questioning by Officer Graves, we must decide whether Graves' on-the-scene interview with Mrs. Fuentes, the robbery victim, within earshot of appellant was the functional equivalent of interrogation. Our primary focus must be on appellant's perception of Graves' action; Graves' intent, though it must not be ignored, is of secondary importance. Arizona v. Mauro, 481 U.S. 520, 107 S.Ct. 1931, 1935, 95 L.Ed.2d 458 (1987); Rhode Island v. Innis, supra, 446 U.S. at 300-303, 100 S.Ct. at 1689-91; Morris v. United States, supra, 469 A.2d at 438.
It is obvious from the evidence that the challenged question and answer were merely part of a dialogue between the officer and the victim to which appellant's response was neither invited nor expected. See Rhode Island v. Innis, supra, 446 U.S. at 293-296, 302, 100 S.Ct. at 1686-1687, 1690 (conversation between two police officers sitting in front seat of police car with suspect seated in rear). Moreover, there is nothing in the record to suggest that Officer Graves' questioning of Mrs. Fuentes was either "the kind of psychological ploy that properly could be treated as the functional equivalent of interrogation," Arizona v. Mauro, supra, 107 S.Ct. at 1935 (footnote omitted), or a stratagem "that *1350 reflected unfairness or vitiation of appellant's free will." Fuller v. United States, 132 U.S.App.D.C. 264, 278, 407 F.2d 1199, 1213 (1967), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125 (1969). Indeed, all the evidence is to the contrary.
The arrest scene was a confused one. Three officers, appellant, an excited and frightened victim, and an ad hoc interpreter had congregated together in a small area of Meridian Hill Park. Officer Graves did not bring Mrs. Fuentes to within earshot of appellant; she had walked over to the scene of the arrest on her own volition before Graves arrived. Indeed, when appellant blurted out his statement about having struck "Nanny" (apparently referring to Mrs. Fuentes) because she owed him $30, Graves moved Fuentes several feet away to a spot where he hoped to be out of earshot. Officer Graves' conduct simply cannot be compared to the intentionally coercive tactics which this court has disapproved in prior cases. E.g., Derrington v. United States, 488 A.2d 1314, 1325-1329 (D.C.1985) (while defendant was in custody at police headquarters, detective delivered a lengthy monologue which he admitted was intended to elicit a response from defendant), cert. denied, ___ U.S. ___, 108 S.Ct. 1738, 100 L.Ed.2d 201 (1988); In re E.G., 482 A.2d 1243, 1247-1248 (D.C.1984) (police lieutenant and defendant were alone when lieutenant said to defendant, "I wonder where the gun and the money is"); Wilson v. United States, 444 A.2d 25, 27-30 (D.C.1982) (detectives agreed upon a plan to talk to one another in defendant's presence, intending to elicit the kind of inculpatory statement that defendant eventually made); United States v. Alexander, supra, 428 A.2d at 49-51 (no one else present when detective spoke directly to defendant and said "We know what happened" or "We know you are responsible for the stabbing"; detective admitted to the court that he was using this technique to elicit an incriminating response).
Viewing the situation from appellant's standpoint, we think it highly unlikely that Officer Graves' question and Mrs. Fuentes' answer would arouse in appellant a compulsion to make an incriminating statement. Nevertheless, before we can decide whether the conversation between Graves and Fuentes was the functional equivalent of questioning, we must consider whether appellant had any peculiar susceptibilities and whether they were known to Officer Graves. See Rhode Island v. Innis, supra, 446 U.S. at 302-303, 100 S.Ct. at 1690-1691; Derrington v. United States, supra, 488 A.2d at 1328; Hawkins v. United States, 461 A.2d 1025, 1029-1031 (D.C. 1983), cert. denied, 464 U.S. 1052, 104 S.Ct. 734, 79 L.Ed.2d 193 (1984).
Appellant was coherent when he told Officer Julian that he was trying to return the purse, not to take it. Julian testified that he had no reason to suspect that appellant might be under the influence of drugs or alcohol, or suffering from any mental disability. Later, when Officer Graves read appellant his Miranda rights, he felt that appellant was able to understand them even though he appeared to be excited, was dirty and "raggedy-looking," and might have been "under the influence of some type of drug." Significantly, however, Graves neither spoke to appellant nor took custody of him until after he had blurted out the incriminating statement. Hence any possibility that drug use might have made appellant peculiarly likely to respond to any overheard comments, even though they were not directed at him, was not known to Officer Graves at the time he interviewed Mrs. Fuentes.
"[T]he definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." Rhode Island v. Innis, supra, 446 U.S. at 302, 100 S.Ct. at 1690 (footnote omitted; emphasis in original). This means that "the police will not be held accountable for unforeseeable results of their words or actions. . . ." Morris v. United States, supra, 469 A.2d at 438 (citation omitted). When Graves began to talk to Fuentes, there was no indication that appellant might have been peculiarly susceptible to the stimulus of their conversation; consequently, the conversation between *1351 Graves and Fuentes cannot be regarded as interrogation or its functional equivalent. See Hawkins v. United States, supra, 461 A.2d at 1031. Appellant's volunteered statement that he struck Mrs. Fuentes and that she owed him $30 was therefore not the product of custodial interrogation, and Miranda does not require its exclusion.
AFFIRMED.
NOTES
[1] D.C.Code § 22-504 (1981).
[2] D.C.Code § 22-2901 (1981).
[3] The assault involved a different victim.
[4] Appellant was also charged with assault with intent to commit rape, first-degree burglary, and second-degree theft. These charges were based on a series of incidents which occurred shortly before the robbery and involved a man matching appellant's description.
At the close of the government's case in chief, the trial court granted in part appellant's motion for judgment of acquittal on the charge of assault with intent to rape. The court ruled that there was insufficient evidence of an intent to rape and that it would instruct the jury only on the lesser included offense of assault. The jury acquitted appellant of that offense and of burglary and theft as well.
[5] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[6] The government does not dispute that appellant was in custody at the time he made the statement.
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445 F.2d 1334
HAMILTON BROTHERS, INC., Plaintiff-Appellee,v.Edmund G. PETERSON, Defendant-Appellant,v.MARINE BANK & TRUST COMPANY, Defendant-Appellee.
No. 71-1607 Summary Calendar.*
United States Court of Appeals, Fifth Circuit.
July 20, 1971.
Rehearing Denied September 15, 1971.
John P. Corcoran, Jr., Tampa, Fla., for defendant-appellant.
James E. Lehan, Tampa, Fla., for Marine Bank & Trust.
Joseph L. Thury, Tampa, Fla., for Hamilton Bros., Inc.
Before COLEMAN, SIMPSON and MORGAN, Circuit Judges.
SIMPSON, Circuit Judge:
1
Edmund G. Peterson (Peterson) here appeals from an adverse judgment entered by the district court, sitting without a jury. We reverse, and remand the cause with directions to dismiss the suit for lack of jurisdiction.
2
The plaintiff-appellee, Hamilton Brothers, Inc., (Hamilton) is a Florida corporation. The defendant-appellant, Edmund G. Peterson, at all times critical here was a Mexican resident.
3
On or about November 28, 1968, the M/V DON EMILIO B, owned by Hamilton, was enroute from Tampa, Florida, to Cozumel, Mexico, when it ran aground on reef off the coast of Quintana Roo, Mexico. The complaint alleged that on the dates of December 11-12, 1968, Peterson telegraphed an offer from Mexico to Hamilton in Tampa, Florida, to purchase the vessel, "as is-where is", and that the offer was accepted by return telegram from Hamilton to Peterson in Mexico. The bill of sale was to be delivered to Peterson's attorney, Hall, in Dallas, Texas. Peterson caused $15,000.00 to be deposited in the Marine Bank and Trust Company, in Tampa, Florida (Marine Bank), to be released upon the written approval of Hall after receipt and inspection of the bill of sale. No escrow agreement as to the $15,000.00 held by the Marine Bank was ever executed because the attorneys for the parties became embroiled in a controversy over the legal import of the telegrams and as to whether the vessel was free and clear of liens and encumbrances. Upon the refusal of Hall to accept a proffered bill of sale and release to Hamilton the $15,000.00 held by the Marine Bank, Hamilton brought suit in the court below under the diversity jurisdiction for specific performance of the claimed completed offer of purchase and sale of the vessel. The Marine Bank was enjoined from releasing the $15,000.00. Service upon Peterson as a non-resident doing business in Florida as to a transaction connected with the business venture was attempted under the Florida long-arm statute, F.S.A. 48.181,1 by serving the Secretary of State of Florida. The district court overruled Peterson's motion under Rule 12, F.R. Civ.P., to dismiss the action for lack of jurisdiction over the person and insufficiency of service of process. The motion was supported by Peterson's affidavit.
4
No counter-affidavit was filed by the plaintiff, although as pointed out by the appellee the lower court was free to consider the conclusionary allegations of the verified complaint alleging that Peterson was "doing business in Florida". Peterson was required to answer and the case proceeded to trial on the complaint and Peterson's answer and counter-claim for the return of his $15,000.00. It was tried before the court without a jury and resulted in a judgment for Hamilton, supported by Findings of Fact and Conclusions of Law, for $17,900.00 plus interest and costs. This represented the agreed price for the vessel and $2900.00 for a truck which was aboard the vessel and was, said the trial court's Finding No. 18, "cannibalized or lost because of the negligence of Peterson and his crew". This appeal followed.
5
We do not reach the merits on the appeal. Rather, we reverse with directions to dismiss the complaint for lack of jurisdiction. The Florida long-arm statute, conceding that it should be construed as broadly as is consistent with due process, Phillips v. Hooker Chemical Corp., 5 Cir. 1967, 375 F.2d 189, 192, simply is not capable of being stretched far enough to reach this transaction. There are not present the requisite minimum contacts with Florida so that maintenance of the action "does not offend traditional notions of fair play and substantial justice", Phillips v. Hooker Chemical Corp., supra, at page 193. Peterson's sole contact with Florida was the deposit of $15,000.00 in a Florida bank and a telegram sent to Hamilton in Florida offering to purchase the stricken vessel as it lay stranded off the Mexican coast.2 Peterson's attorney, to whom the bill of sale was to be delivered, was located in Dallas, Texas. Under traditional contract principles if a contract was entered into here it was not entered into in Florida and was not to be consummated in Florida. Peterson was to take possession of the vessel off the coast of Mexico, "as is-where is".
6
Under these circumstances it is our holding that this case is controlled by our decision in Florida Towing Corporation v. Oliver J. Olson Company, 5 Cir. 1970, 426 F.2d 896. Florida Towing was a case turning upon attempted service under the Florida long-arm statute under facts remarkably similar to the ones before us here. Upon remand the district court is directed to dismiss the complaint for lack of jurisdiction over the person of the defendant Peterson.
7
Reversed and remanded with directions.
Notes:
*
Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F. 2d 409, Part I
1
48.181 Service on nonresident engaging in business in state
(1) The acceptance by any person or persons, individually, or associated together as a copartnership or any other form or type of association, who are residents of any other state or country, and all foreign corporations, and any person who is a resident of the state and who subsequently becomes a nonresident of the state or conceals his whereabouts, of the privilege extended by law to nonresidents and others to operate, conduct, engage in, or carry on a business or business venture in the state, or to have an office or agency in the state, constitutes an appointment by the persons and foreign corporations of the secretary of state of the state as their agent on whom all process in any action or proceeding against them, or any of them, arising out of any transaction or operation connected with or incidental to the business or business venture may be served. The acceptance of the privilege is signification of the agreement of the persons and foreign corporations that the process against them which is so served is of the same validity as if served personally on the persons or foreign corporations.
(2) If a foreign corporation has a resident agent or officer in the state, process shall be served on the resident agent or officer.
(3) Any person, firm or corporation which sells, consigns, or leases by any means whatsoever tangible or intangible personal property, through brokers, jobbers, wholesalers or distributors to any person, firm or corporation in this state shall be conclusively presumed to be operating, conducting, engaging in or carrying on a business venture in this state.
2
The original telegram was preceded by a telephone call to Hamilton in Florida from Peterson in Mexico
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-2343
___________
United States of America, *
*
Appellee, *
*
v. *
*
Reginald DeSean Arline, *
*
Appellant. *
__________ Appeals from the United States
District Court for the Southern
No. 99-2345 District of Iowa.
__________
[UNPUBLISHED]
United States of America, *
*
Appellee, *
*
v. *
*
Steven Johnson, *
*
Appellant. *
___________
Submitted: August 25, 2000
Filed: August 31, 2000
___________
Before BEAM, FAGG, and LOKEN, Circuit Judges.
___________
PER CURIAM.
Reginald DeSean Arline, Steven Johnson, and two others were convicted of drug
and arson conspiracies, and of using and carrying a destructive device during and in
relation to the drug and arson conspiracies. We affirmed those convictions on direct
appeal. See United States v. McMasters, 90 F.3d 1394, 1396-1402 (8th Cir. 1996),
cert. denied, 519 U.S. 1071, 1099 (1997). Appellants Arline and Johnson then filed
separate motions under 28 U.S.C. § 2255, asserting claims related to Bailey v. United
States, 516 U.S. 137 (1995). They now appeal the district court's orders denying relief
without an evidentiary hearing.
After careful review, we conclude the appellants failed to show a properly
instructed jury would have acquitted them. We thus affirm the district court's denial of
their section 2255 motions. See United States v. Foley, 200 F.3d 585, 586-87 (8th Cir.
2000) (per curiam) (affirming denial of § 2255 relief to Arline and Johnson's
coconspirator, who raised Bailey challenge to 18 U.S.C. § 924(c) convictions);
Swedzinski v. United States, 160 F.3d 498, 501 (8th Cir. 1998)( (affirming denial of
§ 2255 motion where jury instruction on "use" was contrary to Bailey, but jury was
given option of finding "carry" violation; holding movant must show jury instruction
worked actual and substantial disadvantage amounting to constitutional error, and
properly instructed jury would have acquitted movant), cert. denied, 120 S. Ct. 119
(1999); Barrett v. United States, 120 F.3d 900, 901 (8th Cir. 1997) (per curiam)
(upholding post-Bailey application of coconspirator theory of liability to § 924(c)).
We affirm the rulings of the district court. See 8th Cir. R. 47B.
-2-
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-
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750 F.2d 601
55 A.F.T.R.2d 85-554, 84-2 USTC P 10,004
UNITED STATES of America, and Ralph Scheidt, Special Agentof Internal Revenue Service, Petitioners-Appellants,v.Anun SEETAPUN, M.D., S.C., a corporation, Respondent-Appellee.
No. 84-1538.
United States Court of Appeals,Seventh Circuit.
Argued Oct. 1, 1984.Decided Dec. 10, 1984.Rehearing and Rehearing En Banc Denied Jan. 11, 1985.
John A. Dudeck, Jr., Asst. Atty. Gen., Tax Div., Dept. of Justice, Washington, D.C., for petitioners-appellants.
Michael Dockterman, Wildman, Harrold, Allen & Dixon, Chicago, Ill., for respondent-appellee.
Before CUMMINGS, Chief Judge, and BAUER, and POSNER, Circuit Judges.
CUMMINGS, Chief Judge.
1
The government appeals from the district court's discharge of its rule to show cause against Dr. Anun Seetapun and his wife Marcia Seetapun and its denial of an order for contempt against the corporation Anun Seetapun, M.D., S.C. We reverse and remand.
2
* The litigation now before us began when the Internal Revenue Service ("IRS") issued an administrative summons to Anun Seetapun, M.D., S.C. (the "Corporation") on February 15, 1983. The Corporation is a medical service corporation through which Dr. Seetapun ("Anun") engages in the practice of plastic surgery. The IRS summons requested business and financial records, including records containing patients' names, treatment records, and other information. The Corporation refused to give the IRS those documents, asserting they were protected by the physician-patient privilege.
3
On August 26, 1983 the IRS instituted proceedings in the district court to enforce the summons.1 The Corporation responded to this petition on October 14th, declining to produce documents pertaining to receipts, patient statements and public aid statements, again on the ground of the physician-patient privilege. A hearing was held on November 4th to evaluate this claim, at which time the district court directed the parties to confer and try to reach an agreement.
4
No agreement was forthcoming, and the government renewed its petition to enforce on December 12th. A pretrial conference was held on December 20th, and the following day Judge Getzendanner issued an order directing the Corporation to produce all books, records and papers requested by the summons by 4:30 p.m. on January 3, 1984 for her in camera review. The order stated that the Corporation "shall raise such further objections to compliance with the summons as it may have" at a status hearing on January 4th. (U.S.App. 1a--2a.)
5
On January 3rd Anun filed an affidavit stating he did not have possession of the documents, did not know where they were, and had made an unsuccessful demand for them from his wife Marcia Seetapun ("Marcia"), who did have custody of the records (id. 3a--4a). Following the status hearing the next day, the district court ordered Marcia to bring the requested documents to court on January 6th, and issued an order to show cause why Anun and Marcia should not be held in contempt of court (id. 5a).
6
At the evidentiary hearing on January 6th, the court heard the testimony of Anun and the arguments of Marcia's lawyer that the district court lacked jurisdiction over her. At the conclusion of the hearing the district court (1) discharged its order to show cause against Anun, (2) vacated it as to Marcia for lack of jurisdiction and (3) refused to hold the Corporation in contempt of its order. The court did issue a preliminary injunction ordering the Corporation to refrain from destroying any documents called for by the subpoena. This order was made binding upon the Corporation, its agents, employees, officers, servants and attorneys, and upon those persons in active concert or participation with those who receive actual notice of the order. (Id. 6a.) As such, the order would forbid the custodian Marcia to destroy any corporate records in her possession. While the issuance of the preliminary injunction is not contested on appeal, the government does dispute the district court's decision on the aforesaid three matters.2
II
7
The threshold issue presented is whether this Court has jurisdiction over the appeal. As a general rule, an order must be final in order to be appealable. That determination depends in this case on the characterization of the January 6th hearing. The district court stated in its February 29 Memorandum Opinion and Order concerning its January 6th order that "[t]he enforcement proceedings against the corporation continue to be outstanding" (id. 11a). The district judge also stated that should Marcia return the documents to the Corporation, it would then "be in a position to respond to the outstanding subpoena" (id.). Clearly the lower court was convinced that it had not yet taken final action on the government's request for enforcement of its summons, a conclusion buttressed by several remarks of the district judge at the January 6th hearing. The court below stated that the case "was not over" and that it would wait for "the government to bring something to my attention" should it wish to proceed (Anun App. 48). The district judge believed that the service by the government of a summons upon Marcia directly would solve the problems presented, since any court proceeding to determine Marcia's defenses to that summons would obviate the need for further proceedings with reference to the Corporation (id. 48-49).
8
Resolution of the finality issue by the court below is troubling in light of the conflicting statements made by the court and the assumptions underlying the court's conclusion. Although asserting that the case was not over, the judge also stated that it was a "closed case" (id. at 49), and that there was nothing more for the court (id. at 48). More importantly, the district judge's statement that the enforcement proceedings were continuing is bottomed on the belief that the service of a summons on Marcia, which would start an independent proceeding, would render the instant case moot (id. at 51-52). While that assumption may be correct, it does not answer the question whether the January 6th proceeding resulted in a final, appealable order. Nor does it suggest what purpose would be served by keeping the case open. The district judge unequivocally stated that the Corporation would be in a position to comply with the summons only if Marcia turned the requested documents over to the Corporation. But Marcia would assert her defenses in the independent proceeding relating to the summons served specifically on her. Consequently the documents will most likely be surrendered, if at all, not to the Corporation but to the government through the independent proceeding. On analysis, as far as the Corporation is concerned, the proceedings in the district court have terminated. Thus we see no bar to treating the action taken by the trial court as final.
9
Nonetheless we do not accept the government's contention that its summons had been enforced in December and that the January 6th hearing was an IRS contempt proceeding within the meaning of 26 U.S.C. Sec. 7604(b). Not only did the district court on January 6th state that the hearing was to determine whether to issue a contempt citation for failure to comply with the court's January 4th order, "something totally different from any IRS contempt proceeding" (Anun App. 33), but the court had informed the Corporation in December that it could raise any further defenses it wished at the January 4th status hearing. If that status hearing indeed had been part of an IRS contempt proceeding, then allowing the Corporation to raise new defenses not asserted previously would be contrary to the Supreme Court's decision in United States v. Rylander, 460 U.S. 752, 103 S.Ct. 1548, 75 L.Ed.2d 521 (party cannot raise at contempt proceedings defenses that could and should have been raised in enforcement proceedings). We decline to interpret the district court's actions in a way contrary to a clear Supreme Court mandate. In addition to the district court's comments previously mentioned, the court below also stated, in response to the government's request that it find the Corporation in contempt on January 6th, that "I might do that, but I am not going to do it this afternoon [January 6]. It's a new idea and I think I'd have to give counsel an opportunity to respond to that." (Anun App. 46.)
10
No harm accrues to the Corporation from our treatment of the district court's rulings of January 6th and February 29th as a denial of the government's enforcement request. The Corporation had ample opportunity to present all its available defenses, having been warned by the district judge on December 21st that it should do so on January 4th (U.S.App. 1a). The Corporation may not now argue that it was prejudiced or denied due process of law. Accordingly, we will treat the court's February 29th order, in the light of its January 6th order, as denying the government's request for an enforcement order against the Corporation and hence as a final appealable order.3 The February 29th decision being final, the district court's findings therein regarding Anun and Marcia, as well as those concerning the Corporation, are ripe for review.
III
11
Since this Court has jurisdiction, the next issue is whether the district court erred in refusing to hold Anun and the Corporation in contempt. We conclude that the district court's findings that Anun and the Corporation lacked control of the documents were clearly erroneous.4 In these proceedings, the taxpayer carries the burden of establishing affirmative defenses. United States v. Kis, 658 F.2d 526, 542 (7th Cir.1981). In some situations, a taxpayer might be heard to claim that he was unable to obtain documents within the control of his wife. But such circumstances are not present here. Anun's "demand" for the documents consisted of no more than meeting with his wife in his lawyer's office, their both reading, for the first time, the contents of the affidavit Anun later signed stating that he had demanded the documents from Marcia and she had refused, and Marcia's refusal by silence to turn over the documents (Anun App. 14). On cross-examination the government asked Anun whether he had taken any other steps to reclaim the documents. He said that he had not. He also stated that Marcia had not refused to turn over the documents; rather she had merely given "no response." (Id. at 14-15.)
12
Although Anun asserts that he searched for the missing documents in his office and at home and failed to find them (id. at 19), his responsibilities surely go further than a pro forma demand and cursory search for records. It is true, as the district court said, that the mere fact of Anun and Marcia's marriage does not require that the court find that Anun had control over the documents. But neither does it mandate a finding of noncontrol, which the district court's opinion on these facts suggests. Marcia may believe that withholding the documents is to her advantage, but her doing so is also to Anun and the Corporation's advantage by frustrating the government's request for the documents and so delaying its investigation of possible tax liability. Marcia and Anun are plainly not dealing at arm's length in this matter, and the district court committed clear error in failing to recognize that fact. It borders on the ludicrous to accept Anun's testimony that for ten years he has given all documents to his wife, who deals with them in their home; has never in those ten years seen again any of those documents, including patient treatment records; has no idea where they are kept; and after a search of both his office and his apartment could not find them. His behavior resembles that of those responsible for their own inability to comply with enforcement orders and should be analyzed similarly. See United States v. Bryan, 339 U.S. 323, 330-331, 70 S.Ct. 724, 730-31, 94 L.Ed. 884; United States v. Asay, 614 F.2d 655, 659-660, (9th Cir.1980) (accounting firm had returned taxpayers' records to them before return date of administrative summons); In re D.I. Operating Company, 240 F.Supp. 672, 677 (D.Nev.1965) (records disappeared, apparently due to negligence and not to malice, sometime during three years that court summons was being appealed; they were unavailable despite "exhaustive search" having been made).5 Add to these facts that Anun is the president and sole director, employee and shareholder of the Corporation, and the district court's finding that he made "reasonable efforts" (U.S.App. 8a) to recover the documents is not tenable.
13
The Corporation's legal responsibilities support the result we reach. The Business Corporation Act Sec. 45, Ill.Rev.Stat. ch. 32, Sec. 157.45 (1983), requires corporations to "keep correct and complete books and records of account," a provision that applies to the Corporation through the Medical Corporation Act Sec. 3, id. Sec. 633. The Medical Corporation Act further provides, "All of the officers, directors and shareholders of a corporation subject to this Act shall at all times be persons licensed pursuant to the Medical Practice Act. No person who is not so licensed shall have any part in the ownership, management, or control of such corporation." Medical Corporation Act Sec. 13, id. Sec. 643. Anun is totally responsible for managing and controlling the Corporation; yet he is arguing not only that he has absolutely no control over the books and records the Illinois Business Corporation Act requires the Corporation to maintain, but by inference that no legal action is available to him or to the Corporation. Despite these obligations, the only attempt made on behalf of the Corporation to regain the documents, according to the record, was a request for them at Anun's and the Corporation's lawyers' office, a request refused by silence rather than by any statements or acts of defiance. Furthermore, Anun made this request subsequent to his lawyers' presenting him for the first time with an affidavit to sign stating that he had made the required request and been refused. This contrived dodge must not be allowed to defeat the investigatory powers of the IRS.
14
Two cases serve to illuminate the situation. In United States v. Hayes, 722 F.2d 723 (11th Cir.1984), defendant Hayes certified that he had made two trips from the United States to Switzerland to obtain foreign partnership records from his Swiss partner, who had refused him both times due to the Swiss partner's concern about a separate tax investigation. Nonetheless, the Eleventh Circuit vacated the district court's denial of a contempt order because it believed that Hayes had not made all reasonable efforts to comply. While that case arose in a contempt posture rather than a denial of enforcement, the decision is nonetheless relevant. The court of appeals based its conclusion on the availability of legal remedies Hayes could have used to reacquire the documents. Similarly, both Anun and the Corporation could have instituted legal proceedings against Marcia to regain the records. Their failure to investigate that and other possibilities evidences an intolerable disregard for the court's order of December 21 and the enforcement proceeding in general.
15
Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771, does not call for a contrary result. There Wilson, the president, had custody of the corporate records and removed them to his home, where they were beyond the effective reach of the corporate directors. The Supreme Court accepted the directors' claim that they were unable to produce the documents requested. The differences between that case and the instant one are significant. First, in Wilson, the books were in the president's home which the directors could not search. Given the probability that the records here are located somewhere in Anun's apartment, he can certainly find them there, aside from all other measures that he could take to retrieve them. Second, the directors in Wilson adopted a formal resolution requesting the president to return the documents. This formal, legally binding action differs radically from the weak attempts, if any, by Anun to convince Marcia to return the documents.6 Nor has the Corporation undertaken any of the legal remedies available to it to retrieve its corporate records. Finally, and most compelling, is the Court's statement: "The appellant [Wilson] did not attempt to assert any right on [the corporation's] part; his conduct was in antagonism to the corporation, so far as its attitude is shown." Id. at 376, 31 S.Ct. at 542. Conversely, Anun and the Corporation's interests parallel those of Marcia, so that they have no compulsion, beyond those that their legal responsibilities alone can provide, to exert real efforts to regain the documents. Unlike the corporate directors in Wilson, Anun and the Corporation have not evidenced through formal legal action any sincere attempts to regain the missing records. The district court's discharge of its order against Anun and refusal to hold the Corporation in contempt leading to its denial of the government's enforcement order were clearly erroneous; the court below should have rejected the superficial excuses of Anun and the Corporation and entered the enforcement order the government requested.
IV
16
Even were one to believe that the district court rightly found that Anun had no control over the documents and that he and the Corporation had exhausted all effective legal remedies available to them, so that Marcia's intransigence effectively disabled the Corporation from complying with the IRS summons, the district court erred in finding it lacked personal jurisdiction over Marcia. We note that where a district court "misunderstood its power or jurisdiction," the "mere error" standard of review is appropriate. United States v. Asay, 614 F.2d at 661.
17
Despite the district court's finding that "in acceptable nomenclature, [Marcia] was chief financial officer" (Anun App. 37), the court insisted on treating her as an employee so that the direction of the summons to the Corporation alone and not to her supposedly defeated the court's jurisdiction. The court explained that "she had no formal office and no formal responsibility to act on behalf of the corporation with respect to the subpoena" (U.S.App. 10a). This conclusion is certainly correct. But using it to justify treating Marcia as a mere employee is unsupportable and is unexplained by the district court. The court acknowledged that Marcia functioned as an officer, and had done so for ten years with the acquiescence of Anun. That her position is de facto and not de jure is not dispositive.7 When such situations have arisen in the past, courts have not hesitated to require de facto officers to accept responsibility for their actions on behalf of the corporation. See, e.g., South Seas Corporation v. Sablan, 691 F.2d 508 (9th Cir.1982); Jack v. Oakbrook Terrace Community Park District, 31 Ill.2d 390, 202 N.E.2d 7 (1964). That Marcia lacked any formal office means the district court should have examined the facts, and, finding that she in fact was an officer, so treated her, rather than treating her as an employee.
18
As an officer, Marcia has responsibility for enabling the Corporation to comply with orders directed to it. The Supreme Court stated in United States v. Wilson, 221 U.S. at 376, 31 S.Ct. at 542:
19
A command to the corporation is in effect a command to those who are officially responsible for the conduct of its affairs. If they, apprised of the writ directed to the corporation, prevent compliance or fail to take appropriate action within their power for the performance of the corporate duty, they, no less than the corporation itself, are guilty of disobedience, and may be punished for contempt.
20
Wilson is particularly apt, because it involved subpoenas directed to the corporation only, not naming individual officers or directors.8 Under Wilson Marcia cannot be allowed to claim that she is not bound by the summons on the Corporation when she is an officer of that same Corporation.
21
Not only is Marcia responsible for ensuring to the best of her ability that the Corporation comply with the summons, but the district court would have been well within its rights in ordering her to comply when it appeared that Anun lacked the necessary documents and that she had them. In United States v. Miller, 638 F.2d 39 (8th Cir.1980) (per curiam ), the Eighth Circuit summarily dismissed the president of the corporation's claim that the district court lacked personal jurisdiction over him because the summons involved there was directed to a former director and trustee rather than to him, and presumably rather than to the corporation. The court explained that the resignation of the named trustee justified the district court's determination "that the enforcement order could best be complied with by directing the [corporation's] president to produce the summoned materials." Id. at 40. Similarly, the revelation in January that Anun did not have the records empowered the district court to enforce the summons through an order against the person who did possess the records, de facto officer Marcia.9 But because Marcia has had no opportunity to appear before the district court to raise any privileges that may be available, she must be allowed to do so.
22
The district court order is vacated and the cause is remanded in accordance with Circuit Rule 18 for further proceedings consistent with the views expressed herein.
1
The individual named in the IRS petition, Ralph Scheidt, is the IRS Special Agent investigating this matter
2
The government served Marcia with a separate summons on January 6th, which it claims is a "protective matter" only due to the district court's ruling that it had no jurisdiction over Marcia (Govt. Brief at 22, n. 8). Regardless of motivation, that proceeding is independent of this one and does not affect the outcome here
3
Our interpreting the district court's February 29th decision in this way accords with Judge Swygert's opinion in United States v. Kis, 658 F.2d 526, 529 (7th Cir.1981), establishing "rules and procedures to be followed within our circuit" in IRS summons enforcement cases. He stated that "we cannot stress too emphatically that these proceedings are intended to be summary in nature. They occur, after all, at only the investigative stage of any action against a taxpayer, and no guilt or liability on the part of the taxpayer is established." Id. at 535. Consequently, "[t]he action should be concluded quickly, so that the investigation may advance toward the ultimate determination of civil or criminal liability, if any." Id
4
What standard is appropriate is unclear. United States v. Kis, supra n. 3, did not address this issue. In United States v. LaSalle Nat'l Bank, 554 F.2d 302, 306 (7th Cir.1977), reversed on other grounds, 437 U.S. 298, 98 S.Ct. 2357, 57 L.Ed.2d 221, this Court held "that the clearly erroneous standard governs review of findings that an IRS summons has or has not issued in good faith." Logically this holding shoudl extend to the district court's finding whether or not those summoned have control over requested documents, or whether or not they have made reasonable efforts to regain missing records. The Ninth Circuit accepted the "clearly erroneous" standard in United States v. Asay, 614 F.2d 655 (9th Cir.1980). The Third Circuit has adopted de novo review of a district court's determination of bad faith as review of a legal conclusion drawn from facts. United States v. Cortese, 614 F.2d 914 (3d Cir.1980). See also United States v. Stuckey, 646 F.2d 1369, 1373 (9th Cir.1981) (collecting cases), certiorari denied, 455 U.S. 942, 102 S.Ct. 1436, 71 L.Ed.2d 653. We need not answer the question, for the district court's findings do not pass muster even under the "clearly erroneous" standard
5
Absolute control over another's action is not necessary to a finding of liability. See United States v. Bestline Products Corp., 412 F.Supp. 754, 763-67 (N.D.Cal.1976). Nothing in the record indicates that Marcia would have defied Anun regardless of his wishes. She was doubtless complying with his tacit wishes to retain the records in her possession
6
Anun's counsel evidently believes that the only additional action available to Anun beyond the pro forma demand would be "to do violence to whoever it is he thinks may have the records to extract from them something" (Anun App. 46). Such an attitude is unjustifiably inflexible and unacceptable
7
Nor is it relevant that Illinois law would bar her from holding such office, because she, as far as we know, has no medical license. See Medical Corporation Act Sec. 13, Ill.Rev.Stat. ch. 32, Sec. 643 (1983). That statute does not alter the reality of her position in, and responsibility for, the Corporation. If it did, preemption analysis would bar this Court from relying on it to defeat the enforcement of the federal revenue laws
8
Although the corporate president and several of the directors in Wilson were served with the subpoenas, the Supreme Court did not distinguish between officers served with subpoenas and those not so served in its statements regarding officers' responsibility for the corporation. See United States v. Wilson, 221 U.S. at 374, 31 S.Ct. at 541 ("Where the documents of a corporation are sought, the practice has been to subpoena the officer who has them in his custody. But there would seem to be no reason why the subpoena duces tecum should not be directed to the corporation itself."). What is interesting to note is that the first subpoena served on the corporation in Wilson was served on the corporation's secretary as well as two directors, yet evidently only Wilson appeared to testify before the grand jury. Id. at 368, 31 S.Ct. at 539
9
That the proceedings in Miller arose after the entry of the enforcement order, rather than before, does not affect the court's determination of its power to hear the case. Like Marcia, the defendant argued in Miller that he lacked notice of the proceedings because he had received no summons. The court properly rejected this contention, holding him responsible for the Corporation's action. The timing of when the question arose was irrelevant to its determination, and its disposition of the case governs the instant situation
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297 F.3d 528
ZURICH INSURANCE COMPANY, a Swiss Corporation, a subrogee of Lear Corporation, a Delaware Corporation, Plaintiff-Appellant,American Guarantee & Liability Insurance Company, Movant-Appellant,v.LOGITRANS, INCORPORATED, et al., Defendants-Appellees.
No. 01-1018.
United States Court of Appeals, Sixth Circuit.
Argued April 30, 2002.
Decided and Filed July 29, 2002.
Paul D. Galea (briefed), Foster, Meadows & Ballard, Detroit, MI, Stephen J. Schlegel, Edward M. Kay (briefed), Ann C. Chalstrom (argued), Clausen, Miller, Gorman, Caffrey & Witous, Chicago, IL, for Plaintiffs-Appellants.
Michael J. Black (argued and briefed), Neil K. Disney (briefed), Buesser, Black, Graham & Buettner, Bloomfield Hills, MI, Donald R. Dillon, Jr. (argued and briefed), Moffett & Dillon, Birmingham, MI, for Defendants-Appellees.
Before SUHRHEINRICH and GILMAN, Circuit Judges; HOOD, District Judge.*
HOOD, D.J., delivered the opinion of the court, in which SUHRHEINRICH, J., joined. GILMAN, J. (pp. 533-35), delivered a separate concurring opinion.
OPINION
1
HOOD, District Judge.
2
In this negligence action, Plaintiff Zurich Insurance Company ("Zurich Switzerland") and Movant American Guaranty & Liability Insurance Company ("American Guaranty") appeal the district court's orders denying Zurich Switzerland's motion to substitute American Guarantee as the real party in interest, and denying Zurich Switzerland's and American Guarantee's emergency motion for rehearing and reconsideration, and subsequent dismissal of the case. Whereas the district court did not abuse its discretion in denying these motions, we AFFIRM the district court's decision.
FACTS
3
This lawsuit stems from a warehouse fire that occurred on August 27, 1997. Defendant American Commodities, Inc. ("ACI") leased the warehouse located at 2945 Davidson Road, Flint, Michigan and subleased a portion of the warehouse to Defendant Logitrans, Inc. ("Logitrans"). Logitrans subsequently provided services for Lear Corporation ("Lear") in connection with Lear's manufacture of automobile seats. The fire destroyed significant property owned by Lear and Lear Seating (Thailand) Corporation, Ltd. ("Lear Thailand"). The allegations against the defendants are based on negligence and failure to exercise due care in keeping the property safe.
4
Lear and Lear Thailand were insured by American Guarantee who paid Lear's claims for damages.1 Consequently, American Guarantee became Lear's subrogee regarding any claims Lear had against the defendants arising from the fire. In spite of its legal entitlement, American Guarantee was not named a party to the initial complaint filed on November 6, 1998. Instead, Zurich Switzerland brought the action as Lear's purported subrogee, notwithstanding that Zurich Switzerland never issued an insurance policy nor paid out any money to Lear. Twenty days before trial, Defendant Logitrans filed a motion in limine, in which it first asserted that Zurich Switzerland was not Lear's true subrogee, and argued that Zurich Switzerland should be barred from offering evidence at trial and barred from addressing the jury.
5
Zurich Switzerland did not dispute that it was not the proper plaintiff, and responded by filing a motion to substitute American Guarantee as the real party in interest pursuant to Fed.R.Civ.P. 17(a). Subsequently, Defendant ACI moved to dismiss the action pursuant to Fed. R.Civ.P. 12(b)(6), and Defendant Logitrans joined in that motion. The district court denied the motion to substitute on the grounds that Zurich Switzerland failed to show that the prosecution of the case in Zurich Switzerland's name as opposed to American Guarantee's name was an understandable mistake. Since Zurich Switzerland was not a proper plaintiff, the district court dismissed its claims pursuant to Rule 12(b)(6). Inasmuch as the statute of limitations had run on American Guarantee's claims, the denial of the motion to substitute prevented American Guarantee from pursuing its claims against the defendants.
6
In response, Zurich Switzerland filed an emergency motion for rehearing and reconsideration based on newly found factual information. The district court denied the motion on the grounds that the "new information" did not reveal a palpable defect in the court's ruling. Zurich Switzerland and American Guarantee ("Appellants") now appeal these decisions.
DISCUSSION
7
Appellants argue that the district court abused its discretion in denying Zurich Switzerland's motion to substitute the real party in interest under Fed.R.Civ.P. 17(a). Furthermore, they contend that the defendants waived their right to bring a real party in interest objection inasmuch as the objection was filed in the form of a motion in limine just twenty days before trial. Although this case has been litigated under Rule 17(a), it is not a "true" real party in interest question, but instead is an Article III standing issue.
8
"In order for a federal court to exercise jurisdiction over a matter, the party seeking relief must have standing to sue. Standing has both constitutional and prudential dimensions. The constitutional requirements for standing emanate from Art. III, § 2, of the U.S. Constitution, which grants federal courts jurisdiction over `cases' and `controversies.'" Kardules v. City of Columbus, 95 F.3d 1335, 1346 (6th Cir.1996). To establish Article III standing, a plaintiff must, at a minimum, establish the following elements:
9
First, the plaintiff must have suffered an "injury in fact" — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) "actual or imminent, not `conjectural' or `hypothetical.'" Second, there must be a causal connection between the injury and the conduct complained or — the injury has to be "fairly ... trace[able] to the challenged action of the defendant, and not... th[e] result [of] the independent action of some third party not before the court." Third, it must be "likely," as opposed to merely "speculative," that the injury will be redressed by a "favorable decision."
10
Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-1, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Article III standing is a jurisdictional requirement that cannot be waived, and such may be brought up at any time in the proceeding. Fed.R.Civ.P. 12(h)(3). Whereas Zurich American admittedly has not suffered injury in fact by the defendants, it had no standing to bring this action and no standing to make a motion to substitute the real party in interest. Accordingly, the district court's denial of Appellants' Rule 17(a) motion to substitute and the subsequent dismissal of the action must be affirmed.
11
The Federal Rules of Civil Procedure cannot expand the subject matter jurisdiction of federal courts beyond the limits of U.S. Constitution. 28 U.S.C. § 2072(b). Appellants rely upon the provision of Rule 17(a) which states that:
12
No action shall be dismissed on the grounds that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
13
Fed.R.Civ.P. 17(a). However, this provision must be read with the limitation that a federal district court must, at a minimum arguably have subject matter jurisdiction over the original claims. Such an interpretation is supported by the advisory committee notes to Rule 17(a):
14
The provision that no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed, after the objection has been raised, for ratification, substitution, etc., is added simply in the interests of justice. In its origin the rule concerning the real party in interest was permissive in purpose: it was designed to allow an assignee to sue in his own name. That having been accomplished, the modern function of the rule in its negative aspect is simply to protect the defendant against the a subsequent action by the party actually entitled to recover, and to insure generally that the judgment will have its proper effect as re judicata.
15
This provision keeps pace with the law as it is actually developing. Modern decisions are inclined to be lenient when an honest mistake has been made in choosing the party in whose name the action is to be filed — both in maritime and nonmaritime cases. See Levinson v. Deupree, 345 U.S. 648, 73 S.Ct. 914, 97 L.Ed.2d 1319 (1953); Link Aviation, Inc. v. Downs, 325 F.2d 613 (D.C.Cir. 1963). This provision should not be misunderstood or distorted. It is intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made. It does not mean, for example, that following an airplane crash in which all aboard were killed, an action may be filed in the name of John Doe (a fictitious person), as personal representative of Richard Roe (another fictitious person), in the hope that at a later time the attorney filing the action may substitute the real name of the real personal representative of a real victim, and have the benefit of suspension of the limitation period. It does not even mean, when an action is filed by the personal representative of John Smith, of Buffalo, in the good faith belief that he was aboard the fight, that upon discovery that Smith is alive and well, having missed the fatal flight, the representative of James Brown, of San Francisco, an actual victim, can be substituted to take advantage of the suspension of the limitations period.
16
Fed.R.Civ.P. 17 advisory committee's notes (emphasis added).
17
The facts of this case are analogous to the last example illustrated by the advisory committee. An attorney made a mistake and filed the action in the name of Zurich Switzerland, when Zurich Switzerland had no claims whatsoever against the defendants, and no Article III standing to sue. American Guarantee, a totally separate entity, which was not vigilant in protecting its claims, cannot now benefit from Zurich Switzerland's mistake so as to take advantage of the suspension of the limitations period.
18
Several other circuit courts have acknowledged that there is a distinction between questions of Article III standing and Rule 17(a) real party in interest objections. The Fifth Circuit in Ensley v. Cody Resources, Inc., 171 F.3d 315 (5th Cir. 1999), determined that a shareholder in a closely held corporation had Article III standing to sue on claims of quantum meruit. The Fifth Circuit went on to find that the defendant's objections to the plaintiff's standing were governed by Rule 17(a) real party in interest analysis and were waived because the objection was not made until the trial was underway. Id. at 319-20. Likewise, the District of Columbia Circuit acknowledged a distinction between Article III standing and Rule 17(a) in Whelan v. Abell, 953 F.2d 663 (1992), when it initially made the determination that the shareholder plaintiff did have standing under Article III, prior to addressing the Rule 17(a) issue. Id. at 672. See also Kent v. Northern California Regional Office of the American Friends Service Committee, 497 F.2d 1325, 1329 (9th Cir.1974)("There is not doubt that as to the trust fund, the trustees are the real party in interest by virtue of Fed.R.Civ.P. 17(a). But Rule 17(a) means only that the trustees have a real interest in the trust fund. Rule 17(a) does not give them standing; `real party in interest' is very different from standing.").
19
Accordingly, we AFFIRM the district court's decision.
Notes:
*
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation
1
Lear partially owned Lear Thailand, and the American Guarantee policy issued to Lear covered Lear Thailand as an additional insured party. Although distinct corporations, any reference to Lear in this opinion will refer to both corporations unless otherwise noted
20
GILMAN, Circuit Judge, concurring.
21
Because Zurich Insurance Company did not suffer an injury in fact as a result of Logitrans's alleged actions, I agree that the district court lacked jurisdiction to consider the motion of Zurich Insurance to substitute the real party in interest. The root problem is Zurich Insurance's lack of Article III standing. I write separately, however, because the lead opinion's ambiguity about the relationship between Zurich Insurance and American Guarantee might lead to confusion in future cases involving complex corporate structures.
22
The lead opinion concludes that Zurich Insurance suffered no injury in fact because it is "a totally separate entity" from American Guarantee. (Op. p. 7) Although this statement is technically correct, a reader unfamiliar with the record might easily infer this to mean that the two entities are unrelated. Such is clearly not the case. Instead, Zurich Insurance and American Guarantee are sister companies under the common ownership of a single corporate entity — Zurich American Insurance Corporation (ZAIC). ZAIC is in turn a subsidiary of Zurich American Insurance Group (ZAIG), which is itself a subsidiary of Zurich Financial Services Corporation (ZFSC) based in Switzerland. Lear's insurance policy displays some of these relationships. The policy is written on a ZAIG form, with the Zurich logo prominently displayed at the top-left of the page. Open boxes appear beside the words "Zurich Insurance Company" and "American Guarantee and Liability Insurance Company," with an "x" marked in the box for American Guarantee.
23
In my opinion, any or all of American Guarantee's direct or indirect owners — ZAIC, ZAIG, or ZFSG — would have had constitutional standing to bring suit against Logitrans, even though none of these parent entities is the real party in interest. The value of American Guarantee depends upon its financial well-being. To the extent that Lear's losses cost American Guarantee money, the parent entities suffered a financial injury in fact because those losses diminished the value of their investment in American Guarantee. Franchise Tax Bd. of Cal. v. Alcan Aluminium Ltd., 493 U.S. 331, 336, 110 S.Ct. 661, 107 L.Ed.2d 696 (1990) (holding that two foreign parent companies of U.S. subsidiaries had Article III standing to challenge U.S. tax laws affecting the subsidiaries, because "[i]f those taxes are higher than the law of the land allows, that method threatens to cause actual financial injury to [the parent companies] by illegally reducing the return on their investments in [the American subsidiaries] and by lowering the value of their stockholdings.").
24
The present case, however, was brought in the name of Zurich Insurance, which is, like American Guarantee, owned by ZAIC. American Guarantee is therefore not an asset of Zurich Insurance, but a parallel entity in the corporate hierarchy of ZFSG. As sister companies that are only connected with one another by the common owner they share, a financial injury to American Guarantee would have little to no effect on Zurich Insurance. As a result, Zurich Insurance has not been shown to have suffered any injury from American Guarantee's losses on the Lear policy. I therefore agree with the court's conclusion that Zurich Insurance lacked Article III standing to move for a substitution of the real party in interest under Rule 17(a). Without Article III standing, the district court lacked subject matter jurisdiction over the entire case. Where jurisdiction does not exist, "the only function remaining to the court is that of announcing the fact and dismissing the cause." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (internal quotation marks and citation omitted).
25
There are two further matters that I believe warrant clarification. First, I think that the lead opinion's use of the advisory committee notes to Rule 17 potentially confuses the standards for deciding the separate issues of (1) Article III standing, and (2) the availability of substitution under Rule 17(a) once Article III standing is established. (Op. p. 6-7) I agree with the lead opinion that the example of the air crash, as set forth in the advisory committee notes, permits the inference that substitution of the real party in interest under Rule 17(a) cannot be used to save a suit brought in the name of a party that has suffered no injury whatsoever. The lead opinion, however, quotes the entire advisory committee note in making this point — importing, in the process, concepts of good faith and "understandable mistake" that have no bearing on the Article III standing analysis. Given the difference between the Article III issues and the Rule 17 issues, which are properly distinguished in the latter paragraphs of the lead opinion, I would caution against the suggestion that American Guarantee's alleged lack of vigilance affected the court's Article III standing analysis. (Op. p. 7)
26
Although the question of American Guarantee's vigilance in protecting its interests is not relevant to the court's Article III analysis, this factor would have been relevant in determining whether a substitution of the real party in interest is appropriate under Rule 17(a). A plaintiff's vigilance, however, is not the only consideration under Rule 17(a). In particular, a lack of prejudice to the opposing party should also be taken into account in considering a Rule 17(a) motion, because the Rule is "intended to insure against forfeiture and injustice." Fed.R.Civ.P. 17 advisory committee's note. With respect to Rule 17(a), the Second Circuit has stated:
27
Although the district court retains some discretion to dismiss an action where there was no semblance of any reasonable basis for the naming of an incorrect party, there plainly should be no dismissal where `substitution of the real party in interest is necessary to avoid injustice'.... A Rule 17(a) substitution of plaintiffs should be liberally allowed when the change is merely formal and in no way alters the original complaint's factual allegations as to the events or the participants.
28
Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 20 (2d Cir. 1997) (quoting 6A Charles A. Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 1555, at 415 (2d Ed.1990) (citations omitted)). A substitution of the real party in interest, in my opinion, would have been "merely formal" in the present case, and would not have "alter[ed] the original complaint's factual allegations as to the events or participants." In light of the lack of prejudice to Logitrans, the inadvertence of Zurich Insurance's mistake, and the relationship between Zurich Insurance and American Guarantee as sister corporations under common ownership, I would have been inclined to conclude that substitution was appropriate under Rule 17(a) in the present case. The court's holding that Zurich Insurance lacked Article III standing, however, precludes consideration of the Rule 17(a) issue.
29
Second, I note that Zurich Insurance argues on appeal that Logitrans waived its ability to object to the failure to bring the case in the name of the real party in interest by waiting until only twenty days before trial, and after the deadline for dispositive motions had passed, before raising the issue. Although it appears to me that this argument has merit, our holding on the grounds of Article III standing means that the waiver issue, like the Rule 17(a) issue, is beyond the scope of our power to adjudicate.
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals,
Eleventh Circuit.
Nos. 95-4844, 95-5586.
Robert A. BECK, II, Plaintiff-Appellant,
v.
Ronald M. PRUPIS, Leonard Bellezza, Ernest J. Sabato, William Paulus, Jr., Harry Olstein,
Frederick C. Mezey, Byron L. Sparber, Joseph S. Littenberg, Defendants-Appellees.
Robert A. BECK, II, Plaintiff-Appellee,
v.
Ronald M. PRUPIS, Leonard Bellezza, Ernest J. Sabato, William Paulus, Jr., Harry Olstein,
Frederick C. Mezey, Byron L. Sparber, Joseph S. Littenberg, Defendants-Appellants.
Dec. 15, 1998.
Appeals from the United States District Court for the Southern District of Florida. (No. 91-8121-
CIV-NCR), Norman C. roettger, Judge.
Before TJOFLAT and BARKETT, Circuit Judges, and GODBOLD, Senior Circuit Judge.
TJOFLAT, Circuit Judge:
This case hinges on the following question: Must a plaintiff bringing a civil RICO
conspiracy claim prove that the overt act (in furtherance of the conspiracy) by which he was injured
was an "act of racketeering"? We answer this question in the affirmative, and therefore affirm the
district court's grant of summary judgment.
I.
This case arises out of the relationship between Robert A. Beck, II, the plaintiff, and
members of the board of directors of the Southeastern Insurance Group (SIG).1 SIG was a holding
1
Beck's claims were originally brought as cross-claims while he was a defendant in a
shareholder derivative suit against SIG and its directors in the United States District Court for
company founded in 1983. It owned three subsidiaries, all of which were in the business of writing
surety bonds for construction contractors. The defendants in this case were all directors of SIG at
one time.
In 1987, some of the directors of SIG (including the defendants) began engaging in improper
activity. For instance, they set up an entity called Construction Performance Corporation (CPC),
which extracted substantial "fees" from otherwise non-creditworthy contractors in order to qualify
them for SIG surety bonds, in violation of insurance regulations. The directors reneged on promises
to indemnify certain contractors, and diverted corporate funds to their personal use. Finally, these
directors knowingly classified certain SIG liabilities as assets on SIG's financial statements, causing
the statements drastically to overestimate the corporation's value. These false financial statements
were then given to regulators, shareholders, and creditors.
This misconduct eventually led to a lawsuit by the Florida Department of Insurance and a
shareholders' derivative suit against SIG's officers and directors. In January 1990, as a result of the
illegal activities of certain SIG directors and the consequent lawsuits, SIG filed for bankruptcy in
the Southern District of Florida.
Meanwhile, in August 1983, SIG had hired Beck to serve as president and as a member of
the board of directors.2 His employment contract, as revised in 1986, did not expire until 1991. The
the District of New Jersey. While that suit was pending, SIG filed for bankruptcy and the
bankruptcy trustee retained plaintiffs' counsel (in the derivative suit) to represent the estate of
SIG as a co-plaintiff in the derivative suit. Beck's cross-claims were subsequently severed and
transferred to the Southern District of Florida, from which this appeal comes. For ease of
discussion, we treat the cross-claims as an original lawsuit, and refer to the parties as plaintiff
and defendants.
2
Beck was also CEO of SIG for a portion of his presidency.
2
contract specified the grounds on which Beck's employment could justifiably be terminated,3 and
stated that termination for any other reason would result in SIG being required to repurchase Beck's
substantial stock holdings in the company. The repurchase price would be the fair market value of
the stock as determined by an investment bank.
For most of his tenure, Beck was unaware of the illegal activities of the other SIG officers
and directors. When he became aware of this misconduct in early 1988, he attempted to correct
them internally and informed insurance regulators about improprieties in SIG's financial statements.
The other directors, afraid that Beck might expose their misdeeds, arranged for a consulting firm to
write a report criticizing Beck's performance, thus providing the directors an excuse to terminate
Beck's employment without having to repurchase Beck's stock. In May 1988, Beck was fired.
While president, Beck made a number of unwise (in retrospect) personal financial decisions
in relation to SIG. He purchased, as part of a 1986 private placement, a $150,000 debenture and
$75,000 worth of stock, and (together with other directors), in December 1987, personally
guaranteed a $7.5 million bank loan to SIG. When SIG filed for bankruptcy, Beck's SIG investments
became practically worthless, and he became potentially liable for the bank loan.4
Beck claims that SIG's other directors fraudulently induced him to make these financial
decisions.5 Specifically, Beck claims that the defendants' failure to tell him about his impending
3
One such ground was "[Beck's] inability or substantial failure to perform [his] material
duties."
4
Beck never actually had to pay any of the guaranteed amount, but is suing for the attorney's
fees he incurred in the subsequent lawsuit brought by the bank.
5
All of the other SIG directors were originally named as defendants in Beck's cross-claim.
Some of these directors have since been dismissed from the case pursuant to settlement
agreements.
3
termination6 or about the illegal activities at SIG induced him to purchased the debenture and the
stock. For these same reasons, along with the defendants' issuance of erroneous financial statements,
Beck claims that he was fraudulently induced to guarantee the bank loan and to retain his stock
longer than he would have otherwise.
Beck claims that these inducements, as well as the creation of fictitious reasons for his firing,
constitute mail fraud, see 18 U.S.C. § 1341 (1994), and wire fraud, see 18 U.S.C. § 1343 (1994), on
the part of the defendants. Furthermore, Beck claims that the combination of these offenses
constitutes a "pattern of racketeering activity"7 under the federal Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. §§ 1961-1968 (1994), and that the defendants' participation
in that pattern of racketeering activity injured him, giving him a private right of action based on
RICO's substantive provisions. See 18 U.S.C. §§ 1962(c), 1964(c) (1994).8 Beck also alleges that
6
Beck alleges that the SIG directors had been planning to terminate his employment as
president and director as early as 1987 (even before he discovered their wrongdoing), but
concealed these plans from him. In addition, Beck was removed from his position as CEO in
1986; Beck alleges that SIG's directors had been planning to remove him much earlier but
waited until after he had invested in SIG's private placement.
7
Section 1961(1) of RICO defines the activities that constitute "racketeering activity"; these
include mail and wire fraud. Section 1961(5) defines a "pattern of racketeering activity" as at
least two acts of racketeering activity within ten years of one another.
8
Section 1964(c) of RICO creates a private right of action for anyone injured "by reason of" a
violation of section 1962(a)-(d). Section 1962 consists of three substantive provisions, 18 U.S.C.
§ 1962(a)-(c), and one conspiracy provision, 18 U.S.C. § 1962(d). The three substantive
provisions are structured as follows: Section 1962(a) prohibits the investment of proceeds
derived from a pattern of racketeering activity in any enterprise involving interstate commerce.
Section 1962(b) prohibits acquisition through a pattern of racketeering activity of any interest in
an enterprise involving interstate commerce. Section 1962(c) prohibits participation in the
conduct of an enterprise involving interstate commerce through a pattern of racketeering activity.
Although Beck's cross-claim alleges violations of all three substantive provisions, he has not
presented evidence to demonstrate that the defendants invested proceeds from the relevant
racketeering activities in an enterprise involving interstate commerce, or that the defendants'
racketeering activity led to acquisition of an interest in an enterprise involving interstate
4
the defendants conspired to commit racketeering acts against third parties (through the phony
financial statements, extortion of illegal fees, etc.); according to Beck, because his refusal to
participate in and partial disclosure of that conspiracy resulted in his termination, he was injured "by
reason of" the conspiracy and therefore has a claim under RICO's conspiracy provision, 18 U.S.C.
§ 1962(d).
Beck sued the defendants for these alleged RICO violations, as well as numerous alleged
violations of state law. The defendants moved for summary judgment and for sanctions pursuant
to 28 U.S.C. § 1927 and Rule 11 of the Federal Rules of Civil Procedure. The district court granted
the motion for summary judgment on Beck's RICO claims, and then declined to exercise
supplemental jurisdiction over Beck's state law claims. The court denied the motion for sanctions.
Beck appeals the summary judgment ruling, and the defendants appeal the denial of sanctions.
II.
Most of Beck's RICO claims allege substantive violations premised on 18 U.S.C. § 1962(c).
We find these claims to be without merit, for the reasons discussed below.
A.
To prove any RICO violation, a plaintiff must prove the existence of a "pattern of
racketeering activity." 18 U.S.C. § 1962. A variety of acts can constitute "racketeering activity,"
see 18 U.S.C. § 1961(1); the acts alleged in this case are mail and wire fraud, the substantive
commerce. Beck therefore has no claim under section 1962(a) and (b). Beck has, however,
presented evidence for a claim under section 1962(c); the alleged "enterprise" is SIG. We
therefore treat all of his substantive claims as 1962(c) claims.
5
elements of which are identical.9 See Pelletier v. Zweifel, 921 F.2d 1465, 1498 (11th Cir.1991).
Both offenses consist of intentional participation in a scheme to defraud another of money or
property. See id. A "scheme to defraud" involves the making of misrepresentations intended and
reasonably calculated to deceive persons of ordinary prudence and comprehension. See id. at 1498-
99. This means, inter alia, that the plaintiff must prove that a reasonable person would have relied
on the misrepresentations. See United States v. Brown, 79 F.3d 1550, 1557 (11th Cir.1996).
In addition to proving racketeering activity, a civil RICO plaintiff must show that the
racketeering activity caused him to suffer an injury. See 18 U.S.C. § 1964(c). This is true even
when a criminal conviction for the underlying racketeering activity would not require a showing of
actual injury, as is the case with mail and wire fraud. See Pelletier, 921 F.2d at 1499. Furthermore,
the racketeering activity must be more than simply the "but for" cause of the injury; it must also be
the proximate cause. See Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 268, 112
S.Ct. 1311, 1317-18, 117 L.Ed.2d 532 (1992). "[A] factor is a proximate cause if it is a substantial
factor in the sequence of responsible causation." Cox v. Administrator United States Steel &
Carnegie, 17 F.3d 1386, 1399 (11th Cir.1994) (internal quotation omitted).
Because this case comes to us on a granted motion for summary judgment, we have viewed
all evidence in favor of the non-moving party (i.e., Beck). See Rayle Tech, Inc. v. DEKALB Swine
Breeders, Inc., 133 F.3d 1405, 1409 (11th Cir.1998). Summary judgment is to be granted when the
evidence shows "that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is appropriate
9
The only difference between the two offenses is their jurisdictional basis—mail fraud
requires proof of the use of the mails, while wire fraud requires proof of the use of the wires.
6
where the moving party shows an absence of evidence to support an essential element of the
nonmoving party's case. See Weiss v. School Bd. of Hillsborough County, 141 F.3d 990, 994 (11th
Cir.1998). For each alleged RICO violation in this case, Beck has failed to produce evidence to
support at least one of the essential elements of a RICO claim based on mail and wire fraud. For this
reason, we affirm the district court's grant of summary judgment.10
B.
Beck claims that he was fraudulently induced to make certain unwise financial decisions in
three ways: (1) the defendants' failure to tell him about his impending termination, (2) the
defendants' failure to inform him of their illegal activities, and (3) the defendants' creation of false
financial statements. Although two of these inducements are omissions rather than direct
misrepresentations, material omissions can be the basis for a claim of fraud if they are intended to
create a fraudulent representation. See United States v. O'Malley, 707 F.2d 1240, 1247 (11th
Cir.1983).
10
The district court held that Beck's injuries are based on his status as a creditor and
stockholder, and that his injuries are therefore too indirect to give him standing under RICO. The
district court is correct that a creditor or stockholder lacks standing when his claim is based
solely on acts of racketeering that target the corporation. See Bivens Gardens Office Bldg., Inc.
v. Barnett Banks of Fla., Inc., 140 F.3d 898, 906 (11th Cir.1998); Warner v. Alexander Grant &
Co., 828 F.2d 1528, 1530 (11th Cir.1987). A plaintiff's status as a creditor or stockholder,
however, does not preclude standing for RICO violations if the plaintiff has alleged an injury
proximately caused by the defendants' acts of racketeering that target the plaintiff. See id. at
1530-31. In this case, Beck has properly set forth claims of injury proximately caused by
racketeering activity that targeted him. We therefore hold that he has standing under RICO.
However, after numerous pleadings, depositions, and affidavits, Beck has not brought forward
evidence that would create a genuine issue of material fact on certain key elements of his claims.
Thus, we affirm the decision of the district court, but on different grounds. See Turner v.
American Fed. of Teachers Local 1565, 138 F.3d 878, 880 n. 1 (11th Cir.1998) ("We must
affirm the judgment of the district court if the result is correct even if the district court relied
upon a wrong ground or gave a wrong reason.").
7
The defendants' failure to tell Beck of his impending termination cannot serve as the basis
for a claim of fraud, because a reasonable person making financial decisions would not have relied
on such an omission. Beck's employment contract makes no guarantee of employment throughout
the term of the contract. On the contrary, the contract has an explicit termination provision that
prescribes, in substantial detail, what is to happen if SIG terminates Beck's employment for any
reason. Thus, the employment contract itself explicitly contemplates the possibility of termination
(both "for cause" and "without cause"), and Beck therefore could not have reasonably relied on
continuing employment.11 Furthermore, Beck has presented no evidence that the defendants
refrained from telling him of his impending termination in an attempt to induce him to make
financial commitments to SIG. He therefore has not proven the essential element of intent.
The defendants' failure to tell Beck about their illegal activities also cannot serve as the basis
for a claim of fraud, because, here again, Beck has presented no evidence of the defendants'
fraudulent intent to induce Beck to make these investment decisions. The usual reason why people
do not disclose that they are engaging in illegal activity is that they do not want to get caught, not
because they want to induce others to invest. Beck has produced no evidence suggesting that, in this
case, the omission was intended to induce Beck to make financial commitments to the company.
Also, Beck has presented no evidence that this omission proximately caused his losses. He has
repeatedly stated that had he known about the illegal activities, he would not have made the same
financial decisions. As noted above, however, this type of "but for" causation is insufficient to
11
Beck also claims that the private placement memorandum issued in conjunction with the
stock/debenture offering in which he invested contained an affirmative misrepresentation that he
would continue as president and CEO of SIG. This alleged "misrepresentation," however, is
merely a list of the current officers and directors of SIG; it cannot reasonably be read as a
promise of continuing employment.
8
sustain a claim of fraud. Instead, proximate cause is required, meaning that this omission must have
been a "substantial factor" in his decisionmaking. See Cox v. Administrator United States Steel &
Carnegie, 17 F.3d 1386, 1399 (11th Cir.1994); see also Brandenburg v. Seidel, 859 F.2d 1179,
1189 (4th Cir.1988) (stating that the inquiry in determining the existence of proximate cause is
"whether the conduct has been so significant and important a cause that the defendant should be held
responsible" (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 42 (5th
ed.1984))). Beck has presented no evidence (other than the "but for" testimony) that one of the
substantial factors in his decision to make certain financial commitments to SIG was his belief that
the company was run legally.12
Finally, the defendants' creation of false financial statements cannot serve as the basis for
Beck's allegations of fraud, again because of a lack of evidence of fraudulent intent toward Beck.13
It is surely true that, if the defendants misrepresented certain transactions and intentionally
overstated the value of SIG, they intended to deceive someone. There is no evidence, however, that
the someone to be deceived was Beck. The more likely target of deception, based on the evidence,
was First Fidelity Bank, from whom SIG was seeking a loan. Beck has also failed to demonstrate
12
Beck has also suggested that the defendants' illegal activities led to SIG's demise, which in
turn caused Beck's losses (the reduction in value of his investments and the accountability for the
loan he guaranteed). This claim is clearly barred by the proximate cause requirement—the
detrimental effects of racketeering activity directed toward a third party (in this case, SIG) are
not actionable under RICO. See Bivens Gardens Office Bldg., Inc. v. Barnett Banks of Fla., Inc.,
140 F.3d 898, 906 (11th Cir.1998). This is the type of derivative claim that the district court
correctly held does not confer standing under RICO. See supra note 10.
13
The same is true of the erroneous "Claims Summaries" on which Beck claims to have relied.
9
proximate cause—he has presented no evidence that he actually saw, let alone relied upon, any false
financial statements prior to making his financial decisions.14
C.
Beck also alleges that the defendants violated RICO by creating fraudulent reasons for
terminating his employment. The purported fraud consists of arranging for a consulting group to
issue a report containing false allegations regarding Beck's job performance, and then using this
report as a basis for firing him. It does not appear, however, that Beck was injured through reliance
on the fraudulent report. The only persons who might have relied on the report are the directors of
SIG, when making their decision to terminate Beck. Because Beck did not rely to his detriment on
the alleged misrepresentations, these misrepresentations are not the proximate cause of Beck's
injury. See Pelletier, 921 F.2d at 1499-1500.
Furthermore, as with Beck's other claims, there is no evidence of the defendants' intent to
defraud Beck. Indeed, Beck claims not to have been deceived at all—he has long been aware that
the allegations in the consulting report were false, and that the true reason he was fired was that he
posed a threat to the defendants' illegal activities. The apparent object of the defendants' fraud was
a prospective court, one that might someday hear a claim by Beck of breach of contract. In essence,
Beck's claim in regard to his firing is that SIG ought to have been required to repurchase his stock
and breached its contract by not doing so. Whatever the merits of this claim at common law, it is
14
Beck also suggests that the defendants' failure to inform him of the illegal transaction that
led to the creation of the inaccurate financial statements constitutes a fraudulent
misrepresentation by omission. This claim—that the concealment of SIG's illegal activities
constitutes a fraudulent inducement—has already been addressed.
10
different from a federal statutory claim that the defendants committed mail and wire fraud in firing
Beck. Consequently, Beck's firing is not an act of racketeering under RICO.
III.
Beck's allegation that he was fired for pretextual reasons is also the basis for his claim under
RICO's conspiracy provision, 18 U.S.C. § 1962(d). A civil RICO conspiracy claim requires a
showing of the existence of a conspiracy, and the commission of an overt act in furtherance of the
conspiracy that causes injury to the plaintiff. See Bivens Gardens Office Bldg., Inc. v. Barnett Bank
of Fla., Inc., 906 F.2d 1546, 1550 n. 7 (11th Cir.1990). Beck argues that the defendants' conspiracy
to commit various racketeering activities led to his firing (because Beck refused to participate in
such activities and because Beck "blew the whistle" on certain SIG misconduct); he therefore
suffered injury resulting from an overt act (the wrongful termination) done in furtherance of the
conspiracy. To support this argument, Beck relies on cases from other circuits holding that a
terminated "whistle blower" has standing to bring a claim under RICO's conspiracy provision, even
if no such claim is available under RICO's substantive provisions.15
The Eleventh Circuit, however, has apparently rejected this reasoning, and rightly so—a
terminated whistle blower, although he may have a wrongful termination claim, has not suffered an
injury that was proximately caused by the defendants' racketeering activities. See Morast v. Lance,
807 F.2d 926, 933 (11th Cir.1987) (holding that retaliatory discharge for blowing the whistle,
standing alone, is not grounds for a RICO conspiracy claim); O'Malley v. O'Neill, 887 F.2d 1557,
15
See Schiffels v. Kemper Fin. Servs., Inc., 978 F.2d 344 (7th Cir.1992); Shearin v. E.F.
Hutton Group, Inc., 885 F.2d 1162 (3d Cir.1989). Khurana v. Innovative Health Care Systems,
Inc., 130 F.3d 143, 153-54 (5th Cir.1997), decided subsequent to argument in this case, also
supports Beck's claim.
11
1561-62 (11th Cir.1989) (broadening Morast 's holding regarding whistle blower claims to include
refusal to participate in illegal activity).16 There is a substantial debate in the federal courts of
appeals regarding whether the overt act necessary for a RICO conspiracy must be an act of
racketeering as defined in section 1961(1).17 In the context of RICO's substantive provisions, the
Supreme Court has held that a plaintiff's injuries must have been proximately caused by acts of
racketeering. See Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 265-69, 112 S.Ct.
1311, 1316-18, 117 L.Ed.2d 532 (1992). We believe that this reasoning applies equally well to
RICO's conspiracy provisions. Furthermore, RICO was enacted with an express
target—racketeering activity—and only those injuries that are proximately caused by racketeering
activity should be actionable under the statute. See Hecht v. Commerce Clearing House, Inc., 897
F.2d 21, 25 (2d Cir.1990) ("Congress did not deploy RICO as an instrument against all unlawful
acts. It targeted only predicate acts catalogued under section 1961(1)."); cf. H.R.Rep. No. 91-1549
(1970), reprinted in 1970 U.S.C.C.A.N. 4007, 4032 ("If there is no racketeering activity ... there can
be no violation of the provisions of this title."). Although a "whistle blower" claim such as Beck's
could perhaps have a deterrent effect on racketeering, we believe that such a claim goes further than
what Congress has authorized under RICO. As the Supreme Court noted in Holmes, the need to
16
The majority of other circuits considering this issue have also concluded that allegations of
retaliatory discharge for interference with racketeering activity ("whistle blower" claims) do not
satisfy RICO's proximate cause requirement. See Bowman v. Western Auto Supply Co., 985 F.2d
383, 388 (8th Cir.1993); Miranda v. Ponce Fed. Bank, 948 F.2d 41, 48 (1st Cir.1991); Reddy v.
Litton Indus., Inc. 912 F.2d 291, 294-95 (9th Cir.1990); Hecht v. Commerce Clearing House,
Inc., 897 F.2d 21, 25 (2d Cir.1990).
17
See cases cited in notes 15 and 16, supra; see also Rehkop v. Berwick Healthcare Corp., 95
F.3d 285, 290 (3d Cir.1996); Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1344-46 (2d
Cir.1994).
12
deter injurious conduct can be amply met through suits by those persons directly injured. See
Holmes, 503 U.S. at 269-70, 112 S.Ct. at 1318-19.
The requirement that a civil RICO plaintiff prove injury resulting from a racketeering act
does not, as Beck and some courts have suggested, render the RICO conspiracy provision
superfluous. See Khurana v. Innovative Health Care Sys., Inc., 130 F.3d 143, 153 (5th Cir.1997);
Bowman v. Western Auto Supply, 985 F.2d 383, 388 (8th Cir.1993). Rather, the conspiracy
provision allows persons who are responsible for an injury, but did not actually participate in the
injury-causing activity, to be held liable.18 Furthermore, requiring proof of direct injury by
18
The function of a conspiracy claim differs in criminal and civil cases. In a criminal context,
the purpose of conspiracy charges is to punish the act of agreement itself. See Wayne R. LaFave
& Austin W. Scott, Jr., Criminal Law § 6.4(d) (2d ed.1986). Agreements to engage in criminal
activity are considered dangerous to society in and of themselves, because of "the special danger
incident to group activity." Id. at § 6.4(c). Thus, for a criminal conspiracy charge, there is no
need to prove that the conspiracy led to an injury-causing criminal activity. In a civil context,
however, the purpose of a conspiracy claim is to impute liability—to make X jointly liable with
D for what D did to P. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 46
(5th ed.1984). Thus, a civil conspiracy plaintiff must prove that someone in the conspiracy
committed a tortious act that proximately caused his injury; the plaintiff can then hold other
members of the conspiracy liable for that injury. Those courts that have recognized a claim such
as Beck's usually rely on criminal RICO cases, thus demonstrating a possible confusion about
the separate functions of civil and criminal conspiracy claims. See Schiffels, 978 F.2d at 348
(relying on numerous criminal cases); Shearin, 885 F.2d at 1169 (relying on criminal case of
United States v. Brooklier, 685 F.2d 1208 (9th Cir.1982)).
This distinction also explains why Salinas v. United States, 522 U.S. 52, 118 S.Ct.
469, 139 L.Ed.2d 352 (1997), relied upon by Beck, is not relevant here. Salinas states
that criminal RICO conspiracy has no overt act requirement—the agreement itself is
sufficient to establish culpability. This is a very different matter from the requirements
for civil RICO conspiracy:
[A]lthough an overt act by itself ... is not a requisite element of a section 1962(d)
criminal conspiracy violation, we hold that injury from an overt act is necessary
and sufficient to establish civil standing for a RICO conspiracy violation. We
cannot agree, however, with cases ... that find standing on the basis of any overt
act in furtherance of the conspiracy, even if it is not a predicate racketeering act.
13
racketeering activity for section 1962(a)-(c), but not for section 1962(d), would (in addition to being
logically inconsistent) allow plaintiffs to circumvent the requirements of the first three subsections
simply by alleging a conspiracy. See id.
As discussed in part II.C, supra, Beck has presented no evidence that his termination was
the result of racketeering activity directed toward him. Thus, we affirm the district court's grant of
summary judgment on Beck's RICO conspiracy claim.
IV.
The district court, upon granting summary judgment on Beck's only federal claim (the RICO
claim), declined to exercise supplemental jurisdiction over Beck's remaining state law claims. The
exercise of supplemental jurisdiction is left to the discretion of the district court; we review for an
abuse of discretion. See Edwards v. Okaloosa County, 5 F.3d 1431, 1433 (11th Cir.1993). We find
such an abuse here, and therefore reverse the district court's ruling.
The district court's ruling improperly relied on 28 U.S.C. § 1367(c)(3). Section 1367 applies
only to civil actions commenced after December 1, 1990. See Judicial Improvements Act of 1990,
Pub.L. No. 101-650, § 310(c), 104 Stat. 5089, 5114 (1990). Beck's cross-claim was filed on May
28, 1990. Thus, the common law of pendent jurisdiction, rather than section 1367, applies to this
case.
Ordinarily, this distinction would be of little importance. See Kaufman v. Checkers Drive-In
Restaurants, Inc., 122 F.3d 892, 893 n. 2 (11th Cir.1997) (noting that section 1367 codifies
pre-existing criteria for exercising pendent jurisdiction). However, a dismissal under section 1367
automatically tolls the statute of limitations on the dismissed claims for 30 days, see 28 U.S.C. §
Hecht, 897 F.2d at 25 (citation omitted).
14
1367(d) (1994), while a dismissal under the doctrine of pendent jurisdiction does not have this
effect. Beck claims that the applicable statute of limitations would bar his state law claims if they
were dismissed at this stage. The possibility of a claim being time-barred is an important factor in
deciding whether to maintain jurisdiction over pendent claims once the federal claims have been
resolved; dismissing state law claims for which the statute of limitations has run will often
constitute an abuse of discretion. See Edwards, 5 F.3d at 1435; L.A. Draper & Son v.
Wheelabrator-Frye, Inc., 735 F.2d 414, 430 (11th Cir.1984); Pharo v. Smith, 625 F.2d 1226, 1227
(5th Cir.1980).19
The district court presumably did not address the statute of limitations issue because it
assumed that Beck's state law claims would be protected under 28 U.S.C. § 1367(d). Because
section 1367 is not the applicable law, the district court's decision leaves the status of Beck's state
law claims unclear.20 We therefore reverse the district court's ruling on this issue and remand for
further consideration of Beck's pendent state law claims.
V.
The defendants moved for sanctions against Beck under Federal Rule of Civil Procedure 11
and 28 U.S.C. § 1927. The district court denied both motions; we review for an abuse of discretion.
See Glatter v. Mroz (In re Mroz ), 65 F.3d 1567, 1571-72 (11th Cir.1995). We do not find Beck's
19
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
20
If the district court intended to refuse to exercise pendent jurisdiction while still preserving
Beck's state law claims for review in state court, it could accomplish this on remand by requiring
the defendants to file a waiver of any statute of limitations defense as a condition of dismissal.
See Edwards, 5 F.3d at 1435 n. 3.
15
claims to be so meritless that the district court's denial of sanctions constitutes an abuse of
discretion.21
The defendants also challenge the district court's ruling on their motion to tax costs to the
plaintiff. The defendants moved to tax the costs of all depositions taken, of photocopying necessary
in conjunction with document production, of serving various subpoenas and summonses, and of the
court costs affiliated with appearing pro hac vice. The district court taxed to Beck only those costs
incurred in deposing him and in photocopying the motion for summary judgment. This ruling is
reviewed for an abuse of discretion, see Tanker Management, Inc. v. Brunson, 918 F.2d 1524, 1527
(11th Cir.1990); we find no such abuse here.
VI.
Defendant Byron L. Sparber was dismissed from this action on the ground of inadequate
service of process. Beck concedes that service was improper, but argues that Sparber should be
barred from claiming inadequate service of process under the doctrine of laches. Specifically, Beck
argues that Sparber's delay in raising this issue has created the possibility that Beck's claims against
Sparber will be time-barred. Furthermore, Beck argues that Sparber has waived any defense of
inadequate service of process through a notice of appearance filed by his attorney (which Sparber
and his attorney claim was filed inadvertently) and by the involvement of Sparber's attorney in the
case (which Sparber's attorney claims was solely on behalf of another client, defendant Joseph S.
Littenberg).
21
The parties dispute which version of Rule 11 (the pre-1993 or post-1993 version) applies,
because the defendants concede that they did not comply with the 21-day safe harbor provision
found in the post-1993 version. See Fed.R.Civ.P. 11(c)(1)(A). We do not reach this issue,
because we conclude that, even if the pre-1993 version applies, there was no abuse of discretion.
16
Although we review the district court's interpretation of the Federal Rules of Civil Procedure
de novo, see Silvious v. Pharaon, 54 F.3d 697, 700 (11th Cir.1995), we review the district court's
factual findings only for clear error, see American Red Cross v. Palm Beach Blood Bank, Inc., 143
F.3d 1407, 1410 (11th Cir.1998). The district court's decision in this matter was based primarily on
a series of factual determinations—whether Sparber or Beck is to blame for the delay, whether
Sparber's notice of appearance was inadvertent, whether Sparber's attorney was solely representing
Littenberg during the proceedings, and so forth. We cannot say that the district court's factual
findings in this regard were clearly erroneous, and we therefore affirm the district court's dismissal
of Sparber from this action.
VII.
For the foregoing reasons, we AFFIRM the district court's grant of the defendants' motions
for summary judgment; we VACATE the district court's dismissal of Beck's state law claims and
REMAND the case with the instruction that the district court reconsider its order dismissing Beck's
pendent state law claims; we AFFIRM the district court's denial of sanctions; we AFFIRM the
district court's ruling on the defendants' motion to tax costs; and we AFFIRM the district court's
dismissal of defendant Sparber from this action.
SO ORDERED.
17
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} |
770 F.2d 176
Dormineyv.Department of Army
85-667
United States Court of Appeals,Federal Circuit.
4/8/85
MSPB, 22 M.S.P.R. 651
Affirmed
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} |
526 F.Supp.2d 135 (2007)
Drew WEBER, Plaintiff
v.
Kurt SANBORN, Play Ball Manchester, LLC, Sanborn Associates, The Sanborn Group, Inc., Gerald R. Prunier, Andrew A. Prolman, Thomas J. Leonard III, and Prunier, Leonard & Prolman, P.A., Defendants.
Civil Action No. 06-10125-JLA.
United States District Court, D. Massachusetts.
November 6, 2007.
*136 *137 *138 Joseph H. Reinhardt, Boston, MA, for Plaintiff.
Phillip Rakhunov, Sullivan & Worcester LLP, Boston, MA, Emily G. Rice, Martha Van Oot, Orr & Reno, P.A., Concord, NH, for Defendants.
CONSOLIDATED ORDER ON
PLAINTIFF'S MOTIONS: (1) FOR LEAVE TO AMEND COMPLAINT and (2) FOR PARTIAL SUMMARY JUDGMENT STRIKING AFFIRMATIVE DEFENSES H, I, J, AND N, AND DEFENDANTS' REQUEST FOR ATTORNEY'S FEES (Docket # 69, 70)
and
DEFENDANTS' MOTIONS: (1) TO STRIKE, EXPERT OPINION OF ANDREW PERLMAN and (2) FOR SUMMARY JUDGMENT ON COUNTS II AND VIII (Docket # 72, 73)
ALEXANDER, United States Magistrate Judge.
Before this Court are four motions, each of which received significant attention during a hearing held October 16, 2007. For the reasons set forth more fully below, this Court holds that: (1) Plaintiffs Motion for Leave to Amend Complaint is DENIED; (2) Plaintiffs Motion for Partial Summary Judgment Striking Affirmative Defenses H, I, J, and N, and Defendant's Request *139 for Attorney's Fees is DENIED; (3) Defendant's Motion to Strike the Expert Opinion of Andrew Perlman is DENIED; and (4) Defendant's Motion for Summary Judgment on Count II is GRANTED and on Count VIII is DENIED.
PROCEDURAL HISTORY
On January 20, 2006, Plaintiff, Drew Weber ("Weber"), filed the initial lawsuit against defendants Kurt Sanborn, Play Ball Manchester, LLC, Sanborn Associates, The Sanborn Group, Inc. (collectively the "Sanborn Defendants"), Gerald R. Prunier, Andrew A. Prolman, Thomas J. Leonard III, and Prunier, Leonard & Prolman, P.A., (collectively "PL & P"). Weber brought claims of Conversion and Breaches of Fiduciary Duty against the Sanborn Defendants and PL & P; claims of Negligent Misrepresentation, Fraud, Participation in a Breach of Trust, Breaches of Express and Implied Contracts, and Violation of Chapter 93A against all defendants; and a claim of professional malpractice against PL & P.
The Sanborn Defendants failed to appear in this matter. Consequently, on June 28, 2006, this Court granted a default judgment in Weber's favor in the amount of $7,749,000 plus costs and interest from the date of filing the Complaint. At that time, Weber also stipulated to dismiss Count III (Fraud) as to PL & P.
Further, because Weber also subsequently stipulated, with prejudice, to the dismissal of Counts I, III, IV, V, and VII, and this Court has dismissed, with prejudice, Count IX of Weber's Complaint, the only remaining claims against PL & P (both the individual lawyers and the firm as an entity) are set forth in Count II (Negligent Misrepresentation) and Count VIII (Legal Malpractice).
FACTUAL BACKGROUND
In the spring of 2002, Weber became involved in the Riverfront Development Project, a $150 million development project in the city of Manchester, New Hampshire ("City") along the banks of the Merrimack River. It was intended to consist of a Minor League Baseball stadium, retail stores, a hotel, residential condominium properties, a power plant, and attendant parking. Weber's main roles in the project were to: (1) acquire a Minor League Baseball team and relocate it to the City for the 2004 season; (2) work with the City in renovating an existing stadium (Gill Stadium) for temporary use during the first season of play; and (3) oversee construction of a new stadium which the team would begin using in 2005. To further that end, Weber formed the corporation 6 to 4 to 3, LLC ("6-4-3").
The City, which would continue to own the developed property, was to provide primary funding for the renovation of Gill Stadium and construction of the new stadium. The City was to lease the property to Manchester Downtown Visions, LLC ("MDV"), the primary development company for the project. Sanborn was an active member of MDV.
Sanborn is also the sole owner of Sanborn Associates, The Sanborn Group, Play Ball Manchester, LLC, and a member of 6-4-3 (although he never fulfilled the terms that conditioned his financial interest in 6-4-3). Sanborn's financial interest in MDV and his affiliation with both Weber and 6-4-3 created an alleged conflict of interest as Weber contends that Sanborn often advanced the interests of MDV, to the detriment of Weber, in connection with the development project.
On December 11, 2002, PL & P, as Sanborn's attorneys, filed a certificate of formation for 6-4-3 in New Hampshire based on the agreement that Sanborn *140 would hold a 30% membership interest in the company, in consideration of a capital contribution of $3,000,000. Although PL & P was aware that no capital contribution had been made, it nonetheless caused the issue of the 30% interest and conducted business as though Sanborn had authority to act on behalf of 6-4-3. On December 13, 2002, PL & P agreed to represent Weber, acting through 6-4-3, on all zoning and development issues. Weber alleges that PL & P then represented him personally in a number of transactions. For example, under PL & P's representation, Weber acquired a substantial line of credit in order to front the costs of certain land acquisitions and other soft costs for the entire development project; he claims he did so based only on Sanborn's promises that Weber would be reimbursed for said costs. On July 31, 2003, PL & P executed a written agreement between 6-4-3 (represented by Weber). and MDV (represented by Sanborn as its "manager") to appoint MDV as the construction manager of the Gill Stadium renovations and the construction of the new stadium, at a cost to Weber of $200,000 annually. PL & P, thus, represented both parties to the transaction. Weber alleges that at no time did PL & P discuss any conflicts of interest with him or seek any type of conflict waiver.
Although not part of the original Memorandum of Understanding, the City's legal counsel presented to PL & P drafts of agreements that would impose upon Weber a personal guarantee and a $2.7 million letter of credit as security for the lease of the stadium land, as well as a proposal that Weber be personally responsible for the relocation of Singer Park. Instead of suggesting changes to the documents, PL & P recommended that they be signed as drafted. Additionally, PL & P did not alert Weber that Sanborn had grossly misrepresented the cost of the park's relocation (originally intended to be split between MDV and 6-4-3).
Weber also alleges that Sanborn embezzled substantial sums of money with the aid of PL & P, who issued checks drawn on the firm's client trust account to nonexistent contractors based on falsified invoices created by Sanborn. Weber claims that PL & P did not alert him that the checks it issued were deposited in Sanborn's accounts, and were either not endorsed or falsely endorsed.
THE MOTIONS
(1) Plaintiff's Motion For Leave to Amend Complaint
(Docket # 69)
Immediately following this Court's dismissal of Count IX of Weber's Complaint (Violation of 93A: Massachusetts Unfair and Deceptive Trade Practices Statute), Weber filed the instant Motion for Leave to Amend his Complaint, seeking to add Count X (Violation of NH RSA 358-A: New Hampshire's Unfair and Deceptive Trade Practices Statute).
The command of Fed.R.Civ.P. 15(a) that leave to amend "shall be freely given when, justice so requires ..." is consistent with a broad policy underlying the Federal Rules of Civil Procedure that in most instances disputes should be decided on their merits. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); United States v. Hougham, 364 U.S. 310, 317, 81 S.Ct. 13, 5 L.Ed.2d 8 (1960). Nevertheless, a court considering a motion to amend should consider the totality of the circumstances and balance the equitable considerations which bear on the motion. Whether the proposed amendment would unfairly prejudice the opposing party, whether the party seeking the amendment has exercised due diligence, and whether the proposed amendment *141 involves futility, unseemly delay, bad faith, or waste of the court's or the parties' resources are all factors which may be considered. Quaker State Oil Refining Corp. v. Garrity Oil Co., 884 F.2d 1510, 1517 (1st Cir.1989); Carter v. Supermarkets Gen. Corp., 684 F.2d 187, 192 (1st Cir.1982).
Where a considerable period of time has passed between the filing of a complaint and the motion to amend, courts have placed the burden of proof on the movant to show some "valid reason for his neglect and delay." Carter, 684 F.2d at 187 (citation omitted). In Quaker, the First Circuit identified "relevant indicators [that] point uniformly toward disallowance," such as whether the facts upon which the motion to amend is based were known to the party throughout, whether a great deal of discovery had already taken place before the motion was filed, and whether the moving party proffered a satisfactory explanation for its delay. Quaker, 884 F.2d at 1518 (denying defendant's motion to amend where he was unable to offer a reason for his delay, virtually all discovery was complete, and facts upon which the motion rested were known to the defendant throughout).
As to a futility argument, both parties debate whether Weber's amendment properly relates back, and whether it would, nonetheless, be barred by NH RSA 358-A's statute of limitations. This Court finds, however, that regardless of whether Weber's claim relates back to the original transaction or occurrence, or is subject to a statute of limitations preclusion, his argument fails. In Zee-Bar, Inc. v. Kaplan, 162 F.R.D. 422, 427 (D.N.H.1993), the court held that although plaintiff's motion for leave to amend a negligence complaint under a New Hampshire statute was based on application of a different legal theory to the original set of facts, it nevertheless satisfied the relation back provision of Rule 15(c)(2). However, upon balancing the equities, the court denied the motion in light of plaintiff's failure to offer a valid reason for his excessive delay and prejudice to defendant, where discovery was already closed. Id.
Similarly, in Quaker, the Magistrate Judge's allowance of a late motion for leave to amend was vacated upon review by a District Judge, when the moving party failed to proffer a satisfactory explanation for its delay, and only two months remained in an already extended discovery period. The First Circuit affirmed this decision, noting that the relevant factors tipped the scales so heavily that the District Court was within its proper domain in deciding that the Magistrate Judge should not have allowed the amendment. Quaker, 884 F.2d at 1518. See also Hayes v. New England Millwork Distributors, Inc., 602 F.2d 15, 19-20 (1st Cir.1979) (two-year delay sufficient to support denial of amendment where movant has not carried the burden of explaining delay).
In the instant case, Weber attempts to attribute his delay in filing the motion for leave to amend to PL & P's belated motion for judgment on the pleadings as to Count IX. While it is true that PL & P did not move for judgment on the pleadings until well after the September 1, 2006 deadline imposed by this Court, PL & P previously prevailed with its contention that it did file the motion for judgment on the pleadings promptly, upon conclusion of factual discovery, when it became evident that none of the challenged actions took place in Massachusetts.[1] Thus, PL & P's delay can *142 be attributed to the discovery process. Weber's assertion that his delay can be attributed to his opponent's filing schedule is a non-starter, as is his unique proposal during oral argument that this Court's workload and "typical" turn-around time for decisions would provide sufficient time for PL & P to provide additional discovery.
No new evidence has come to light that would justify Weber's delay. In fact, Weber's memorandum in support of his motion for leave to amend the Complaint indicates that his counsel was aware of the possibility that the 93A claim would be dismissed. Likewise, at the July 17, 2007 status conference, Weber's counsel told the Court that if the claim was dismissed, he would seek leave to amend the Complaint. Rather than explaining Weber's delay, the above facts point to Weber's failure to amend his Complaint earlier in the proceedings, though he had knowledge that there were serious problems with the 93A claim and that it might be dismissed.
Simply put, Weber does not offer any substantive reason for his delay in bringing a claim against PL & P under the New Hampshire statute. He does not assert new factual allegations in the proposed amendment, but rather revises his conclusion that the alleged commission of unfair and deceptive acts occurred in New Hampshire, rather than Massachusetts. Weber, ironically, relies heavily on Colmenares, where appellants' motion to amend was properly denied because the moving party did not point to any change in circumstances or additional evidence that would merit the delay additional discovery would inevitably cause. Colmenares Vivas, et al. v. Sun Alliance Ins. Co., et al., 807 F.2d 1102, 1108 (1st Cir.1986). In Colmenares, the defendant had prepared its case on the basis of a contractual indemnity complaint, not the direct liability claim the plaintiff was seeking to add through amendment. Id. The court held that the inevitable delay caused by additional discovery would be warranted if additional evidence had come to light, but since appellants did not point to any such change in circumstances, the District Court did not err in denying appellant's motion to amend the complaint. Id.
The particular facts of each case determine whether undue delay is sufficiently prejudicial to the opposing party to warrant a denial of leave to amend. Here, whether Weber's delay would prejudice PL & P enough to justify denial turns in part on whether additional discovery is needed under the New Hampshire statutory claim, or whether granting the motion to amend would delay the trial or further burden the Court's and the opposing parties' resources. At the hearing held on October 16, 2007, PL & P averred that additional discovery would be needed to properly prepare for a new claim under New Hampshire law.
As noted above, the Massachusetts and New Hampshire Consumer Protection statutes are nearly identical, and New Hampshire courts have looked to Massachusetts case law for guidance when interpreting the New Hampshire statute. In WVG, the New Hampshire court noted that even though the case before it was one of first impression, the Massachusetts consumer protection statute was "very similar to that of New Hampshire," and contained exactly the same definition of trade and commerce as. RSA 358-A, as well as the same exemption as Massachusetts (barring claims based on events occurring more than three years prior). WVG Pac. Ins. Co., 707 F.Supp. 70, 73 (D.N.H.1986); see also Remsburg v. Docusearch, Inc., 149 N.H. 148, 160, 816 A.2d 1001 (2003) (noting similarity between Massachusetts and New Hampshire Consumer Protection Acts).
*143 The liberal allowance of amendments to pleadings is important to assure a party a fair opportunity to present claims and defenses. However, equal attention should be given to the proposition that litigation must end. While the First Circuit has held that a moving party's failure to justify undue delay, when the facts upon which the proposed amendment are known throughout, provides sufficient grounds for denial of leave to amend, these cases generally involve the prospect of additional discovery or other significant burden on the non-moving party. Colmenares, 807 F.2d at 1108 (amendment would have necessitated postponement of the trial while defendant conducted additional discovery); Quaker, 884 F.2d at 1518 (denying motion to amend based on the prejudice to defendant, because discovery was completed before plaintiff s new legal theory, and absent justification for plaintiff's delay); Arthur D. Little, Inc. v. Dooyang Corp., 147 F.3d 47 (1st Cir.1998) (denying defendant leave to amend where motion was made two years after original counterclaims were filed, facts upon which the proposed counterclaim rested were known to defendant all along, most of the discovery had taken place, and defendant never proffered a satisfactory explanation for its delay); Carter, 684 F.2d at 192 (where a considerable amount of time has passed between the filing of the complaint and the motion to amend, the burden is on the moving party to show valid reason far delay; "clerical error" excuse did not justify a six year delay).
No bright-line mechanical test has emerged from other circuits, but generally, the longer a party delays in bringing an amendment, the less prejudice an opposing party must show to justify denying leave to amend. See UNR Ind., Inc. v. Continental Ins. Co., 682 F.Supp. 1434 (N.D.Ill. 1988) (fifteen months after commencement of litigation, plaintiff's inexcusable delay and prejudice to defendant outweighed plaintiff's right to have its RICO claim heard); Avatar Exploration, Inc. v. Chevron, USA, Inc., 933 F.2d 314 (5th Cir.1991) (District Court's denial of leave to amend was proper where the court's deadline for filing amendments was past, and the amendment would have been futile); Fin. Holding Corp. v. Garnac Grain Co., 127 F.R.D. 165 (W.D.Mo.1989) (where reason for seeking amendment to the pleadings following the scheduling order deadline was apparent before the deadline, and no offsetting factors appear, the deadline must govern); Layfield v. Bill Heard Chevrolet Co., 607 F.2d 1097 (5th Cir.1979) (District Court properly denied amendment that was tendered after summary judgment motion was filed, when all facts were known at the time original complaint was filed); see also Woodson v. Fulton, 614 F.2d 940, 943 (4th Cir.1980) (holding that denial of leave to amend was proper where Woodson's attorney had known of a possible First Amendment claim for some time but waited until after defendant had filed for summary judgment to move for amendment).
Because Weber cannot articulate a valid reason for his prejudicial delay in bringing this claim under New Hampshire law, and because additional discovery would be necessary for PL & P to fairly litigate this claim, Plaintiffs Motion for Leave to Amend Complaint at this late date is DENIED.
(2) Plaintiff's Motion For Partial Summary Judgment to Strike Affirmative Defenses H, J, and N And Defendant's Request For Attorney's Fees
(Docket # 70)
"Summary Judgment is appropriate only when `there is no issue of genuine material fact,' Fed.R.Civ.P. 56(c), and the court *144 must look at the record in the light most favorable to the party opposing the motion, indulging all inferences in that party's favor." Fidler v. Eastman Kodak Co., 714 F.2d 192, 197-98 (1st Cir.1983) (citing Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975)).
When considering whether to grant summary judgment, a court must determine whether:
The pleadings, depositions, interrogatories, and admissions on file, together with the affidavits, if any, show that there is a 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).
In making this assessment, the court must "accept all reasonable inferences favorable to the nonmovant." Int'l Ass'n of Machinists & Aerospace Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 205 (1st Cir.1996) (collecting cases); see also Lawton v. State Mut. Life Assurance Co. of Am., 101 F.3d 218, 222-23 (1st Cir.1996) (same).
A factual dispute which is neither "genuine" nor "material" will not survive a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To decide whether a factual dispute is "genuine," the Court must determine whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.; Hahn, 523 F.2d at 464; see also Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731 (1st Cir.1995); Serrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23, 25 (1st Cir.1997). In weighing whether a factual dispute is "material," the Court must examine the substantive law of the case, because "only disputes over the facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also Vinick v. Comm'r of Internal Rev., 110 F.3d 168, 171 (1st Cir.1997). Essentially, this rule of law directs the definition of which facts are material to the substantive governing law of the particular circumstances. Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir.1996) (citing Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505).
Rule 56 does not, however, permit the party opposed to a summary judgment motion to rest upon the mere allegations or denials of its own pleadings. See Int'l Ass'n of Machinists & Aerospace Workers, 103 F.3d at 205 (quoting Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir.1992)) ("The core purpose of the summary judgment procedure is to `pierce the boilerplate of the pleadings' and evaluate the proof to determine whether a trial will serve any useful purpose."). Rather, "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Potterton v. Porter, 810 F.2d 333, 334 (1st Cir.1987).
Regarding Affirmative Defense H, that Weber's losses, if any, were caused by the acts and omissions of a third party over which PL & P had no control, PL & P point to Weber's own deposition, as well as the depositions of Richard Billings, Frank Catapano, and Andrea Batchelder. They cite to specific instances in which Weber held Sanborn out to be his partner; authorized the alleged fraudulent invoices submitted by Sanborn; negotiated through Batchelder, a separate attorney, to get *145 Sanborn "out of baseball" after disagreements arose; admitted that his own investigation turned up the fact that the fictitious entities "led back to Mr. Sanborn" as well as Billings' testimony that he gave Weber legal and accounting advice independent of PL & P, to help Weber "keep attorney costs down." PL & P also denies that it represented Weber individually, and notes evidence that the corporation Weber refers to in his Factual Background of the Complaint in which he "held a significant equity interest" is not a party to this action. In short, the specific facts to which PL & P can point raise a dispute of material fact as to an essential element of its affirmative defense; that is, there is a question for the finder of fact over whether Weber's losses, if any, were caused by a third party or parties over which PL & P had no control. Accordingly, summary judgment is DENIED as to Affirmative Defense H.
In support of Affirmative Defense I, that Weber assumed the risk of the Riverfront Development Project, PL & P notes Weber's admission to the Lowell Sun that he had made a "four-error mistake" in getting involved in the Riverfront Development Project, as well as Weber's admission that he routinely executed documents without reading them. PL & P offers defendant Prolman's deposition, in which Prolman stated that he could not point to any specific instances in which it was clear that Weber assumed the risk of the project, but that it was just Weber's "involvement with the 6 to 4 to 3 transaction with the city." Consequently, PL & P claims that it had no actual knowledge of all the facts surrounding the defenses precisely because of its limited involvement in Weber's and/or 6 to 4 to 3's negotiations with the City, or with any of Weber's other advisors. This of course runs contrary to the facts presented by Weber, creating a material dispute. Accordingly, plaintiff s Motion for Summary Judgment to Strike Affirmative Defense I is DENIED.
Regarding Affirmative Defense J, that Weber's negligence exceeded the negligence, if any, of PL & P, PL & P points to Weber's deposition, where he admitted that he did not read any legal documents put in front of him, including the original Memorandum of Understanding. PL & P asserts that this alone likely entitles it to an instruction on comparative negligence. Lawrence Savings Bank v. Levenson, 59 Mass.App.Ct. 699, 797 N.E.2d 485 (Mass.App.2003) citing Clark v. Rowe, 428 Mass. 339, 341-45, 701 N.E.2d 624 (1998) (comparative negligence applies to a claim of legal malpractice); see also Drown v. Hebert, 340 B.R. 428, 442 (Bkrtcy.D.Mass.2006) (builder's negligence exceeded that of debtor in connection with development where he "was aware of the risks ... and chose to proceed with the risks; [his] damages were caused more by his own negligence ... not Drown's misrepresentation"). As noted above, this line of argument also goes toward Affirmative Defense I (Weber assumed the risk of investing in the Riverfront Development Project). While a jury instruction is a question for another day, Weber's admission is certainly sufficient to demonstrate a dispute over a material fact relevant to an issue of the claim. Recall that to survive summary judgment, PL & P need not produce sufficient evidence to prevail, but only to raise a dispute that justifies, proceeding on the merits. Accordingly, Weber's Motion to Strike Affirmative Defense J is DENIED.
Regarding Affirmative Defense N, that Weber's Complaint is barred in whole or in part by the doctrine of superceding intervening causes, many of the same factual allegations as those applicable to Affirmative Defense H (damages caused by a *146 third party) and J (Weber's negligence exceeded any negligence by PL & P) demonstrate a material dispute of facts. Like the above defenses, PL & P asserts that it does not possess sufficient information to determine the exact causal relationship between Weber's damages, PL & P, and various third parties. The above arguments regarding the potential for third party liability, as well as PL & P's averment that it cannot be held responsible for Weber's actions outside of PL & P's representation, warrant survival of summary judgment. Specifically, depositions of Weber, Billings, Catapano, and Batchelder establish Weber holding Sanborn out as his partner, and Weber's authorization of the allegedly fraudulent invoices. Additionally, the evidence contains specific accounts of Weber employing other attorneys on issues involving the Riverfront Development Project, consultation by friends on legal matters so that Weber could "keep attorney's costs down," and Weber's own admission that he did not read any of the legal documents he signed.
As will be seen, this Court finds that there are material issues of fact that allow the legal malpractice claim to proceed. Those issues reveal the material dispute as to Affirmative Defense N as well. Accordingly, Weber's motion is DENIED.
Finally, regarding Weber's motion for attorney's fees, all parties conceded at oral argument that a discussion of attorney's fees is not yet ripe. Accordingly, the motion is DENIED.
(3) Defendants' Motion to Strike Expert Opinion of Andrew Perlman
(Docket # 72.)
PL & P moves to strike the expert opinion of Andrew Perlman, on various grounds. First, PL & P challenges Perlman's qualifications as an expert witness. PL & P avers that the focus of Perlman's teaching and publications is unrelated (professional responsibility and civil procedure rather than legal malpractice) and that he is inexperienced as an expert witness (this is Perlman's first employment as an expert witness). PL & P's position is unreasonably restrictive.
Absent exceptional circumstances, it is well established under New Hampshire law that expert testimony is necessary to inform the jury regarding the skill and care ordinarily exercised by lawyers, to prove a breach thereof, and to prove proximate causation in a legal malpractice action. Wong v. Ekberg, 148 N.H. 369, 374, 807 A.2d 1266 (2002); Furbush v. McKittrick, 149 N.H. 426, 432, 821 A.2d 1126 (2003); Carbone v. Tierney, 151 N.H. 521, 528, 864 A.2d 308 (2004). This is not one of those exceptional cases where the facts fit the elements so obviously that expert testimony is not required. As evidenced by the dispute in opinion between Perlman and PL & P's expert, Daniel Sklar, the facts of this case are sufficiently complicated to require expert testimony.
Federal Rule of Evidence 702 expresses five bases for qualifying an expert: "knowledge, skill, experience, training, or education." Even if "experience" were to be narrowly interpreted as prior experience in serving as an expert witness, the fact that this is Perlman's first employment as an expert witness does not render him unqualified. Tokio Marine & Fire Ins. Co., Ltd. v. Grove Mfg. Co., 958 F.2d 1169, 1175 (1st Cir.1992). In the language of FRE 702, the disjunctive conjunction suggests legislative intent to qualify an expert through any of the five bases listed. Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167, 176 (5th Cir.1990). While PL & P challenges Perlman's experience, the four remaining bases are uncontested. Perlman's background in teaching, scholarship, *147 and professional associations qualify him as an expert on the bases of knowledge, skill, training, or education,
"It is well-settled that `trial judges have broad discretionary powers in determining the qualification, and thus, admissibility, of expert witnesses.'" Diefenbach v. Sheridan Transp., 229 F.3d 27, 30 (1st Cir.2000) (quoting Richmond Steel, Inc. v. Puerto Rican. Am. Ins. Co., 954 F.2d 19, 20 (1st Cir.1992)). Implicitly included within Perlman's scholarship of legal ethics is legal malpractice. A lawyer's obligations to clients, regarding trust accounts is covered by Perlman in one of the courses he teaches at Suffolk Law School. Based on his credentials, specifically his teaching experience, Perlman is qualified to offer an expert opinion about: (1) whether an attorney-client relationship existed between Weber and PL & P; (2) whether PL & P engaged in conduct that failed to conform with the governing Rules of Professional Conduct and fell below the standard of care of the average and ordinary qualified practitioner; and (3) whether this conduct proximately caused damages to Weber.
PL & P further attacks the expert opinion, contending that the principles of substantive law employed by Perlman are improper. Specifically, PL & P objects to Perlman's use of the Rules of Professional Conduct from New Hampshire and Massachusetts ("the Rules"). PL & P argues that the Preamble to the Rules from both New Hampshire and Massachusetts state that, legal rules or principles of substantive law external to the Rules, determine whether a client-lawyer relationship exists. Though Perlman referred to the Rules, his conclusion was further supported by an American Bar Association Formal Opinion and the Restatement (Third) of the Law Governing Lawyers.
Perlman's use of the Rules was as a threshold affirmation that dual representation is ethically permissible. Rule 1.13(e) expressly states that a lawyer representing an entity "may also represent any of its directors, officers, employees, members, shareholders, or other constituents." N.H.R. Prof. Conduct 1.13(e); Mass. R. Prof. Conduct 1.13(e). To explain when such dual representation exists, Perlman relied on principles of substantive law external to the Rules, namely, the ABA Formal Opinion and the Restatement (Third) of the Law Governing Lawyers.
Perlman employed proper legal principles in conducting his analysis. Any further concerns PL & P may have with Perlman's methods or conclusions may more appropriately be dealt with on cross-examination. Accordingly, PL & P's Motion' to Strike Expert Opinion of Andrew Perlman is DENIED.
(4) Defendants' Motion For Partial Summary Judgment on Counts II and VIII
(Docket # 73)
Count IINegligent Misrepresentation
Weber began this action by alleging that the PL & P defendants each "made statements of fact to Weber which each, in the exercise of reasonable care, should have known were false and untrue." Complaint at 79. Weber's Complaint also avers his reasonable reliance on PL & P's false statements. Id. However, Weber was unable, in either his answers to interrogatories or deposition testimony, to recall any specific false statements made to him by PL & P. See Weber Dep. Vol. II, 239-40; Weber Answer to Interrogatory No. 6. Accordingly, PL & P filed a motion for partial summary judgment, dismissing the claim.
"The essential elements of negligent misrepresentation are a negligent misrepresentation by the defendant of a *148 material fact and justifiable reliance by the plaintiff." Ingaharro v. Blanchette, 122 N.H. 54, 57, 440 A.2d 445 (1982); see also Snierson v. Scruton, 145 N.H. 73, 78, 761 A.2d 1046 (2000) (same). More precisely, the Restatement (Second) of Torts describes negligent misrepresentation:
One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care, or competence in obtaining or communicating the information.
Restat. 2d. Torts, § 552. Typically, analysis of negligent misrepresentation claims focuses on whether the false statement was of a material fact, and whether there was reasonable reliance on the part of the plaintiff. In the absence of a false statement, plaintiffs can seldom succeed on a claim of negligent misrepresentation. See Ingaharro, 122 N.H. at 57, 440 A.2d 445 (adopting defendant's argument that mere omission could not constitute a negligent misrepresentation in this case). In light, of Weber's inability to recall any false statements made to him by PL & P, PL & P seeks partial summary judgment on the negligent misrepresentation count. In response, Weber revised his theory, creating a hybrid fraud/legal malpractice argument while maintaining the appellation of negligent misrepresentation.
In support of his new theory, Weber cites to the court's dicta in Ingaharro as evidence that PL & P's mere silence, coupled with the alleged attorney-client relationship, gave rise to his negligent misrepresentation claim. However, Ingaharro offers little assistance to Weber's argument, as it involves concealed defects during the sale of real property and ultimately rejects the plaintiff's argument that, at least in New Hampshire, a negligent omission may constitute negligent misrepresentation in such a case. Id. at 57-58, 440 A.2d 445; see also Adams v. Hyannis Harborview, Inc., 838 F.Supp. 676, 694 (D.Mass.1993) ("nondisclosure by itself generally will not support a cause of action for negligent misrepresentation"). Weber's reliance on Stolzoff v. Waste Systems International, Inc., 58 Mass.App.Ct. 747, 792 N.E.2d 1031 (2003), is equally flawed. In Stolzoff, the court's discussion of negligent misrepresentation took place in the context of claims under the Uniform Securities Act. Id. at 765-66, 792 N.E.2d 1031. Crucial to that analysis was the statutory provision that imposed liability where "the defendant made a material misstatement and/or omission." M.G.L. c. 110A § 410(a)(2) (emphasis added).[2] No such statutory language exists for the instant claim.
In the case at bar, Weber has not established the existence of either a negligent false statement, a partial false statement which might make future omissions unlawful, or a statutory provision imposing liability for the alleged negligent omissions. Considering the facts of this case, though the existence of a fiduciary duty might bolster Weber's claims under a theory of fraud or legal malpractice, this Court is unable to find support for his current theory of negligent misrepresentation.[3]
*149 Additionally, despite Weber's attempts to recast the disputed facts as negligent misrepresentation based upon an omission, the timing of this new strategy raises further concern. Weber waited until now, in the face of PL P's motion for partial summary judgment, to switch from alleging a false material statement on the part of PL & P, to alleging a negligent omission, coupled with a duty to disclose. Allowing Weber to employ such a last minute tactic would be unfair and will not be countenanced. See Wells v. Monarch Capital Corp., Civ. No. 91-10575, 1996 WL 728125, at *9 (D.Mass. Oct. 22, 1996) (refusing to allow plaintiff to change the basis of its claims after defendant moved for summary judgment) (collecting cases).
As Weber is unable to raise any disputed issue of material fact related to a false or untrue statement, made by PL & P, which he reasonably relied upon, and in light of the last minute attempt to switch his theory of the case, PL & P's motion for partial summary judgment is GRANTED as to Count IINegligent Misrepresentation.
Count VIIILegal Malpractice
In bringing a legal malpractice claim, Weber must prove "(i) an attorney-client relationship, which by law imposes a duty on the attorney to `exercise care, skill and knowledge in providing legal services to the client;' (ii) breach of such duty; and a `connection of legally recognized causation between the breach and the resulting harm to the client.'" In Re R & R Assoc. of Hampton, 402 F.3d 257, 265 (1st Cir. 2005), citing Draper v. Brennan, 142 N.H. 780, 782, 713 A.2d 373 (1998). In its motion for partial summary judgment, PL & P avers that Weber (1) cannot establish the existence of an attorney-client relationship between he and PL & P; (2) cannot demonstrate that PL & P breached any duty it owed to him; and (3) cannot prove that any damage he suffered was the result of PL & P's alleged breach.
Despite PL & P's assertions that there are no issues of disputed material fact related to this count, plaintiff and his expert disagree. PL & P draws the attention of this Court to McCabe v. Arcidy, 138 N.H. 20, 635 A.2d 446 (1993), to support its argument that, when a lawyer represents a corporation, he does not represent its officers or shareholders absent an express agreement. Id. at 25, 635 A.2d 446. Yet the relationship between the plaintiff and attorney in McCabe was vastly different than the relationship in the case at bar. In McCabe, the plaintiff was merely paying for the legal services of another and the lawyer, having minimal contact with the plaintiff altogether, had informed the plaintiff at the onset that there was no attorney-client relationship. Here, there is a dispute regarding the extent to which PL & P assisted Weber with personal financial matters and, by implication, provided him with legal representation on which he reasonably relied. There is, thus, a dispute over whether PL & P did perform these duties in this capacity and whether that created an attorney-client relationship. Considering the disputed facts and expert testimony, it cannot be said, at this stage, that PL & P is "entitled to judgment as a matter of law." Anderson, 477 U.S. at 247, 106 S.Ct. 2505. Accordingly, PL & P's motion for partial summary judgment is DENIED as to Count VIIILegal Malpractice.
CONCLUSION
For the reasons detailed above, this Court holds that: (1) Plaintiff's Motion for *150 Leave to Amend Complaint is DENIED; (2) Plaintiff's Motion for Partial Summary Judgment Striking Affirmative Defenses II, I, J, and N, and Defendant's Request for Attorney's Fees is DENIED; (3) Defendant's Motion to Strike the Expert Opinion of Andrew Perlman is DENIED; and (4) Defendant's Motion for Summary Judgment on Count II is GRANTED, and on Count VIII is DENIED.
SO ORDERED.
NOTES
[1] This Court addressed this issue in allowing the motion in its Order of August 22, 2007 (Docket # 68), 502 F.Supp.2d 197.
[2] Weber also offers Benoit v. Perkins, 79 N.H. 11, 104 A. 254 (1918), as his third, and final, supporting case for negligent misrepresentation. However, Benoit involved a claim of fraud, with evidence of intentional deceit, and is of no assistance hereall fraud claims, importantly, having already been dismissed.
[3] Aware of the flaws in Weber's supporting case law, the Court pressed counsel for additional support during oral argument. In response, the Court received a recitation of the previously filed brief and no more.
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498 F.2d 392
Maxine W. SIEGFERTH, Guardian of Robert H. Siegferth, anIncompetent Person, et al., Plaintiffs-Appellants,v.The BALTIMORE AND OHIO RAILROAD CO., Defendant-Appellee.
No. 73-1820.
United States Court of Appeals, Sixth Circuit.
Argued Feb. 15, 1974.Decided May 29, 1974.
Richard T. Cunningham, Akron, Ohio, for plaintiffs-appellants; Bernard J. Amer, Amer, Cunningham & Brennan, Akron, Ohio, on brief.
C. Kenneth Clark, Jr., Youngstown, Ohio, for defendant-appellee; Eldon S. Wright, Youngstown, Ohio, on brief; Harrington, Huxley & Smith, Youngstown, Ohio, of counsel.
Before PHILLIPS, Chief Judge, and EDWARDS and LIVELY, Circuit Judges.
PER CURIAM.
1
Appellant is the guardian of her husband who was permanently injured and completely disabled when his car was struck by a B & O Railroad Co. freight train on December 23, 1969. Appellant's lawyer sought the same strict liability instruction pertaining to the Ohio Whistle and Bell Statute which was sought and given in Glinsey v. B & O Railroad Co., 356 F.Supp. 984 (N.D. Ohio 1973), and he now claims reversible error in the fact that the District Judge in this case denied same and gave an instruction on contributory negligence. Thus, the issues in this appeal are indentical with those in the Glinsey case except that here, without the strict liability instruction, the jury found no cause for action on the part of appellant.
2
The Glinsey appeal has just been decided by another panel of this Court. The District Court judgment therein was reversed, and the strict liability instruction was disapproved. Glinsey v. B & O R.R. CO., 495 F.2d 565 (6th Cir. 1974). On the basis of the reasoning and conclusions in Glinsey, supra, and finding no other issue of merit, the judgment of the District Court in our instant case is affirmed.
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237 S.E.2d 810 (1977)
Andra Eugene RICKS
v.
COMMONWEALTH of Virginia.
Record No. 770009.
Supreme Court of Virginia.
October 7, 1977.
*811 Stanley G. Barr, Jr., Norfolk (Canoles, Mastracco, Martone, Barr & Russell, Norfolk, on brief), for plaintiff in error.
Jim L. Chin, Asst. Atty. Gen. (Anthony F. Troy, Atty. Gen., on brief), for defendant in error.
Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
COMPTON, Justice.
This criminal appeal stems from convictions based on circumstantial evidence. The Commonwealth's case hinged on proof that defendant's fingerprint was found on a jar at the scene of the crimes. The sole issue presented is the sufficiency of the evidence to establish the defendant as the criminal agent.
Andra Eugene Ricks was convicted by the trial court sitting without a jury on a two-count indictment for statutory burglary, Code § 18.2-91, and grand larceny, Code § 18.2-95. He was sentenced September 8, 1976 to separate four-year terms in the penitentiary on each charge, the sentences to run concurrently.
On May 14, 1976 about 6:00 a. m., Deborah Smith "secured" her home in the city of Norfolk and went to work. Upon her return later that day about 5:30 p. m., Smith discovered the dwelling "had been broken into" and that several articles of personal property were missing. Among the items stolen were all the "pennies" which had filled "a big fat applesauce jar" located in her bedroom.
In the course of an investigation conducted at the scene shortly after discovery of the crimes, the police found only one "comparable" fingerprint, which was detected on the jar. The print was later identified as that of Ricks, who lived within several hundred yards of the victim's home. When interrogated by the police about his knowledge of the crimes, Ricks stated "he had never been in the house" in question.
The victim testified that prior to the day of the offenses, she knew the defendant, but not "personally." She stated she had seen him in her neighborhood and that she "knew" him "[f]rom the first offense when my house was broken into."
Testifying as the only defense witness, Ricks stated that in January of 1976 he was arrested for breaking and entering this same dwelling and that he later pled guilty to a charge of trespass arising from that incident. He said that while in the house on that day he saw the applesauce jar containing money in the victim's bedroom, that he "touched" the jar intending to remove its contents, and that he "put the jar back down" without taking the money when he heard the victim's mother approaching the house. Defendant denied being in the victim's house or bedroom at any time other than in January of 1976.
Defendant contends the trial court erred in failing to sustain his motion to strike made at the conclusion of the Commonwealth's case and in failing to sustain his motion for acquittal made at the close of all the evidence. He argues that the Commonwealth's case-in-chief merely disclosed that defendant's print was found on a jar in the victim's bedroom and that the contents of the jar were removed on the day of the crimes. He asserts the Commonwealth failed to prove that the object on which the defendant's fingerprint was found was "(1) generally inaccessible to [defendant] and (2) that the print was made at the time" the crimes were committed. The defendant further contends that the motion for acquittal should have been granted because "defendant by his own testimony offered credible evidence to establish that not only did he have access to the jar in January of 1976, but that he also could have put the fingerprint on it at that same time." We reject these contentions and affirm.
Recently, in Turner v. Commonwealth, 218 Va. 141, 235 S.E.2d 357 (1977), we reviewed the role of fingerprint evidence in establishing criminal agency. There we affirmed a conviction in which defendant's fingerprint was impressed in blood on a flashlight found at the scene of a brutal murder. Applying the principles set forth *812 in Avent v. Commonwealth, 209 Va. 474, 164 S.E.2d 655 (1968), we said that "while defendant's fingerprint found at the scene of the crime may be sufficient under the circumstances to show defendant was there at some time, nevertheless, in order to show defendant was the criminal agent, such evidence must be coupled with evidence of other circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime." 218 Va. at 146, 235 S.E.2d at 360. Quoting from Lawless v. State, 3 Md.App. 652, 658-59, 241 A.2d 155,159-60 (1968), we said these "other circumstances" are not required to be "`circumstances completely independent of the fingerprint, and may properly include circumstances such as the location of the print, the character of the place or premises where it was found and the accessibility of the general public to the object on which the print was impressed.'" Id. We pointed out that when such attendant circumstances demonstrate the accused was present at the scene of the crime when it was committed, "a rational inference arises that the accused was the criminal agent." Id. The evidence of the Commonwealth in this case meets the foregoing requirements.
The trial judge stated on the record that he "simply [could not] accept" defendant's testimony that defendant had touched the jar in question during the January trespass. The court reasoned that such testimony was worthy of no credit in view of defendant's statement to the police that he had never been in the Smith dwelling. That statement, the judge noted, was "disproven by the uncontradicted evidence" of the fingerprint which established defendant's presence there at some time. The court below, sitting without a jury, was justified in making such a factual determination, especially since a reasonable inference from the Commonwealth's evidence was that the jar, although a readily moveable object, had remained in the victim's bedroom during all times material to this case, and thus could not have been touched by defendant unless he was actually in that room.
Having decided, contrary to defendant's contention, that the trial court was warranted in discrediting defendant's testimony, we examine the sufficiency of the Commonwealth's evidence. Defendant's fingerprint was found at the scene of the crimes. The print was on an object which was stored in the bedroom of a private home, a place not accessible to the public in general or the defendant in particular, and a place where the defendant had no right to be. Thus, evidence of the print has been coupled with evidence of "other circumstances" which tend to reasonably exclude the hypothesis that the fingerprint was impressed at a time other than during commission of the crimes. The evidence of the print and the attendant facts demonstrate the accused was present at the scene when the crimes were committed. Consequently, a rational inference arises which permits the trier of fact to find that the accused was the criminal agent.
Defendant argues that, even if his evidence is discredited, the victim's testimony that she "knew" defendant from "the first offense when my house was broken into" is sufficient to support the hypothesis that the print was impressed on the jar in January and not May, thus requiring the Commonwealth to go further than it did in negating such idea. We do not agree. As we said in Turner, supra, the hypotheses which the prosecution must reasonably exclude are those which flow from the evidence itself. 208 Va. at 148, 235 S.E.2d at 361. Even taken in its most favorable light from the defendant's standpoint, the victim's statement is no more than an assertion that defendant was in some way involved with an earlier break-in at her home. Standing alone, the statement will not support a theory that defendant either was in her bedroom or touched the jar on the prior occasion, and the Commonwealth had no duty to go further than it did in negating such hypothesis of innocence.
Finally, defendant places great reliance on Borum v. United States, 127 U.S.App. D.C. 48, 380 F.2d 595 (1967). In that case, *813 Borum's conviction of housebreaking was reversed by a divided panel of the circuit court. The defendant's fingerprints were found on one of two empty jars which had contained a valuable coin collection. The coins were stolen during the break-in, along with other items of personal property. The Government's evidence placed Borum within a mile and a half of the victim's home near the time of the crime. The court found there was no evidence, either direct or circumstantial, which showed that Borum touched the jars in the course of the housebreaking. It pointed out that one of the witnesses for the prosecution testified that Borum's fingerprints could have been on the jars "`indefinitely'" and another agreed that the prints could have been on the jars "`for a period of . . . years.'" 380 F.2d at 596. The court further pointed out that the "Government introduced no evidence which could account for, or even suggest an inference about, the custody or location of the jars during that period." Id.
We are not persuaded by Borum; a mere statement of its facts distinguishes it from this case. The Commonwealth here did establish by inference the custody and location of the jar during the relevant period of time; the prosecution's evidence here did indicate that the accused touched the jar on the day of the crimes; and there was here no evidence that the fingerprint could have been on the jar indefinitely or for a period of years.
The convictions of the defendant will therefore be
Affirmed.
POFF, J., dissenting.
POFF, Justice, dissenting.
I would reverse the judgment. The Commonwealth failed to discharge its burden of proving prior inaccessibility.
At the time the parties rested, two items of evidence tending to show prior accessibility had been adduced, one by the defendant and the other by the Commonwealth. I agree that the trial court was justified in discarding the former as unreliable. But the latter, the testimony of the victim of the two criminal offenses, was altogether reliable.
In Turner v. Commonwealth, 218 Va. 141, 235 S.E.2d 357 (1977), cited by the majority, the defendant claimed that the Commonwealth had failed to exclude a reasonable hypothesis of prior accessibility. Rejecting that claim, we held that, in order to satisfy the standard of reasonableness, the hypothesis must "flow from the evidence itself, and not from the imagination of defendant's counsel." Id. at 148, 235 S.E.2d at 361. Here, defendant's hypothesis, though based in part upon his own self-serving, self-contradictory testimony, was supported by the uncontradicted testimony of the principal prosecution witness. Surely, such evidence satisfies the Turner test and activates the Commonwealth's "duty to negate" the hypothesis. Id.
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899 F.Supp. 832 (1995)
ADVANCED SYSTEMS CONSULTANTS LIMITED, Plaintiff,
v.
ENGINEERING PLANNING AND MANAGEMENT, INC., Defendant.
ENGINEERING PLANNING AND MANAGEMENT, INC., Plaintiff,
v.
EA SYSTEMS INC. and William Selden, Defendants.
Civ. A. Nos. 94-12522-WGY, 94-12523-WGY.
United States District Court, D. Massachusetts.
September 22, 1995.
Andrew S. O'Connor, New York City, for plaintiff.
Douglas G. Moxham, Lane & Altman, Boston, MA, Richard C. Heidlage, Heidlage & Reece, Boston, MA, for Engineering Planning Management, Inc., EA Systems Inc.
MEMORANDUM AND ORDER
YOUNG, District Judge.
"No blood, no foul" is one of the most venerable rules of playground basketball. The sole question of general interest that remains in these complex proceedings is whether one who commits a foul, in the form of an unfair or deceptive act in violation of the Massachusetts Consumer Protection Act, Mass.Gen.L. ch. 93A, §§ 2, 11, is liable for the attorneys' fees of an intended victim who so quickly seeks and obtains injunctive relief that no actual blood is drawn in the form of monetary or economic damages. Despite the numerous similarities between the playground and the business world, see generally Robert Fulghum, All I Ever Really Needed to Know I Learned in Kindergarten (1988), upon careful reflection, the "no blood, no foul" rule does not apply in the Chapter 93A *833 context; i.e., the target of an unfair or deceptive act or practice who incurs legal expenses in obtaining and defending injunctive relief to safeguard itself against economic loss is entitled to invoke the attorneys' fees provision of Chapter 93A.
This is a factually complex case with various post-trial motions pending. The Court limits itself here to the facts pertinent to the discrete issue noted above.
Advanced Systems Consultants Limited ("Advanced"), a British corporation, entered into an agency agreement with Engineering Planning and Management, Inc. ("EPM") on March 4, 1991, under which EPM agreed to market and license certain software on behalf of Advanced. Advanced had developed and owned the rights to the software, known as PHOENIX, a database management system used in the design, engineering, and construction of power plants and other industrial facilities. During the life of the agreement, an employee of EPM, William Selden ("Selden"), left EPM and went to work for one of its competitors, EA Systems Inc. ("EAS"). EAS then acquired Advanced.
Numerous disputes arose among the parties regarding the agency agreement, the use of PHOENIX, and Selden's conduct. After a nonjury trial limited to questions of liability, the Court found and ruled that Selden and EAS had engaged in a scheme whereby Selden would "jump ship" from EPM and use the confidential knowledge and data he had obtained there, in violation of his confidentiality agreement with EPM, to further the interests of his new employer, EAS, for the purpose of crowding EPM out of its market and replacing it with EAS. Such conduct, standing alone, violates Chapter 93A. Advanced became part of the scheme following its acquisition by EAS, and is thus likewise subject to liability.
On May 15, 1995, the Court issued an injunction prohibiting Selden from taking certain actions with respect to PHOENIX and EPM's customers. During the trial on damages in July of 1995, the Court found that EPM had suffered no monetary damages as a result of Selden's conduct, as EPM had nipped the scheme in the bud and prevented its coming to fruition. The Court further explained that it had granted the injunction "to protect EPM against the wrongful use by William Selden of EPM's internal proprietary data." In other words, had EPM not taken action, there is little doubt but that it would have suffered extensive damages as a result of the unfair or deceptive acts of Selden, EAS, and Advanced.
The Court ruled EPM was entitled to attorneys' fees in the amount of $150,000 as a result of the defendants' violation of Chapter 93A and the consequent need for EPM to seek injunctive relief and defend it throughout the proceedings. EAS and Selden moved for reconsideration of this decision, arguing that, as matter of law, an award of attorneys' fees is improper absent actual monetary or economic damage.
Pursuant to Section 11 of Chapter 93A:
If the court finds in any action ... that there has been a violation of section two, the petitioner shall, in addition to other relief provided for by this section and irrespective of the amount in controversy, be awarded reasonable attorneys' fees and costs incurred in said action.
Mass.Gen.Laws Ann. ch. 93A, § 11 (West 1984 & Supp.1995) (emphasis supplied). Section two, in turn, proscribes "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." Id. § 2. A person who has not yet suffered any loss of money or property as a result of a violation of section two:
may obtain ... an injunction if it can be shown that the aforementioned unfair method of competition, act or practice may have the effect of causing such loss of money or property.
Id. § 11. The language of the statute therefore mandates the award of attorneys' fees when a plaintiff has proven a violation of section two and is entitled tothough does not necessarily obtainsome form of monetary, injunctive, or other relief. See Jet Line Servs., Inc. v. American Employers Ins. Co., 404 Mass. 706, 718, 537 N.E.2d 107 (1989); Jillian's Billiard Club of Amer., Inc. v. Beloff *834 Billiards, Inc., 35 Mass.App.Ct. 372, 377, 619 N.E.2d 635, rev. denied, 416 Mass. 1108, 625 N.E.2d 1369 (1993) (plaintiff also obtained injunction); Stone v. W.E. Aubuchon Co., 29 Mass.App.Ct. 523, 525-26, 529, 562 N.E.2d 852 (1990) (dicta) ($500 attorney fee award improper despite 93A violation where all other claims disposed of without relief); cf. Rex Lumber Co. v. Acton Block Co., 29 Mass.App.Ct. 510, 520, 562 N.E.2d 845 (1990) (where trial court ordered relief in the form of specific performance of agreement to convey property, losing party did not argue that absence of entitlement to money damages precluded award of attorneys' fees under 93A).
Selden and EAS seek to avoid this result by asserting that attorneys' fees are recoverable only if the plaintiff can demonstrate that it has already suffered an actual loss. In support of this proposition, they cite Martha's Vineyard Auto Village, Inc. v. Newman, 30 Mass.App.Ct. 363, 569 N.E.2d 401, rev. denied, 409 Mass. 1105, 571 N.E.2d 28 (1991). That case involved a lengthy dispute between car dealers, one of whom was found to have violated Chapter 93A. The Superior Court awarded attorneys' fees and costsbut no other reliefdespite the absence of any damage to the plaintiff arising out of the 93A violation. The Appeals Court reversed the award because the plaintiff had not shown a causal connection between the violation and any loss it had sustained, explaining that a plaintiff "gets no bounty" for identifying isolated instances of unfair or deceptive conduct. Id. at 369-70, 569 N.E.2d 401; see also Jet Line, 404 Mass. at 718, 537 N.E.2d 107 (unfair or deceptive conduct must have had "some adverse effect" on plaintiff even if not quantifiable in dollars); Alcan Aluminum Corp. v. Carlton Aluminum of New England, Inc., 35 Mass.App.Ct. 161, 174, 617 N.E.2d 1005, rev. denied, 416 Mass. 1105, 621 N.E.2d 685 (1993) (victim of 93A violation unable to quantify its damages nonetheless entitled to attorneys' fees where "there is sufficient evidence in the record to conclude" it suffered an actual loss of money or property); International Totalizing Sys., Inc. v. PepsiCo, Inc., 29 Mass.App.Ct. 424, 436-37 & n. 20, 560 N.E.2d 749, rev. denied, 408 Mass. 1105, 563 N.E.2d 692 (1990) (award of attorneys' fees requires causal connection between unfair or deceptive act and damage suffered by plaintiff). The principle of Jet Line and its progeny, that Chapter 93A does not authorize or reward roving bands of private attorneys general ferreting out 93A violations in the hopes of recovering lucrative attorneys' fees awards,[1] has no application here. Here, the court has found that EPM was the target of a scheme by Selden, EAS, andfollowing its acquisitionAdvanced, and that but for the prompt action of EPM in obtaining injunctive relief, EPM would have suffered loss of money or property. The language of Chapter 93A dictates that EPM recover attorneys' fees as there is no doubt that it was entitled to, and did in fact secure, the "other relief provided for" in the statute. See Jet Line, 404 Mass. at 718, 537 N.E.2d 107; Jillian's, 35 Mass.App.Ct. at 376, 619 N.E.2d 635.
CONCLUSION
In sum, EPM discovered a violation of Chapter 93A, obtained injunctive relief preventing the monetary loss or economic damage which otherwise would have been inflicted *835 upon it, and is thus entitled to recover attorneys' fees. The Court's award of $150,000 therefore must stand, and the motion of EAS and Selden for reconsideration must be, and hereby is, DENIED.
None of the other post-trial motions present any issues of substance. They simply rehash matters raised and resolved at trial. Thus, though the Court has carefully considered each one, they are all DENIED.
NOTES
[1] To be sure, there have been scattered judicial intimations to the contrary. See Raymer v. Bay State Nat'l Bank, 384 Mass. 310, 319, 424 N.E.2d 515 (1981) (although "anomalous" to grant fees with no other form of relief, modest award of attorneys' fees appropriate despite absence of proof of substantial damages where judge finds 93A violation and action was neither frivolous, unreasonable, nor groundless); Shapiro v. Public Serv. Mut. Ins. Co., 19 Mass.App.Ct. 648, 658, 477 N.E.2d 146, rev. denied, 395 Mass. 1102, 1105, 480 N.E.2d 24, 482 N.E.2d 328 (1985) (all that need be shown to support an award of counsel fees is that the defendant committed an unfair or deceptive act, irrespective of whether that act caused a loss of money or property); Peckham v. Continental Casualty Ins. Co., 895 F.2d 830, 841 (1st Cir.1990) (same); Michael C. Gilleran, The Law of Chapter 93A § 11:15 at 392 (1989 & Supp.1994) (stating general rule requiring "injury or adverse effect" to recover attorneys' fees but acknowledging contrary case law). Those cases, however, do not represent the current state of the law, and have been repudiated by more recent authority. See, e.g., Jet Line Servs., Inc. v. American Employers Ins. Co., 404 Mass. 706, 718, 537 N.E.2d 107 (1989) (rejecting any suggestion in Shapiro that plaintiff may recover attorneys' fees absent proof of adverse effect).
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704 S.E.2d 577 (2011)
Jimmie D. JENKINS, Director, Fairfax County Department of Public Works and Environmental Services
v.
Raj MEHRA, et al.
Record No. 092272.
Supreme Court of Virginia.
January 13, 2011.
*579 Laura S. Gori, Assistant County Attorney (David P. Bobzien, County Attorney; R. Scott Wynn, Deputy County Attorney, on briefs), for appellant.
William M. Baskin, Jr. (Baskin, Jackson & Duffett, on brief), Falls Church, for appellees.
Present: All the Justices.
Opinion by Justice CYNTHIA D. KINSER.
This appeal challenges a trial court's judgment refusing to hold a party in contempt after having found that the party failed to abide by the terms of a prior order of the court awarding injunctive relief. We will dismiss the appeal because this Court does not have jurisdiction to hear an appeal from the refusal to find civil contempt.
RELEVANT FACTS AND PROCEEDINGS
The events culminating in this appeal originated in 2005, when the Fairfax County Department of Public Works and Environmental Services (DPWES) issued notices to Raj Mehra and Urvashi Mehra (the Mehras), advising them that certain conditions on their real property located in Fairfax County violated particular provisions of various Fairfax County ordinances.[1] The notices asserted violations in regard to a drainage system on the real property and an impervious area greater than 18 percent of the total area of the Mehras' real property. In the notices, DPWES ordered the Mehras to take corrective actions to bring their real property into compliance with the relevant ordinances.
In September 2007, Jimmie D. Jenkins, the Director of DPWES, filed a complaint in the circuit court, alleging that the Mehras had neither complied with the notices of violation, requested reconsideration of DPWES' decision, nor appealed that decision. Jenkins requested the circuit court to declare that the Mehras' real property was in violation of the relevant Fairfax County ordinances and to issue injunctive relief requiring the Mehras to correct the violations on their real property. The circuit court entered a consent order in September 2008, which declared that the Mehras' real property was in violation of particular ordinances and directed the Mehras to bring their real property into compliance according to a schedule set forth in the consent order.
Because the Mehras did not comply fully with the terms of the consent order, Jenkins filed a motion for a rule to show cause why the Mehras should not be held in contempt for violating the order. The circuit court subsequently issued a rule to show cause, and at a hearing on that rule, the Mehras stipulated that they had not performed certain actions required by the consent order. Urvashi Mehra, however, testified that her husband had lost his job after the entry of the consent order and that a lack of funds prevented the Mehras from completing the work required by the order. The circuit court held that "the terms of the Order of September 12, 2008 have not been met, but that the violation is not willful and therefore not contemptuous." Accordingly, the circuit court dismissed the rule to show cause.
Jenkins filed a motion to reconsider, arguing, inter alia, that civil contempt does not require a finding of willfulness on the part of the offending party. The circuit court denied the motion, again finding that the Mehras' noncompliance "was not in bad faith or willful disobedience" of the September 2008 order.
We awarded Jenkins this appeal, limited to two assignments of error. In those assignments of error, Jenkins asserts that the circuit court erred in dismissing the rule to show cause on the basis that the Mehras did not willfully violate the consent order because civil contempt does not require a finding of willfulness. Assuming arguendo that willfulness is relevant, Jenkins further contends *580 the circuit court erred in refusing to hold the Mehras in contempt because their failure to comply with the consent order was "based on their own financial priorities."
In the order awarding the appeal, this Court, sua sponte, directed the parties to address "whether, under the facts of this case, the appellant [Jenkins] has standing to appeal a judgment of the circuit court declining to hold a party in civil contempt and, if so, whether the jurisdiction for appeal is governed by Code § 19.2-318, requiring transfer of the appeal to the Court of Appeals of Virginia, or by Code § 8.01-670(A)(3) or (B)(3)." Jenkins v. Mehra, Record No. 092272 (March 16, 2010). We will address only the jurisdictional issue because it is dispositive.[2]See Parrish v. Jessee, 250 Va. 514, 520, 464 S.E.2d 141, 145 (1995) ("Jurisdiction is always a threshold issue.").
ANALYSIS
This Court's "jurisdiction is defined by the [C]onstitution of the state and the laws passed in pursuance thereof." Forbes v. State Council, 107 Va. 853, 855, 60 S.E. 81, 81 (1908); see also Va. Const. art. VI, § 1 (subject to certain limitations, the General Assembly has "the power to determine the. . . appellate jurisdiction of the courts of the Commonwealth"). The jurisdictional inquiry that we must undertake is twofold. We must first determine whether Code § 19.2-318 governs this appeal, in which case jurisdiction would lie in the Court of Appeals of Virginia. If we answer that question in the negative, then we must ascertain whether this Court has jurisdiction to hear this appeal pursuant to Code § 8.01-670(A)(3).[3]
We begin our analysis by noting that "[t]he right of appellate review from a finding of contempt or a refusal to find contempt did not exist at all at common law."[4]Tyler v. Baltimore Cnty., 256 Md. 64, 259 A.2d 307, 310 (1969); see Cossart v. State, 14 Ark. 538, 541-42 (1854); Cooper v. People, 13 Colo. 337, 22 P. 790, 795 (1889); Hunter v. State, 6 Ind. 339, 340 (1855); New England Novelty Co. v. Sandberg, 315 Mass. 739, 54 N.E.2d 915, 917 (1944); Masonite Corp. v. International Woodworkers of Am., AFL CIO, 206 So.2d 171, 177 (Miss.1967). Rather, when not otherwise provided by statute, "the sole adjudication of contempt, and the punishment thereof, belong[ed] exclusively, and without interference, to each respective court." Wells v. Commonwealth, 62 Va. (21 Gratt.) 500, 503-04 (1871) (internal quotation marks omitted); see also Van Dyke v. Superior Court of Gila Cnty., 24 Ariz. 508, 211 P. 576, 588 (1922); Ex parte Senior, 37 Fla. 1, 19 So. 652, 653 (1896); Masonite, 206 So.2d at 177. Appellate courts were thus without jurisdiction to review such findings. See, e.g., Onomea Sugar Co. v. Austin, 5 Haw. 604, 606 (1886) (dismissing for want of jurisdiction an appeal of a finding of civil contempt); Hunter, 6 Ind. at 340 ("Courts of record have exclusive control over charges for contempt; and their conviction or acquittal is final and conclusive."); Tyler, 259 A.2d at 311 (dismissing for want of jurisdiction an appeal of a denial of contempt); State v. Little, 175 N.C. 743, 94 S.E. 680, 681-82 (1917) (dismissing for want of jurisdiction an appeal of a finding of criminal contempt); see generally Cooper, 22 P. at 795 (discussing common law rule and statutory exceptions thereto). This general rule applied to trial court rulings with respect to both civil and *581 criminal contempt. See, e.g., Austin, 5 Haw. at 606; Sandberg, 54 N.E.2d at 917.
Under the common law, the lack of appellate review from a finding of contempt or the refusal to find contempt was justified as necessary because
the power of the ... courts over contempt is omnipotent, and its exercise is not to be enquired into by any other tribunal. This is the great bulwark established by the common law for the protection of courts of justice, and for the maintenance of their dignity, authority and efficiency, and neither in England nor in the United States has this unrestricted power been seriously questioned.
Senior, 19 So. at 653 (internal quotation marks omitted). "[T]he power to punish for contempt was so absolutely essential to the functioning and, indeed, the existence of courts that to be effectual the power must be instantly available and inevitable to the point of not being subject to change." Tyler, 259 A.2d at 310. To allow "a contumacious witness, juror, party litigant, or counsel" to challenge a finding of contempt on appeal would "effectually check the machinery of the court in its operation, and frustrate the wholesome administration of the law." Cossart, 14 Ark. at 541.
The General Assembly has declared that in the Commonwealth, "[t]he common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth ... continue[s] in full force [and is] the rule of decision, except as altered by the General Assembly." Code § 1-200; see also Evans v. Evans, 280 Va. 76, 83-84, 695 S.E.2d 173, 176-77 (2010). Thus, because a trial court's ruling regarding contempt was not appealable under the common law, we must determine whether the General Assembly has abrogated the common law rule to provide a right of appeal from contempt proceedings, particularly a trial court's judgment refusing to find civil contempt. In making that determination, this Court must read the enactments of the General Assembly, which "`is presumed to have known and to have had the common law in mind in the enactment of a statute,'" in conjunction with the common law, giving effect to both "`unless it clearly appears from express language or by necessary implication that the purpose of the statute was to change the common law.'" Isbell v. Commercial Inv. Assocs., Inc., 273 Va. 605, 614, 644 S.E.2d 72, 75-76 (2007) (quoting Wicks v. City of Charlottesville, 215 Va. 274, 276, 208 S.E.2d 752, 755 (1974)). Abrogation of the common law thus occurs only when "the legislative intent to do so is plainly manifested," as "there is a presumption that no change was intended." Id. at 613-14, 644 S.E.2d at 75 (citations and internal quotation marks omitted).
But, even where a statute's purpose is to abrogate the common law, such statute is "`to be strictly construed and not to be enlarged in [its] operation by construction beyond [its] express terms.'" Id. at 613, 644 S.E.2d at 75 (quoting Chesapeake & Ohio Ry. Co. v. Kinzer, 206 Va. 175, 181, 142 S.E.2d 514, 518 (1965)). Thus, "`[w]hen an enactment does not encompass the entire subject covered by the common law, it abrogates the common[] law rule only to the extent that its terms are directly and irreconcilably opposed to the rule.'" Id. at 614, 644 S.E.2d at 75 (quoting Boyd v. Commonwealth, 236 Va. 346, 349, 374 S.E.2d 301, 302 (1988)).
Starting with Code § 19.2-318, its provisions, in relevant part, state: "From a judgment for any civil contempt of court an appeal may be taken to the Court of Appeals. A writ of error shall lie from the Court of Appeals to a judgment for criminal contempt of court." The version of this statute in effect prior to the creation of the Court of Appeals in 1984 provided in pertinent part: "To a judgment for any civil or criminal contempt of court a writ of error shall lie from the Supreme Court of Virginia." Code § 19.2-318 (1984).
The first two enactments of what is now Code § 19.2-318 permitted a writ of error "in any judgment, for contempt, rendered by any court other than the court of appeals [now the Supreme Court of Virginia]." 1826 Acts ch. 18; see also 1848 Acts ch. 120 (enacting new Title III, Chapter 24, Section 6 of the Criminal Code, pertaining to contempts). In addition to the 1848 act being part of the *582 Criminal Code, both acts stated that nothing therein "shall be construed to extend to any proceeding by attachment to compel the performance of any decree or judgment, or to enforce obedience thereto," i.e., the kind of civil contempt at issue in this appeal. 1826 Acts ch. 18; 1848 Acts ch. 120. By enacting these provisions, the General Assembly "plainly manifested" an intent to abrogate the common law to allow an appeal from a judgment for criminal contempt. See Isbell, 273 Va. at 613, 644 S.E.2d at 75. In the 1860 Code, the statutory provision allowing a writ of error to a judgment for contempt still excluded a judgment for civil contempt of the type at issue here: "To a judgment against a free person for a contempt of court, other than for the non-performance of, or disobedience to, a judgment, decree, or order, a writ of error shall lie." Code 1860, Ch. 209, § 4, p. 840 (emphasis added).
In 1898, the General Assembly enacted a statute providing that in "any case of contempt[,] any judgment of conviction therefor may be reviewed on [a] writ of error." 1898 Acts ch. 513; Code 1898, ch. 282, § 3768. In Trimble v. Commonwealth, 96 Va. 818, 32 S.E. 786 (1899), this Court applied former Code § 3768 to award a writ of error to a trial court's judgment for contempt in a matter involving custody of a child. Id. at 820, 32 S.E. at 786. Finding that Code § 3768 allowed the appeal, this Court reversed the judgment of the trial court. Id. at 820-21, 32 S.E. at 787. In 1904, however, the General Assembly repealed the portion of former Code § 3768 that allowed, on a writ of error, review of a judgment of conviction in "any case of contempt." 1904 Acts ch. 194. Following that repeal, the 1904 Code provided, in regard to appeals from contempt proceedings: "To a judgment for a contempt of court, other than for the nonperformance of, or disobedience to, a judgment, decree, or order, a writ of error shall lie to the supreme court of appeals." Code § 4053 (1904).
That statute, in particular the language "other than for the non-performance of, or disobedience to, a judgment, decree, or order," was at issue in Forbes. There, the defendants had been adjudged in contempt for "disobeying, disregarding, and evading" a trial court's decree. Forbes, 107 Va. at 854, 60 S.E. at 81. On appeal, this Court dismissed the writ of error for lack of jurisdiction under the plain language of former Code § 4053 of the 1904 Code because the contempt was for disobeying a lawful decree of the trial court. Id. at 857-59, 60 S.E. at 82. The Court explained that "the theory upon which section 4053 rest[ed], in providing that a writ of error shall lie to this [C]ourt to all judgments for contempt other than for the nonperformance of or disobedience to a judgment, decree, or order, seems to be that in such case the parties to the cause should either appeal from the judgment, decree, or order, if they felt aggrieved by it, or, it if was a lawful decree or order, that it should be obeyed." Id. at 858, 60 S.E. at 82.
Less than two months after the decision in Forbes, the General Assembly amended former Code § 4053 to read: "To a judgment for a contempt of court a writ of error shall lie to the supreme court of appeals." 1908 Acts ch. 194. With that amendment coming soon after Forbes, the General Assembly may be understood to have intended, although it did not expressly state, that appeals would lie from judgments for civil contempt. The General Assembly made that explicit in 1979 when the provision was amended to state: "To a judgment for any civil or criminal contempt of court a writ of error shall lie from the Supreme Court of Virginia." 1979 Acts ch. 649. Finally, in 1984, the General Assembly amended the statute to its current form.
As this history makes clear, the provisions of Code § 19.2-318 and its statutory predecessors, including the short-lived § 3768 of Ch. 282 of the 1898 Code, abrogated the common law rule only with regard to judgments for contempt. Thus, the question remaining is whether, in the instant case, the circuit court's judgment refusing to find civil contempt is a "judgment for any civil contempt." Code § 19.2-318.
Jenkins argues that because Code § 19.2-318 encompasses only "a judgment for" contempt (emphasis added) and because the circuit court's judgment did not find civil contempt, the statute does not govern this appeal. Jenkins also asserts that Code *583 § 19.2-319, which allows a court to postpone the execution of a "judgment for any civil or criminal contempt," makes clear that the term "judgment for" does not include a trial court's refusal to hold a party in civil contempt. Jenkins argues that although Code § 19.2-318 does not govern the instant appeal, this Court nevertheless has jurisdiction pursuant to Code § 8.01-670(A)(3).
The Mehras respond that Jenkins' position would result in the "illogical and inconsistent jurisdictional arrangement" of appeals from judgments holding persons in civil contempt lying with the Court of Appeals but appeals from judgments refusing to hold persons in civil contempt resting in this Court. The Mehras contend that an equally faithful interpretation of Code § 19.2-318 is that a trial court's decision refusing to find a party in civil contempt is simply not appealable. However, if an appeal does lie from such a judgment, the Mehras contend that the Court of Appeals has jurisdiction of the appeal pursuant to Code § 19.2-318.
In interpreting the terms used by the General Assembly in Code § 19.2-318, we are bound by the plain meaning of the statutory language. Hicks v. Mellis, 275 Va. 213, 218, 657 S.E.2d 142, 144 (2008). "[I]f the language of a statute is unambiguous, courts may not interpret the language in a way that effectively holds that the General Assembly did not mean what it actually expressed." Id. We agree with Jenkins that Code § 19.2-318 does not govern this appeal. The phrase "judgment for any civil contempt" plainly means a judgment holding an individual in civil contempt of court. If the General Assembly intended to create appellate jurisdiction to review a judgment refusing to hold a person in civil contempt, it would have used a phrase such as "judgment concerning" or "judgment regarding" any civil contempt. Furthermore, the second sentence in Code § 19.2-318 contains the same phrase with regard to a criminal contempt: "A writ of error shall lie from the Court of Appeals to a judgment for criminal contempt of court." (Emphasis added.)
In addition, as noted by Jenkins, Code § 19.2-319 utilizes the same phrase in authorizing a court to postpone execution of a "judgment for any civil or criminal contempt." Obviously, postponement of a judgment refusing to hold a person in civil or criminal contempt is unnecessary. Moreover, the General Assembly has used the phrase "judgment for" in many instances throughout the Code in which the phrase can only mean a judgment awarding a certain type of relief. See, e.g., Code § 8.01-38.1 (if punitive damages award is above statutory cap, trial judge is required to "enter judgment for such damages in the maximum amount provided by this section"); Code § 8.01-446 (requiring circuit court clerks to docket "any judgment for a specific amount of money"); Code § 8.01-460 (stating that a "judgment for support and maintenance" of a spouse or children is a lien on the obligor's real estate). "It is a common canon of statutory construction what when the legislature uses the same term in separate statutes, that term has the same meaning in each unless the General Assembly indicates to the contrary." Commonwealth v. Jackson, 276 Va. 184, 194, 661 S.E.2d 810, 814 (2008).
Thus, we conclude that Code § 19.2-318 does not provide appellate jurisdiction for either this Court or the Court of Appeals to review the judgment of the circuit court dismissing the rule to show cause and refusing to hold the Mehras in civil contempt of court. Finding no abrogation of the common law rule in the current or former versions of Code § 19.2-318 that would give the Court jurisdiction of this appeal, we turn now to Code § 8.01-670(A)(3), which, according to Jenkins, allows the instant appeal to this Court.
In its current form, Code § 8.01-670(A)(3) provides that "any person may present a petition for an appeal to the Supreme Court of Virginia if he believes himself aggrieved ... [b]y a final judgment in any ... civil case." The origins of that statute can be traced to the Revised Code of 1803, which gave this Court jurisdiction over "writs of error ... to and from any final decree or judgment of the High Court of Chancery, General Court, and District Courts." 1 Rev.Code 1803, ch. 63, § 14, p. 62. That provision gradually became more *584 specific, as the General Assembly limited its application to civil cases. For example, in 1830, the General Assembly provided an appeal for any person "aggrieved ... by any judgment, proceeding or order" of the circuit superior courts of law and chancery "in any matter, cause or controversy, at common law, such matter, cause or controversy, being civil and not criminal in its nature, and such judgment, proceeding or order, being final." 1831 Acts ch. 11. In the 1860 Code, the provisions dealing with civil appeals were codified in separate titles from those governing criminal appeals. See Code 1860, Tit. 51, ch. 182 (civil cases) and Tit. 55, ch. 209 (criminal cases). The pertinent statute, at that time, allowed an appeal or writ of error "to any civil case wherein there is a final judgment, decree or order." Code 1860, ch. 182 § 2. The current version of Code § 8.01-670(A)(3) has been in existence since 1977. 1977 Acts ch. 617.
Considering, as we must, that the General Assembly "had the common law in mind" when it first gave this Court appellate jurisdiction to review final judgments in civil cases, we conclude that the current and former versions of Code § 8.01-670(A)(3) never abrogated the common law rule with respect to an appeal from a trial court's judgment refusing to hold an individual in civil contempt. First, it does not "clearly appear[] from express language or by necessary implication that the purpose of [Code § 8.01-670(A)(3)] was to change the common law." Isbell, 273 Va. at 614, 644 S.E.2d at 75-76 (internal quotation marks omitted). Merely stating that a party may appeal from "any" final judgment in a civil case does not "plainly manifest[]," see id. at 613, 644 S.E.2d at 75, an intent to eliminate the "great bulwark established by the common law" providing that judgments in contempt proceedings were unassailable. Senior, 19 So. at 653 (internal quotation marks omitted).[5] Furthermore, any suggestion that the word "any" can be construed as an express abrogation of the common law to allow an appeal from a refusal to find civil contempt is refuted by the history of Code § 19.2-318.
As we have explained, Code § 19.2-318, at its inception, permitted a writ of error only to a judgment for criminal contempt and expressly excluded "any proceeding by attachment to compel the performance of any decree or judgment, or to enforce obedience thereto." 1826 Acts ch. 18. Prior to this enactment, however, Code § 8.01-670's predecessor was already in existence and allowed a writ of error "to and from any final decree or judgment." 1 Rev.Code 1803, ch. 63, § 14, p. 62. If the General Assembly intended for that language in the Code of 1803 to abrogate the common law rule so as to allow an appeal from a judgment in a civil contempt proceeding, whether from a judgment for contempt or the opposite, the subsequent enactment of the 1826 version of Code § 19.2-318 rendered the two statutes in conflict, the former allowing an appeal from a judgment in a civil contempt proceeding and the latter excluding such. Moreover, since the 1826 version of Code § 19.2-318 was enacted, the former and current versions of Code §§ 8.01-670(A)(3) and 19.2-318 have continued to co-exist and would be in conflict today if we construe Code § 8.01-670(A)(3) to allow an appeal to this Court from a judgment refusing to find civil contempt.Code § 19.2-318, being the more specific statute because it explicitly addresses contempt, see Viking Enter. v. County of Chesterfield, 277 Va. 104, 110, 670 S.E.2d 741, 744 (2009), allows an appeal only from a "judgment for" civil contempt.
Further, if we interpret Code § 8.01-670(A)(3) to give this Court jurisdiction of the instant appeal, there would exist the anomaly of jurisdiction lying in the Court of Appeals from a judgment holding an individual in civil contempt but jurisdiction lying in this Court from a judgment refusing to find an individual in civil contempt. We do not believe the General Assembly intended such an anomaly. Thus, we conclude that the General Assembly has abrogated the common law rule that appellate review of contempt proceedings is not available only with regard to judgments "for" contempt. Consequently, the Court does not have jurisdiction *585 under Code § 8.01-670(A)(3) to hear this appeal.
CONCLUSION
In sum, we conclude that it does not "clearly appear[] from express language or by necessary implication that the purpose of [Code § 8.01-670(A)(3)] was to change the common law" with respect to appeals from judgments refusing to find civil contempt. See Isbell, 273 Va. at 614, 644 S.E.2d at 75-76 (internal quotation marks omitted). The General Assembly has yet to abrogate the common law rule to confer jurisdiction over the appeal in this case.[6] While the former and current versions of Code § 19.2-318 abrogated the common law so as to allow appeals from judgments for civil contempt, this case does not involve an appeal from such a judgment.[7]
For these reasons, we hold that the Court is without jurisdiction to hear this appeal. We will therefore dismiss the appeal.
Dismissed.
NOTES
[1] The specific Fairfax County ordinances at issue were the Chesapeake Bay Preservation Ordinance, Fairfax County Code § 118-3-2(f), and the Erosion and Sediment Control Ordinance, Fairfax County Code § 104-1-2, in addition to Fairfax County Public Facilities Manual § 6-0202.4.
[2] Subsequent to the parties' filing their respective briefs in this Court, the Mehras moved to dismiss the appeal on the basis that the matter is now moot because they have taken the required actions to comply with the consent order. In response, Jenkins did not specifically dispute the Mehras' assertions but, instead, asserted several reasons why the motion should be denied. Because the jurisdictional issue is dispositive, we will not decide the motion to dismiss.
[3] The provisions of Code § 8.01-670(B)(3) are not applicable because the order being challenged in this appeal is not interlocutory. See Comcast of Chesterfield Cnty., Inc. v. Board of Supervisors of Chesterfield Cnty., 277 Va. 293, 306, 672 S.E.2d 870, 876 (2009).
[4] In fact, the common law tolerated no exception to a court's contempt powers, rejecting even collateral attacks on judicial findings of contempt. See Ex parte Kearney, 20 U.S. 38, 43-45, 7 Wheat. 38, 5 L.Ed. 391 (1822) (joining the English Court of Common Pleas in rejecting an application for a writ of habeas corpus on the ground that "no Court can discharge . . . a person that is in execution by the judgment of any other Court" for contempt (internal quotation marks omitted)).
[5] For an example of the kind of "plain[] manifest[ation]" that suffices to abrogate the common law, see Doss v. Jamco, Inc., 254 Va. 362, 368-72, 492 S.E.2d 441, 445-47 (1997).
[6] We are aware that appeals have been taken, though not to this Court, when a party challenged a trial court's refusal to hold the other party in civil contempt. See, e.g., Barnhill v. Brooks, 15 Va.App. 696, 704, 427 S.E.2d 209, 214-15 (1993); Wells v. Wells, 12 Va.App. 31, 36, 401 S.E.2d 891, 894 (1991); Willis v. Spinner, Record No. 1004-99-2, slip op. at *5, 1999 WL 1133685 (Oct. 19, 1999). It appears, however, that the issue of appellate jurisdiction was not raised in those cases.
[7] In this case, Jenkins asked the circuit court to enforce its own order through the use of the court's inherent contempt power. See Wells, 62 Va. (21 Gratt.) at 503. There are certain statutes, however, that address the power of contempt in specific situations. See, e.g., Code § 2.2-2635 ("Any person failing to comply with [a subpoena duces tecum] shall be subject to punishment for contempt by the court issuing the subpoena."); Code § 3.2-4726 ("All parties disobeying the orders or subpoenas of the Commissioner [of Agriculture and Consumer Affairs] are guilty of contempt and shall be certified to an appropriate court for punishment."); Code § 8.01-407(A) ("Failure to respond to [a summons to testify] shall be punishable by the court in which the proceeding is pending as for contempt."); Code § 16.1-252(J) ("Violation of any [preliminary removal] order [in cases of child abuse or neglect] issued pursuant to this section shall constitute contempt of court."); Code § 26-13 (Fiduciary refusing to file inventory after prior order "shall be deemed guilty of contempt of court, and be dealt with accordingly."). This appeal does not present, and today we do not address, whether a court's decision declining to exercise its contempt power pursuant to such provisions is reviewable on appeal.
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267 So.2d 438 (1972)
John H. TUCKER et al.
v.
TRUSSVILLE CONVALESCENT HOME, INC., a corporation et al.
6 Div. 911.
Supreme Court of Alabama.
September 28, 1972.
Rehearing Denied October 26, 1972.
*439 Hutson & Elrod, Decatur, for appellants.
G. W. Nicholson, Birmingham, for appellees Arthur Deason, Bryson F. Hill, trussville Nursing Home, Inc., a Corp., Mid-South Associates.
Finis E. St. John, III, Cullman, for appellees Cecil Walker, Ralph Walker, and their partnerships.
PER CURIAM.
This appeal is from a decree of the Circuit Court of Jefferson County, in Equity, *440 dated December 22, 1970, dismissing appellants' bill of complaint after it had been amended some five times by appellants. In fact, after the aforementioned order of dismissal, there was an application for rehearing, which was also amended by appellants. This rehearing application, as amended, was denied on April 16, 1971, and, after several extensions of time for filing the transcript were granted, this appeal from the final decree was submitted to this Court on May 3, 1972.
It would serve no useful purpose to set out in detail the numerous pleadings in this case, but since the case was dismissed on such pleadings, we will refer to them for a better comprehension of the issues involved.
First, the original bill of complaint was filed by John H. Tucker, one of the appellants herein, on April 7, 1970, seeking to establish a mechanic's lien under Tit. 33, § 37 et seq., Code of Alabama 1940. Exhibit "A" which is attached to and made a part of the original bill of complaint is the statement of claim of "LABORERS' OR MATERIALMEN'S LIEN." This exhibit shows on its face two important things, i. e., it was signed by John H. Tucker on October 7, 1969, and states the lien is claimed to secure an indebtedness of $100,000.00, with interest, from the date of completion of a nursing home being now under construction on the property described therein, and, on the same day and in the same instrument, this "lien" was assigned to Hundred Oaks, Inc., by the following language:
"I, John H. Tucker, the person claiming the lien in the foregoing statement of lien, and being the owner of said lien, do hereby transfer and assign all of my right, title and interest in and to said lien and to the amount due under said lien from the said Trussville Convalescent Homes, Inc., and C. D. Walker to Hundred Oaks, Inc., a nonprofit corporation, organized and existing under the laws of the State of Alabama, P. O. Box 352, Decatur, Alabama, and hereby authorize and direct that all amounts due to me under said lien be paid to the said Hundred Oaks, Inc., a corporation."
The statement and assignment was filed in the Office of the Judge of Probate Court of Jefferson County, Alabama, on October 8, 1969, or one day after the signatures were affixed thereto.
Demurrers as filed by the numerous respondents, some sixteen, are listed in the original bill of complaint, were sustained by the trial court on June 9, 1970, with complainant given thirty days in which to amend.
The first amendment by complainant, and appellant herein, was filed on July 9, 1970. This amendment adds Hundred Oaks, Inc. as a party complainant, and states, "said corporation sues for the use and benefit of JOHN H. TUCKER * * *." And, although paragraph four of the original bill of complaint hints at a "joint venture" between John H. Tucker and the Walker Brothers, hereinafter referred to as simply Walkers, this first amendment in great detail sets out this alleged "joint venture." Among other changes, this amendment changed the names of and added additional respondents, one of which was City Federal Savings and Loan Association of Birmingham. In addition, it also amends the prayer for relief by seeking an accounting under the direction of the Court.
Demurrers were filed by the various respondents, and pleas to the bill of complaint, as amended, were filed by the Walkers on August 6, 1970. Said pleas, being three in number, state that John H. Tucker was not at the time of making the contract as alleged in the bill of complaint a licensed contractor under Tit. 46, §§ 65-82, Code 1940, and, therefore, the contract is void and contrary to public policy, and, two, that the alleged lien shows on its face that it was assigned to Hundred Oaks, Inc., and Hundred Oaks, Inc. was not made a party to the suit until more than *441 six months had elapsed from the maturity of the entire indebtedness allegedly secured thereby. Plea III is substantially the same as Plea II.
Prior to September 11, 1970, the day set by the trial court to hear and consider the demurrers to the bill of complaint, as amended, a second amendment to the bill of complaint was filed by complainants on August 31, 1970. This amendment attempts to correct certain allegations in the various paragraphs of the bill of complaint.
The respondents again filed demurrers, and City Federal Savings and Loan Association, one of the respondents, filed a motion to strike on September 11, 1970, and assigned the following four grounds in support thereof:
"1. That the original Bill of Complaint heretofore filed in this cause contained thirteen (13) pages of averments and allegations.
"2. That that Bill of Complaint was amended on July 9, 1970, by the filing of an amendment containing twenty-nine (29) pages, such amendment placing the Bill of Complaint in a state of utter confusion and rendering it vage (sic), indefinite, uncertain and unintelligible.
"3. That on September 10, 1970, Complainant filed a second amendment again revising the Bill and placing its allegations in even further state of confusion resulting in those allegations being even more vague, indefinite and uncertain.
"4. Respondent, as a result of the two amendments to the Bill, is unable to ascertain from the Bill and those amendments with clearness and certainty the nature of the case it is called upon to defend and until and unless the Complainants are required to restate and refile this Bill, Respondent will be unable to demurrer (sic) to that Bill as twice amended."
Again, prior to hearing the demurrers of the various respondents, and the motion to strike filed by the respondent City Federal Savings and Loan Association, as hereinabove set out, the complainants filed a motion and application for leave to file a recast bill of complaint on September 28, 1970, which was granted by the trial court on September 29, 1970. The restated bill of complaint, which covers twenty transcript pages, alleges in great detail prior transactions and another separate and distinct contract between Tucker and the Walkers, which is not a subject matter of this suit, in an apparent attempt to bolster the "joint venture" theory.
Demurrers were refiled by the respondents in open court on September 29, 1970. Also, on the same day the trial court issued the following order:
"This cause was presented to this Court on this date for oral argument and rulings on all outstanding demurrers, pleas and motions.
"Accordingly, It is CONSIDERED, ORDERED, ADJUDGED and DECREED as follows:
"1. The Complainant's motion and application for leave to file a Recast Bill of Complaint is granted.
"2. Respondents' demurrers and pleas are reassigned to the recent bill.
"3. All Respondents' demurrers are overruled.
"4. Pleas II and III filed by C. D. Walker, Cecil Walker and Ralph Walker, Cecil Walker and Ralph Walker, partners, doing business under the style and firm name of Walker Brothers; Walker Brothers, a Partnership composed of Cecil Walker and Ralph Walker; and Walker Brothers Building Supply Company, a corporation, are found to be sufficient defenses to the allegations of the Bill of Complaint as recast claiming a lien on the property described therein.
*442 "5. The facts alleged in said pleas are stipulated by the parties to be true.
"6. The lien recorded by John H. Tucker on October 8, 1969, at Real Volume 563 at Page 389 in the office of the Probate Judge of Jefferson County, Alabama, on the property described in the Bill of Complaint, as recast, should be and hereby is cancelled and held for naught and a copy of this Order shall be recorded with that Judge of Probate as notice thereof.
"7. The lien claimed by Complainants on the property involved as a joint venture with Walker Brothers is disallowed.
"8. The Respondent, City Federal Savings and Loan Association is dismissed as a Party Respondent.
"Complainants are hereby given thirty (30) days to amend their Bill of Complaint."
After an appropriate and timely motion was filed by complainants, which was supported by an affidavit by the solicitor for complainants, and in essence states that he did not stipulate that Walkers' pleas were true, the trial court set the matter down to be heard on November 9, 1970, at which time testimony was taken down by a court reporter, which was within the trial court's discretion under Tit. 13, § 262, Code 1940. However, as is pointed out in appellants' brief, in this hearing the matters recorded were "colloquies of court and counsel." Colloquies of court and counsel or not, it was the basis of the trial court's order of November 9, 1970, which held as follows:
"Accordingly, it is CONSIDERED, ORDERED, ADJUDGED AND DECREED as follows:
"ONE: That the `Order' of the Court issued on September 29, 1970 should be, and it hereby is, stricken and held for naught.
"TWO: In lieu of the aforementioned `Order' the Court does now rule as follows and, accordingly, it is further CONSIDERED, ORDERED, ADJUDGED AND DECREED as follows:
"1. The Complainant's motion and application for leave to file a recast Bill of Complaint heretofore granted is hereby reaffirmed and the said recast Bill of Complaint as filed is accepted.
"2. Respondents' demurrers and pleas are reassigned to the recast Bill.
"3. All Respondents' demurrers are overruled.
"4. Pleas II and III filed by C. D. Walker, Cecil Walker and Ralph Walker, Cecil Walker and Ralph Walker, partners, doing business under the style and firm name of Walker Brothers; Walker Brothers, a Partnership composed of Cecil Walker and Ralph Walker; and Walker Brothers Building Supply Company, a corporation, are found to be sufficient defenses to the allegations of the Bill of Complaint as recast claiming a lien on the property described therein, if proven.
"5. Respondents are hereby given ten (10) days in which to file responsive pleadings to the recast Bill of Complaint.
"6. This cause is set for oral hearing on the merits on Tuesday, December 8, 1970 at 9:00 a. m."
The hearing on December 8, 1970 was again recorded and is a part of the record herein. It is not contended by appellants in their brief that this hearing resulted in only "colloquies of court and counsel" for it is admitted that a stipulation was made in open court that neither of the complainants, nor the Walkers were licensed general contractors. The trial judge in open court announced that he was denying the motion to dismiss as filed by the respondent, City Federal Savings & Loan Association, but added that:
"Respondent, City Federal Savings & Loan Association, is found not to be a necessary and proper party in this case. The cost of its inclusion and activities in *443 this case will be taxed to whoever the general cost is taxed against. The Court will make a determination of what the attorney's fees are and what the incidental costs amount to, which may relieve your minds of something, Mr. Wirwahn, and it may trouble your mind to some extent, Mr. Elrod, but in Equity and good conscience I think it ought to be done."
And the trial judge included this announcement concerning this item of cost in his order dated December 8, 1970. However, the record is devoid of any order of the trial court on this point. The last and final amendment was due to the untimely death of one of the individual respondents and the matter was continued from December 8, 1970 to December 22, 1970. There was no recorded testimony or argument on the pleadings as presented to the Court on December 22, 1970. The decree from which this appeal is taken states:
"This cause came on to be heard upon the separate and several demurrers of the separate and several demurring Respondents, after previous hearings upon various phases of the pleadings in this cause. The said demurrers are addressed to the re-cast Bill of Complaint as last amended. The Court finds, among other defects in the said re-cast Bill of Complaint the following fatal defects:
"1. The said re-cast bill as last amended is multifarious.
"2. The said re-cast bill as last amended is filed by building contractors who are, admittedly, not licensed to do business, and, hence, by virtue of the laws and statutes of the State of Alabama, not proper parties Complainant in the type of action expressed in the said pleading.
"The Court finds the said demurrers to be well taken. Accordingly, it is CONSIDERED, ORDERED, ADJUDGED AND DECREED as follows:
"ONE: The separate and several demurrers of the separate and several demurring Respondents are, separately and severally, sustained.
"TWO: The cause is dismissed, without prejudice to Complainants to bring proper actions based upon some, or all of the facts set forth in the amended recast Bill of Complaint, on the Law-side of this Court.
"THREE: The lien or notice of lien filed in the office of the Probate Judge of Jefferson County, Alabama by Complainants against one or more Respondents in this cause (the said property being fully described in the pleadings) should be, and it hereby is declared invalid and set aside and held for naught and said property is absolved from any lien arising from the recordation of the said lien or notice of lien in the office of the Probate Judge of Jefferson County, Alabama.
"FOUR: The costs of this action are taxed to Complainants, for which let execution issue.
"DONE and ORDERED this the 22nd day of December, 1970.
Wm. C. Barber
CIRCUIT JUDGE IN
EQUITY SITTING
Filed in Open Court this 22nd day of Dec., 1970"
The issues presented by the appellants' assignments of error are:
I. Whether the trial court erred in finding that the lien or notice of lien as filed in the office of the Probate Judge of Jefferson County, Alabama, was invalid and set aside and held for naught. (Assignments 1, 2, 3, 4)
II. Whether the trial court erred in finding that the bill of complaint, as amended, was multifarious. (Assignment 5)
*444 III. Whether the trial court erred in finding that the complainants were not proper parties as expressed in the pleadings, since they are not licensed contractors. (Assignments 6, 7, 8)
IV. Whether the trial court erred in sustaining the demurrers of the various respondents. (Assignments 9, 10, 11, 12)
V. Whether the trial court erred in dismissing the bill of complaint without allowing the complainants to amend further. (Assignments 13, 14)
Assignments of error 15 and 16 are not argued in appellants' brief. They are deemed waived. Supreme Court Rule 9.
After a careful consideration of the assignments of error, we are of the opinion the trial court committed no error in its ruling on the pleadings in the decree of December 22, 1970, except as to granting of affirmative relief when the matter was submitted on demurrers, as will appear hereinafter.
The first issue concerns the question of whether or not the lien was properly perfected. Clearly it was not. A materialman's or mechanic's lien is not perfected until every requirement of the statute creating the lien has been complied with, and the enforcement of a mechanic's lien depends on the compliance with the technical requirements of the statute. Tit. 33, § 37 et seq., Code 1940. Two glaring defects in this respect disclosed by the bill are that proper notices were not given, and the suit was not timely filed in the name of the real party in interest. Mazel v. Bain, 272 Ala. 640, 133 So.2d 44; Lily Flagg Building Supply Co. v. J. M. Medlin & Co., 285 Ala. 402, 232 So.2d 643. Also, failure to allege in the bill that the materials furnished were actually used for the improvements on the land renders the complaint demurrable, but although this may be corrected by amendment, it was not. Wade v. Glencoe Lumber Co., 267 Ala. 530, 103 So. 2d 730; Nelson Weaver Mortgage Co. v. Dover Elevator Co., 283 Ala. 324, 216 So. 2d 716.
The lien was filed by Tucker on October 8, 1969, although he assigned all right, title and interest in same the day before. On July 9, 1970, by amendment to the original bill, the complainant Tucker attempted to cure the obvious mistake. A mechanic's lien may be amended to renew a defective or insufficient statement of claim during the six months allowed by statute, but an amendment after the time for filing the claim of lien has run is not effective, and, thus, is barred by the limitation contained in Tit. 33, § 42, Code 1940. King v. Woodlawn Lumber Co., 201 Ala. 539, 78 So. 893; Guaranty Pest Control, Inc. v. Commercial Investment and Development Corporation, 288 Ala. 604, 264 So. 2d 163.
Also, it should be noted that the right to amend the bill is not absolute, and where the amendment makes a new case, or radically departs from the cause of action stated in the bill, or works an entire change of parties, it is not allowable. Title 7, Equity Rule 28, Code 1940. Benton v. Benton, 214 Ala. 321, 107 So. 827. In amending the original bill to add Hundred Oaks, Inc. as the "use" complainant, appellants cite Southern Railway Company v. Northwestern Fruit Exchange, 210 Ala. 519, 98 So. 382, as authority for same. This case is clearly distinguishable because the original party complainant remained as the real party in interest, whereas, here, there was a complete assignment of such interest.
It was stipulated that neither Tucker nor Hundred Oaks, Inc. were licensed contractors within the meaning of Tit. 46, §§ 65-82, Code 1940. We have held that a contract for the construction of a building worth more than $20,000.00, by an unlicensed contractor, and an implied contract to pay for materials and services furnished by such contractor is contrary to public policy and void, and the contractor cannot recover for his services. Cooper v. Johnston, *445 283 Ala. 565, 219 So.2d 392. However, although the record states the stipulation was related to pleas and demurrers of the respondents, the decree of the trial court clearly states it was submitted only upon the demurrers of respondents. Appellants contend that the trial court erred in declaring invalid and setting aside the lien or notice of lien which was filed in the office of the Probate Judge of Jefferson County, Alabama. We agree.
It is our judgment the trial court erred in this respect, for to grant this affirmative relief is not within the scope of the pleadings. Sturdivant v. Sturdivant, 276 Ala. 390, 162 So.2d 484.
Appellants contend and allege that Tucker and the Walkers were coadventurers. Assuming appellants are correct, the bill is still fatally defective in not alleging that the Walker respondents were financially irresponsible. If the coadventurer is financially responsible, then it becomes merely an action of accounting between the parties, Pfingstl v. Solomon, 240 Ala. 58, 197 So. 12. To warrant bringing in third parties in the action for accounting, the complainant must allege that the coadventurer is financially irresponsible. Saunders v. McDonough, 218 Ala. 207, 118 So. 389.
It is contended by appellants that the trial judge erred in sustaining the respondents' demurrers. In view of the defects in the bill of complaint as already mentioned herein, this contention is untenable. The bill of complaint is indefinite, uncertain and confusing. Also, on a careful consideration of the bill, we cannot say the trial court erred in decreeing it to be multifarious. Title 7, Equity Rule 15, Code 1940. Blue Hills Land Company v. Lee, 273 Ala. 295, 139 So.2d 608; McClintock v. McEachin, 246 Ala. 412, 20 So. 2d 711.
It is also contended by appellants that in dismissing the bill of complaint without allowing them to amend further, the Walkers were granted relief for which they had not prayed. Further, appellants argue that the trial court could have granted the complainants declaratory relief. It is questionable whether this bill of complaint could have been amended to state a cause of action for equitable relief, but in any event it was not an abuse of discretion for the trial judge to dismiss this bill after the many amendments thereto. It is true that ordinarily a declaration of rights will not be dismissed on demurrer, but if a bill does not in any respect show an equitable right, it is not error to dismiss it ex mero motu, without provisions for amendment. Caudle v. Cotton, 234 Ala. 126, 173 So. 847, and cases cited.
In its decree, the trial court dismissed the bill, but "without prejudice to Complainants to bring proper actions based upon some, or all of the facts set forth in the amended re-cast Bill of Complaint, on the Law-side of this Court." It is doubtful under the facts as alleged in the pleadings herein, if the complainants can maintain an action at law, but we pretermit consideration on this point, for this question is not presently before us.
For the reason stated herein, the trial court did not err in sustaining the demurrers to the bill of complaint, as amended.
Let this cause be affirmed in part, reversed and remanded in part with directions to the trial court to reframe its final decree by deleting paragraph "THREE" thereof.
The foregoing opinion was prepared by Ferrill D. McRae, Circuit Judge, specially assigned to the Supreme Court by order of the Chief Justice, and was adopted by this Court as its opinion.
Affirmed in part, reversed and remanded in part with directions.
HEFLIN, C. J., and MERRILL, HARWOOD, BLOODWORTH and MADDOX, JJ., concur.
SOMERVILLE, J., recuses himself.
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679 F.2d 32
30 Fair Empl.Prac.Cas. 84, 29 Empl. Prac.Dec. P 32,844,4 Ed. Law Rep. 703
Hurie JONES, Plaintiff-Appellant,v.ORLEANS PARISH SCHOOL BOARD, Defendant-Appellee.
No. 81-3204.
United States Court of Appeals,Fifth Circuit.
June 21, 1982.
Hurie Jones, pro se.
Franklin V. Endom, Jr., Charles T. Curtis, Jr., New Orleans, La., for defendant-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before GARZA, POLITZ and WILLIAMS, Circuit Judges.
JERRE S. WILLIAMS, Circuit Judge:
1
Hurie Jones, a black male, was employed as a school teacher by the Orleans Parish School Board in 1966. He was granted tenure in 1969. At his request, he was given a leave of absence without pay from August, 1972, until January, 1974. He returned to teaching until June, 1974, when he requested another leave of absence. The School Board granted Jones' request for leave to expire on May 30, 1975. During this time, Jones was attending law school.
2
When he left the school system on leave in June, 1974, Jones was told that he had to notify the School Board by June 1, 1975 of whether or not he intended to return to teaching for the 1975-76 school year. On May 30, 1975, Jones wrote to the School Board by certified mail expressing his "irrevocable intention" to return to teaching for the 1975-76 term. On June 4, 1975, the School Board wrote to Jones saying that in order to be reinstated he had to complete and return an enclosed form and then bring in person a medical certificate to the Division of Personnel so that he could be interviewed regarding his return.
3
Jones completed and returned the form on June 9, 1975. The form provided a space for the applicant's name, his former school, address, and subject(s) taught. Because the space for the address immediately followed the space for the name of his former school, Jones gave the address of Green Middle School where he had last taught. On the bottom of the form he checked the box in front of the statement "I will return on 8/25/75."
4
On June 11, 1975, Jones visited his doctor and procured the requisite certificate. He testified that he took the certificate to the Division of Personnel sometime thereafter; however, the School Board had no record of receiving the certificate. On August 24, 1975, Jones again wrote to the School Board by certified mail stating that he was scheduled to return to teaching and was awaiting an assignment. He testified that when he did not receive an assignment, he called the Board several times but was unable to get any response. Jones returned to law school that fall and graduated in May, 1976. There was no further communication between Jones and the Board until the following February.
5
On February 2, 1976, Assistant Superintendent of Personnel, Alfred Hebeisen, wrote to Jones to inform him that he was absent without authority and therefore subject to termination. Mr. Hebeisen acknowledged receipt of Jones' June 9, 1975, letter containing the completed form and instructed Jones to supply an explanation for his absence. If an explanation was not tendered, the letter continued, Hebeisen would recommend Jones' termination to the Board. This letter was sent to 2319 Valence Street, the address of Green Middle School. This was, of course, the address supplied by Jones on the Board's form. The letter was returned to the Board by the Post Office, but the exact date of its return is unknown. Sometime thereafter, someone in Mr. Hebeisen's office attempted to contact Jones by telephone but was unable to do so. On the bottom of the returned letter of February 2 is a handwritten note which reads "Abandoned position-Efforts to contact were unsuccessful."
6
On February 18, 1976 Mr. Hebeisen again wrote to Jones. In this letter he informed Jones that his position at Green Middle School was terminated because he had abandoned it. This letter also was sent to the Green Middle School address. Whether the first letter had been returned by the time the second was mailed is not reflected in the record. This second letter was also returned sometime thereafter.
7
On March 8, 1976, the School Board approved Mr. Hebeisen's recommendation that Jones be terminated. The following day, Hebeisen wrote to Jones to inform him of this action. This letter was sent to Jones' correct address-the address at which he had been living since before his leave of absence. Hebeisen testified that he found this address in Jones' personnel file.
8
On March 15, 1976, Jones filed a complaint with the Equal Employment Opportunity Commission pursuant to 42 U.S.C. § 2000e-5(e) alleging that he had been discharged unlawfully on the basis of his race. He received a right-to-sue letter on May 17, 1977. On August 19, 1977, he filed the present lawsuit alleging violations of Title VII, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, 42 U.S.C. § 1983, and 42 U.S.C. § 1985. The case was tried before a magistrate who made findings and recommendations. The magistrate found that Jones' § 1981 and § 19831 claims were barred by the one year statute of limitations contained in La.Civ.Code art. 3536. With respect to the Title VII claim, the magistrate found that Jones had been terminated because he had abandoned his position and that this happened routinely to white as well as black teachers. The magistrate concluded that there was no racial discrimination involved in Jones' termination, and he recommended that judgment be entered in favor of the Board on the Title VII claim. The district court accepted this recommendation and entered judgment accordingly.
9
In this appeal, Jones contends: (1) the court erred in applying a one year, rather than a three year, statute of limitations to the § 1981 and § 1983 claims; (2) the School Board denied him due process by terminating him without first giving him notice and an opportunity to be heard; (3) the court erred in holding that he failed to prove racial discrimination under Title VII; and (4) the School Board violated various state laws in the termination procedure.
10
I. Statute of Limitations Under §§ 1981 and 1983
11
Because Congress did not establish a limitations period for §§ 1981 and 1983 actions, federal courts apply the state law of limitations governing analogous causes of action. Braden v. Texas A&M University System, 636 F.2d 90, 92 (5th Cir. 1981). To accomplish this, the court must characterize the claim as it would be characterized under state law and then determine the state limitations period which would apply to that type of claim. Shaw v. McCorkle, 537 F.2d 1289, 1292 (5th Cir. 1976).
12
In this case, Jones presented two different claims under the two statutes. He alleged first, that he was discriminated against on the basis of his race in violation of both §§ 1981 and 1983, and second, that he was denied his right to due process in violation of § 1983. We characterize each of these claims separately and then look to Louisiana law to determine the applicable limitations period. Whatley v. Department of Education, 673 F.2d 873, 878 (5th Cir. 1982).
13
In Page v. U. S. Industries, Inc., 556 F.2d 346, 351-52 (5th Cir. 1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 890, 54 L.Ed.2d 796 (1978), we held that a § 1981 claim of racial discrimination in employment was best characterized under Louisiana law as a tort and should be governed by La.Civ.Code art. 3536's2 one year limitations period which applies to "offenses and quasi-offenses." Because the right to be free from racial discrimination is independent of any contractual right an employee may have, we held inapplicable the three year period provided by La.Civ.Code art. 35383, which governs actions arising out of certain employment contractual relationships. Accord Shelley v. Bayou Metals, 561 F.2d 1209 (5th Cir. 1977). This same reasoning applies to a racial discrimination claim brought under § 1983.4 Cf. Whatley, supra at 878 (because the "essential nature" of the claim determines the applicable limitations period, the same period applies to substantially identical racial discrimination claims whether brought under § 1981 or § 1983-applying Georgia law) and Braden, 636 F.2d at 92 (applying Texas law). Therefore, the court was correct in holding that Jones' claim of racial discrimination under §§ 1981 and 1983 was time-barred.5
14
Jones' § 1983 claim alleging due process violations should not have been dismissed as time-barred, however. In Pegues v. Morehouse Parish School Board, 632 F.2d 1279 (5th Cir. 1980), cert. denied, 451 U.S. 987, 101 S.Ct. 2322, 68 L.Ed.2d 844 (1981), we held that La.Civ.Code art. 3536's one year limitations period applied to a claim by a black coach who alleged that he had been demoted on the basis of his race. We concluded, however, that if he had been tenured and had sued for the violation of his rights as a tenured teacher, the three year limitations period of La.Civ.Code art. 3538 would have been applicable. Jones' right to due process arises out of his status as a tenured teacher, and therefore art. 3538 controls. Because Jones filed this suit less than three years after he was terminated, his due process claim is not time-barred.
II. Due Process
15
Jones argues that his right to due process, which is secured by the Fourteenth Amendment to the United States Constitution, was violated because the Board did not give him notice and an opportunity to be heard before he was terminated. The Board contends that Jones "abandoned" his teaching position and therefore was not entitled to notice and hearing. In the alternative, the Board argues that it fulfilled its obligations under the due process clause.
16
A public employee may claim procedural due process rights upon termination if he has a property interest in continued employment. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). Property interests are not created by the due process clause; rather, they stem from independent sources such as state law. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). In order to receive constitutional protection of a property interest, one must have a "claim of entitlement" to the interest. Id. Once it is determined that a public employee has a protected interest in continued employment, the Constitution requires that he be given notice and an opportunity to be heard prior to termination. Gosney v. Sonora Independent School District, 603 F.2d 522, 525 (5th Cir. 1979). Because Jones was a tenured teacher, it is clear that he had a protected interest in continued employment. See La.Rev.Stat. § 17:462. Therefore Jones was entitled to be heard by the Board before he was discharged if there were any issues which raised the need for a hearing.
17
The Board's first defense to the due process claim is that Jones "abandoned" his position by failing to comply with the reinstatement requirements and that therefore he was not entitled to notice or a hearing. In support of this contention the Board cites a Louisiana Supreme Court decision which held that the failure of a tenured teacher to return a signed contract by a specified date constituted a voluntary termination of employment and a waiver of the teacher's right to notice and a hearing under Louisiana's Teacher Tenure Law. State ex rel. Cody v. Caldwell Parish School Board, 215 La. 645, 41 So.2d 461 (1949).
18
Obviously, a state has the right to provide for the termination of teachers and other public employees who abandon their positions. But in the case of tenured employees, the process of discharging employees for "abandonment" must comport with due process requirements. For example, the state may not by simply labeling some action or lack of action "abandonment" create a right to discharge a public employee as a subterfuge to defeat tenure requirements. Whether Louisiana can by law require automatic discharge of a tenured teacher who after adequate notice admittedly fails to return a signed contract by a specified date we need not here decide. But if there is any factual issue about whether the teacher did fail to meet the requirements, the teacher is entitled to notice and hearing with respect to such issue. If there is an issue as to the facts and their application to the statute, the automatic waiver of notice and hearing provided in the Louisiana Teacher Tenure Law could not be applied without running afoul of Fourteenth Amendment due process requirements. The question before us is whether the constitutional rights of Jones under the due process clause of the Fourteenth Amendment were respected by the School Board in its actions which led to his discharge for "abandoning" his teaching position.6 The Board cannot under the contested facts of this case rely upon an automatic right to discharge without any obligations on the Board to take actions by way of communication with Jones and giving him the opportunity to be heard on disputed issues.
19
The Board did take actions before it discharged Jones; the question is whether they were adequate to comply with requisite due process. The Board contends that it fulfilled its obligations to the best of its ability by twice attempting to notify Jones of the pending action so that he would have an opportunity to be heard. The Board argues that it was Jones' fault that the address he gave was incorrect. Mr. Hebeisen's personnel office did all it could, the Board contends, to notify Jones. The mistake in the address was not realized until after both the letters had been returned, and it was as a last resort that the Board wrote to Jones at what it thought was an out-dated address. The Board argues that it took reasonable measures to contact Jones and should not be held liable because of its lack of success in doing so.
20
Jones contends that the Board did know or should have known that the letters of February 2 and 18 would never reach him because the address to which they were sent was one of the Parish schools. The Board ought to know the addresses of its own schools. Further, the Board had a complete personnel file on Jones which contained his correct address, yet when Mr. Hebeisen's office attempted to contact him prior to termination, that address was not located. However, when it came time to notify Jones of final termination, the correct address suddenly appeared. Jones contends that these facts prove that the Board did not do all it should have done to notify him of the pending action so that he could defend against it.
21
Although this evidence was presented to the district court, its conclusion that the § 1983 action was time-barred precluded resolution of the due process claim. Many of the facts bearing upon the claim were brought out at trial because they related to the Title VII race claim. The court made no factual findings or legal conclusions concerning the alleged due process violations, however. When summarizing the sequence of events leading to Jones' termination, the court merely noted the conflicting evidence and did not attempt to resolve the conflicts since that evidence was not crucial to the resolution of the Title VII claim. So we are faced with a situation where most of the relevant facts were brought out at trial, but the district court did not evaluate these facts. Nevertheless, "(f)act-finding is the basic responsibility of district courts rather than appellate courts, and ... the Court of Appeals should not (resolve) in the first instance (a) factual dispute which (has) not been considered by the District Court." Pullman-Standard v. Swint, --- U.S. ----, ----, 102 S.Ct. 1781, 1791, 72 L.Ed.2d 66 (1982). Therefore, we must remand this issue to the district court so that it may consider the evidence already adduced, as well as any additional evidence which is relevant to the issue, to determine whether Jones' right to due process was violated.
III. The Title VII Claim
22
Jones argues that the district court erred in concluding that he failed to prove a claim of racial discrimination under Title VII.7 Having reviewed the record, we conclude that the court was correct in finding that Jones "offered no evidence whatsoever which in any way remotely infers that he was discharged because of his race." The evidence showed that the Board discharged Jones because it believed that he had abandoned his job. Whether the Board was wrong in believing that Jones had abandoned his job is irrelevant to the Title VII claim as long as the belief, rather than racial animus, was the basis of the discharge. DeAnda v. St. Joseph Hospital, 671 F.2d 850, 854 n.6. (5th Cir. 1982).
23
Next, Jones argues that the court erred in refusing to admit evidence of a custom or policy of discrimination on the part of the Board as well as evidence that he was discharged in retaliation for filing a complaint with the Board against a school principal in 1971. The court permitted Jones to pursue a line of questioning concerning a custom or practice of discrimination until it became clear that the witness from whom he was attempting to elicit this evidence was unable to answer his questions. Then, the court directed Jones to move on to another subject. As to the evidence of retaliation, when Jones attempted to introduce the 1971 complaint, the court ruled that events which occurred that long ago were irrelevant. Jones did not object to this ruling nor did he explain the relevance of this evidence to the court. We find no error in these evidentiary rulings. The court was correct in concluding that Jones did not prove his Title VII claim.
IV. State Law Claims
24
Finally, Jones alleges various state law claims including breach of contract and violation of the Louisiana Teacher Tenure Laws. These claims were not pleaded in Jones' complaint nor were they mentioned in the pre-trial order. When Jones attempted to present evidence on these claims at trial, the Board objected on the grounds that the claims were not pleaded and that the pendent jurisdiction of the federal court had not been invoked. Because the state law claims were not properly presented in the court below, these issues are not before us on appeal. Daly v. Sprague, 675 F.2d 716 at 722 (5th Cir. 1982).
V. Conclusion
25
We hold that the court below was correct in concluding that Jones' claims of racial discrimination under §§ 1981 and 1983 were time-barred by the one year limitations period of La.Civ.Code art. 3536. We find that the court erred in concluding that the § 1983 due process claim was time-barred. We remand the case to the district court for consideration on the merits of the due process claim. We affirm the court's judgment against Jones on the Title VII claim since the record contains no evidence showing that Jones was terminated on account of his race. The state law claims posed by Jones are not properly before us on this appeal.
26
AFFIRMED in part, REVERSED in part, and REMANDED.
1
Neither the magistrate's findings nor the court's judgment mentions the § 1985 claim. In his original complaint, Jones alleged § 1985 as a jurisdictional basis of his suit; however, he did not allege supporting facts. It was not until his supplemental memorandum in support of his motion for summary judgment that Jones elaborated on the § 1985 claim. There, he argued that his termination was the culmination of a conspiracy which began in 1971 when he filed a complaint with the School Board alleging discrimination on the part of a school principal. The School Board never responded to this claim, and the court never ruled on it
2
La.Civ.Code art. 3536 provides:
The following actions are prescribed by one year:
That for injurious words, whether verbal or written, and that for damages caused by animals, or resulting from offenses or quasi-offenses.
3
La.Civ.Code art. 3538 provides:
The following actions are prescribed by three years:
That for the salaries of overseers, clerks, secretaries, and of teachers of the sciences who give lessons by the year or quarter.
4
Although the district court never ruled on the § 1985 claim, we find that the claim was barred by art. 3536's one year statute of limitations because Louisiana characterizes civil conspiracies as "offenses or quasi-offenses." See La.Civ.Code art. 2315; Ingram v. Freeman, 326 So.2d 565, 570 (La.App.1976), writ denied, 329 So.2d 755 (La.1976)
5
We also note that Jones did not pursue the racial claims under §§ 1981 and 1983 at oral argument. Further, even it these claims had not been time-barred, res judicata or collateral estoppel may have prevented consideration of the racial issues because the court below made findings of fact as to whether Jones was discharged on the basis of his race with respect to the Title VII claim. See Barker v. Norman, 651 F.2d 1107, 1130 (5th Cir. 1981)
6
The Board cannot argue that Jones' alleged abandonment was the equivalent of a voluntary resignation so that the Board never actually terminated him. The Board instituted actions to have Jones terminated and his alleged abandonment was merely asserted as a ground for termination. Furthermore, the Board conceded that it terminated Jones by raising as a defense to the Title VII claim its contention that Jones was discharged for abandonment
7
There is no statute of limitations issue under the Title VII claim of racial discrimination. Suit was filed three months after receipt of the right to sue letter from the EEOC
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J-A04033-15
2015 PA Super 85
MARGARET J. GALLO, INDIVIDUALLY : IN THE SUPERIOR COURT OF
AND AS ADMINISTRATRIX DBN CTA : PENNSYLVANIA
OF THE ESTATE OF JOSEPH J. GALLO, :
SR., :
:
v. :
:
CONEMAUGH HEALTH SYSTEM, INC., :
CONEMAUGH VALLEY MEMORIAL :
HOSPITAL, CONEMAUGH VALLEY :
MEMORIAL HOSPITAL, D/B/A :
MEMORIAL MEDICAL CENTER, :
CONEMAUGH HEALTH INITIATIVES, :
INC., CONEMAUGH HEALTH :
INITIATIVES, INC., D/B/A/ :
CONEMAUGH PHYSICIAN GROUP, :
LAUREL GROUP ANESTHESIA, P.C., :
ASHOK PADHIAR, M.D., RANDY :
JOHNSON, CRNA, CONEMAUGH :
HEALTH INITIATIVES, INC., D/B/A/ :
CONEMAUGH VALLEY SURGEONS, :
RUSSELL DUMIRE, M.D., AND HANNA :
KIM, D.O. :
:
APPEAL OF: ASHOK PADHIAR, M.D : No. 1101 WDA 2014
Appeal from the Order Entered June 16, 2014
in the Court of Common Pleas of Cambria County
Civil Division at No(s): No. 2011-02862
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
OPINION BY STRASSBURGER, J.: FILED APRIL 17, 2015
Ashok Padhiar, M.D. (Dr. Padhiar) appeals from the order entered June
16, 2014, which granted the motion to compel discovery filed by Appellee
Margaret J. Gallo (Gallo). After review, we reverse and remand for further
proceedings consistent with this opinion.
* Retired Senior Judge assigned to the Superior Court
J-A04033-15
The trial court aptly summarized the relevant factual and procedural
history of this case as follows.
On December 27, 2009, at 2:00 p.m., Joseph J. Gallo (“Mr.
Gallo”) entered Conemaugh Valley Memorial Hospital’s
Emergency Room. Mr. Gallo complained of an odorous,
blackened “second toe on his right foot” that was discharging
pus. Paul Rollins M.D. (“Dr. Rollins”) was treating Mr. Gallo for
gangrene on the same toe and had scheduled previously a
January 2, 2010 amputation of it. Mr. Gallo, however, admitted
himself to the Emergency Room to see if an earlier amputation
was possible. Because of the unexpected Emergency Room visit,
Dr. Rollins was unavailable and Russell Dumire, M.D. (“Dr.
Dumire”) assumed care. After Dr. Dumire examined Mr. Gallo,
he agreed to perform the more immediate amputation the next
day – December 28, 2009.
[Dr. Padhiar] performed the “pre-surgical anesthesia
consult evaluation.” [Dr. Padhiar’s] performing the evaluation is
notable because he had an alcohol addiction. He was arrested at
least eight times for driving under the influence (“DUI”) in
Illinois, Michigan, Ohio, and Pennsylvania, including once in
November 2009 – one month before Mr. Gallo’s unexpected
surgery. Because of this addiction and its subsequent
consequences, at least one state revoked his medical license. At
the time, though, Pennsylvania had not.
In light of [Dr. Padhiar’s] alcohol history and despite Mr.
Gallo being 81 years old and having a history of both
“cardiovascular and pulmonary medical conditions,” [Dr.
Padhiar] never “conduct[ed] a physical examination,” a cardiac
evaluation, a pulmonary assessment, a chest x-ray, or an
electrocardiogram test in his pre-surgical evaluation.
Furthermore, despite “Mr. Gallo’s pre-induction vital signs
show[ing] that he was hypotensive[] with a blood pressure of
78/34” no action was taken by either [Dr. Padhiar] or any of the
hospital’s medical staff “to raise [Mr.] Gallo’s blood pressure.”
On the contrary, [Dr. Padhiar] and the medical staff proceeded
as normal by administering general anesthesia. Accordingly, on
December 28, 2009, Dr. Dumire performed the toe amputation
with [Dr. Padhiar] assisting as the anesthesiologist.
-2-
J-A04033-15
“Some time during or immediately after the [amputation,
Mr.] Gallo suffered a cardiac arrest.” The medical staff initiated
CPR, gave [Mr.] Gallo epinephrine and atropine, and transferred
him “to the Intensive Care Unit.” For three months, [Mr.] Gallo
remained in the Intensive Care Unit unresponsive until he died
on March 12, 2010. A “neurological evaluation revealed that Mr.
Gallo suffered from anoxic encephalopathy[, brain damage due
to lack of oxygen].
On October 5, 2011, [Gallo] filed a Complaint both
individually and as Administratrix of Mr. Gallo’s Estate [] against
[the above-captioned defendants]. The counts against these …
defendants consisted of both Wrongful Death and Survival
Actions. Of particular note here are the allegations against [Dr.
Padhiar]. In sum, Gallo argues alcohol impaired [Dr. Padhiar] at
the time of Mr. Gallo’s surgery and therefore [Dr. Padhiar’s]
actions and omissions ultimately caused Mr. Gallo “to suffer a
cardiac arrest” that “result[ed] in his death.”
On December 23, 2013, Gallo filed a Motion to Compel [Dr.
Padhiar] to provide [Gallo] with more specific responses to
[Gallo’s] discovery requests. Two weeks later, on January 7,
2014, the [trial c]ourt granted Gallo’s requests. On January 30,
2014, [Dr. Padhiar] filed a Motion for Reconsideration. Shortly
after that, on February 6, 2014, the [trial c]ourt vacated its
January 7th Order and scheduled a February 12th Hearing to
address the privilege issues. The Hearing occurred as scheduled
and the [trial c]ourt requested both parties submit briefs.
On February 26, 2014, [Dr. Padhiar] submitted his Brief-
in-Opposition; and, on March 10, 2014, Gallo submitted hers. In
Gallo’s brief she narrowed the “drug and alcohol treatment
records” to the records [Dr. Padhiar]:
1. Revealed to the Pennsylvania medical license
board to obtain his Pennsylvania license;
2. Released to Conemaugh in 2006 to obtain
employment and credentials there;
3. Disclosed to the Pennsylvania medical license
board to “maintain his [Pennsylvania] medical
license;” and
4. Divulged to the Cambria County Court of Common
Pleas to lessen his criminal sentence for his 2010
DUI arrest and conviction.
-3-
J-A04033-15
Trial Court Opinion (T.C.O), 6/18/2014, at 1-4 (citations omitted).
By order dated June 13, 2014, the trial court granted Gallo’s motion to
compel, determining that Dr. Padhiar had effectively waived any privilege by
including in his answer to Gallo’s complaint specific denials to Gallo’s
allegation that he was impaired by alcohol at the time of Mr. Gallo’s surgery.
The trial court further determined that the “good cause” requirement for
disclosure under both the Pennsylvania and federal statutes was satisfied.
Dr. Padhiar timely filed a notice of appeal and, in response to the trial
court’s order, a statement of errors complained of on appeal.1 On appeal,
Dr. Padhiar claims that privileges created by both federal regulations and
state law preclude disclosure of the confidential communications contained in
his alcohol treatment records.2
____________________________________________
1
The trial court’s order granting Gallo’s motion to compel is a collateral
order under Pa.R.A.P. 313, and is thus immediately appealable. See Rhodes
v. USAA Casualty Ins. Co., 21 A.3d 1253, 1258 (Pa. Super. 2011)
(“Generally, discovery orders involving purportedly privileged material are
appealable because if immediate appellate review is not granted, the
disclosure of documents cannot be undone and subsequent appellate review
would be rendered moot.”); Gormley v. Edgar, 995 A.2d 1197 (Pa. Super.
2010) (determining that a discovery order involving allegedly privileged
mental health information is appealable collateral order to pursuant to
Pa.R.A.P. 313).
2
In her brief, Gallo suggests that the federal regulation is inapplicable
because Appellant is not a government employee. Gallo’s Brief at 13 n. 1.
We are unpersuaded by the authority Gallo cites in support of her argument.
The treatment records at issue herein are held by programs receiving federal
funding. Thus, as the trial court noted, the records fall under the scope of
the federal regulations dealing with disclosure and privilege. See Trial Court
(Footnote Continued Next Page)
-4-
J-A04033-15
We address Dr. Padhiar’s claims mindful of the following. “Generally, in
reviewing the propriety of a discovery order, our standard of review is
whether the trial court committed an abuse of discretion. However, to the
extent that we are faced with questions of law, our scope of review is
plenary.” Gormley v. Edgar, 995 A.2d 1197, 1202 (Pa. Super. 2010). It is
well-settled that “[t]he right to claim a privilege is a personal one belonging
to the individual protected by the statutory privilege.” See Commonwealth
ex rel. Romanowicz v. Romanowicz, 248 A.2d 238 (Pa. Super. 1968).
However, “statutorily-created privileges are not absolute. The privilege
conferred must be balanced against countervailing interests in insuring the
fairness and integrity of the judicial system. The state’s ‘compelling interest’
in insuring that the truth is revealed in the course of the adversarial process
justifies an implied waiver of privilege.” O’Boyle v. Jensen, 150 F.R.D. 519,
522 (M.D. Pa. 1993) (citations omitted).
Dr. Padhiar first contends that the trial court erred in determining that
the specific denials of allegations that Dr. Padhiar was intoxicated at the
time of Mr. Gallo’s surgery, contained in Dr. Padhiar’s answer to Gallo’s
complaint, constituted offers of testimony for the purposes of the federal
_______________________
(Footnote Continued)
Opinion, 6/16/2014, at 5; 42 C.F.R. § 2.3 (“Under the statutory provisions
quoted in §§ 2.1 and 2.2, these regulations impose restrictions upon the
disclosure and use of alcohol and drug abuse patient records which are
maintained in connection with the performance of any federally assisted
alcohol and drug abuse program.”).
-5-
J-A04033-15
regulations governing confidentiality of alcohol and drug abuse patient
records. Dr. Padhiar’s Brief at 14-16.
Section 527 of the Public Health Service Act, 42 U.S.C.
§ 290ee-3, with certain exceptions not relevant to this
proceeding, provides that:
[r]ecords of the identity, diagnosis, prognosis, or
treatment of any patient which are maintained in
connection with the performance of any drug abuse
prevention function conducted, regulated, or directly
or indirectly assisted by any department or agency of
the United States shall ... be confidential and be
disclosed only for the purposes and under the
circumstances expressly authorized under subsection
(b) of this section.
Subsection (b), in turn, authorizes the disclosure of otherwise
confidential records-regardless of whether the patient has given
prior written consent - “[i]f authorized by an appropriate order of
a court of competent jurisdiction granted after application
showing good cause therefor.” 42 U.S.C. § 290ee-3(b)(2)(C).
Local 738, Int’l Bhd. of Teamsters v. Certified Grocers Midwest, Inc.,
737 F. Supp. 1030, 1032-33 (N.D. Ill. 1990). “In order to implement these
congressional goals and pursuant to 42 U.S.C. § 290ee-3(g)’s mandate, the
Secretary of Health and Human Services … enacted regulations which
provide the procedures and criteria” to obtain a court order authorizing
disclosure of confidential communications made by a patient in the course of
diagnosis, treatment, or referral for treatment. Id. at 1033. Those
regulations provide, in pertinent part, as follows.
(a) A court order under these regulations may authorize
disclosure of confidential communications made by a patient to a
program in the course of diagnosis, treatment, or referral for
treatment only if:
-6-
J-A04033-15
***
(3) The disclosure is in connection with litigation or
an administrative proceeding in which the patient
offers testimony or other evidence pertaining to the
content of the confidential communications.
42 C.F.R. § 2.63(a)(3).
With respect to disclosure,
Congress has determined … that the public interest in
encourag[ing] the understandably hesitant to come to drug
abuse treatment centers in the first place and thereafter to
continue to avail themselves of these services usually outweighs
a private litigant’s interest in obtaining probative and material
evidence - at least until the patient himself has opened the door
to disclosure of the confidential records. The door must be
opened, moreover, within the context of the litigation or
administrative proceeding itself - prior waiver or consent does
not suffice. And finally, a court cannot compel the disclosure of
otherwise privileged records unless and until the patient has
waived his privilege by means of offering testimony or other
evidence pertaining to their contents.
Local 738, 737 F. Supp. at 1034 (citations and quotations omitted).
If the confidential communications meet the criteria for disclosure
under section 2.63, Section 2.64 provides that an order for disclosure may
issue under the following circumstances.
(a) Application. An order authorizing the disclosure of patient
records for purposes other than criminal investigation or
prosecution may be applied for by any person having a legally
recognized interest in the disclosure which is sought. The
application may be filed separately or as part of a pending civil
action in which it appears that the patient records are needed to
provide evidence. An application must use a fictitious name,
such as John Doe, to refer to any patient and may not contain or
otherwise disclose any patient identifying information unless the
patient is the applicant or has given a written consent (meeting
the requirements of these regulations) to disclosure or the court
-7-
J-A04033-15
has ordered the record of the proceeding sealed from public
scrutiny.
***
(d) Criteria for entry of order. An order under this section may
be entered only if the court determines that good cause exists.
To make this determination the court must find that:
(1) Other ways of obtaining the information are not
available or would not be effective; and
(2) The public interest and need for the disclosure
outweigh the potential injury to the patient, the
physician-patient relationship and the treatment
services.
42 C.F.R. § 2.64 (a), (d) (emphasis added).
“Therefore, if the information sought contains ‘confidential
communications,’ plaintiff must satisfy both the ‘good cause’ requirements
of [section 2.64(d)] and the requirements of [section 2.63(a)(3)].” Fannon
v. Johnston, 88 F. Supp. 2d 753, 758 (E.D. Mich. 2000) (emphasis added).
Instantly, the trial court concluded that Dr. Padhiar made an offer of
testimony, as contemplated by the federal regulations, in his Answer to
Gallo’s complaint. The court explained as follows.
[I]n his response to Complaint Paragraph 24, [Dr. Padhiar]
specifically denied “suffering [from] any condition that in any
way affected his ability to provide reasonable and appropriate
medical treatment to” Mr. Gallo. That Answer alone is sufficient
for an “offering” to have been made because [Dr. Padhiar] has
now given Gallo an opportunity to require disclosure of his
confidential medical records so “a more complete picture” may
be obtained. But [Dr. Padhiar] did not stop there. In response to
Complaint Paragraph 26, [Dr. Padhiar] denied being impaired at
the time of surgery. Once more, [Dr. Padhiar] opened the door
for a more thorough examination of the subject matter.
-8-
J-A04033-15
Accordingly, once the door has been opened, it cannot be closed.
Thus, the [c]ourt holds an “offering” has been made.
T.C.O., 6/16/2014, at 8-9.
However, it is clear from our sister courts’ interpretation of this
provision that the offer of testimony contemplated by the regulations is
testimony under oath in the traditional sense. See, e.g., Fannon, 88
F.Supp.2d at 762-65 (analogizing the offer of testimony contemplated by
regulation subsection 2.63(a)(3) to the offer of testimony required by
Federal Rule of Evidence 404(a)(1)).
As the trial court notes in its Opinion, depositions have yet to take
place in the instant case. T.C.O., 6/16/2014, at 8. Thus, Dr. Padhiar has not
had the opportunity to offer testimony. Additionally, “[a]n answer shall state
the material facts which constitute the defense to the petition.” Pa.R.C.P.
206.2(a). Pursuant to Pa.R.C.P. 1019, which governs the content of
pleadings, Pennsylvania utilizes a fact-pleading scheme, in which parties
“must not only [provide] notice of ... the ... claim ... and the grounds upon
which it rests, but ... also formulate the issues by summarizing those facts
essential to support the claim.” Gates v. Gates, 967 A.2d 1024, 1030-31
(Pa. Super. 2009) (citations and quotations omitted). Thus, we cannot
agree with the trial court that Dr. Padhiar’s adherence to the relevant
procedural rules constitutes an offering as contemplated by Section
2.63(a)(3).
-9-
J-A04033-15
As Dr. Padhiar did not commence this litigation, we find this situation
distinguishable from those cases that conclude a plaintiff has waived
privilege by placing confidential communications at issue in a complaint. See
Octave ex rel. Octave v. Walker, 103 A.3d 1255, 1263 (Pa. 2014)
(“[Plaintiffs] knew or reasonably should have known James’s mental health
would be placed directly at issue by filing the lawsuit.”); O’Boyle v. Jensen,
150 F.R.D. 519, 522 (M.D. Pa. 1993).
Moreover, as noted above “courts addressing the issue have
determined that the mere fact that someone has filed a lawsuit and has put
certain facts [at] issue does not constitute the requisite offering of testimony
or evidence under 42 C.F.R. § 2.63(a)(3).” Local 738, 737 F. Supp. at
1033-34, (quoting Whyte v. Connecticut Mutual Life Ins. Co., 818 F.2d
1005, 1010 and n. 18 (1st Cir.1987)).
Finally, to the extent that Gallo alleges that Dr. Padhiar waived any
privilege by disclosing the contents of his treatment records to Conemaugh
Health System, the Pennsylvania medical license board, or the Cambria
County Court of Common Pleas, we reiterate that Section 2.63(a)(3) is
litigation-specific. Local 738, supra. Thus, those prior disclosures have no
effect on the privilege asserted by Dr. Padhiar in the instant case.
As we have determined that Dr. Padhiar has not offered testimony
with respect to the confidential communications at issue, we hold that the
trial court erred in determining that Dr. Padhiar “opened the door” to any
- 10 -
J-A04033-15
disclosure under section 2.63(a)(3). Accordingly, because Gallo has failed to
establish that the information sought meets the requirement for disclosure
under section 2.63(a)(3), we need not consider whether good cause exists
to compel disclosure under section 2.64(d). See Fannon, 88 F. Supp. 2d at
758.
Finally, Dr. Padhiar claims that the trial court erred in determining that
the records should be disclosed under the “good cause” exception contained
in subsection (b) of the Pennsylvania Drug and Alcohol Abuse Control Act
(the Act). 71 P.S. § 1690.108(b). Dr. Padhiar’s Brief at 9-14.
“Statutory interpretation ‘is a question of law and, as such, our
standard of review is de novo and our scope of review is plenary.’” J.C.B. v.
Pennsylvania State Police, 35 A.3d 792, 794 (Pa. Super. 2012).
The basic tenet of statutory construction requires a court to
construe the words of the statute according to their plain
meaning. When the words of a statute are clear and free from all
ambiguity, the letter of it is not to be disregarded under the
pretext of pursuing its spirit. 1 Pa.C.S.[] § 1921(b).
Generally speaking, the best indication of legislative intent is the
plain language of a statute…. Under [1 Pa.C.S.] Section 1921(c),
it is only when the words of a statute are not explicit that a court
may resort to other considerations, such as the statute’s
perceived “purpose,” in order to ascertain legislative intent.
Consistently with the Act, this Court has repeatedly recognized
that rules of construction, such as consideration of a statute’s
perceived “object” or “purpose,” are to be resorted to only when
there is an ambiguity. Finally, we note the maxim of statutory
interpretation that the expression of one thing in a statute
implies the exclusion of others not expressed. Similarly, the
court may not supply omissions in the statute when it appears
that the matter may have been intentionally omitted.
- 11 -
J-A04033-15
Commonwealth v. Finley, 860 A.2d 132, 140 (Pa. Super. 2004) (some
internal citations, footnotes, and quotation marks omitted).
Instantly, the trial court determined that a reading of subsection (b)
and (c) of the Act imputes into subsection (c) a good faith exception to
disclosure. T.C.O., 6/16/2014, at 10-11. We disagree.
In O’Boyle v. Jensen, the United States District Court for the Middle
District of Pennsylvania interpreted the relevant provisions of the Act, stating
Pennsylvania law places additional restrictions on the release of
alcohol/drug abuse treatment records. The Pennsylvania
confidentiality statute tracks federal law to the extent the patient
records sought were “prepared or obtained” pursuant to the [the
Act], providing for the release of such records upon a showing of
“good cause”. [71 P.S. § 1690.108(b)]. Section 1690.108(b)
provides, in relevant part:
All patient records ... prepared or obtained pursuant
to [the Act] shall remain confidential, and may be
disclosed only with the patient’s consent ...
Disclosure may be made for purposes unrelated to ...
treatment or benefits only upon an order of a court
of common pleas after application showing good
cause therefor. In determining whether there is good
cause for disclosure, the court shall weigh the need
for the information sought to be disclosed against
the possible harm of disclosure to the person to
whom such information pertains, the physician-
patient relationship, and to the treatment services,
and may condition disclosure of the information upon
any appropriate safeguards....
Id.
However, unlike the federal statute, the Pennsylvania statute
provides that if the records sought are in the possession of a
“private practitioner, hospital, clinic, drug rehabilitation or drug
treatment center” as they are in this case, such records:
- 12 -
J-A04033-15
shall remain confidential and may be disclosed only
with the patient’s consent and only (i) to medical
personnel exclusively for purposes of diagnosis and
treatment of the patient or (ii) to government or
other officials exclusively for the purpose of
obtaining benefits due the patient as a result of his
drug or alcohol abuse or drug or alcohol dependence
except that in emergency medical situations where
the patient’s life is in immediate jeopardy, patient
records may be released without the patient’s
consent to proper medical authorities solely for the
purpose of providing medical treatment to the
patient.
71 P.S. § 1690.108(c). There is no provision in this section
comparable to that found in the federal statute and in
Pennsylvania section 1690.108(b) providing for the
release of the treatment records by court order upon a
showing of good cause.
O’Boyle, 150 F.R.D. at 521-22 (emphasis added).3
While we are not bound by the determinations of the federal court, we
find persuasive its interpretation of the Act. Accordingly, as in O’Boyle,
subsection (c), related to disclosure of documents held by private facilities,
controls. As noted above, the plain language of subsection (c) does not
include a good cause provision. Accordingly, we hold that the trial court
erred in determining that the good cause exception of subsection (b) applies
____________________________________________
3
Notwithstanding its holding that subsection (c) of the Act was applicable,
the O’Boyle Court determined that the plaintiff in that case had waived any
privilege by filing the 1983 action at issue. 150 F.R.D. at 522. (“Despite the
absence of such a provision, we find that the records which defendants seek
are discoverable because the privilege conferred by section 1690.108(c) has
been waived. Plaintiff waived the privilege by filing this action to recover for
O’Boyle’s death.”) Such is not the case here.
- 13 -
J-A04033-15
to subsection (c). Thus, we conclude that the records sought by Gallo are
protected by the Act, without exception, subject to disclosure by Dr. Padhiar.
Thus, for all of the foregoing reasons, we hold that the documents
sought by Gallo are protected by federal and statutory privilege; therefore,
the trial court erred in granting Gallo’s motion to compel. Accordingly, we
reverse the trial court’s order.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/17/2015
- 14 -
| {
"pile_set_name": "FreeLaw"
} |
381 F.3d 391
Erika FLORES, Plaintiff-Appellee,v.CITY OF PALACIOS, et al., Defendants,Wilbert Kalina, also known as Billy Kalina, Defendant-Appellant.
No. 03-40863.
United States Court of Appeals, Fifth Circuit.
August 10, 2004.
Appeal from the United States District Court for the Southern District of Texas. COPYRIGHT MATERIAL OMITTED Bobby Dewayne Brown (argued), Law Offices of Bobby D. Brown, Victoria, TX, for Plaintiff-Appellee.
William S. Helfand (argued), Norman R. Giles, Chamberlain, Hrdlicka, White, Williams & Martin, Houston, TX, for Defendant-Appellant.
Before KING, Chief Judge, and BENAVIDES and CLEMENT, Circuit Judges.
BENAVIDES, Circuit Judge:
1
Officer Wilbert Kalina appeals the district court's denial of his motion for summary judgment. On the evening of July 16, 2002, Kalina sought to detain Erika Flores because she was parked on the wrong side of the road and because, when he shined a spotlight on her car, several people fled from the vicinity. Flores did not respond to Kalina's repeated commands that she stop and instead drove away. Kalina shot her car to prevent her escape. When Flores stopped, Kalina arrested her for evading detention.
2
Flores sued Kalina and the City of Palacios pursuant to 42 U.S.C. § 1983. She claimed Kalina subjected her to an excessive use of force, unlawful arrest, and malicious prosecution in violation of the Fourth Amendment. Flores also claimed that Kalina's conduct violated the Fourteenth Amendment by depriving her of her good name, reputation, and personal property without due process of law.
3
The district court found there were genuine issues of material fact as to each of the Fourth Amendment claims and therefore denied Kalina's motion for summary judgment on those claims. Flores v. City of Palacios, 270 F.Supp.2d 865, 872-73 (S.D.Tex.2003). The district court dismissed the Fourteenth Amendment substantive due process claims because it found those claims were properly brought under the Fourth Amendment. Id. at 873. Kalina timely appealed the partial denial of summary judgment on the Fourth Amendment claims.
4
We hold that the district court properly denied summary judgment on the excessive force claim. The district court erred, however, in denying summary judgment on the unlawful arrest and malicious prosecution claims. We therefore affirm in part, and reverse and render in part.
I. JURISDICTION AND STANDARD OF REVIEW
5
The denial of a motion for summary judgment based on qualified immunity is immediately appealable under the collateral order doctrine "to the extent that it turns on an issue of law." Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Under the doctrine of qualified immunity, government officials performing discretionary functions are shielded from civil liability "insofar as 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).
6
When a defendant appeals a denial of summary judgment based on qualified immunity, we "have interlocutory jurisdiction to determine whether [the plaintiff's] summary judgment facts state a claim under clearly established law." Nerren v. Livingston Police Dep't, 86 F.3d 469, 472 (5th Cir.1996).
7
We review de novo the scope of clearly established law and the objective reasonableness of the defendant government official's actions. Thompson v. Upshur County, Tex., 245 F.3d 447, 456 (5th Cir.2001). Because our jurisdiction is limited to a review of questions of law, we "consider only whether the district court erred in assessing the legal significance of the conduct that the district court deemed sufficiently supported for purposes of summary judgment." Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir.2004) (en banc). We may review the district court's conclusion that issues of fact are material, but not the conclusion that those issues of fact are genuine. Reyes v. City of Richmond, Tex., 287 F.3d 346, 350-51 (5th Cir.2002).
II. FACTS ON APPEAL
8
When a district court fails to set out the factual disputes it deems genuine, "we may be required to review the record in order to determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed."1 Kinney, 367 F.3d at 348 (internal quotation marks omitted).
9
In this case, the district court generally identified the relevant factual disputes, but the parties identified further factual disputes. We therefore accept without review those facts identified by the district court and determine which other facts the district court likely assumed. Id. at 348 n. 12. We begin by identifying those facts we must accept for purposes of this appeal. We consider first the undisputed facts, next the facts alleged by Flores, and last the facts alleged by Kalina.
10
The district court laid out the following undisputed facts: Kalina's shot entered Flores's bumper just above the tailpipe and continued through the bumper and the muffler. The bullet ultimately became lodged in the back of the muffler. Flores suffered no immediate physical injury when her car was shot, though her car was damaged. Flores, who was sixteen years old at the time, violated an 11:00 p.m. weeknight curfew for minors. Later investigation revealed alcohol in the area surrounding where she had parked her car, though there is no evidence to suggest that she had been drinking. Kalina charged Flores with evading detention in a motor vehicle, but the charge was later dismissed.
11
We assume that the district court most likely accepted all of the facts alleged by Flores as sufficiently supported for summary judgment purposes. Flores's factual allegations, which we assume the district court accepted, are as follows: On the evening of July 16, 2002, she visited her cousin and some friends at her aunt's house. At approximately 11:00 p.m., she got into her car, which was parked on the edge of her aunt's property just next to the driveway. She noticed a police car drive past her, but she did not see any officers exit the car or hear an officer say anything. As she pulled away from the house and onto the road, she heard a loud bang and felt something hit her car. She immediately stopped and got out of the car to investigate the noise. Kalina ran up to her and exclaimed, "I almost killed you!" He then forced her to the ground, handcuffed her, and told her she was under arrest. As a result of this incident, Flores suffers from post-traumatic stress disorder, mental anguish, headaches, and nightmares.
12
Absent any language specifically suggesting otherwise, we do not assume that the district court accepted any facts alleged by Kalina. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ("[T]he court should give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that the evidence comes from disinterested witnesses.") (internal quotation marks omitted). The only facts adopted by the district court in support of Kalina's claim of qualified immunity are included in its analysis of Flores's false arrest claim:
13
Kalina alleges that he shined a spotlight on Flores's car; that people began to flee from the area around the car; that he called, "Police. Stop," but a person running toward the car did not stop; and that as he ran up behind the car, still calling out, "Police. Stop," Flores drove away. Flores does not directly contest these allegations: she admits seeing the patrol car drive past her, having her music too loud for her to have heard Officer Kalina shout, "Police. Stop," and beginning to drive away. Under this factual scenario, a reasonable officer in Kalina's position could have believed he had probable cause to arrest Flores.
14
Flores, 270 F.Supp.2d at 871 (internal citations omitted).2
15
We assume the district court accepted all the facts mentioned above for purposes of this summary judgment motion.
III. QUALIFIED IMMUNITY STANDARD
16
In reviewing a government official's motion for summary judgment based on qualified immunity, we undertake a two-step analysis. First, we assess whether a statutory or constitutional right would have been violated on the facts alleged. Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If we find a violation is properly alleged, we proceed to the second step, in which we determine whether the defendant's actions violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (quoting Harlow, 457 U.S. at 818, 102 S.Ct. 2727).3
IV. EXCESSIVE FORCE CLAIM
17
Kalina argues that he is entitled to qualified immunity on the excessive force claim because Flores did not satisfy the elements of the claim and because his actions were objectively reasonable in light of clearly established law. The district court denied Kalina's motion for summary judgment on Flores's excessive force claim because it found a genuine issue of material fact regarding the objective reasonableness of Kalina's use of deadly force.
A. STEP ONE: CONSTITUTIONAL VIOLATION
18
To bring a § 1983 excessive force claim under the Fourth Amendment, a plaintiff must first show that she was seized. See Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Next she must show that she suffered (1) an injury that (2) resulted directly and only from the use of force that was excessive to the need and that (3) the force used was objectively unreasonable. Goodson v. City of Corpus Christi, 202 F.3d 730, 740 (5th Cir.2000). We hold that Flores satisfactorily alleged each element of a Fourth Amendment excessive force claim.
1. SEIZURE
19
Kalina argues that the Fourth Amendment does not apply to Flores's excessive force claim because he had not yet seized Flores when he shot her car.4 Thus, he argues, the allegedly excessive force was applied before the seizure. See California v. Hodari D., 499 U.S. 621, 629, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (holding that the Fourth Amendment is not triggered until the moment a person is actually seized). We disagree.
20
An officer seizes a person when he, "by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (emphasis added). In addition, the "governmental termination of freedom of movement" must be made "through means intentionally applied." Brower v. County of Inyo, 489 U.S. 593, 596-97, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989) (emphasis in original). Kalina argues that Flores was not seized by the gunshot because she was not aware of its existence and so did not submit to a show of authority when she stopped. See Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988) (holding that when a person has been restrained through a show of authority, that person has been seized "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave") (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). We hold, however, that Kalina seized Flores by physical force. Kalina used physical force by shooting Flores's car, and the termination of her freedom of movement was accomplished by exactly the means he intentionally applied, i.e., the shot to her car. We do not consider the suspect's perception of her detention when it is accomplished by means of physical force. Cf. Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (considering only reasonableness of seizure accomplished by deadly force, not suspect's reaction to it).
21
Kalina argues that this was not a seizure by means of physical force because merely shooting at and hitting a car does not necessarily constitute a seizure. See, e.g., Latta v. Keryte, 118 F.3d 693, 699-700 (10th Cir.1997); Cole v. Bone, 993 F.2d 1328, 1332-33 (8th Cir.1993). While the Tenth and Eighth Circuits in Latta and Cole held that shooting at and hitting a car is not necessarily a seizure, the suspects in those cases were not seized because they continued to drive after being hit. These holdings therefore do not suggest that shooting at and hitting a car is not a seizure when it is successful. Cf. Cole, 993 F.2d at 1333 (holding that driver of truck was eventually seized when one of the shots aimed at the engine instead hit him in the forehead).
22
The Supreme Court's holding in Brower supports our holding. The Court held that a suspect was seized when he crashed into a roadblock erected by the police. Brower, 489 U.S. at 598, 109 S.Ct. 1378. The Court specifically distinguished the roadblock from a police car flashing its lights because "a roadblock is not just a significant show of authority to induce a voluntary stop, but is designed to produce a stop by physical impact if voluntary compliance does not occur." Id. A roadblock, therefore, can be either a show of authority or a means of physical force, depending on whether a suspect stops before reaching it or crashes into it. In determining whether there was a seizure, however, the Court did not dwell on this distinction. The Court focused on whether the suspect was seized by means intentionally applied, not on whether the suspect stopped for the reason the officers desired: "It may well be that respondents here preferred, and indeed earnestly hoped, that [the suspect] would stop on his own, without striking the barrier, but we do not think it practicable to conduct such an inquiry into subjective intent." Id. Kalina probably expected Flores to realize that he had shot her car, but we will not inquire into his subjective intent.
23
In determining whether the means that terminates the freedom of movement is the very means that the government intended we cannot draw too fine a line, or we will be driven to saying that one is not seized who has been stopped by the accidental discharge of a gun with which he was meant only to be bludgeoned, or by a bullet in the heart that was meant only for the leg. We think it enough for a seizure that a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result.
24
Id. at 598-99, 109 S.Ct. 1378. Similarly, we will not "draw too fine a line" in determining whether an officer seizes a suspect when he intentionally shoots a fleeing suspect's car and the suspect stops immediately in response to the shot.
25
Based on the facts assumed by the district court, Flores was seized.
2. INJURY
26
Next, we reject Kalina's argument that psychological injuries alone are never sufficient to sustain a Fourth Amendment claim.5 A plaintiff alleging an excessive force violation must show that she has suffered "at least some injury." Jackson v. R.E. Culbertson, 984 F.2d 699, 700 (5th Cir.1993). While certain injuries are so slight that they will never satisfy the injury element, see, e.g., Glenn, 242 F.3d at 314 (holding that "handcuffing too tightly, without more, does not amount to excessive force"), psychological injuries may sustain a Fourth Amendment claim. See Dunn v. Denk, 79 F.3d 401, 402 (5th Cir.1996) (en banc). The plaintiff's physical injuries in Dunn were only bruises, but she suffered substantial psychological injuries. Id. We held that she alleged an injury sufficient to demonstrate the violation of a clearly established constitutional right. Id. at 402-03.
27
Kalina argues alternatively that even if substantial psychological injuries may be sufficient to state a claim in certain circumstances, Flores's alleged psychological injuries do not state a claim when balanced against the need for force and the use of force. We address this question as part of our objective reasonableness analysis. See infra, Part III(A)(4).
28
3. RESULTING DIRECTLY AND ONLY FROM EXCESSIVE FORCE
29
Kalina argues that any injury Flores suffered did not result directly and only from the gunshot because she only received any psychological injury when he told her he had shot her car, not when he actually shot it, as she was unaware at that time what was happening. Kalina relies on, but fundamentally misconstrues, Hodari D., in which the Supreme Court precisely defined the moment of seizure to find that a fleeing suspect had not yet been seized when he discarded evidence. 499 U.S. at 625, 111 S.Ct. 1547. Hodari D. does not suggest that cognizable injuries must be incurred at the moment of seizure or at the exact moment excessive force is applied. Were we to accept Kalina's position, any injury resulting from the use of excessive force subsequent to the initial moment of seizure would not be covered by the Fourth Amendment. Clearly this is not so. See, e.g., Graham, 490 U.S. at 396 n. 10, 109 S.Ct. 1865 (suggesting that the Fourth Amendment continues to provide protection at least until the point of pretrial detention); Williams v. Bramer, 180 F.3d 699, 704 (5th Cir.1999) (holding that plaintiff alleged a valid Fourth Amendment claim for an injury received after he was seized and after his car and person had already been searched). The district court did not err in determining that Flores's injuries resulted directly and only from her seizure.
4. OBJECTIVE REASONABLENESS
30
To determine whether a seizure was objectively reasonable, and thus whether an injury is cognizable, we ask "whether the totality of the circumstances justified [that] particular sort of search or seizure." Garner, 471 U.S. at 8-9, 105 S.Ct. 1694.6 "[T]he permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). To "gaug[e] the objective reasonableness of the force used by a law enforcement officer, we must balance the amount of force used against the need for force." Ikerd, 101 F.3d at 434 (citing Spann v. Rainey, 987 F.2d 1110, 1115 (5th Cir.1993)). This balancing test "requires careful attention to the facts and circumstances of each particular case." Graham, 490 U.S. at 396, 109 S.Ct. 1865.
31
When an officer uses deadly force, our "objective reasonableness" balancing test is constrained. It is objectively unreasonable to use deadly force "unless it is necessary to prevent [a suspect's] escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." Garner, 471 U.S. at 3, 105 S.Ct. 1694. The district court denied summary judgment because it found that Kalina used deadly force and that there was a genuine question of material fact as to whether Kalina reasonably believed that Flores posed a significant threat to anyone. Kalina argues that both conclusions are incorrect as a matter of law. The district court properly denied summary judgment because neither conclusion can be resolved as a matter of law; genuine issues of material fact exist as to each.
32
First, whether a particular use of force is "deadly force" is a question of fact, not one of law. See Gutierrez v. City of San Antonio, 139 F.3d 441, 446 (5th Cir.1998) (holding that "deadly force" is force "carrying with it a substantial risk of causing death or serious bodily harm"); Omdahl v. Lindholm, 170 F.3d 730, 733 (7th Cir.1999) (holding that whether shooting an individual with bean bags constitutes deadly force is a question of fact that an appeals court may not review). We lack jurisdiction to review the district court's factual finding that Kalina used deadly force.
33
Second, Kalina argues that we must accept, as a matter of law, that he reasonably believed that Flores posed a significant threat to him or another person. He asserts that he thought he was in real danger, and he argues that his belief was reasonable as a matter of law (though not necessarily accurate) based on the facts assumed by the district court. Our perspective on review is that of "a reasonable officer on the scene," and we "allow[] for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 396-97, 109 S.Ct. 1865. The district court found that Kalina had reason to suspect only that Flores was guilty of a minor parking violation. While the court found that Flores pulled into the street at an angle to enter the correct lane of traffic, it nonetheless concluded that she did not drive erratically. Finally, and most critically, it found that Kalina was already behind her car when he shot it. On these assumed facts we cannot find as a matter of law that Kalina reasonably believed Flores posed any danger either to him or to anyone else.
34
The district court correctly held that genuine issues of fact exist as to whether Kalina used deadly force and as to whether he reasonably believed Flores was a threat, and Flores has sufficiently alleged a constitutional violation.
35
B. STEP TWO: OBJECTIVE REASONABLENESS IN LIGHT OF CLEARLY ESTABLISHED LAW
36
For a right to be clearly established under the second step of the qualified immunity analysis, "[t]he contours of that right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). "The central concept [of the test] is that of fair warning: The law can be clearly established despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights." Kinney, 367 F.3d at 350 (quoting Hope, 536 U.S. at 740, 122 S.Ct. 2508) (internal quotation marks omitted). Even officers who interpret the law mistakenly but reasonably are entitled to immunity. See Anderson, 483 U.S. at 641, 107 S.Ct. 3034.
37
Kalina argues that even if his actions violated Flores's Fourth Amendment rights, the following legal principles were not clearly established in 2002: (1) that a suspect is seized when her car is shot and she stops without realizing what has happened; (2) that excessive force that does not result in physical harm violates the Fourth Amendment; (3) that shooting at the tires of a moving vehicle is deadly force; and (4) that shooting at the tires of a moving vehicle in circumstances such as these constitutes an objectively unreasonable use of excessive force in violation of the Fourth Amendment. We find that the law was clearly established as to the first and second issues. We cannot resolve the third and fourth issues without reference to disputed questions of material fact, so we affirm the district court's denial of Kalina's summary judgment motion as to the excessive force claim.
1. SEIZURE
38
It was clearly established at the time that shooting toward a person is a use of physical force. See Garner, 471 U.S. at 7, 105 S.Ct. 1694. It was also clearly established that a use of physical force that succeeds in stopping a fleeing suspect constitutes a seizure. See Hodari D., 499 U.S. at 629, 111 S.Ct. 1547; Terry, 392 U.S. at 19 n. 16, 88 S.Ct. 1868. It was clearly established that stopping a moving car by intentionally shooting it constitutes a seizure.
2. INJURY
39
It was clearly established at the time, based on three cases, that psychological injuries can be sufficient to state a Fourth Amendment excessive force claim.7
40
First, we rejected our previous "significant injury" requirement for Fourth Amendment claims and held that a plaintiff need only allege "an injury" to state a claim under the Fourth Amendment. Harper v. Harris County, 21 F.3d 597, 600 (5th Cir.1994) (overruling the Fourth Amendment significant injury requirement in light of Hudson v. McMillan, 503 U.S. 1, 10, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)). This reduction established the elimination of a need for a physical injury because it greatly widened the scope of redressable injuries.
41
Second, we further strengthened this holding in Dunn, where the plaintiff alleged purely psychological injuries, and we noted that "whatever injury requirement (if any) may remain after Hudson [and Harper] respecting a claim for excessive force in an arrest is satisfied here." Dunn, 79 F.3d at 402-03. The observation that substantial psychological injuries now satisfy the injury element makes it entirely clear that no physical injury is necessary to state a Fourth Amendment claim.
42
Third, in Petta, we squarely held that two children who had suffered "purely psychological harm," under circumstances similar to those here, had asserted a valid § 1983 claim for excessive force under the Fourteenth Amendment. 143 F.3d at 899, 900.8 The holding in Petta is applicable to our Fourth Amendment cases, despite the fact that the Petta children were not seized, because we found that during "an attempted but ultimately unsuccessful arrest," id. at 911 (emphasis in original), whether an officer's "use of force was `objectively reasonable' largely implicates Fourth Amendment concerns, even though the fortuity of his bullet going astray removed this case from the purview of `seizure' cases," id. at 913-14. We therefore applied our Fourth Amendment holding in Dunn to our reasoning in Petta. Id. at 914. We emphasized that "cases arising under one amendment have consistently affected the parameters of rights that, while arising under different constitutional amendments, implicate similar policy concerns." Id. at 914 n. 31. Just as our holding in Dunn established clear parameters for cases brought under the Fourteenth Amendment, see id. at 911, our holding in Petta likewise establishes clear guidelines for conduct within the bounds of the Fourth Amendment.
43
Our holdings in Harper, Dunn, and Petta clearly established by 2002 that psychological injuries are sufficient to satisfy the injury element of a § 1983 claim for excessive force under the Fourth Amendment.
3. DEADLY FORCE
44
Kalina next argues that a reasonable police officer would not have been on notice in 2002 that firing a single gunshot at a suspect's car would constitute a use of deadly force. Kalina was on notice, however, that using force "carrying with it a substantial risk of causing death or serious bodily harm" is "deadly force." See Gutierrez, 139 F.3d at 446. He was also on notice that deadly force would only be justified by a reasonable belief that he or the public was in imminent danger. See Garner, 471 U.S. at 3, 105 S.Ct. 1694. The only thing he did not know for sure was whether shooting at Flores's car in the way that he did carried with it a substantial risk of death or serious bodily harm.
45
The flaw in Kalina's argument is that this last question is one of fact, not one of law. The district court found that he used deadly force, thereby assuming, as a factual matter, that Kalina created a substantial risk of death or serious bodily harm when he shot Flores's car. On an interlocutory appeal of this nature, we cannot review whether that factual question is genuine, and it is obviously material. Reyes, 287 F.3d at 350-51; see also Omdahl, 170 F.3d at 733 (declining to resolve the second step of a qualified immunity defense because it depended on resolution of factual dispute whether shooting bean bags at the plaintiff constituted deadly force). We therefore accept the district court's factual assumption for summary judgment that Kalina reasonably should have known that his action caused a substantial risk of death or serious bodily harm.
4. OBJECTIVE REASONABLENESS
46
As discussed in the first step of the qualified immunity analysis, whether Kalina's action was objectively reasonable depends on whether he reasonably believed that Flores posed a threat of imminent danger. This is a question of fact that we may not review on interlocutory appeal. See Section IV(A)(4), supra; Cowan v. Breen, 352 F.3d 756, 762-63 (2d Cir.2003).
47
The parties may revisit the questions of objective reasonableness and sovereign immunity at the close of the trial. See Snyder v. Trepagnier, 142 F.3d 791, 800 (5th Cir.1998).
V. UNLAWFUL ARREST CLAIM
48
We conduct the same two-step qualified immunity analysis for Flores's unlawful arrest claim that we used for his excessive force claim. See Saucier, 533 U.S. at 200, 121 S.Ct. 2151. We reverse the district court's denial of Kalina's motion for summary judgment because we find that Flores did not allege a constitutional violation. There are two issues in dispute: first, whether Kalina had probable cause to arrest Flores for evading detention, and second, whether Kalina's use of excessive force made the arrest unlawful.
A. PROBABLE CAUSE
49
An arrest is unlawful unless it is supported by probable cause. Hinshaw v. Doffer, 785 F.2d 1260, 1266 (5th Cir.1986). "Probable cause exists when the totality of facts and circumstances within a police officer's knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense." United States v. Levine, 80 F.3d 129, 132 (5th Cir.1996) (emphasis added). Kalina argues that he had probable cause to arrest Flores for three crimes: (1) violating the juvenile curfew ordinance, (2) underage drinking, and (3) evading detention. We find that Kalina lacked probable cause to arrest Flores for the first two crimes but that he had probable cause to arrest her for the third.
50
Kalina did not discover Flores's age or the presence of alcoholic beverages until after the arrest. He therefore did not have probable cause to arrest her for either a curfew violation or underage drinking at the relevant time. See id.
51
The district court found that a reasonable person could conclude that Flores attempted to evade detention based upon her failure to heed Officers Kalina's repeated orders to stop. On an interlocutory appeal, we accept the district court's factual assumption that Kalina did indeed twice shout "Police! Stop!" and that Flores continued to drive away after he did so. In Texas, "[a] person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him." Tex. Penal Code Ann. § 38.04(a) (Vernon 2003). Based on the facts assumed by the district court, we agree that Kalina had probable cause to arrest Flores for evading detention.
52
Flores argues, however, that her arrest for evading detention was unconstitutional because Kalina did not have reasonable suspicion sufficient to detain her in the first place. A suspect's flight from a police officer generates probable cause to arrest the suspect under section 38.04 only if the officer "could have reasonably believed that [his] detention of [the suspect] was lawful." Goodson, 202 F.3d at 740. Flores's car was parked on the wrong side of a two-way street, which is a violation of Texas law. See Tex. Transp. Code Ann. § 545.303(a) (Vernon 1999). Kalina therefore had authority to detain her.9 Cf. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ("[T]he decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred."). Whether he was actually motivated to detain her for other reasons is irrelevant. See id. at 813, 116 S.Ct. 1769.
53
Kalina reasonably sought to detain Flores, and he reasonably believed that, under the assumed facts, she sought to evade detention. He therefore had probable cause to arrest her.
B. EXTRAORDINARY MANNER OF ARREST
54
We find that Flores's claim of unlawful arrest based on the "extraordinary manner" of the arrest is just her excessive force claim restated, and we therefore reject it. In general, we consider claims of unlawful arrest separately from those of excessive use of force, and we analyze the former based on the probable cause standard without reference to the manner in which the arrest was accomplished. See, e.g., Hinshaw, 785 F.2d at 1266-67. Flores argues, however, that her arrest was unlawful because it was conducted "in an extraordinary manner." The district court agreed; it found that the constitutionality of an arrest "depends not only `on when a seizure is made, but also [on] how it is carried out.'" Flores, 270 F.Supp.2d at 871 (citing Garner, 471 U.S. at 8, 105 S.Ct. 1694) (alteration and emphasis in district court opinion). Garner, however, establishes only that the Fourth Amendment encompasses the right to be free from excessive force in addition to the right to be free from an arrest made unlawful by the absence of probable cause. See Garner, 471 U.S. at 8, 105 S.Ct. 1694. Garner does not support the district court's holding that the use of excessive force creates two causes of action: one for excessive use of force and one for unlawful arrest.
55
The only possible support for Flores's unlawful arrest claim lies in our recognition of a claim of "unreasonable seizure" in Glenn, 242 F.3d at 313, but it is insufficient. In Glenn, the plaintiff's unreasonable seizure claim was based on the manner of her arrest—she was left in an unventilated vehicle in the "baking sun" for almost an hour. Id. at 311. The claim in Glenn was therefore distinguishable from a traditional excessive use of force claim because the plaintiff's injuries did not result from an actual use of force. In contrast to the situation in Glenn, Flores's allegations in support of her unlawful arrest claim are identical to those in support of her excessive use of force claim. As a result, Flores cannot raise a claim for unlawful arrest.
56
Flores did not allege a constitutional violation for unlawful arrest, and the district court erred in not granting summary judgment to Kalina on this claim.
VI. MALICIOUS PROSECUTION CLAIM
57
The district court denied summary judgment on Flores's claim of malicious prosecution because, according to our case law at that time, "in the event the elements of malicious prosecution are proved, a fortiori, a violation of the Fourth Amendment is also proved." Castellano v. Fragozo, 311 F.3d 689, 701 (2002), rev'd en banc, 352 F.3d 939 (5th Cir.2003). In our en banc opinion, issued after the district court order, we clarified that "`malicious prosecution' standing alone is no violation of the United States Constitution." 352 F.3d at 942. Section 1983 "is not itself a source of substantive rights," but merely provides "a method for vindicating federal rights elsewhere conferred." Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). Accordingly, Kalina is entitled to summary judgment on Flores's malicious prosecution claim.
VII. CONCLUSION
58
We hold that Kalina is not protected by qualified immunity as to Flores's Fourth Amendment excessive force claim. We therefore AFFIRM the district court's denial of Kalina's motion for summary judgment as to Flores's excessive force claim. We hold that Flores did not allege facts sufficient to support an unlawful arrest violation or a malicious prosecution violation under the Fourth Amendment. We REVERSE the district court's denial of Kalina's motion for summary judgment as to Flores's unlawful arrest and malicious prosecution claims, and we RENDER partial summary judgment in favor of Kalina as to the unlawful arrest and malicious prosecution claims.
59
AFFIRMED IN PART; REVERSED AND RENDERED IN PART.
Notes:
1
We may also remand to the trial court to clarify the order,Thompson, 245 F.3d at 456, but we decline to do so in this case because the district court laid out almost all of the genuine issues of material fact.
2
The district court elsewhere noted that "[i]t is unclear whether Kalina is claiming that the person who ran past him got into the car."Flores, 270 F.Supp.2d at 869 n. 2.
3
This two-tiered analysis can lead to a "somewhat schizophrenic approach," because we must apply current law to the first step and the law at the time of the incident to the second step, which may sometimes result in applying different tests to the two stepsPetta v. Rivera, 143 F.3d 895, 900 & n. 4 (5th Cir.1998). Despite the confusion this approach creates, the Supreme Court has made clear that we are obliged to go through the first step of the analysis even if the second step shows that the law was not clearly established. Saucier, 533 U.S. at 200-01, 121 S.Ct. 2151.
4
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. amend. IV. Flores also argues that the damage to her car implicates an invasion of Fourth Amendment substantive due process rights, but she cites no case law to support such a claim, and the district court did not address it. We therefore do not consider her substantive due process claimSee Glenn v. City of Tyler, 242 F.3d 307, 315 (5th Cir. 2001).
5
Kalina also argues that Flores did not present sufficient summary judgment evidence to support her claim of psychological injury. We lack jurisdiction to consider this argumentSee Kinney, 367 F.3d at 348.
6
Whether an injury is cognizable and whether the use of force is objectively reasonable are inextricably linked questions. "[T]he amount of injury necessary to satisfy our requirement of `some injury' and establish a constitutional violation is directly related to the amount of force that is constitutionally permissible under the circumstances."Ikerd v. Blair, 101 F.3d 430, 434-35 (5th Cir.1996) (citations omitted). The definition of a cognizable injury, therefore, changes with the facts of each case. See, e.g., Williams, 180 F.3d at 704 (holding that choking the plaintiff was a cognizable injury when it served no legitimate purpose but that it was not a cognizable injury when it was incident to a search of the plaintiff's mouth for drugs). If the force used is constitutionally permissible, i.e., objectively reasonable, the plaintiff has not, by definition, suffered a cognizable injury and her injury is by definition de minimis. Ikerd, 101 F.3d at 434; see also Williams, 180 F.3d at 704.
7
The extent of an injury is an element of an excessive force claim that must be clearly established in the second prong of the qualified immunity analysisDunn, 79 F.3d at 403.
8
Kalina notes that afterDunn and before Petta, we stated that "[t]here is no constitutional right to be free from emotional distress." Shinn v. College Station Ind. Sch. Dist., 96 F.3d 783, 786 (5th Cir.1996). As noted in the concurring opinion to Shinn, the only way to interpret this language is that the Constitution does not provide an independent right to be free from emotional distress, not that it is impossible to recover for emotional distress when a plaintiff can show the violation of a right that is guaranteed in the Constitution. See id. at 787 (Dennis, J., concurring) (citing cases in which damages have been granted for emotional distress in § 1983 constitutional suits, e.g., Memphis Comm'y Sch. Dist. v. Stachura, 477 U.S. 299, 306, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986)).
9
Kalina also argues he had reasonable suspicion to believe that criminal activity was afoot because people fled from the area when he shined a spotlight on Flores's car. We do not address this argument, as we find that he could reasonably detain Flores based on the parking violation
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977 F.2d 594
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Ramon SILVA-ROCHA, Defendant-Appellant.
No. 92-10070.
United States Court of Appeals, Ninth Circuit.
Submitted Oct. 8, 1992.*Decided Oct. 21, 1992.
Before D.W. NELSON, REINHARDT and KOZINSKI, Circuit Judges.
1
MEMORANDUM**
2
Silva-Rocha1 was arrested with 703 pounds of marijuana in the back of the truck he was driving. The district court denied his motion to suppress the marijuana; after a bench trial, he was convicted of conspiracy to possess with intent to distribute marijuana, 21 U.S.C. § 963; importation of marijuana, 21 U.S.C. § 952(a); and possession with intent to distribute marijuana, 21 U.S.C. § 841(a)(1).
3
On appeal, Silva-Rocha challenges only whether the officer who attempted to pull him over had reasonable suspicion to conduct an investigatory stop. But Silva-Rocha did not yield when the officer flashed his overhead emergency lights. See RT 1/9/92 at 13, 42. Rather, he slowed down, pulled off to the side and then sped away before stopping. A high-speed chase, involving several police cars and a helicopter, ensued. See id. at 42. When Silva-Rocha's car broke down, he abandoned it and fled on foot. See id. at 42-44. For constitutional purposes, no seizure occurs until a person submits to a show of authority or is actually captured. California v. Hodari D., 111 S.Ct. 1547, 1552 (1991). As we recently held in United States v. Santamaria-Hernandez, 968 F.2d 980 (9th Cir.1992), a person who speeds away from a police car is not seized "until he or she is physically apprehended." Id. at 983. Contrary to appellant's argument, there also isn't "any reason to conclude that the reasoning of Hodari D. would not apply to automobile chases as well as foot chases." Id. Reasonable suspicion was therefore unnecessary for the attempted stop, as no seizure occurred.
4
Silva-Rocha does not contest whether the arrest and search that occurred after he was ultimately apprehended was justified, nor could he. "The determination whether agents have founded suspicion to justify a stop may take into account all of the events that occur up to the time of physical apprehension of a suspect who flees." Id. His flight from the officers, combined with the abandonment of his vehicle and ensuing footrace, justified the officer's actions.
5
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
1
Silva-Rocha is the name which appears on both parties' briefs; however, the district court record, including the defendant's own recitation of his name in court, indicate that his name is Ramon Rocha-Silva. Because we are unsure which is correct, we adhere to our practice of following the name listed on the docket sheet
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302 So.2d 888 (1974)
STATE of Louisiana
v.
Tony PETERS.
No. 55037.
Supreme Court of Louisiana.
October 28, 1974.
Rehearing Denied November 27, 1974.
*890 Charles H. Finley, Lafayette, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., James L. Babin, Asst. Dist. Atty., for plaintiff-appellee.
DIXON, Justice.
By bill of information defendant was charged with distribution of heroin, a controlled dangerous substance. La.R.S. 40:971 (a)(1) (Supp.1970), as amended by La.Acts 1970 No. 457, § 1.[1] He was tried on April 19-21, 1972 and found guilty by a five man jury. He was sentenced to thirteen years at hard labor. Prior to and during trial defendant reserved one hundred five bills of exceptions; he urges all on appeal. In order to discuss these bills, we have grouped them according to the subject matter of the objection.
Bills of Exceptions Nos. 1-14
Nos. 1-14
These bills deal with the motion for a bill of particulars filed by the defendant and a request for all photographs, tape recordings, video tapes and movies taken of the defendant. The bill of particulars requested the following information:
"1. The place in the City of Lake Charles, Parish of Calcasieu where the alleged distribution of heroin took place which is referred to in the Bill of Information and allegedly committed by the defendant.
"2. The time of day or night on November 29, 1971 when the alleged distribution of heroin is said to have been committed.
"3. The place and location on which the defendant was arrested for the alleged offense.
"4. What act or acts consisted of the alleged distribution of heroin as set forth by the Bill of Information placed against defendant.
"5. Was the alleged act or acts of distribution of heroin performed at the time of the arrest.
"6. Was the alleged act of distribution of heroin incident to an alleged charge of vagrancy.
*891 "7. Will it be contended by the State that the defendant is one who is a main distributor or pusher of heroin.
"8. If it is contended by the State that the defendant is a main pusher of heroin, what was the defendants source of income received from such sales.
"9. On what other days during the week preceding November 29, 1971 did defendant allegedly distribute heroin excluding November 29, 1971.
"10. On what other day did defendant after November 29, 1971 allegedly distribute heroin in the City and Parish stated.
"11. If the answer to the two questions above Nos. 9 and 10, is yes, then state the exact time and place and location and to whom distribution of the heroin was made.
"12. At the time of arrest of your defendant was anyone else present with him, and if so, state his name and address.
"13. Was any other third person or persons standing behind or near the defendant at the time of the alleged distribution and arrest charged in the Bill of Information, if so, give names and addresses.
"14. Will the District Attorney office attempt to file any other charges in connection with the alleged distribution of heroin contended in the Bill of Information.
"15. If the answer to this question is yes, what will be the charge."
The State answered questions 1 and 2 of the application for bill of particulars and agreed to supply any written confession; it refused to provide any further information. A bill of exceptions was reserved when the trial court refused to require the State to produce any oral confession, enlarge upon its answers or respond to the remaining questions. As has been stated by this court, there is no general pretrial discovery. Discovery is limited to specific instances provided by statute or where there is a unique need on the part of the defendant. See State v. Baker, 288 So.2d 52 (La.1973). We do not find any error in the trial court's refusal to require additional information from the State.
These bills are without merit.
Bill of Exceptions No. 15
This bill was reserved when the trial court denied defendant's motion to suppress the heroin involved in the case. Defendant contended that it had been illegally seized. There was no seizure or search in this case; the heroin had been purchased by an undercover agent from the defendant.
This bill is without merit.
Bills of Exceptions Nos. 16 and 17
These bills were reserved when the trial court denied defendant's motion to quash based upon a defective bill of information. We find the indictment to have properly charged the defendant. The defendant also attempted to follow an improper procedure of introducing evidence after a denial of his original motion to quash. The proper time for presentation of evidence was prior to the court's decision.
These bills are without merit.
Bills of Exceptions Nos. 18-22
These bills were reserved when the trial court denied defendant's motion to quash based upon the improper selection of the jury venire and then attempted to explain the procedure followed when compiling a jury venire to defense counsel. The clerk of court conceded that women who had not filed a request for jury service had been eliminated from the jury venire list. This was in accordance with La.Const, of 1921, Art. VII, § 41 and C.Cr.P. *892 402. The constitutionality of these provisions of our law has been consistently up-held by this court. See State v. Stevenson, 292 So.2d 488 (La.1974) and State v. Womack, 283 So.2d 708 (La.1973).
The clerk of court denied defendant's contention that blacks had been systematically excluded from the jury venire and testified that the lists obtained from the registrar of voters did not contain any designation of race. Defendant failed to produce any evidence to establish a prima facie case of discrimination as required by Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972). All officials of the court but the registrar were made available to defense counsel; the registrar was sick and the trial court properly determined that the clerk of court could provide the necessary information.
There is no merit to these bills.
Bills of Exceptions Nos. 23-25; 31-35; 38-72; 75; 76; 81; 83-97
These bills involved the exercise of the trial court's discretion with regard to a motion for continuance, sequestration of witness orders (separation of witnesses for the State and defense because of hostility) and their enforcement, refusal to issue a bench warrant for a nonexistent person, sufficiency of the foundation laid for the introduction of evidence, and control of the interrogation of witnesses with respect to relevancy, proper cross and redirect examination, leading forms of questions, narrative answers, irrelevant direct examination, and scope of testimony in rebuttal. The trial court is given great discretion in these areas. C.Cr.P. 764; R.S. 15:275; R.S. 15:277; R.S. 15:278; R.S. 15:280-282; R.S. 15:456-460. Our review of the proceedings and decisions of the trial court in the listed bills does not reveal any abuse in the trial court's discretion and power to control its courtroom procedure.
These bills are without merit.
Bills of Exceptions Nos. 26-30
These bills deal with the trial court's control of voir dire interrogation granted it by C.Cr.P. 786, which reads as follows:
"The court, the state, and the defendant shall have the right to examine prospective jurors. The scope of the examination shall be within the discretion of the court. A prospective juror, before being examined, shall be sworn to answer truthfully questions asked him relative to his qualifications to serve as a juror in the case."
Defense counsel attempted to pose the following questions to prospective jurors:
(1) "Do you have sufficient knowledge about colored people to know how they live?"
(2) "Have you ever participated in any charitable events, activities ... any charitable events of any kind?"
The trial court ruled that these questions were irrelevant to a determination of whether the prospective juror had the qualifications listed in C.Cr.P. 401 and 797. We do not find any abuse of discretion.
Conversely, the State was permitted to ask, "Have you every had anyone in your family, or close to you, with a drug problem?" We agree with the trial court that this was relevant in a heroin distribution case to determining the impartiality and ability of the prospective juror to serve in a drug case. C.Cr.P. 797, 798.
We do not find any error in the trial court's decision with regard to the voir dire examination.
These bills are without merit.
Bills of Exceptions Nos. 36-37; 77-80;
These bills dealt with defendant's attempt to impeach a witness for the State. *893 Bills Nos. 36 and 37 involved the defendant's attempt to obtain the police record of the undercover agent who had testified for the State. When this request was denied, defendant attempted to question the witness concerning the prior arrests of that agent. The contents of the police record and the number of arrests of the undercover agent were irrelevant for the purpose of impeachment. Only convictions may be used to impeach the credibility of a witness, and defendant was not restricted in the examination concerning convictions. R.S. 15:495.
Bills Nos. 77-80 and 82 were reserved to rulings sustaining objections by the State to defense questions posed to Davis, a defense witness. The apparent effort was to show that Fontenot, a State's witness, had used narcotics, in order to attack his credibility. "When the general credibility is attacked, the inquiry must be limited to general reputation, and can not go into particular acts, vices or courses of conduct." R.S. 15:491. The relevance of some of the questions in this group cannot be determined from the record before us. Other questions inquire about collateral facts or irrelevant matter. R.S. 15:494.
These bills are without merit.
Bill of Exceptions No. 73
This bill was reserved when the trial court denied defendant's motion for a directed verdict of acquittal. Under the jurisprudence at the time of trial, a trial court could not grant a directed verdict. See State v. Graves, 259 La. 526, 250 So.2d 727 (1971) and cases cited therein. Subsequently, this court held that a directed verdict could be granted if there was no evidence to support a conviction. State v. Douglas, 278 So.2d 485 (La.1973). Whether that decision is retroactive is of no moment in the instant case as the record before us discloses evidence from which a jury could infer the guilt of the defendant. The undercover agent was searched prior to his meeting with the defendant and left the company of police officers without any heroin or other narcotic. After his meeting with the defendant he transferred to the officer packets which were identified at trial to contain heroin.
This bill is without merit.
Bill of Exceptions No. 74
This bill was reserved when the trial court permitted the State to ask the defense witness why the defendant was under his supervision, i. e., why was he on probation or parole. The relevance of this question does not appear from the portion of the testimony attached to the bill; nevertheless, the witness had been called by the defendant, and had testified that he was a probation officer and knew the defendant from the performance of his duties as a probation and parole officer. Any prejudice to the defendant from the information that defendant was on probation after conviction of a crime was caused from defendant's own questions of this witness.
This bill is without merit.
Bill of Exceptions No. 98
This bill was reserved when the State in closing argument discussed the seriousness of drug addition and the need to suppress it in the community. Defendant contends this was an appeal to prejudice in violation of C.Cr.P. 774. We agree with the trial court that in the context of a prosecution for distribution of heroin this was not an appeal to prejudice. See Comment, 34 La.L.Rev. 746 (1974).
This bill is without merit.
Bills of Exceptions Nos. 99 and 100
These bills were reserved when the trial court denied defendant's request for a free complete transcript. Under our bill of exceptions procedure defendant is *894 entitled only to a free copy of the parts of the transcript which form the content of his perfected bills of exceptions. State v. Brewer, 263 La. 113, 267 So.2d 541 (1972); State v. Pesson, 256 La. 201, 235 So.2d 568 (1970); State v. Anderson, 254 La. 1107, 229 So.2d 329, reversed on other grounds, 403 U.S. 949, 91 S.Ct. 2288, 29 L.Ed.2d 861 (1971).
These bills are without merit.
Bills of Exceptions Nos. 100-102
These bills were reserved when, after defendant had been convicted, the trial court denied defendant's motion for a continuance, request to present evidence after the denial, and a request for additional delay in sentencing until the transcript was filed. Defendant has not shown any abuse of discretion by the trial court.
These bills are without merit.
Bill of Exceptions No. 104
This bill was reserved on the ground that the statute, under which the defendant was sentenced, was unconstitutional. The reasons defendant claim the statute unconstitutional were not articulated before the trial judge and are not expressed in defendant's brief in this court.
This bill is without merit.
Bill of Exceptions No. 105
This bill was reserved when the trial court denied defendant's request for a stay of sentence pending appeal. As the trial court noted, it was without jurisdiction over the case upon the entering of the appeal which had previously been done. C.Cr.P. 916. Furthermore, as defendant had been sentenced to thirteen years at hard labor, he was not entitled to bail pending appeal. C.Cr.P. 314.
This bill is without merit.
For the assigned reasons, the conviction and sentence are affirmed.
BARHAM, J., concurs with reasons.
BARHAM, Justice (concurring).
The defendant filed a motion styled "Prayer for Oyer" seeking production of any and all oral and written confessions made by defendant. At the hearing on the motion the State agreed to furnish any written confession it may have had but refused to supply the other information sought. When the trial court refused to require the production of any oral confessions, the defendant reserved a bill of exceptions.
Recently this Court has granted writs which recognized defendants' right to move to suppress oral confessions and required trial courts to hold hearings on defense motions to suppress oral confessions, bringing these oral statements within the purview of Code of Criminal Procedure Article 703. See State v. Jenkins, No. 55,462 on our docket, 302 So.2d 20 (La.1974) granted October 18, 1974. See also State v. Davis, No. 55,325 on our docket, (La.1974), writ of certiorari dismissed October 17, 1974. Such extension of C.Cr.P. Art. 703 naturally contemplates defendant's right to discover, by way of a motion or a bill of particulars, whether oral confessions exist. If the State indicates it possesses an oral confession, then a motion to suppress the oral statement is proper and a hearing to determine admissibility must be held.
In the present case, the defendant does not allege, nor does the record reveal, that any oral confession was in existence nor that such evidence was introduced at his trial. Therefore, no prejudice flowing from the trial court's refusal to require the production of oral confessions has been established.
I respectfully concur.
NOTES
[1] At the time the alleged offense took place (November 29, 1971) the appropriate sections of the statute read:
"(a) Except as authorized by this subpart, it shall be unlawful for any person knowingly or intentionally:
"(1) to produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance;
"(2) to create, distribute, or possess with intent to distribute, a counterfeit controlled dangerous substance.
"(3) to possess a controlled dangerous substance enumerated in Section 963 of this Sub-Part in the course of his business as a sales representative of a manufacturer or distributor of dangerous substances enumerated in Schedules I through IV of Section 963, except pursuant to an order or prescription.
"(b) Any person who violates subsection (a) with respect to:
"(1) a substance classified in Schedules I or II which is a narcotic drug, upon conviction shall be sentenced to a term of imprisonment at hard labor for not more than 30 years or pay a fine of not more than $15,000, or both.
"(2) any other controlled dangerous substance classified in Schedules I, II, or III shall, upon conviction be sentenced to a term of imprisonment at hard labor not more than 10 years or pay a fine of not more than $15,000, or both.
"(3) a substance classified in Schedule IV shall, upon conviction be sentenced to a term of imprisonment with or without hard labor for not more than 5 years or pay a fine of not more than $5,000 or both."
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918 F.2d 187
Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Amado T. ESCOBAR, Petitioner,v.OFFICE OF PERSONNEL MANAGEMENT, Respondent.
No. 90-3260.
United States Court of Appeals, Federal Circuit.
Oct. 26, 1990.
Before PLAGER, Circuit Judge, COWEN, Senior Circuit Judge, and LOURIE Circuit Judge.
DECISION
PER CURIAM.
1
Escobar appeals both from a decision of the Merit Systems Protection Board (MSPB), No. SE08318910401 (Feb. 16, 1990), dismissing his petition for review for having been untimely filed, and from the Administrative Judge's (AJ's) decision which thereby remained the final decision of the MSPB. Escobar asserted that he is entitled to an annuity under the Civil Service Retirement Act (CSRA), contrary to the finding of the Office of Personnel Management (OPM). We affirm.
OPINION
2
Petitioner applied for an annuity under the CSRA based on three periods of employment from 1930 to 1947: Municipality of Cavite (Cavite) from January, 1930 to September, 1935; Department of the Navy (Navy) from November, 1941 to February, 1945; and "federal service" from March, 1945 to December, 1947. The OPM found that petitioner's employment with the Navy for three years and four months is creditable service, but that his employment with Cavite is not creditable and that he did not sustain his burden of establishing any other employment with "federal service." (Mr. Escobar presented no evidence to support his contention that he was so employed, and OPM, after searching Government records, was unable to locate any evidence of this employment.) Thus, Escobar was found not to have the requisite five years of creditable service which would entitle him to a CSRA annuity. The AJ affirmed the OPM's findings and conclusion.
3
The burden is on the applicant to prove that he has completed five years of creditable civilian service and is entitled to a civil service annuity. See Cheeseman v. Office of Personnel Management, 791 F.2d 138, 141 (Fed.Cir.1986), cert. denied, 479 U.S. 1037 (1987). After a careful review of the record, we agree with the AJ that Escobar failed to meet that burden and is therefore not entitled to the annuity.
4
In Escobar's petition for review submitted to the MSPB, Escobar for the first time presented evidence of periods of service with the City of Manila between 1936 and 1940, contending that such service entitles him to a retirement annuity. The MSPB found that appeal to have been untimely filed; further, that even were the appeal to have been timely filed, the MSPB lacked jurisdiction over the issue presented by the new evidence, as that additional alleged period of creditable service had not been the subject of any decision from the OPM. Therefore, the AJ's decision, which became final before Escobar belatedly filed his petition for review, remained final.
5
The jurisdiction of the MSPB is limited in scope to that granted by Congress; the MSPB therefore only has jurisdiction over appeals from types of actions "specifically enumerated by law, rule or regulation." See Wilson v. Merit Systems Protection Bd., 807 F.2d 1577, 1579 (Fed.Cir.1986). This jurisdiction includes appeals of "final decisions" of the OPM. 5 C.F.R. Sec. 831.110 (1990). Therefore, the MSPB was correct in holding that it did not have jurisdiction to decide whether the previously unaddressed (by the OPM) employment is creditable under the CSRA, even if Escobar's appeal had been timely filed.
6
We review an MSPB decision to determine if it is arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, procedurally defective, or unsupported by substantial evidence. 5 U.S.C. Sec. 7703 (1988). Since the MSPB's decisions here did not violate any of these standards, we must affirm. The issue of whether or not the appeal to the MSPB was timely filed is therefore moot and need not be addressed.
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19 A.3d 302 (2011)
SILVERBERG
v.
BOLOGNA.
No. 241, 2011.
Supreme Court of Delaware.
May 16, 2011.
DECISION WITHOUT PUBLISHED OPINION
Appeal Refused.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RACHEL COLLINS, individually and as
Administrator (Personal
Representative) of the Estate of
John Henry Collins,
Plaintiff-Appellant,
v.
No. 95-2805
RJ REYNOLDS TOBACCO COMPANY;
THE AMERICAN TOBACCO COMPANY,
Defendants-Appellees,
and
RJR NABISCO, INCORPORATED,
Defendant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., District Judge.
(CA-94-1563-3-17)
Argued: June 6, 1996
Decided: August 12, 1996
Before WILLIAMS and MICHAEL, Circuit Judges, and
JACKSON, United States District Judge for the
Eastern District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: David Edward Belding, Columbia, South Carolina, for
Appellant. Carl Belden Epps, III, TURNER, PADGET, GRAHAM &
LANEY, P.A., Columbia, South Carolina; Christopher James Daniels,
NELSON, MULLINS, RILEY & SCARBOROUGH, Columbia,
South Carolina, for Appellees. ON BRIEF: William A. Wehunt,
Jonesboro, Georgia, for Appellant. CHADBOURNE & PARKE,
L.L.P., New York, New York, for Appellee American Tobacco;
JONES, DAY, REAVIS & POGUE, Washington, D.C., for Appellee
R.J. Reynolds Tobacco.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant Rachel Collins brought a wrongful death and personal
injury action against Appellees after her husband, John Henry Collins
("Collins"), died of chronic obstructive pulmonary disease ("COPD").
She appeals the district court's granting summary judgment against
her. For the following reasons, we affirm the district court's ruling.
I.
Appellant is a Georgia resident, as was her husband. In his capacity
as a truck driver, Collins travelled throughout the United States, occa-
sionally accompanied by his son. Collins began smoking Appellees'
cigarettes in 1949. Appellant claims that Collins bought a significant
amount of Appellees' cigarettes on his weekly truck trips through
South Carolina; she further claims that he smoked some of the ciga-
rettes in that state.
On October 3, 1986, in Georgia, a doctor advised Collins to stop
smoking because Collins had performed poorly on pulmonary func-
2
tion tests. The same year, Collins acknowledged that he had a history
of emphysema. On February 25, 1987, Collins entered a hospital in
Georgia for treatment of respiratory distress. The medical records
show that he exhibited signs of COPD and that doctors advised him
that he must quit smoking. (J.A. at 189-92.) On July 7, 1991, Collins
died of COPD in Atlanta. (J.A. at 179.)
Appellant filed this action on June 2, 1994; service was effective
on July 3 of that year. Appellees are non-South Carolina corporations
that manufacture and market cigarettes in South Carolina. The district
judge granted summary judgment for Defendants-Appellees on the
ground that the South Carolina "door-closing statute" deprived the
court of subject-matter jurisdiction. S.C. CODE ANN. § 15-5-150 (Law.
Co-op. 1977). In the alternative, he found that the action was time-
barred. (J.A. at 164-78.)
The court of appeals reviews the district court's granting of sum-
mary judgement de novo. Farwell v. Un , 902 F.2d 282, 287 (4th Cir.
1990). Summary judgment is appropriate when "the pleadings, depo-
sitions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as
a matter of law." Fed. R. Civ. P. 56(c). We construe all facts and draw
reasonable inferences in the nonmovant's favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986).
II.
A.
South Carolina's door-closing statute precludes a nonresident of
the state from bringing suit in South Carolina against a foreign corpo-
ration unless the cause of action arises in the state or the state is the
site of the subject of the action. See Nix v. Mercury Motor Express,
Inc., 242 S.E.2d 683, 684-85 (S.C. 1978). The preliminary question
presented is whether the cause of action arose in South Carolina for
purposes of the statute. Appellant claims that Collins's purchase and
use of cigarettes in South Carolina is sufficient to establish jurisdic-
tion. We disagree.
3
This Circuit has not decided the issue of how to analyze contacts
with the forum in this context. We need not reach this question, how-
ever, because we are persuaded that Collins maintained insufficient
contact with South Carolina to overcome application of the door-
closing statute. Collins was a life-long resident of Georgia. He was
treated for COPD in Georgia and died in Georgia. His purchase and
use of cigarettes in South Carolina, which remains unproven except
for an insignificant percentage of the total packages he bought and
consumed throughout the country, is too tenuous to qualify as "caus-
ing" death in the instant case.
To highlight the insufficiency of Collins's contacts with South Car-
olina, Appellees point out that Appellant's deposition proves only that
Collins purchased one carton of cigarettes in South Carolina. (J.A. at
73.) Though Appellant stated in an affidavit that"almost all" of Col-
lins's cigarettes were purchased in that state, she refuted that assertion
at deposition, when she testified that the statement in the affidavit had
not been based on personal knowledge. She testified instead that she
had never observed Collins purchase cigarettes in South Carolina, but
had merely seen him smoking cigarettes at home that he had bought
in South Carolina and saw one carton of cigarettes with a South Caro-
lina stamp on it. (J.A. at 73, 76-78.) Similarly, Appellant's reliance
on the personal knowledge of the Collins's son Dexter is weak. Dex-
ter testified vaguely that he had witnessed his father buy some cartons
of cigarettes in South Carolina. This statement loses its potential
weight by Dexter's failure to distinguish Collins's purchases in South
Carolina from those he witnessed throughout the United States. (J.A.
at 92-105.)
We are further persuaded that Appellant cannot sue in South Caro-
lina by the considerations noted in Szantay v. Beech Aircraft Corp.,
349 F.2d 60 (4th Cir. 1965). In Szantay, we held that courts must bar
actions under the door-closing statute unless they find affirmative
countervailing federal considerations. Id. at 64. We refused to apply
the door-closing statute in that case in light of the following counter-
vailing federal considerations: (1) the purpose in granting diversity
jurisdiction, which was to avoid discrimination against nonresidents;
(2) the policy of encouraging a state to enforce the laws of its sister
states; (3) the inability to serve one of the defendants outside South
Carolina. Id. at 65. The importance of the last factor is paramount. In
4
Bumgarder v. Keene Corp., 593 F.2d 572 (4th Cir. 1979), we barred
an asbestosis action under the door-closing statute when the plaintiff,
a nonresident, could have maintained a suit in North Carolina, where
he lived, worked, and was exposed to asbestos. We barred a personal
injury claim on the same ground in Proctor & Schwartz, Inc. v.
Rollins, 634 F.2d 738 (4th Cir. 1980). We noted that the plaintiff's
choice of forum had been dictated by South Carolina's relatively long
statute of limitations, compared to Georgia, id. at 739, and found it
inconsequential that the statute of limitations in Georgia had elapsed:
"A plaintiff's failure to timely file suit in the more logical, convenient
forum does not constitute a countervailing consideration favoring the
exercise of federal jurisdiction." Id. at 740.
In the instant case, Georgia clearly constitutes an alternative forum
for Appellant, whose husband lived, received medical treatment, and
died there. Following Rollins, we find that the fact that the statute of
limitations in Georgia has lapsed is insufficient to overcome barring
this action under the door-closing statute. The district court properly
held that it lacked subject-matter jurisdiction over Appellees.
B.
Alternative grounds also existed to grant the motion for summary
judgment as to both the personal injury and wrongful death claims.
First, Appellant has no right to bring a claim pursuant to the South
Carolina wrongful death statute. In addition, we agree with the district
court's finding that Appellant's personal injury claim is time-barred.
The South Carolina wrongful death statute tests the right of an
administrator to maintain an action on behalf of a decedent by deter-
mining whether the decedent could have maintained an action for the
injury, had he or she survived. S.C. CODE ANN. § 15-51-10 (Law. Co-
op. 1977); Nix v. Mercury Motor Express, Inc. , 242 S.E.2d 683, 685
(S.C. 1978) (stating rule). This question returns us to our previous dis-
cussion concerning whether the cause of action arose in South Caro-
lina for purposes of the door-closing statute. See supra part II.A. For
the same reasons that we hold that the door-closing statute bars the
action, we find that the Appellant had no right to file a claim against
Appellees under the South Carolina wrongful death statute.
5
As to the personal injury claim, the parties agree that South Caro-
lina law, which provides a statute of limitations of six years for claims
arising prior to April 5, 1988, applies. S.C. CODE ANN. § 15-3-530(5)
(Law. Co-op. Supp. 1995). The parties disagree as to the date of
accrual, which the statute defines as the date the decedent knew or by
exercise of reasonable diligence should have known that he had a
cause of action. S.C. CODE ANN. § 15-5-535 (Law. Co-op. Supp.
1995). Statutes of limitations on personal injury actions concerning
chronic diseases begin to run at diagnosis. Guy v. E.I. DuPont de
Nemours & Co., 792 F.2d 457, 459 (4th Cir. 1986). The time is tolled
for eight months after death. S.C. CODE ANN. § 62-3-109 (Law. Co-
op. 1987).
The district court found that the cause of action accrued on October
3, 1986. It reasoned that Collins effectively learned that he suffered
from pulmonary disease on that date because of his poor pulmonary
function tests and his doctor's advice to stop smoking. Accounting for
the eight-month tolling of the statute, the district judge properly found
that the statute of limitations lapsed on June 3, 1993, one year before
Appellant filed the action.
Appellant argues that Collins did not know that smoking caused his
injury.* However, while it is unclear whether the doctor formally
diagnosed Collins with COPD on October 3, 1986, the medical
records reveal that he told Collins of the poor pulmonary function test
results and that Collins should stop smoking. The inference between
proposed treatment of respiratory distress and the underlying diagno-
sis should have been obvious to Collins. Collins also acknowledged
his history of emphysema that same year. Accordingly, the district
court properly found that the claim was time-barred.
AFFIRMED
_________________________________________________________________
*Collins died of COPD. During his lifetime, doctors discussed Col-
lins's history of emphysema and the pulmonary distress from which he
was suffering. At oral argument, Appellant argued that causes of action
should not accrue until individuals are apprised of the exact disease that
caused death. We are unpersuaded by this argument. Regardless, since
COPD is a form of emphysema, the argument is unavailing.
6
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Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2010-335
JANUARY TERM, 2011
In re D.F. and A.F., Juveniles } APPEALED FROM:
}
}
} Superior Court, Windsor Unit
} Family Division
}
} DOCKET NOS. 107/108-11-08 Wrjv
Trial Judge: M. Kathleen Manley
In the above-entitled cause, the Clerk will enter:
Mother and father appeal separately from a family court order terminating their residual
parental rights to the minors D.F. and A.F. Mother contends the court erroneously failed to make
adequate findings and conclusions concerning allegedly deficient case management by the
Department for Children and Families (DCF). Father contends: (1) the evidence was insufficient
to support the court’s finding that his parenting ability had stagnated; (2) the standards for
determining stagnation are vague and overbroad; (3) the standards for termination of parental
rights are unconstitutional; (4) the State’s allegedly improper motives in seeking a termination of
parental rights is an abuse of process; (5) the State’s adoption statutes are unconstitutional; (6)
the court improperly failed to address father’s claim of retaliation; and (6) the court violated
father’s constitutional rights in denying his request for funds to obtain an independent
psychological evaluation. We affirm.
D.F. and A.F. came into DCF custody in November 2008. D.F. was three days old and
A.F. was then five years old. Hospital personnel had observed that mother failed to respond to or
care for the infant. On visits to the hospital with father, A.F. was observed by hospital staff to be
covered with dirt and dried feces, and wearing a diaper full of feces and urine. The staff fed her
and bathed her and washed her clothes. A.F. spent long hours at the hospital, including until
after one o’clock in the morning on one occasion, which concerned the hospital staff. A home
visit revealed an overpowering stench of cat feces and urine and congealed food, and clutter so
thick that it was unsafe. The parties stipulated to an adjudication of children in need of care or
supervision (CHINS) and the children were placed in foster care, where they have since
remained.
Mother and father agreed to a disposition plan for reunification conditioned upon an array
of services, including mental health evaluations and follow up recommendations, parenting
classes, and the execution of releases for service providers to communicate with DCF. In
addition, father was asked to participate in anger management and domestic violence programs,
and mother was asked to participate in psychiatric counseling. Based on the parents’ minimal
participation in services or progress under the plan, DCF altered the goal to termination of
parental rights (TPR) and filed TPR petitions in May 2009. A substantial delay ensued, during
which time DCF continued to offer services to the parents and encouraged them to participate.
A hearing on the petitions was held over the course of several days in March 2010. The
court subsequently issued a written ruling setting forth extensive findings and conclusions. The
court found, in summary, that both parents had failed to participate in a substantial portion of the
recommended services, and that both had revoked the releases allowing service providers to
communicate with DCF. Furthermore, over the course of eighteen months of supervised visits
and instruction by a parent educator, mother had failed to develop minimal child care skills. She
had declined to follow through with referrals to psychiatrists or to participate in mental health
counseling, and she continued to have substantial untreated mental health issues. The court thus
found that mother had developed no ability to adequately and safely parent the infant and no
insight into the effect of her angry outbursts and neglect on the children. In addition, issues of
unsafe and unsanitary living conditions remained.
Father’s supervised visits with A.F. had led to substantial distress in the child, an
investigation into suspected child abuse, and a disorderly conduct charge resulting from a
confrontation with a DCF social worker to which father ultimately pled no contest. Father failed
to participate in domestic violence counseling or to complete anger management counseling,
although it was a requirement of the case plan and a condition of his probation for the disorderly
conduct conviction. This led to a suspension of father’s supervised visits in early 2009, and
ultimately a protective order authorizing the resumption of visits conditioned upon his
participation in a domestic violence program, which he failed to undertake. Father ultimately
declined to engage with the parent educator, and terminated her visits.
A.F. was diagnosed with post-traumatic stress disorder and began regular counseling
while in foster care. Although frequent supervised visits with mother were part of the original
plan, A.F. became extremely distressed during the visits, exhibiting odd and often sexualized
behaviors. Upon the recommendation of A.F.’s therapist, the frequency of the visits decreased,
and A.F.’s anxieties lessened. She has since made gains in school and was happy living with her
foster parents and D.F, with whom she had formed close attachments. D.F. had also exhibited
stress during parental visits but improved when the visits decreased in frequency, and she
appeared to have formed attachments with her foster parents and A.F.
Based on the foregoing, the trial court found that each parent’s failure or refusal to
engage in an array of services, and mother’s failure to make any significant progress in
developing basic parenting skills, supported a finding of stagnation. Applying the best interests
of the child criteria, the court found that no strong relationships had developed between the
parents and either child, that neither parent was any closer to being able to provide a safe and
stable home for the children than when they came into DCF custody, and that neither could
resume parental rights and responsibilities within a reasonable period of time. Accordingly, the
court granted the petition to terminate without limitation as to adoption. These appeals followed.
Mother challenges none of the trial court’s findings summarized above. Rather, she
contends the trial court failed to make required findings concerning DCF’s alleged deficient case
management. The claim is unpersuasive. The trial court is not required to make specific
findings as to whether DCF made reasonable efforts to assist a parent, although such findings
may be relevant to determining whether the State has shown that a parent is unable to resume
parental responsibilities within a reasonable period of time. In re J.T., 166 Vt. 173, 180 (1997).
The record here discloses that the children came into DCF custody in November 2008, and that
mother was offered an extensive array of services from that time until the termination hearing,
some sixteen months later. Mother’s claim of deficiency focuses exclusively on the first seven
months of that period, from November 2008 to May 2009, and the efforts of the DCF social
worker assigned to the case at the time. The social worker testified that she made several initial
2
home visits, drafted the first disposition report and case plan, and regularly visited the parents in
their home along with the parent educator at least twice a month, until father terminated the
visits. The social worker also regularly transported both children to their supervised parental
visits several times a week. Thus, the record does not support mother’s claim that the social
worker’s efforts were fundamentally inadequate.
Mother contends, nevertheless, that the social worker was deficient in several specific
respects, including her failure to contact the parents’ attorney to obtain the release of records that
the parents had rescinded, to contact mother’s doctors concerning her medications, to speak with
A.F.’s former daycare provider, and to assemble a treatment team. Mother does not claim or
demonstrate, however, that her fundamental inability to assume parental responsibilities within a
reasonable time was somehow due to these alleged deficiencies or to circumstances beyond her
control. Moreover the trial court here specifically found that any delay in providing the full
measure of support during this period was due principally to choices made by the parents, and
that any deficiencies were rectified by May 2009, when a different social worker (who had
worked with the parents previously) assumed management of the case. Mother does not
challenge these findings, or contend that DCF’s efforts over the ensuing nine months were
inadequate in any respect. Accordingly, we find no merit to the claim, and no basis to disturb the
judgment.
Father raises a number of claims. He contends the evidence was inadequate to show that
his parenting abilities had stagnated sufficiently to demonstrate a change of circumstances. See
In re D.C., 168 Vt. 1, 4 (1998) (in order to terminate parental rights, State must prove at the
threshold that there has been a material change of circumstances, which is most often found
when parent’s ability to care properly for children has stagnated). Our review on appeal is
limited to determining whether the trial court’s factual findings are supported by credible
evidence, and whether the findings support its conclusions. Id.
Father claims that the trial court could not find stagnation because he was not afforded a
reasonable opportunity to care for the children in the first instance. The record, however, shows
that father’s supervised visits were limited and ultimately terminated based on his own
threatening and inappropriate behavior toward both the children and the visitation supervisors,
and there was ample record evidence to support these findings. Any lack of contact, therefore,
was due solely to his own behavior, not to factors “beyond his control.” In re K.F., 2004 VT 40,
¶ 12, 176 Vt. 636 (mem.) (holding that father’s lack of parent-child contact was attributable to
his own criminal behavior and non-participation in programming and not to factors beyond his
control); In re A.D.T., 174 Vt. 369, 376 (2002) (holding that trial court properly relied on
mother’s lack of contact with children where visitation was denied due to her own conduct).
Father also challenges as unconstitutional several TPR provisions, arguing that the
standards for finding a substantial change of circumstances are “vague, overbroad, and
ultimately, self-serving”; that the statutory factors for determining a child’s best interests are
“vague, ambiguous, overbroad and subject to arbitrary and capricious interpretation”; and that
the Vermont statutes providing for confidentiality of adoption proceedings violate his First
Amendment rights. The claims are conclusory, find no support in the authorities cited, and
require no extended discussion to reject as lacking in merit.
Father further claims that the TPR petition in this case was an abuse of process because
the State’s underlying motive was to obtain federal funds for children freed for adoption. There
is a presumption that government officials act honestly and impartially in their official capacities,
and the burden of proof is on the party claiming otherwise. Brody v. Barasch, 155 Vt. 103, 109-
3
10 (1990). Father has adduced no evidence to support his allegation. Accordingly, we find no
merit to the claim.
In a similar vein, father contends the trial court erred in failing to make findings
concerning a claim that DCF filed the TPR petition in retaliation for father’s providing
information that led to the arrest and conviction of the brother of a DCF supervisor. The only
evidence adduced at trial in this regard was father’s vague testimony that the individual in
question told father that he had a relative who worked for DCF who could assist him. Findings
are required to address only those facts “essential to the disposition.” New England P’ship v.
Rutland City Sch. Dist., 173 Vt. 69, 74 (2001). Father adduced no credible evidence to support
his allegation of “retaliation,” and we find no error in the court’s failure to address the issue.
Finally, father contends the court violated his constitutional rights in denying a motion
for funds to obtain an independent psychological evaluation of A.F. Father claimed in the
motion that he was indigent and required $10,000 to hire an expert psychologist. At the hearing
on the motion, he asserted that the independent evaluation was necessary to rebut the child’s
therapist, who had filed reports alleging that father sexually abused the child. Although the basis
of father’s claimed entitlement to funding is unclear, we find no error here based on the trial
court’s clear and explicit ruling that the therapist’s testimony did not support a finding that father
had sexually or physically abused A.F., and the allegation played no part in the court’s decision.
Accordingly, the court’s denial of the motion for funds was harmless, and provides no basis to
disturb the judgment.
Affirmed.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
4
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914 F.2d 249Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Olakunle Lanre ARIGBEDE, a/k/a The Doctor, a/k/a Kunle,Defendant-Appellant.In re Olakunle Lanre ARIGBEDE, Petitioner.
No. 90-7314.
United States Court of Appeals, Fourth Circuit.
Submitted Aug. 10, 1990.Decided Sept. 21, 1990.Rehearing and Rehearing In Banc Denied Oct. 18, 1990.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Joseph H. Young, District Judge. (CR-87-68; CA-89-1688).
On Petition for Writ of Mandamus.
Olakunle Lanre Arigbede, appellant pro se.
Gregory Walsh, Office of the United States Attorney, Baltimore, Md., for appellee.
D.Md.
AFFIRMED IN NO. 90-7314; PETITION DENIED NO. 90-8020.
Before K.K. HALL and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:
1
Olakunle Lanre Arigbede appeals from the district court's order refusing relief under 28 U.S.C. Sec. 2255 (No. 90-7314). Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court. United States v. Arigbede, CR-87-68; CA-89-1688 (D.Md. June 8, 1989).
2
Arigbede also has filed a writ of mandamus (No. 90-8020) seeking reversal of various rulings by the district court. We reject Arigbede's attempt to use mandamus as a substitute for an appeal. See In re United Steelworkers, 595 F.2d 958, 960 (4th Cir.1979). Thus, we grant leave to proceed in forma pauperis and deny Arigbede's petition for a writ of mandamus.*
3
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.
4
No. 90-7314, AFFIRMED.
5
No. 90-8020, PETITION DENIED.
*
In light our disposition of Arigbede's petition for a writ of mandamus, we deny his motion for release pending consideration of his mandamus petition
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In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3451
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D WIGHT D. D ELONEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 07 CR 7—Rudy Lozano, Judge.
A RGUED M AY 15, 2009—D ECIDED A UGUST 25, 2009
Before E ASTERBROOK, Chief Judge, and B AUER and
F LAUM, Circuit Judges.
B AUER , Circuit Judge. In 2007, Dwight D. Deloney
pleaded guilty to possessing with intent to deliver crack
cocaine and was sentenced to 87 months’ imprisonment.
On appeal, Deloney claims that the sentence was unrea-
sonable; he argues that the district court failed to give
meaningful consideration to the statutory sentencing
factors and, moreover, should have sentenced him ac-
cording to the then-impending amendment to the Sen-
2 No. 07-3451
tencing Guidelines, which later reduced the penalties for
most crack cocaine offenses. We affirm.
I. BACKGROUND
On January 17, 2007, Deloney was indicted on three
counts of distributing crack cocaine and one count of
possessing with intent to distribute at least five grams of
cocaine, in violation of 21 U.S.C. § 841(a)(1). He later
pleaded guilty to the possession charge; the govern-
ment dismissed the remaining counts. A presentence
investigation report (PSR) concluded that Deloney distrib-
uted a total of 11.9 grams of crack cocaine during three
controlled buys and that another 30.4 grams of crack
cocaine were found in his bedroom during the execu-
tion of a federal search warrant.
Deloney had no major offenses in his criminal history
and was credited with a three-point reduction to his
base offense level for accepting responsibility for his
actions; however, the PSR also recommended that the
district court enhance Deloney’s base offense level by
two points for possessing a rifle in connection with his
drug offenses. Deloney objected to the enhancement. In
sum, the PSR concluded that Deloney’s total offense
level was 29, yielding a Guidelines sentencing range of 87-
108 months.
At his sentencing hearing, Deloney asked for a below-
Guidelines sentence based on his lack of serious criminal
history; his education, work experience, and family
support; and his voluntarily enrollment in a drug treat-
No. 07-3451 3
ment program. He also urged the court to consider im-
pending changes to the Sentencing Guidelines which
would reduce the sentencing disparity between crack
and powder cocaine. Although the amendment had been
adopted by the Sentencing Commission, it had not yet
gone into effect.
The district court also heard evidence and argument
on the gun enhancement. After determining that Deloney
presented only incredible testimony disputing the gov-
ernment’s evidence that a rifle was found in his bedroom
closet during a lawful search of his home, the court gave
Deloney the opportunity to withdraw his objection;
Deloney did so. The district court rejected Deloney’s
request for a non-Guidelines sentence and sentenced
him to 87 months’ imprisonment. Deloney filed a timely
notice of appeal.
II. DISCUSSION
On appeal, Deloney claims that the district court failed
to give meaningful consideration to the 18 U.S.C. § 3553(a)
factors before sentencing him to a term of imprisonment
at the bottom of the applicable Guidelines range. He
also argues that the district court should have factored
in the impending amendment to the Sentencing Guide-
lines that would have made Deloney eligible for a two-
level reduction in base offense level. We consider each
argument in turn.
We review sentences for reasonableness, using an abuse
of discretion standard. United States v. Panaigua-Verdugo,
4 No. 07-3451
537 F.3d 722, 727 (7th Cir. 2008). A sentence that falls
within the properly-calculated Guidelines range, as
Deloney’s sentence does, is presumed reasonable. Id.
The district court must consider and balance the wide
range of factors enumerated in section § 3553(a). United
States v. Blue, 453 F.3d 948, 954 (7th Cir. 2006). We owe
deference to the district court’s resolution of those
factors, but may intervene if the court has “altogether
ignored a relevant consideration” or “unreasonably
discounted a factor so weighty as to compel a sentence
outside of the Guidelines range.” Id. However, a district
court is not obligated to “address each § 3553(a) factor
in checklist fashion, explicitly articulating its conclusion
for each factor; rather, the court must simply give an
adequate statement of reasons, consistent with § 3553(a)
for believing the sentence it selects is appropriate.”
Panaigua-Verdugo, 537 F.3d at 728.
According to Deloney, the district court merely went
through the motions in imposing his sentence, glossing
over the substantial amount of evidence that weighed
in his favor including lack of serious criminal history,
strong family ties, college education, completion of a
drug treatment program, and “extreme remorse” for
his crime.
However, having reviewed the record and the district
court’s reasons for sentencing Deloney as it did, we are
satisfied that Deloney’s sentence is a reasonable one. In
sentencing Deloney at the bottom of the 87-108 month
advisory Guideline range, the district court sufficiently
analyzed the factors and explained the reasons for his
No. 07-3451 5
sentence. For instance, the court noted that it considered
Deloney’s offense to be “very serious,” acknowledged
its duty to impose a sentence that served as a sufficient
deterrent, and made reference to Deloney’s relatively
clean criminal record as well as the strong support he
had received from his family. While the district court
did not address each § 3553(a) factor, it was not required
to do so. After all, “a sentencing judge has no more duty
than we appellate judges do to discuss every argument
made by a litigant; arguments clearly without merit can,
and for the sake of judicial economy should, be passed
over in silence.” United States v. Cunningham, 429 F.3d
673, 678 (7th Cir. 2005).
Deloney also points to several comments the court
made during the sentencing hearing which, he argues, are
illustrative of the pre-determined nature of the proceed-
ings. These include two questions the court directed to
Deloney which, when read in isolation, seem to suggest
a disregard for the testimony presented on his behalf.
The court asked Deloney whether he had submitted any
letters attesting to his character, even though numerous
such letters had been attached to his file and were in the
court’s possession; the court also asked Deloney if his
mother was alive, despite the fact that his mother had
testified at the sentencing hearing.
However, when viewed in their proper context, these
comments reveal nothing more than slips of the tongue.
The sentencing hearing was an extended affair that
stretched out over three different dates. Although the
judge seemed to momentarily forget that Deloney’s
6 No. 07-3451
mother had testified during a proceeding that had earlier
taken place, it does not indicate that the judge failed to
consider the § 3553(a) factors. At the conclusion of the
sentencing hearing, the court specifically noted Deloney’s
strong family presence:
I have to take a look at my duty toward society, and
I have to take a look at you, because I don’t want you
in that orange jump suit, Mr. Deloney. I want you back
here, I want you back with your family. Your family
has been very loyal to you, they have been here for
all these hearings. That’s where you belong.
Moreover, the record does not suggest that the court
failed to consider the letters that were submitted on
Deloney’s behalf. Rather, it suggests that the court was not
careful in making the distinction between the letters
that were attached to Deloney’s file, which it had
received, and letters that may have been sent directly to
the judge’s chambers, which it had not.
We find that the district court’s statement of reasons
reflect meaningful reflection and deliberation and, in
light of these considerations, its decision to impose a
sentence at the low end of the Guidelines range was
certainly reasonable.
Deloney next argues that the district court should have
considered the soon-to-be amended Guidelines in
deciding what sentence to impose. Under the amended
Guidelines, later given retroactive effect, the penalties for
most crack cocaine drug offenses were reduced by two
levels. Deloney concedes that the amendment had not yet
taken effect, but nevertheless argues that the court erred
No. 07-3451 7
by failing to consider his “eligibility for the two level
reduction based on the retroactivity of the statute,” which
would become effective “a little over a month” after
his sentencing.
Deloney’s argument is frivolous. Before a Guidelines
amendment can be applied retroactively, it must first be
active. The law is clear—a district court is to apply the
Guidelines in effect at the time of sentencing. U.S.S.G.
§ 1B1.11(a). At the time of Deloney’s sentencing, he was
ineligible for a reduction to his base offense level; the
fact that changes to the Guidelines were imminent is of
no consequence. See United States v. Alexander, 553 F.3d
591, 592 (7th Cir. 2009) (district court not required to
consider pending amendment to criminal-history Sen-
tencing Guideline in sentencing defendant as a career
offender).
That being said, those Guidelines changes have since
taken effect and, because they are indeed retroactive,
Deloney appears eligible for a sentencing reduction.
However, Deloney has not yet brought a claim seeking
such relief and the issue is not one for our consid-
eration today.
For the foregoing reasons, we A FFIRM the judgment
and sentence of the district court.
8-25-09
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Filed 8/5/13 P. v. Ferguson CA5
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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent, F064495
v. (Super. Ct. Nos. 11CM8769 & 11CM8916)
KEVIN ERNEST FERGUSON, OPINION
Defendant and Appellant.
THE COURT
APPEAL from a judgment of the Superior Court of Kings County. James T.
LaPorte, Judge.
Michael Willemsen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Charity
S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Before Wiseman, Acting P.J., Kane, J., and Peña, J.
In case No. 11CM8769 appellant, Kevin Ernest Ferguson, pled guilty to receiving
stolen property (Pen. Code, § 496, subd, (a))1 and admitted allegations that he had a prior
conviction within the meaning of the three strikes law (§ 667, subds. (b)-(i)). In case No.
11CM8916 Ferguson pled guilty to receiving stolen property.
On January 17, 2012, the court sentenced Ferguson to an aggregate term of four
years eight months in both cases. The court also ordered Ferguson to pay victim
restitution of $8,000 in case No. 11CM8769.
On appeal, Ferguson contends the court erred in ordering him in case No.
11CM8769 to pay $8,000 in victim restitution. We will find merit to this contention and
reverse the court‟s restitution order. In all other respects, we will affirm.
FACTS2
On July 15, 2011, Chris Rozzell left this home in Avenal and went to Los Angeles
after receiving a report that his father had passed away.
On July 17, 2011, Avenal police received a report that Rozzell‟s home had been
burglarized. After receiving information that Lisa Tune and Ferguson committed the
burglary, an officer contacted Tune as she sat in her car. Tune told the officer she
purchased several items that were in her car from eBay and that other items had been left
there by Ferguson. The officer then contacted Rozzell and he identified some of the
items Ferguson gave to Tune as belonging to him. These items included a reciprocating
saw and an NEC brand laptop.
1 All further statutory references are to the Penal Code.
2 The facts relating to case No. 11CM8916 are omitted because they are not
germane to the issues Ferguson raises.
2
During a search of Ferguson‟s apartment later that day, police officers found
several other items belonging to Rozzell including personal checks and a Nintendo WII
gaming console.
On August 3, 2011, at a preliminary hearing in case No. 11CM8769 the court held
Ferguson to answer on a charge of receiving stolen property, but not on a charge of
burglary.
On August 16, 2011, the district attorney filed an information in case No.
11CM8769 charging Ferguson with a single count of receiving stolen property.
On December 19, 2011, Ferguson entered his plea in both cases. As part of his
plea bargain Ferguson waived his appellate rights. In taking a waiver of these rights the
court stated: “All right. Mr. Ferguson, do you understand that by entering a plea in this
case you will be waiving your appellate rights as part of your plea agreement?” Ferguson
responded that he did.
The probation report indicated that as a result of the burglary at his residence the
victim submitted a claim of $8,000 to his insurance company but was reimbursed only
$5,000 because of depreciation.
On January 17, 2012, the court sentenced Ferguson pursuant to his plea agreement
to an aggregate term of four years eight months, the middle term of two years on
Ferguson‟s conviction in case No. 11CM8769, doubled to four years because of his prior
strike conviction in that case, and a consecutive eight-month term on his conviction in
case No. 11CM8916. The court also ordered Ferguson, without objection, to pay $8,000
in victim restitution in case No. 11CM8769.
DISCUSSION
Ferguson contends the court erred when it ordered him in case No. 11CM8769 to
pay $8,000 in victim restitution because: 1) restitution can be only be ordered for the
crime a defendant is convicted of; and 2) this amount did not relate to the receiving stolen
3
property offense that he pled to in that case. Respondent contends this claim is not
properly before us because Ferguson forfeited his right to challenge this restitution order
by his failure to object to it in the trial court and he waived his appellate rights.
Alternatively, respondent contends the restitution order was proper because Ferguson was
found in possession of property belonging to the victim and there is no evidence the
victim recovered this property. We agree with Ferguson.
“We review the trial court‟s restitution order for abuse of discretion.
[Citation.] A restitution order that is based on a demonstrable error of law
constitutes an abuse of the trial court‟s discretion. [Citation.]” (People v.
Woods (2008) 161 Cal.App.4th 1045, 1048-1049.)
“While it is true that crime victims in California have a right to
restitution, the right to recover from any given defendant is not unlimited.
Our Constitution provides that „It is the unequivocal intention of the People
of the State of California that all persons who suffer losses as a result of
criminal activity shall have the right to restitution from the persons
convicted of the crimes for losses they suffer.‟ (Cal. Const., art. I, § 28,
subd. (b).) The Legislature has affirmed this intent, providing in [Penal
Code] section 1202.4, subdivision (a)(1), that a „victim of crime who incurs
any economic loss as a result of the commission of a crime shall receive
restitution directly from any defendant convicted of that crime.‟
“Courts have interpreted section 1202.4 as limiting restitution
awards to those losses arising out of the criminal activity that formed the
basis of the conviction. „Subdivision (a)(3)(B) of section 1202.4 requires
the court to order “the defendant”—meaning the defendant described in
subdivision (a)(1), who was “convicted of that crime” resulting in the
loss—to pay “[r]estitution to the victim or victims, if any, in accordance
with subdivision (f).” Subdivision (f) of section 1202.4 provides that “in
every case in which a victim has suffered economic loss as a result of the
defendant’s criminal conduct, the court shall require that the defendant
make restitution to the victim or victims in an amount established by court
order, based on the amount of loss claimed by the victim or victims or any
other showing to the court.” (Italics added.) Construed in light of
subdivision (a)(1) and (3)(B), the term “criminal conduct” as used in
subdivision (f) means the criminal conduct for which the defendant has
been convicted.‟ [Citation.]
4
“This limitation does not apply in the context of grants of probation.
„California courts have long interpreted the trial courts‟ discretion to
encompass the ordering of restitution as a condition of probation even when
the loss was not necessarily caused by the criminal conduct underlying the
conviction. Under certain circumstances, restitution has been found proper
where the loss was caused by related conduct not resulting in a conviction
[citation], by conduct underlying dismissed and uncharged counts
[citation], and by conduct resulting in an acquittal [citation].‟ [Citation.]
However, when a court imposes a prison sentence following trial, section
1202.4 limits the scope of victim restitution to losses caused by the criminal
conduct for which the defendant sustained the conviction.” (People v.
Woods (2008) 161 Cal.App.4th 1045, 1049-1050.)
Ferguson‟s receipt of stolen property conviction was based on his possession of
several items of property police found in his apartment and/or in Tune‟s car two days
after the victim‟s house was burglarized. Presumably, these items were returned to the
victim by the police. (Cf. People v. Scroggins (1987) 191 Cal.App.3d 502, 506.) Thus,
the $8,000 victim restitution order was not based on losses the victim suffered as a result
of criminal conduct that resulted in Ferguson‟s conviction.
Respondent contends there is no evidence the victim ever recovered the property
and he cites the insurance settlement as evidence of this. However, the portion of the
record respondent cites for this assertion indicates only that the insurance company
reimbursed the victim a depreciated value of $5,000 for his losses. It does not indicate,
as respondent suggests, that this amount included reimbursement for property Ferguson
received which, as noted above, should have been returned to the victim after it was
recovered by police. Thus, we conclude the court abused its discretion when it ordered
Ferguson to pay $8,000 in victim restitution because its restitution order was not based on
losses the victim suffered as a result of the conduct underlying Ferguson‟s criminal
conviction.
5
Ferguson did not Forfeit his Right to Challenge the Restitution
Order Because it was an Unauthorized Sentence
“[T]he „unauthorized sentence‟ concept constitutes a narrow
exception to the general requirement that only those claims properly raised
and preserved by the parties are reviewable on appeal. [Citations.] The
„unauthorized sentence‟ principle also has been invoked to determine
whether claims previously rejected or never raised are procedurally barred
on habeas corpus. [Citations.]
“Although the cases are varied, a sentence is generally
„unauthorized‟ where it could not lawfully be imposed under any
circumstance in the particular case. Appellate courts are willing to
intervene in the first instance because such error is „clear and correctable‟
independent of any factual issues presented by the record at sentencing.
[Citation.]” (People v. Scott (1994) 9 Cal.4th 331, 354.)
The trial court‟s restitution order constituted an unauthorized sentence because it
violated section 1204 by requiring Ferguson to pay restitution for losses not caused by
criminal conduct for which he was convicted even though he was sentenced to prison.
Therefore, notwithstanding Ferguson‟s failure to object to the order in the trial court, we
may correct this error on appeal because it presents a pure question of law.
Respondent contends the restitution order did not constitute an unauthorized
sentence because: 1) there are circumstances under which restitution could be ordered in
the instant case such as if Ferguson‟s receipt of the victim‟s stolen property caused losses
to the victim; and 2) altering the order would require this court to make a fact-intensive
inquiry into Ferguson‟s conduct and the victim‟s losses. Respondent is wrong. An
intensive factual inquiry is unnecessary in order to grant Ferguson the relief he seeks
because, again as noted previously, the victim did not suffer any losses as a result of
Ferguson‟s criminal conduct for which he was convicted.
Moreover, even assuming a waiver of appellate rights can encompass an
unauthorized sentence, we find no merit to respondent‟s contention that Ferguson‟s
waiver of appellate rights precludes him from challenging the restitution order.
6
“„Waiver is ordinarily a question of fact. [Citation.]‟ [Citation.] It
is defined as „[a]n intentional relinquishment or abandonment of a known
right or privilege. The determination of whether there has been an
intelligent waiver ... must depend, in each case, upon the particular facts
and circumstances surrounding that case, including the background,
experience, and the conduct of the accused.‟ [Citation.]
“„[T]he valid waiver of a right presupposes an actual and
demonstrable knowledge of the very right being waived. [Citations.]‟
[Citation.] It „“[i]s the intelligent relinquishment of a known right after
knowledge of the facts.” [Citation.]‟ [Citation.] The burden is on the party
claiming the existence of the waiver to prove it by evidence that does not
leave the matter to speculation, and doubtful cases will be resolved against
a waiver. [Citation.] The right of appeal should not be considered waived
or abandoned except where the record clearly establishes it. [Citation.]”
(People v. Vargas (1993) 13 Cal.App.4th 1653, 1661-1662 (Vargas).)
Like the defendant in Vargas, Ferguson‟s waiver of appellate rights was broad and
general and he was not specifically informed that he would also be waiving possible
future error. (Vargas, supra, 13 Cal.App.4th at p. 1662.) Thus, like the Vargas court we
conclude that “the record in the present case does not support a knowing and intelligent
waiver of defendant‟s right to appeal sentencing error occurring after a general waiver of
the right to appeal.” (Id. at p. 1663.)
DISPOSITION
The restitution order is reversed. The trial court is directed to prepare an amended
abstract of judgment that is consistent with this opinion and to forward a certified copy to
the Department of Corrections and Rehabilitation. As modified, the judgment is
affirmed.
7
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Motion for En Banc Rehearing Denied as Moot, Opinion
of July 21, 2009, Withdrawn, Affirmed
and Substitute Opinion filed November 5, 2009.
In The
Fourteenth Court of
Appeals
____________
NO. 14-08-00061-CV
____________
2900 SMITH, LIMITED AND KATIE PHAM, Appellants
V.
CONSTELLATION NEWENERGY, INC., Appellee
On Appeal from the 190th
District Court
Harris County, Texas
Trial Court Cause No. 2006-68977
S U B S T I T U T E O P I N I O N
Appellants, 2900 Smith Limited (A2900 Smith@) and Katie Pham=s Motion for
Rehearing En Banc is overruled, our memorandum opinion of July 21, 2009 is
withdrawn, and the following substitute opinion is issued in its place.
Appellants appeal from a judgment entered
following a bench trial of a suit on a sworn account. We affirm.
Factual and Procedural Background
Prior to July 21, 2005, 2900 Smith had an
electricity services contract with Azor Energy, L.P. On or about July 21,
2005, Azor Energy ceased doing business in the State of Texas. As a result,
the Electric Reliability Council of Texas (AERCOT@) assigned 2900
Smith to appellee, Constellation NewEnergy, Inc., as the Provider of Last
Resort (APOLR@). As the POLR,
appellee was authorized to charge appellants a much higher rate for electricity
than appellants had been paying to Azor Energy.[1]
Because appellee was the POLR, it was required by state regulation to notify
appellants not only that appellants= electricity
service had been transferred to appellee, but also had to inform appellant of
all charges appellant would now be responsible for paying.
A dispute arose over the amount 2900 Smith
owed appellee for electricity.[2]
Appellants argued appellee had not provided the required notice of the
transition and therefore was overcharging 2900 Smith. When efforts to resolve
the dispute failed, appellee filed a suit on a sworn account against
appellants. In that suit, appellee sought recovery of the amount allegedly
owed for electricity appellants received between July 21, 2005 and February 1,
2006, a period of time covering seven billing cycles. Once appellee agreed to
reduce the billing rate on the first five billing cycles to the Azor Energy
rate, the only remaining dispute at trial was the amount owed for the final two
billing cycles: December, 2005 and January, 2006. According to appellee,
appellants owed $24,833.40 for those two months of electricity service.[3]
Appellants, while not contesting actual receipt of the electricity, denied
owing the amount sought by appellee. In support of their argument, appellants
asserted they never received appropriate notice of the charges they would be
responsible for paying as a result of receiving electricity from appellee.
The trial took place on September 12, 2007
before Judge Jennifer Elrod of the 190th District Court. Vashti Padmore, an
employee of appellee, was the first witness to testify. Ms. Padmore testified
it was appellee=s standard practice to mail a batch notice
to all customers assigned to appellee as the POLR, however, she was unable to
produce a copy of such a letter sent to 2900 Smith. She also testified that
when appellee had not heard any response from 2900 Smith, she initially
contacted 2900 Smith with a telephone call on October 13, 2005. According to
Ms. Padmore, she spoke to a person named Anna and informed Anna that ERCOT had
assigned appellee as 2900 Smith=s electricity provider and of the charges 2900
Smith would have to pay. During this conversation, because 2900 Smith revealed
they were not aware of their POLR status, Ms. Padmore agreed to match the rate
2900 Smith had been paying to Azor Energy through the November 2005 billing
cycle.
Next, James McGrew, another employee of
appellee, testified. In addition to other matters, McGrew testified regarding
the regulations controlling POLR pricing. He then testified that the POLR
pricing was correctly applied to 2900 Smith=s December 2005
and January 2006 bills and that 2900 Smith=s total
outstanding balance for the seven billing cycles was $33,792.60.[4]
During cross-examination, McGrew explained how appellee arrived at the amount
due for the December billing cycle. According to McGrew this billing cycle ran
from November 30, 2005 through January 3, 2006, a longer than normal billing
cycle of 35 days. McGrew also testified that a new, higher, Price to Beat went
into effect on December 16, 2005. Therefore, because there were 18 days on the
new, higher billing rate, and only 17 at the old rate, appellee billed 2900
Smith at the higher rate for the entire billing cycle. McGrew did not testify
as to what the earlier Price to Beat was that was replaced on December 16,
2005.
Following the testimony of appellee=s attorney
regarding her legal fees, Pham testified she did not receive notice of the
switch to appellee until sometime in October 2005. Finally, Pham testified she
could not recall if she received notice of the rates appellee would be
charging.
After the parties had rested, the trial
court instructed appellee to re-bill the December invoice at the lower Azor
Energy rate reducing the amount owed by 2900 Smith to $27,885.42. The trial
court signed a judgment in that amount on October 15, 2007.[5]
On October 22, 2007, appellants filed a Request for Findings of Fact and
Conclusions of Law with the trial court. On November 16, 2007, appellants
filed a Notice of Past Due Findings of Fact and Conclusions of Law. Appellee
filed its own Notice of Past Due Findings of Fact and Conclusions of Law three
days later. On October 4, 2007, Judge Elrod was confirmed to the U.S. Court of
Appeals for the Fifth Circuit and left the bench of the 190th District Court on
a date not disclosed in the appellate record before entering the timely
requested Findings of Fact and Conclusions of Law. Appellants then appealed
to this court. Among their issues was the complaint that the trial court=s failure to enter
Findings of Fact and Conclusions of Law hampered their ability to properly
present their appeal. We abated the appeal and ordered Judge Kerrigan, the new
judge of the 190th District Court, to enter Findings of Fact and Conclusions of
Law. The Findings of Fact and Conclusions of Law were filed with this court on
June 2, 2009 and we reinstated the appeal.
Discussion
A. Is the Trial Court=s Judgment
Supported By Sufficient Evidence?
Appellants raised three issues in this
appeal.[6]
In their third issue, appellants contend the evidence is insufficient to
support the judgment. Appellants do not specify whether they challenge the
legal sufficiency of the evidence, the factual sufficiency, or both. Liberally
construing their brief as we must, we construe appellants= third issue as
challenging both the legal and factual sufficiency of the evidence supporting
the judgment.
1. The Standard of Review
When both legal and factual sufficiency
challenges are raised on appeal, we must first examine the legal sufficiency of
the evidence. City of Houston v. Cotton, 171 S.W.3d 541, 546 (Tex. App.CHouston [14th
Dist.] 2005, pet. denied). In conducting a legal sufficiency review, we must
consider the evidence in the light most favorable to the appealed order and
indulge every reasonable inference that supports it. City of Keller v.
Wilson, 168 S.W.3d 802, 821B22 (Tex. 2005); Harris County v.
Vernagallo, 181 S.W.3d 17, 24 (Tex. App.CHouston [14th
Dist.] 2005, pet. denied); Prairie View A & M Univ. v. Brooks, 180
S.W.3d 694, 705 (Tex. App.CHouston [14th Dist.] 2005, no pet.). The
evidence is legally sufficient if it would enable reasonable and fair-minded
people to reach the decision under review. Keller, 168 S.W.3d at 827B28; Vernagallo,
181 S.W.3d at 24; Brooks, 180 S.W.3d at 705. This court must credit
favorable evidence if a reasonable trier of fact could, and disregard contrary
evidence unless a reasonable trier of fact could not. Keller, 168 S.W.3d
at 827; Vernagallo, 181 S.W.3d at 24; Brooks, 180 S.W.3d at 705.
The trier of fact is the sole judge of the witnesses= credibility and
the weight to be given their testimony. Keller, 168 S.W.3d at 819; Vernagallo,
181 S.W.3d at 24; Brooks, 180 S.W.3d at 705.
This court may sustain a legal
sufficiency, or no evidence, point only if the record reveals one of the
following: (1) the complete absence of a vital fact; (2) the court is barred by
rules of law or of evidence from giving weight to the only evidence offered to
prove a vital fact; (3) the evidence offered to prove a vital fact is no more
than a scintilla; or (4) the evidence established conclusively the opposite of
the vital fact. Keller, 168 S.W.3d at 810; Brooks, 180 S.W.3d at
705. When the evidence offered to prove a vital fact is so weak as to do no
more than create a mere surmise or suspicion of its existence, the evidence is
less than a scintilla and, in legal effect, is no evidence. See Ford Motor
Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).
In reviewing factual sufficiency, we must
examine the entire record, considering both the evidence in favor of, and
contrary to, the challenged findings. See Maritime Overseas Corp. v. Ellis,
971 S.W.2d 402, 406B07 (Tex. 1998); Cain v. Bain, 709
S.W.2d 175, 176 (Tex. 1986). We may set aside the verdict for factual
sufficiency only if it is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust. See Ellis, 971 S.W.2d at
407; Nip v. Checkpoint Systems, Inc., 154 S.W.3d 767, 769 (Tex. App.CHouston [14th
Dist.] 2004, no pet.). The amount of evidence necessary to affirm a judgment
is far less than the amount necessary to reverse a judgment. GTE Mobilnet
of S. Tex. v. Pascouet, 61 S.W.3d 599, 616 (Tex. App.CHouston [14th
Dist.] 2001, pet. denied). We are not a fact finder. Mar. Overseas
Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). Accordingly, we may not
pass upon the witnesses= credibility or substitute our judgment
for that of the jury, even if the evidence would support a different result. Id.
If we determine the evidence is factually insufficient, we must detail the
evidence relevant to the issue and state in what regard the contrary evidence
greatly outweighs the evidence in support of the verdict; we need not do so
when affirming a jury=s verdict. Gonzalez v. McAllen Med.
Ctr., Inc., 195 S.W.3d 680, 681 (Tex. 2006) (per curiam).
2. The Evidence is Legally and Factually Sufficient
Appellants= argument that the
evidence is insufficient to support the trial court=s judgment begins
with the assertion that the only evidence in the record as to a possible date
appellants= received notice of appellee=s higher POLR
charges was the October 13, 2005 telephone call made by Ms. Padmore.
Appellants then contend the trial court must not have accepted Ms. Padmore=s testimony
regarding notice as credible because, in appellants= view, lack of
notice of the new rates is the only possible explanation for the trial court=s decision to
award the lower, Azor Energy rate for the December invoice. Appellants then
conclude that since (1) the trial court disbelieved Ms. Padmore=s testimony
regarding notice of appellee=s charges, and (2) there was no other
evidence in the record establishing notice to appellants of those charges, then
the trial court=s judgment should have also lowered the
January invoice to the Azor Energy rate as well. We disagree that, under the
appropriate standard of review, the evidence is insufficient to support the
trial court=s judgment.
Here, it was uncontested 2900 Smith
received electricity provided by appellee from July 21, 2005 until February 1,
2006. There was undisputed evidence that Ms. Padmore notified appellants that
appellee was providing electricity to 2900 Smith as the POLR in an October 13,
2005 telephone call. There was also undisputed evidence appellee agreed to
charge 2900 Smith the lower Azor Energy rate through the November 30, 2005
billing cycle. In addition, there was evidence that, prior to making the
December 28, 2005 partial payment, appellants received appellee=s billing rates.
The evidence also indicated the next full billing cycle following December 28,
2005, the latest date appellants could have received notice of appellee=s billing rates,
was the final billing cycle from January 3, 2006 through February 1, 2006.
The evidence summarized above, when viewed
in a light favorable to the trial court=s decision, is
legally sufficient evidence to support the trial court=s judgment in this
case. In addition, after examining all of the evidence, the trial court=s judgment is not
so contrary to the evidence as to be clearly wrong and unjust. Therefore, the
evidence is factually sufficient. We overrule appellants= single remaining
issue on appeal.
Conclusion
Having addressed each of appellants issues
on appeal, we affirm the trial court=s judgment.
/s/ John
S. Anderson
Justice
Panel consists of Chief Justice Hedges and Justices Anderson and
Seymore.
[1] As the POLR, appellee was authorized to charge 125%
of the published Price to Beat. 16 Tex. Administrative Code ' 25.43(k)(4)(A).
[2] The Azor Energy electricity contract was with 2900
Smith. In its original petition, appellee alleged 2900 Smith is a forfeited
Texas limited partnership, however there is no evidence in the record
establishing that allegation. In addition, while Katie Pham was not a party to
the Azor Energy contract, she was listed as the recipient of electricity
[3] According to appellee, 2900 Smith owed $12,900.03
for December, 2005 and $11,933.60 for January, 2006.
[4] Appellee arrived at this amount after adjusting the
billing rate for the first five billing cycles to the lower Azor Energy rate
and crediting a $14,000 partial payment made by 2900 Smith in December, 2005.
[5] The trial court also awarded appellee $10,000 in
attorney=s fees as well as interest and costs of court.
Appellants do not challenge the amount of the attorney=s fees in this appeal.
[6] In their first issue, appellants asserted the trial
court erred by failing to file the timely requested findings of fact and
conclusions of law. In their second issue, appellants asserted Judge Elrod=s successor, Judge Kerrigan, could not issue the
requested findings of fact and conclusions of law because she did not preside
over the trial and argued the case must be remanded for a new trial. We
previously addressed both of these issues in the order abating this appeal.
Initially, we agreed with
appellant on their first issue and abated the appeal and ordered Judge Elrod=s successor to enter the requested findings of fact
and conclusions of law. See Cherne Indus., Inc. v. Magallanes, 763
S.W.2d 768, 772B73 (Tex. 1989); Electronic Power Design, Inc., v.
R.A. Hanson Co., Inc., 821 S.W.2d 170, 171 (Tex. App.CHouston [14th Dist.] 1991, no writ).
Citing binding precedent from
this Court, we also addressed appellants=
second issue in the abatement order. In the abatement order we stated:
A judge who succeeds a judge
who has resigned subsequent to rendering judgment is authorized to make
findings of fact and conclusions of law in the case. Lykes Bros. S. S. Co.,
Inc. v. Benben, 601 S.W.2d 418, 420 (Tex. Civ. App. 1980, writ ref=d n.r.e.) (holding that due process did not require
findings and conclusions be made by judge who heard evidence and rendered
judgment). Rule 18 of the Texas Rules of Civil Procedure allows successor
judges to dispose of unresolved matters and enter various orders so long as the
successor judge does not render judgment without hearing evidence. See Tex.
R. Civ. P. 18. see also Fidelity & Guar. Life Ins. Co. v. Pina, 165
S.W.3d 416, 421 (Tex. App.CCorpus Christi
2005, no pet.) (noting that rule 18 operates in conjunction with section 30.002
of the remedies code, which allows the successor of a deceased judge to enter
findings of fact and conclusions of law for cases pending at the death of his
predecessor)
Therefore, we conclude the
error in this case is remediable. See Tex. R. App. P. 44.4. Accordingly we abate the appeal
and direct the trial court to correct the error. See Zeiba v. Martin,
928 S.W.2d 782, 786 (Tex. App.B Houston [14th
Dist.] 1996, no writ).
Therefore, in
abating the appeal and remanding to the trial court for the entry of findings
of fact and conclusions of law, we sustained appellants= first issue and overruled appellants= second issue requesting a new trial. Eventually, the
trial court entered the findings of fact and conclusions of law, which brings
us to appellants= third issue challenging the sufficiency of the
evidence.
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231 Ind. 519 (1952)
108 N.E.2d 884
MARION TRUCKING COMPANY, INC.
v.
McDANIEL FREIGHT LINES, INC.
No. 28,918.
Supreme Court of Indiana.
Filed December 1, 1952.
Rehearing denied January 6, 1953.
*520 George O. Cowan, Cowan & Smith, and Gustav Dongus, Davis, Hartsock & Dongus, all of Indianapolis, and Harding & Harding of Crawfordsville, for appellant.
Ferdinand Born of Indianapolis, Walter W. Spencer and Raymond O. Evans, both of Crawfordsville, for appellee.
DRAPER, J.
The appellee brought this action to restrain and enjoin the appellant from operating as a common carrier along a certain described route in the state of Indiana, and for damages.
The complaint alleges that the appellee is the owner and holder of a certificate of public convenience and necessity authorizing it to transport property as a common carrier over and along Indiana state highway No. 43 between the cities of Crawfordsville and Lafayette, Indiana, and intermediate points; that the appellant is not authorized to transport property as a common carrier between Lafayette, Crawfordsville and Terre Haute, Indiana, or to serve points between said cities for the reason that the certificate issued by the Commission and held by the appellant is a restricted *521 certificate, in that it authorizes the appellant to travel over highway No. 43 as an alternate route for operating convenience only; that "contrary to, and in violation of said restricted certificate of public convenience and necessity, said defendant (appellant) is illegally operating as a common carrier of property in Crawfordsville, Indiana, and intermediate points between Crawfordsville, Indiana, and Lafayette, Indiana, along Indiana state highway No. 43, and also contrary to and in violation of said restricted certificate of public convenience and necessity, using a portion of said Indiana state highway No. 43, and unless restrained and enjoined, will continue so to do."
Pursuant to hearing the court entered a temporary injunction restraining appellant from operating as a common carrier of property along said highway between the city of Lafayette on the north and the junction of highways 43 and 67 on the south, except as an alternate route for operating convenience only, serving no intermediate or off-route points along said route, with certain exceptions not here important.
It will be seen from an examination of the complaint that the appellee bases its right to injunctive relief solely upon the ground that the appellant, in operating along said route as a common carrier of property, is operating contrary to and in violation of the restricted certificate of public convenience and necessity issued to it by the Commission.
Of the several questions raised by the appellant, we think we need notice only one. Did the appellee have an adequate remedy at law?
Burns' Stat., § 47-1215, provides in part as follows:
"Upon complaint in writing filed with the commission or upon the commission's own initiative without complaint, the commission may investigate *522 whether or not any person subject to the provisions of this act has failed to comply with any provisions of this act or with any requirement established pursuant thereto.
"If the commission, after notice and hearing, finds, upon any such investigation, that such person has failed to comply with any such provision or requirement, the commission shall issue an appropriate order to compel such person to comply therewith."
State ex rel. Evansville, etc., Lines v. Rawlings (1951), 229 Ind. 552, 99 N.E.2d 597, was an original action filed in this court which grew out of the efforts of certain interested parties to enjoin the alleged violation of an order of the Commission by a common carrier of passengers. After quoting that portion of the statute above set out this court there said:
"It is clear, by the terms of the statute above quoted, that if relator, as alleged in respondent's return, is violating an order of the Public Service Commission, the remedy lies in petition to the commission by those who claim that such a regulation or order is being violated. This court said in Chicago, etc. R. Co. v. Railroad Com., etc. (1911), 175 Ind. 630, at page 637, 95 N.E. 364, `Injunctions will not be granted where there is an adequate legal remedy. Where the commission has power to grant relief, application therefor must be made to it. Southern Ind. R. Co. v. Railroad Com., etc. (1909), 172 Ind. 113, 87 N.E. 966; Prentis v. Atlantic Coast Line Co. (1908), 211 U.S. 210, 29 Sup. Ct. 67, 53 L.Ed. 150; Texas etc. R. Co. v. Abilene, etc., Oil Co. (1907), 204 U.S. 426, 27 Sup. Ct. 350, 51 L.Ed. 553; Interstate Commerce Com. v. Illinois Cent. R. Co. (1909), 215 U.S. 452, 30 Sup. Ct. 155, 54 L.Ed. 280.' (Our italics.)
"...
"If, as is contended by respondent, relator is charging illegal rates in the city of Evansville and *523 thus violating an order or regulation of the Public Service Commission plaintiffs, in the actions pending in said Superior Court, must first exhaust their remedy of petition to the commission by pointing out that said company is not complying with the provisions of an approved tariff schedule and is thereby violating an order of the commission. Indianapolis Water Co. v. Moynahan Prop. Co. (1936), 209 Ind. 453, 456, 198 N.E. 312; Southern Ind. R. Co. v. Railroad Com., etc. (1909), 172 Ind. 113, 117, 119, 87 N.E. 966, supra; In Re Engelhard & Sons Co. (1914), 231 U.S. 646, 651, 34 S.Ct. 258, 58 L.Ed. 416, 418.
"It then becomes the duty of the Public Service Commission to make an investigation of the matters alleged in said petition and if, after notice and hearing, it should find that illegal rates are being charged by relator then the commission, under the authority vested in it by the legislature, will order the offender to desist from charging such illegal rates and if, after such order by the commission, such offender refuses to comply therewith, then the commission is the proper party to institute court proceedings to compel compliance with its order. Wabash R. Co. . Railroad Com., etc. (1911), 176 Ind. 428, 439, 95 N.E. 673. On the other hand if after such investigation the commission finds that the alleged violation does not exist and no order is being violated, then the petitioners may have their day in court by an appeal to any court of competent jurisdiction upon the ground that the order or decision of the commission is `insufficient, unreasonable or unlawful' as provided in § 47-1249, Burns' 1940 Replacement. Cf. State ex rel. McCormick v. Superior Court of Knox County (1951), 229 Ind. 118, 95 N.E.2d 829, 832; In re Northwestern Indiana Tel. Co. (1930), 201 Ind. 667, 171 N.E. 65."
We think the above quoted is decisive of the question presented here, and we must, therefore, hold that the appellee did have an adequate remedy at law.
The appellee relies upon Warehouse Distributing Corp. v. Dixon (1933), 97 Ind. App. 475, 187 N.E. 217, *524 and Vandalia R. Co. v. Schnull (1919), 188 Ind. 87, 122 N.E. 225, for a different result. In the first of these two cases the plaintiff, who held certificates of public convenience and necessity to operate motor trucks over certain routes in Indiana, sought to enjoin the defendants, who held no such certificate, from operating or assisting in the operation of motor trucks over the same routes in competition with the plaintiff. The action was based on Ch. 46 of the Acts of 1925, which placed owners and operators of motor vehicles, used for transportation of property for compensation, as a common carrier, under the control of the Public Service Commission, and required the issuance of a certificate of public convenience and necessity as a condition precedent to the operation of motor vehicles on the public highway for compensation as a common carrier.
By Sec. 9 of that Act it was provided that: "All legal and equitable remedies of a civil nature to enforce the provisions of this act ... may be used by said commision or any person or corporation having a special interest in such enforcement." In reliance upon that statutory provision, the Appellate Court upheld the issuance of an injunction against the defendants. But Ch. 46 of the 1925 Acts was repealed, in its entirety, by Sec. 41, Ch. 287, Acts 1935, which act, as amended, constitutes the present law relating to the regulation of common carriers by motor vehicles. Burns' Stat., § 47-1211, et seq. There is no similar provision in the 1935 Motor Vehicle Act as amended. Moreover, it should be noted that the case just referred to was not one to prevent the violation of a certificate of public convenience and necessity which had been issued to the defendant, but was instead an action *525 brought to enjoin a defendant to whom no certificate had ever been issued.
In Vandalia R. Co. v. Schnull, supra (reversed on other grounds in 255 U.S. 113, 65 L.Ed. 539, 41 S.Ct. 324) the Railroad Commission of Indiana entered an order fixing rates for shipment of certain classes of freight over certain of appellant Railroad Company's lines in this state. The statute authorized an "appeal" to the Appellate Court from the order of the Commission fixing such rates. The Railroad Company neither appealed nor obeyed the order of the Commission. It continued to charge rates higher than those authorized by the order. Thereupon the plaintiffs, a group of wholesale and retail grocers, brought a suit to restrain the Railroad Company from charging or receiving any other compensation than that authorized by the order of the Commission. It was contended that the plaintiffs had no right to maintain the action because it was an effort by the plaintiffs to enforce, by court action, an order of the Railroad Commission, which could only be done by the Commission itself.
In holding that the action could be maintained by the plaintiffs this court said the remedies were cumulative; that Sec. 5 of the Act itself indicated that it was not the intention of the legislature that the remedy created by the statute should be exclusive; and further said the suit in equity was justified by reason of the great number of transactions involving small amounts. The case is clearly distinguishable from this one. It was not asserted in that case that the plaintiffs could not maintain the action because they had an adequate remedy at law. It was claimed only that the plaintiffs could not maintain the action because it could be maintained only by the *526 Railroad Commission. Here the question presented is whether the appellee must pursue, before the Public Service Commission itself, an administrative remedy which has been held to be an adequate remedy at law.
Though what we have said is completely dispositive of the case, we feel called upon to discuss it further. As above stated, relief was sought on the sole ground that a certificate of convenience and necessity had been issued to the appellant, and that appellant was operating in excess of and in violation of that certificate.
It is asserted in the briefs and it was argued here, however, that the certificate held by the appellant was issued as the result of a fraud practiced upon the Commission and the appellee, and the record before us discloses all of the proceedings before the Commission, including most of the evidence adduced before it, which was admitted in evidence over the objection of the appellant.
It has been held that the existence of fraud in an administrative proceeding is a proper matter for judicial investigation, since such an attack is a direct attack upon the proceedings. Burridge v. City of Mishawaka (1948), 225 Ind. 613, 77 N.E.2d 297; 73 C.J.S., Public Administrative Bodies and Procedure, § 38 b, p. 345. But no such issue was tendered in the court below. See 43 C.J.S., Injunctions, § 188, p. 882. Nor can we say from an examination of the record that the trial court determined that the certificate was issued as the result of a fraud practiced by the appellant upon the appellee and the Commission. It is not within our province to resolve disputed questions of fact here.
Judgment reversed and cause remanded with instructions to deny the temporary injunction.
Emmert, C.J., concurs in result with opinion.
*527 CONCURRING OPINION
EMMERT, C.J.
I concur in the result of the majority opinion. It seems to me it is not necessary to decide more than that the appellee failed to prove damage now or in the future to any property right it might have. There was no proof that appellant was injuring or would injure the appellee by depriving it of any of its motor freight business. The general rule is, injunctions are only issued to protect civil property rights. State ex rel. Zeller v. Montgomery Circuit Court (1945), 223 Ind. 476, 62 N.E.2d 149.
The record here discloses this to be another case where a temporary injunction was issued without any finding whatever to support it. In my opinion this was error for the reasons stated in the dissenting opinion in State ex rel. Pub. Serv. Comm. v. Marion C. Ct. (1952), 230 Ind. 277, 302, 103 N.E.2d 214.
NOTE. Reported in 108 N.E.2d 884.
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331 F.3d 891
CHANCELLOR MANOR, Gateway Investors, LTD., and Oak Grove Towers Associates, Plaintiffs-Appellants,v.UNITED STATES, Defendant-Appellee.
No. 02-5066.
United States Court of Appeals, Federal Circuit.
June 12, 2003.
COPYRIGHT MATERIAL OMITTED Jeff H. Eckland, Faegre & Benson LLP, of Minneapolis, Minnesota, argued for plaintiffs-appellants. With him on the brief were William L. Roberts and Mark J. Blando.
John E. Kosloske, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for defendant-appellee. On the brief were David M. Cohen, Director, and Mark L. Josephs, Senior Trial Counsel.
Before SCHALL, GAJARSA, and DYK, Circuit Judges.
GAJARSA, Circuit Judge.
1
This is a regulatory takings case wherein the Plaintiffs allege that the United States's enactment of legislation relating to low-income housing programs breached contracts between the Plaintiffs and the United States and effected a regulatory taking of property protected under the Fifth Amendment. Plaintiffs-Appellants, Chancellor Manor ("Chancellor Manor"), Gateway Investors, Ltd. ("Gateway Investors"), and Oak Grove Towers Associates ("Oak Grove") (collectively "Appellants" or "Owners"), appeal the November 30, 2001 final judgment of the United States Court of Federal Claims granting summary judgment to the United States on Appellants' breach of contract and takings claims. Chancellor Manor v. United States, 51 Fed. Cl. 137 (2001). Because the Court of Federal Claims correctly granted summary judgment with respect to Appellants' breach of contract claims but incorrectly determined that Appellants did not possess protectible real property interests and thus presented no compensable takings claims, we affirm-in-part, reverse-in-part, and remand for further proceedings consistent with this opinion.
I. BACKGROUND
2
Appellants are the owners of various multifamily rental housing projects in Minnesota. The housing projects were developed and financed pursuant to Section 221(d)(3) and Section 236 of the National Housing Act ("NHA") through a three-party arrangement including the Owners, the Department of Housing and Urban Development ("HUD"), and private lenders. The Section 221(d)(3) and Section 236 programs ("the programs") were designed by Congress primarily to encourage creation of low-income housing. Generally, in exchange for an agreement by property Owners to maintain particular properties as low-income housing properties (subject to federal regulations), the United States granted various tax benefits and committed to insuring the mortgages of the Owners. Prior to 1968, this mortgage insurance enabled the Owners to obtain below-market rate mortgages (Section 221(d)(3)). After 1968, the NHA was amended to enable Owners to obtain a market-rate mortgage with an interest rate subsidy from the United States and enabled the lenders to issue long-term mortgages amortizable over a forty-year period (Section 236). In addition, as Appellants contend, another incentive was the option to prepay the mortgages, without HUD approval, at the end of a twenty-year term and thus eliminate the restrictions on the property imposed by federal regulation. These changes to the federal regulations, including the elimination of the twenty-year prepayment option, are the subject of the present, and other, litigation.1
3
The three-party transaction was essentially a government-subsidized real estate development deal between the Owners and the lenders. The United States's role in the transaction was to act as an insurer for the Owners in the event of default of the Owners' mortgage commitments. In exchange for the United States's commitment, the Owners agreed to various restrictions on the use of the properties in the programs. These obligations included: (1) constructing and maintaining housing in accordance with HUD specifications; (2) renting only to HUD-approved low- and moderate-income tenants; (3) charging only HUD-approved rents; (4) maintaining cash reserves to self-insure against default; and (5) limiting return on investment to no more than an annual return of six percent on initial investment.
4
The three parties to this complicated transaction made various commitments to each other, evidenced by the execution of at least five separate independent agreements, including a Mortgage Note ("Note") and a Mortgage between the Owners and the lenders; a Regulatory Agreement and a Mortgagor's Certificate between the Owners and HUD; and a Commitment for Insurance Advances ("Insurance Commitment") between the lenders and HUD.2 None of the agreements included any cross-referencing clause integrating the agreements as a single transaction or making the United States, the Owners, and the lenders parties to each separate agreement.
5
The Mortgage and Note issued by the Owners to the lenders were the documents that evidenced the funding for the programs. The Note outlined the terms and conditions of the repayment from the borrower-owner to the lender and was payable over a forty-year period with an option to prepay the Note, without HUD approval, after twenty years. HUD endorsed the Note as part of its insurance commitment but was not otherwise a party to the Note. The Mortgage on the subject properties secured payment of the Note.
6
The Insurance Commitment between HUD and the lenders memorialized HUD's agreement to provide an insurance endorsement for the Owners-mortgagors' Notes. The Mortgagor's Certificate between the Owners and HUD referenced this agreement between HUD and the private lenders regarding HUD's insurance endorsement of the Owners' Notes. The Mortgagor's Certificate stated that the Owner "agrees to accept a loan insured by you [HUD] upon the terms set forth in your Commitment...."
7
The Regulatory Agreement between HUD and the Owners memorialized the Owners' agreement to the "affordability restrictions," including restrictions on the income levels of tenants, allowable rental rates, and the rate of return on investment the Owners could receive from the project discussed above.
8
The only document that explicitly references the twenty-year prepayment option is the Note. The prepayment option in the Note reflected the contemporaneous HUD regulations, see 24 C.F.R. §§ 221.524(a)(ii), 236.30(a)(1)(i) (1970), governing the Section 221(d)(3) and Section 236 programs. Cienega IV, 194 F.3d at 1235. The relevant sections of the regulations provided that:
9
A mortgage indebtedness may be prepaid in full and [HUD's] controls terminated without prior consent of HUD ... (i) If the prepayment occurs after the expiration of 20 years from the date of the final insurance endorsement of the mortgage....
10
24 C.F.R. § 236.30(a)(1)(i) and (ii).
The regulations also stated that:
11
The regulations in this subpart may be amended by [HUD] at any time and from time to time, in whole or in part, but such amendments shall not adversely affect the interests of a mortgagee or lender under the contract of insurance on any mortgage or loan already insured and shall not adversely affect the interests of a mortgagee or lender on any mortgage or loan to be insured on which [HUD] has made a commitment to insure.
12
24 C.F.R. § 236.249 (1970) (emphasis added).
13
By prepaying the balance of the outstanding loan represented by the Note, an Owner could terminate HUD's affordability restrictions imposed on the property and convert the property into a conventional rental property, thereby charging market rental rates and increasing the Owners' return on investment to a free-market rate of return. Cienega IV, 194 F.3d at 1235.
14
In the late 1980s, the United States became concerned that a large number of Owners participating in the programs might exercise their prepayment option, creating a shortage in the supply of low-income housing and injuring existing tenants. Id. Consequently, in 1988, Congress enacted the Emergency Low-Income Housing Preservation Act ("ELIHPA"). ELIHPA placed a two-year moratorium on mortgage prepayments to allow Congress time to devise a permanent solution to the potential shortage of low-income housing. Id.
15
In 1990, ELIHPA was replaced by the Low-Income Housing Preservation and Resident Homeownership Act ("LIHPRHA"). LIHPRHA made permanent the moratorium on prepayment and authorized HUD to provide additional incentives to Owners in exchange for remaining in the programs, including, inter alia: (1) increased access to residual receipts accounts; (2) increased rents; (3) additional financing for capital improvements; and (4) the ability to draw funds from the project by accessing a portion of the equity in the housing project through a second mortgage, insured by HUD. 12 U.S.C. § 4109 (Supp. II 1990). A key aspect of LIHPRHA required HUD approval for any election to prepay a mortgage. Id. LIHPRHA included a number of criteria required for HUD approval, including written findings by HUD that prepayment would not: (1) materially increase economic hardship for current tenants; (2) result in a monthly rental payment that exceeds percentages set by statute; (3) involuntarily displace current tenants without good cause; or (4) diminish the supply of low-income housing that would be sufficient for the needs of the community. 12 U.S.C. § 4108(a) (Supp. II 1990).
16
In 1996, Congress enacted the Housing Opportunity Program Extension Act ("HOPE"). HOPE restored the prepayment rights to Owners, without HUD approval, provided the Owners agreed not to raise rents for a period of sixty days after the prepayment of any unpaid balance of the Notes. Id.
17
By accepting a government-insured loan pursuant to the Section 221 or Section 226 program, each Owner was required to agree to the numerous regulatory restrictions discussed above. The twenty-year prepayment option period began at different times for the various participants in the programs. For example, Chancellor's twenty-year option period began on August 14, 1993; Oak Grove's twenty-year option period began on January 31, 1994; and Gateway Investors's twenty-year option period began on June 6, 1995. Thus, at the time when the parties' respective twenty-year prepayment options began, all three parties were prevented from prepayment by LIHPRHA.
18
Pursuant to the regulations promulgated under LIHPRHA, the Appellants notified HUD requesting permission to prepay their remaining debt under the twenty-year provisions in each of their Notes. Each Appellant was advised at various times in 1993 that they would not meet the criteria for prepayment under LIHPRHA, would not be permitted to prepay the Mortgage, and could only leave the programs by selling the property to a non-profit organization approved by HUD. Chancellor Manor, 51 Fed. Cl. at 146-47. Consequently, all three Owners filed with HUD an Initial Notice of Intent to Terminate or Extend Low-Income Affordability Restrictions, electing to extend the low-income affordability restrictions by requesting additional incentives pursuant to 12 U.S.C. § 4109. Specifically, in exchange for extending the HUD restrictions for an additional fifty years, all three Owners elected to obtain a second insured mortgage on their properties up to an amount equal to their equity in the properties. Id. at 147-48. This second insured mortgage allowed the Owners to withdraw their appreciated equity from the projects.
19
Election to receive the additional insured loan also required the execution of an Amendment of Existing Regulatory Agreement. Id. at 147. This document was voluntarily executed by Chancellor Manor on February 14, 1995, before enactment of HOPE.3 Despite their expressed intentions, Gateway Investors and Oak Grove did not execute the Amendment of Existing Regulatory Agreement prior to the enactment of HOPE. Id. Thus, only Chancellor Manor's election became legally binding before enactment of HOPE. Id. Accordingly, Chancellor Manor is the only Owner remaining in HUD's Section 236 program. Pursuant to HOPE, Oak Grove and Gateway Investors prepaid their notes in 1997 and withdrew from the regulatory restrictions imposed by HUD. Oak Grove and Gateway Investors increased their rents to market levels in October 1997. Id. at 148.
20
All three Owners filed a complaint at the Court of Federal Claims on January 20, 1998, alleging that the LIHPRHA legislation enacted in 1990:(1) anticipatorily repudiated their contractual rights to prepay their mortgages after twenty years without HUD approval; and (2) resulted in a taking of the subject properties for public use without just compensation. Id.
21
On February 10, 1998, the United States filed an unopposed motion to stay the proceedings pending resolution of Cienega IV. Chancellor Manor, 51 Fed. Cl. at 148. Cienega IV was decided on December 7, 1998, and the stay was lifted in June 1999. Id. In Cienega IV, this court dismissed Cienega Gardens, et al.'s breach of contract claims for lack of jurisdiction because Cienega Gardens, et al. were not in privity of contract with the United States with regard to the prepayment option. Cienega IV, 194 F.3d 1231.
22
Once the stay was lifted, the Owners argued that, notwithstanding this court's decision in Cienega IV, they were entitled to relief based on three distinct theories of contract liability that were not addressed by Cienega IV: (1) a contract was formed between each Owner and the government by virtue of HUD's offer, i.e., the Commitment for Insurance of Advances, and each Owner's acceptance of this offer, i.e., the Mortgagor's Certificate; (2) each Owner was an intended third-party beneficiary of the contracts executed between HUD and the lenders; and (3) the United States is judicially estopped from denying privity of contract between the Owners and the United States based on previously asserted, prevailing arguments in United States v. David, No. 94-7191, 1995 WL 57502, 1995 U.S. Dist. LEXIS 1630, at *1 (E.D.Pa. Feb. 9, 1995).
23
With respect to the takings claims, the Owners argued they had protectible real property interests in their housing projects — entitling them to the economically productive use and enjoyment of the properties, exclusive possession, and other common real property rights — and that LIHPRHA effected a taking of these property rights without just compensation. The Owners also argued that LIHPRHA effected a Fifth Amendment regulatory taking of contract rights to prepay the mortgages after twenty years.4
24
The United States moved for summary judgment on January 4, 2001, arguing that the Owners' contract claims must be dismissed based on this court's decision in Cienega IV and that the Owners did not possess any property or contract rights that could be taken by the United States. Chancellor Manor, 51 Fed. Cl. 137.
25
The Court of Federal Claims granted the United States's summary judgment motion with regards to the breach of contract claims, holding that (1) in light of Cienega IV, the Owners were not in privity of contract with the United States with regard to the prepayment option, regardless of the presence of the Mortgagor's Certificate; (2) the Owners were not third-party beneficiaries to the Insurance Commitment; and (3) the United States was not judicially estopped from arguing lack of privity, citing this court's characterization of David in Greenbrier v. United States, 193 F.3d 1348 (Fed.Cir.1999). Chancellor Manor, 51 Fed. Cl. 137.
26
The Court of Federal Claims also granted the United States's summary judgment motion with regard to the takings claims, holding that:
27
The fundamental flaw in the plaintiffs' argument ... is the premise that the owners were entitled to unfettered control of their housing projects after the 20-year anniversary dates of their mortgage note endorsements by HUD.... [F]ederal regulations in effect during the 1970s did allow owners in the NHA's section 236 program to prepay their mortgage notes after 20 years without HUD approval. The prepayment terms in the mortgage notes tracked these regulations. However, as the Federal Circuit found in Cienega Gardens, 194 F.3d at 1244, the regulations [24 C.F.R. § 236.249] expressly stated that they were subject to amendment by HUD "at any time." Thus, when [plaintiffs] entered into the section 236 program they knew, or should, have known, that the regulations governing the prepayment of their mortgage notes could be changed in a manner that might restrict the owners' option to prepay after 20 years.... In other words, the plaintiffs' expectations (or hopes) of converting their projects to conventional, market-rate rental properties after 20 years did not inhere in their ownership of the properties. When LIHPRHA was enacted, therefore, the plaintiffs did not even hold the state law property rights they are claiming, and the prepayment prohibition could hardly effect a taking of property rights which the plaintiffs did not possess.
28
51 Fed. Cl. at 158.
29
The Owners timely appealed the Court of Federal Claims's decision and we have jurisdiction over the appeal pursuant to 28 U.S.C. § 1295(a)(3).
II. DISCUSSION
30
We review the Court of Federal Claims's grant of summary judgment de novo. Berkley v. United States, 287 F.3d 1076, 1083 (Fed.Cir.2002). "Whether a taking compensable under the Fifth Amendment has occurred is a question of law based on factual underpinnings." Bass Enters. Prod. Co. v. United States, 133 F.3d 893, 895 (Fed.Cir.1998) (citing Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978)).
31
On appeal, Appellants advance two distinct legal theories — one premised upon contract law, the other premised upon regulatory takings law.5
A. Contract
32
As an initial matter, to succeed under either theory, Appellants must prove that the United States waived its sovereign immunity, for "[t]he United States, as sovereign, is immune from suit save as it consents to be sued." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Waivers of sovereign immunity are construed narrowly. United States v. Nordic Vill., Inc., 503 U.S. 30, 34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). The United States has waived immunity from suit under the Tucker Act in actions brought in the Court of Federal Claims "founded either upon the Constitution, or any act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages not sounding in tort." 28 U.S.C. § 1491(a)(1) (2000). The Court of Federal Claims thus has jurisdiction over claims based on "any express or implied contract with the United States." Id.
33
This court has consistently held that for the government to be sued on a contract pursuant to the Tucker Act, there must be privity of contract between the plaintiff and the United States. See, e.g., Cienega IV, 194 F.3d at 1239 ("The effect of finding privity of contract between a party and the United States is to find a waiver of sovereign immunity."); Katz v. Cisneros, 16 F.3d 1204, 1210 (Fed.Cir.1994) ("Absent privity between [plaintiffs] and the government, there is no case.").
34
In an attempt to establish privity of contract, and thus a waiver of sovereign immunity, Appellants allege two distinct errors as to the Court of Federal Claims's decision on their breach of contract claims. First, Appellants argue that the Insurance Commitment was a legally binding offer that was accepted by the Appellants' execution of a Mortgagor's Certificate. Second, Appellants contend they were intended third-party beneficiaries of the contracts between HUD and the lenders.
1. Mortgagor's Certificate
35
The specific question before us is whether the agreements framed by the Insurance Commitment and the Mortgagor's Certificate (each of which was in a form approved by HUD) gave rise to privity of contract between HUD and the Owners with respect to the prepayment terms.
36
This court, in Cienega IV, stated that "in order to find privity of contract, we must find on the part of HUD `the type of direct, unavoidable contractual liability that is necessary to trigger a waiver of sovereign immunity, the inevitable result of finding privity of contract.'" Cienega IV, 194 F.3d at 1241 (quoting Nat'l Leased Hous. Ass'n v. United States, 105 F.3d 1423, 1426 (Fed.Cir.1997)). Applying this standard to a virtually identical set of facts and agreements, this court, in Cienega IV, determined it necessary to "start from the premise that the United States, i.e., HUD, was a named party to only one contract in connection with each of the relevant projects, that contract being the regulatory agreement." 194 F.3d at 1241-42. The Regulatory Agreement did not incorporate by reference any other agreement, including the Note containing the prepayment terms. Id. at 1242. "Although HUD did provide its insurance endorsement, it was not expressly made a party to any [Note]." Id. The court went on to state that while the Note and the Regulatory Agreement were part of the same transaction, "each document stands alone and is unambiguous on its face." Id. at 1243. This court determined privity of contract did not exist, because none of the relevant documents in those transactions expressly contained the prepayment terms or listed HUD and the Owners as parties.
37
The "new theory" asserted by Appellants in this case does not change this analysis. The only "new" document that Appellants allege, in combination with the Insurance Commitment, creates privity of contract is the Mortgagor's Certificate. The Mortgagor's Certificate also does not contain any reference to terms regarding prepayment. Thus, under this court's holding in Cienega IV, Appellants' privity of contract theory based on the Insurance Commitment and the Mortgagor's Certificate fails. As the Court of Federal Claims stated in its decision: It is true that the Federal Circuit did not address the Mortgagor's Certificate in its opinion. Considering the nature and substance of the HUD Commitment, however, it is clear that bringing the Mortgagor's Certificate into the analysis could no more establish prepayment privity between HUD and the plaintiffs than the HUD Commitment could standing alone. The HUD Commitment and Mortgagor's Certificate established a contract of mortgage insurance between HUD and each of the plaintiffs. There is no language in either of those documents, however, that refers to prepayment rights in connection with the mortgage notes, which the Federal Circuit found to be separate contracts between the Owners and lenders.
38
Chancellor Manor, 51 Fed. Cl. at 152.
39
The Mortgagor's Certificate authorizes and provides the representations made by the Owners in accepting the loan insured by the United States. The Owners certified they had the necessary power and authority to develop the project. This is a typical officer's certificate and is a standard document obtained in virtually any financial transaction wherein the officer of the borrower affirms the possession of authority to proceed with the project and that the borrower shall abide by the representations and certification made in order to induce the United States to insure the loan. The Mortgagor's Certificate contains no prepayment provisions and therefore does not create privity of contract between HUD and the Owners with respect to the prepayment terms. Accordingly, the Court of Federal Claims correctly addressed and decided this particular issue in its decision.
40
Appellants also argue that the Insurance Commitment and the Mortgagor's Certificate together create a contract between HUD and Appellants for mortgage insurance and incorporate by reference all the relevant regulations, including the prepayment terms, thereby creating privity of contract for the prepayment terms. In particular, Appellants point to language in the Insurance Commitment that states that HUD:
41
will endorse for insurance under the provisions of Section 236 of the National Housing Act, and the regulations thereunder now in effect, a mortgage note ... to be secured by a mortgage.... The insurance endorsement will be subject to compliance with the requirements of the Regulations, and the terms and conditions set forth below.
42
(emphases added).
43
There are two flaws in this argument. First, the Insurance Commitment is an agreement between HUD and the lenders. Despite Appellants' arguments, it does not incorporate by reference the prepayment regulations and therefore there is no privity of contract between the Appellants and HUD with respect to the prepayment option. Greenbrier, 193 F.3d at 1355 (holding that the various agreements between HUD and the owners did not incorporate the prepayment provisions by reference). Second, as stated by this court in Cienega IV, the very regulations now asserted to be incorporated by reference contain an express provision that the regulations may be amended by HUD at any time:
44
[I]t would have been inconsistent for HUD to have entered into the regulatory agreement if the agreement fixed the prepayment rights of the Owners, in view of the express power to amend the Section 221(d)(3) and Section 236 program regulations at any time that was reserved to HUD, subject only to the caveat that mortgagees' interests not be adversely affected.
45
194 F.3d at 1244. For these reasons, Appellants' incorporation by reference argument fails.
46
In short, there is simply no evidence that the United States was a party to any agreement containing the prepayment terms. Absent privity of contract, there is no waiver of sovereign immunity. Katz, 16 F.3d at 1210.
2. Third-Party Beneficiary
47
Appellants also argue that they are third-party beneficiaries to the agreements between HUD and the lenders. While Appellants could establish privity of contract if they are intended third-party beneficiaries of a contract with the United States, First Hartford Corp. Pension Plan & Trust v. United States, 194 F.3d 1279, 1289 (Fed.Cir.1999), in order to prove third-party beneficiary status, Appellants must demonstrate that the contract not only reflects an express or implied intention to benefit the party, but that it reflects an intent to benefit the party directly, Castle v. United States, 301 F.3d 1328, 1338 (Fed.Cir.2002), petition for cert. filed Dec. 16, 2002. This direct benefit requirement reflects the reality that third-party beneficiary status is an "exceptional privilege." See Glass v. United States, 258 F.3d 1349, 1354 (Fed.Cir.2001), amended on reh'g, 273 F.3d 1072 (Fed.Cir.2001) (quoting German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 230, 33 S.Ct. 32, 57 L.Ed. 195 (1912)).
48
None of the alleged agreements between the lenders and HUD contains any explicit evidence showing that HUD or the lenders intended to benefit the Owners directly. Appellants contend they were the direct intended third-party beneficiaries by virtue of the Insurance Commitment between HUD and the lenders because without Appellants there would be no other reason for HUD's agreement to insure each Owner's repayment of the loan. At best, this shows that Appellants were indirect beneficiaries of the Insurance Commitment. The primary, direct beneficiary of the Insurance Commitment was the public. See Katz, 16 F.3d at 1210 ("If there is a third party beneficiary at all, it is probably the low-income tenants for whom the housing was ultimately intended."). Appellants have not pointed to any persuasive evidence showing they were direct intended beneficiaries of the Insurance Commitment. Accordingly, we hold that Appellants were not third-party beneficiaries of the Insurance Commitment between HUD and the lenders.6
B. Regulatory Takings
49
Appellants also appeal the Court of Federal Claims's decision denying their claims that LIHPRHA effected a taking of a protectible property interest in their land and their contracts without just compensation.
50
The Fifth Amendment provides, in relevant part, "nor shall private property be taken for public use, without just compensation." U.S. Const. amend. V. Analysis of a regulatory taking claim involves a "two-tiered" inquiry into the government act alleged to have constituted a taking. M & J Coal Co. v. United States, 47 F.3d 1148, 1153-54 (Fed.Cir.1995). First, a court considers the nature of the interest allegedly taken to determine whether a compensable property interest exists. Id. at 1154. It is axiomatic that only persons with a valid property interest at the time of the taking are entitled to compensation. Wyatt v. United States, 271 F.3d 1090, 1096 (Fed.Cir.2001).
51
Second, the court determines whether the interest allegedly taken constitutes a compensable taking of that interest for a public purpose. M & J Coal, 47 F.3d at 1153-54; Fla. Rock Indus., Inc. v. United States, 18 F.3d 1560 (Fed.Cir.1994). In the context of an alleged taking via regulation, as we have here, our analysis centers on the factors identified by the Supreme Court in its seminal decision, Penn Central:
52
The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. So, too, is the character of the governmental action.
53
438 U.S. at 124, 98 S.Ct. 2646. This court has interpreted the Penn Central factors as requiring
54
that the court balance several pragmatic considerations in making its regulatory takings determination. These considerations include: the economic impact of the regulation on the claimant, the extent to which the regulation interferes with the investment-backed expectations, and the character of the Government action.
55
Fla. Rock, 18 F.3d at 1564 (applying the Penn Central analysis to determine whether the denial of a permit to mine limestone on the owner's property was a compensable taking).
1. Protected Property Interest
56
Appellants advance two separate property interests they believe are protected by the Fifth Amendment, one based in their real property rights and the other based on contract. We address each in turn.
57
Property within the Fifth Amendment denotes "the group of rights inhering in the citizen's relation to the physical thing, as the right to possess, use and dispose of it." United States v. General Motors Corp., 323 U.S. 373, 378, 65 S.Ct. 357, 89 L.Ed. 311 (1945). The Fifth Amendment clearly protects interests in real property, such as the Owners' interests in the land and buildings. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1016 n. 7, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (stating that a fee simple interest in real property is an estate with a rich tradition of protection at common law). Courts have long recognized that property owners have the right to exclusive possession. Indeed, the Supreme Court has stated that the right to exclusive possession is "one of the most essential sticks in the bundle of rights commonly characterized as property." Kaiser Aetna v. United States, 444 U.S. 164, 176, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979). An interest in real property is defined not only by the metes and bounds that describe the geographic dimensions of the property but also by the term of years that describes the temporal aspect of the Owner's interest. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 331-32, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002). Both dimensions must be considered if the interest is to be viewed in its entirety. Id.
58
In the present case, the general partners of the Owners purchased the land on which the housing was built before the Owners participated in the programs. With their participation in the programs, the Owners voluntarily contracted away, for a limited temporal period, their right to exclusive possession. In particular, the Owners agreed to remain in the programs for a minimum period of at least twenty years. At the time the Owners entered into the programs, they had the right to exit the programs by prepaying their mortgages upon expiration of a twenty-year period. Thus, the Owners possessed a protectible real property interest with a limited temporal "moratorium" on the unfettered use of their property and right to exclusive possession.
59
The enactment of ELIHPA and LIHPRHA imposed additional restrictions on the Owners' real property interest, e.g., prohibiting prepayment absent HUD approval based on stringent requirements, which were not in existence when the Owners entered the programs. In other words, ELIHPA and LIHPRHA essentially extended, in revised form, the limited temporal moratorium on the Owners' right to unfettered use of their property. The property interest which is identifiable and recognized is the Owners' real property interest in the projects, i.e., the land and the buildings. The Owners entered into the programs and subjected their real property interests to a regulatory scheme, which allowed them to develop the projects. The Owners agreed to be subject to a temporal moratorium on their right to exclusive possession; however, LIHPRHA imposed an additional and continued limitation on the Owners' ability to unfettered use of the property. The issue to be determined is whether this resulted in a compensable taking of a property interest protected by the Fifth Amendment. See id. at 321, 122 S.Ct. 1465 (stating that a five-year moratorium on development of land while a commission studied the effects of development on Lake Tahoe was better characterized as a regulatory taking rather than a categorical taking). The Court of Federal Claims determined the Appellants held no protectible property interest because they "knew, or should have known, that the regulations governing the prepayment of their mortgage notes could be changed in a manner that might restrict the Owners' option to prepay after 20 years." We disagree with this analysis because it does not take into account the limited use imposed upon the real property of the Owners by the amended regulations. Whether the Appellants knew or should have known that the regulations could be changed is more properly an issue germane to the Penn Central analysis, not to whether the Appellants possessed a protected property right. See Lucas, 505 U.S. at 1016 n. 7, 112 S.Ct. 2886. Because the Court of Federal Claims erred in determining that Appellants did not hold a protected real property interest, we reverse the Court of Federal Claims's grant of summary judgment with respect to Appellants' takings claims.
60
Additionally, Appellants also argue that ELIHPA and LIHPRHA effected a compensable taking of a protected contractual right, i.e., the option to prepay after twenty years, as presented in Cienega VI. That option right, however, is not really the issue here, except insofar as it is a trigger for exiting the federal housing program. Appellants complain about the continued restrictions on the use of their property, not their inability to prepay the mortgage and the concomitant obligation to pay the rate of interest fixed in the mortgage instrument.
61
The only value this right provided Appellants was the ability to terminate the regulatory restrictions imposed on Appellants' real property. Appellants simply do not allege a contractual right separate and distinct from the real property right discussed above. For the foregoing reasons, we hold that the "contract" right Appellants assert was taken is, in fact, a right grounded in real property, and not in contract.
2. Penn Central Analysis
62
Having determined Appellants possessed a protected property right in their real property, the second step of a proper takings analysis requires an analysis of the Penn Central factors. This analysis is a question of law based on factual underpinnings, Bass Enters. Prod., 133 F.3d at 895, and involves "a complex of factors including the regulation's economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action." Palazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001). While this analysis is essentially an ad hoc, factual inquiry, id. at 633, 121 S.Ct. 2448; Penn Central, 438 U.S. at 124, 98 S.Ct. 2646, it is nonetheless an objective one. See Palazzolo, 533 U.S. at 629-30, 121 S.Ct. 2448 ("The determination whether an existing, general law can limit all economic use of property must turn on objective factors. . . ."); Commonwealth Edison Co. v. United States, 271 F.3d 1327, 1348 (Fed.Cir.2001) (en banc) (applying Penn Central analysis to issue of whether Congress's change in regulations was retroactive and in violation of the Due Process Clause of the Constitution). The subjective expectations of the Appellants are irrelevant. Id. The critical question is what a reasonable owner in the Appellants' position should have anticipated. Id. The point in time when the analysis is conducted is the time at which the complaining party entered into the activity that triggered the obligation, id. at 1350, specifically when the Appellants entered the programs.
63
The Court of Federal Claims in this case determined that no protected property interest exists; hence the Court of Federal Claims made no factual findings and conducted no Penn Central analysis. The government nonetheless argues that we should hold as a matter of law that there has been no taking because the Owners could not have had reasonable expectations. It advances three arguments for this proposition. First, it argues that, because HUD was empowered to amend its regulations at any time, the Owners should have expected that the regulatory scheme would change and that they thus would be required to remain in the program. Second, it argues that the Owners should have anticipated that Congress might seek to alleviate the shortage in low-income housing by forcing the Owners to remain in the program so that Congress could achieve its goal of providing low-income housing. Third, it argues that, because the low-income housing market was a highly regulated field, the Owners could not have reasonably expected that they could exit the program after twenty years. We agree with the holding in Cienega Gardens v. United States, No. 02-5050, 331 F.3d 1319 (Fed. Cir. June 12, 2003); ("Cienega VIII") decided today, that none of these arguments is sufficient, in and of itself, or taken together, to demonstrate that the Owners' expectations were not reasonable.
64
However, Cienega VIII makes clear that its holding is limited to the Model Plaintiffs involved there, the "well-developed record" and "the limited arguments advanced by the government." Cienega VIII, at 1324, 1349. Unlike the situation in Cienega VIII with respect to the Model Plaintiffs, the record before us does not allow a resolution of the objective reasonable expectations. We hold that summary judgment for either party is not appropriate on this record. In other words, while the government has not shown that the Owners' expectations were unreasonable as a matter of law, for the reasons we now discuss, we cannot hold the opposite is the case, i.e., that the Owners have established that their expectations were reasonable as a matter of law.
65
In any regulatory takings case, the trial court must determine the extent of the government action and its economic impact on the project owners. Penn Central, 438 U.S. at 124, 98 S.Ct. 2646. This is pertinent not only to the government action and economic impact component of the Penn Central analysis, but also to whether the Appellants had reasonable expectations. The reasonableness of particular expectations must be compared with the action that the government has actually taken and its economic impact on the Owners. Id.
66
On this appeal, the Owners contend that the government action and the economic consequences of the temporary restriction of the prepayment right were severe because they were required to remain in the program on the same terms as prevailed during the previous twenty years. (Appellants' Br. at 55.) They conclude as a result that they had a return of less than one percent during the applicable period. Id. But this is mere assertion without the benefit of a record or trial court findings. The economic impact finding in Cienega VIII was based directly on testimony and trial court findings of economic impact that were not clearly erroneous. Cienega VIII, at 1341. The Cienega VIII court stated: "This court's assessment of the economic impact is that the Model Plaintiffs' expert's calculations (and the finding by the trial court about the credibility of that expert's methods) proved sufficient financial loss on the part of the Model Plaintiffs for this factor to favor compensation for them, especially in view of the lack of any specific challenge by the government of the trial court's findings or of the Model Plaintiffs' methods and data." Id. at 1345. However, the court concluded that "[w]ithout additional information about the rest of the plaintiffs, this court cannot make any determination regarding them." Id. Here too the record as to economic impact remains to be made. ELIHPA prevented the Owners from prepaying, but the limitation was for a period of only two years.7 LIHPRHA, by contrast, did not simply prevent prepayment. Rather, it created a complex statute, which vested discretion in HUD and authorized HUD to provide additional incentives for the project owners to remain in the program, including increased rents, an increased rate of return, and the ability to withdraw an amount of equity through a second mortgage. 12 U.S.C. §§ 4104, 4109 (Supp. II 1990).
67
To determine the nature of the government action, the court should determine how HUD would have exercised that discretion (which may be clear here from the agreements and proposed agreements). The court should also calculate the rate of return on invested capital under the new statutes as implemented by HUD and the reasonableness of that return. Determination of net investment may, in turn, require consideration of the government tax benefits afforded to the property owners.
68
Additionally it is pertinent whether the party seeking compensation has created or contributed to the problem the government seeks to solve. E. Enters. v. Apfel, 524 U.S. 498, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998); Connolly v. Pension Benefits Guar. Corp., 475 U.S. 211, 227, 106 S.Ct. 1018, 89 L.Ed.2d 166 (1986); Commonwealth Edison, 271 F.3d at 1349. The Owners contend that their exit from the program did not cause the dearth of public housing that the legislation sought to address and that it is unfair to saddle them with the burden of providing it. No record has yet been made that would allow a decision on this issue.
69
The government nonetheless argues that the Owners should have foreseen that "presented with a potential shortage of low-income rental housing occasioned by the threat of widespread prepayment of mortgage loans, Congress might very well respond by eliminating or placing conditions upon the prepayment of such loans... to achieve the purpose of the" legislation. We agree with Cienega VIII that the government cannot establish that the plaintiffs contributed to the problem that the legislation sought to address simply by showing that Congress might predictably seek to impose the burden of solving the problem on the Owners. Cienega VIII, at 1337. Rather, in order to establish the relationship, the government must establish that the Owners should reasonably have expected that withdrawals from the program would contribute to an increased shortage of low-income housing — the problem that ELIHPA and LIHPRHA sought to address. This issue should be addressed on remand. Development of the record may lead to a different result.
70
The Owners argue that because the prepayment right appeared in the contemporaneous regulations and the Owners' loan notes, their expectation that the right would not be restricted was reasonable. Again, that assumption was appropriate in Cienega VIII given that the government in that case pointed to nothing beyond the regulations and the notes. Cienega VIII, at 1349. The record here may differ. Commonwealth Edison requires that the state of the law as a whole be considered in assessing whether investment-backed expectations are reasonable. Id. 1349-50. The court should consider the overall state of the law concerning reasonable expectations, including contemporaneous publications and private placement memoranda, the legislative history of the various statutes, and past actions taken with respect to other federally subsidized housing programs. Id. at 1349-51.8
71
Finally, the Owners argue that the government's bare assertion that low-income housing is a highly regulated industry is not sufficient to defeat all reasonable expectations. We agree with Cienega VIII that the highly regulated nature of the subsidized housing industry "does not mean that all regulatory changes are reasonably foreseeable or that regulated businesses can have no reasonable investment-backed expectations whatsoever." Cienega VIII, at 1350. But that does not suggest the level of regulation of the low-income housing industry is irrelevant. On the contrary, in Cienega VIII we explicitly recognize that "[t]he range of expectations that is reasonable may be greatly reduced in proportion to the amount of regulation, but this is not a blanket rule that disqualifies parties' expectations without inquiry." Id. at 1350. Indeed, in Commonwealth Edison we held that the extent of regulation is a relevant factor in the determination of reasonable expectations. 271 F.3d at 1348. On remand, the court should consider the level of regulation of the low-income housing industry as a pertinent but not determinative factor.
72
In rejecting the plaintiffs' and the defendant's arguments based on this record and by remanding for a more searching factual inquiry, we have not predetermined the question of whether the plaintiffs will be able to establish the existence of a regulatory taking under the Penn Central standards. In the final analysis the Owners here, like the Model Plaintiffs in Cienega VIII, may be able to establish that combination of government action, impact and reasonable expectations that would entitle them to recover. At this stage we have done no more than reject the arguments of both the United States and the Owners that this matter can be properly decided on the present record. Therefore, the Court of Federal Claims must conduct a searching factual inquiry using an objective analysis to determine the reasonable investment-backed expectations of the Owners.
III. CONCLUSION
73
Accordingly, we affirm-in-part and reverse-in-part the Court of Federal Claims's grant of summary judgment, and remand for further proceedings consistent with this opinion.
74
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
IV. COSTS
75
Each party to bear its own costs.
Notes:
1
Other similarly situated business entities filed lawsuits stating similar causes of action. In particular, Cienega Gardens, et al. have actions currently pending and previously decided that are germane to the issues in this appealSee Cienega Gardens v. United States, 194 F.3d 1231 (Fed.Cir.1998), cert. denied, 528 U.S. 820, 120 S.Ct. 62, 145 L.Ed.2d 54 (1999) ("Cienega IV") (dismissing claims for breach of contract for lack of jurisdiction because Cienega Gardens, et al. were not in privity of contract with the United States with regard to the prepayment option); Cienega Gardens v. United States, No. 02-505, 331 F.3d 1319 (Fed. Cir. June 12, 2002) ("Cienega VIII").
2
The documents the Appellants, HUD, and the lenders executed in this transaction are the same documents in form and substance as the documents discussed inCienega IV. The only difference is that Cienega IV did not explicitly discuss the Mortgagor's Certificate.
3
Chancellor Manor's voluntary election may constitute a waiver of its right to challenge the effects of LIHPRHA; however, this issue was not addressed by the Court of Federal Claims or parties and we therefore do not consider it here
4
Appellants, in their briefs and at oral argument, limited their regulatory takings arguments to the taking of a protected interest in real property. Appellants adopted the arguments relating to the taking of contract rights pending the outcome ofCienega VI.
5
Appellants did not appeal the Court of Federal Claims's determination concerning the issue of judicial estoppel
6
Notwithstanding this determination, Appellants' argument fails because the Insurance Commitment still lacks the prepayment terms this court determined to be so critical inCienega IV.
7
It should be noted that ELIHPA had no effect on the Owners' actual ability to prepay. The owners' options became effective only after enactment of LIHPRHA, which superseded ELIHPA
8
We do not suggest that the United States's internal memoranda are pertinent to the reasonable expectations of the project owners since they were unaware of these memoranda. In considering any requests for further discovery, the court must recognize that the pertinent reasonable expectations are those of the project owners, not of the United States
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508 S.E.2d 786 (1998)
235 Ga. App. 331
TURNER
v.
The STATE.
No. A98A2025.
Court of Appeals of Georgia.
November 6, 1998.
Reconsideration Denied November 18, 1998.
*787 Robert A. Meier IV, Thomas L. Burton, for appellant.
Keith C. Martin, Solicitor, Evelyn Proctor, Assistant Solicitor, for appellee.
BLACKBURN, Judge.
Samuel A. Turner appeals his convictions for a stop sign violation and for driving under the influence of alcohol, following jury trial, contending that the trial court committed a reversible error by failing to give the jury limiting instructions contemporaneously with the introduction of similar transaction evidence. For the reasons set forth below, we affirm.
The issues of the giving of a limiting instruction in connection with similar transaction evidence, the necessity of the defendant requesting such charge in writing, and the timing of the giving of a limiting charge where required, have been before the appellate courts in numerous cases recently.
Our Supreme Court's recent decisions in State v. Belt, 269 Ga. 763, 505 S.E.2d 1 (1998) (Belt II) and State v. Hinson, 269 Ga. 862, 506 S.E.2d 870 (1998) (Hinson II), addressed issues related to limiting instructions and similar transactions. In Belt v. State, 227 Ga.App. 425(1), 489 S.E.2d 157 (1997) (Belt I), no limiting instruction was requested by the defendant or given by the trial court. The Court of Appeals reversed, stating that a limiting instruction must be given by the trial court even absent a written request by the defendant, and further provided that the better practice would be for the trial court to give such charge at the time the evidence is introduced.
In Hinson v. State, 229 Ga.App. 840, 842(3), 494 S.E.2d 693 (1997) (Hinson I), the Court of Appeals reversed, holding that even though the trial court gave a limiting instruction during its general charge, "the trial court committed reversible error in failing to give, sua sponte, a limiting instruction contemporaneous with the admission of extrinsic acts or similar crimes evidence" (Emphasis supplied.) Hinson I purported to be controlled by Belt I, but, in fact, made compulsory, that which was recommended in Belt I.
Our Supreme Court granted certiorari in both these cases. In Belt II, the Supreme Court held that it is not reversible error for a trial court not to instruct a jury at any time that similar transaction evidence admitted for a limited purpose must be considered only for that limited purpose, absent a proper written request by a defendant for such charge. The Supreme Court further noted however, "that, although a trial judge is not required in the absence of a request to give a limiting instruction when similar transaction evidence is admitted, it would be better for the trial judge to do so." Belt II, supra at 765, 505 S.E.2d 1.
In Hinson II, our Supreme Court held that "the Court of Appeals erred in requiring that a trial court give a contemporaneous limiting instruction without request. Regardless of when the defendant wishes the jury instructed on the limited admissibility of similar transaction evidence, it is incumbent upon him to make a timely request to the trial court for such a charge." (Emphasis supplied.) Hinson II, supra at 862, 506 S.E.2d 870.
Neither Belt II nor Hinson II specifically answer the question of whether the trial court is required to give a limiting instruction at the time the similar transaction evidence is introduced where timely and properly requested, rather than as a part of the closing charge.
Here, Turner requested a limiting instruction just after the admission of the similar transaction evidence. Turner stated: "Judge, we would at this time and, as a matter of fact, insist upon curative instructions as to the last two witnesses so the jury *788 clearly understands the purpose of the witnesses, what they testified to, and what they can do and what they can't do with that [evidence]." Turner did not, however, explicitly request that the instruction be given immediately, and he did not object when the judge advised him that he would wait to give the instruction as part of the closing charge to the jury. While Turner requested a limiting instruction, his failure to explicitly request that it be given upon the introduction of the subject evidence, or to renew such request upon the trial judge's statement of his intention to give the requested charge as a part of the general charge, waived any right to have the charge given at the time of the introduction of the evidence. We do not therefore address whether or not he would have been entitled to have such limiting instruction given at the time the evidence was introduced absent his waiver of any such right, as such issue is not before us. Based on Belt II and Hinson II, it was not reversible error for the trial court to wait and give its instruction on the limited use of similar transaction evidence in its closing charge to the jury where Turner failed to explicitly request that the limiting instruction be given contemporaneously and otherwise waived any such right.
Judgment affirmed.
McMURRAY, P.J., and ELDRIDGE, J., concur.
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762 F.2d 1018
Nollv.U.S. Marshals Service
84-2101
United States Court of Appeals,Ninth Circuit.
5/7/85
1
N.D.Cal.
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
191 Cal.App.3d 398 (1987)
236 Cal. Rptr. 480
In re SARAH F. et al., Persons Coming Under the Juvenile Court Law.
SONOMA COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,
v.
LINDA M., Defendant and Appellant.
Docket No. A034198.
Court of Appeals of California, First District, Division Two.
April 27, 1987.
*399 COUNSEL
Annette Lombardi, under appointment by the Court of Appeal, and Stephen C. Becker for Defendant and Appellant.
James P. Botz, County Counsel, and Richard W. Ergo, Deputy County Counsel, for Plaintiff and Respondent.
*400 OPINION
ROUSE, J.
Mother appeals an order directing the county counsel to file a petition for termination of parental rights (Civ. Code., § 232) which was issued after a permanency planning hearing held pursuant to Welfare and Institutions Code section 366.25.[1]
Facts and Procedural History
Sarah F., who was born October 31, 1983, and David F., who was born October 24, 1982, are the children of Linda M. Both children were taken into custody on January 8, 1984, and two days later a petition was filed seeking to have them declared dependent children on grounds that they were destitute and lacking the necessities of life and that their half-brother, Timmy M., had been tied to his bed with an electrical cord. (§ 300, subds. (b), (d).) At a jurisdictional hearing held January 26, 1984, the children were declared dependents of the court.
A six-month review hearing was held as to the status of the children on July 24, 1984. (§ 366.) A hearing on permanency planning for the children was continued first in January and again in February 1985. At the hearing, which had been put over to April 3, 1985, the department of social services recommended a six-month delay to permit additional time for reunification. The court adopted that recommendation, finding that there was a substantial probability that the children would be returned to the physical custody of their mother within six months. (§ 366.25, subd. (c).)
On November 11, 1985, a hearing apparently combining both an 18-month review (§ 366) and the permanency planning hearing (§ 366.25) was held. On November 25, 1985, the juvenile court issued an order finding that there was no substantial probability that the children could be returned to their mother within six months, and directing that the matter be "transferred to the County Counsel for filing of a Petition pursuant to Civil Code Section 232 within 45 days of today's date." It is from this order of the juvenile court, made under section 366.25, that the mother seeks to appeal.
I.
(1a) The first question is whether this order by the juvenile court is an appealable order. Section 395 provides that "A judgment in a proceeding under Section 300 may be appealed from in the same manner as any final judgment, and any subsequent order may be appealed from as from an order *401 after judgment...." A juvenile court "judgment, order or decree specified in section 395" which results from a proceeding undertaken in a section 300 action may be appealed by the county, the minor, the parent or guardian. (Cal. Rules of Court, rule 1396(b).)
Linda M., the mother of the two children, argues that an order issued after a section 366.25 permanency planning hearing is an appealable order within the definition set out in section 395.
Two cases decided by this court and a recent case from the Second District have taken the position that an order after a section 366.25 hearing which refers the case to the county counsel for institution of a Civil Code section 232 hearing is not an appealable order. (In re Debra M. (1987) 189 Cal. App.3d 1032, 1039 [234 Cal. Rptr. 739]; In re Lisa M. (1986) 177 Cal. App.3d 915, 918, 919 [225 Cal. Rptr. 7]; In re Candy S. (1985) 176 Cal. App.3d 329, 331 [222 Cal. Rptr. 43].) Two other recent cases, however, have adopted the opposite view to hold that a "reference" or "authorization" order is an appealable order. (In re Lorenzo T. (1987) 190 Cal. App.3d 888 [235 Cal. Rptr. 680]; In re Joshua S. (1986) 186 Cal. App.3d 147, 152 [230 Cal. Rptr. 437].)
The first published case to address the question of appealability of the order was In re Candy S., supra, 176 Cal. App.3d 329. In Candy S. the court concluded that an order referring a case to the county for commencement of a Civil Code section 232 action was not appealable because until that action was both instituted and concluded with a termination of parental rights the parent was not an aggrieved party (Code Civ. Proc., § 902) suffering from immediate injury as a result of the reference ruling. (In re Candy S., supra, 176 Cal. App.3d 329, 331.) As the court pointed out, the county might choose not to institute the Civil Code section 232 proceeding, and even if it did that proceeding might be determined in the parent's favor. (Ibid.) Thus, the court reasoned, the reference order issued after the section 366.25 hearing was not appealable. The same division of this court then applied this rule without further analysis in its subsequent decision in In re Lisa M., supra, 177 Cal. App.3d 915, 918.)
In re Debra M., supra, 189 Cal. App.3d 1032 recently handed down by the Second District, followed the reasoning of Candy S. The court stressed what it saw as the interim nature of the reference order and found support for its view that the order was nonappealable in the Legislature's intent to expedite the adoption process. (Id., at pp. 1038-1039.)
While these three cases have found the reference order to be nonappealable, there is a separate line of authority, consisting of two opinions, holding *402 the eference order to be appealable. The first of these, In re Joshua S., supra, 186 Cal. App.3d 147, involved a combined dependency review and permanency planning hearing. The Joshua S. court expressly found the reference order was appealable. (Id., at p. 155.) It did so after rejecting the argument that the juvenile court order was not appealable because the mother was not an "aggrieved party" within the meaning of Code of Civil Procedure section 902. (See In re Candy S., supra, 176 Cal. App.3d 329, 331.) (2) Instead, it correctly pointed out that the appealability of juvenile court orders is governed, not by the Code of Civil Procedure, but by the Welfare and Institutions Code. (§§ 395, 800.) It is clear from the language of rule 1396(b), California Rules of Court, that a parent may appeal from an otherwise appealable order in a dependency proceeding.
(1b) The question is not really one of who may appeal, but whether the reference order itself is appealable. In Joshua S., Justice Pauline Hanson concluded that the order was appealable because she found it to be a "subsequent order" within the meaning of section 395. (Id., at pp. 150-152.) Furthermore, she noted that unless the order is appealable the various findings which the juvenile court is obliged to make under section 366.25 before it orders permanency planning and the other procedural safeguards prescribed by the statute are unenforceable and therefore "meaningless." (Id., 186 Cal. App.3d 147, 154.) We concur.
The reasoning of Joshua S. has most recently been followed in the case of In re Lorenzo T., supra, 190 Cal. App.3d 888. Lorenzo T. is especially similar to the case before us because in it there was no express order terminating reunification efforts as there was in Joshua S. Thus the only issue before the court was whether the reference order was appealable. The Lorenzo T. court concluded that the order to the county counsel "for commencement of termination proceedings is an order after judgment of dependency" and therefore is an appealable order under section 395. (Id., at pp. 891, 892.) The court emphasized "[s]ection 366.25 affords both procedural safeguards to the parties and sets out factual predicates to the making of the authorization order." (Id., at p. 893.) We find the reasoning of Joshua S. and Lorenzo T. persuasive.
The dissent argues that the reference is merely an "authorization" from the court to the county or state agency and that it therefore is not an order. "Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order." (Code Civ. Proc., § 1003.) The order involved here is a delegation of authority to the county or state agency to decide whether or not to institute a parental rights termination action under Civil Code section 232. Regardless of what the county or state agency decides to do, it acts pursuant to the court's order. We are not *403 persuaded that the question of appealability turns on the Legislature's use of the verb "authorize" in lieu of "order."
If the reference order is not appealable and a termination of parental rights proceeding under Civil Code section 232 is instituted, the parent will only be able to appeal from an adverse decision in the superior court section 232 proceeding. (3) Termination of parental rights under that code section moots any error in the earlier juvenile court proceedings. (See In re Terry E. (1986) 180 Cal. App.3d 932, 946, fn. 5 [225 Cal. Rptr. 803]; In re Lisa M., supra, 177 Cal. App.3d 915, 919; but see In re Kristin B. (1986) 187 Cal. App.3d 596, 605 [232 Cal. Rptr. 36].)
(1c) The appealability of the reference order cannot turn on whether or not it is accompanied by an order which expressly terminates reunification efforts. As a practical matter the institution of a permanent plan for the child generally brings to an end any county-offered reunification services. (§ 366.2, subd. (e); Civ. Code, § 232, subd. (7); In re Clarence I. (1986) 180 Cal. App.3d 279, 283 [225 Cal. Rptr. 466] [once Civ. Code, § 232 proceeding has begun superior court has discretion to order reunification, but it need not do so].)
Where a reference order does expressly terminate reunification efforts, the effect of the order may indeed have substantial impact upon the rights of the mother and the child. For example, without any reunification assistance from the county in visiting the child, the parent may be forced to rebut a charge in the section 232 action of abandonment based on "only token efforts" to communicate with the child. (Civ. Code, § 232, subd. (1).) We do not face that problem here because the juvenile court's reference order expressly permits the mother continued visitation while the section 232 action is pending.
It was surely the intent of the Legislature in enacting the new scheme of juvenile law adopted in 1982 to bring dependency actions to a faster resolution either by returning the child to its parents or freeing it for adoption. (Stats. 1982, ch. 978, §§ 1-78, pp. 3524-3557; see Review of Selected 1982 California Legislation (1982-1983) 14 Pacific L.J. 667.) Thus, it could be argued that permitting appeal from reference orders after section 366.25 hearings would frustrate the purpose of the statutory scheme by causing further delay. As Justice Pauline Hanson notes, however, since dependency review orders are appealable, and they often are made in conjunction with the permanency planning hearing, such additional delays caused by appeals from reference orders are not likely to significantly slow the juvenile process. (In re Joshua S., supra, 186 Cal. App.3d 147, 154.)
Because the reasoning of Joshua S. and Lorenzo T. seems to take account of what is in reality, if not on paper, the drastic step of referring a case for *404 termination of parental rights, they are, we believe, the sounder approach. In light of our conclusion that the reference order from a permanency planning hearing held pursuant to section 366.25 is appealable, we proceed to address the merits of the mother's claim.
II.
(4) Linda M. contends that the juvenile court erred in ordering a permanency plan for the children after finding that "there is not a substantial probability that" they would be returned to her care within six months. She contends that there is not substantial evidence to support this determination.
The court's order, issued after it had considered both the documentary evidence and the testimony presented at the hearing, found Linda M. was "unable to adequately meet the needs of these two minors who have special needs." In her review of the evidence the mother focuses only upon the testimony which was given at the hearing.[2] She argues that this testimony was insufficient to demonstrate that she was unable to care for the two minors. Based upon our own review of all the evidence before the court, we find that there is substantial evidence to support the court's finding.
Dr. Gershom Thompson, a psychiatrist who had been most recently treating the mother, testified that Linda M. had not developed, through therapy, an ability to avoid a relationship with the children's abusive father nor did she have any real understanding of the effects of abuse and neglect upon the children. He also testified that, even if she could avoid a relationship with their father, she would be vulnerable to similar relationships with other men likely to exploit her and abuse the children. This diagnosis was strikingly similar to that of the mother's prior therapist, social worker Judith LaTendresse. Ms. LaTendresse had terminated her therapy of the mother when she realized that Linda M. was unable to accept the fact that the interests of the children required her to end her relationship, however tenuous, with their father.
Finally, Dr. Thompson also stated that he believed Linda M. would not be able to handle these two children in addition to her other two small children, Timmy, then four, and Michael, an infant, who were presently in her care. Timmy, the child whose mistreatment originally led to the dependency proceeding, was returned to his mother's care in August 1985. He is apparently a hyperactive child who has behavior problems. His siblings, Sarah and *405 David, have also exhibited behavioral and developmental difficulties; some of their behavior problems seem to be triggered by visits with their parent or parents. Dr. Kenneth Waldron, a clinical psychologist who evaluated Sarah and David, concluded that these difficulties were the result of "environmental problems" when they were younger and concluded it was "essential" they be placed soon in a home that could provide "a good deal of structure and guidance...."
Three witnesses testified on the mother's behalf at the hearing. Despite their generally positive appraisals of Linda M.'s parenting abilities, two of them conceded that the problems of raising two children were substantially different from those involved in raising four. Only the homemaker, Lorna Remy, testified that she believed the mother would be able, within six months, to resume custody of all four children. Although her opinion was based on her observation of the mother with all four children, it was derived from only two months of contact with the family.
While the evidence before the court was not uncontradicted, we find there was substantial evidence to support the court's finding that there was not a substantial probability that the minors, Sarah and David, could return to the custody of their mother within six months.
The order is affirmed.
Kline, P.J., concurred.
BENSON, J.
I respectfully dissent.
I agree that the Welfare and Institutions Code sections discussed by the majority govern the appealability question in this case. I also agree that the question is not who may appeal but whether the authorization is appealable. But I must dissent from the majority opinion for two reasons.
First, section 366.25,[1] as amended in 1984, does not allow the juvenile court to order the institution of a Civil Code section 232 proceeding. It now can only authorize the appropriate agency to institute such a proceeding, and this authorization does not amount to an appealable order. Second, In re Debra M. (1987) 189 Cal. App.3d 1032 [234 Cal. Rptr. 739], a recent decision in which the Second Appellate District followed In re Candy S. (1985) 176 Cal. App.3d 329 [222 Cal. Rptr. 43], in my judgment presents the more persuasive policy analysis in cases like this one.
*406 In holding that a "reference order" from a section 366.25 permanency planning hearing is appealable, the majority relies on In re Joshua S. (1986) 186 Cal. App.3d 147 [230 Cal. Rptr. 437], and In re Lorenzo T. (1987), 190 Cal. App.3d 888 [235 Cal. Rptr. 680]. Joshua S. involved a joint review and permanency planning hearing. The court noted the juvenile court's order to terminate reunification efforts and concluded that this order was appealable. Such an order, the court reasoned, affects the substantial rights of the child and, therefore, constituted a "subsequent order" within the meaning of section 395. (Id., at pp. 151-152.) The court went on to discuss what it called the section 366.25 "reference order" or "authorization order" directing the appropriate agency to institute proceedings under Civil Code section 232 to permanently sever the parent-child relationship.
Lorenzo T., supra, 190 Cal. App.3d 888, involved a permanency planning hearing at which the court ordered the county counsel to initiate a proceeding under Civil Code section 232 to terminate parental rights. The court concluded: "Once the juvenile court makes the section 366.25 findings, it is required to instruct the county counsel to initiate Civil Code section 232 proceedings. The order for commencement of termination proceedings is an order after judgment of dependency." (Id., at p. 892.)
Neither the Joshua S. nor the Lorenzo T. courts recognized the impact of a 1984 amendment to section 366.25, subdivision (d)(1). This amendment made a significant change in what a juvenile court may do at a permanency hearing. The relevant part of this provision now reads:
"(d) If the court determines that the minor cannot be returned to the physical custody of his or her parent or guardian and that there is not a substantial probability that the minor will be returned within six months, the court shall develop a permanent plan for the minor. In order to enable the minor to obtain a permanent home the court shall make the following determinations and orders:
"(1) If the court finds that it is likely that the minor can or will be adopted, the court shall authorize the appropriate county or state agency to proceed to free the minor from the custody and control of his or her parents or guardians pursuant to Section 232 of the Civil Code unless the court finds any of the following conditions exist...."
The amendment to subdivision (1) substituted, "the court shall authorize the appropriate county or state agency to proceed to free the minor" in place of "the court shall order the county counsel, or if there is no county counsel, the district attorney, to initiate an action to declare the minor permanently free...."[2] (Italics added.) As the statute now reads, the juvenile court shall *407 authorize the appropriate agency to institute a proceeding under section 232 of the Civil Code, but it cannot order the institution of this proceeding.
The Lorenzo T. court quoted the relevant portion of this amended statute but apparently did not recognize the changes made by the amendment. The court even criticized Candy S., supra, 176 Cal. App.3d 222 because "the juvenile court merely referred the case for possible termination proceedings rather than ordering their commencement...." (In re Lorenzo T., supra, 190 Cal. App.3d at p. 893.)
The Joshua S. court acknowledged this amendment and even noted that such a "reference" is not binding upon anyone. The court said: "As pointed out in Candy S., the reference or authorization is not binding on the Department of Public Social Services (DPSS). It may decline to pursue termination at that time. (See In re Lisa M., supra, [177 Cal. App.3d 915] at p. 918.)" (In re Joshua S., supra, 186 Cal. App.3d 147, 154.) But the court did not consider how the permissive nature of the authorization to institute Civil Code section 232 proceedings might preclude it from being an appealable order. Although the court concluded that terminating reunification efforts affects the substantial rights of the parties,[3] it did not discuss how such an authorization alone, as in this case, could affect the substantial rights of the child and therefore be an appealable order.
The Legislature did not state its intent in making this change to section 366.25. "Generally, a substantial change in the language of a statute or constitutional provision indicates an intention to change its meaning." (Mosk v. Superior Court (1979) 25 Cal.3d 474, 493 [159 Cal. Rptr. 494, 601 P.2d 1030].) This court must attempt to ascertain the Legislature's intent.
This court has recently stated: "In ascertaining legislative intent so as to effectuate the purpose of the law, we turn first to the words of the statute, reading the language according to its ordinary and usual import, lending significance to every part where possible, avoiding surplusage, reading the language in context and harmonizing all parts. [Citations.]" (Moseley v. Abrams (1985) 170 Cal. App.3d 355, 361 [216 Cal. Rptr. 40].)
The word "order" is a legal term. Section 1003 of the Code of Civil Procedure defines an "order" as "[e]very direction of a court or judge, made or entered in writing, and not included in a judgment...." This definition applies to both civil actions and special proceedings. (Code Civ. Proc. § 1064.) Most importantly, a court may enforce its lawful orders. (Code Civ. Proc., § 177.)
*408 The word "authorize" has a very different meaning. In defining this word, we cannot turn to a code section but must look instead at its dictionary meaning. "[T]he word `authorize' ... ordinarily denotes affirmative enabling action. Black's Law Dictionary 122 (5th ed. 1979) defines "authorize" as `[t]o empower; to give a right or authority to act.'" (County of Washington v. Gunther (1981) 452 U.S 161, 169 [68 L.Ed.2d 751, 759, 101 S.Ct. 2242].) "Similarly, Webster's Third New International Dictionary 147 (1976) states that the word `authorize' `indicates endowing formally with a power or right to act, usu. with discretionary privileges.'" (Ibid., fn. 9.) (See also Kiseskey v. Carpenter's Trust for So. California (1983) 144 Cal. App.3d 222, 235 [192 Cal. Rptr. 492], citing Webster's Third New International Dictionary (1961) to define the word "authorize.") Clearly, being authorized by a court to do something is much different than being ordered by the court to do it.
Not only did the Legislature substitute the word "authorize" for the word "order" in section 366.25, subdivision (d) (1), it left the word "order" in the other two amended subdivisions. Subdivision (d)(2) reads in part: "If the court finds that it is not likely that the minor can or will be adopted ... the court shall order the appropriate county department to initiate or facilitate the placement of the minor in a home environment that can be reasonably expected to be stable and permanent." (Italics added.) Subdivision (d)(3)(A) reads in part: "If the court finds that it is not likely that the minor can or will be adopted, ... the court may order the care, custody, and control of the minor transferred from the county welfare department or probation department to a licensed foster family agency." (Italics added.) The Legislature's use of "authorize" in one place and "order" in two other places in this statute reflects its intent to change what the juvenile court can do at a permanency planning hearing. "Where the Legislature has employed a term or phrase in one place and excluded it in another, it should not be implied where excluded." (Phillips v. San Luis Obispo County Dept. etc. Regulation (1986) 183 Cal. App.3d 372, 380 [228 Cal. Rptr. 101]; see also Gonzales & Co. v. Department of Alcoholic Bev. Control (1984) 151 Cal. App.3d 172, 178 [198 Cal. Rptr. 479].)
For some unexplainable reason, sections 361.5[4] and 358,[5] in referring to section 366.25, say that the court may "order" the institution of a Civil Code section 232 proceeding at a permanency planning hearing. These statutes are inconsistent with section 366.25. "A court must, where reasonably possible, harmonize statutes, reconcile seeming inconsistencies in them, and construe them to give force and effect to all of their provisions. [Citations.] This rule applies although one of the statutes involved deals generally with a subject and another relates specifically to particular aspects of the subject. *409 [Citations.]" (Hough v. McCarthy (1960) 54 Cal.2d 273, 279 [5 Cal. Rptr. 668, 353 P.2d 276].) However, "a specific provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates." (REA Enterprises v. California Coastal Zone Conservation Com. (1975) 52 Cal. App.3d 596, 611 [125 Cal. Rptr. 201]; see also People v. Moroney (1944) 24 Cal.2d 638, 643-644 [150 P.2d 888]; Short Stop, Inc. v. Fielder (1971) 17 Cal. App.3d 435, 444 [95 Cal. Rptr. 102].)
Section 366.25 is the only statute in the Welfare and Institutions Code specifically dealing with what a court may do at a permanency planning hearing. In reconciling section 366.25 with those merely referring to it, section 366.25 must govern.
A juvenile court may no longer make a binding order compelling the institution of a Civil Code section 232 proceeding. The court may only authorize the appropriate agency to institute such a proceeding. Because the authorized agency is free to do as it pleases, this authorization does not affect the substantial rights of the child. Therefore, it cannot be appealable as a "subsequent order" within the meaning of section 395. It matters not whether the juvenile court couches this authorization in the form of an order.[6] It matters not whether an appellate court uses the terms "reference order" or "authorization order." What matters, as stated in Candy S., supra, 176 Cal. App.3d 329, is that "the `referenced,' or suggested, Civil Code section 232 action [sic] may never be filed, and if filed, may result favorably to [appellant]. No immediate or substantial prejudice is discerned." (Id., at p. 331.) There should be no appeal from such a mere "authorization."
In the recent case of In re Debra M., supra, 189 Cal. App.3d 1032, the Second Appellate District reached this result not by analyzing the amendment to section 366.25, but by considering the policy underlying this section and the intermediate nature of the authorization allowed by it.
In that case, the juvenile court judge, apparently cognizant of the amendment to section 366.25, referred Debra M. for adoptive planning and for the "possible" filing of a Civil Code section 232 proceeding. The court, speaking through Justice Thaxton Hanson, noted the lack of finality in such a reference. The court also focused on section 366.25's carefully prescribed periods for reporting on and review of the living situation of dependent children. The court saw these requirements as indicative of the legislative concern for *410 the early adoptability of these children, its awareness that the passage of time diminishes the chances of early adoption, and its desire to keep these children from living "in limbo ... while a solution is sought for their care." (In re Debra M., supra, at pp. 1037-1038.) Justice Hanson then so eloquently said: "The reality is that childhood is brief; it does not wait while a parent rehabilitates himself or herself. The nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it." (Id., at p. 1038.) Finally, the court concluded: "The Legislature has expressed increasing concern with the perceived and accurate reality that time is of the essence in offering permanent planning for dependent children. We do not think the legislative intent and purpose is best served by rendering appealable, as an order after judgment, an interim ruling merely referring a dependent child for adoptive planning." (Id., at pp. 1038-1039; italics added.)
In light of the 1984 amendment to section 366.25 and the persuasive and insightful reasoning in In re Debra M., the authorization to initiate a termination proceeding under Civil Code section 232 should not be appealable.
The majority raises several points which must be addressed at this time.
The majority is not persuaded that the question of appealability turns on the Legislature's use of the word "authorize" in lieu of the word "order" in section 366.25, subdivision (d)(1). But the majority does not even attempt to show why it believes there is no legal difference between the two words. Furthermore, the majority says that "[t]he order involved here is a delegation of authority to the county or state agency to decide whether or not to institute a parental rights termination action under Civil Code section 232." Thus it concedes that we are dealing with a delegation of authority. But it ignores the fact that courts may enforce their orders. How can something that allows an agency to decide whether to take a particular action be an "order"?
The majority says that "[r]egardless of what the county or state agency decides to do, it acts pursuant to the court's order." But the Joshua S. court pointed out that "the county authorities may, without the juvenile court's reference or authorization, seek termination of parental rights of a ward of the juvenile court. (See In re Shannon W., supra, 69 Cal. App.3d at pp. 962-963.)" (In re Joshua S., supra, 186 Cal. App.3d 147, 154.) Thus, how do we know that the appropriate agency acts pursuant to this authority when it could have sought to terminate parental rights even without the court authorization?
The majority maintains that appealability of the reference cannot depend on whether it is accompanied by an order expressly terminating reunification *411 efforts. It then goes on to say that where the reference does expressly terminate reunification efforts, the effect of the order may have a substantial impact on the rights of the child. The majority reasons that without reunification assistance, the parent may be forced to rebut a charge of "only token efforts" to communicate with the child in a Civil Code section 232 proceeding.
The issue in this case is whether an authorization to institute a Civil Code section 232 proceeding affects the substantial rights of the child and is therefore is appealable. This issue should not be "bootstrapped" to the question of whether the termination of reunification efforts affects these rights and is therefore appealable. Furthermore, why should this court try to prevent certain arguments from possibly being raised at a section 232 proceeding by making an authorization appealable?
The majority also purports to follow the reasoning in Joshua S. that since dependency review orders are appealable and are often made in conjunction with the permanency planning hearing, additional delays caused by appeals from an authorization are not likely to significantly slow the process. First, this is not what the Joshua S. court said. The court did say that "[b]ecause orders emanating from the section 366.25 hearing, other than the reference or authorization order, are appealable [citation], it is unlikely a holding that the authorization order is appealable will add significantly to delays." (In re Joshua S., supra, 186 Cal. App.3d 147, 154.) But we are not dealing with those other orders; we are dealing with an authorization to institute a Civil Code section 232 proceeding. The order of authorization in this case is dated November 25, 1985. By the time this court's decision becomes final, a total of approximately 16 months will have passed, a significant period in the brief duration of childhood. In Lorenzo T. it appears that 14 months elapsed between the order and the filing of the decision on appeal and even in Joshua A. it took 10 months from the time of the November 1985 "orders" to the September 1986 Court of Appeal decision. In my judgment the clear consequence of the majority holding is to significantly impede the desirable goal of early adoption.
NOTES
[1] Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.
[2] As respondent points out, the factual statement in appellant's brief is inadequate. However, instead of aiding this court by setting forth a factual summary in its brief, respondent has compounded the inadequacy of the briefing by submitting an extremely summary brief of its own which contains a few citations to the record but lacks any substantive discussion of the facts of the case.
[1] Unless otherwise indicated, all references are to the Welfare and Institutions Code.
[2] Technically, this is a special proceeding as defined in section 23 of the Code of Civil Procedure. (In re Mark K. (1984) 159 Cal. App.3d 94, 102 [205 Cal. Rptr. 393]; see also 3 Witkin, Cal. Procedure (3d ed. 1985) § 13, pp. 43, 45.)
[3] It is not clear from the opinion whether the court focused on the rights of the child or the mother.
[4] Added by Statutes 1986, chapter 1122, section 13.
[5] As amended by Statutes 1986, chapter 1122, section 10.
[6] In the case before us, the juvenile court's order after hearing read in part as follows: "The matter is hereby ordered transferred to the County Counsel for filing of a Petition pursuant to Civil Code Section 232 within 45 days of today's date."
| {
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972 F.Supp. 315 (1997)
In re LOWER MERION TOWNSHIP FIRE DEPARTMENT LABOR STANDARDS LITIGATION.
Civ. A. No. 96-8036.
United States District Court, E.D. Pennsylvania.
August 5, 1997.
*316 John C. Fekety, Philadelphia, PA, for Plaintiffs.
Mark J. Foley, Klett, Lieber, Rooney & Schorling, Philadelphia, PA, for Defendant.
MEMORANDUM
DALZELL, District Judge.
This is a dispute between fourteen firemen and the various volunteer fire departments in the Township of Lower Merion that employ them over the fire departments' liability for overtime pay under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (the "FLSA").
Plaintiffs, paid firefighters employed by five defendant fire companies, originally filed five separate actions, each naming one of the fire departments as a defendant. Because the individually-filed cases involved common questions of law, we consolidated them under the above caption for all purposes, pursuant to Fed.R.Civ.P. 42(a).
Defendants have moved for summary judgment, and the plaintiffs have moved for partial summary judgment. The motions distill into one discrete and close question of law, whether the defendant fire departments are agencies of the Township of Lower Merion. Because we hold they are not, we shall grant plaintiffs' motion and deny defendants'.
I. Factual Background
The parties have submitted a set of stipulated facts and an appendix of exhibits, from which we have drawn the facts necessary to the following discussion. As will be seen, in order to appraise the parties' legal contentions under the FLSA, it is necessary to have a detailed understanding of these five fire companies and their relationship with the Township.
A. Internal Structure of the Individual Fire Departments
Each of the defendant fire departments is a non-profit corporation duly organized and existing under the laws of the Commonwealth of Pennsylvania. Each was incorporated for the exclusive purpose of providing fire protection services to various areas within Lower Merion Township, and all began their existence as entirely volunteer organizations. None of the fire departments was incorporated by Lower Merion Township, Montgomery County, or the Commonwealth of Pennsylvania, see Stip. Exs. 6-10, and none of them has the power to levy taxes. Stip. No. 44.
The internal organization of these fire departments varies. All, however, share the common characteristic that the citizens of the respective areas have no role in the election of the governing boards of the departments. Stip. No. 43.
Specifically, defendant Union Fire Co., which was incorporated in 1903, is governed by a Board of Directors elected by the members of the fire department. The Board of Directors, in turn, elects the President of the company. The members of the company elect the Chief, who is the officer in charge of the actual firefighting and of the training of the firefighters. See Stip. Ex. 6 (By-laws of the Union Fire Co.).
Defendant Merion Fire Co., incorporated in 1890, is governed by a Board of Managers elected by the members of the department. The Board of Managers elects the President of the company, and the members of the Fire Brigade (those members of the company who are active firefighters) elect the Chief. See Stip. Ex. 7 at Article X (By-laws of Merion *317 Fire Co.). Defendants Gladwyne Fire Co., founded in 1944, and Penn Wynne Fire Co., founded in 1928, have similar organizations. See Stip. Ex. 8 (By-laws of Gladwyne Fire Co.) and Stip. Ex. 10 (By-laws of Penn Wynne Fire Co.).
The Belmont Hills Fire Co. also is governed by a Board of Directors, but the membership, rather than the Board, elects the President. See Stip. Ex. 9 (By-laws of Belmont Hills Fire Co.). The members also elect the Chief. Id.
B. The Lower Merion Fire Department
The Lower Merion Township Board of Commissioners in 1908 established the Lower Merion Township Fire Department ("L.M.F.D."). Stip. ¶ 16. The purpose of the L.M.F.D. is to coordinate fire protection activities. Stip. ¶ 16. The Chief Fire Officer, a full-time paid employee of the Township, is the head of the L.M.F.D. Stip. at ¶ 18. The L.M.F.D. employs five other fulltime Township employees, a Deputy Chief, three Deputy Fire Marshals, and a clerk. See Stip. Ex. 12 at 1st page. Other than these six employees, the L.M.F.D. does not employ any paid professional firefighters. Stip. ¶ 19.
The L.M.F.D. is governed, pursuant to the Township Fire Code, by a Board of Directors which consists of "the elected Presidents and Fire Chiefs of the volunteer Fire Companies, the Chairman of [the] Fire Committee of the Township's Board of Commissioners (the Township's elected council), the Township Manager and the Chief Fire officer." Stip. ¶ 21. The Board of Directors is directly responsible to the Township Board of Commissioners. Id. at ¶ 22.
C. The Employment Relationship Between the Fire Departments and the Firefighters
Because there are often not enough volunteers to handle the equipment, the departments each employ three paid firefighters. These paid firefighters, known as "housemen," receive the same training as the volunteer firefighters, but perform additional tasks. Stip. ¶ 35. The housemen are responsible for maintenance of the fire equipment and the fire house, and for driving the equipment. See, e.g., Stip. Ex. 27 at Section V (Employee Policy and Procedural Manual of Union Fire Assoc.). The plaintiffs are current and former housemen in the five departments. See Stip. at ¶¶ 1-5.
Not one of the plaintiffs is, by virtue of his employment in the fire departments, an employee of the Township of Lower Merion, and Lower Merion does not employ any paid firefighters in the Lower Merion Fire Department. Stip. Nos. 19 & 42.
D. The Relationship Between The Lower Merion Fire Department and the Fire Departments
Each of the five departments is a member of the L.M.F.D. Stip. at ¶ 17. The bylaws of the Lower Merion Fire Department and the Lower Merion Fire Prevention Code state that:
Each volunteer fire company shall operate under its own bylaws, which shall be in accordance with generally accepted standards for similar organizations and with accounting procedures approved by the certified public accountants of the township. Nothing in this chapter is intended to restrict or hamper the internal organization of the volunteer fire companies.
Stip. Ex. 11 at p. 5.
The Township Fire Code requires each fire department, as a condition to receiving Township money, to submit a proposed budget, appropriation requests, quarterly reports, and budget reports to the Township Manager. Stip. ¶ 25; see also Stip. Ex. 11 at 6 ("Annual appropriations shall be made by the Board of Commissioners to each volunteer fire company in the township which is a member of the Fire Department, subject to such reasonable conditions as the Board of Commissioners may from time to time see fit to impose."). To date, each of the fire departments has complied with this requirement. Id. at 25. Each department must submit to an annual appraisal by Township auditors, the results of which are reported to the Township Board of Commissioners, and the Commissioners use the audit to determine *318 the amount of each individual fire department's annual appropriation. Stip. ¶ 26.
As noted above, none of the housemen is, by virtue of his employment with a particular fire department, an employee of the Lower Merion Fire Department. However, "[t]ownship funds are used to pay the salaries of the volunteer fire companies' housemen. In addition, the Township directly reimburses the volunteer fire companies for the cost of providing workmen's compensation insurance for the housemen." Stip. ¶ 36.
The Township in 1966 "specifically required each volunteer fire company to add a third houseman and increased its annual appropriation to the individual volunteer fire companies to pay for the services of the additional houseman." Stip. ¶ 37. The Township also requires that each fire department, "under the direction of the Township Chief Fire Officer," train its firefighters. Stip. ¶ 23. One of the Deputy Fire Marshals, known as the Training Officer, who is a paid full-time Township employee, "provides oversight and assistance for each volunteer fire company's training program." Stip. ¶ 30.
The L.M.F.D. operates as a coordinating force among the departments, though it does not assume direct control over the actions of the fire fighters:
Pursuant to the Township of Lower Merion Fire Code, the Chief Fire Officer of the Township shall respond to and assume command at all alarms and fires to which more than two volunteer member fire companies respond. The Chief Fire Officer shall also respond to and assume command when two fire companies have responded to a fire emergency, but only if conditions at the fire grounds make such action necessary to protect life and property. Until then, the Fire Chief of the volunteer fire company in which the fire occurs shall be in command. All orders issued by the Chief Fire Officer should be transmitted through the Fire Chief of the volunteer member fire company in whose district the fire occurs.[1]
Stip. ¶ 29. The by-laws of the L.M.F.D. provide that "[t]he Fire Chief and subordinate officers of each volunteer fire company shall be in command of their fire companies at fires. All fire companies shall adhere to uniform Fire Department procedures as recommended by the Board of Directors of the Fire Department and approved by the Board of Commissioners of the Township." Stip. Ex. 13 at 2 (By-laws of the L.M.F.D.). In addition, "[t]he Fire Chiefs and their subordinate officers shall be responsible for the maintenance, efficiency and conduct of their respective fire companies." Id. The L.M.F.D. by-laws also define each fire department's territory. Stip. ¶ 24.
The Township also "provides extensive technical support to the individual volunteer fire companies," and "assists in the operation of a Central Dispatch System which coordinates the responses of the volunteer fire companies to emergency calls." Stip. ¶ 30. The L.M.F.D. also establishes the standard operating procedures which the departments must follow at emergency scenes such as "command and control procedures, procedures for high-rise emergencies, fire training, health and safety, handling clandestine drug laboratories, responding to bomb threats, and operating vehicles." Stip. ¶ 27.
In 1996, the Township and the Commonwealth of Pennsylvania provided the bulk of the fire companies' operating funds. Specifically, Penn Wynne-Overbrook Hills Fire Co. received seventy-four percent of its 1996 revenues from these two sources, the Union Fire Association received sixty percent from them, the Merion Fire Company of Ardmore got sixty-five percent, the Belmont Hills Fire Company, eighty percent, and the Gladwyne Fire Company, sixty-six percent. Stip. ¶ 31. In addition:
In March, 1995, Lower Merion Township began a program of providing funds to the volunteer Fire Companies for repairs to their fire houses.
Under this policy, the Township has provided funding for repairs to the defendants' *319 fire houses. Currently, the Township has committed to funding the construction of a new fire house for the Merion Fire Company of Ardmore. The Township retains the right to enter the property if the Ardmore Company is unable to satisfy its obligations under the agreement.
The elected Board of Commissioners of the Township of Lower Merion have adopted a policy to provide funding to the individual Fire Companies for the purchase price of new fire equipment, such as pump and ladder trucks. Pursuant to this policy, the Township Commissioners review any requests for new equipment and then approve reimbursement to the individual volunteer fire company. Each company covenants that if it dissolves or ceases to be a member company of the Lower Merion Township Fire Department, then it must transfer ownership of any equipment purchased under the policy to the Township.
Stip. ¶¶ 32-34 (internal citations omitted).
E. The Relationship Between The L.M.P.D. and the Individual Firefighters
Although the "hiring of paid firemen (housemen) [is] a company function" each fire department retains, the Lower Merion Board of Commissioners does possess the power to veto the hiring of an individual houseman if "in the opinion of the board, said individual would be incompetent or [ ] the character of said individual [is] determined to be of discredit to the Department or the Township." Stip. Ex. 13 at 8 (Bylaws of the Fire Department of the Township of Lower Merion).
* * *
It is important to note that we are not the first court to canvass the employment consequences of these fire departments' relationship to the Township. In the 1980s, the Township successfully defeated a unionization drive within the five departments. See International Ass'n of Fire Fighters v. Commonwealth, 95 Pa.Cmwlth. 93, 504 A.2d 422 (1986). In that case, the Commonwealth Court upheld an administrative finding that the Policemen or Firemen Collective Bargaining Act, 43 Pa. Cons.Stat. Ann. §§ 217.1217.10, which "controls collective bargaining between policemen and firemen and the Commonwealth or its political subdivisions", Fire Fighters, 504 A.2d at 423 n. 2, did not apply to the defendants' housemen because the Township was not a "joint employer" with the fire departments of the housemen.
The parallels of the Fire Fighters case to ours will become apparent in an extended excerpt from the Commonwealth Court's opinion.
Our review of the record discloses that the examiner's findings, which are supported by substantial evidence, uphold his conclusion that the Township is not a "joint employer." Each volunteer fire company has its own fire chief, president, board of directors and establishes its own internal house rules. The fire chiefs exert exclusive control over their companies' men at all fires. Each company owns its own equipment and fire houses. The wages, benefits and hours for the housemen are determined independently by each fire company. Holidays, sick leave and the entitlement to uniforms are controlled by each fire company. Finally, each fire company is responsible for and actually hires, disciplines and terminates its housemen.
In contrast, the Township's sole involvement with the fire companies is through its Fire Department, which coordinates a firefight when three or more companies are called and directs the work of the fire chiefs (not the individual volunteer firefighters). Economically, the Township appropriates lump sum monies for each fire company, provides statutorily mandated workman's compensation insurance for the housemen, and makes available Blue Cross/Blue Shield coverage to the housemen whose respective companies have requested it. Finally, the Township has the conditional authority to disapprove the hiring of a houseman.
We agree with the [Pennsylvania Labor Relations] Board that these peripheral contacts do not amount to any substantive authority or real control over the economic and conditional terms of employment for *320 the housemen at the individual volunteer fire companies.
Fire Fighters, 504 A.2d at 424-25 (internal citations and footnotes omitted).
II. LEGAL ANALYSIS
A. The Fair Labor Standards Act
Section 207(a) of the Fair Labor Standards Act provides the general rule for work hours and overtime pay under the statute. 29 U.S.C. § 207(a). Employers must pay their employees at the rate of one and one-half their hourly rate for every hour they work beyond forty hours in a week. 29 U.S.C. § 207(a). There is, however, a relevant exception to this rule, regarding public employees, which the defendants, in their motion, concisely and accurately summarize:
The FLSA provides an exception to the overtime pay requirements of Section 207(a) for employees of public agencies that are engaged in fire protection activities. 29 U.S.C. § 207(k). Under Section 207(k), an employee engaged in fire protection activities is entitled to overtime pay after working the specified number of hours in a work period that ranges from 53 hours in a 7-day work period to 216 hours in a 28-day work period. For example, a fire department employing a 21-day work period would not be required to pay overtime to its employees until they had worked more than 159 hours in that 21-day work period. See 29 C.F.R. § 553.230 (providing maximum hours standard for employees engaged in fire protection activities). The purpose of this exception is to recognize the reality that employees engaged in fire protection activities are often "on call" 24-hours a day and rarely if ever follow the typical 40-hour work week model followed by most other employees.
Def. Br. at 13 (footnotes omitted).
B. The History of Volunteer Fire Departments Private organizations Providing Public Service
We begin with the premise that not every organization involved in firefighting is a government agency for purposes of the FLSA. The Department of Labor's regulation under the FLSA supports this premise: "The application of [the § 207(k) exception], by [its] terms, is limited to public agencies, and does not apply to any private organization engaged in furnishing fire protection or law enforcement services. This is so even if the services are provided under contract with a public agency." 29 C.F.R. § 553.202 (1997). Thus, "[w]hile the money used to pay `overtime' to the private firefighters might ultimately come out of the State's pocket, this does not make the private employer a `public agency.'" Conway v. Takoma Park V.F.D., Inc., 666 F.Supp. 786, 792 (D.Md. 1987), appeal dismissed, 838 F.2d 465 (4th Cir.1988).
Defendants claim that "the Fire Companies here are providing `traditional government functions.'" Def. Br. at 18. While it is true that the Supreme Court has described fire prevention and fire protection as "typical of those performed by state and local governments in discharging their dual functions of administering the public law and furnishing public services," National League of Cities v. Usery, 426 U.S. 833, 851, 96 S.Ct. 2465, 2474, 49 L.Ed.2d 245 (1976), overruled on other grounds by Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), it is also true that in this country in general, and in this part of it in particular, a long history of nongovernmental, volunteer firefighting exists. This history in Philadelphia centers on its most famous citizen.
Benjamin Franklin was foremost of all Philadelphia's exponents of fire prevention. In December of 1733 he published in his Gazette an article exhorting everyone to assist in extinguishing fires: "how pleasing must it be to a thinking Man to observe, that not a Fire happens in this Town, but soon after it is seen and cry'd out, the Place is crowded by active Men of different Ages, Professions and Titles; who, as of one Mind and Rank, apply themselves with all Vigilance and Resolution, according to their Abilities, to the hard Work of conquering the increasing Fire."
Now that the city had enough fire engines, Franklin realized that the weakness in its fire defenses lay in the disorganized, if earnest, efforts of her citizens. In an article *321 on fire prevention, published in the Gazette of January 28 February 4, 1734/5, and highlighted by the statement "an Ounce of Prevention is worth a Pound of Cure," Franklin notes, "As to our Conduct in the Affair of Extinguishing Fires, tho's we do not want Hands or Good-will, yet we seem to want Order and Method, and therefore I believe I cannot do better than to offer for our Imitation, the Example of a City in a Neighboring Province. There is, as I am well inform'd, a Club or Society of active Men belonging to each Fire Engine; whose Business is to attend all Fires with it whenever they happen." In his Autobiography Franklin records the reception which his article met with:
This was much spoken of as a useful piece, and gave rise to a project, which soon followed it, of forming a company for the more ready extinguishing of fires, and mutual assistance in removing and securing of goods when in danger. Associates in this scheme were presently found, amounting to thirty. Our articles of agreement oblig'd every member to keep always in good order, and fit for use, a certain number of leather buckets, with strong bags and baskets (for packing and transporting of goods), which were to be brought to every fire; and we agreed to meet once a month to spend a social evening together, in discoursing and communicating such ideas as occurred to us upon the subject of fires, as might be useful in our conduct on such occasions.
The utility of this institution soon appeared, and many more desiring to be admitted than we thought convenient for one company, they were advised to form another, which was accordingly done; and this went on, one new company being formed after another, till they became so numerous as to include most of the inhabitants who were men of property.... I question whether there is a city in the world better provided with the means of putting a stop to beginning conflagrations; and, in fact, since these institutions, the city has never lost by fire more than one or two houses at time.
Thus was formed on December 7, 1736, Philadelphia's first volunteer fire force, the Union Fire company.... The other companies, whose formation followed shortly after, were the Fellowship, 1738; the Hand-in-Hand, 1742; the Heart-in-Hand, 1743; the Friendship, 1747; the Star, 1749; the Britannia, 1750 or 1751; and the Hibernia, 1752. Among them these eight companies owned an impressive amount of fire-fighting equipment.
Nicholas B. Wainwright, A philadelphia Story 19-21 (1952).[2]
Such private, volunteer organizations have played a large part in the development of our national character, as America's most observant foreign visitor noted forty-five years after Franklin's death.
In no country in the world has the principle of association been more successfully used, or more unsparingly applied to a multitude of different objects, than in America. Besides the permanent associations which are established by law under the names of townships, cities, and counties, a vast number of others are formed and maintained by the agency of private individuals.
The citizen of the United States is taught from his earliest infancy to rely upon his own exertions, in order to resist the evils and the difficulties of life; he looks upon the social authority with an eye of mistrust and anxiety, and he only claims its assistance when he is quite unable to shift without it.... The same spirit pervades every act of social life. If a stoppage occurs in a thoroughfare, and the circulation of the public is hindered, the neighbours immediately constitute a deliberative body; and this extemporaneous assembly gives rise to an executive power, which remedies the inconvenience, before anybody has thought of recurring to an *322 authority superior to that of the persons immediately concerned.
... Societies are formed to resist enemies which are exclusively of a moral nature, and to diminish the vice of intemperance: in the United States associations are established to promote public order, commerce, industry, morality, and religion; for there is no end which the human will, seconded by the collective exertions of individuals, despairs of attaining.
1 Alexis de Tocqueville, Democracy in America 177 (Henry Reeve trans., Arlington House 1966) (1835). Tocqueville five years later described this aspect of the American character as peculiar to the national spirit.
The political associations which exist in the United States are only a single feature in the midst of the immense assemblage of associations in that country. Americans of all ages, all conditions, and all dispositions, constantly form associations. They have not only commercial and manufacturing companies, in which all take part, but associations of a thousand other kinds, religious, moral, serious, futile, extensive or restricted, enormous or diminutive. The Americans make associations to give entertainments, to found establishments for education ... and in this manner they found hospitals, prisons, and schools. If it be proposed to advance some truth, or to foster some feeling by the encouragement of a great example, they form a society. Wherever, at the head of some new undertaking, you see the Government in France, or a man of rank in England, in the United States you will be sure to find an association.
I met with several kinds of associations in America, of which I confess I had no previous notion; and I have often admired the extreme skill with which the inhabitants of the United States succeed in proposing a common object to the exertions of a great many men, and in getting them voluntarily to pursue it.
2 Alexis de Tocqueville, Democracy in America 114-15 (Henry Reeve trans., Arlington House 1966) (1840).
In some areas of this country, fire departments are not only not funded by the government, but rather are still funded by private subscription. These subscription fire departments' firefighters will refuse to respond to a fire at a non-subscriber's property or will watch a non-subscriber's building burn to the ground. See, e.g., Owners Uncertain After Store Fire, Commercial Appeal (Memphis, Tenn.), September 14, 1994, at B2 ("The South Fulton Fire Department refused to send firefighters to the fire scene because [the owner of the destroyed building] is not a subscription member of the city's rural fire protection service"); see also Kim Eckart, In the Line of Duty: Volunteer Firefighters Protect their Communities, But More Needs to be Done to Protect Them, Idaho Statesman, August 22, 1995 ("The Garden Valley Rural Fire Department charges property owners $45 a year for fire protection.... That doesn't mean volunteers won't put out a fire on a non-subscriber's property. They'll go willingly and charge the non-subscriber at least $500 to do it.").
There is, in sum, no historical or current warrant for equating fire companies with public government.
C. Are the Individual Fire Departments "Public Agencies" Under the FLSA?
1. Relevant Authority
Two courts have expressly addressed the question presented in this case, to wit, whether a particular volunteer fire department is entitled to an exemption from the FLSA overtime pay requirements on the grounds that it is a public agency providing fire protection activities. See Wilcox v. Terrytown Fifth Dist. V.F.D., 897 F.2d 765 (5th Cir.1990), cert. denied, 498 U.S. 900, 111 S.Ct. 256, 112 L.Ed.2d 214 (1990); Conway, supra, 666 F.Supp. 786.
In Wilcox, the Fifth Circuit affirmed the District Court's determination that the fire department in question was an agency of Jefferson Parish Louisiana. Wilcox, 897 F.2d at 767. In resolving this "close and very difficult question", id. at 765, the Court of Appeals focused on "whether the entity is directly responsible to public officials or to the general public and whether the parties' contracts designate them as state agencies rather than independent contractors." Id. at 767.
The factors which led the Fifth Circuit to its conclusion that the district court's holding *323 was correct were (1) Jefferson Parish organized the fire department in question, (2) the funding for the fire department came "almost exclusively" from "the proceeds of a millage tax imposed upon Jefferson Parish residents and by allocation of certain state tax dollars", (3) the close accounting procedures the Parish imposed upon the department,[3] and (4) the extent of the control the Jefferson Parish Council exercised over the Fire Department. Id. at 767-68.[4]
The District Court in Conway also weighed a number of factors in its analysis of whether the plaintiffs, "over four hundred fire and rescue service employees who work for various Montgomery County [Maryland] fire and rescue corporations" were employees of public agencies. Conway, 666 F.Supp. at 789. The Court looked "at the way courts have approached the same issue in the context of another federal labor statute, the NLRA [National Labor Relations Act, 29 U.S.C. § 152(2)]; [gave] weight to the [Department of Labor's] opinion; [ ] look[ed] to congressional intent behind the FLSA; and [ ] look[ed] at the position taken by Montgomery County itself on the issue of whether plaintiffs are County employees." Id. at 793.[5]
2. Applicability of the § 207(k) Exemption to these Fire Departments
When we examine the relationship between the fire departments and the Lower *324 Merion Township Fire Department under both Wilcox and Conway, we find that these fire departments are not public agencies under the FLSA.
a. These Fire Departments are Not Public Agencies Under the Wilcox Analysis
Looking at these fire departments through what we regard as the acute lens of Wilcox, we find that these fire departments are separate private corporations, founded by public-spirited private citizens. Although the fire departments receive much of their funding from the Township and the Commonwealth, this is not dispositive. See 29 C.F.R. § 553.202 (1997) ("The application of [the § 207(k) exception], by [its] terms, is limited to public agencies, and does not apply to any private organization engaged in furnishing fire protection or law enforcement services. This is so even if the services are provided under contract with a public agency."). We cannot say that the fire departments are funded "almost exclusively" by tax monies, although even if they were, that would not determine this "close and very difficult question." Wilcox, 897 F.2d 765.
It is true that, as did Jefferson Parish in Wilcox, the Township of Lower Merion does audit each fire departments' operations by requiring each, as a condition to receiving Township money, to submit a proposed budget, appropriation requests, quarterly reports, and budget reports to the Township Manager. Stip. ¶ 25; see also Stip. Ex. 11 at 6 ("Annual appropriations shall be made by the Board of Commissioners to each volunteer fire company in the township which is a member of the Fire Department, subject to such reasonable conditions as the Board of Commissioners may from time to time see fit to impose.") And although each department must submit to an annual appraisal by Township auditors, the results of which the Commissioners use to determine the amount of each fire department's annual appropriation, Stip. ¶ 26, this by no means resolves our inquiry, since it merely shows a conditional grant of money, and not a parent-subsidiary relationship.
Our final inquiry under Wilcox is "whether the entity is directly responsible to public officials or to the general public." Wilcox, 897 F.2d at 767. Although the defendants would have us resolve the question of these fire departments' status by examining the make up of the Board of the L.M.F.D., see Defs. Br. at 22, we find that the proper inquiry is rather to what extent the members of the governing board of each fire department are responsible to the general public.
We reach this conclusion because of the relatively non-intrusive nature of the Lower Merion Fire Department's relationship with the five fire departments. When we compare the relatively modest coordinating role which the Lower Merion Fire Department and the Township of Lower Merion exercise in relation to the fire departments[6] with the far more intrusive powers of Jefferson Parish and the local fire board in Wilcox,[7] it is apparent that the two municipalities' roles in the operations of the respective volunteer fire departments are quite different in scope. As the parties have stipulated that the governing boards of the these departments are not elected by the public, nor are they appointed by a public official but rather are selected by the members of each department *325 we find that these entities are not directly responsible to the general public nor to a public official.
b. These Fire Departments are Not Public Agencies Under the Conway Analysis
When we examine the relationship between the Township, the L.M.F.D., and these fire departments using the criteria enunciated in Conway, we are fortified in our conclusion that they are not public agencies under the FLSA.
As a preliminary matter, the United States Supreme Court has held that we should interpret the FLSA liberally, "to apply to the furthest reaches consistent with congressional direction," while we should construe any exception to coverage under the FLSA narrowly. Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 296, 105 S.Ct. 1953, 1959, 85 L.Ed.2d 278 (1985); Powell v. United States Cartridge Co., 339 U.S. 497, 516-17, 70 S.Ct. 755, 765-66, 94 L.Ed. 1017 (1950).
We have already analyzed whether and to what extent the fire departments are "administered by individuals who are responsible to public officials or to the general electorate." Conway, 666 F.Supp. at 794. It is instructive on this point to compare the makeup of the boards of the fire departments in this case, none of which have members elected by the public, to the boards of the fire departments in Conway, some of which did include members elected by the general public. See Conway, 666 F.Supp. at 794-95.
Finally, we cannot ignore the position of the Township of Lower Merion which, as defendants correctly note, is not a party to this action[8] on the question of whether the firemen who work for these fire departments are employees of the Township. Conway, 666 F.Supp. at 795-96. As we explained above at pp. 319-320, the Township of Lower Merion fought a long and successful battle to prevent the firemen in these very fire departments from unionizing. See International Ass'n. of Fire Fighters v. Commonwealth, 95 Pa.Cmwlth. 93, 504 A.2d 422 (1986). The Township in that litigation won from the Pennsylvania courts a holding that it was not an employer of these housemen. Id. Though we do not today hold that the defendants in this case are precluded from arguing that the Township's position in Fire Fighters is incorrect or that the state court's holding is inapplicable (or that the Township's position in that case is distinguishable), we do find that the Township's position gives us some indication of the economic realities of this employment dispute, see Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33, 81 S.Ct. 933, 936-37, 6 L.Ed.2d 100 (1961), and that the realities of that position in no way undercut our determination that these fire departments are not public agencies under the FLSA.
We therefore hold that the five fire departments are not "public agencies" under § 207(k) of the Fair Labor Standards Act, and we shall grant the plaintiffs' motion for partial summary judgment, and deny the defendants' motion for summary judgment. An appropriate Order follows.[9]
ORDER
AND NOW, this 5th day of August, 1997, upon consideration of defendants' motion for summary judgment, plaintiffs' motion for partial summary judgment, and defendants' reply brief, and for the reasons stated in the accompanying memorandum, it is hereby ORDERED that:
1. Defendants' motion for summary judgment is DENIED;
2. Plaintiffs' motion for partial summary judgment is GRANTED; and
3. The parties shall, by noon on August 15, 1997, submit a stipulation setting forth *326 the sums due each plaintiff from the defendant who employed him, as calculated in accordance with the Fair Labor Standards Act and the foregoing memorandum, and shall deliver or fax courtesy copies thereof to Chambers (Room 5918).
NOTES
[1] See Stip. Ex. 11 at 3 (Fire Prevention Code of the Township of Lower Merion) ("In the event that the Chief Fire Officer or Deputy Chief Fire Officer assumes command, all orders of the Chief Fire Officer or Deputy Chief Fire Officer should be transmitted through the Fire Chief or the subordinate officers of the volunteer member fire company in whose district the fire occurs.").
[2] Wainwright's history bears the subtitle of another Franklin-founded institution, The Philadelphia Contributionship for the Insurance of Houses from Loss by Fire. The occasion of Wainwright's book was The Contributionship's bicentennial, and we are grateful to The Contributionship's Carol Smith for pointing us to this pertinent volume.
[3] The Fire Department "must submit annual financial reports to the financial director of Jefferson Parish detailing how all public funds received by it were disbursed. In addition, the department must submit to the Parish its annual budget for fire protection services one year in advance, so that the Parish may budget for these costs." Wilcox, 897 F.2d at 767.
[4] In addition to these factors, the Fifth Circuit also applied what can best be described as a gestalt test:
We hold, not only that the district court made the proper inquiry, but that it reached the proper result. First, the result, on its face, appears patently correct. A fire department is, in a sense, the archtypical [sic] public agency; further, it is exactly the type of agency to which § 207(k) is specifically directed.
Wilcox, 897 F.2d at 767. While we agree that fire departments perform a vital public service, to conclude that a fire department is a public agency because it is the "archetype" of public agencies seems to us to beg the question rather than to illuminate the proper result.
[5] The defendants go to great lengths to convince us that Conway erred in its analysis of whether the defendant fire departments were public agencies under the FLSA:
The Fifth Circuit distinguished the decision reached by the district court in Conway v. Takoma Park Volunteer Fire Department, 666 F.Supp. 786 (D.Md.1987), appeal dismissed, 838 F.2d 465 (4th Cir.1988). That decision also involved an interpretation of the FLSA as applied to paid employees of a private volunteer fire company. In Conway, the court applied the National Labor Relations Act ("NLRA") definition of "political subdivision" to the volunteer fire department to determine if the department was a public agency for the purposes of the FLSA. The Conway court's underlying assumption in doing so was that:
... Congress used similar terminology in each statute to describe those entities to which the exemptions would apply: "public agency" and "political subdivision." The court believes that it is appropriate to use the analysis developed in NLRA cases to determine when an organization qualifies as a "political subdivision" under the FLSA so as to be relieved of certain obligations.
Id. at 793. The basic assumption of the court in Conway, supra, is incorrect. The NLRA does not refer to "any agency of ... a political subdivision" in its exemption of the government from its provisions. See 29 U.S.C. § 152(2). It simply exempts "any State or political subdivision thereof." On the other hand, the language of the FLSA exempts not only "a State or political subdivision thereof" but also "any agency of ... the State or a political subdivision of a State." Id. § 207(k). The exemption under the FLSA, therefore, is clearly broader than the exemption under the NLRA. To construe the § 203(x) public agency definition to only include the "State or political subdivision thereof" as written in the NLRA completely ignores the remaining language of the section classifying an "agency" of the State or political subdivision as a public agency.
Defs. Br. at 17 n. 9.
Upon a careful reading of Conway, however, we are at a loss to determine how the test Conway imported from NLRA jurisprudence, "whether [the fire department] is administered by individuals who are responsible to public officials or to the general electorate," Conway, 666 F.Supp. at 794, is any different from one of the tests defendants urge us to adopt in their brief "another key factor in determining whether a private party should be considered an agency of a political subdivision for purposes of the FLSA is whether the entity is directly responsible to public officials or to the general public." Defs. Br. at 22. While Conway's application of this test to the facts of its case led to a result with which the present defendants disagree, it appears that the defendants have raised a false alarm.
[6] See Section I.D., supra pp. 5-9.
[7] Wilcox described the relationship as:
The Fire Department performs its firefighting services pursuant to an agreement between it and Fire Protection District No. 5. The contract specifically provides that the governing authority of the Fire Protection District No. 5 is the Jefferson Parish Council. Under the terms of the contract, the Fire Department must comply with all reasonable recommendations made by the agencies appointed by the Parish Council, (Jefferson Parish Department of Fire and Emergency Services and The Property Insurance Association of Louisiana), or it must show cause at a hearing held before the Jefferson Parish Council why it cannot. Although the Jefferson Parish Council does not directly control the daily activities of the Fire Department, it is clear from the contractual agreement that the Council has the ultimate power and authority over the activities of the Fire Department.
897 F.2d at 767-68.
[8] Montgomery County Maryland was not a party to the Conway case. See Conway, 666 F.Supp. at 789 (noting the defendants' motion, pursuant to Fed.R.Civ.P. 19 (which the court rejected), to join Montgomery County as an indispensable party).
[9] All that now remains before entering final judgment is to liquidate the individual plaintiffs' dollar entitlements from the particular defendant fire companies. As this should be a mere arithmetic exercise, we trust the parties should have no difficulty submitting an appropriate stipulation in ten days.
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8 F.Supp.2d 660 (1998)
Indianna ODIGBO, Plaintiff,
v.
NORTHWEST AIRLINES, INC. and William Short, Defendants.
No. Civ. 97-40157.
United States District Court, E.D. Michigan, Southern Division.
May 29, 1998.
*661 James M. Brady, Ravid Assoc., Southfield, MI, for Plaintiff.
George D. Mesritz, Miller, Canfield, Jefferson, Detroit, MI, for Defendants.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
GADOLA, District Judge.
Plaintiff Indianna Odigbo commenced this action in April, 1997 after defendant Northwest *662 Airlines, Inc. ("Northwest") terminated his employment. Presently before this court is a motion by defendant Northwest for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). For the following reasons, defendant's motion will be granted.
FACTS
Construing the facts in a light most favorable to the plaintiff, they are as follows. On March 8, 1995, at approximately 7:15 a.m., plaintiff, a black male from Nigeria who was then working as an "equipment service employee" for defendant Northwest, was exiting a breakroom located at Concourse D of Detroit Metropolitan Airport when he encountered William Short, an "equipment service chief" for Northwest. Short grabbed plaintiff's shirt and told plaintiff that he had been looking for him. After accusing plaintiff of sleeping on the job, Short told plaintiff that he was going to take plaintiff back to where he came from, meaning Africa. He also told plaintiff, "we don't need your kinds here."
Short subsequently reported to Ken Gray, Manager of Customer Service for Northwest, that he had discovered plaintiff sleeping or giving the appearance of sleeping on the job. Gray conducted an investigation into the matter. Gray interviewed plaintiff and Short separately.[1] At no time was Gray made aware of the alleged racial comments Short made to plaintiff on March 8, 1995.
After his investigation into Short's complaint, Gray decided to terminate plaintiff's employment with Northwest. Gray informed plaintiff of this decision via a letter dated March 21, 1995 which read as follows:
On March 8, 1995, you were assigned to work at Building 514. Although you started work at 5:30 am, you were absent from your work area from 5:30 am until approximately 7:50 am, when your supervisor [Short] discovered you sleeping, or giving the appearance of sleeping, in a breakroom on D Concourse. Your actions are in violation of Rule # 1, and Rule # 23. Sections a, b, and e of the Rules of Conduct for Employees of Northest [sic] Airlines. When you were discovered by your supervisor [Short], you were instructed by him to report to Building 514 after completion of your next flight. You failed to report to your assigned area (Building 514) as instructed. Your actions are in violation of Rule # 1 and Rule # 11 of the Rules of Conduct for Employees of Northwest Airlines.
During a company investigation on March 10, 1995, you were not honest and truthful with your answers regarding the fact that you were sleeping on the job, resulting in your failure to cooperate fully with the Company. Your actions are in violation of Rule # 1, Rule # 9 and Rule # 10 of the Rules of Conduct for Employees of Northwest Airlines.
Each of the above charges, standing alone, justifies your immediate discharge. Therefore, your employment with Northwest Airlines is terminated effective March 22, 1995.
Procedural History
On or about April 10, 1997, plaintiff instituted this action against Northwest in the County of Wayne, State of Michigan alleging that his discharge from Northwest was discriminatory. Plaintiff seeks damages pursuant to the Elliott-Larsen Civil Rights Act, M.C.L .A. § 37.2201 (Count I) and also under a theory of intentional infliction of emotional distress (Count II). On or about May 13, 1997, Northwest removed the action to this court.
On July 17, 1997, Northwest filed a motion to dismiss. In that motion Northwest argued that plaintiff's claims were preempted by the Airline Deregulation Act, 49 U.S.C. § 1305(a)(1). This court rejected Northwest's pre-emption argument and denied Northwest's motion to dismiss in an opinion and order dated November 26, 1997.
Now Northwest is before this court seeking summary judgment on plaintiff's two *663 claims. Northwest contends that plaintiff's claim of racial and/or national origin discrimination under the Elliott-Larsen Civil Rights Act fails as a matter of law because there is no evidence that plaintiff was terminated for unlawful reasons. Northwest further argues that summary judgment should be granted to it on plaintiff's claim of intentional infliction of emotional distress because plaintiff cannot meet his burden of showing that Northwest's decision to terminate him was "extreme and outrageous" or "utterly intolerable" under the circumstances.
ANALYSIS
SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(c) empowers the court to render summary judgment "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." Fed.R.Civ.P. 56(c). There is no genuine issue of material fact when the "record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) The court must decide "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." In re Dollar Corp., 25 F.3d 1320, 1323 (6th Cir .1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "The mere existence of some alleged factual dispute between the parties will not defeat the otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505. In deciding a motion for summary judgment, the court must consider all evidence together with all inferences to be drawn therefrom "in light most favorable to the party opposing the motion." Watkins v. Northwestern Ohio Tractor Pullers Ass'n., Inc., 630 F.2d 1155, 1158 (6th Cir.1980).
If the movant meets the standard specified at Rule 56(c), then the opposing party must come forth with "specific facts showing that there is a genuine issue for trial." First National Bank v. Cities Serv. Co., 391 U.S. 253, 270, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Fed.R.Civ.P. 56(e). The non-moving party "is not entitled to a trial merely on the basis of allegations; significant probative evidence must be presented to support the complaint." Kraft v. United States, 991 F.2d 292, 296 (6th Cir.1993), cert. denied, 510 U.S. 976, 114 S.Ct. 467, 126 L.Ed.2d 419 (1993); Gregg v. Allen-Bradley Co., 801 F.2d 859, 861 (6th Cir.1986). And, "if the adverse party does not respond, summary judgment, if appropriate shall be entered against the adverse party." Fed.R.Civ.P. 56(e); Rizzo v. Goode, 423 U.S. 362, 370-71, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); O'Hara v. Wigginton, 24 F.3d 823, 826-27 (6th Cir.1994).
ELLIOTT-LARSEN ACT CLAIM
Northwest moves for summary judgment on Count I, a claim under Section 202 of the Elliott-Larsen Civil Rights Act, M.C.L.A. § 37.2202. This Section bars "employers" from engaging in discriminatory conduct. Section 202 provides:
An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.
(b) Limit, segregate, or classify an employee or applicant for employment in a way that deprives or tends to deprive the employee or applicant of an employment opportunity, or otherwise adversely affects the status of an employee or applicant because of religion, race, color, national origin, age, sex, height, weight, or marital status.
M.C.L.A. § 37.2202 (emphasis added).
The term "employer" is defined at Section 201 as "a person who has 1 or more employees, and includes an agent of that person." *664 M.C.L.A. § 37.2201 (emphasis added). By defining "employer" to include "agents" of the employer, the Michigan Legislature clearly intended for corporate entities, which cannot physically commit discriminatory acts themselves, to be liable when their "agents" engage in discriminatory conduct proscribed by Section 202.[2]
One of the critical issues the instant case presents is whether any "agent" of Northwest engaged in discriminatory conduct prohibited by Section 202 such that Northwest can be liable for the same. This issue is a thorny one and is made difficult by the lack of a statutory definition of the word "agent." Indeed, the matter is further complicated by the fact that the Michigan Supreme Court has yet to place any judicial gloss on the meaning of the term "agent." Since neither the statute nor Michigan's highest court have defined the term "agent," this court will look to Michigan Court of Appeals decisions for assistance in deriving a definition for that term.
In two cases, the Michigan Court of Appeals has attempted to clarify the meaning of the term "agent" as that term appears in the Elliott-Larsen Civil Rights Act. First, in Jenkins v. Southeastern Michigan Chapter, American Red Cross, 141 Mich.App. 785, 369 N.W.2d 223 (1985), the Michigan Court of Appeals held that an individual responsible for making personnel decisions affecting the plaintiff is an "agent" within the Elliott-Larsen Civil Rights Act's definition of an "employer." Id. at 799-800, 369 N.W.2d 223. Second, in Champion v. Nationwide Security, Inc., 205 Mich.App. 263, 517 N.W.2d 777 (1994), the Michigan Court of Appeals elaborated on the Jenkins definition of "agent." In Champion, the court stated that any person who exercises significant control over a plaintiff's firing, hiring, or conditions of employment is an "agent" under the statute. Id. at 266-27, 517 N.W.2d 777.
In interpreting the word "agent," the Michigan Court of Appeals in Jenkins and Champion relied on federal cases interpreting that same term as it is used in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.[3] Specifically, in Jenkins, the Michigan Court of Appeals relied on Munford v. James T. Barnes & Co., 441 F.Supp. 459 (E.D.Mich.1977), in which it was held that a person is an "agent" under Title VII if he or she has responsibility for making personnel decisions for the company. The Michigan Court of Appeals in Jenkins found that same standard applicable to Elliott-Larsen Civil Rights Act cases. In Champion, the Michigan Court of Appeals construed the term "agent" under the Elliott-Larsen Civil Rights Act in precisely the same manner in which the Sixth Circuit construed that term in Kauffman v. Allied Signal, Inc., 970 F.2d 178, 186 (6th Cir.1992), a Title VII case. In particular, the court in Champion found, as did the court in Kauffman, that a person is an "agent" if he or she has "significant control" over a plaintiff's hiring, firing, or conditions of employment.
This court will follow the definition of "agent" articulated in Jenkins and expanded upon in Champion. Accordingly, this court finds that the term "agent" as used in the Elliott-Larsen Civil Rights Act is someone in a supervisory capacity who exercises significant control over the plaintiff's hiring, firing, or conditions of employment. See also Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 803 (6th Cir.1994) (an "agent" under *665 Title VII is someone who "serves in a supervisory position and exercises significant control over the plaintiff's hiring, firing, or conditions of employment"); Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993) (an employer is liable for actions by an individual who is a supervisor and significantly controls plaintiff's hiring, firing, or employment conditions); Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir.1989), aff'd. in pertinent part, 900 F.2d 27 (4th Cir.1990) (en banc) (an individual is an "employer" under Title VII is he or she has "significant input into ... personnel decisions"); Williams v. City of Montgomery, 742 F.2d 586, 589 (11th Cir.1984) (employer can be held liable for acts of persons to whom the employer has delegated control of some of the traditional employer rights); Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1282 (7th Cir.1977) (employer liable for any Title VII violation by plaintiff's supervisor). See also Freeman v. Unisys Corp., 870 F.Supp. 169, 173 (1994) (holding that "merely informational input by an employee or supervisor does not make them an agent of an employer that qualifies them for liability under" the Elliott-Larsen Civil Rights Act). Employers should only be held liable for discriminatory acts committed by persons to whom the employer has delegated employer-like functions. Such delegatees are alter egos of the employer and the employer must accept responsibility for their actions. S.A. Greene, Reevaluation of Title VII Abusive Environment Claims Based on Sexual Harassment After Meritor Savings Bank v. Vinson, 13 T. Marshall L.Rev. 29, 32 (1988). See also Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1422 (7th Cir.1986). In fact, in cases involving corporations, "saying that the `corporation' has committed some wrong ... simply means that someone at the decision-making level in the corporate hierarchy has committed the wrong," and the employer should only be liable for such person's deliberate acts. Id. (emphasis added). See also Shager v. Upjohn Co., 913 F.2d 398, 399-400 (7th Cir.1990) (defendant liable for age-biased acts of District Manager, John Lehnst, who had significant authority over employees, including the authority to hire and evaluate the performance of subordinates).
Having defined "agent," the question is thus whether there is any genuine issue of material fact as to whether an "agent" of Northwest acted discriminatorily here. Plaintiff claims that an "agent" of Northwest did act discriminatorily, and specifically, William Short. Northwest insists that Short is not an "agent" and that Northwest therefore cannot be held liable for his alleged discriminatory acts.
The evaluation of Short's possible agency status must be conducted in the context of the alleged discriminatory act, to wit: the decision to terminate plaintiff. See e.g., Levendos v. Stern Entertainment Inc., 909 F.2d 747, 752 (3rd Cir.1990) (person is an "agent" if he or she participates in the decision-making process that forms the basis of the discrimination) and Hamilton v. Rodgers, 791 F.2d 439, 443 (5th Cir.1986) (individuals who participate in the decision-making process that forms the basis of the discrimination are "agents" and thus "employers" under Title VII). If Short is an "agent" of Northwest for such an action, meaning that Short had "significant input" into the decision to terminate plaintiff, Northwest can possibly be held liable for racial and/or national origin discrimination in this case.
This court finds that Short is not an "agent" of Northwest in this case. During the relevant time period, Short held the position of "equipment service chief." His role vis-a-vis the plaintiff, an equipment service employee, was defined in the following manner by the collective bargaining agreement ("CBA") between Northwest and the union of which both Short and plaintiff were members:[4]
An equipment service chief shall be an employee charged with the responsibility of assigning, leading and directing the work of equipment service employees or cleaners and performing such equipment service work as may be required. The *666 term "leading" includes planning, organizing and controlling operations delegated to him. Equipment service chiefs will be selected in accordance with the seniority provisions of this Agreement with due consideration for ability to handle employees and assume responsibility. Equipment service chiefs will not perform mechanics work of any class or supervise mechanics in their work. No equipment service chief will be required to lead and direct the work of a group totalling more than 12 equipment service employees and cleaners. At all locations or stations where it is necessary to maintain more than three equipment service employees working on a shift or for the preponderance of hours of the eight hour shift, one will be an equipment service chief.
***
While Chiefs covered by this Agreement are expected to direct and lead their crew members for both job performance enhancement and problem solving as part of their normal leadership responsibilities, they will not be required or allowed to issue formal discipline (i.e., Level One and Two Reminders, DML Day or Discharge) to other employees.
The CBA clearly does not give Short, a union employee who is not part of Northwest management, the authority to make or even participate in personnel decisions affecting other union employees, such as plaintiff. Moreover, according to Gray's affidavit, which is uncontroverted, Short had no direct involvement in the decision to discharge plaintiff. For these reasons, this court finds that Short is not an agent of Northwest for the decision which forms the basis of the discrimination here. Indeed, plaintiff has not cited a single case in which such limited duties of an employee in a discriminatory discharge case were sufficient to create a genuine issue of material fact as to that employee's agency status.[5]
If anyone was an agent of Northwest in this case, it was Ken Gray. As stated supra, Gray, alone, made the decision to terminate plaintiff. Yet, there can be no liability on the part of Northwest for Gray's decision to terminate plaintiff because there is no evidence showing that Gray made his decision for unlawful reasons. For instance, there is no evidence showing that Gray harbored any discriminatory views toward plaintiff. Moreover, there is no evidence showing Gray was aware of the allegedly discriminatory statements made by Short and ratified Short's discriminatory conduct. Plaintiff surely had ample opportunity to make Gray aware of the statements by Short because Gray not only asked plaintiff to transcribe his version of the events which occurred on March 8, 1995, but Gray also questioned plaintiff about the March 8, 1995 incident. Plaintiff did not make known to Gray during either of these two instances, Short's allegedly discriminatory statements.
In sum, this court finds that not imputing liability to Northwest in this instance is consistent with racial and/or sexual hostile work environment cases. In such cases, an employer is only liable for the harassing actions of a non-supervisor if a supervisor knew or should have known of the harassing conduct and did not take prompt and remedial action. Pierce v. Commonwealth Life Ins., 40 F.3d 796, 803 (6th Cir.1994). Applying the same standard to this case, Northwest should not be held liable for discriminatory statements made by Short since Gray, the person who single-handedly made the decision to terminate plaintiff, did not know of Short's alleged racial biases nor should he have known of them.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Northwest moves for summary judgment on Count II, a claim for intentional infliction of emotional distress. This tort is not yet recognized by the Michigan Supreme Court. To the extent this tort is recognized by the Michigan Court of Appeals, the following standard has been adopted consistent with Section 46 of the Restatement (Second) Torts:
*667 "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm."
Ledsinger v. Burmeister, 114 Mich.App. 12, 17-18, 318 N.W.2d 558 (1982) With respect to the requirement that the defendant's conduct be "extreme and outrageous", the Restatement, § 46, cmt. d, p. 73, states:
Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"
Id. at 18, 318 N.W.2d 558.
This court finds that no reasonable juror could find Northwest's conduct "extreme and outrageous" as a matter of law. Summary judgment must therefore be granted Northwest on plaintiff Is claim of intentional infliction of emotional distress. The facts simply stated are as follows. Gray received a complaint by Short accusing plaintiff of sleeping on the job and thereafter conducted an investigation into the matter. During the investigation, Gray gave plaintiff an adequate opportunity to reveal his version of the facts, and specifically provided plaintiff the chance to make known to Gray Short's allegedly discriminatory remarks, but at no time did plaintiff do so. Northwest management ultimately determined that Short's complaint was true and that it provided sufficient grounds for plaintiff's discharge.
There may be a genuine issue of material fact as to whether Short's conduct is "extreme and outrageous." Plaintiff alleges that Short, for racial reasons, fabricated a complaint about plaintiff sleeping on the job a complaint which ultimately led to plaintiff's discharge. Yet, Northwest is not liable for such conduct by Short. Under Section 219 of the Restatement (Second) of Agency:
(1) A master is subject to liability for the torts of his servants committed while acting in the scope of their employment.
(2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless:
(a) the master intended the conduct or consequences, or
(b) the master was negligent or reckless, or
(c) the conduct violated a non-delegable duty of the master, or
(d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.
In the case sub judice, not one of the bases for imposing liability on Northwest is present. Section 219(1) is inapplicable because Short was not acting within the scope of his employment when he allegedly discriminated against plaintiff. Indeed, Northwest had a policy against discrimination by its employees, which has been introduced as an exhibit herein. Likewise, Section 219(2)(a) does not apply since there is no evidence that Northwest intended for Short to discriminate against plaintiff. In regard to Section 219(2)(b), it is not applicable because there is no evidence that Northwest condoned Short's alleged discriminatory action. Indeed, Northwest management was not even made aware of the alleged discrimination by plaintiff. Section 219(2)(c) is clearly inapplicable because Short's conduct did not violate a non-delegable duty of Northwest. Lastly Section 219(2)(d) does not apply. It was not Short, but Gray, who purported to act or speak on behalf of Northwest when discharging plaintiff. Short's mere relating of his version of the facts during an interview with Gray does not amount to a grant by Northwest of any authority to Short in this situation.
For all the foregoing reasons, this court grants defendant Northwest's motion for summary judgment.
*668 ORDER
IT IS HEREBY ORDERED that defendant's motion for summary judgment is GRANTED and this case is dismissed with prejudice.
SO ORDERED.
NOTES
[1] Also present at these interviews were representatives from the International Association of Machinists and Aerospace Workers, the union of which plaintiff and Short were members. Specifically, Don Staples was present during Gray's interview of plaintiff and Larry Scott was present during Gray's interview of Short.
[2] By limiting an employer's liability to acts committed by its "agents," the Michigan Legislature must have intended to place some limits on the acts of employees for which employers could be held liable. See Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 72, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (holding that in defining "employer" in Title VII to include "any agent" of the employer, Congress must have intended to place some limits on the acts of employees for which employers could be held liable under Title VII).
[3] It is well-established that federal decisions interpreting Title VII are highly persuasive in resolving analogous Elliott-Larsen Civil Rights Act issues. See e.g., Moll v. Parkside Livonia Credit Union, 525 F.Supp. 786, 789 (E.D.Mich.1981) (holding that it is appropriate to consider Title VII law as a guide in interpreting the Elliott-Larsen Civil Rights Act) and Langlois v. McDonald's Restaurants of Mich., Inc., 149 Mich. App. 309, 312, 385 N.W.2d 778 (1986) ("Michigan courts regard federal precedents on questions analogous to those presented under Michigan's civil rights statutes as highly persuasive, although not binding.").
[4] Plaintiff and Short were members of the International Association of Machinists and Aerospace Workers.
[5] By comparison, if the discrimination of which plaintiff complained was discrimination in work assignments, perhaps this court would find Short to be an "agent" of Northwest for that purpose. The CBA unambiguously cloaks Short with authority over plaintiff's job assignments.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-51086
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOEL ENRIQUEZ
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(99-CR-1549)
October 4, 2001
Before REAVLEY, HIGGINBOTHAM, and PARKER, Circuit Judges.
PER CURIAM:*
Enriquez was convicted of knowingly importing five kilograms
or more of cocaine and sentenced to 20 years in prison. He claims
that the Supreme Court’s holding in Apprendi v. New Jersey1
requires the government to prove beyond a reasonable doubt that
Enriquez knew the precise quantity of drugs he was smuggling.
Enriquez does not allege that the government failed to prove
the quantity of drugs imported beyond a reasonable doubt, as
*
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.
1
530 U.S. 466 (2000).
Apprendi requires. In any case, Apprendi is inapposite because the
drug quantity did not increase Enriquez’s sentence beyond the
statutory maximum.2
The crux of Enriquez’s argument is that Apprendi alters the
scienter requirement of 21 U.S.C § 960(a)(1), requiring the
government to prove that he knew the precise quantity of drugs he
was smuggling. Section 960(a)(1) outlaws “knowingly or
intentionally import[ing] or export[ing] a controlled substance.”3
We have long held that this statute is a “specific intent” statute
and merely requires knowledge that the substance imported is a
controlled substance.4 Apprendi does not alter this analysis.
AFFIRMED.
2
United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000).
3
21 U.S.C. § 960(a)(1).
4
United States v. Restrepo-Granda, 575 F.2d 524, 527 (5th
Cir. 1978).
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170 Ga. App. 650 (1984)
317 S.E.2d 885
FLO-ROB, INC.
v.
COLONIAL PIPELINE COMPANY.
67517.
Court of Appeals of Georgia.
Decided April 5, 1984.
William H. Hedrick, for appellant.
James v. Davis, Richard Hall, for appellee.
CARLEY, Judge.
Appellee-condemnor owns a pipeline which extends across certain property of appellant-condemnee. Corrosion problems and related difficulties arose with regard to the pipeline, and appellee determined that a protective device was necessary. Pursuant to OCGA § *651 22-2-100 et seq., appellee instituted in rem proceedings to condemn certain land of appellant to be used for the installation of the protective device. Asserting that it had been damaged as a result of the defective pipeline, appellant filed a counterclaim against appellee, alleging nuisance, trespass, negligence, and inverse condemnation. Appellant sought monetary compensation and an injunction prohibiting the use of appellee's pipeline until pollution allegedly caused by appellee was abated. Appellee moved to dismiss appellant's counterclaim on the ground that the special master did not have authority to entertain any issues other than the valuation of the subject property. The special master ruled that he did not have jurisdiction to dismiss the counterclaim, and specifically reserved that issue for disposition by the superior court. The superior court subsequently ruled that, since the issues raised by appellant did not relate to the instant condemnation, those issues could not be raised by way of counterclaim. The trial court certified its order for immediate review, and this court granted appellant's application for interlocutory appeal so as to further clarify the scope of eminent domain proceedings.
It is well settled that, when a condemnor institutes condemnation proceedings, all legal and equitable issues relating to the taking must be litigated in those proceedings, and the condemnee cannot bring a separate action to dispose of those matters. Hendley v. Housing Auth. of Savannah, 160 Ga. App. 221 (286 SE2d 463) (1981); Nodvin v. Ga. Power Co., 125 Ga. App. 821 (189 SE2d 118) (1972); Phillips v. Ga. Power Co., 225 Ga. 289 (168 SE2d 150) (1969). In condemnation proceedings, however, there are only two elements of damages to be considered: " `[F]irst, the market value of the property actually taken; second, the consequential damage that will naturally and proximately arise to the remainder of the owner's property from the taking of the part which is taken and the devoting of it to the purposes for which it is condemned . . . [Cits.]' [Cit.]" Dept. of Transp. v. Simon, 151 Ga. App. 807, 810 (261 SE2d 710) (1979), aff'd Simon v. Dept. of Transp., 245 Ga. 478 (265 SE2d 777) (1980). In this context, consequential damages are those which are a continuous and permanent incident of the taking in the present action. Fountain v. DeKalb County, 154 Ga. App. 302 (267 SE2d 903) (1980); MARTA v. Datry, 235 Ga. 568 (220 SE2d 905) (1975).
In the case at bar, the alleged damage upon which appellant's counterclaim is based was incurred as a result of corrosion and other problems relating to the pipeline already existing on appellant's land. Such damages are not a consequence of the instant taking, but of a previous taking by appellee. Accordingly, the issues raised in appellant's counterclaim are properly cognizable in an independent suit for damages, and may not be raised in the current condemnation proceedings. See Fountain v. DeKalb County, supra; Simon v. Dept. of *652 Transp., supra; Southwire Co. v. Dept. of Transp., 147 Ga. App. 606 (249 SE2d 650) (1978).
Appellant contends that its claim for damages and injunctive relief is so "intertwined" with the current condemnation proceedings that it amounts to a compulsory counterclaim under OCGA § 9-11-13 (a), which appellant asserts is applicable to these special statutory proceedings by virtue of OCGA § 9-11-81. Appellant relies on Ga. Power Co. v. Jones, 122 Ga. App. 614 (178 SE2d 265) (1970), for the proposition that a counterclaim based on the same transaction or occurrence as the condemnor's claim is compulsory and must be raised at the condemnation proceeding. In Jones, however, this court expressly declined to decide that issue, because in that case there had been no showing that the counterclaim had accrued prior to the institution of the condemnation action. Moreover, as previously discussed, the counterclaim in the instant case arises out of a prior taking and not the taking which constitutes appellee's current claim. "Though the law generally favors the prevention of a multiplicity of actions, it appears that condemnation law in Georgia rather strictly limits the relevant evidence in condemnation cases and therefore separate suits for different kinds of damages are not uncommon." Simon v. Dept. of Transp., supra, 245 Ga. at 479.
The trial court did not err in dismissing appellant's counterclaim.
Judgment affirmed. Quillian, P. J., and Birdsong, J., concur.
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466 F.Supp. 1 (1977)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
MEAD FOODS, INCORPORATED, Defendant.
No. CIV-75-0875-D.
United States District Court, W. D. Oklahoma.
March 28, 1977.
Abner W. Sibal, Gen. Counsel, EEOC, William L. Robinson, Associate Gen. Counsel, EEOC, George H. Darden, Acting Regional Atty., EEOC, Washington, D. C., *2 Richard C. LaFond, Trial Atty., EEOC, Denver, Colo., for plaintiff.
Coleman H. Hayes, Oklahoma City, Okl., for defendant.
Deanna R. Fitzgerald, Amarillo, Tex., for intervenor Jacqueline Chapman.
MEMORANDUM OPINION
DAUGHERTY, Chief Judge.
Plaintiff Equal Employment Opportunity Commission (EEOC) brings this action against the Defendant, Mead Foods, Incorporated, under the authority of the Equal Employment Opportunities Act, 42 U.S.C. § 2000e-5(f)(1) (Act). Defendant is an employer under the Act. Plaintiff alleges that Defendant engages in sex discrimination in its employment practices. Jacqueline Chapman, a former female employee of Defendant, filed a charge against Defendant alleging unlawful employment practices in the nature of sex discrimination. All conditions precedent to the maintenance of this action have been met.
Defendant operates five bakeries and one frozen food store in Oklahoma, Texas and New Mexico. Employment of personnel is accomplished locally at each facility. Accounts payable are paid out of Defendant's main office in Amarillo, Texas. Each facility is responsible for local collection of accounts receivable from customers. In 1971-2 each bakery had a plant manager and an office manager. The office manager at Amarillo, Texas (Juanita Pearcy), at Lawton, Oklahoma (Jacqueline Chapman) and at Albuquerque, New Mexico (Sandra Seymour) were females. The other two office managers were males. M. L. Vaughn was a vice-president of Defendant and a brother of Mrs. Mead, one of the owners of Defendant. Vaughn announced a policy of replacing the three female office managers with males with college degrees and preferably with training and experience in accounting. The Defendant was then having serious financial problems. The stated purpose of Mr. Vaughn for this change was to upgrade accounting procedures at each facility, improve sales ticket verification with routemen, and improve and speed up periodic inventory reports. These were all the responsibilities of the local office managers. Defendant caused an ad to be run in a Lawton newspaper for a male with qualifications to be an office manager.[1] During 1971 and 1972 the three female office managers were demoted to clerk and males were employed as office managers. Successive males were thereafter employed at some locations. The two existing male office managers were not changed. For the most part the male office managers had college degrees and experience in accounting though some did not. When the female office managers were so demoted, their rate of pay was not changed nor were their working hours changed. They were required to train or acquaint their male successors with office routine. It appears that some college or correspondence course educational opportunities in the accounting field were afforded the males with partial financing by Defendant. The females had not been afforded this opportunity.
The evidence is in some conflict but the weight of the evidence indicates and the Court so finds that local office procedures and methods of accounting were changed in some respects upon the advent of the three new male local managers and there was a noticeable improvement in the accounting system, ticket verification and quality in and promptness in submitting inventory reports.
Jacqueline Chapman was dissatisfied with her demotion and as aforesaid filed a sex discrimination charge against Defendant with the EEOC immediately upon her demotion. The other two female office managers did not so proceed and all three continued in employment with Defendant. In about six months Jacqueline Chapman was terminated by Mr. Vaughn on the grounds of creating dissension and turmoil in the office, particularly, for encouraging other female employees in this direction and for her lack of cooperation with her superiors.
*3 It is Plaintiff's position in this litigation that the three female office managers were demoted and Jacqueline Chapman was terminated because of their sex. Further, that in violation of the Act Jacqueline Chapman was terminated in retaliation for filing her EEOC charge against Defendant. It is Defendant's position that the accounting work in the three offices with female managers was in dire need of improvement for the betterment of Defendant's operation and that the desired quality of such work was beyond the capabilities of the three female office managers. Further, that Jacqueline Chapman was not terminated because of sex but because she created dissension and turmoil in the office and failed and refused to cooperate with her office manager. Further, that she was not terminated in retaliation for filing her EEOC charge but for the aforesaid reasons and had there been an act of retaliation she would have been terminated long before she was.
The issues have been separated herein for the purposes of trial with the first hearing to pertain to whether Defendant has violated the Act as alleged and the second hearing to pertain to appropriate relief should the Court find a violation of the Act by Defendant in the hearing on the first issue.
Plaintiff has presented a large quantity of statistical evidence showing the percentage of the work force in each locality which is female as compared with male and Defendant's percentage of female employment in each locality and then for the entirety of Defendant's operation in both respects. In most instances it was below the percentage and in some few instances it was above. Overall, Defendant hired fewer females percentagewise than the percentage of females in the reported available working force. Plaintiff also presented statistics showing Defendant's several job classifications and the percentage of males and females in each. In some there were no females. In others females predominated. Also Plaintiff presented statistics which compared male rates of pay with those of females. However, Plaintiff's expert did not relate this pay comparison to either seniority or time of service in employment or the effect of existing union contracts.
Generally, it is true that Defendant hires fewer females percentagewise than exist in the overall work force, has more job classifications without females than with and the overall pay rates of females are somewhat less than that of males. Plaintiff urged in oral arguments that each of Defendant's facilities and each of Defendant's job classifications should contain females in the average percentage of availability in the work force and that their rates of pay should be the same as the males. It is, of course, true that statistics such as were presented by Plaintiff are admissible evidence and should be considered by the Court in connection with the issues between the parties. Muller v. United States Steel Corporation, 509 F.2d 923 (Tenth Cir. 1975).
Other evidence explained the statistical disparity pictured by Plaintiff to the satisfaction of the Court. The testimony of witnesses for both parties clearly established and common practical knowledge tells us that certain work in a bakery operation is not attractive to females. This is a fact of life that an Act of Congress cannot overcome. The baking operation itself is hot, heavy and hard work. Moreover, work in this phase of Defendant's operation must be accomplished at night so that fresh bread products are ready for early delivery the next morning. And the bakery must operate on weekends and holidays for people require bread products and the same are sold every day of the year. Women have been recruited for and placed in Defendant's baking operation. They have never lasted more than a few days. The work was simply not compatible with their personal interests and capabilities. Defendant's largest work force numerically consists of routemen. They make up nearly one-third of Defendant's total force of employees. This personnel sells and delivers bread and other bakery products of Defendant. They must arise at 3 a. m. each day in order to have fresh bakery products on the shelves of stores when they open for the public. They must drive heavy trucks considerable *4 distances each day and must handle heavy trays and racks of bakery products. Women have tried this job but apparently only one stuck it out. The hours and the nature of the work are not appealing to women. In the less demanding work environments than the baking operation and route service, Defendant's work force is generally heavy with women and far over the statistics presented as to the available work force. Defendant has a large employment turnover attributable in large measure to Defendant's requirement for night work, weekend work and early morning work as aforesaid. In several years it has been as high as 120% per annum. Males who stay with the job and do the heavy work obtain seniority and as a whole make more money than the females who do the lighter work in Defendant's operation.
In oral arguments at the completion of the evidence to the complete dismay of the Court the EEOC refused to accept the facts of life about work in a bakery and on bakery routes. Of course, had EEOC done so their statistics would have been answered on a basis other than sex.
On the evidence, the Court cannot and does not find that Defendant in its bakery operations displays any pattern of employment discrimination against women because of their sex. To the contrary, where the work is most desirable they employ women far in excess of their percentage of the available work force. It just so happens that a major part of their operations consists of jobs which generally do not appeal to the labor market and particularly do not attract female workers. The evidence indicated that 80% of Defendant's jobs are of this category.
Though the Court does not find from the evidence any general pattern or attitude of sex discrimination on the part of the Defendant, the weight of the evidence supports Plaintiff's contention that the three female office managers were individually demoted because they were women. This appears from the evidence to have been the decision of M. L. Vaughn who was himself subsequently terminated by Defendant. Defendant now has two female office managers, one at Lubbock and one at Abilene (frozen food). All the witnesses indicated that the demotion of the three female office managers in 1971-2 was done solely by Mr. Vaughn none of them claimed any participation in the decision. Mr. Vaughn did not testify in these proceedings. Some witnesses testified that better results did follow this decision of Mr. Vaughn. Others could see little difference. The Court is not surprised in this regard. It all depends upon whose side of this litigation the witness was on. Though Mr. Vaughn may have seen the need and wanted to upgrade the work in the local office managers and perhaps succeeded to some extent, the evidence before the Court has indicated he practiced sex discrimination in doing so in violation of the Act. The Court also notes that the officer of Defendant who was charged with promulgating and implementing Defendant's Affirmative Action Plan testified that Mr. Vaughn was not cooperative regarding this activity but that everyone else employed by Defendant was. He also testified that the Plan complied with the law.
Therefore, as to the three local office managers, the Court will move to the second phase of this litigation and consider the matter of appropriate relief. In this regard, however, the Court finds from the weight of the evidence that Jacqueline Chapman was not terminated because of her sex or in retaliation for filing her EEOC charge. Some circumstances may tend to support this claim. She thought so. However, the weight of the evidence is to the contrary. She was not terminated upon filing her charge or soon thereafter. She was terminated by Mr. Vaughn some six months thereafter and then only after she had, according to the evidence, disrupted the operation of Defendant in her facility and failed to cooperate with her superiors. Though she no doubt had strong feelings that her demotion was based on sex, she had an orderly remedy through duly constituted agencies and tribunals of the government to hear and remedy her grievance. *5 She was not entitled to take the law into her own hands and create disruption and disloyalty in the operation of her employer. The evidence clearly indicates to the Court that the activities of this employee after her demotion were improper and gave justification for her termination in the interest of Defendant's operation and the Court so finds. This employee herself testified that she had a strained working relationship after demotion with her office manager and that she resented him; that her pride was hurt by her demotion.
Therefore, in entertaining the second phase of this litigation the Court will not consider any damages which are sought on the basis that Jacqueline Chapman was terminated because of sex or in retaliation for her EEOC charge.
Judgment will be withheld on the decisions of the Court expressed herein with reference to the first phase of this litigation and the case will be set at an early date on the second issue herein.
NOTES
[1] No such ads are now run nor have any been run since Mr. Vaughn was terminated.
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296 S.E.2d 802 (1982)
STATE of North Carolina
v.
Miles Wilson GREENE, Jr.
No. 8217SC359.
Court of Appeals of North Carolina.
November 2, 1982.
Atty. Gen. Rufus L. Edmisten by Associate Atty. Thomas J. Ziko, Raleigh, for the State.
Appellate Defender Adam Stein by Asst. Appellate Defender James H. Gold, Raleigh, for defendant-appellant.
WHICHARD, Judge.
Pursuant to Rule 9(c)(1), Rules of Appellate Procedure, defendant chose to file a stenographic transcript of the trial proceedings in lieu of a narration of the evidence. He did not, however, reproduce verbatim and attach as an appendix to his brief those portions of the transcript essential to an understanding of the questions presented, as required by Rule 28(b)(4), Rules of Appellate Procedure, when the stenographic transcript option is chosen.
Failure to observe the requirements of Rule 28(b)(4) constitutes a substantial impediment to the capacity of this Court to perform its functions. "Rules of Appellate Procedure are mandatory and failure to observe them is grounds for dismissal of the appeal." State v. Wilson, 58 N.C.App. 818, ___, 294 S.E.2d 780 (1982). See also State v. Nickerson, ___ N.C.App. ___, 296 S.E.2d 298 (1982).
Because of defendant's failure to observe the requirements of Rule 9(c)(1) and Rule 28(b)(4), the appeal is dismissed.
Appeal dismissed.
VAUGHN and WELLS, JJ., concur.
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424 So.2d 787 (1982)
STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellant,
v.
FALLS CHASE SPECIAL TAXING DISTRICT, Elba, Inc., and Sunshine Development, Inc., Appellees.
No. SS-439.
District Court of Appeal of Florida, First District.
July 23, 1982.
On Rehearing October 15, 1982.
Rehearing Denied January 7, 1983.
On Motions for Rehearing and to Strike January 21, 1983.
*788 Alfred W. Clark, Deputy Gen. Counsel, William L. Hyde, Asst. Gen. Counsel, Tallahassee for appellant.
J.D. Boone Kuersteiner, Akerman, Senterfitt & Eidson, and Kenneth F. Hoffman, Oertel & Laramore, Tallahassee, for appellees.
Stephen W. Metz, Tallahassee, amicus curiae.
*789 BOOTH, Judge.
This cause is before us on appeal by the State of Florida, Department of Environmental Regulation [DER], from an order of the circuit court granting the motion of Falls Chase[1] [appellee] for judgment on the pleadings.
The issues presented on appeal are the jurisdiction of the trial court to entertain suit for declaratory relief and the correctness of the judgment below as to the jurisdiction of DER.
The facts are essentially undisputed. The land in question is located on Upper Lake Lafayette, a privately owned body of fresh water in Leon County. At times in the past, portions of this property have been subject to inundation by waters of the lake, but sinkhole development in the lake, a natural phenomenon, has caused the lowering of the water level. The area sought to be regulated by DER has been dry for a number of years. Past uses include timbering, farming and grazing of cattle.
It is uncontroverted that the lands are "uplands," as defined by DER rule,[2] not subject to DER dredge and fill regulation under that rule.
It is stipulated by the parties that there are no sovereignty lands involved in this dispute.
In December of 1978, and again in February of 1979, representatives of DER met with representatives of the District for briefing and on-site inspection in connection with planned construction and installation of domestic waste-water collection systems and treatment facilities, and to determine if any portions of the property were subject to dredge and fill regulation under Chapter 403.
Prior to this inspection, DER had determined the extent of its dredge and fill jurisdiction over privately owned freshwater areas by means of an "aquatic plant vegetation index,"[3] as required by Section 403.817, Florida Statutes. DER representatives continued to abide by the provisions of that statute and by Florida Administrative Code Rule 17-4.02, and to affirm to appellees the lack of jurisdiction over dredge and fill operations on the property until March of 1979.
On March 21, 1979, The Secretary of the Department of Environmental Regulation met with the representatives of the District and stated that the agency was considering making a claim of dredge and fill jurisdiction to the "ordinary high water line" boundary.
On April 5, 1979, the Deputy General Counsel of DER wrote to appellees setting out DER's intention to use the "ordinary high water mark"[4] on the particular property as the determinant of its dredge and fill jurisdiction, stating that a survey crew would be sent out to establish that line and concluding:
Until this line is determined we request that no further filling be done in this area until an ordinary high water line is established. We intend to take enforcement action for the work which has gone on to date unless a satisfactory resolution is reached to these apparent violations. We will offer your client the opportunity for an informal conference to discuss a resolution of the violation prior to initiating a formal enforcement action. If you wish to take advantage of this offer, please contact me within ten days from the date of this letter.
*790 Appellees continually and consistently denied DER's claim of jurisdiction.[5] In May of 1979, the parties entered into a stipulation allowing Falls Chase to continue construction and giving DER permission to come onto the property in an attempt to identify an ordinary high water line.[6] That line was not identified by the agency until August of 1979. By certified letter of August 9, 1979, The Secretary of the Department of Environmental Regulation advised appellees, in part, as follows:
The Department has determined that the ordinary high water line of Upper Lake Lafayette lies between 44.8 and 46.6 feet mean sea level... .
For the purpose of this proceeding the department intends to exert its regulatory jurisdiction under Chapter 403, Florida Statutes, below 44.8 feet mean sea level.
... .
Accordingly, you are hereby directed to submit the appropriate after-the-fact permit applications for the areas depicted on Exhibit F to the stipulation which are below the 44.8 feet contour level within thirty days of the receipt of this letter. Failure to do so shall constitute a violation of the terms and conditions of the stipulation and Sections 403.087(1) and 403.161(1)(b), Florida Statutes, and Sections 17-4.03 and 17-4.28, Florida Administrative Code, and shall be subject to appropriate enforcement action by the Department.
You are further directed to cease the placement of fill materials in those areas depicted in Exhibit F to the Stipulation which are below the 44.8 contour line. Failure to do so shall constitute a violation of the terms and conditions of the Stipulation and Sections 403.087(1) and 403.161(1)(b), Florida Statutes, and Sections 17-4.03 and 17-4.28, Florida Administrative Code, and shall be subject to appropriate enforcement action by the Department.
On August 28, 1979, Falls Chase filed a petition for writ of prohibition against DER with this court. The writ was denied September 6, 1979, by unpublished order.[7] DER's contention that this court's denial of prohibition precludes further consideration of the jurisdictional issue is without merit.[8]
On September 11, 1979, appellees filed a complaint in circuit court for declaratory and injunctive relief. DER answered and *791 filed a counterclaim against appellees Sunshine and Elba in the nature of a civil action for the entry and enforcement of a permanent injunction and fine pursuant to Sections 403.131(1) and 403.141(1), Florida Statutes, for violations of Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code.
The circuit court granted Falls Chase's motion for judgment on the pleadings, holding that DER had exceeded its statutory grant of authority and was without jurisdiction to regulate appellees' dredge and fill activities. The court enjoined DER from attempting to extend its jurisdiction beyond the vegetative index required by statute and promulgated in Florida Administrative Code Rule 17-4.
On appeal to this court, DER contends that the circuit court is without jurisdiction because appellees failed to exhaust administrative remedies, and that it has dredge and fill jurisdiction as claimed over appellees' property. We will consider the last contention first.
The grant of authority to DER to regulate dredge and fill activities is Section 403.817, Florida Statutes, adopted effective June 9, 1977, providing:
(1) It is recognized that the levels of the waters of the state naturally rise and fall, depending upon tides and other hydrological, meteorological, and geological circumstances and features. The natural rise and fall of the waters is essential to good water quality, but often makes it difficult to determine the natural landward extent of the waters. Therefore, it is the intent of the Legislature that the Department of Environmental Regulation establish a method of making such determination, based upon ecological factors which represent these fluctuations in water levels.
(2) In order to accomplish the legislative intent expressed in subsection (1), the department is authorized to establish by rule, pursuant to chapter 120, the method for determining the landward extent of the waters of the state for regulatory purposes. Such extent shall be defined by species of plants or soils which are characteristic of those areas subject to regular and periodic inundation by the waters of the state. The application of plant indicators to any areas shall be by dominant species.
(3) Amendments adopted after April 5, 1977, to the rules of the department adopted before April 5, 1977, relating to dredging and filling and which involve additions or deletions of the vegetation or soil indices or the addition or deletion of exemptions shall be submitted in bill form to the Speaker of the House of Representatives and to the President of the Senate for their consideration and referral to the appropriate committees. Such rule amendments shall become effective only upon approval by act of the Legislature.
... .
(5) The landward extent of waters as determined by the rules authorized by this section shall be for regulatory purposes only and shall have no significance with respect to sovereign ownership. (emphasis supplied)
The Legislature, in the above statute, requires the Department to establish a method of determining the natural landward extent of waters of the state by identification of vegetation or soils, a method which takes into account natural fluctuations in water levels. The Legislature also carefully circumscribed the manner in which DER is to exercise the power granted and specified: (1) The natural landward extent of waters is to be identified by ecological factors, specifically plant or soil characteristics of areas subject to regular and periodic inundation. (2) The method for determining the landward extent of the waters of the state for regulatory purposes is to be established by rule. (3) Any amendments to dredge and fill rules relating to plant or soil indices or exemptions must be submitted in "bill form" to both houses of the *792 Legislature for consideration and referral to appropriate committees, and become effective only upon approval by act of the Legislature.[9]
DER amended Florida Administrative Code Rule 17-14.02 in 1975 to set forth definitions and a vegetation index comprised of many different species of plant life. At the time of this litigation, no soil index, as permitted by Section 403.817, had been adopted by DER. Rule 17-14.02 defines "submerged lands" [17-4.02(17)] and "transitional zones[s] of submerged land[s]" [17-4.02(19)], both of which are subject to dredge and fill regulation. The rule also defines "uplands" [17-4.02(18)], which are not subject to dredge and fill regulation.[10]
DER concedes the land in question does not have plant life indicative of areas subject to regular periodic flooding under the index required by statute and promulgated by DER rule.
DER, nonetheless, and in the face of all of the above, asserts that it has jurisdiction to regulate activities on this land under the general provisions of Section 403.031(3), Florida Statutes, which refers to "waters of the state." We find this claim of jurisdiction totally unsupported by statute or rule and without credible basis, as did the trial court.[11]
The claim of jurisdiction by DER is devoid of merit for a number of reasons, including, but by no means limited to: (1) Section 403.817, Florida Statutes, specifies the method by which dredge and fill regulatory jurisdiction is to be determined. The ordinary high water mark is not one of the methods prescribed. (2) At common law, the ordinary high water mark was used to establish the line of ownership between publicity owned bodies of water and privately *793 owned land[12] and would have no application here, since ownership is not at issue in this case. (3) It is not permissible under the terms of Section 403.817 for DER to modify its jurisdiction by substituting ordinary high water mark for the methods specified by statute, but, even if permissible, such a change would require adoption of a rule subject to legislative approval. Section 403.817, Florida Statutes.
As shown above, the statute mandates the specific methods to be used in determining DER regulatory jurisdiction over the landward extent of water bodies in the state. So determined was the Legislature that only aquatic plant or soil indices be used to define the limits of DER jurisdiction and that these indices, once established, remain constant, that Section 403.817(3) further provides DER may neither add nor delete a single plant or soil without specific prior legislative approval.
An agency has only such power as expressly or by necessary implication is granted by legislative enactment.[13] An agency may not increase its own jurisdiction and, as a creature of statute, has no common law jurisdiction or inherent power[14] such as might reside in, for example, a court of general jurisdiction. When acting outside the scope of its delegated authority, an agency acts illegally and is subject to the jurisdiction of the courts when necessary to prevent encroachment on the rights of individuals.
We hold, therefore, DER was without jurisdiction to regulate dredge and fill activities on the land in question.
The remaining question is the right of appellees to seek judicial determination of the jurisdictional issue without exhaustion of administrative remedies. In this regard, DER contends Falls Chase should have first applied to DER for dredge and fill permits raising the jurisdictional issue in that proceeding followed, if necessary, by administrative appeal and appeal to this court under Section 120.68. It is also suggested that the declaratory statement procedure under Section 120.565 was an available remedy.[15]
*794 The enactment of Florida Statutes, Chapter 120, effective January 1, 1975, afforded new administrative remedies and severely curtailed the need for extraordinary judicial relief. Only in exceptional cases may the courts assume jurisdiction to render declaratory and/or injunctive relief without requiring exhaustion of administrative remedies.
A challenge to agency jurisdiction on persuasive grounds is a widely recognized exception to the exhaustion doctrine.[16] A leading decision of the United States Supreme Court, Leedom v. Kyne, 358 U.S. 184, 188-89, 79 S.Ct. 180, 183-184, 3 L.Ed.2d 210 (1958), holds:[17]
This suit is not one to "review," in the sense that that term is used in the [Wagner] Act, a decision of the Board made with in its jurisdiction. Rather it is one to strike down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition in the Act... . Plainly, this was an attempted exercise of power that had been specifically withheld.
State courts which have considered the matter recognize the exception;[18] and as stated by Professor Schwartz, allegations of lack of jurisdiction are properly dealt with on the pleadings except in rare cases.[19]
In Odham v. Foremost Dairies, Inc., 128 So.2d 586, 592-93 (Fla. 1961), the Florida Supreme Court held:
In those instances where there have been gross or flagrant abuses of power, or where such agencies have attempted to act beyond the powers delegated to them, the courts have unhesitatingly intervened. . .. An examination of the many authorities of text on this question reveals a consistent attitude of the courts that judicial intervention with administrative action is justified only in those instances where the invalidity of the administrative act is not subject to reasonable differences of opinion. (emphasis supplied)
*795 In Gulf Pines Memorial Park v. Oaklawn Memorial Park, Inc., 361 So.2d 695, 699 (Fla. 1978), the Florida Supreme Court held:
[T]he question of "need" for a cemetery would never be reached, if, as Oaklawn claims, Chapter 76-251 is either unconstitutional or inapplicable. ... [I]t is pointless to require applicants to endure the time and expense of full administrative proceedings to demonstrate "need" before obtaining a judicial determination as to the validity of the statutory prerequisite. (emphasis supplied)
The fundamental jurisdiction of courts in the administrative arena was recognized in State ex rel. Department of General Services v. Willis, 344 So.2d 580, 590 (Fla. 1st DCA 1977), wherein this court held:
We have acknowledged that the Administrative Procedure Act does not and cannot displace circuit court jurisdiction to enjoin enforcement of facially unconstitutional agency rules. [citations omitted] That jurisdiction remains unimpaired, a necessary concomitant of the judicial power vested in the circuit courts by Article V, Sections 1 and 5 of the Constitution. (emphasis supplied).
In Willis, this court referred specifically to circuit court jurisdiction to enjoin enforcement of facially unconstitutional rules. More egregious is the situation represented by the instant case where the agency has undertaken to act without a rule and in a manner clearly contrary to its statutory authorization. Had agency action in the instant case been dignified by the adoption of a rule purporting to authorize its claim of jurisdiction, the rule itself would be invalid unless submitted to both houses of the Legislature for prior approval under Section 403.817. Thus, acting without benefit of statute or rule and contrary to its enabling legislation, the agency's action is patently invalid and the basis for court intervention clear.
The Willis case, though not involving agency jurisdiction,[20] states the "key factors" to determine when a court should undertake to decide a question of agency jurisdiction prior to exhaustion of administrative remedies. Willis quotes with approval from Professor Davis' treatise as follows:[21]
Professor Davis [3 K. Davis, Administrative Law Treatise 69 (1958)] there cites three "key factors" which should influence the judicial decision whether to intervene by extraordinary writ or defer to the administrative remedy:
Extent of injury from pursuit of administrative remedy, degree of apparent clarity or doubt about administrative jurisdiction, and involvement of specialized administrative understanding in the question... . (emphasis supplied)
This quotation is part of Professor Davis' discussion of lack of agency jurisdiction as an exception to the doctrine of exhaustion of administrative remedies. Davis continues:
Unfortunately, each of these three key factors is a variable, and each often calls for a considerable amount of judgment for its proper appraisal.
A workable standard probably should not go beyond a statement that each of these three factors should be weighed in determining whether or not a court should decide an issue of administrative jurisdiction without requiring exhaustion of administrative remedies. (emphasis supplied)
In weighing the various factors, Professor Davis concludes that, where lack of administrative jurisdiction "clearly appears on the *796 surface," exhaustion should probably not be required even though the injury from the administrative proceeding would be slight.[22]
Analyzing Davis' three factors in light of the instant case, the record reveals that injury from the pursuit of administrative remedy in the instant case includes time and expense, and, in addition, the inability of appellees to make use of their property due to the agency's assertion of regulatory jurisdiction with resulting financial loss to the property owner. The second factor approved by Professor Davis, "degree of apparent clarity or doubt about administrative jurisdiction," is resolved strongly in favor of appellees in that, as previously pointed out, the agency's claim of jurisdiction is clearly without merit. The third Davis factor is likewise determined in favor of appellees, since the question presented is one of law and involves no specialized administrative understanding, nor indeed any factual issues. Weighing these three factors then, we find the balance requires resolution of the jurisdictional issue without exhaustion of administrative remedies.
When an agency acts without colorable[23] statutory authority that is clearly in excess of its delegated powers, a party is not required to exhaust administrative remedies before seeking judicial relief. A finding of lack of colorable statutory authority provides the necessary limitation on this exception to the requirement of exhaustion of administrative remedies.[24] A jurisdictional *797 claim which has apparent merit, or one which depends upon factual determination in most instances requires exhaustion of administrative remedies before resort to judicial forum.[25] In Odham v. Foremost Dairies, Inc., 128 So.2d 586, 593 (Fla. 1961), the Florida Supreme Court held:
An examination of the many authorities of texts on this question reveals a consistent attitude of the courts that judicial intervention with administrative action is justified only in those instances where the invalidity of the administrative act is not subject to reasonable differences of opinion.
DER's jurisdictional claim is clear and has been articulated by its top-ranking official. Whether DER's action could be labeled "free form"[26] is without consequence to determination of the jurisdictional issue presented.[27]
The trial court correctly denied DER's motion to dismiss and entered judgment on the pleadings for appellees.
AFFIRMED.
SHAW, J., concurs.
ROBERT P. SMITH, Jr., C.J., dissents with written opinion.
ROBERT P. SMITH, Jr., Chief Judge, dissenting.
The majority overthrows a vast body of Florida APA precedent restricting circuit court litigation and requiring exhaustion of adequate chapter 120 remedies for the resolution of disputes generated in free-form dealings between agencies and affected persons. Whether chapter 403 permits Falls Chase to dredge and fill without restriction in the historic basin of Upper Lake Lafayette is a question the Department of Environmental Regulation is entirely competent to decide, given its obvious regulatory jurisdiction over the pollution of lakes. Sections 403.061, .031(2), (3), Florida Statutes (1981). Like all other agencies of the executive branch in their respective fields, the Department was required to decide the applicability of chapter 403 to Upper Lake Lafayette under disciplines imposed by the APA; it specifically was required, if asked, to declare and demonstrate, through an order reviewable by this Court if necessary, any applicability that chapter 403 may have in the particular circumstances prevailing at Upper Lake Lafayette. Sections 120.565, .68.
*798 Falls Chase studiously avoided this available and wholly adequate administrative remedy. Instead, Falls Chase temporized until its advancing construction created a condition of urgency, then launched this collateral circuit court attack on the Department's position taken in free-form proceedings[1] not subject to APA disciplines. The allegation on which Falls Chase invoked the circuit court's jurisdiction, that Falls Chase was repeatedly refused APA remedies, was so transparently without merit that it does not bear judicial mentioning, and it was not mentioned either in the circuit court "judgment on the pleadings" or in the majority's decision. That frivolous allegation, it appears, served only to open the circuit court doors and to defeat the Department's motion to dismiss the complaint for failure to exhaust administrative remedies. After serving those purposes the allegation played no further part in the circuit court's decision "on the pleadings," though the allegation was denied by the Department's answer and the record convincingly refutes it. The circuit court thus decided the merits of the dispute and the majority has done the same, cloaking the decision in a labored analysis to the effect that the agency lacked jurisdiction because its position taken in free-form proceedings was not "colorably" correct.
The well-considered and reliable Florida rule that APA remedies must be exhausted, if they are adequate, is thus cast aside without any effort to demonstrate its sudden want of merit, and without any showing that adherence to it would have done even the slightest momentary injury to Falls Chase. Indeed, as will be shown, adherence to that principle by Falls Chase voluntarily, or by the circuit court, would have routinely ended this dredge-and-fill controversy in 1979. Instead, expediency prevailed and it still prevails. The majority, apparently attracted to the notion that the circuit court, after all, got to the right result on the merits, overthrows the Florida exhaustion requirement in favor of an amalgam of selected federal case law on exhaustion which Professor Davis rightly calls "unprincipled," that case law having become since 1975 "even more disorderly than it previously was."[2] The majority does not improve the federal brew by adding to it Professor Davis' own variation on the federal theme, a "weighing" of factors including the "degree of apparent clarity or doubt" concerning the extent of the agency's power. As the professor himself says, his proposal "has been a failure,"[3] not only for the reason he assigns, that just one federal court of appeals has used it by name, but also because the professor has merely rearranged and renamed the same "unprincipled" and "disorderly" subjective factors he wishes to banish from federal case law. Because Davis' restatement of federal law is equally susceptible to manipulation by result-oriented users, it is equally unpredictable in application, therefore equally productive of disruptive and unnecessary litigation such as this. Just recently this Court rejected a proposal to substitute for Florida's brightline rule one of the endlessly variable versions of federal case law that can anyone be suprised? requires judicial abstention where the Florida rule now permits discreet circuit court intervention to decide a threshold question of statutory constitutional validity. See Smith v. Willis, 415 So.2d 1331 (Fla. 1st DCA 1982), where the Court saw "no reason to venture *799 such a fundamental reordering of mature Florida exhaustion law ..., least of all on the basis of imported federal precedent which ... is anything but coherent and predictable in application... ." 415 So.2d at 1336.
The Court in Smith v. Willis saw no reason to displace Florida's exhaustion rule in favor of one branch of federal case law that counsels more judicial abstention; and there is no reason here to displace Florida's rule in favor of other federal case law that counsels less. The vice of all the wonderfully varied federal doctrine is its subjectivity and unpredictability; and while such flawed doctrine may have to suffice for the federal judicial system, for reasons I shall mention in part V, and for national scholars whose work understandably feeds almost exclusively upon federal APA law, Florida's chapter 120 has "varied and abundant remedies for administrative error" that are markedly more effective than those of the federal Act, and more accessible. See State ex rel. Department of General Services v. Willis, 344 So.2d 580, 590 (Fla. 1st DCA 1977). Correspondingly there is neither need nor justification for supplanting Florida's firm exhaustion principle with the federal import.
Seeking to find in the Willis decision some basis for bypassing adequate APA remedies in favor of collateral court litigation over the extent of the agency's regulatory power, the majority seems to suggest, ante, 424 So.2d at 795, that Willis swallowed Davis' restatement of federal law whole by quoting it in footnote 10, 344 So.2d at 590. That simply is not the case. The same footnote goes on to report that the Davis treatise recommends elsewhere that Congress "[g]et rid of extraordinary remedies as a means of review" and "[e]stablish a single, simple form of proceeding for all review of administrative action," such as the direct appeal provided by section 120.68 of the Florida APA. But of course Willis did not relegate to a footnote the whole point of its lengthy and concentrated discussion. The summary paragraph in the text of Willis, to which all the preceding discussion pointed, stated in terms that cannot be overlooked that circuit court intervention in agency disputes is justified only when APA remedies are unavailable or inadequate:
Does the complaint of the respondent contractors demonstrate some compelling reason why the Administrative Procedure Act does not avail them in their grievance against the Department, and why the circuit court must therefore intervene? We think it does not. No lack of general authority in the Department is suggested; nor is it shown, if that is the case, that the Act has no remedy for it. No illegal conduct by the Department is shown; nor, if that is the case, that the Act cannot remedy the illegality. No departmental ignorance of the law, the facts or the public good is shown; nor, if any of that is the case, that the Act provides no remedy for it. No claim is made the Department ignores or refuses to recognize relators' substantial interests, or refuses to afford a hearing, or otherwise refuses to recognize that relators' grievance is cognizable administratively. The respondent contractors have made no showing that remedies available under the Act are inadequate. (344 So.2d at 591, emphasis added.)
Willis thus does not lend support for the majority's view that a circuit judge should enjoin free-form agency action that the judge thinks is beyond the agency's power or is "without colorable statutory authority." Ante, 424 So.2d at 796. The holding of Willis was exactly the opposite: that whatever the complaint about agency action, be it "lack of general authority" or "illegal conduct" or "ignorance of the law, the facts or the public good," a circuit court must not intervene and preempt APA processes unless it is shown that remedies available under the Act cannot adequately deal with the complaint.
I.
Reviewing the decisions, 1977-1982, turning on the adequacy of chapter 120 remedies.
Willis proposed, in 1977, a "judicial freshening of the doctrines of primary jurisdiction *800 and exhaustion of remedies," by means of requiring exhaustion of adequate administrative remedies. Since then an unbroken line of decisions by Florida appellate courts, including those of the Florida Supreme Court, have addressed exhaustion questions in terms of the availability and adequacy of administrative remedies. Those decisions, arranged chronologically from 1977 to June 1982, include (emphasis added):
School Board of Leon County v. Mitchell, 346 So.2d 562, 569 (Fla. 1st DCA 1977), cert. den., 358 So.2d 132 (Fla. 1978) ("Appellee, as a party whose interests were `substantially affected,' could have had that issue decided ... by hearing held pursuant to Section 120.57(1), Florida Statutes (1975). Under such circumstances a declaratory judgment action will not lie.")
Jefferson National Bank of Miami Beach v. Lewis, 348 So.2d 348 (Fla. 1st DCA 1977) ("[T]he appealed order of the Leon County Circuit Court granting Jefferson declaratory and injunctive relief, although in substance entirely correct, is REVERSED and the cause REMANDED for dismissal because adequate remedies were and are available under Chapter 120 ....")
United Faculty of Florida FEA v. Branson, 350 So.2d 489, 493 (Fla. 1st DCA 1977) ("Adequate remedies for administrative determination of that question, and for judicial review, existed under Chapter 120, and no emergent or other unusual circumstances were sufficiently shown to bypass the administrative remedy... . "[W]ere we to approve an expansion of the circuit court's jurisdiction [to enforce the Public Records Act, ch. 119] to decide pendant questions determinable under available and adequate administrative remedies, we would quickly dissipate the benefits of a uniform Administrative Procedure Act.")
Adams Packing Association, Inc. v. Florida Department of Citrus, 352 So.2d 569, 571 (Fla. 2d DCA 1977) ("The Administrative Procedure Act does not then provide an adequate administrative remedy, and the procedure for review of agency action established by the Act is not applicable to this dispute.")
Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695, 699 (Fla. 1978) ("... Oaklawn did not attempt to avoid administrative remedies, but merely sought to have them delayed in a reasonable effort to seek a judicial declaration of rights that could not be obtained administratively.")
Carrollwood State Bank v. Lewis, 362 So.2d 110, 116 (Fla. 1st DCA 1978), cert. den., 372 So.2d 467 (Fla. 1979) ("No statute, rule nor regulation, nor the application thereof is challenged; nor is there any allegation nor demonstration of inadequacy of administrative remedies under chapter 120.")
State ex rel. Florida State Board of Nursing v. Santora, 362 So.2d 116, 117 (Fla. 1st DCA 1978) ("Suffice to say, here as in Willis, there has been no showing that the remedies available under the Administrative Procedure Act are inadequate. ...")
Metropolitan Dade County v. Department of Commerce, 365 So.2d 432, 433 (Fla. 3d DCA 1978) ("We hold that the declaratory judgment and injunctive remedy resorted to herein is applicable only in those extraordinary cases where a party has no other adequate administrative remedy to cure egregious agency errors or where a party's constitutional rights are endangered.")
Department of Health and Rehabilitative Services v. Lewis, 367 So.2d 1042, 1045 (Fla. 4th DCA 1979) ("In sum, the fact that Mrs. Lewis claimed ... even the right to compel HRS to comply with its own rules and regulations in handling such problems, is not a sufficient basis to invoke circuit court jurisdiction. No claim is made that HRS itself cannot remedy any illegality in its procedures or correct any error in the manner in which they are carried out.")
Coulter v. Davin, 373 So.2d 423, 427-28 (Fla. 2d DCA 1979) ("On the other hand, the constitutional validity of the law pursuant to which the administrative agency *801 takes action, or the constitutional validity of some act of the agency taken in previous proceedings, in the form of a rule or regulation or some other form, are matters which the administrative agency may not determine.")
Junco v. State Board of Accountancy, 390 So.2d 329, 331 (Fla. 1980) ("The principle underlying the exhaustion requirement is inapplicable where adequate remedies do not abide within the administrative sphere.")
Department of Professional Regulation v. Hall, 398 So.2d 978, 979 (Fla. 1st DCA 1981) ("As a result of this peculiar statutory arrangement, by which the legislature has granted the Department only the appearance of authority over its subsidiary boards, but little direct power in fact, the legislature has deprived the executive branch of clear effective authority to take action resolving the dispute by means of the Administrative Procedure Act.")
Department of Business Regulation v. N.K., Inc., 399 So.2d 416 (Fla. 3d DCA 1981) ("The licensee [who won a circuit court injunction] ... clearly had another remedy. Section 120.68 ... provides for immediate review in the appropriate District Court of Appeal... .")
Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 400 So.2d 66, 74 (Fla. 1st DCA 1981) ("The Chapter 120 remedies plainly were adequate, and the circuit court correctly declined `to employ an extraordinary remedy to assist a litigant who has foregone an ordinary one which would have served adequately.'")
Ortega v. Owens-Corning Fiberglas Corp., 409 So.2d 530, 532 (Fla. 1st DCA 1982) ("In no sense, therefore, is Ortega's claimed remedy [declaration of the unconstitutionality of chapter 440] available in chapter 440 proceedings before a deputy; in no sense are the proceedings authorized by chapter 440 adequate to resolve Ortega's claim for common law money damages.") [Emphasis by the court.]
Communities Financial Corp. v. Florida Department of Environmental Regulation, 416 So.2d 813, 816 (Fla. 1st DCA 1982) ("In Willis, this Court set forth certain criteria which, if met, would invoke the jurisdiction of the circuit court in such cases: (1) the complaint must demonstrate some compelling reason why the APA ... does not avail the complainants in their grievance against the agency; or (2) the complaint must allege a lack of general authority in the agency and, if it is shown, that the APA has no remedy for it; or (3) illegal conduct by the agency must be shown and, if that is the case, that the APA cannot remedy that illegality; or (4) agency ignorance of the law, the facts, or public good must be shown and, if any of that is the case, that the Act provides no remedy; or (5) a claim must be made that the agency ignores or refuses to recognize related or substantial interests and refuses to afford a hearing or otherwise refuses to recognize that the complainants' grievance is cognizable administratively... . Since such avenues of relief were not pursued, we cannot conclude that the remedies of the administrative process were inadequate.")
State of Florida, Department of General Services v. Biltmore Construction Co., 413 So.2d 803, 804 (Fla. 1st DCA 1982) ("As a matter of policy, a court should not exercise its jurisdiction if an adequate administrative remedy is available until that remedy has been exhausted. ... If [the Department] claims damages in excess of [the amount of retainage it holds], its only remedy is in court because the only adjudication that can be made in the administrative proceeding is whether or not Biltmore is entitled to be paid all of the retainage, part of it or none of it.")
The uniform message of these decisions, including those authorizing court intervention if the threshold question is one of facial validity of a statute under the Constitution, is that administrative remedies must be resorted to or not depending on whether the available remedies are adequate. Given *802 agency authority to decide the issue in question, the decisive question is whether the litigant seeking circuit court intervention has shown convincingly that chapter 120 remedies cannot in good order and in a reasonable time resolve the issue. In this line of decisions there is no warrant for a circuit court overriding adequate chapter 120 remedies on the ground that the judge thinks the agency's free-form position is demonstrably wrong. On the contrary, the decisions teach that adequate APA remedies must be resorted to even for cure of "egregious" agency errors, Metropolitan Dade County, supra, 365 So.2d at 433, even for correction of "untenable" agency positions, Carrollwood, supra, 362 So.2d at 113, even if the circuit court's contrary view of statutory requirements is "in substance entirely correct," Jefferson, supra, 348 So.2d at 348.
Nor does the Supreme Court's 20-year-old decision in Odham v. Foremost Dairies, Inc., 128 So.2d 586, 592-93 (Fla. 1961) authorize judicial preemption of processes enacted by the 1974 Legislature to discipline agency decision-making. In Odham, which itself reversed an intervening circuit court, the Supreme Court delivered a general historical survey of the exhaustion principle, and in dicta not controlling Odham or any decision cited by Odham, drew from textbooks the phrases now seized upon by the majority, that "courts have unhesitatingly intervened" when "agencies have attempted to act beyond the powers delegated to them" or when "the invalidity of the administrative act is not subject to reasonable differences of opinion." What was remarkable about Odham was not this inoperative dicta but the result itself, a reversal of circuit court intervention executing the Court's forceful warning against "promiscuous intervention" by courts "except for most urgent reasons," 128 So.2d at 593:
We must assume that these agencies will follow the mandates of the Constitution and laws in the discharge of their duties. If they fail to do so, those aggrieved may resort to the courts for a review of such actions.
When Odham was decided, our present chapter 120 was yet 13 years in the future; even the aboriginal Administrative Procedure Act of 1961 had not yet been enacted, chapter 61-280, Laws of Florida, chapter 120, Florida Statutes (1961) (became law June 22, 1961, effective July 1); and judicial review of agency action was not by appeal as of right to a district court of appeal, as now provided by section 120.68, but was by petition for certiorari to a district court of appeal or, significantly, to a circuit court before whom it might plausibly have been argued then, but now no longer, that its early intervention to decide certain questions would simply accelerate the same court's inevitable decision. Odham, 128 So.2d at 593, n. 14. Thus, 16 years later, Willis read that and other worthy but dated decisions in their proper historical context:
Forceful as those authorities are [requiring exhaustion of adequate administrative remedies], they weighed administrative processes and remedies which were primitive in comparison to those available under the Administrative Procedure Act of 1974. Those decisions could not have calculated the adequacy, as we must, of an administrative process which subjects every agency action to immediate or potential scrutiny; which assures notice and opportunity to be heard on virtually every important question before an agency; which provides independent hearing officers as fact finders in the formulation of particularly sensitive administrative decisions; which requires written findings and conclusions on impact issues; which assures prompt administrative action; and which provides judicial review of final, even of interlocutory, orders affecting a party's interests. 344 So.2d at 590.
The "judicial freshening of the doctrines of primary jurisdiction and exhaustion of remedies, and greater judicial deference to the legislative scheme," proposed by Willis, 344 So.2d at 590, came to pass in the decisions catalogued above, and for sound reasons set out in part V of this opinion those recent decisions should be adhered to. But *803 for now the point to be made is that the 1961 Odham dicta relied upon by the majority opinion has never since, not once, been relied on by a Florida appellate court to justify circuit court intervention on nonconstitutional issues not before the 1974 APA was enacted, and certainly not since. Rather, when Odham's historical discourse on the exhaustion requirement has been cited or quoted in nonconstitutional decisions since, that language was employed to require exhaustion, not to excuse it. Florida State Board of Medical Examiners v. James, 158 So.2d 574 (Fla. 3d DCA 1963); Board of Public Instruction of Taylor County v. State ex rel. Reaves, 171 So.2d 209 (Fla. 1st DCA 1964); Marx v. Welch, 178 So.2d 737 (Fla. 3d DCA 1965), cert. den., 188 So.2d 313 (Fla. 1966); Tampa Port Authority v. Deen, 179 So.2d 416 (Fla. 2d DCA 1965); Pest Control Commission of Florida v. Ace Pest Control, Inc., 214 So.2d 892 (Fla. 1st DCA 1968); Cole v. Southern Bell Telephone and Telegraph Co., 221 So.2d 200 (Fla. 3d DCA 1969); Pushkin v. Lombard, 279 So.2d 79 (Fla. 3d DCA 1973), cert. den., 284 So.2d 396 (Fla. 1973); Duval County School Board v. Armstrong, 336 So.2d 1219 (Fla. 1st DCA 1976), cert. den., 345 So.2d 420 (Fla. 1977); School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977), cert. den., 358 So.2d 132 (Fla. 1978); General Electric Credit Corp. of Georgia v. Metropolitan Dade County, 346 So.2d 1049 (Fla. 3d DCA 1977); Planning and Zoning Board of the Town of Orange Park v. Kager, 351 So.2d 402 (Fla. 1st DCA 1977); Kaufman v. Machiedo, 357 So.2d 739 (Fla. 3d DCA 1978), cert. den., 364 So.2d 888 (Fla. 1978); and Florida Power Corp. v. Advance Mobile Homes, Inc., 386 So.2d 897 (Fla. 5th DCA 1980), pet. rev. den., 394 So.2d 1151 (Fla. 1981).
In keeping with the abundant precedent requiring judicial abstention if an adequate chapter 120 remedy is available, it is appropriate now to identify that remedy.
II.
Identifying the adequate APA remedy: a petition for declaratory
statement.
This dispute arises from a proposal by Falls Chase, a special taxing district by virtue of a 1975 Leon County ordinance, and by Sunshine and Elba, owners of most of the district's land, to build water distribution and sewer systems on Sunshine's and Elba's land, through publicly financed bonds, in or adjoining Upper Lake Lafayette in Leon County. There is no doubt that Department permits were required for both the water and sewer systems, separate and apart from permits to dredge and fill in the lake basin. Sections 403.086, .087, .861(9), Fla. Stat. (1979). In fact Falls Chase applied for and the Department issued or was prepared to issue those permits, reserving only the question of dredge-and-fill permits for pipelines below the high water line in Upper Lake Lafayette.
On December 21, 1978, at the request of Falls Chase, its representatives met with the Department's at Lake Lafayette to discuss Falls Chase's proposed construction and the extent of the Department's regulatory jurisdiction under chapter 17-4, Florida Administrative Code, implementing chapter 403, Florida Statutes (1979). They met again on February 15, 1979, so that (Falls Chase's attorney wrote) "the Department may attempt to physically identify any portions of the proposed project which might be subject to state regulation pursuant to chapter 17-4, Florida Administrative Code." After that meeting Falls Chase's attorney had the impression that the Department's representatives agreed "that construction of the four upland ponds, installation of roadways and placement of compacted fill, as contemplated in the development plan, were all located on upland sites that were not within the jurisdiction of DER's dredge and fill permitting regulations." But at a March 12 meeting (Falls Chase's attorney wrote on March 21) "it became apparent that the DER regulatory jurisdictional questions ... were in fact unresolved in the minds of certain DER representatives."
The emerging position of the Department's staff was that despite section 403.817 and the Department's rule establishing *804 a vegetation index, Upper Lake Lafayette nevertheless remained a "lake" subject to state control under chapter 403 to the historic ordinary high water mark, albeit that mark was landward of the present vegetation line. Section 403.031(3), Fla. Stat. (1979).
Falls Chase disputed that interpretation of chapter 403 exactly as the circuit court and now the majority here have disputed it. So, going to the heart of the matter, Falls Chase's counsel challenged Secretary Varn, head of the Department, by letter of March 21, 1979:
1) [I]s it your opinion that the [vegetation] species indicators specified in Rule 17-4.02(17) and (19), are not intended to define the landward extent of waters of the state for dredge and fill regulatory purposes under Chapter 403, Florida Statutes?
2) in the event the landward extent of the Department's regulatory jurisdiction over dredge and fill projects is not limited by the species indicators in Rule 17-4, what is the Department's definition of mean high water line as the Department interprets that term under Chapter 403?
3) what is the specific legal authority for using a mean high water line criteria to determine the landward extent of the Department's dredge and fill regulatory jurisdiction pursuant to Chapter 403?
and 4) where in the rules and regulations promulgated under Chapter 403 has the mean high water line test been adopted by the Environmental Regulation Commission as a standard or criteria of the Department for determining the landward extent for dredge and fill jurisdiction?
A deputy general counsel answered for the Department by letter dated April 5, 1979, setting out at some length the bases for the Department's regulatory claim to the high water line in Upper Lake Lafayette.[4] While the response was thorough and informative, it was no more than free-form action, supra fn. 1, not authentic "agency action" either determining Falls Chase's substantial interests or providing the predicate for an APA appeal.
The questions posed by Falls Chase's counsel show his grasp of the matter and his purpose to isolate the agency's legal position, to require its exposition, to expose its errors and excesses. That is to say, Falls Chase knew all it needed to know, on March 21, 1979, in order to write an effective petition for a declaratory statement, subjecting the Department's statutory claims to chapter 120 disciplines and eventually to direct linear review by this Court. Sections 120.565, .68, Fla. Stat. (1979).
Section 120.565 speaks in these terms of declaratory statements:
Declaratory statement by agencies. Each agency shall provide by rule the procedure for the filing and prompt disposition of petitions for declaratory statements. A declaratory statement shall set out the agency's opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in his particular set of circumstances only. The agency shall give notice of each petition and its disposition in the Florida Administrative Weekly . .. and transmit copies of each petition and its disposition to the committee. Agency disposition of petitions shall be final agency action. (Emphasis added.)
*805 That the legislature invests declaratory statements with a particular role in the Florida APA scheme, and with particular significance, is evidenced by its use of the imperative "shall" four times in section 120.565: the agencies shall provide by rule for declaratory statements; those declarations shall state the agency's opinion of how a specified statute applies to a particular individual in his particular circumstances; notice of the agency's declaration shall be given the public through publication and to the legislature through the joint Administrative Procedures Committee;[5] and a declaratory statement shall be regarded as final agency action for purposes of a regular section 120.68 appeal to a district court of appeal.
These legislative imperatives lie heavily upon Florida's executive agencies, in marked contrast, for example, to the loosely drawn, loosely enforced parallel section of the federal APA.[6] Section 120.565 allows no room for delay or evasion in the agency's response. Both the model rules of the Administration Commission[7] and the Department of Environmental Regulations's own rules, infra, implement this statute as required.
Even in August 1979, when the Department surveyed the ordinary high water line of Upper Lake Lafayette at "between 44.8 and 46.6 feet mean sea level" and gave a free-form directive that Falls Chase submit permit applications for placing compacted fill below that line, section 120.57 proceedings and a section 120.68 appeal were available to resolve any question of fact, policy, or law inhering in that directive. See section 403.121(2), Fla. Stat. (1979).[8] Questions concerning the Department's lawful powers could also have been raised in any civil action initiated by the Department to enforce its application of chapter 403 in Lake Lafayette. Section 403.121(1).[9] But by the fall of 1979, when Falls Chase launched its preemptive litigation, time was a factor, or at least Falls Chase claimed as much, because it signed a construction contract on June 29, 1979, and mortgage interest, legal fees, and other overhead expenses were accruing.[10] What Falls Chase really needed *806 was an earlier remedy, one designed to answer authoritatively the basic question, Does chapter 403 grant the Department regulatory jurisdiction above the indexed vegetation line to the ordinary high water mark?, before any untoward financial loss or avoidable delay occurred.
Therein lies the special efficacy of a petition for declaratory statement. During the planning stage of a project such as this, before one has signed a construction contract, before schedules begin to pinch, before interest payments on borrowed capital become unduly burdensome, it is possible for someone like Falls Chase to ask an agency like the Department to declare formally the basis for the Department's asserted regulatory powers in the project; the Department must declare; and in rapid order a district court of appeal will remedy any excessive assertion of jurisdiction. Section 120.565 thus provides a broad declaratory remedy, whatever the agency and whatever the issue of statutory application, much like the Division of State Planning's "binding letter of interpretation" which states the application of section 380.06 regional impact standards to proposed developments. See General Development Corporation v. Division of State Planning, 353 So.2d 1199 (Fla. 1st DCA 1977).
The Department's own Rule 17-1.119, regularly published in Florida Administrative Code for a year before spring 1979, fully advertised the prophylactic advantages of the declaratory statement:
Purpose and Use of Declaratory Statement. A declaratory statement is a means for determining the rights of substantially affected persons when a controversy, or when doubt concerning the applicability of any statutory provision, rule or order, has arisen before any wrong has actually been committed. The potential impact upon petitioner's interests must be alleged in order for petitioner to show the existence of a controversy or doubt. (Emphasis added).
In a footnote containing the majority's lone reference to the adequacy of chapter 120 remedies and the principle requiring their exhaustion, there is an unexplained statement that "the availability of this remedy [the section 120.565 declaratory statement] is doubtful" because of the phrase, "before any wrong has actually been committed," in the Department's Rule 17-1.119. Ante, 424 So.2d at 793. I can only assume the majority means by this that because Falls Chase is deemed correct in this dispute, not "wrong," Falls Chase could not have "committed" any "wrong," therefore "[t]he availability of this remedy is doubtful... ." This narrowing of the declaratory statement remedy, preparatory to speculating upon its unavailability, is wholly unwarranted. The phrase seized upon by the majority is but a rendering of common language long used to describe the purpose of declaratory judgment proceedings in circuit court. E.g., Sheldon v. Powell, 99 Fla. 782, 794, 128 So. 258, 263 (1930) (statutory provision for declaratory decree contemplates that the parties "may have a judicial determination of [their rights] before wrong has been committed or damage done."); James v. Golson, 92 So.2d 180, 182-83 (Fla. 1957) (declaratory judgment "may be employed to anticipate irreparable mischief to one's business... ."); Kingdon v. Walker, 156 So.2d 208, 211 (Fla. 2d DCA 1963), cert. den., 165 So.2d 179 (Fla. 1964) ("Thus many disputes may be settled before any party is provoked to hostile action in reliance, perhaps mistakenly, on the validity of his position.") The referenced language simply means that a declaratory statement was available and appropriate as soon as the dispute over the applicability of chapter 403 was recognized, long before any "wrong" in this was committed either by Falls Chase, "wrongfully" filling without a permit, or by the Department, delaying construction with "wrongful" demands for permitting. The declaratory statement remedy, followed by appellate remedies if necessary, was the ideal course to secure a prompt and correct answer to the underlying issue.
The Department had no doubt of the availability of this remedy, nor did Falls Chase. In the Department's motion to dismiss and memorandum of law submitted to *807 the trial court on October 2, 1979, the Department stated:
Plaintiffs have the right to request a declaratory statement from the Department, pursuant to Section 120.565, Florida Statutes. To date, no such petition or request for declaratory statement by Plaintiffs has been received by the Department.
The Department's rules prescribed a simple form of petition. They required the Department to file a responsive order within 60 days, or within 30 days after filing of the transcript of any hearing held subject to section 120.57. Fla. Admin. Code R. 17-1.120, .121. In 1979, but now no longer, Department declaratory statements were subject to review by the Environmental Regulation Commission, section 403.804(1), composed of seven citizens appointed by the Governor and confirmed by the Senate, "representative of, but not limited to, interested groups including agriculture, real estate, environmentalists, the construction industry, and lay citizens." Section 20.261(3), Fla. Stat. (1979). The Commission's rules provided short schedules for appeals from the Department's declaratory statement or other final agency action, and for briefing.[11] The Commission's action was subject, in turn, to section 120.68 appellate review in a district court of appeal. Peterson v. Department of Environmental Regulation, 350 So.2d 544 (Fla. 1st DCA 1977); Booker Creek Preservation, Inc. v. Department of Environmental Regulation, 369 So.2d 655 (Fla. 2d DCA 1979).
Had Falls Chase, Sunshine and Elba pursued this remedy in March 1979, when the dispute arose, this rather clearcut issue over the extent of the Department's regulatory powers on the banks of Upper Lake Lafayette would have been determined administratively or judicially by Labor Day 1979 or, with any luck and a little diligence, by the Fourth of July.
III.
This Court denied prohibition in this case in September 1979 and decided that Falls Chase's administrative remedies were adequate; that decision has res judicata effect.
The majority opinion, while speaking the language of jurisdiction, really decides the merits, that is to say, the extent to which chapter 403 restricts dredge-and-fill in an historic lake that is subject to periodic flooding and draining and has drained in recent decades, inviting growth below its ordinary high water line of vegetation not tolerant of water. Given the legislature's comprehensive declaration against the menace of pollution in Florida's lakes and other waters, section 403.021, and its equally comprehensive delegation of responsibility to the Department, section 403.061, the Department certainly has "jurisdiction," in any ordinary sense of the word, to decide the issue; and chapter 120 dictates how the agency shall decide, subject to judicial review by appeal. One could correctly say that the Department of Education or the Department of Highway Safety and Motor Vehicles had no "jurisdiction," but this Department's jurisdiction in enforcing chapter 403, and in determining its application in the first instance, is too obvious to be labored further.
The majority says in effect that the Department has jurisdiction to apply chapter 403 correctly but is "without jurisdiction" to apply chapter 403 incorrectly or in a way that a circuit judge deems not "colorably" correct. But if this reasoning were thought to justify judicial intervention notwithstanding adequate chapter 120 remedies to correct any Department error not "colorably" correct, this Court would surely have granted the petition of Falls Chase, Sunshine and Elba for a writ of prohibition, filed August 28, 1979. But the Court denied the petition, without requiring a response *808 by the Department, on September 6, 1979. Fallschase Special Taxing Dist. v. Department of Environmental Regulation, No. PP-106 (Fla. 1st DCA 1979) (Judges McCord, Mills and Ervin).
Falls Chase's petition for writ of prohibition was virtually identical to its later circuit court complaint; it substantially differed only in that the petition for prohibition did not contain specific allegations, added when the complaint was filed on September 11, 1979, that administrative remedies had been refused or were for specific reasons inadequate. The petition for writ of prohibition was therefore strikingly like the majority opinion, arguing that the Department was wrong, egregiously wrong, in asserting by free-form action that chapter 403 applied to Upper Lake Lafayette in the circumstances of this case. Thus the allegations of the petition for writ of prohibition and those of the complaint later filed in circuit court may be compared:
Allegations in the developers' petition for writ of prohibition:
10. The choice of an historical ordinary high water line in what is, for all practical purposes, a dry basin, as the basis of establishing the landward extent of jurisdiction for regulatory purposes is contrary to Florida Statutes and Department regulations.
16. The Department itself admits that under the jurisdictional limit placed by the vegetation index rules none of the work being done by Petitioner District or upon Petitioner corporations land is within Department jurisdiction.
18. Despite the legislative mandate and the Department's own rules the Department has arbitrarily and capriciously attempted to stop all work by the District below a line far landward of the landward extent of its jurisdiction under Chapter 403, Fla. Stat. and Chapter 17-4, F.A.C.
21... . Thus, under the Department's own definition it has no jurisdiction over Petitioner's use of its land.
28. Petitioners contend that the attached exhibits... clearly indicate that Respondent has acted and threatens to continue to act without or in excess of jurisdiction granted to it by either the Florida Constitution or the Florida Statutes, all to the continued and irreparable damage of Petitioners. Judicial review is necessary immediately because review of the final decisions of Respondent would be too late and would not provide an adequate remedy.
WHEREFORE, Petitioners request this Court to issue its rule nisi ... and thereafter to grant the writ and prohibit Respondent from further purporting to exercise jurisdiction to control use of Petitioners' property ... contrary to statutory and regulatory mandate....
....
Allegations in the developers' complaint for declaratory judgment and injunctive relief:
6(h). The ordinary high water line which the agency is selecting as its jurisdictional boundary is not authorized by statute, is not authorized by regulation, and is in fact, a historical line without any basis in fact to the actual water line in the area in which the land is being developed. The land is now dry, and has been used for years for farming and cattle grazing.
6(i). The Department has no legal authority for its attempted exercise of jurisdiction over the Plaintiffs in the development of private property.
6(m). The use of the so-called ordinary high water line by the Department is an arbitrary and capricious use of a standard which has not been adopted as a rule and is in fact contrary to the rules and statutes governing the landward extent of waters for the regulatory purposes of pollution control... .
6(t). The actions of the Department, being without statutory authority ... requires intervention by this Court.
6(u). The activities of the Defendant Department demonstrate a gross and flagrant *809 abuse of power contrary to the power delegated to it by the legislature.
WHEREFORE, Plaintiffs pray that this Court will enter a declaratory judgment declaring that the landward extent of the [Department's] jurisdiction for regulatory purposes under Chapter 403, Fla. Stat., is limited to the edge of the wetland vegetation... .
It is further requested that the Court enter a preliminary injunction and a permanent injunction against the Department preventing the Department, its agents and employees, from attempting to regulate the activities of the Plaintiffs upon land not within the jurisdiction of the Department... .
Thus on essentially the same allegations as are contained in the circuit court complaint putting aside the complaint's added allegations concerning inadequate and unavailable chapter 120 remedies another panel of this Court summarily denied Falls Chase's petition for writ of prohibition. That writ is altogether appropriate to prevent an inferior tribunal from acting in excess of jurisdiction "where person seeking writ has no other appropriate and adequate legal remedy." English v. McCrary, 348 So.2d 293, 297 (Fla. 1977). That being so, the Court's denial of the writ establishes either that the Department was acting within its jurisdiction or that Falls Chase had adequate remedies for any excessive regulation under chapter 120. In either case that decision controls this one, on principles of res judicata.
In support of its position that this Court's denial of the writ of prohibition was inconsequential, ante, 424 So.2d at 790, the majority opinion cites decisions establishing that this Court's action was very consequential indeed. State ex rel. Washburn v. Hutchins, 101 Fla. 773, 777, 135 So. 298, 299 (1931), characterized prohibition as
an extraordinary judicial writ that in proper cases may be issued to restrain the unlawful exercise of judicial functions when no other adequate remedy is afforded by law. (emphasis added.)
And Public Employees Relations Commission v. District School Board of De Soto County, 374 So.2d 1005 (Fla. 2d DCA 1979), cert. den., 383 So.2d 1193 (Fla. 1980), interpreting English v. McCrary, held that the writ is appropriate only "where the person seeking the writ has no other appropriate and adequate legal remedy... ." For that reason, the court stated,
denial of a writ of prohibition without opinion is not res judicata unless the sole possible ground of the denial was that the court acted on the merits of the jurisdictional question, or unless it affirmatively appears that such denial was intended to be on the merits.
Thus the Second District held, concerning two prior denials of prohibition by prior panels of that court, that "those denials could have rested on reasons other than the merits of the jurisdictional question posed in those prior proceedings." 374 So.2d at 1010.
Certainly I would not claim that this Court's summary denial of Falls Chase's petition for writ of prohibition decided the extent of the Department's regulatory "jurisdiction" in this controversy. On what other ground, then, could the decision have rested? None other than that Falls Chase had not shown it lacked adequate chapter 120 remedies for any "jurisdictional" error the Department may have committed, or threatened to commit, by the free-form action complained of. If the Court's action is not explained on that ground, there is no other explanation except judicial caprice, which I am unwilling to assume.
IV.
Concerning Falls Chase's allegations in circuit court that APA remedies had been refused or were for specific reasons inadequate.
Falls Chase and the developers rightly interpreted this Court's summary denial of prohibition on September 6, 1979, as requiring them to exhaust administrative remedies or to show their inadequacy in fact. Thus their injunction complaint filed September 11 alleged that chapter 120 remedies *810 were unavailable because the Environmental Regulatory Commission, overseer of the Department, had on August 23, 1979, "refused to consider whether the Department had legal jurisdiction under the above-alleged facts, and its chairman suggested relief could best be found in the courts"; and that APA remedies were inadequate because in September 1979 "[d]ue to the extreme time constraints of the Plaintiff District for the purposes of construction schedules and payment to contractors the administrative remedies available under Chapter 120 ... are clearly too little and too late."
Subject to its motion to dismiss for failure to exhaust APA remedies, the Department filed an answer denying those allegations. Those allegations were never proved and the record disproves them. These disputed factual issues are not mentioned in any order of the circuit court, nor in the judgment entered on the pleadings.[12] A judgment on the pleadings is, of course, inappropriate in a case bearing unresolved factual issues. E.g., Miller v. Eatmon, 177 So.2d 523 (Fla. 1st DCA 1965).
Concerning the complaint's allegation that by September 1979 "extreme time constraints" under the construction contract rendered "administrative remedies available under Chapter 120 ... clearly too little and too late," there was no evidentiary hearing in circuit court nor any findings of record concerning the developers' claim that they would have been financially devastated should they be required, in September 1979, to seek administrative remedies.[13] But vastly more important than that, there was no allegation, no proof, no finding, nor even any argument of record explaining and excusing the failure of Falls Chase, Sunshine and Elba to ask the Department for a decisive (and judicially reviewable) declaratory statement on the issue six months earlier, in March 1979, when the issue arose in free-form proceedings. That was three months before Falls Chase even signed the construction contract that created the "extreme time constraints" in September. Thus, insofar as they were relied on to show the inadequacy of chapter 120 remedies, any "extreme time constraints" in September when the complaint was filed, or in November when the judgment was entered, were without significance. One cannot by neglect and delay dissipate an ordinary APA remedy and then complain of its loss as the basis for claiming an extraordinary judicial one. Willis, 344 So.2d at 592-93; Holman v. Florida Parole and Probation Commission, 407 So.2d 638 (Fla. 1st DCA 1981). "No rule is better settled," it is said, "than that equity aids the vigilant and not the indolent." Lanigan v. Lanigan, 78 So.2d 92, 96 (Fla. 1955).
Concerning the developers' allegation that no APA remedy was available because the Environmental Regulatory Commission "refused" to decide the extent of the Department's jurisdiction, the proof amounts to this: On May 22, 1979, Clean Water, Inc., and Terri Saltiel, citizens interested in preserving Leon County's lakes and other waters, petitioned the Department for an opportunity to oppose, in a section 120.57 hearing, Falls Chase's dredge-and-fill plans in the Lake Lafayette basin. The Department denied the petition on technical grounds and the petitioners appealed to the Environmental Regulation Commission. On August 23, the Commission granted the motion jointly filed by the Department and Falls Chase to dismiss the appeal as untimely.[14]*811 In dismissing the appeal the Commission said it had no jurisdiction to decide other questions raised, such as the extent of the Department's regulatory power in Lake Lafayette:
Since the Appellants have suffered a dismissal of their appeal on the grounds that the Notice of Appeal was not timely filed, this Commission is without further jurisdiction and has no right to render any judgment either in favor of or against the Appellants. Lester v. State (1896), 37 Fla. 382, 20 So. 232; Seaboard A.L.R. Co. v. Ford, 92 So.2d 160 (Fla. 1955); Lightsee v. First National Bank, 132 So.2d 776 (Fla. 2d DCA 1961).
Therefore, this Commission shall make no further inquiry or determination of other questions or motions presented by the parties to this appeal or by Sunshine Land Development, Inc. and Elba, Inc.
The Commission was unquestionably correct in refusing to rule on other questions when dismissing the appeal for lack of jurisdiction. The Falls Chase allegation that the Commission "refused" to supply it an appropriate APA remedy on that occasion must be regarded as frivolous.
Though no mention was made of it in any pleading, Falls Chase put another APA order in the circuit court file, evidently as further proof that it had been "refused" an appropriate APA remedy. That was the September 24, 1979, order of hearing officer Tremor of the Division of Administrative Hearings, granting Falls Chase's motion to dismiss another APA appeal by Clean Water, Inc. and Saltiel, from the Department's "proposed order" stating its intention to issue the water system permit. The hearing officer considered that not a final order, and not appealable. Granting Falls Chase's motion to dismiss on that procedural ground, the hearing officer did not reach other grounds, including a fifth ground added late in August that "dredge and fill permitting jurisdiction cannot be determined by an ordinary high water line test instead of the vegetative indicators/vegetative index adopted by the Florida Legislator and the Environmental Regulation Commission."
Thus attempting to demonstrate that it had been "refused" chapter 120 proceedings to determine the applicability or inapplicability of chapter 403 to its filling at Upper Lake Lafayette, Falls Chase placed two administrative orders in the record of the circuit court proceedings: one was an order dismissing, on Falls Chase's motion, an untimely administrative appeal by third parties from a Department order favorable to Falls Chase; the other was an order dismissing, again on Falls Chase's motion, yet another third party administrative appeal from a nonappealable "proposed order" of the Department that was, again, favorable to Falls Chase. It is ludicrous to characterize this action as repeatedly refusing Falls Chase appropriate chapter 120 remedies on the substantive issue Falls Chase took to circuit court.
The utter absence of justification did not deter Falls Chase, either in the circuit court or here, from bitterly complaining, in terms selected for incitement value, of a Departmental strategy to refuse or evade chapter 120 proceedings for a decisive Department order that would be subject to immediate review.
In circuit court the arguments of Falls Chase and the developers hammered at "the incredible delay the Department has already inflicted upon Plaintiffs" (memorandum filed November 13, 1979, pp. 3-4). The point was made unrelentingly: "In the cases in which the jurisdictional issue has *812 been raised, DER has been successful in obtaining rulings which avoid the issue," (Id. at 6), "placing Plaintiffs in an eight month run-around" (Id. at 6); "Plaintiff, Falls Chase, has repeatedly attempted to find someone to hear its jurisdictional question"; "What [the Department] suggests here is that a legal decision by a court be put off until the total destruction of the Plaintiffs and Plaintiffs' legal problems thereby disappear" (Id. at 9); "What DER has attempted to do is forestall any decision on its unlawful creation of dredge and fill jurisdictional limits until the Plaintiffs literally die" (Id. at 10); "the Department's acts in changing its position as to what its staff `thinks' its jurisdiction is, and indecision, ... has forced Plaintiffs to the brink" (Id. at 14).
These denunciations continued in appellees' brief filed in this Court April 5, 1980: "Thus, for four months DER did not have even a belief of what its regulatory jurisdiction was, holding all development in question for a third of a year while it attempted to make up its collective mind" (p. 5); "the DER wanted [Fallschase] to wait several more months so it could set the so-called jurisdictional line... ." (p. 11); "It is further alleged that the Environmental Regulatory Commission ... specifically refused to consider whether the Department had legal jurisdiction in an action in which that question was one of the issues raised" (p. 13); "What DER has attempted to do is forestall any decision on its unlawful creation of dredge and fill jurisdictional limits until the Appellees literally die" (p. 22); "It is identical to the situation with which Joseph K. was faced in his search for justice in Kafka's unfinished novel, The Trial" (p. 22).
All this from litigants to whom section 120.565 and the Department's rules offered a clearly effective remedy from March 1979 onward, requiring nothing but a request from Falls Chase. "To date," the Department's motion to dismiss rightly told the circuit judge on October 2, 1979, "no such petition or request for declaratory statement ... has been received... ." Obtaining a declaratory statement, like obtaining other APA remedies, is "simplicity itself." One "asks the agency for it." Willis, 344 So.2d at 592. Since Falls Chase and the developers strategically did not "ask," they of course did not receive.
V.
Commending the exhaustion principle, once again, to the
judiciary.
Five years have passed since Willis surveyed the disciplines imposed by chapter 120 on agency decisionmaking and called for "judicial freshening of the doctrines of primary jurisdiction and exhaustion of remedies, and greater judicial deference to the legislative scheme."[15] Since Willis this Court and others, and indeed this Department and other agencies, have fulfilled the implicit promise of Willis that chapter 120 disciplines would be honored by the agencies or else enforced by the district courts of appeal on linear appeals through section 120.68. It was clear enough, in 1977, that agencies would be held to exacting standards in formulating their declaratory statements and in other actions determining the substantial interests of affected persons. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). Numerous decisions since then have fulfilled the promise on which Willis predicated "judicial freshening" of the exhaustion principle.
That being so, there is no basis in Florida's unique APA experience for a skeptical assumption that the agency's free-form arguments show that chapter 120 processes would be "futile," nor is there cause for a judicial attitude "so skeptical of the agency's purposes or capabilities that judicial intervention becomes necessary in order to secure the basic rights of the affected parties." Ante, at 797 n. 24. There is no longer room for judicial skepticism that "[t]he agency will not change its collective `mind' short of ruling by this court" or some other. Rice v. Department of Health and Rehabilitative *813 Services, 386 So.2d 844, 854 (Fla. 1st DCA 1980) (dissenting opinion). That agencies do change their minds under chapter 120 disciplines is evident. See, e.g., that salutary event in the Rice matter, Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Fund, 400 So.2d 66, 73, n. 15 (Fla. 1st DCA 1981). See also Communities Financial Corp. v. Florida Department of Environmental Regulation, 416 So.2d at 815, where this very Department "changed its mind" in chapter 120 proceedings and found its own proof inadequate to show that "the dredging and filling activities of CFC in constructing the drainage system took place in waters of the state subject to DER's jurisdiction." The opportunity to "change the agency's mind" is one of the highest achievements of chapter 120 disciplines, and the courts have repeatedly required agencies to afford that opportunity. We did so most recently in International Medical Centers, H.M.O. v. Department of Health and Rehabilitative Services, 417 So.2d 734 (Fla. 1st DCA 1982).
If judicial skepticism about the efficacy of chapter 120 processes is not at the root of the majority's decision to jettison the exhaustion requirement, then the only possible purpose, in practical terms, must be to avoid through judicial intervention the expenditure of litigants' time and money in administrative proceedings. Thus the majority cites Falls Chase's "injury from the pursuit of administrative remedy in the instant case," consisting of "time and expense" and "the inability of appellees to make use of their property due to the agency's assertion of regulatory jurisdiction... ." Ante at 796.
The first point to be made in commending the exhaustion requirement, therefore, is that the alternative of circuit court intervention, followed by an appeal to determine its propriety by the majority's standards, contradicts the majority's stated concern for economy and swift judicial decisions.
A. Preemptive circuit court litigation will cost, not save, time and money, and that expenditure may well be futile.
Part II of this opinion suggested that conventional chapter 120 remedies, if resorted to by Falls Chase, would have resolved this controversy fairly and finally by Labor Day 1979. Because Falls Chase resorted to this injunction suit instead, and the circuit court entertained it, the question of Falls Chase's entitlement to dredge and fill below the ordinary high water mark in Upper Lake Lafayette became freighted with the exhaustion question to which these opinions, filed in July 1982, are principally addressed.
Even though the circuit court's judgment rendered November 26, 1979, enjoined the Department from further attempts to regulate dredge and fill above the indexed vegetation line at Upper Lake Lafayette, Falls Chase did not assume that it could then safely proceed with the intended construction. The Department's appeal on November 28 effected an automatic stay of the injunction pursuant to Fla.R.App.P. Rule 9.310, so Falls Chase applied to the circuit court to vacate the stay, and the court did so. Even then Falls Chase's doubts were not assuaged. As late as May 17, 1982, counsel for Falls Chase and the other appellees wrote to the Court, with copies to opposing counsel, calling attention to the "acute financial distress" his clients were suffering because of the time required for this Court's decision and "the continuing cloud over the use of their property... ."
The cause of added expense, delay, and uncertainty in this case has been the length of time this Court has required to formulate and debate, through these opinions, this radical departure from Florida precedent and practice under the APA. In future cases the cause of added expense, delay, and uncertainty will be the majority's test for authorizing, or not, preemptive circuit court litigation. Because the majority places a premium on "the degree of apparent clarity or doubt about administrative jurisdiction" and on whether the agency's free-form claims are "colorable" or not, ante at 796, *814 every appeal from a circuit court preemptive injunction will require a district court's subjective assessment of a circuit judge's subjective assessment of "the degree of apparent clarity or doubt" involved in the substantive question. While the parties wait, the appellate court will debate, not whether the agency was right or wrong, but whether the agency's free-form position was "colorable."
Presumably the appellate court will structure its decision as the majority has structured its: first decide the substantive question in the conventional way; then, if that decision is contrary to the agency's free-form position (which may or may not be identical to arguments advanced for the agency in the litigation), proceed to determine whether the agency's position was nevertheless "colorable"; if so, reverse the injunction and remit the parties to chapter 120 remedies now rendered moot by the court's declaration of the law independently of "colorable" considerations; if not, affirm the injunction. And if the court's conventional analysis of the substantive question upholds the agency's free-form position (or its appellate arguments), leave off considering "the degree of apparent clarity or doubt" in that correct position, reverse the injunction judgment, and require exhaustion of chapter 120 remedies. Or shall those remedies then be held, for obvious reasons, unnecessary? In that event APA processes are subverted as surely as when the agency's free-form position is found not "colorable."
These unruly and subjective judgments on "the degree of apparent clarity or doubt," with all their bizarre results, will range as widely as the personalities of Florida's ranks of circuit and appellate judges. How this uncertain process can be preferred over straight-forward and expeditious chapter 120 remedies, in the name of saving time and money, is beyond my comprehension.
But of course the district courts of appeal have it in their power to fulfill the majority's expectations of saving litigants time and money, and freeing up their interests, by preemptive circuit court litigation; the district courts need only abdicate entirely their role as agency overseers under section 120.68, and uncritically affirm, as summarily as possible, every circuit court injunction.
B. The majority's exhaustion test, modeled after inappropriate federal law, preempts the district courts of appeal and nullifies section 120.68 appellate remedies.
The majority's exhaustion test contains undeniable and perhaps irresistible pressures upon the district courts of appeal, whose stewardship of section 120.68 remedies has created healthy initiatives in the executive branch, to abdicate their statutory role. If the controlling issue on these appeals is now to be whether a circuit judge rightly deemed the agency's free-form position to be not "colorably" correct under the law, the drift toward discretionary circuit court preemption is well established. The district courts will not long act in the charade of finding circuit courts right in statutory interpretation but wrong on what is "colorable," and so wrong in preempting APA processes that as a result of litigation have become both stale and moot.
Sensing this, parties who strategically prefer circuit court litigation to chapter 120 processes will have no difficulty in framing their attacks on agency free-form action, addressed to the merits of questions properly before the agency, in "jurisdictional" terms.
For example, the cases in the following list were either decided by a district court of appeal on section 120.68 appeal, after agency action, or were required by the district court to be submitted to chapter 120 agency action instead of litigated in circuit court. Consider how readily the issues could have been pleaded in circuit court in a manner exploiting the majority's license for circuit court preemption:
ABC Liquors, Inc. v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 397 So.2d 696 (Fla. 1st DCA 1981). Hypothetical circuit court allegation: Because section 565.02 *815 authorizes an additional tax only if the licensee has "more than three permanent separate locations serving alcoholic beverages for consumption on the licensed premises," the Department threatens to act in a way not colorably within its jurisdiction by assessing the tax on four locations in the same room.
Anheuser-Busch, Inc. v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 393 So.2d 1177 (Fla. 1st DCA 1981). Hypothetical circuit court allegation: Because section 561.42(1) prohibits only "the giving of a gift, loan of money or property or the giving of a rebate," the Department threatens to act in a way not colorably within its jurisdiction by charging that the brewer illegally bought beer for bar customers.
School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977). Hypothetical circuit court allegation: Because a statute granted her tenure, the Board threatened to act in a way not colorably within its jurisdiction by abolishing Mitchell's position.
Harris Corp. v. Department of Revenue, 409 So.2d 91 (Fla. 1st DCA 1982). Hypothetical circuit court allegation: Despite the clear statutory limitations period on sales tax assessments, the Department threatens to act in a way not colorably within its jurisdiction by assessing taxes barred by the statute.
State of Florida, Department of Citrus v. Office of the Comptroller and Department of Banking and Finance, 416 So.2d 820 (Fla. 2d DCA 1982). Hypothetical circuit court allegation: Despite a clear statutory exemption, the Department of Banking and Finance threatens to act in a way not colorably within its jurisdiction by withdrawing two percent of the Department of Citrus' interest income for use as general revenue.
School Board of Nassau County v. Arline, 408 So.2d 706 (Fla. 1st DCA 1982). Hypothetical circuit court allegation: Despite a clear contractual provision excusing a teacher's failure to perform her contract "by reason of personal illness," the Board threatens to act in a way not colorably within its jurisdiction by threatening to dismiss her because she has tuberculosis. Allis-Chalmers Credit Corp. v. State Department of Revenue, 408 So.2d 703 (Fla. 1st DCA 1982). Hypothetical circuit court allegation: Despite the clear statutory application to "Florida sales," the Department threatens to act in a way not colorably within its jurisdiction by assessing an income tax on transactions that took place in Atlanta.
General Development Corp. v. Division of State Planning, Department of Administration, 353 So.2d 1199 (Fla. 1st DCA 1977). Hypothetical circuit court allegation: Despite a clear exemption under the statute, recognized previously by the Division, the Division threatens to act in a way not colorably within its jurisdiction by threatening regulation of plaintiff's exempt land as a development of regional impact.
Metropolitan Dade County v. Department of Commerce, 365 So.2d 432 (Fla. 3d DCA 1978). Hypothetical circuit court allegation: Despite clear statutory exclusions, the Department threatens to act in a way not colorably within its jurisdiction by assessing the County for unemployment compensation contributions not required by the statute.
The model complaint seeking circuit court intervention will of course allege, further, that "the facts," meaning the facts complainant considers the operative facts, "are essentially undisputed." Majority opinion ante at 789. Thus, if this case is any example, the circuit court is to be drawn into the merits of the dispute impelled, perhaps, by such groundless and now inoperative allegations as Falls Chase made concerning the Department's refusal of administrative remedies despite a motion to dismiss for complainant's failure to exhaust available administrative remedies, and despite any doubts the judge may initially express concerning intervention (a Falls Chase memorandum of record lamented that Judge Miner "seemed persuaded that a complicated question existed").
*816 It is unclear when the circuit court in this case announced denial of the Department's motion to dismiss filed October 2, 1979, since the only written order on that subject is the final judgment itself, filed November 26, 1979, reciting that the motion "was previously denied in open court." In the intervening period numerous presentations were received by the court on the merits: the Department's answer was filed October 5, 1979, accompanied by a letter from Mr. Cole, the Department's deputy counsel, saying the answer was filed "even though it is not required at this time since a Motion to Dismiss is presently pending," because of and "[i]n order to comply with Judge Miner's request to expedite the case"; on October 11, Falls Chase moved to amend its complaint to incorporate additional factual material, and the court granted that amendment on November 13, 1979, "10/30/79 nunc pro tunc"; the court received several other memoranda arguments; the court conducted a hearing on Falls Chase's application for preliminary injunction; and the court conducted a final hearing producing the final judgment which recited that "counsel for the parties to this dispute agree that what the Court believes to be the threshold issue framed in the pleadings is now ripe for determination."
In other words, first before and then after orally denying the Department's motion to dismiss at some unidentified time, the circuit court explored the merits of the dispute repeatedly and in depth, gathering additional facts in the process, pressing the Department's counsel to expedite the case by pleading to the complaint while the motion to dismiss was yet pending, and finally announcing that counsel agreed that "the threshold issue... is now ripe for determination." At the time the "judgment on the pleadings" was entered, these loose ends still appeared in the pleadings:
The complaint as amended alleged in paragraph 3 that appellees Sunshine and Elba own a majority of the land in the District. The Department answered that it was without knowledge of that, so effectively denied that allegation. Fla.R.Civ.P. 1.110(c). The "judgment on the pleadings" found as a fact, as has this Court, that Sunshine and Elba own a majority of the land in the District.
The complaint alleged in paragraph 6(a) that Upper Lake Lafayette is and has been for 20 years separated from Lake Lafayette by dams. The Department's answer denied this allegation insofar as it implied that Upper Lake Lafayette "is not a lake and is not a part of Lake Lafayette." Since the complaint contained no allegation that Upper Lake Lafayette is not navigable, the latent issue of sovereignty lands was never explored in the circuit court's two-month process of warming to the merits of the case. The November 26 final judgment recites:
Neither party has asserted that the lake is navigable and subject to regulation under Chapter 253, Florida Statutes, and the state's sovereignty powers as Trustees for submerged lands of navigable water bodies.
This finding becomes, in the majority opinion, ante at 789,
It is stipulated by the parties that there are no sovereignty lands involved in this dispute.
Paragraph 6(c) of the complaint alleged "All of the work being done by Plaintiff District upon private property, including Plaintiff corporations' land, is on `uplands' according to rules of the Defendant Department." This allegation the Department denied. Yet the circuit court's "judgment on the pleadings" accepted the allegation as true, as does this Court. [Notice how agencies are moved to adversariness when they are required to state their positions through lawyers in circuit court rather than by declaratory statements or orders, signed by agency heads, in chapter 120 proceedings. The Department had freely conceded in free-form proceedings with Falls Chase, during the previous winter, that there was no indexed vegetation where Falls Chase sought to fill Upper Lake Lafayette. In circuit court, of course, the Department was entitled to put Falls Chase to proof.]
*817 Thus it is seen how the agency, asserting all the while that no basis for preempting the administrative process has been shown, may incrementally be required to state in circuit court the factual basis for its free-form position or else be held bound in a paper trial by unpleaded or unproved factual assertions of a party seeking circuit court preemption of chapter 120 processes.
This kind of thing is inevitable, I submit, when the exhaustion question is no longer whether adequate chapter 120 remedies are available, and when the circuit courts are asked instead to form a subjective impression of "the degree of apparent clarity or doubt" about the extent of the agency's regulatory power. And after such a serial trial as this, ostensibly conducted "on the pleadings" over a two-month period, it cannot be supposed that the district courts of appeal will seriously regard the futile role the majority opinion reserves for them, to reverse circuit court injunctions where the agency's free-form position is thought to be "colorable," and to require exhaustion of chapter 120 remedies, even if the circuit court's judgment is deemed substantially correct as a matter of statutory construction. Thus, circuit court discretion in assessing "the degree of apparent clarity or doubt" inevitably reigns supreme, and Professor Davis' grim assessment of federal law applies as well to Florida's heretofore honored and still unimpeached exhaustion principle. K. Davis, Administrative Law Treatise § 20.11 at 279-80 (1982 Supp.):
Since 1975 the [federal] law of exhaustion has become even more disorderly than it previously was. The lack of predictability is strong enough to raise the question whether the requirement is governed by discretion rather than by law.
In this milieu the circuit court displaces the district court of appeal in effective control of agency action, and since the action to be reviewed is free-form only, by a court having no direct access to chapter 120 remedial processes, there is no place for the delicate touch to which the district courts have become accustomed, promoting agency responsibility and sensitivity through McDonald devices as they have evolved these past five years orders for rulemaking, for expository orders by agencies, for creating a record foundation. There is, instead, only the extraordinary and blunt-edged writ of injunction to desist.
Now it is clear why, for two distinct reasons, the indigestable federal exhaustion law, whether or not warmed over by national textbook writers who know no other source of law, should not be swallowed by Florida courts. First, as indicated ante n. 6, federal law is handicapped by the absence of a reliable declaratory statement remedy, available as of right in section 120.565 to resolve questions of statutory applicability (or, as the majority prefers, agency "jurisdiction") long before anyone is damaged or delayed by free-form action. And second, federal law disperses judicial responsibility to review administrative action willy-nilly, on a statute by statute basis, to various United States district courts and to the courts of appeal. Thus 5 U.S.C. § 702 ("Right of review") provides:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof... .
And 5 U.S.C. § 703 ("Forum and venue of proceeding") provides:
The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction.
The federal condition, as regards choice of forum for judicial review, is therefore much like Florida's condition before 1974, when the legislature repealed or replaced "the baffling array of disparate statutes" providing judicial review "by various means in various courts," and replaced that disharmony with uniform and comprehensive review in the district courts of appeal. Willis, *818 344 So.2d at 587-88. Compare Currie and Goodman, "Judicial Review of Federal Administrative Action: Quest for the Optimum Forum," 75 Colum.L.Rev. 1, 3 (1975):
The aim of this Article [88 pages] is to explore the considerations that determine which federal administrative actions are best reviewed by the district courts, which by the courts of appeals, and which by separate courts of administrative review.
Compare also note, "Jurisdiction to Review Federal Administrative Action: District Court or Court of Appeals," 88 Harv.L.Rev. 980 (1975):
Sometimes such review can be obtained initially in a court of appeals and in other cases in a district court. Uncertainty as to which forum is proper may cause a litigant to seek review in the "wrong" court. This Note explores... .
Small wonder, then, that there are few incentives for federal courts to discipline themselves through a meaningful exhaustion requirement: federal litigants do not have access as of right to declaratory statements and other "varied and abundant remedies for agency error," Willis, 344 So.2d at 590, contained in chapter 120; and because it makes little difference in the overall scheme of federal law where agency action is reviewed, it makes even less difference when and how it is reviewed. Contrast section 120.68. If preserving Florida's exhaustion rule were not compelled by reason, preserving it would be compelled by pride.
C. The majority's decision encouraging preemptive circuit court litigation also encourages forum shopping among the circuits.
This preemptive litigation occurred in Leon County because Upper Lake Lafayette is there and the Department is head-quartered there. But given a plaintiff's choice from among appropriate venues and the "sword wielder" doctrine[16] that allows local circuit litigation by one whose locally based interests are considered imminently threatened from Tallahassee, the shopping list of fora for preemptive circuit court litigation against an agency is lengthened to include any of Florida's 20 circuits. Correspondingly the range of discretion inevitably invoked by the question, "degree of apparent clarity or doubt," is as broad as the discretion of any of Florida's 300 circuit judges.
Forum shopping is not a privilege reserved to those who like their chances better in one circuit court or another. Others having party status, which Saltiel and Clean Water, Inc., sought in this case, may in their own interests prefer conventional chapter 120 processes. So when parties of different persuasions are involved, there follows an unseemly race and wasteful litigation to decide which foothold has been established first or best. Again the federal system is a striking and distressing model for the litigation fomented by the majority. See McGarity, "Multi-party Forum Shopping for Appellate Review of Administrative Action," 129 U.Pa.L.Rev., 302, 305 (1980) (describing "wild and often bizarre races to the courthouse.")
The supreme goal of the Administrative Procedure Act of 1974 is increased initiative and self-discipline within the executive branch. All its remedies press toward that goal, as McDonald and its progeny make clear. When as here those remedies are preempted that goal is the first and most important casualty. Where chapter 120 promotes agency responsibility, changing the agency head's mind if that is indicated, we have seen that collateral litigation values instead the polarized position, the fixed stance. For litigation to justify itself on the dour assumption, expressed or implied, that the agency "will not change its mind" in APA proceedings, describes the inevitable condition of litigants, not the experience of agencies under chapter 120. For collateral litigation to justify itself on the pretense of saving time and money, when litigation *819 gulps both more time and more money, to vastly more uncertain ends, is judicial self-deception.
The case may one day come when the judiciary shall have cause to doubt the efficacy of chapter 120 remedies and the exhaustion principle. Florida's firm commitment to the efficacy of those remedies is, in a sense, a new idea, one that thus far has yielded a generous harvest. In time it too may be required, in turn, to give way. As poet and critic W.D. Snodgrass wrote,[17]
That is understandable. We have done much magnificient theorizing about the world; the world remains a mystery. Man may become extinct, tyranny may prevail, your business fail, your wife leave you, tomorrow. There is a strong possibility that no idea works all the time. All the ideas carry guarantees, of course; the only trouble is that nobody knows where you go to get your money, or your life, back. This terrifying possibility that no idea always works is suggested every time someone offers us a new fact or a new idea.
Conceding the uncertainties of the future, I am firmly of the opinion that this case offers us no new fact or new idea worthy of supplanting the exhaustion principle. I would reverse the circuit court, and I therefore respectfully dissent.
ON PETITION FOR REHEARING EN BANC
PER CURIAM.
The Court considered this case en banc, Fla.R.App.P. 9.331, upon a majority vote that en banc consideration is necessary to maintain uniformity in the decisions of the Court respecting the requirement of exhaustion of administrative remedies. Upon consideration of the matter, the Court was evenly divided. Judges Mills, Booth, L.G. Smith, Shaw, Joanos and Thompson voted in favor of affirming the circuit court. Chief Judge Robert Smith and Judges McCord, Ervin, Shivers, Wentworth and Wigginton voted in favor of reversing. The effect of the vote is that the panel decision stands. In Re Rule 9.331, Determination of Causes by a District Court of Appeal En Banc, Florida Rules of Appellate Procedure, 416 So.2d 1127 (Fla. 1982).
MILLS, Judge, specially concurring:
I wish to state clearly my position in this case. I am of the opinion there is no conflict between this case and the Willis case, 344 So.2d 580 (Fla. 1st DCA 1977); therefore, en banc consideration was unnecessary.
Upon en banc consideration, I voted not only to affirm the trial court, but I voted to adopt the panel's decision and its reasoning in affirming the trial court.
ON MOTIONS FOR REHEARING AND TO STRIKE
ROBERT P. SMITH, Jr., Chief Judge, concurring and dissenting.
I dissent from the order denying the Department's motion for rehearing. I concur in the order granting Falls Chase's motion to strike the rehearing motion of Terri Saltiel, whom we earlier recognized as an intervenor below and therefore a party here. In fact Saltiel is not a party; we are told that the circuit court orally denied Saltiel's motion to intervene. We had assumed from the silent record that Saltiel's motion had been granted on the strength of her allegations that she owns riparian land on Lake Lafayette, uses the lake for recreation and education, opposes the "destruction and elimination" of the lake by dredge and fill, and was previously accorded party status in chapter 120 proceedings affecting this controversy.
It is Saltiel's own motion for rehearing, filed by her exercising the party status we erroneously extended to her, that tells us she is not a party. By that motion, an unsophisticated document she evidently prepared *820 without a lawyer, Saltiel contests the panel majority's threshold statement, "The facts are essentially undisputed"; she tenders to us a map of Lake Lafayette, which this record lacks; and she offers color aerial photographs "clearly showing," she says, "Falls Chase's red clay fill in the blue waters of Lake Lafayette." The motion further states:
If Clean Water, Inc. and Terri Saltiel had been permitted to intervene, they would have submitted pleadings (since Judge Miner would not allow any testimony to be presented in his court and no evidentiary hearing was ever held in his court) strongly conflicting with Falls Chase, et al. The facts in this case are very much in dispute.
Since we have no reason to doubt what Saltiel tells us about the fate of her intervention motion below, then of course Falls Chase is perfectly correct: nonparty Saltiel is not entitled to file the rehearing motion by which she tells us these things. Fla.R. App.P. 9.330. So I join in the order striking Saltiel's motion for rehearing and the exhibits tendered with it.
But not without suggesting that the Saltiel episode, involving only a minor player in the piece, illumines the larger themes of this case as surely as one of Shakespeare's little plays within his plays. Phantomlike, Saltiel disappears from the circuit court without a trace, reappears briefly in our consciousness here, and finally is exorcised.
So the judicial branch, taking this matter over from the executive branch because we do not trust its processes to decide (subject to judicial review) the extent of its statutory powers, begins and ends by efficiently silencing one who had undoubted standing to be heard in the chapter 120 proceedings thereby intercepted. We helped secure Saltiel's right to be heard administratively in Clean Water, Inc. and Saltiel v. State Department of Environmental Regulation, 402 So.2d 456 (Fla. 1st DCA 1981). That troubling circumstance seems to me entirely at home in a decision that sacrifices values important to the judicial branch while justifying encroachment upon lawful decision-making powers of the executive.
The circuit court entered a judgment on the pleadings consisting of a complaint that alleged and an answer that denied that Lake Lafayette is separated from Upper Lake Lafayette and that "[t]he land is now dry, and has been used for years for farming and cattle grazing." If those factual issues were significant, then of course a judgment on the pleadings was inappropriate.
Falls Chase thought those issues were important, else Falls Chase would not have made those allegations. The Department thought those issues were important, else the Department would not have denied the allegations. The circuit judge thought and my colleagues think those issues are important, else they would not have made so much over Falls Chase's version of the facts, when entering and affirming this "judgment on the pleadings."
The Department thinks the issues are important because the Department regards "Upper Lake Lafayette" as part of Lake Lafayette, so that, though the upper reaches are at this moment wholly dry, they are inseparably a part of a lake that brims with water. As for how recently the upper reaches were also flooded, the Department thinks that issue is important because a fairly recent flood condition in "Upper Lake Lafayette" would imply a subsisting but transiently dry lake, soon to flood again in response to geologic changes. Thus the Department thinks its Rule 17-4.02 should not be woodenly construed to permit destruction of the lake basin at this moment simply because both water and indexed vegetation are temporarily absent.
For converse reasons the circuit judge thought and my colleagues think those issues are important too. For to them the question is not one of naked statutory or rule construction, bereft of facts (indeed, what question is ever bereft of facts?), but is rather whether the Department's position is or is not plausible or "colorable." So to them the Department's position becomes less "colorable," and a larger target for judicial intervention, as the true "Upper *821 Lake Lafayette" recedes into history, never likely to return again.
So in his judgment on the pleadings the circuit judge pointedly referred to "Upper Lake Lafayette which is alleged to have been high and dry and used for farming and cattle-raising for years." This sanitized ("alleged") description of "Upper Lake Lafayette" becomes, in the majority opinion, "essentially undisputed" facts. The threshold paragraph of the majority opinion, the foundation for all to come, reads in relevant part:
The facts are essentially undisputed.... The area sought to be regulated by DER has been dry for a number of years. Past uses include timbering, farming and grazing of cattle.
These "essentially undisputed" facts were of course disputed by the Department's answer.
It may be suggested that the Department otherwise conceded these asserted facts. It did not. The Department's brief filed in this Court simply says, "Upper Lake Lafayette is a lake which has gone partially and temporarily dry, a condition which has occurred in all the major lakes in the Tallahassee area." In legal memoranda filed in the trial court, the Department did mention farming and cattle:
Because it has gone dry and because the bottom lands have been grazed upon by cattle and sod-farmed in recent years, the vegetative indices ... no longer accurately define the actual landward extent of Lake Lafayette. (Memorandum filed October 5, 1979, p. 4.)
If the lake is only "temporarily dry," and if the vegetative indices "no longer accurately define the actual landward extent" of the lake because "the bottom lands have been grazed upon by cattle and sod-farmed in recent years," then we have a situation entirely different, I submit, than that portrayed by my colleagues' recital of the "essentially undisputed" facts.
Then there is reference to farming and cattle in a written report by Falls Chase's engineer to Falls Chase's lawyer; that report was attached to a letter from Falls Chase's lawyer to the Department's Secretary; that letter was in turn attached to the parties' "STIPULATION RESPECTING AGENCY INVESTIGATIONS PRELIMINARY TO AGENCY ACTION," which in the Spring of 1979 the parties signed in free-form dealings preparing for final agency action that, thanks to judicial intervention, never occurred. Falls Chase prevailed on the circuit judge, just before he entered this judgment on the pleadings, to declare the Stipulation "attached to the complaint and made a part of it." But no one has yet explained how this maneuver made the engineer's statement, in an attachment to an attachment to an attachment to an attachment to the complaint, an "essentially undisputed" fact for purposes of entering this judgment on the pleadings, or for purposes of sustaining it.
My colleagues' purpose being to suggest that Upper Lake Lafayette has been gone for so many "number of years" that there's no reason ever to expect it back, their opinion puts "timbering" at the head of the list of "past uses" of this dry land, and with great persuasive effect. "Timbering" of course implies timber which, I suppose, implies a stand of mature, marketable trees requiring many years of growth. But even the circuit judge did not mention "alleged" timbering, for it was not alleged. As far as I can tell, the record contains no reference anywhere, not even in the attachment to the attachment to the attachment to the complaint, to "timbering." As far as I can tell, that is a phantom forest.
If Saltiel, the phantom intervenor, should marvel that we punctiliously strike her photographs "clearly showing Falls Chase's red clay fill in the blue waters of Lake Lafayette," even as we solemnly describe that fill as placed on a dry ancient lakebed, where cattle graze "high and dry" and tall timbers are felled, I think her amazement could be excused. And as my interest is less in saving Lake Lafayette than in preserving a principle of judicial restraint that is more vulnerable, as it turns out, than any lake, I trust I may be excused for thinking this method of adjudication strange and *822 unworthy, no adequate substitute for chapter 120 processes.
I think these departures from conventional adjudication are systemic to the judicial processes recommended by my colleagues to replace chapter 120 processes when the extent of an agency's regulatory power is called into question. This sort of thing is all too likely to happen, to the most conscientious judge, when a court is asked to declare an agency's position "not colorable" and to do so "on the pleadings," as my colleagues recommend (text at fn. 19). Both the circuit judge and my colleagues wanted two inconsistent things: to avoid factual issues, and to know the facts about Lake Lafayette.
By excluding Saltiel and entering judgment on the pleadings, the circuit judge avoided, and Saltiel would say evaded, factual issues. But determining a matter on the pleadings does not usually produce the facts necessary to show that an agency's position is not at all plausible or, as my colleagues say, "not colorable." So the circuit judge was importuned to scavenge "alleged" facts from third-generation hearsay attachments to the "STIPULATION RESPECTING AGENCY INVESTIGATIONS PRELIMINARY TO AGENCY ACTION" (putting agencies on notice of how the judiciary will make use of these wholesome preliminary stipulations), and my colleagues raise those allegations to the level of "essentially undisputed" facts. Then they add "timbering" for good measure.
I think the circuit judge and my colleagues are victim to pressures that are innate in the judicial process proposed to replace chapter 120 processes pressures that conventional adjudication ordinarily protects us from.
As jurisprudential method, what is offered suffers by comparison with orderly chapter 120 processes. Sound judicial values, as well as the integrity of the executive branch and the reputation of administrative processes, are among the undeserving casualties of this decision. All the more reason, I think, for adhering to the settled principle that
administrative remedies must be exhausted to assure that the responsible agency "has had a full opportunity to reach a sensitive, mature, and considered decision upon a complete record appropriate to the issue."
Key Haven Associated Enterprises, Inc. v. Board of Trustees of Internal Improvement Trust Fund, 427 So.2d 153, 158 (Fla. 1982), quoting with approval Key Haven, 400 So.2d 66, 69 (Fla. 1st DCA 1981).
NOTES
[1] Falls Chase Special Taxing District, created by Leon County Ordinance No. 75-6, enacted February, 1975, as a public body pursuant to Section 1.01(9), Florida Statutes. Other appellees are Sunshine Land Development, Inc. and Elba, Inc., landowners within the district.
[2] Fla. Admin. Code Rule 17-4.02, as amended in 1975 and in effect at the time pertinent to this litigation, is set out in note 10 infra.
[3] Id.
[4] "Ordinary high water mark" is not one of the criteria for jurisdiction specified in Section 403.817, Florida Statutes, set out in text infra, or Fla. Admin. Code Rule 17-4.02, as it existed in 1979, set out in note 11 infra.
[5] Falls Chase, as appellee, asserted the agency's lack of jurisdiction in the related administrative appeal in Case No. 79-1462, but the appeal was dismissed on other grounds.
[6] The stipulation of May 15, 1979 also provided, inter alia, that DER would waive its right to seek fines or penalties from Falls Chase while the survey was pending. Falls Chase agreed to limit its filling activities to specified areas, to submit after-the-fact permit applications for areas found to be within DER jurisdiction and to remove fill and restore affected sites within 90 days of DER's denial of applications or exhaustion of available judicial review of DER action.
Appellees Sunshine and Elba, private land-owners, were not parties to this stipulation.
[7] This court's Case No. PP-106. The record reveals no consideration of the merits of the controversy.
[8] The extraordinary writ of prohibition is a prerogative writ, not a writ of right, State ex rel. Washburn v. Hutchins, 101 Fla. 773, 777, 135 So. 298, 299 (1931), and its denial without written opinion does not bar subsequent consideration of jurisdictional issues, see, e.g., Public Employees Relations Commission v. District School Board, 374 So.2d 1005, 1010 (Fla. 2d DCA 1979), cert. denied, 383 So.2d 1193 (Fla. 1980):
It would be pure speculation to attribute any particular reasoning to the majority of the two prior panels of this court which decided that PERC's suggestions for writ of prohibition should be denied. The point is that those denials could have rested on reasons other than the merits of the jurisdictional question posed in those prior proceedings. This being the case, we hold that this court's prior denials of PERC's suggestions for writ of prohibition do not foreclose us from considering the jurisdictional issue on this appeal. (emphasis supplied)
See State v. Howell, 89 N.M. 10, 546 P.2d 858, 859 (1976):
Does the Supreme Court's denial of a Writ of Prohibition preclude our review of the trial court's denial of defendant's motion to dismiss? Our answer is in the negative... . [A] denial of a Writ of Prohibition may be for a variety of reasons... . Thus, the denial of a Writ of Prohibition has no specific finality. (emphasis supplied)
[9] This unique statutory provision suggests a legislative intention not to permit capricious modifications by the agency affecting its dredge and fill regulatory power.
[10] Fla. Admin. Code Rule 17-4.02, as it existed at the time pertinent to this litigation, in pertinent part:
Submerged lands: "Those lands covered by the categories of water listed in Sec. 17-4.28(2), F.A.C., including those lands contiguous to said waters where any of the following vegetational species, or any combination of such species, constitute the dominant plant community." [Thereafter followed a listing of the 50 different species of aquatic life referred to above.]
Uplands: "Lands landward of submerged lands upon which the dominant plant community is composed of any vegetational species, or combination of species, other than those listed under the definition of `submerged lands' and `transitional zone of a submerged land,' herein."
Transitional zones of submerged lands: "[Areas of land] between a submerged land, as defined in Subsection (17) above and an upland as defined in Subsection (18) above. It shall consist of the waterward first fifty (50) feet landward of a line defined by the landward limit of a submerged land, or the waterward quarter (1/4) of the area between a submerged land and an upland, whichever is greater, and upon which any of the following vegetational species, or combination of such species, constitute the dominant plant community." [Thereafter followed a listing of some 22 species of plant life.]
[11] The trial court's order, in pertinent part, is as follows:
It should be noted that the Department does not content that the District is engaged in any development operation violative of Section 403.817, F.S., or Rule 17-4.02. This case is rendered unique, says the Department, by the fact that Upper Lake Lafayette was drained when a geological fault or sink hole developed. Such fact justifies, it argues, asserting the more landward ordinary high-water mark as its regulatory boundary. When questioned from whence it derived the authority to determine the landward extent of Upper Lake Lafayette for regulatory purposes by reference to an historical line used only up to now to delineate public from private ownership or to determine ownership disputes, counsel claimed for the Department some inherent power or incipient rule-making authority to be exercised in the public interest.
....
In mandating a method for determining regulatory jurisdiction "based upon ecological factors," the Legislature expressly recognized that fluctuations in water levels are attributable on occasion to geological features. Thus, if as the Department contends, this is a case of first impression, it is so only because this is the first time the Department has endeavored to assert regulatory jurisdiction landward to the ordinary high-water mark.
[12] Maloney, "The Ordinary High Water Mark: Attempts at Settling an Unsettled Boundary Line," 12 U.Wyoming L.Rev. 1, 1-2 (1978):
In most states and in the federal system the ordinary high water line (OHWL) is the boundary between privately-owned riparian uplands and publicly-owned sovereignty lands beneath non-tidal navigable waters.
Id. at p. 2 note 2:
It is important to understand at the outset the scope of applicability of the OHWL definition. It applies to non-tidal, navigable water bodies, generally inland from the coast. It does not apply to inland non-navigable, and therefore privately-owned water bodies, although it may have some relevance in that context where the extent of surface usage of riparian owners must be defined [citations omitted].
[13] State ex rel. Greenberg v. Florida State Board of Dentistry, 297 So.2d 628, 635-36 (Fla. 1st DCA 1974), cert. dismissed, 300 So.2d 900 (Fla. 1974).
[14] Gardinier, Inc. v. Florida Department of Pollution Control, 300 So.2d 75, 76 (Fla. 1st DCA 1974); Department of Health and Rehabilitative Services v. Florida Psychiatric Society, Inc., 382 So.2d 1280 (Fla. 1st DCA 1980); Context Development Co. v. Dade County, 374 So.2d 1143, 1149-50 (Fla. 3d DCA 1979):
However laudable or commendable the actions of the appellees, ... "[i]t is well settled that a statutory agency ... does not possess any inherent powers; such agency is limited to the powers granted, either expressly or by necessary implication, by the statutes ... creating them."
[15] The availability of this remedy is doubtful because of the underscored language in Fla. Admin. Code Rule 17-1.119:
A declaratory statement is a means for determining the rights of substantially affected persons when a controversy, or when doubt concerning the applicability of any statutory provision, rule or order, has arisen before any wrong has actually been committed. (emphasis supplied)
Of course, lack of an available, adequate remedy is, in itself, a recognized exception to the exhaustion requirement: Ortega v. Owens-Corning Fiberglas Corp., 409 So.2d 530 (Fla. 1st DCA 1982); Northeast Airlines, Inc. v. Weiss, 113 So.2d 884 (Fla. 3d DCA 1959), cert. denied, 116 So.2d 772 (Fla. 1959); Deseret Ranches of Florida, Inc. v. State, Department of Agriculture and Consumer Services, 392 So.2d 1016 (Fla. 1st DCA 1981); Department of Transportation v. Morehouse, 350 So.2d 529 (Fla. 3d DCA 1977); cert. denied, 358 So.2d 129 (Fla. 1978); General Care Corp. v. Forehand, 329 So.2d 49 (Fla. 1st DCA 1976).
[16] 2 Cooper, State Administrative Law 577 (1965):
Where judicial attack upon an agency order is predicated on the theory that the agency has no jurisdiction to act in the premises, and the court finds that the objection is well taken, failure to exhaust administrative remedies is commonly excused.
Skinner & Eddy Corp. v. United States, 249 U.S. 557, 562-63, 39 S.Ct. 375, 377, 63 L.Ed. 772 (1919):
The contention is that the commission [Interstate Commerce Commission] has exceeded its statutory powers; and that, hence the order is void. In such a case the courts have jurisdiction of suits to enjoin the enforcement of an order, even if the plaintiff has not attempted to secure redress in a proceeding before the commission. [citations omitted] The District Court properly assumed jurisdiction of this suit. (emphasis supplied)
Coca-Cola Co. v. Federal Trade Commission, 475 F.2d 299, 303 (C.A. 5th 1973), cert. denied, 414 U.S. 877, 94 S.Ct. 121, 38 L.Ed.2d 122 (1973):
The most widely recognized exception to the general rule against judicial consideration of interlocutory agency rulings is the class of cases where an agency has exercised authority in excess of its jurisdiction or otherwise acted in a manner that is clearly at odds with the specific language of a statute.
Mobil Oil Corporation v. Department of Energy, 469 F. Supp. 1119, 1123-24 (D.C.N.Y. 1979).
[17] See also Adams Packing Association, Inc. v. Florida Department of Citrus, 352 So.2d 569, 570-71 (Fla. 2d DCA 1977); School Board of Leon County v. Mitchell, 346 So.2d 562, 568 (Fla. 1st DCA 1977); State, Department of Health and Rehabilitative Services v. Lewis, 367 So.2d 1042, 1045 (Fla. 4th DCA 1979):
A distinction between a proceeding essentially seeking a review of agency action, and one essentially seeking a determination of rights has also been used as a litmus in determining jurisdiction. In the former case, the Administrative Procedure Act controls, whereas in the latter, jurisdiction lies in the circuit court.
[18] Schwartz, Administrative Law 510, 511 (1976).
[19] Id., at 508:
Since a jurisdictional claim can be raised in most cases, irresponsible allegations of lack of jurisdiction might be widely used to delay effective administration. In the vast majority of cases, however, the claim of lack of jurisdiction can be dealt with summarily on the pleadings without the need for any trial in the court. In the rare case, on the other hand, where the individual does make out a prima facie case of lack of agency jurisdiction over him, why should he have to resort to the expensive and time consuming administrative procedures which may convert the exhaustion of remedies into the exhaustion of litigants?
[20] In State ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977), general contractors brought suit for injunction in the circuit court to restrain DGS from completing bidding and contracting procedures. The basis for the suit was that the procedures violated usual and accepted standards for award of contracts for public works. Petition for writ of prohibition filed by DGS in this court was granted on the basis that the contractors had an adequate remedy available under Chapter 120.
[21] State ex rel. Department of General Services v. Willis, 344 So.2d 580, 590 note 10 (Fla. 1st DCA 1977).
[22] 3 K. Davis, Administrative Law Treatise 69 (1958).
[23] "Colorable Seemingly valid and genuine, having an appearance of truth, right or justice." Webster's Third International Dictionary (unabridged). The term is used in the law to designate that which is apparent or prima facie, Wheeler v. Nickels, 168 Or. 604, 126 P.2d 32, 35-36 (1942); "not the thing itself, but only an appearance thereof," Broughton v. Haywood, 61 N.C. 380, 383 (N.C. 1867); colorable cause or colorable claim for the purpose of invoking or conferring jurisdiction is one which, on preliminary inquiry, shows that it is not "so unsubstantial and obviously insufficient either in fact or law, as to be plainly without color or merit and a mere pretense." In Re Cadillac Brewing Company, 102 F.2d 369, 370 (6th Cir.1939); a matter is not "colorably" under jurisdiction "[w]hen no facts are present or only such facts as have neither legal value nor color of legal value in the affair," Broom v. Douglass, 175 Ala. 268, 57 So. 860, 864 (1912).
[24] Odham v. Foremost Dairies, Inc., 128 So.2d 586, 593 (Fla. 1961), judicial intervention justified only where "[t]he invalidity of the administrative act is not subject to reasonable differences of opinion; American General Insurance Company v. Federal Trade Commission, 496 F.2d 197, 200 (CA 5th 1974), court declined to determine jurisdictional issue described as "close;" McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969), "[t]he courts ordinarily should not interfere with an agency until it has completed its action or else has clearly exceeded its jurisdiction" (emphasis supplied); Lone Star Cement Corporation v. Federal Trade Commission, 339 F.2d 505, 511 (CA 9th 1964), exhaustion required where jurisdictional issue "not free from doubt;" Schwartz, Administrative Law 511 (1976), exhaustion excused where "[o]n the pleadings it is clear that the agency lacks jurisdiction or that it is at least not clear that it possesses jurisdiction."
3 K. Davis, Administrative Law Treatise 69 (1958), factor to consider in excusing exhaustion: "degree of apparent clarity or doubt about administrative jurisdiction."
Jaffe, "The Exhaustion of Administrative Remedies," 12 Buffalo L.Rev. 327, 336 (1963):
I would agree with Judge Vanderbilt [writing for the court in Ward v. Keenan, 70 A.2d 77 (N.J. 1948)] that if the court can determine that there is little to be gained from an administrative hearing, or no jurisdiction whatever to hold it, there is no compelling, surely no invariable reason for forcing the parties through the expense, delay and exasperation of an administrative hearing... . To be sure, if there is a doubt, the doubt should be resolved in favor of the agency. It should appear with clarity that there is no scope for the exercise of administrative fact-finding or discretion. (emphasis supplied)
See also Swann, "Administrative Adjudication of Constitutional Questions," 33 U.Miami L.Rev. 527, 536, who proposes, as to constitutional questions, validity of statute and "other recognized exceptions to the exhaustion doctrine," this rule:
Where summary judgment is appropriate, submission to the agency may be dispensed with, but there should be no barrier whatsoever to a submission at the option of the party offering the challenge. (emphasis supplied).
Swann also states the following test for an "egregious error" under the Willis decision at 593:
An egregious error is one where the difficulty of the question is so slight that an agency error becomes evidence of incompetence or a willful disregard of duty. As such, the error is also evidence that resort to the agency's own corrective process is likely to prove futile. It is an error which renders the court so skeptical of the agency's purposes or capabilities that judicial intervention becomes necessary in order to secure the basic rights of the affected parties.
[25] See, e.g., Communities Financial Corp. v. Department of Environmental Regulation, 416 So.2d 813 (Fla. 1st DCA 1982), wherein DER's assertion of jurisdiction, although ultimately rejected by agency order which was adopted in the circuit court, raised a justiciable issue. This court held exhaustion of administrative remedies should have been required and, on that basis, set aside the circuit court's award of costs against DER. DER's claim of jurisdiction in that case required factual determinations and presentation of testimony.
[26] Capeletti Brothers; Inc. v. Department of Transportation, 362 So.2d 346, 348 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1374 (Fla. 1979), defines "free form" as:
[T]he necessary or convenient procedures, unknown to the APA, by which an agency transacts its day-to-day business. See H. Levinson, "Elements of the Administrative Process," 26 American Law Review 872, 880, 926 et seq. (1977).
[27] The originator of the term "free form," Professor Levinson, states (26 Amer.U.L.Rev. 872, 931):
Even if an agency is permitted to reach a decision on a free-form basis, the end result reflected in that decision is subject to jurisdictional and substantive standards. In brief, an agency may act only in situations within the jurisdiction conferred by law and may reach only those results that come within the substantive standards provided by law. (emphasis supplied)
In Department of Professional Regulation v. Hall, 398 So.2d 978 (Fla. 1st DCA 1981), this court approved the circuit court's refusal to dismiss a jurisdictional challenge to DPR in a dispute involving agency action referred to by this court as "free form."
[1] The Department's various communications to Falls Chase, including its stop-work directive of August 9, 1979, was "free-form" action only, those "necessary or convenient procedures, unknown to the APA, by which an agency transacts its day-to-day business." Capeletti Bros., Inc. v. Dept. of Transportation, 362 So.2d 346, 348 (Fla. 1st DCA 1978), cert. den., 368 So.2d 1374 (Fla. 1979). Formal enforcement of chapter 403 required the Department to institute circuit court proceedings for injunctive relief, fines or damages. Sections 403.131, .141, .121(1), Fla. Stat. (1979). The Department also might have instituted administrative proceedings to establish liability and damages for water pollution, subject to court enforcement, or to abate the violations. Section 403.121(2), Fla. Stat. (1979).
[2] K. Davis, Administrative Law Treatise § 20.11 at 279, 283 (1982 Supp.).
[3] Id. at 296.
[4] The Department considered Lake Lafayette a "lake," as the term is used in section 403.031(3), Florida Statutes (1979), defining "waters" subject to the Department's regulation. Its counsel pointed out that Rule 17-4.28, Florida Administrative Code, stated that the Department had authority over dredge-and-fill activities in "natural lakes," with certain inapplicable exceptions. Under Rule 17-4.28(2), he continued, the Department also had dredge-and-fill jurisdiction over "submerged lands," including both lake bottoms and the areas at the edge of lakes. The Department concluded that the statutory vegetation list was useful only to identify submerged lands at the edge of lakes, but that lake bottoms were subject to regulation even in the absence of such vegetation. In the case of Lake Lafayette, the Department said the ordinary high water line, the common law boundary determining the extent of sovereignty waters, identified the extent of the lake bottom subject to chapter 403 regulation.
[5] The joint Administrative Procedures Committee reviews the statutory bases for agency rules and provides general legislative oversight of administrative action. Section 11.60, Fla. Stat. (1981).
[6] 5 U.S.C. § 554(e) provides:
The agency, with like effect as in the case of other orders, and in its sound discretion, may issue a declaratory order to terminate a controversy or remove uncertainty. (Emphasis added).
A federal agency is not required to issue a declaratory order if asked, unless failure to do so is a clear abuse of discretion. Yale Broadcasting Co. v. Fed. Communications Comm'n, 478 F.2d 594, 602 (D.C. Cir.1973), cert. den., 414 U.S. 914, 94 S.Ct. 211, 38 L.Ed.2d 152 (1973).
[7] Chapter 28-4, Fla. Admin. Code.
[8] Section 403.121(2)(b), Fla. Stat. (1979):
If the department has reason to believe a violation has occurred, it may institute an administrative proceeding to order the prevention, abatement, or control of the conditions creating the violation or other appropriate corrective action.
[9] To remedy chapter 403 violations section 403.121(1)(a) provides:
The department may institute a civil action in a court of competent jurisdiction to establish liability and to recover damages for any injury to the air, waters, or property, including animal, plant, and aquatic life, of the state caused by such violation.
The Department also may seek injunctive relief in a circuit court, under section 403.131, Fla. Stat., and fines under section 403.141, Fla. Stat. After Falls Chase took its case to circuit court, the Department did file, subject to its motion to dismiss for failure to exhaust administrative remedies, a counterclaim for injunctive relief and fines from the Falls Chase developers for dredge-and-fill activities they had undertaken without a permit below the ordinary high water line of the lake.
[10] Falls Chase contracted to build the water and sewer systems at the end of June, after the Department issued a permit for the sewer system. But the Department stayed that permit on July 9, 1979, to allow an appeal by third parties. Falls Chase then claimed interest on its sewer bonds was accruing at $450 a day, and that total interest on all its bond issues for projects dependent on sewer lines was accruing at $1,450 daily. The Department's Secretary found in its July 9 order staying the permit that the "largest specific and direct operational cost" to Falls Chase as a result of the stay would be attorney's fees.
[11] A party seeking review was required to file a notice of appeal within 15 days of receiving the document representing final agency action. Rule 17-1.72(1), Fla. Admin. Code. Appellant was required to file an initial brief within 20 days of the filing of notice of appeal. Rule 17-1.74(1). Appellee's answer brief was due 15 days later, and appellant's reply brief, if any, was due 10 days later. Rule 17-1.74(2), (3), Fla. Admin. Code.
[12] The judgment on the pleadings recites that the motion to dismiss for failure to exhaust administrative remedies was "not well-founded" and that the court had "denied it in open court." The judgment did not discuss the factual issues on that subject made by the complaint and the answer filed before the motion to dismiss was denied.
[13] After reciting that the motion to dismiss had been denied "in open court" the judgment stated, "the parties to this dispute agree that what the Court believes to be the threshold issue framed in the pleadings is now ripe for determination." There is no suggestion here that the Department abandoned its insistence on exhaustion of administrative remedies; presumably its "agreement" was that if the court was going to decide the case there was no reason for delay.
[14] The commission found that the petition for a section 120.57 hearing substantially re-alleged claims previously raised and denied by the Department earlier on May 11. Accordingly the Commission held the appeal untimely because not filed within 15 days of the May 11 order. Rule 17-1.72(1), Fla. Admin. Code. This Court later reversed the Commission's order of dismissal, finding that the third parties had been denied a clear point of entry to challenge the arrangement between Falls Chase and the Department, by stipulation dated May 15, allowing construction to proceed subject to after-the-fact regulation of dredge-and-fill below the high water line later identified. Clean Water, Inc. v. Dept. of Environmental Regulation, 402 So.2d 456 (Fla. 1st DCA 1981).
[15] 344 So.2d at 590.
[16] E.g., Graham v. Vann, 394 So.2d 178 (Fla. 1st DCA 1981); Dept. of Revenue v. Arvida Corp., 315 So.2d 235 (Fla. 2d DCA 1975), cert. dism., 336 So.2d 1181 (Fla. 1976); Swinscoe v. Dept. of Revenue, 320 So.2d 11 (Fla. 4th DCA 1975), cert. dism., 337 So.2d 976 (Fla. 1976).
[17] W.D. Snodgrass, "Tact and the Poet's Force," in In Radical Pursuit, Critical Essays and Lectures 7 (1977).
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15 F.3d 179
U.S.v.Glenn*
NO. 93-04311
United States Court of Appeals,Fifth Circuit.
Jan 10, 1994
1
Appeal From: E.D.Tex.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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998 F.2d 1005
U.S.v.Carter (Lexie Little)
NO. 92-3487
United States Court of Appeals,Third Circuit.
June 15, 1993
Appeal From: W.D.Pa.,
McCune, J.
1
AFFIRMED.
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09-0643-pr
Jolley v. Corr. Managed Health Care
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to summary orders
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document
filed with this court, a party must cite either the Federal Appendix or an electronic database
(with the notation “summary order”). A party citing a summary order must serve a copy of it
on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the twenty-seventh day of April, two thousand and ten.
PRESENT:
ROGER J. MINER ,
JOSÉ A. CABRANES,
RICHARD C. WESLEY ,
Circuit Judges.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
CARLTON JOLLEY ,
Plaintiff-Appellant,
-v.- No. 09-0643-pr
CORRECTIONAL MANAGED HEALTH CARE , EDWARD PESANTI,
MARK BUCHANAN , EDWARD BLANCHETTE , LESLIE CUTLER,
LISA JASER, CLYDE MAC DOUGAL, ALBERT N. TORO , CRAIG
MC DONALD , TIMOTHY SILVIS, MONICA FARINELLA , RICARDO
RUIZ , C. GRAHAM , TERESA LANTZ , IRENE MARION ,
ROBERT FRANKS, ROBERT DEVEOU , RICHARD FUREY ,
HEIDI DOE , MARGO GRIFFIN , GEORGE P. HAAS, SAYEED
NAQUI, GLORIA RODRIGUEZ , JEFF SPRAQUE ,
Defendants-Appellees.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
FOR PLAINTIFF-APPELLANT: CARLTON JOLLEY , pro se, Suffield,
CT.
1
FOR DEFENDANTS-APPELLEES: NEIL PARILLE , Assistant Attorney
General, Hartford, CT.
Appeal from a January 30, 2009 judgment of the United States District Court for the District of
Connecticut (Robert N. Chatigny, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court be AFFIRMED.
Plaintiff-appellant Carlton Jolley (“plaintiff” or “Jolley”), pro se, an inmate in the custody of the
Connecticut Department of Correction at MacDougall-Walker Correctional Institution, appeals from the
District Court’s entry of summary judgment in favor of defendants-appellees Correctional Managed
Health Care (“CMHC”), Edward Pesanti, Mark Buchanan, Edward Blanchette, Leslie Cutler, Lisa Jaser,
Clyde MacDougal, Albert N. Toro, Craig McDonald, Timothy Silvis, Monica Farinella, Ricardo Ruiz, C.
Graham, Teresa Lantz, Irene Marion, Robert Franks, Robert Deveou, Richard Furey, Heidi Doe, Margo
Griffin, George P. Haas, Sayeed Naqui, Gloria Rodriguez, and Jeff Spraque (jointly, “defendants”), in his
action brought pursuant to 42 U.S.C. § 1983. Plaintiff alleged that defendants were deliberately
indifferent to his medical and dental needs in violation of the Eighth Amendment.
On appeal, plaintiff contends that the District Court erred in granting summary judgment in
favor of defendants, and particularly that: (1) regarding his dental claims, the District Court
(a) improperly found that the Utilization Review Committee defendants were entitled to qualified
immunity for the delay in plaintiff’s periodontal care, and (b) failed to consider his other related
arguments; (2) regarding his nutritional and diet claims, (a) the District Court incorrectly found that
Jolley failed to present sufficient evidence to support his claims, and (b) Jolley should not be required to
purchase extra fiber; (3) the District Court erroneously concluded that there was no dispute of fact
pertaining to plaintiff’s Ibuprofen-related ailments; (4) the District Court improperly considered the
affirmative defense of collateral estoppel, where the defendants pleaded only res judicata; and (6) the
District Court failed to consider that Jolley’s alleged constitutional violations were a direct result of an
official policy of the CMHC. We assume the parties’ familiarity with the remaining facts, procedural
history, and issues on appeal.
We review de novo the District Court’s decision to grant summary judgment and, in the course of
that review, we resolve ambiguities and draw all permissible factual inferences in favor of the nonmoving
party. See, e.g., Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008); Nationwide Life Ins. Co. v. Bankers
Leasing Ass’n, 182 F.3d 157, 160 (2d Cir. 1999). We will affirm the grant of summary judgment by the
District Court if the record indicates that “there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Pilgrim v. Luther, 571 F.3d 201, 204 (2d Cir. 2009)
(internal quotation marks omitted).
An independent review of the record, case law, and arguments on appeal in the instant case
reveals that the District Court properly granted summary judgment in favor of defendants. Substantially
for the reasons stated in its thorough and well-reasoned opinion of January 30, 2009, Jolley v. Corr.
Managed Health Care, No. 3:04-CV-1582, 2009 WL 233667 (D. Conn. Jan. 30, 2009), we affirm the
judgment of the District Court.
2
CONCLUSION
We have considered each of defendant’s arguments on appeal and find them to be without merit.
For the reasons stated above, we AFFIRM the judgment of the District Court.
FOR THE COURT,
Catherine O’Hagan Wolfe, Clerk of Court
3
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MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 21 2019, 8:40 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Justin R. Wall Curtis T. Hill, Jr.
Wall Legal Services Attorney General of Indiana
Huntington, Indiana
David E. Corey
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of A.W. (Child May 21, 2019
Alleged to be in Need of Court of Appeals Case No.
Services) and J.F. (Mother) and 18A-JC-2885
J.W. (Father); Appeal from the Huntington
J.F. (Mother) 1 and J.W. (Father) Superior Court
The Honorable Jennifer E.
Appellants-Respondents,
Newton, Judge
v. Trial Court Cause No.
35D01-1605-JC-6
The Indiana Department of
Child Services,
1
Mother does not participate in this appeal but is a party of record.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-2885 | May 21, 2019 Page 1 of 8
Appellee-Petitioner
May, Judge.
[1] J.W. (“Father”) appeals the dismissal of the Department of Child Services’
(“DCS”) petition to declare A.W. (“Child”) a Child in Need of Services
(“CHINS”) and the release of Child into the care of J.F. (“Mother”). Father
argues the trial court abused its discretion when it denied (1) his pre-hearing
motion for transport and (2) his verbal motion at the hearing to appear
telephonically. We affirm.
Facts and Procedural History
[2] Child was born April 27, 2010. On May 12, 2016, DCS filed a petition alleging
Child was a CHINS based on Father’s use of a taser on Child’s buttocks and
hand. DCS removed Child from Father’s care and placed her in foster care, as
Mother’s whereabouts were unknown. On June 28, 2016, the trial court
granted DCS’s motion to place Child with Mother, who by that time had been
located and deemed appropriate for placement.
[3] On October 14, 2016, DCS amended its CHINS petition to include allegations
that the State had charged Father with battery with a deadly weapon and that
the trial court in that matter had issued a no contact order between Father and
Child. On November 29, 2016, the trial court removed Child from Mother’s
Court of Appeals of Indiana | Memorandum Decision 18A-JC-2885 | May 21, 2019 Page 2 of 8
care based on allegations of physical abuse, housing instability, and non-
compliance with recommended therapy. Child was placed in relative
placement. The physical abuse allegations against Mother were subsequently
found to be unsubstantiated.
[4] On March 8, 2018, the trial court transferred the case to Huntington Superior
Court after the Circuit Court judge recused himself because he had previously
served as prosecutor on some of Father’s criminal matters. In the interim,
Father was convicted of offenses involving Child, including child molestation
and battery, and sentenced to a term of incarceration with an earliest possible
release date in 2069. On September 27, 2018, Mother filed a petition to change
custody in an underlying paternity case 2 involving Child.
[5] On October 29, 2018, Father filed a motion to transport requesting that he be
transported in lieu of telephonic participation to the hearing on Mother’s
change of custody petition. The trial court denied that motion. Father filed
another motion to transport on October 31, 2018, which the trial court also
denied. On November 2, 2018, Father filed pro se a response to Mother’s
request for a change in custody and filed an additional motion to transport.
[6] On November 13, 2018, DCS filed a motion for permanency that supported
Mother’s petition for change of custody in the paternity case. On November
14, 2018, the trial court held a review hearing on Mother’s request for change of
2
At some point in the proceedings, the paternity action and the CHINS actions were consolidated.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-2885 | May 21, 2019 Page 3 of 8
custody and permanency in the CHINS matter. Father’s counsel appeared and
requested that Father be permitted to attend the hearing telephonically. The
trial court denied his request, as he had not submitted a written motion as
required by the trial court. Father’s counsel requested a continuance, which
was also denied. The trial court held the hearing in Father’s absence but
permitted Father’s counsel to present evidence and cross-examine witnesses.
[7] On November 29, the trial court ordered:
1. Permanency for the Child has been achieved through an
approved permanency plan of Custody to Non-custodial Parent
through Mother’s motion to change custody in the paternity case.
2. Mother has built her relationship with the [C]hild and is
currently having overnight visitation with the [C]hild. Mother
participates in the [C]hild’s therapy and in her own therapy.
3. Father has been convicted of child molestation and child
abuse. While the criminal case is under appeal, Father is
nonetheless convicted and not is [sic] a position to care for the
[C]hild.
4. The [C]hild is currently placed with relatives in Lake County
where Mother lives and such placement is willing to be a support
for the [C]hild and Mother.
5. Jurisdiction in this matter is hereby terminated without
prejudice and this cause of action is ordered closed. Any
hearings currently scheduled in this matter are hereby vacated.
(Appealed Order at 1.)
Court of Appeals of Indiana | Memorandum Decision 18A-JC-2885 | May 21, 2019 Page 4 of 8
Discussion and Decision
[8] Father argues the trial court violated his due process rights when it denied his
counsel’s verbal request to allow Father to appear telephonically and denied his
motion for continuance to allow Father to appear in person or telephonically.
It is well-settled, and Father acknowledges, that incarcerated parents have “no
absolute right to be physically present” at a CHINS proceeding. In re Involuntary
Termination of Parents Rights of S.P.H., 806 N.E.2d 874, 878 (Ind. Ct. App. 2004).
“[T]he decision whether to permit an incarcerated person to attend such a
hearing rests within the sound discretion of the trial court.” Id. Incarcerated
individuals involved in civil proceedings are able to appear by telephone, web-
camera, or counsel. Hill v. Duckworth, 679 N.E.2d 938, 940 n.1 (Ind. Ct. App.
1997).
[9] The decision to grant or deny a continuance rests within the sound discretion of
the juvenile court. Rowlett v. Vanderburgh Cty. Office of Family & Children, 841
N.E.2d 615, 619 (Ind. Ct. App. 2006), trans. denied. We will reverse the trial
court’s decision only for an abuse of that discretion. Id. An abuse of discretion
occurs when the party requesting the motion for continuance has shown good
cause for granting the motion and the juvenile court denies it. Id. No abuse of
discretion will be found when the moving party is not prejudiced by the denial
of its motion. Id.
[10] Here, the trial court denied Father’s multiple requests to be physically present at
the hearing regarding Mother’s petition for custody of Child and DCS’s motion
Court of Appeals of Indiana | Memorandum Decision 18A-JC-2885 | May 21, 2019 Page 5 of 8
for permanency. During the November 14 hearing, the following exchange
occurred between the trial court and Father’s counsel:
[Father’s Counsel]: My-my client, I on his behalf and him on his
own behalf had previously filed a Motion to Transport which
was - both were denied. Uh, it was our understanding that he
was gong to participate by telephone in this normal, uh, process
for the parents, if that are incarcerated at DOC, to participate by
telephone. . . .
[Trial Court]: Was there a Motion to Participate by Tel-
Telephone?
[Father’s Counsel]: No, Your Honor, its just standard-it-it-it-it’s
just standard process in these CHINS cases that typically DCS
arranges for the-the parent to participate by telephone. I know
that [Father] has expressed adamant obj-objections, uh, to the
ultimate issues, uh, or involving today’s hearing that the change
of placement custody with this child. I think it’s important for
him to be able to get on record, uh, what those objections are and
his thoughts and position on those particular issues in both
matters.
[Trial Court]: . . . Um, I-I don’t know what typically in
other cases, um, standard procedure. If I don’t have a request for
a Telephonic Hearing, I don’t normally have a telephone hearing
unless there’s a request for one.
(Tr. Vol. II at 5) (errors in original). Father’s counsel then asked for a
continuance so Father could be present or appear telephonically, and the trial
court denied that request.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-2885 | May 21, 2019 Page 6 of 8
[11] On appeal, Father argues, “the customary procedure was for court staff (or
DCS) to arrange for telephonic participation from [sic] incarcerated parents.
For the Huntington County Superior Court, this trial court did not follow this
particular custom.” (Br. of Appellant at 13) (errors in original). However,
Father has not provided authority to support his claim that such a “custom”
exists, and thus his issue is waived for failure to make a cogent argument. See
Indiana Appellate Rule 46(A)(8)(a) (appellate argument must be supported by
relevant authority); and see In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App. 2014)
(failure to cite authority results in lack of cogent argument prompting waiver).
[12] Waiver notwithstanding, Father was not prejudiced by the trial court’s denial of
his motion to continue – the CHINS petition was dismissed, leaving intact
Father’s parenting rights to Child, and custody of Child could not continue in
Father as, at the time of the hearing, Father was incarcerated for crimes
committed against Child and was not scheduled for release for over thirty years.
Mother demonstrated her ability to provide for and parent Child to the
satisfaction of DCS, and Father has not demonstrated any error occurred
therein. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992) (unchallenged
findings “must be accepted as correct”). Finally, Father’s counsel was present
at the hearing and was able to provide argument and cross examine witnesses,
which we have long held protects a parent’s due process rights in a CHINS
proceeding. See In re E.E., 853 N.E.2d 1037, 1044 (Ind. Ct. App. 2006)
(parental due process rights not violated when parent is represented throughout
Court of Appeals of Indiana | Memorandum Decision 18A-JC-2885 | May 21, 2019 Page 7 of 8
the proceedings by counsel and counsel attends hearing and has opportunity to
cross-examine witnesses and offer argument), trans. denied.
Conclusion
[13] Father has waived his arguments regarding the denial of his request to appear
telephonically and his motion to continue for failure to make a cogent
argument. Waiver notwithstanding, the trial court’s decision neither prejudiced
Father nor violated his due process rights. Accordingly, we affirm.
[14] Affirmed.
Mathias, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-JC-2885 | May 21, 2019 Page 8 of 8
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 99-30740
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD A. DYER,
also known as Blabber,
Defendant-Appellant.
__________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(98-CR-57)
__________________________________________________________________
June 12, 2000
Before JONES and BENAVIDES, Circuit Judges, and WALTER*, District
Judge.
PER CURIAM:**
Appellant Dyer convicted of heroin trafficking,
challenges the district court’s assessment of a substantial
increase in his base offense level for sentencing purposes grounded
in Dyer’s participation in two uncharged murders. Dyer asserts
that the government failed to prove he participated in the murders
and failed to show they were “relevant conduct” for sentencing.
*
District Judge of the Western District of Louisiana, sitting by
designation.
**
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.A.
See U.S.S.G. § 1B1.3. We disagree with the first contention but
agree with the second and must therefore reverse and remand.
As to the first contention, it was not clearly erroneous
for the district court to find that Dyer participated in, and did
not simply have knowledge of, the murders of Kanes and Fernandez.
The finding is supported inter alia by a reasonable interpretation
of Dyer’s secretly tape-recorded statements, interviews with Dyer’s
cellmate, and ballistics tests of Dyer’s gun.
With regard to the second contention, however, there is
insufficient evidence to find the murders were relevant conduct
within the guidelines, i.e., part of the same course of conduct,
common scheme or plan as the offense of conviction. United States
v. Vital, 68, F.3d 114, 118 (5th Cir. 1995). “Offenses qualify as
part of the same course of conduct if they are ‘sufficiently
connected or related to each other to warrant a conclusion that
they are part of a single episode, spree, or ongoing series of
offenses.’” United States v. Ocana, 204 F.3d 585, 589-90 (5th Cir.
2000) (quoting § 1B1.3 Application Note 9(b)). The appropriate
factors to weigh to determine whether the offenses are sufficiently
connected or related include “the degree of similarity of the
offenses, the regularity of the offenses, and the time interval
between the offenses.’” Id. at 590. “When one of the factors is
absent, a stronger presence of at least one of the other factors is
required.” Id.
2
A careful review of the PSR and sentencing hearing
persuades us that the only above-referenced factor present in this
case is temporal proximity of the murders to Dyer’s heroin offense.
The government charges Dyer with repetitive conduct involving drugs
and violence. But the record does not connect these murders to
Dyer’s drug trafficking or to the robberies and murders of drug-
dealing associates that Dyer contemplated. Lacking any other
evidence than temporal proximity to demonstrate that these murders
were part of the same course of conduct, common scheme or plan as
the offense of conviction, we must vacate this relevant conduct
enhancement. In so ordering, we need not and do not rule on the
applicability of an upward departure, which may be urged at re-
sentencing.
For these reasons, the sentence is VACATED and the case
REMANDED for re-sentencing consistent herewith.
VACATED and REMANDED.
3
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305 S.W.2d 768 (1957)
CITY OF ASHLAND, A Municipal Corporation, Appellant,
v.
Cora KITTLE, Now Barger Kittle, Administrator of Estate of Cora Kittle, Deceased, Appellee.
Court of Appeals of Kentucky.
October 4, 1957.
A. W. Mann and A. T. Bryson, Jr., Ashland, for appellant.
John L. Smith, Catlettsburg, P. H. Vincent, Ashland, for appellee.
PER CURIAM.
This action was instituted in the Boyd Circuit Court by Cora Kittle to recover damages from the city of Ashland for injury to real estate caused by the overflow of surface water from an allegedly negligently constructed culvert. A jury awarded damages in the sum of $2,000. Appellant now moves for an appeal from the judgment entered on that verdict.
*769 It is urged as grounds for reversal that (1) the damage was occasioned by extraordinary rainfall which could not have been reasonably anticipated and (2) the culvert is a permanent structure not to be corrected at a reasonable expense and the action is barred because it was not instituted within five years from the date of the culvert's completion. The rule is that in cases involving damages resulting from a temporary structure, suits may be brought for each recurring injury, but in cases involving a permanent structure, whatever damages result from its construction must be treated as an entirety, and the right of action accrues when the structure is completed. The recovery must be had in one action brought within five years. Fitzhugh v. Louisville & N. R. Co., 300 Ky. 509, 189 S.W.2d 592.
It is true that a municipal corporation is not liable for damages caused by extraordinary rainfall which could not have been anticipated by a person of ordinary experience. Seay v. City of Louisville, 259 Ky. 64, 82 S.W.2d 212; City of Lexington v. Henderson, 180 Ky. 650, 203 S.W. 528. Experts differed as to whether any of the rains shown might properly be termed extraordinary rainfalls and the question was submitted to the jury. The jury, by its verdict, found that such rainfall as had been experienced could reasonably have been anticipated, and we are not disposed to distrub the verdict. Furthermore, there was proof to the effect that the city failed in its duty to keep the culvert in condition to carry off water from ordinary rainfalls. See City of Louisville v. Norris, 111 Ky. 903, 64 S.W. 958.
In connection with the second contention, we must recognize that the question of whether a structure or nuisance is temporary or permanent is decided by determining whether it can be readily corrected or abated at a reasonable expense; if it can, it is temporary; if it cannot, it is permanent. Chesapeake & O. R. Co. v. Coleman, 184 Ky. 9, 210 S.W. 947. In this case the evidence bearing upon the expense of reconstruction and the results thereof is in conflict. The testimony of witnesses for the appellees placed the cost at a sum between $4,500 and $5,000, while estimates by witnesses for the appellant varied from $12,278 to $22,000. This question also was submitted to the jury under proper instruction and we find that there is sufficient evidence to sustain the verdict. Since the structure is temporary (by our definition) recovery may be had for recurring injury.
The motion for an appeal is therefore overruled and the judgment is affirmed.
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490 P.2d 899 (1971)
PACIFIC INSURANCE COMPANY, LIMITED, Appellant,
v.
OREGON AUTOMOBILE INSURANCE COMPANY, Appellee.
No. 5028.
Supreme Court of Hawaii.
November 24, 1971.
*900 David L. Fairbanks, Jenks, Kidwell, Goodsill & Anderson, Honolulu, for plaintiff.
Peter G. Wheelon, Honolulu (Dennis E.W. O'Connor, Honolulu, with him on the briefs; Anthony, Waddoups, Hoddick & Brown, Honolulu, of counsel), for defendant.
Before RICHARDSON, C.J., and MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.
RICHARDSON, Chief Justice.
The sole question before us is whether a statute should be given a construction which will effect an absurd and unjust result if limited by its plain and obvious language.
On July 22, 1965, Mr. Gary Koja agreed to sell an automobile to Mr. Clarence Taira. On the same day, Mr. Taira gave to Mr. Koja a bank draft for the purchase price and Mr. Koja transferred possession of the automobile to Mr. Taira pursuant to their agreement of sale. On July 28, 1965, Mr. Koja endorsed the certificate of ownership in favor of Mr. Taira and the endorsed certificate was submitted to the Treasurer of the City and County of Honolulu for registration.
On August 1, 1965, while operating the subject automobile, Terry Taira, son of Mr. Clarence Taira, was involved in a traffic accident with a police motorcycle operated by Peter Kauahi III.
On August 2, 1965, new certificates of ownership and registration were issued to Mr. Clarence Taira.
On the date of the accident Mr. Koja had in effect an automobile insurance policy issued by Oregon Automobile Insurance Company and Mr. Taira was covered by an automobile insurance policy issued by Pacific Insurance Company. Subsequent to the accident, upon demand by Mr. Taira that it extend coverage for the accident, Oregon Automobile Insurance Company denied coverage.
Actions for damages were filed against Terry Taira, Clarence Taira and Lillian Taira by the City and County of Honolulu on July 18, 1967, and by Peter Kauahi III on July 31, 1967.
Pacific Insurance Company filed on December 26, 1967, an action against Oregon Automobile Insurance Company for wrongful refusal to extend coverage in defense of the suit filed by Peter Kauahi III on July 31, 1967. This case was submitted to this court on an agreed statement of facts pursuant to HRS § 631-1 (1968).
At the time of the accident the statute providing for the registration of motor vehicles provided that an "intended transfer shall be deemed to be incomplete and not to be valid or effective for any purpose" until the Treasurer has issued the new certificate of registration and certificate of ownership.[1]
*901 A general rule of statutory construction is that if a statutory ambiguity is present the purpose of the act justifies departure from the strict letter of the statute when adherence to the letter of the statute will lead to absurdity or palpable injustice. Credit Assoc. v. Montilliano, 51 Haw. 325, 328, 460 P.2d 762 (1969); Harrington v. Harrington, 41 Haw. 89, 103 (1955); Chang v. Meagher, 40 Haw. 96, 102 (1953); Rathburn v. Kaio, 23 Haw. 541, 544 (1916); Shillaber v. Waldo, 1 Haw. 31 (1848). In the present case the language of the statute is plain and unambiguous. However, a literal construction of the statute would produce an unjust and absurd result. The consequence of giving the statute a literal construction in the instant case would mean that a party who entered into a valid agreement to sell an automobile and surrendered physical possession of such automobile to the buyer[2] would be required to assume civil liability for the negligent operation of the automobile by the buyer merely because the Treasurer had not yet issued new certificates of ownership and registration.
A better rule is that, even in the absence of statutory ambiguity, departure from literal construction is justified when such construction would produce an absurd and unjust result and the literal construction in the particular action is clearly inconsistent with the purposes and policies of the act. County of Sacramento v. Hickman, 66 Cal.2d 841, 50 Cal. Rptr. 609, 428 P.2d 593, 598 (1967); Holy Trinity Church v. United States, 143 U.S. 457, 458, 460, 12 S.Ct. 511, 36 L.Ed. 226 (1892). The same reasons which underlie the rule which requires that ambiguity be a condition precedent to construction which rejects an absurd and unjust result are equally compelling in support of the rule which does not require the presence of a statutory ambiguity. Typically, courts require an ambiguity before departing from the plain and obvious language of a statute in order to prevent judicial legislation. The court should not substitute its judgment for what the legislature already has declared to be rational and consistent with public policy. This court endorses this principle and in no way intends to usurp the function or to invade the prerogatives of the legislature. However, departure from the literal construction of a statute is warranted when such an absurd and unjust construction clearly could not have been intended by the legislature. Such lack of legislative intent is evidenced by the purposes and policies of the act and by construing the subject statutory language in the context of the entire statute and in a manner consistent with the purposes of the act. Since this court in effect is not substituting its judgment for that of the legislature, there is justification, even in the absence of statutory ambiguity, for by-passing the literal interpretation of the statute in the instant case.
Examination of the entire statute and its legislative history reveals that the interpretation of the statute urged by appellant Pacific Insurance Company is totally inconsistent with the purposes of the act as well as unreasonable and absurd. Nothing indicates that the legislature intended that the seller of an automobile should assume civil liability for negligent operation of the automobile by the buyer merely because the Treasurer had not issued new certificates of ownership and registration. The objects of the act were to provide a *902 means of registering the title of an automobile for the protection of the public; to assist governmental officials to readily determine the ownership of an automobile; and to prevent unlawful and dishonest dealing in automobiles.[3]
Statutory language must be read in the context of the entire statute and construed in a manner consistent with the purposes of the statutes. People v. Superior Court of Los Angeles County, 70 Cal.2d 123, 74 Cal. Rptr. 294, 449 P.2d 230, 237 (1969); State Bd. of Directors for Jr. Colleges v. Nelson, 105 Ariz. 119, 460 P.2d 13, 14-5 (1969). The phrase "for any purpose" in the subject statute is not all-encompassing, but is restricted to a reasonable construction by context of the entire statute and the purposes of the act. Flood v. Hodges, 231 Mass. 252, 120 N.E. 689, 690 (1918). Clearly the context of the statute and its purposes do not allow the phrase "for any purpose" to be given the unreasonable and absurd construction urged by Pacific Insurance Company.
Judgment will be entered in accordance with this opinion.
NOTES
[1] Revised Laws of Hawaii 1955 § 160-10(e) stated in pertinent part:
(e) Until the treasurer has issued the new certificate of registration and certificate of ownership as in subdivision (d) provided, delivery of such vehicle shall be deemed not to have been made and title thereto shall be deemed not have passed, and the intended transfer shall be deemed to be incomplete and not to be valid or effective for any purpose.
[2] There is no question that Mr. Taira was the owner of the automobile after the agreement to sell but before issuance of the certificates by the Treasurer. Counsel for Pacific Insurance Company conceded at oral hearing that if the value of the automobile had appreciated substantially during this period the seller would not be legally entitled to avoid the transaction.
[3] Senate Judiciary Committee Report on Senate Bill No. 110, S.Jour. 802 (1929).
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 27 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
LEROY T. BRYANT,
Petitioner-Appellant,
v. No. 99-6456
H.N. SCOTT, Warden, (D.C. No. 99-CV-867-C)
(W.D.Okl.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR , Chief Judge, EBEL 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.
Leroy Bryant appeals the district court’s dismissal of his 28 U.S.C. § 2254
petition for habeas corpus relief. We exercise jurisdiction pursuant to 28 U.S.C.
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.
§ 1291, deny Bryant a certificate of appealability, and dismiss the appeal.
I.
Bryant was convicted in Oklahoma state court of trafficking in illegal
drugs and sentenced to life in prison without parole on April 22, 1993. He did
not appeal his conviction. On May 11, 1998, Bryant filed an application for post-
conviction relief in Oklahoma state court, asserting his right to counsel was
violated when his attorney did not file a direct appeal. The state district court
denied the application and Bryant did not appeal the denial. On September 28,
1998, Bryant filed a second application for post-conviction relief in Oklahoma
state court, asserting the court improperly denied his first application for post-
conviction relief. On March 9, 1999, the state district court denied the
application, concluding that Bryant did not raise any new issues of law or
genuine issues of material facts. On May 25, 1999, the Oklahoma Court of
Criminal Appeals affirmed that denial.
On June 17, 1999, Bryant filed a 28 U.S.C. § 2254 petition for habeas
corpus relief in federal district court. Bryant alleged the state court failed to
strictly follow the contemporaneous objection rule (Okla. Stat. tit. 22, § 1086)
and he received ineffective assistance of counsel because his attorney failed to
file a direct appeal. The government filed a motion to dismiss, alleging Bryant
failed to file his petition within the limitations period of the Antiterrorism and
2
Effective Death Penalty Act (AEDPA). Bryant responded that his failure to
timely file the petition was due to extraordinary circumstances. The magistrate
recommended dismissing Bryant’s petition as untimely and Bryant did not object
to the magistrate’s report. On November 29, 1999, the district court adopted the
magistrate’s report and recommendation, dismissed Bryant’s petition, and denied
a certificate of appealability. The district court also denied leave to proceed on
appeal in forma pauperis.
II.
In reviewing the denial of habeas relief, we review the district court’s
factual findings under a clearly erroneous standard and its legal conclusions de
novo. Rogers v. Gibson , 173 F.3d 1278, 1282 (10th Cir. 1999), cert. denied , 120
S. Ct. 944 (2000). On appeal, Bryant contends he was denied his right to appeal
and the interest of justice exception excused his failure to object to the
magistrate’s report and recommendation.
Generally, this court applies a firm waiver rule which by its application
results in the waiver of appellate review of factual and legal questions when the
appellant fails to object to the magistrate’s findings. Moore v. United States , 950
F.2d 656, 659 (10th Cir. 1991). Bryant contends he never received the
magistrate’s report. If true, this may excuse Bryant’s failure to file an objection
to the magistrate’s report. See id. (noting that firm waiver rule “need not be
3
applied when the interests of justice so dictate”). For purposes of this appeal we
will assume that Bryant did not receive the magistrate’s report through no fault of
his own and address this case on the merits.
The magistrate concluded that Bryant’s § 2254 petition was untimely filed.
Under the AEDPA, “[a] 1-year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant to the judgment of a
State court.” 28 U.S.C. § 2244(d)(1). Bryant’s conviction became final on July
21, 1993, when the time for filing a direct appeal had passed. See Okla. Stat. tit.
22, § 1051 (stating that defendant has 90 days after conviction to appeal). The
AEDPA became effective on April 24, 1996. Because Bryant’s conviction
became final before the effective date of the AEDPA, he had until April 23,
1997, to file his federal habeas petition. See United States v. Simmonds , 111
F.3d 737, 746 (10th Cir. 1997). Bryant’s state post-conviction applications did
not toll the limitations period, because they were filed after the limitations
period. Bryant filed his § 2254 petition with the district court on June 17, 1999.
This was untimely.
The limitations period of § 2244(d) may be subject to equitable tolling.
Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998). Bryant has failed to show he
was excused from timely filing his petition. See 28 U.S.C. § 2244(d)(1) (listing
circumstances in which time for filing petition may be extended). Bryant knew
4
of his attorney’s failure to file a direct appeal by May 11, 1998, at the latest
(when he filed his application for post-conviction relief), yet did not file his §
2254 petition until June 17, 1999. Bryant presents no reason for not filing his §
2254 petition within the limitations period. Further, we note Bryant does not
contend that “a constitutional violation has resulted in the conviction of one who
is actually innocent or incompetent.” See Miller , 141 F.3d at 978. Bryant’s
habeas petition was untimely and subject to dismissal.
III.
We DENY Bryant a certificate of appealability and DISMISS the appeal.
The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
5
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802 F.2d 460
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.UNITED STATES of America, Plaintiff-Appellee,v.Sameer George KATTOUAH, Defendant-Appellant.
No. 84-1603.
United States Court of Appeals, Sixth Circuit.
Aug. 5, 1986.
Before LIVELY, Chief Judge, and KENNEDY and BOGGS, Circuit Judges.
PER CURIAM.
1
The defendant-appellant, Sameer George Kattouah, was convicted after a jury trial of conspiracy to possess heroin with intent to distribute and conspiracy to distribute heroin and aiding and abetting the distribution of heroin. Following delivery of a large quantity of heroin to an undercover agent in the parking lot of a Detroit restaurant, two co-defendants involved in the actual delivery were arrested. It could have been found from the evidence that the heroin had been brought to the parking lot in a vehicle owned and driven by the defendant-appellant. Immediately after the arrest of the two co-defendants, the defendant drove rapidly away from the parking lot and was apprehended at a traffic light. The agents arrested the defendant-appellant and a third co-defendant who was in the vehicle. Just prior to the delivery one of the co-defendants told the undercover agent that there were three others of his group present: the other co-defendant involved in the delivery, a driver and a friend.
2
On appeal Kattouah contends that there was not sufficient evidence to support a finding that he knowingly engaged in the distribution of heroin because the jury was required to draw too many unreasonable inferences from isolated bits of evidence. The government argues that in totality the evidence clearly was sufficient and that the various items of evidence should not be examined separately or in a vacuum.
3
A second allegation of error is the district court's admission of evidence of prior drug transactions in which Kattouah was involved. The government contends that this evidence strongly supported a finding that Kattouah knowingly participated in the drug transaction. The defendant-appellant argues that there was so little similarity between the earlier transactions involving Kattouah and the one on which this indictment was based that it was an abuse of discretion for the court to permit the jury to hear the evidence. The evidence disclosed that on two previous occasions Kattouah had delivered small quantities of cocaine from the same vehicle used to deliver the large amount of heroin in the present case. There was little relationship between the instances, according to Kattouah, because the cocaine transactions involved very small amounts having relatively little value while the "street value" of the heroin ran into the millions. Kattouah argues that the real purpose of the evidence was to show his bad character or propensity to do criminal acts rather than to prove his knowledge on the occasion of the act involved in this prosecution.
4
The defendant-appellant also contends that the district court erred in failing to give him the benefit of rulings made in favor of his co-defendants after entering an order that he would have the benefit of such rulings. Early in the proceedings the three co-defendants joined in a motion to dismiss the indictment; some months later the magistrate entered an order based on a stipulation with the government permitting Kattouah to be joined in all previously filed motions by the other defendants and in "any relief granted to those defendants." Thereafter the co-defendants filed written objections to the magistrate's report and recommendation that the motion be denied, but Kattouah filed no objections. The co-defendants pled guilty to one of the charges, preserving their right to appeal pursuant to Rule 11(a)(2), Fed.R.Crim.P., and this court held that the district court erred in not giving de novo review to the issues and findings in the magistrate's report to which the co-defendants had objected. United States v. Shami, 754 F.2d 670 (6th Cir.1985). Kattouah now argues that he was entitled to the same relief, though he never filed objections to the magistrate's report and though the issues raised in the objections of the other parties did not apply to his participation in the drug transaction.
5
Finally, Kattouah contends that the district court committed reversible error when it failed to require his co-defendants to be sworn and refuse to answer questions on the ground of compulsory self-incrimination before ruling that they would not be required to testify. Kattouah had subpoenaed his three co-defendants, who had pled guilty to a single charge, had other charges pending and had not been sentenced on their guilty pleas. When counsel for the co-defendants informed the district court that all of them would refuse to testify on Fifth Amendment grounds, the district court quashed the subpoenas and did not require the co-defendants to be sworn as witnesses. Kattouah contends that the district court should have required each of the co-defendants to be called out of the presence of the jury and to refuse to answer specific questions before ruling that they would not be subpoenaed.
6
Upon consideration of the briefs and oral arguments of counsel together with the record on appeal, this court concludes that the district court did not commit reversible error in these proceedings. Taken together, the items of evidence linking Kattouah to the sale of the heroin were sufficient to form the basis of legitimate inferences that he did knowingly participate. This is not a case where mere presence at the time and place of an illegal act is relied upon; instead, there are a number of concrete facts which point to a knowing participation. We find no abuse of discretion in the ruling of the district court on the evidence of previous illegal activities of Kattouah. The fact that drugs were involved in all three instances and that the same vehicle was used for delivery on the previous occasions as on the occasion involved in this prosecution was indicative of the defendant-appellant's knowledge of what was happening. He made knowledge an issue in the case by admitting that one of the co-defendants retrieved the drugs from his vehicle just prior to the delivery to the undercover agent while claiming that he did not know that the article taken from his vehicle was contraband.
7
Also, we find no abuse of discretion in the rulings of the trial court on the two remaining issues. Kattouah made no effort to join with his co-defendants in the motion to dismiss, though he was given an opportunity to do so. In addition, the issues raised by the co-defendants' objections to the magistrate's recommendations did not relate to Kattouah's role in the transaction. With respect to the subpoenas, the district court was informed that the co-defendants would refuse to testify on Fifth Amendment grounds and Kattouah offered no explanation of what relevant questions could be asked of these co-defendants that would not be subject to their previously asserted Fifth Amendment refusals to testify.
8
The judgment of the district court is affirmed.
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547 F.2d 1169
U. S.v.French
No. 76-1236
United States Court of Appeals, Seventh Circuit
12/10/76
1
N.D.Ill.
AFFIRMED
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
February 14, 2017 Session
WILLIAM B. GATLIN v. STATE OF TENNESSEE
Appeal from the Circuit Court for Marshall County
No. 25-CR-157-PCR F. Lee Russell, Judge
___________________________________
No. M2016-00824-CCA-R3-PC – Filed June 23, 2017
___________________________________
Petitioner, William B. Gatlin, appeals the denial of his petition for post-conviction relief.
Petitioner alleges that the jury at his original trial was subjected to an improper outside
influence, thereby violating his Sixth Amendment right to an impartial jury. Petitioner
also contends that the post-conviction judge was disqualified and should have recused
himself because he had also presided as the trial judge in Petitioner’s original trial. Upon
our review of the record and applicable authorities, we affirm the judgment of the post-
conviction court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined.
Casey A. Long, Franklin, Tennessee, for the appellant, William Bryan Gatlin.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Robert J. Carter, District Attorney General; and Weakley E. Barnard, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
In 2013, Petitioner was convicted by a jury of one count of possession of
marijuana with intent to sell, one count of possession of marijuana with intent to deliver,
and one count of possession of drug paraphernalia. The trial court merged the marijuana
convictions and imposed a total effective sentence of two years, eleven months, and
twenty-nine days. On direct appeal, Petitioner challenged the trial court’s denial of “his
motion to suppress the evidence obtained during the knock-and-talk encounter and the
warrantless entry into his apartment” as well as the sufficiency of the evidence. State v.
William Bryan Gatlin, No. M2013-02440-CCA-R3-CD, 2015 WL 59746, at *3 (Tenn.
Crim. App. Jan. 2, 2015), perm. app. denied (Tenn. May 22, 2015). This Court affirmed
the judgment of the trial court, and the Tennessee Supreme Court denied permission to
appeal. Id. at *1.
With the assistance of counsel, Petitioner filed a timely petition for post-
conviction relief. As pertinent to this appeal, Petitioner alleged a violation of his Sixth
Amendment right to an impartial jury based on a newspaper editorial that claimed that the
jury was kept in the courtroom for eleven hours with only a lunch break and that at least
one juror had doubts about the guilty verdict.1 Petitioner argued that this editorial
suggested that the jury “reached their verdict under an improper motivation,” basing their
decision to find Petitioner guilty “upon their desire to terminate their duties and be
released to go home and not . . . upon the sufficiency of the evidence.”
At a status hearing on January 8, 2016, counsel apparently sought recusal of the
Honorable F. Lee Russell as the post-conviction judge because he had also presided as
the trial judge.2 Judge Russell granted a continuance for counsel to submit a brief on the
issue. Counsel filed a brief on January 26, 2016, arguing that a trial judge is statutorily
disqualified from hearing a subsequent post-conviction petition that does not allege
ineffective assistance of counsel. On February 17, 2016, the Honorable Forest A. Durard,
Jr., presiding judge for the Seventeenth Judicial District, designated Judge Russell to hear
the post-conviction petition, finding that as “the judge who originally presided over
Petitioner’s case . . . he would be most familiar with the same.” A post-conviction
evidentiary hearing was held on March 11, 2016.
At the beginning of the hearing, post-conviction counsel confirmed that there was
no allegation of ineffective assistance of trial counsel. The post-conviction court inquired
whether trial counsel was aware of the allegation made in the editorial and whether the
issue was waived for failing to address it on direct appeal. Post-conviction counsel said
that the editorial was published after the appeal was filed but before it was heard. 3 Trial
1
Petitioner also alleged a violation of his Fourth Amendment right against unreasonable searches
and seizures. However, this issue was previously determined on direct appeal, see T.C.A. § 40-30-106(h),
and has not been pursued in this appeal, see Ronnie Jackson, Jr. v. State, No. W2008-02280-CCA-R3-PC,
2009 WL 3430151, at *6 n.2 (Tenn. Crim. App. Oct. 26, 2009) (noting that issues raised in the lower
court but not raised on appeal are deemed abandoned), perm. app. denied (Tenn. Apr. 16, 2010).
2
A transcript of this hearing is not in the record.
3
The copy of the editorial that was eventually entered into evidence does not indicate the date it
was published. The direct appeal in this case was heard at oral arguments on October 29, 2014.
-2-
counsel was present during the post-conviction hearing but did not testify. Petitioner also
did not testify.
The first witness to testify was Karen Hall, the author of an editorial in the
Marshall County Tribune that referenced, without mentioning any specific names,
Petitioner’s original trial. Ms. Hall explained that the editorial was intended to “work
people up about the local elections” and encourage people to “speak their mind if they
were unhappy and needed more time to think or weren’t ready to decide.” Ms. Hall
testified that her daughter, Maria Hall, had served as a juror on Petitioner’s trial. Juror
Hall told her mother that she felt that the jury had been “asked to stay too long and they
were tired and they couldn’t hold out and make a good decision.” Ms. Hall testified that
she believed her daughter was a truthful person.
The editorial was entered into evidence and reads, in pertinent part, as follows:
The Tribune has been informed that law enforcement and the
District Attorney’s office recently needed – or wanted – to finish a jury trial
in one day. By the time the jurors retired to deliberate, they had been in the
courtroom, except for a lunch break, for 11 hours. A member of the jury
told me all they wanted to do was find the defendant guilty so they could go
home. This particular jury member had some doubts about the evidence,
and didn’t think “guilty” was the right verdict, but just didn’t have the will
to keep the other jurors there to argue it out.
Making the jurors work until after 9 p.m. wasn’t fair on them, and
wasn’t fair on the defendant.
....
. . . Jury members could have spoken up and said, “We’re tired, we
can’t think any more – please let us go home and come back to finish this
tomorrow!”
Ms. Hall admitted that she did not verify the information that Juror Hall told her
because she was writing an editorial rather than a news story. Ms. Hall testified that
since the publication of her editorial, she had received a letter from Judge Russell
informing her that the allegation about the lack of breaks was incorrect. The letter, dated
May 12, 2014, was entered into evidence. The letter stated that the judge had reviewed
the trial transcript and determined that the jury received the following breaks:
10:57 A.M. – 11:30 A.M.
12:26 P.M. – 1:32 P.M. (lunch break)
-3-
2:02 P.M. – 2:20 P.M.
4:24 P.M. (offer and jury declined break)
5:36 P.M. – 5:41 P.M.
6:19 P.M. – 7:32 P.M. (supper break)
9:03 P.M. (jury excused for deliberations and invited to take
whatever breaks they needed to take during deliberations and
that if any one of them was too tired to continue that night all
twelve would need to come back the next morning to
continue deliberations)
Next, Maria Hall testified that she served as a juror on Petitioner’s trial. She
remembered that she arrived at the courthouse for jury selection around “quarter to nine
in the morning,” that the trial started “sometime after lunch,” and that she was released
from her duty as a juror “sometime after nine.” It was sometime after dark when the jury
started their deliberations. She could not remember how long she and the other jurors
deliberated, but she did not “think it was more than an hour.”
Juror Hall testified that she was originally of the opinion that Petitioner was not
guilty of “dealing drugs.” She did not believe that a certain piece of evidence was a tally
sheet of drug sales. She expressed her opinion to the other jurors but was not successful
in convincing them. Juror Hall eventually voted guilty because she was under the
impression that the jury had to come to a unanimous decision. Juror Hall testified that
she did not understand what a “hung jury” was at the time. Juror Hall testified that the
jury was not offered the opportunity to go home for the night and return the following
day to continue deliberations. She stated that she would have accepted that offer because
she was anxious to get home to feed animals in her care. However, she was not sure that
a break would have changed her ultimate vote because there were eleven other jurors
against her. She felt that it was “hopeless” to try to get the others to “change their minds
or see things from [her] perspective.”
Juror Hall admitted that she spoke to her mother about her experience as a juror
after the trial was concluded. Juror Hall did not read her mother’s editorial until the day
before the post-conviction hearing, and she agreed that it was “an abbreviated account” of
the trial. Juror Hall remembered the jury taking “[m]aybe four or more” breaks as well as
declining an offer to take a break “so we could get it over with faster.” Juror Hall
clarified that the jurors were not given the opportunity to go home and come back in the
morning to continue deliberations. After the post-conviction court warned Juror Hall
about the consequences of lying under oath, she testified that the judge was the person
who told her and the other jurors that the case had to be concluded that day. She said that
the judge explained that “he had another courtroom to be in the next day.” She said the
statement was made before jury selection started and that she “had no idea that the trial
was going to go on that late into the night.”
-4-
On cross-examination, Juror Hall stated that she occasionally wrote for the
newspaper, assisting her mother in covering trials in the Circuit Court of Marshall
County. She never stayed during jury deliberations, but she had heard judges give jury
instructions before. Juror Hall agreed that judges typically gave juries an estimation of
how long a trial was expected to last. Juror Hall did not believe that she misunderstood
the judge when he said that this trial had to be completed in a single day.
Juror Hall agreed that the jury had several breaks throughout the trial, including a
morning break, a lunch break, bathroom breaks in the afternoon, and a supper break. The
jury also turned down an offer to take a break. Juror Hall denied that she told her mother
that the jurors were in the courtroom for eleven hours without a break as was reported in
the editorial. She testified that she was “surprised” to read that in the editorial and stated
that she “would have never insinuated or said that we had no breaks.” Juror Hall did not
know why her mother attributed the need to complete the trial in a day to the District
Attorney’s Office or law enforcement instead of the judge.
Juror Hall agreed that the judge instructed the jury that it had to reach a unanimous
verdict in order to convict Petitioner. She testified that she had never sat in on a trial
where the jury could not reach a verdict. Juror Hall did not know what would happen if a
jury could not reach a unanimous verdict, stating “I figured that there was either guilty or
innocent. I didn’t know that there was a middle ground.” Juror Hall testified that she
voted guilty not because the other jurors changed her mind but because she “just gave
up.” Juror Hall testified that the trial ended around nine o’clock that night and that she
was concerned about taking care of someone else’s animals. Juror Hall agreed that she
raised her hand when the judge polled the jury by asking “if that is your individual
verdict, ladies and gentlemen, would you raise your right hand.” Juror Hall denied that
she lied to the court at that time. Juror Hall explained that she voted guilty because
believed Petitioner “was guilty of something,” even though she “didn’t think he was
guilty of being a dealer.”
On redirect examination, Juror Hall further explained that she voted guilty because
she “couldn’t persuade the other eleven people that I didn’t see the evidence the way they
did. And it was getting late and everyone wanted to go home.” Juror Hall testified that
she also had her responsibilities with regard to the animals she was caring for on her
mind. She testified that she did not know they had “an option to be a hung jury” and that
“everyone else was getting annoyed with [her].” She agreed that 9:00 p.m. was late
considering that she had spent “12 hours away from home.”
On recross-examination, Juror Hall explained that she felt that the other jurors
were annoyed with her because she disagreed that a piece of paper listing names and
numbers that had been entered into evidence was a tally sheet showing drug sales. She
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estimated that she and the other jurors discussed the tally sheet for fifteen minutes or less.
None of the jurors expressly said they were annoyed with her or raised their voice at her.
On further redirect examination, Juror Hall testified that the other jurors were not
“hostile” toward her but did seem “aggravated” and “impatient.” She felt that “eleven
people [were] like, come on, you’re the only one that’s between us and going home.”
The post-conviction court showed Juror Hall a copy of the Tennessee Pattern Jury
Instructions, and she agreed that the judge read it to the jury before their deliberations.
Juror Hall testified that she was listening when the judge read the instructions and that
she recalled him reading Tennessee Pattern Jury Instruction 43.02, which states, “But do
not surrender your honest conviction as to the weight or effect of the evidence solely
because of the opinion of your fellow jurors or for the mere purpose of returning a
verdict.”
The State then called Donald Smith, another juror from Petitioner’s trial. Juror
Smith agreed that the jury received “a sufficient number of breaks to keep [them] relaxed
and not being concerned about wetting [their] pants and stuff like that[.]” Juror Smith
recalled taking lunch and supper breaks. Juror Smith did not recall what time the jury
returned its verdict other than it was at night. Juror Smith did not remember how long the
deliberations took, but he denied that there was any animosity during the deliberation
process. He did not remember “anybody telling anyone we need to get home, let’s reach
a verdict[.]” He agreed that when the verdict was reached, it appeared that everyone
agreed with the verdict of guilty. Petitioner did not cross-examine Juror Smith. After the
parties confirmed that they would not be calling any of the other jurors, they were
dismissed by the post-conviction court.4
The written jury instructions were entered into evidence as well as a copy of the
trial transcript that had been submitted to this Court on direct appeal. The post-
conviction court then noted that the parties may not have received a copy of the
memorandum opinion he had written prior to the hearing which contained a procedural
history of the case. The memorandum was entered as an exhibit to the hearing and
appears in the technical record as being filed the same day as the post-conviction hearing,
though the certificate of service indicates that it was written in January 2016. Both the
letter to Ms. Hall and the memorandum opinion contained a list of breaks that the jury
took as determined by the post-conviction court’s consultation with the court reporter and
review of the trial transcript.
At the conclusion of the hearing, the post-conviction court found that the proof at
trial was “overwhelming” and that “the only conclusion that an impartial juror could have
reached was that the [Petitioner] was guilty.” The post-conviction court stated that he did
4
It appears that eleven of the twelve jurors from Petitioner’s trial were subpoenaed for the post-
conviction hearing and that the twelfth had passed away sometime after the trial.
-6-
not tell the jury that the trial must be completed in a day and that he did offer the jury the
opportunity to resume deliberations in the morning if any one of them was too tired to
proceed. The post-conviction court found that Juror Hall’s testimony was “entitled to no
credibility” and was “full of contradictions.”
On March 28, 2016, the post-conviction court filed a written order dismissing the
petition along with a supplemental memorandum opinion containing additional findings.
The post-conviction court found that the editorial was “rank hearsay” and that its
allegation about the lack of breaks was “demonstrably false.” The post-conviction court
noted that the editorial was brought to the attention of trial counsel in time for him to
raise any issues with regard to the lack of breaks on direct appeal. The post-conviction
court found that deliberations were short, that the only piece of evidence at issue—the
tally sheet—was discussed for fifteen minutes, that there was no evidence of any other
juror applying undue pressure on Juror Hall to get her to change her vote to guilty, and
that Juror Hall’s testimony that she voted guilty because she was concerned about getting
home to care for animals was not credible. The post-conviction court found that there
was no clear and convincing evidence of any juror misconduct or any deprivation of
Petitioner’s constitutional rights. Petitioner filed a timely notice of appeal.
Analysis
On appeal, Petitioner argues that the testimony of Juror Hall established that his
Sixth Amendment right to an impartial jury was violated. He asserts that Juror Hall’s
testimony—that the judge told the jury that the trial had to be completed in a day and did
not offer the jurors the opportunity to resume deliberations the next day—“create[d] a
presumption that the jury was exposed to extraneous information that prejudiced the
[Petitioner’s] case” and that the State failed to rebut this presumption. Petitioner also
argues that the post-conviction judge should have recused himself because he also
presided as the trial judge in this case, relying on prior versions of the Post-Conviction
Procedure Act and cases interpreting those versions. Petitioner argues that recusal is
further warranted because his allegation with regard to the improper influence on the jury
“creates an appearance of bias even if no actual bias may exist.” The State responds that
there was no credible evidence establishing an improper outside influence on the jury and
that the cases relied upon by Petitioner for the post-conviction court’s recusal are no
longer good law. We will address the threshold issue of whether the post-conviction
judge should have recused himself before addressing the merits of Petitioner’s Sixth
Amendment claim.
I. Standard of Review
Post-conviction relief is available for any conviction or sentence that is “void or
voidable because of the abridgment of any right guaranteed by the Constitution of
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Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.”
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). This Court will review
the post-conviction court’s findings of fact “under a de novo standard, accompanied with
a presumption that those findings are correct unless the preponderance of the evidence is
otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citations omitted). This
Court will not re-weigh or re-evaluate the evidence presented or substitute our own
inferences for those drawn by the trial court. Id. at 456. Questions concerning witness
credibility, the weight and value to be given to testimony, and the factual issues raised by
the evidence are to be resolved by the post-conviction court. Id. However, the post-
conviction court’s conclusions of law and application of the law to the facts are reviewed
under a purely de novo standard, with no presumption of correctness. Id. at 458.
II. Recusal of Post-Conviction Judge
“The right to a fair trial before an impartial tribunal is a fundamental constitutional
right.” State v. Austin, 87 S.W.3d 447, 470 (Tenn. 2002). Article VI, section 11 of the
Tennessee Constitution provides, “No Judge of the Supreme or Inferior Courts shall
preside on the trial of any cause in the event of which he may be interested.” Pursuant to
Tennessee Supreme Court Rule 10, Code of Judicial Conduct Rule 2.11, “[a] judge shall
disqualify himself or herself in any proceeding in which the judge’s impartiality might
reasonably be questioned.” “A judge should grant a motion to recuse when the judge has
any doubt as to his or her ability to preside impartially in the case or when a person of
ordinary prudence in the judge’s position, knowing all of the facts known to the judge,
would find a reasonable basis for questioning the judge’s impartiality.” Smith v. State,
357 S.W.3d 322, 341 (Tenn. 2011) (internal quotation omitted). The test for recusal is
objective, id., and this Court will review the issue de novo, Tenn. S. Ct. R. 10B, § 2.01.
Petitioner argues that a trial judge is disqualified from later presiding as the post-
conviction judge when there is no allegation of ineffective assistance of counsel, relying
primarily on this Court’s opinion in Steadman v. State, 806 S.W.2d 780 (Tenn. Crim.
App. 1990). In Steadman, Judge Tipton summarized the historical development of the
designation of a hearing judge under the Post-Conviction Procedure Act:
The Post-Conviction Procedure Act, as originally enacted, required
the petition to be filed with the clerk of the convicting court, but it had no
provision limiting the original trial judge’s authority to preside. 1967 Tenn.
Pub. Acts, ch. 310, § 2. In 1969, the legislature amended the law by
requiring the Chief Justice of the Tennessee Supreme Court to designate a
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judge “to hear and determine such petition, except the Judge who presided
at the criminal trial in which the conviction occurred.” 1969 Tenn. Pub.
Acts, ch. 242, § 1 (emphasis added). This amendment has been viewed,
and reasonably so, as a legislative attempt to “ensure that the post-
conviction petition would be heard before an impartial judge.” Anderson,
Post-Conviction Relief in Tennessee—Fourteen Years of Judicial
Administration under the Post-Conviction Procedure Act, 48 Tenn. L. Rev.
605, 616, n. 42 (1981). Likewise, its application appeared mandatory.
Mr. Anderson’s article notes that the legislature then deleted the
original judge prohibition in 1971 in response to complaints that cases were
not being heard by the original trial judge. 48 Tenn. L. Rev. at 622.
However, in 1972, the legislature specifically restored the prohibition, but
with an exception relating to competency of counsel issues:
The chief justice of the Tennessee Supreme Court shall
designate and assign any chancellor, judge of the criminal
court, or circuit court judge to hear and determine such
petition, except the judge who presided at the criminal trial in
which the conviction occurred, provided however, the
original trial judge, where available, shall be designated
where an issue is raised as to the competency of counsel
representing the petitioner in the original proceeding.
1972 Tenn. Pub. Acts, ch. 792, § 1; T.C.A. § 40-30-103(b) (1982).
In May v. State, 589 S.W.2d 933 (Tenn. Crim. App. 1979), this
Court construed the 1972 amendment in the context of whether or not it
constituted a mandatory prohibition regardless of the lack of actual
prejudice. . . .
Steadman, 806 S.W.2d at 783 (footnote omitted). The May court concluded that the
statutory prohibition was mandatory but that the “‘error ha[d] been rendered harmless by
the circumstances of this case . . . where the only matter raised by petitioner concerns the
orders of the appellate court and not the actions of the judge who presided at trial.’”
Steadman, 806 S.W.2d at 783 (quoting May, 589 S.W.2d at 934). Then, in State v.
Garrard, 693 S.W.2d 921 (Tenn. Crim. App. 1985), this Court again interpreted the
statutory provision for the designation of a post-conviction judge, which at the time
allowed the designation of any judge “except the judge who presided at the criminal trial
in which the conviction occurred, unless the issue of incompetent trial counsel is raised.”
Id. at 922. Despite very similar language to that at issue in May, the Garrard court held
that “[t]he designation of a hearing judge is purely an administrative function and nothing
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more” and concluded that “[t]here was no constitutional deprivation” for the trial judge to
preside as post-conviction judge even when there was no allegation of ineffective
assistance of counsel. Id.
Judge Tipton provided the following analysis of the statute in effect at the time
Steadman was decided:
In 1988, the legislature again amended T.C.A. § 40-30-103(b).
Subdivision (1) entails the procedures involved when competency of
counsel is an issue. Subdivision (2) states as follows:
If such petition does not raise the issue of competency of
counsel at the original trial or appellate proceeding, the chief
justice shall designate and assign an appropriate judge to hear
and determine such petition. Unless the provisions of
subdivision (1) are applicable, the designated judge shall not
be the same judge who presided at the trial in which the
conviction occurred. (emphasis added).
Thus, the legislature has clearly stated that the original judge is not
competent to hear and determine this type of post-conviction case and its
use of the word “shall” in the statute, as in “shall not,” made the original
judge prohibition mandatory. . . .
Such a statutory prohibition’s purpose is to “guard against
prejudgment of the controversy.” In re Cameron, [151 S.W. 64, 76 (Tenn.
1912)]. Also, it should apply even though, as in this case, there is no
evidence of partiality by the trial judge. . . . In essence, the presence of a
statutory or constitutional provision that a judge is incompetent in a given
proceeding is a declaration that, as a matter of policy, the appearance of
fairness in the justice system is as important as actual fairness to our
society.
....
We, therefore, hold that, absent consent or waiver by the parties,
T.C.A. § 40-30-103(b)(2) renders the judge who presided at the convicting
trial incompetent to hear and determine a post-conviction petition which
attacks that conviction or resulting sentence, but does not raise the issue of
competency of counsel. Further, such disqualification bars the original trial
judge from taking any judicial action which may dispose of the petition or
otherwise affects its merits, even if no evidentiary hearing is required.
- 10 -
Steadman, 806 S.W.2d at 784-85 (footnote omitted); accord. State v. Lewis Ted Messer,
No. C.C.A. 146, 1989 WL 157931, at *1 (Tenn. Crim. App. Dec. 29, 1989).
Petitioner argues that “the Steadman case remains the law on this matter as it has
not been reversed or modified by any other appellate decisions,” citing Tennessee
Supreme Court Rule 4(G)(2).5 However, just three years after the Steadman opinion, the
legislature again amended the language of 40-30-103(b) to read as follows:
At either the trial proceeding or an appellate proceeding reviewing the
proceeding, the presiding judge of the appropriate court shall assign a judge
to hear the petition. The issue of competency of counsel may be heard by a
judge other than the original hearing judge. If a presiding judge is unable
to assign a judge, the chief justice of the supreme court shall designate an
appropriate judge to hear the matter.
Thomas E. Montooth v. State, No. 01C01-9604-CC-00126, 1997 WL 381907, at *3
(Tenn. Crim. App. July 11, 1997) (emphasis in original) (quoting T.C.A. § 40-30-103(b)
(Supp. 1993)), perm. app. denied (Tenn. 1998); see also Harris v. State, 947 S.W.2d 156,
172 (Tenn. Crim. App. 1996) (citing T.C.A. § 40-30-103 (Supp. 1994)). Then, in 1995,
the legislature completely repealed and replaced the entire Post-Conviction Procedure
Act. See 1995 Tenn. Pub. Acts, c. 207, § 1 (“Tennessee Code Annotated, Title 40,
Chapter 30 is amended by deleting the chapter in its entirety and by substituting instead
the following”); id. at § 3 (“This act shall . . . govern all petitions for post-conviction
relief filed after this date”). The present version of the statute, now enumerated 40-30-
105, provides for the designation of a post-conviction judge as follows: “the presiding
judge of the appropriate court shall assign a judge to hear the petition. The issue of
competency of counsel may be heard by a judge other than the original hearing judge.”
T.C.A. § 40-30-105(b) (2012) (emphasis added).
“[T]he General Assembly has plenary power within constitutional limits to change
the common law by statute.” Lavin v. Jordon, 16 S.W.3d 362, 368 (Tenn. 2000) (citation
omitted). The provisions of the statute prevail over conflicting common law, and only
where “a statute does not include and cover such a case [does] it leave[ ] the law as it was
before its enactment.” Id. (citations omitted). Moreover, “[n]o principle of law is better
settled than that a statute purporting to cover an entire subject repeals all former statutes
upon the same subject, either with or without a repealing clause, and notwithstanding it
may omit material provisions of the earlier statutes.” Mowery v. State, 352 S.W.2d 435,
5
The State’s contention that Steadman had not been cited on the issue of mandatory judicial
recusal since it was decided is incorrect. See William Guffey v. State, No. 03C01-9108-CR-266, 1992 WL
20270, at *2 (Tenn. Crim. App. Feb. 10, 1992), perm. app. denied (Tenn. May 4, 1992); John A. Brown v.
State, No. 01C01-9010-CR-00254, 1991 WL 94575, at *3 (Tenn. Crim. App. Jun. 6, 1991).
- 11 -
438 (Tenn. 1961) (citation omitted). Tennessee Code Annotated section 40-30-105(b),
which covers the same subject as the statute at issue in Steadman, contains permissive
rather than mandatory language. See Huey v. King, 415 S.W.2d 136, 139 (Tenn. 1967)
(noting that “[i]t is well[-]settled that the term ‘may’ . . . is permissive and operates to
confer a discretion”). Therefore, the holding in Steadman that the disqualification of the
original trial judge is mandatory in post-conviction proceedings not alleging ineffective
assistance of counsel has been abrogated by subsequent amendments to the Post-
Conviction Procedure Act. Cf. Clinton Mason v. State, No. 01C01-9705-CR-00197,
1998 WL 140016, at *1 (Tenn. Crim. App. Mar. 25, 1998) (finding that the trial court
erred in relying on State v. Clark, 774 S.W.2d 634 (Tenn. Crim. App. 1989), because of
the 1993 amendment to T.C.A. § 40-30-103(b)), perm. app. denied (Tenn. July 13, 1998).
In fact, this Court has specifically held that Tennessee Code Annotated section 40-
30-105(b) “does not prohibit the original trial judge from hearing the post-conviction
petition.” Arthur Lee Jones v. State, No. M2006-01835-CCA-R3-PC, 2007 WL
2042509, at *3 (Tenn. Crim. App. July 17, 2007), perm. app. denied (Tenn. Dec. 17,
2007). Since the amendment of the statute, this Court has reverted to the holding in
Garrard that the designation of a post-conviction judge is “‘purely an administrative
function’” and that “it is not a ‘constitutional deprivation’ for the judge who presided
over a petitioner’s trial to also preside over his post-conviction proceeding.” Willis
Holloway v. State, No. W2014-02444-CCA-R3-PC, 2015 WL 6122155, at *3 (Tenn.
Crim. App. Oct. 16, 2015) (quoting Garrard, 692 S.W.2d at 922), perm. app. denied
(Tenn. Mar. 23, 2016); see also Ronnie Lee Johnson v. State, No. M2011-00881-CCA-
R3-PC, 2012 WL 5377807, at *6 (Tenn. Crim. App. Oct. 29, 2012) (citing Garrard
rather than Steadman as controlling precedent), perm. app. denied (Tenn. Mar. 5, 2013).
This Court has even interpreted Garrard as standing for the proposition that “generally,
adjudication of a post-conviction petition by the same court which presided over a
petitioner’s trial is both proper and expedient.” Christa Gail Pike v. State, No. E2009-
00016-CCA-R3-PD, 2011 WL 1544207, at *43 (Tenn. Crim. App. Apr. 25, 2011), perm.
app. denied (Tenn. Nov. 15, 2011); see also Harris, 947 S.W.2d at 173 (noting the
pervasiveness of the practice and concluding that “to require recusal whenever a trial
judge in a post-conviction proceeding has knowledge of disputed facts [obtained from
presiding at the earlier trial] would wreak havoc in the criminal justice system”). We
hold that under Tennessee Code Annotated section 40-30-105(b), a trial judge is not
statutorily disqualified from later presiding as the post-conviction judge regardless of
whether the petition raises a claim of ineffective assistance of counsel.
While statutory disqualification was the primary legal basis for recusal provided in
either the post-conviction court or on appeal, Petitioner also argued that his Sixth
Amendment claim with regard to jurors “reach[ing] their verdict under an improper
motivation” created an appearance of bias because it “allege[d] impropriety in the
procedures surrounding the trial itself.” In his appellate brief, Petitioner further alleges
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that the appearance of bias was created when the post-conviction judge wrote a
memorandum opinion prior to the hearing, “appeared to be attempting to testify and to
introduce evidence on his own without the request or prompting of either party, appeared
to threaten a witness with aggravated perjury, and engaged in other irregular actions”
such as writing a letter to and meeting with Ms. Hall in regards to her editorial. To
properly address such allegations, we will also review Petitioner’s claim under general
recusal principles.
As stated above, a judge should recuse himself whenever he has any doubt as to
his ability to preside impartially or whenever his impartiality can reasonably be
questioned. Smith, 357 S.W.3d at 341. The well-recognized rationale behind this rule is
that “the appearance of bias is as injurious to the integrity of the judicial system as actual
bias.” State v. Odom, 336 S.W.3d 541, 575 (Tenn. 2011) (internal quotation omitted).
However, not every alleged bias, partiality, or prejudice merits recusal. Alley v. State,
882 S.W.2d 810, 821 (Tenn. Crim. App. 1994). “[A] judge is in no way disqualified
merely because he has participated in other legal proceedings against the same person.”
Harris, 947 S.W.2d at 172 (citing King v. State, 391 S.W.2d 637, 642 (Tenn. 1965)).
Neither adverse rulings by the judge nor opinions “based on actual observance of
witnesses and evidence given during the [proceedings]” is sufficient to establish bias.
Alley, 882 S.W.2d at 821. Similarly, “prior knowledge of facts about the case is not
sufficient in and of itself to require disqualification.” Harris, 947 S.W.2d at 172.
“[P]rejudice must be of a personal character, directed at the litigant, must stem from an
extrajudicial source and result in an opinion on the merits on some basis other than what
the judge learned from . . . participation in the case.” Alley, 882 S.W.2d at 821 (internal
quotation omitted). “However, if the bias is so pervasive that it is sufficient to deny the
litigant a fair trial, it need not be extrajudicial.” Id.
As an initial matter, we will not infer impartiality based on the judge’s letter to
Ms. Hall written well before any related Sixth Amendment claim had been raised. See
Kennath Henderson v. State, No. W2003-01545-CCA-R3-PD, 2005 WL 1541855, at *28
(Tenn. Crim. App. Jun. 28, 2005) (refusing to infer impartiality based on a letter
containing “clearly complimentary” statements with regard to trial counsel’s performance
written “well before any claim of ineffective assistance of counsel had been presented”),
perm. app. denied (Tenn. Dec. 5, 2005). The letter simply indicated that the judge had
reviewed the trial transcript in order to clarify any misconceptions on the part of the
author of the editorial, not that he had prejudged Petitioner’s Sixth Amendment claim
with regard to the effect the number of breaks may have had on the jury. See Paul
Dennis Reid, Jr. v. State, No. M2009-00128-CCA-R3-PD, 2011 WL 3444171, at *41
(Tenn. Crim. App. Aug. 8, 2011) (finding that the trial court’s “comments about defense
counsel’s representation she made in denying the motion for new trial . . . were general in
nature and in no way constituted a finding on counsel’s performance under the Strickland
v. Washington analysis,” especially when the issue had not yet been raised), aff’d sub
- 13 -
nom. Reid ex rel. Martiniano v. State, 396 S.W.3d 478 (Tenn. 2013); Thomas E.
Montooth, 1997 WL 381907, at *2 (refusing to infer impartiality based on “gratuitous”
observations regarding the performance of counsel made during the sentencing hearing
before any claim of ineffective assistance of counsel had been made). There is no
indication in this case that the post-conviction judge would be impartial in determining
the Sixth Amendment claim based on his response to the editorial.
As far as the judge’s fairly active participation in the post-conviction hearing,
there is nothing in the record to indicate that he did anything improper or that he formed
an opinion on the merits on some basis other than what he learned from participation in
the case. “Any comment made by the trial court must be construed in the context of all
the facts and circumstances to determine whether a reasonable person would construe
those remarks as indicating partiality on the merits of the case.” Alley, 882 S.W.2d at
822. Nothing said by the post-conviction court was directed specifically and personally
at Petitioner or his counsel. The post-conviction court’s questioning of Juror Hall and his
warning that she could be charged with aggravated perjury if she lied under oath do not
suggest that his impartiality might reasonably be questioned. “Unquestionably trial
judges as human beings may often find themselves forming opinions as to the credibility
of witnesses.” Kennath Henderson, 2005 WL 1541855, at *27. In the post-conviction
context, where the judge is the trier of fact, there is no concern that these statements may
potentially prejudice a jury; therefore, recusal is not required. Id. (citing Bowling v.
Commonwealth, 80 S.W.3d 405, 420 (Ky. 2002)).
Finally, while it is true that a “judge cannot both preside at a post-conviction
proceeding and serve as a witness in that proceeding,” Harris, 947 S.W.2d at 172 (citing
Tenn. R. Evid. 605), we disagree that the post-conviction judge acted as a witness in this
case or did anything to deny Petitioner a fair hearing on the Sixth Amendment issue. Cf.
Kennath Henderson, 2005 WL 1541855, at *28 (“While we do not sanction the conduct
of the post-conviction judge, especially his participation as a witness, we conclude that
the judge’s conduct did not diminish the overall fairness of the proceeding.”). There was
nothing improper about the judge consulting with the court reporter and taking judicial
notice of the court’s own records. See State v. Lawson, 291 S.W.3d 864, 869-70 (Tenn.
2009). The information the judge provided with regard to the number of breaks taken by
the jury as well as what was said during voir dire and jury instructions could have been
easily verified through either the testimony of the available witnesses or a review of the
full trial transcript.6 See Harris, 947 S.W.2d at 173 (finding no basis for recusal when
“the judge was not a significant source of information at the hearing” and “other
witnesses were available to address the factual issues”). However, as discussed further
6
We note that, unlike in Kennath Henderson, Petitioner did not seek recusal of the post-
conviction court on the ground that he would be needed as a necessary material witness. See 2005 WL
1541855, at *24.
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below, Petitioner did not call trial counsel or any of the jurors besides Juror Hall to testify
and did not cross-examine Juror Smith with regard to the supposed pressure placed on the
jury by the trial judge. Moreover, the copy of the trial transcript that was entered into
evidence was the same transcript that had been submitted to this Court on direct appeal
and did not include those portions of the trial that would be relevant to Petitioner’s
present claim. Petitioner has not established that the post-conviction judge did anything
that would “diminish the overall fairness of the proceeding” with regard to his Sixth
Amendment claim. See id. Petitioner is not entitled to a new post-conviction hearing.
III. Improper Influence on Jury
Under both the Sixth Amendment to the United States Constitution and article I,
section 9 of the Tennessee Constitution, every criminal defendant has the right to a trial
by an impartial jury. State v. Adams, 405 S.W.3d 641, 650 (Tenn. 2013) (citing State v.
Sexton, 368 S.W.3d 371, 390 (Tenn. 2012)). “Jurors must render their verdict based only
upon the evidence introduced at trial, weighing the evidence in light of their own
experience and knowledge.” Id. (citing Caldararo ex rel. Caldararo v. Vanderbilt Univ.,
794 S.W.2d 738, 743 (Tenn. Ct. App. 1990)). If the jury has been exposed to extraneous
prejudicial information or subjected to an improper outside influence, the validity of the
verdict is questionable and a new trial may be warranted. Id. (citing State v. Blackwell,
664 S.W.2d 686, 688 (Tenn. 1984)).
“A party challenging the validity of a verdict must produce admissible evidence to
make an initial showing that the jury was exposed to extraneous prejudicial information
or subjected to an improper outside influence.” Id. at 651 (citing Caldararo, 794 S.W.2d
at 740-41). Once such a showing has been made, “a rebuttable presumption of prejudice
arises and the burden shifts to the State to introduce admissible evidence to explain the
conduct or demonstrate that it was harmless.” Id. (citing Walsh v. State, 166 S.W.3d 641,
647 (Tenn. 2005)). Whether the constitutional right to an impartial jury has been violated
is a mixed question of law and fact which we review de novo, granting a presumption of
correctness only to the trial court’s findings of fact. Id. at 656 (citing Fields, 40 S.W.3d
at 458).
“[A] defendant is entitled to a fair trial, not a perfect trial, and our ultimate inquiry
is whether the jury that tried the case was actually fair and impartial.” State v. Leath, 461
S.W.3d 73, 110-11 (Tenn. Crim. App. 2013) (internal quotation omitted). “It is virtually
impossible to shield jurors from every contact or influence that might theoretically affect
their vote. Thus, it would be unreasonable, and perhaps unwise, to expect juries to be
completely sterilized and free of any external influences.” Caldararo, 794 S.W.2d at
743-44 (citing Smith v. Phillips, 455 U.S. 209, 217 (1982)). Thus, our courts have
generally defined extraneous prejudicial information as information “coming from
without,” or more specifically as “information in the form of either fact or opinion that
- 15 -
was not admitted into evidence but nevertheless bears on a fact at issue in the case.”
Adams, 405 S.W.3d at 650 (citations omitted). Similarly, an improper outside influence
has been defined as “any unauthorized private communication, contact, or tampering
directly or indirectly, with a juror during a trial about the matter pending before the jury.”
Id. at 650-51 (internal quotation omitted). These categories “often overlap” and may be
considered together. Neil P. Cohen, et al., Tennessee Law of Evidence § 6.06[6], at 6-54
(5th ed. 2005) (citing Blackwell, 664 S.W.2d at 688-89). However, Tennessee courts
have drawn a “distinction between extrinsic and intrinsic influence” on the jury.
Caldararo, 794 S.W.2d at 742. “External influences that could warrant a new trial if
found to be prejudicial include: (1) exposure to news items about the trial, (2)
consideration of facts not admitted in evidence, and (3) communications with non-jurors
about the case.” Id. (citations omitted). On the other hand, internal influences such as
“(1) discussions among jurors, (2) intimidation or harassment of one juror by another, (3)
a juror’s personal experiences not directly related to the litigation, and (4) a juror’s
subjective thoughts, fears, and emotions” are not reason enough for a new trial. Id.
(citations omitted).
Tennessee Rule of Evidence 606(b) provides clear guidance on the type of
evidence that is admissible when challenging a jury’s verdict:
Upon an inquiry into the validity of a verdict or indictment, a juror may not
testify as to any matter or statement occurring during the course of the
jury’s deliberations or to the effect of anything upon any juror’s mind or
emotions as influencing that juror to assent to or dissent from the verdict or
indictment or concerning the juror’s mental processes, except that a juror
may testify on the question of whether extraneous prejudicial information
was improperly brought to the jury’s attention, whether any outside
influence was improperly brought to bear upon any juror, or whether the
jurors agreed in advance to be bound by a quotient or gambling verdict
without further discussion; nor may a juror’s affidavit or evidence of any
statement by the juror concerning a matter about which the juror would be
precluded from testifying be received for these purposes.
“The rule precludes inquiries into the jury’s deliberative process while allowing juror
testimony concerning objective incidents or events that constitute external or extraneous
influences on the jury.” Caldararo, 794 S.W.2d at 742. In other words, “a juror may
testify to any facts bearing upon the question of the existence of any extraneous
influence, although not as to how far that influence operated upon his mind.” Walsh, 166
S.W.3d at 649 (internal quotation omitted). The rationale behind this rule has been
explained as follows:
- 16 -
[Rule] 606(b) represents a compromise between important public policies.
It enables the courts to protect the litigants from verdicts tainted by
extraneous prejudicial information or outside influence. At the same time,
it recognizes the importance of the inviolate nature of a jury’s deliberations
. . . . Thus, it insures that jurors will not be guarded in their deliberations for
fear of later scrutiny by others. It also prevents jurors whose views are in
the minority from manipulating the system by repudiating the verdict and
thereby requiring a new trial.
Caldararo, 794 S.W.2d at 741-42; see also Carruthers v. State, 145 S.W.3d 85, 92-93
(Tenn. Crim. App. 2003) (noting that the public policy considerations behind Rule 606(b)
“include the prevention of jury harassment, encouragement of free and open jury
deliberation, promotion of finality of verdicts, and the reduction of the incentive for jury
tampering”).
As an initial matter, Petitioner has failed to produce any admissible or credible
evidence to make the initial showing that the jury was exposed to extraneous prejudicial
information or subjected to an improper outside influence.7 See Adams, 405 S.W.3d at
651. Juror Hall’s entire testimony with regard to her thought process during deliberations
—including her impression that she was annoying the other jurors with her reluctance,
her feeling of hopelessness in changing the other jurors’ minds, her misunderstanding of
the trial court’s instructions, and her desire to terminate her duties so that she could get
home to feed someone else’s pets—was inadmissible under Rule 606(b). See Walsh, 166
S.W.3d at 647 (“[A] juror is not permitted to testify about anything occurring during
deliberations, including the juror’s own internal thoughts, motivations, or emotions.”);
State v. Clayton, 131 S.W.3d 475, 480 (Tenn. Crim. App. 2003) (jurors’ testimony that
they changed their verdict because the foreman told them that the judge would be “upset”
if the verdict was not unanimous was inadmissible under Rule 606(b)). The editorial
written by Ms. Hall and her testimony with regard to what her daughter told her about
feeling pressured to reach a verdict are not only “rank hearsay” as found by the post-
conviction court, they are also inadmissible as an end-run around Rule 606(b). See Tenn.
R. Evid. 801(c) (defining hearsay); id. at 802 (making hearsay inadmissible); id. at 606(b)
7
The State acknowledged in its appellate brief that it did not object to the admissibility of any of
Petitioner’s evidence. Generally, “[w]hen a party does not object to the admissibility of evidence, . . . the
evidence becomes admissible notwithstanding any other Rule of Evidence to the contrary.” State v.
Smith, 24 S.W.3d 274, 280 (Tenn. 2000). However, from our reading of Walsh, the Tennessee Supreme
Court analyzed the admissibility under Rule 606(b) of the State’s cross-examination into the effect of an
improper influence on a juror’s deliberation, even though it appears that the petitioner did not object
during the hearing. See 166 S.W.3d at 644-45. Because of the importance of “protect[ing] the integrity
of the jury’s deliberative process,” id. at 646, we feel compelled to note that much of Petitioner’s
evidence should not have been admissible. Regardless, our ultimate conclusion that Petitioner failed to
establish an improper outside influence on the jury would be the same based on the post-conviction
court’s credibility determinations.
- 17 -
(“evidence of any statement by the juror concerning a matter about which the juror would
be precluded from testifying [may not] be received for these purposes”).
The only admissible evidence under Rule 606(b) with regard to allegedly
extraneous prejudicial information or improper outside influence was Juror Hall’s
testimony that the trial judge told the jury that the trial had to be completed in a single
day and that he did not give them the option to resume deliberations in the morning. 8 See
Walsh, 166 S.W.3d at 649 (holding that a juror may testify to the objective fact of an
improper influence but not its subjective effect). However, the post-conviction court
found that Juror Hall’s testimony that any of this even happened was “entitled to no
credibility.” As stated above, this Court will not second-guess the post-conviction court’s
credibility determinations. See Fields, 40 S.W.3d at 456. Further, Juror Hall’s testimony
is not supported by the record. Petitioner did not attempt to bolster Juror Hall’s
testimony that this occurred by questioning Juror Smith, any of the other subpoenaed
jurors, or trial counsel as to whether these statements were made by the trial judge.
Moreover, the trial transcript that was entered into evidence does not contain anything
said during either the pre-trial jury selection or the post-trial jury instructions, even
though these portions were presumably available to be transcribed based on the judge’s
consultation with the court reporter. Petitioner carries the burden of proving his factual
allegations in the post-conviction court by clear and convincing evidence, and he failed to
do so in this case. See T.C.A. § 40-30-110(f); Momon, 18 S.W.3d at 156.
Even assuming the trial court did say that the case had to be completed in a single
day,9 a judge instructing a jury in open court is neither extraneous nor improper. Such
statements, if they indeed were made, are neither unauthorized private communication
with a juror nor do they bear directly on a fact at issue in the case. See Adams, 405
S.W.3d at 650. The allegations in this case are clearly distinguishable from cases in
which jurors communicated with court officers, dismissed alternate jurors, or the judge
outside the courtroom, off the record, and after deliberations had commenced. See id. at
649 (note left by discharged alternate juror in jury foreman’s hotel room expressing belief
in defendant’s guilt); Walsh, 166 S.W.3d at 644 (court officer telling jury during
8
On appeal, Petitioner has abandoned his original claim that the jury was not given sufficient
breaks throughout the course of the trial, as was claimed in the editorial. See Ronnie Jackson, Jr., 2009
WL 3430151, at *6 n.2 (noting that issues raised in the lower court but not raised on appeal are deemed
abandoned).
9
Any potential argument that the late-night court session in this case violated the rule set out in
State v. Parton, 817 S.W.2d 28, 34 (Tenn. Crim. App. 1991) (“If the requisite unusual circumstances do
exist and late[-]night sessions are scheduled because of necessity, good practice would be to also let the
record affirmatively reflect that all counsel and all jurors expressly agree.”), would be waived for failure
to address it on direct appeal. See T.C.A. § 40-30-106(g) (“A ground for relief is waived if the petitioner
personally or through an attorney failed to present it for determination in any proceeding before a court of
competent jurisdiction in which the ground could have been presented. . .”).
- 18 -
deliberations that they had to reach a unanimous verdict); State v. Nicholas Wyatt Barish,
No. E2012-01353-CCA-R3-CD, 2013 WL 5436909, at *12 (Tenn. Crim. App. Sept. 27,
2013) (trial judge’s ex parte rejection of the jury’s initial verdict as illegal without further
explanation), perm. app. denied (Tenn. Mar. 5, 2014); State v. Parchman, 973 S.W.2d
607, 612 (Tenn. Crim. App. 1997) (one juror asking the bailiff about reaching a
unanimous verdict), abrogated by Walsh, 166 S.W.3d at 648. Petitioner has pointed us to
no case holding that statements made by the judge from the bench in open court
constitute extraneous prejudicial information or an improper outside influence justifying
a new trial, and we see no reason to so hold in this case.
Moreover, Juror Hall testified that she truthfully confirmed that the verdict read
reflected her individual verdict when polled by the trial court and that she would have
reached the same verdict regardless of any supposed pressure applied by the judge.
Petitioner cannot now use Juror Hall’s after-the-fact claim of lingering doubts to sandbag
an otherwise valid verdict. See Montgomery v. State, 556 S.W.2d 559, 561 (Tenn. Crim.
App. 1977). Rule 606(b) is in place to prevent just this sort of meddling with a jury’s
deliberation and ultimate verdict. See Caldararo, 794 S.W.2d at 741-42. Petitioner did
not establish an improper outside influence which would raise a presumption of
prejudice; thus, the burden never shifted to the State to rebut such a presumption. Adams,
405 S.W.3d at 651. Petitioner is not entitled to relief.
Conclusion
We hold that the post-conviction court did not err in failing to recuse himself and
that the Petitioner did not present any admissible, credible evidence of extraneous
prejudicial information or an improper outside influence which compromised his
constitutional right to an impartial jury. Therefore, we affirm the judgment of the post-
conviction court.
____________________________________
TIMOTHY L. EASTER, JUDGE
- 19 -
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999 F.2d 547
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Fon B. MADDOX, Appellant,v.David D. BIRD, U.S. Trustee, Appellee.
No. 93-4026.
United States Court of Appeals, Tenth Circuit.
July 13, 1993.
Before LOGAN, MOORE and BRORBY, Circuit Judges.
ORDER AND JUDGMENT*
LOGAN, Circuit Judge.
1
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.
2
Debtor Fon B. Maddox appeals from a district court order dismissing his appeal of a bankruptcy court conversion order. We review the dismissal by the district court for abuse of discretion. Balaber-Strauss v. Reichard (In re Tampa Chain Co.), 835 F.2d 54, 55 (2d Cir.1987).
3
Debtor filed a voluntary Chapter 11 bankruptcy petition on May 15, 1990. When after eight months he had failed to file a plan for reorganization, disclosure statement, or otherwise move his case toward confirmation, the trustee filed a motion to have the petition dismissed or converted to a Chapter 7 liquidation. 11 U.S.C. § 1112(b). After a hearing the debtor was ordered to file and seek approval of a reorganization plan and the requisite disclosure statements within sixty days. Debtor was warned in the notice of hearing and at the hearing that the case could be converted. On June 10, 1991, after debtor failed to comply with that order, the case was converted to a Chapter 7 liquidation proceeding.
4
Debtor filed a timely notice of appeal to the district court from that conversion order, but failed to prosecute the appeal. Consequently, the district court ordered a show cause hearing to determine whether the appeal should be dismissed. Upon hearing from debtor's counsel, the district court ordered debtor's brief filed by January 24, 1992. When no action was taken by debtor, including briefing, a year later, on January 20, 1993, the district court dismissed the appeal. Debtor, appearing pro se, filed a timely notice of appeal to this court from that dismissal. Debtor's attorney then filed a pleading entitled "Objection to Debtor's Appeal," arguing that the debtor's rights have not been violated and urging dismissal of the appeal.1
5
The district court has authority to dismiss an appeal when a party fails to comply with court orders. Bills v. United States, 857 F.2d 1404, 1405 (10th Cir.1988). The briefing schedule is contained in Bankr.R. 8009(a)(1), and was repeated in the docketing notice of the district court. The district court unequivocally communicated to debtor and his attorney that the appeal of the conversion order was in jeopardy of being dismissed. The district court exercised extraordinary patience in waiting a full year after the show cause hearing before dismissing the appeal. Debtor made no effort to pursue the appeal, failing even to request an enlarged briefing schedule or to file his brief out of time. The case languished unattended on the district court docket for over a year. We find no abuse of discretion by the district court under these circumstances. Objections filed by debtor's counsel are denied as moot.
6
AFFIRMED.
7
The mandate shall issue forthwith.
*
This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3
1
We cannot discern whether debtor and his attorney disagree on case strategy. However, debtor had ample time to file either a pro se brief or obtain other counsel for this purpose. He has filed a pro se brief in this court
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50 F.3d 12
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.Anthony R. WEST, Appellant,v.UNITED STATES of America, Appellee.
No. 94-2462.
United States Court of Appeals,Eighth Circuit.
Submitted: Mar. 13, 1995.Filed: Mar. 17, 1995.
Before BOWMAN, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
PER CURIAM.
1
Anthony West appeals the District Court's1 denial, after remand, of his 28 U.S.C. Sec. 2255 motion. We affirm.
2
Following this Court's affirmance of his conviction for distributing cocaine, United States v. West, 878 F.2d 1111 (8th Cir. 1989), West filed this section 2255 motion. He alleged that he was denied effective assistance of counsel at sentencing because he received his presentence report (PSR) just prior to the hearing and thus did not have an adequate opportunity to review it, his counsel told him to be quiet when he attempted to point out to her errors in the PSR, and she did not object to or present evidence rebutting all of the errors which he had noted in the PSR. On appeal from the District Court's denial of West's motion, this Court affirmed in part, reversed in part, and remanded for further consideration of his ineffective-assistance claim. West v. United States, 994 F.2d 510, 513 (8th Cir. 1993). We noted that "[i]f West's counsel failed 'to discover the substance of [the PSR], and to develop and present rebuttal material, ... it is possible that [West] received ineffective assistance of counsel.' " Id. (quoted case omitted).
3
On remand, the District Court appointed counsel to represent West and set the matter for a hearing. Prior to the hearing, West, acting pro se, filed another section 2255 motion. The District Court denied his subsequent motion to consolidate the two section 2255 motions and eventually dismissed the second motion without prejudice.
4
At the hearing, testimony was heard from West, the attorney who represented him at trial and sentencing, and a probation officer. West stated that he first saw his PSR on the day of sentencing and spent about ten minutes reviewing it with his attorney; that he became upset upon reading an allegation that he had threatened his family, and his attorney attempted to quiet him down; that he asked his attorney to object to allegations in the PSR that there was a firearm in his office during a drug transaction and that he operated a crack house; that he told his attorney that representations in the PSR of prior charges and convictions were inaccurate, and he asked her to object to them; and that his eligibility for prison employment and for parole was limited by his attorney's failure to object. West acknowledged that he had declined to personally address the Court at sentencing. It is undisputed that West's attorney objected at sentencing to the PSR allegation that he had threatened his family and the inclusion in the PSR of his juvenile record, and offered to present evidence to rebut the former allegation.
5
West's attorney testified that she had reviewed the PSR before sentencing; that she and West had spent from thirty to sixty minutes discussing the PSR immediately prior to sentencing, which she thought was a sufficient amount of time; that she would have asked for a continuance if necessary; and that she and West agreed she would object only to the threat allegation and his juvenile record. She testified she did not object to other aspects of the PSR because West did not dispute them or, in her opinion, he could not have truthfully and effectively rebutted them. Finally, she noted that if she and West been unable to agree on which portions of the PSR merited objection, she would have told him to personally express his concerns to the court.
6
The District Court denied the remanded section 2255 motion. On appeal, besides arguing that the District Court erred in finding his counsel was not ineffective, West maintains the District Court wrongfully refused to address the claim he had presented in his second section 2255 motion.
7
We review the denial of West's section 2255 ineffective- assistance of counsel claim as a mixed question of fact and law, reviewing factual findings for clear error and issues of law de novo. See Iron Wing v. United States, 34 F.3d 662, 664 (8th Cir. 1994). West must overcome the strong presumption that his counsel performed competently. See Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir. 1993) (per curiam).
8
Having reviewed the record, we agree with the District Court that West's counsel's representation did not fall below an objective standard of reasonableness. See Whitmore v. Lockhart, 8 F.3d 614, 616-17 (8th Cir. 1993) (ineffective-assistance standard). West did not testify that he had insufficient time to review his PSR; he explained that his counsel's attempt to quiet him down was in response to his emotional reaction to the PSR; and his attorney testified, and West acknowledged, that she was prepared to call West's wife to testify in response to the PSR allegation that he had threatened his spouse and family. Counsel explained her strategic reasons for not objecting to other information in the PSR. Cf. English v. United States, 998 F.2d 609, 613 (8th Cir.) ("reasonable trial strategy cannot rise to the level of ineffective assistance of counsel"), cert. denied, 114 S. Ct. 573 (1993).
9
We also conclude the District Court properly refused to consider any issues other than the question of counsel's performance at sentencing, given our explicit instructions on remand. See United States v. Prestemon, 953 F.2d 1089, 1090 (8th Cir. 1992) (district court's task on remand defined by mandate of appellate court). We need not address the issue raised in West's second section 2255 motion, because the District Court did not consider it and West has not appealed from the denial of his motion to consolidate the two section 2255 motions. See Fritz v. United States, 995 F.2d 136, 137 (8th Cir. 1993), cert. denied, 114 S. Ct. 887 (1994) (absent plain error, court will not consider issues raised for first time on appeal as a basis for reversal); Fed. R. App. P. 3(c) (notice of appeal must designate order appealed from); Berdella v. Delo, 972 F.2d 204, 208 (8th Cir. 1992) (appeal of final order does not serve as sufficient notice of appeal for separate, distinct issues addressed in other orders). Finally, West's claim regarding his post-conviction counsel is not properly before us. See Dyer v. United States, 23 F.3d 1421, 1424 (8th Cir.) (court need not consider issues raised for first time on appeal in reply brief), cert. denied, 115 S. Ct. 136 (1994).
10
Accordingly, the judgment of the District Court is affirmed.
1
The Honorable Scott O. Wright, Senior United States District Judge for the Western District of Missouri
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397 B.R. 544 (2008)
IN RE BOYD.
BOYD
v.
RABIN.
No. 08-8010, 05-19361.
United States Bankruptcy Appellate Panel for the Sixth Circuit.
September 23, 2008.
Decision without published opinion. Affirmed.
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816 So.2d 182 (2002)
Dereck S. SAILOR, Appellant,
v.
STATE of Florida, Appellee.
No. 1D99-4510.
District Court of Appeal of Florida, First District.
May 2, 2002.
*183 Nancy A. Daniels, Public Defender, and Steven A. Been, Assistant Public Defender, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General, and Robert R. Wheeler, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.
The appellant challenges a conviction and sentence entered after a jury trial. We conclude that he has shown no basis for reversal of the conviction, but that the sentence must be vacated and the case remanded for resentencing in accordance with Heggs v. State, 759 So.2d 620 (Fla. 2000).
Among other assertions, the appellant contends that the trial court erred by responding to a jury inquiry without notifying the parties. Characterizing this as a violation of Fla. R.Crim. P. 3.410, the appellant maintains that it is per se reversible error under Ivory v. State, 351 So.2d 26 (Fla.1977). However, as the supreme *184 court more recently explained in Thomas v. State, 730 So.2d 667 (Fla.1998), this prophylactic rule from Ivory must be invoked by a contemporaneous objection. In the present case the appellant did not object until after the verdict was announced and the jury was discharged, and in accordance with Thomas the issue has not been preserved for appeal.
The appellant suggests that he could not have objected to the court's response to the jury inquiry before it happened because he was then unaware of this communication. But the contemporaneous objection requirement in Thomas does not necessitate such an advance objection, and instead may be satisfied if the objection is promptly brought to the court's attention when the communication becomes known. The appellant did not do this but rather chose to allow the jury to continue its deliberation, and the appellant awaited the verdict before complaining of the communication which is now urged as error on appeal. This approach, whereby a party waits to see if the jury renders a favorable verdict while the party withholds a claim of error in the process, is the type of gamesmanship which the contemporaneous objection requirement is designed to prevent. And while Thomas also involved an affirmative waiver of the asserted error therein, that additional factor does not negate the necessity of a proper contemporaneous objection.
Thomas also involved a situation where the trial court expressly invited the parties to present their objections before the jury returned its verdict, and the second district noted this as a distinguishing factor in Greenfield v. State, 739 So.2d 1197 (Fla. 2d DCA 1999). As in the present case, the Greenfield jury asked for a dictionary, but in Greenfield the trial court granted the request and sent a dictionary into the jury room, whereas here the court denied the request and directed the jury to use its "common sense" and "collective reasoning." The present case does not involve the greater concern in Greenfield as to a violation of Fla. R.Crim. P. 3.400 with regard to the materials which may be permitted in the jury room, apart from the asserted rule 3.410 violation. Furthermore, although the court here did not expressly invite the parties' objections the record indicates that the court was continuously available and that an objection could have been presented when counsel learned of the communication during the deliberative process, and before the jury returned a verdict. Indeed, the court heard and ruled upon another of the appellant's objections while the jury deliberated. There was ample opportunity here for a proper and timely objection, and the appellant's attempt to interject the issue after the verdict does not comport with the contemporaneous objection requirement in Thomas.
The appellant's sentence was imposed under the 1995 sentencing guidelines which were held to be unconstitutional in Heggs v. State. The appellant's offense occurred during the window period for relief under Heggs, and as indicated in Trapp v. State, 760 So.2d 924 (Fla. 2000), and the appellant raised this issue below by a Florida Rule of Criminal Procedure 3.800(b)(2) motion. The state acknowledges that the 1994 sentencing guidelines would yield a different sentencing range, and that the appellant is entitled to resentencing.
The appellant's conviction is affirmed, but the sentence is vacated and the case remanded for resentencing.
ALLEN, C.J., MINER and DAVIS, JJ., CONCUR.
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273 F.Supp.2d 1220 (2003)
AUDI PERFORMANCE & RACING, LLC, an Alabama Limited Liability Company, and Stephen Hooks, an individual, Plaintiffs,
v.
Nicholas P. KASBERGER, an individual, Revo Technik, America, LLC, a Florida Limited Liability Company, and Todd T. Williams, an individual, Defendants.
Civil Action No. 03-F-396-E.
United States District Court, M.D. Alabama, Eastern Division.
July 3, 2003.
*1221 *1222 Raymond L. Jackson, Jr., Lisa E. Boone, Jackson & Boone, PC, Auburn, AL, for plaintiffs.
Rebecca W.P. Buxton, Akridge & Balch, P.C., James D. McLaughlin, Davis & McLaughlin, Auburn, AL, for defendants.
MEMORANDUM OPINION
FULLER, District Judge.
I. INTRODUCTION
This cause is before the court on the Plaintiffs' Motion to Remand (Doc. # 7), filed on May 9, 2003. Plaintiffs originally filed this action against the Defendants on March 11, 2003, in the Circuit Court of Lee County, Alabama. Plaintiffs seek injunctive relief and damages for claims of: breach of contract, trade libel, defamation, breach of the Alabama trade secrets act, tortious interference with business relations, conversion, and civil conspiracy. All claims arise under Alabama common or statutory law.
On April 10, 2003, Defendants timely removed the case to this Court pursuant to 28 U.S.C. § 1441 asserting federal subject matter jurisdiction under 28 U.S.C. § 1332(a)(1). Plaintiffs subsequently filed the instant motion in which they challenge Defendants' assertion that complete diversity of citizenship exists between the parties. Plaintiffs' Motion to Remand came under submission on May 30, 2003.
That this case satisfies Section 1332(a)(1)'s requirement that the amount in controversy exceed $75,000 is not in dispute. The sole issue for resolution by this Court is whether Section 1332(a)(1)'s *1223 requirement that there be complete diversity of citizenship is satisfied. It is undisputed that Plaintiffs are citizens of Alabama and that two of the Defendants (Revo Technik America, LLC and Todd T. Williams) are citizens of Florida for diversity purposes. Plaintiffs contend that the remaining defendant, Nicholas Kasberger (hereinafter "Kasberger") is a citizen of Alabama whose presence as a defendant in this lawsuit defeats the complete diversity required for this Court to have subject matter jurisdiction pursuant to Section 1332(a)(1). Defendants assert that Kasberger, a former Alabama resident, was at all times relevant to the inquiry before this Court, a citizen of Florida for the purposes of diversity jurisdiction. Thus, the question before this Court is: whether Defendants have satisfied their burden of establishing that Kasberger was a citizen of Florida, rather than Alabama, within the meaning of 28 U.S.C. § 1332(a)(1) at the relevant time for determining the existence of diversity jurisdiction over this lawsuit. After a careful review of the parties' submissions and the applicable law, the Court concludes that Defendants have failed to meet their burden, and the Plaintiffs' Motion to Remand (Doc. 7) is due to be GRANTED.
II. FACTS
From January of 1999 until January of 2003, Kasberger worked for Plaintiff Audi Performance & Racing (hereinafter "APR") in Alabama. On January 10, 2003, APR notified Kasberger that he was being laid off effective immediately. On February 1, 2003, Kasberger commenced an employment relationship with Revo Technik, Ltd., a foreign company. It is Kasberger's testimony that it was agreed between him and Revo Technik, Ltd. that he would work in Florida. It was not until April 1, 2003, that Kasberger began working in the position he currently holds for a subsidiary of Revo Technik, Ltd., called Revo Technik America, LLC.
On February 18, 2003, Kasberger moved some of his personal possessions and his clothing to Sarasota, Florida. When he arrived in Florida, he moved in with his parents at 7202 Bounty Drive. During the time he lived with them, he did not pay rent or utilities, but he occasionally purchased groceries. In order to finish up some work for her employer,[1] Kasberger's wife remained in Alabama. Until March 15, 2003,[2] the couples' furniture and household goods remained in Alabama in the apartment the Kasbergers had shared prior to February 18, 2003. Between February 18, 2003 and March 15, 2003, Kasberger returned to Alabama to stay with his wife at least two or three times and stayed from two to three days. On at least one occasion during this period, he stayed four days. Thus, in this twenty-five day period, Kasberger admits that he may have been living in his Alabama apartment with his wife, his furniture and household belongings for as many as ten days.
On March 12, 2003, Kasberger's wife was served with a Summons and Complaint for this lawsuit which had been filed on March 11, 2003. At the time the lawsuit was filed, Kasberger had opened bank accounts in Florida. He had not signed a lease for a new residence, but rather he was staying at his parents' home rent free. Nevertheless, he has testified that as of February 18, 2003, he believed he was a *1224 citizen of Florida and he had an intention to remain there.
Despite this representation to the Court, on March 4, 2003, Kasberger testified before a Hearing Officer at an unemployment compensation hearing in Alabama that he resided in Alabama (at the address which he had occupied with his wife). He also represented to this Court that he was paying taxes in Florida.[3]
According to the web site for the State of Florida Department of Revenue, Florida does not impose personal income, inheritance, or gift taxes. The State of Florida does impose intangible tax, ad valorem taxes, and sales taxes, but Kasberger has not explained how the payment of such taxes would be relevant. It is possible that Kasberger intended to show that by listing his parents' Florida address on his 2002 federal income tax return he had advised the Internal Revenue Service of his intention to become a Florida resident. He has submitted what appear to be unsigned copies of his federal income tax return for 2002. Without any testimony as to when his tax return was prepared and when it was filed, the unsigned copies of his federal return for 2002 do not establish anything relevant to the inquiry before the Court. Nowhere in his Affidavit does Kasberger verify that this is a copy of the form he filed with the Internal Revenue Service or the date on which he filed his 2002 federal income taxes. Moreover, the address listed on the form for both Kasberger and his wife is Kasberger's parents' home in Florida, not the Florida apartment into which Kasberger and his wife eventually moved. Indeed, unless this form was prepared after March 15, 2003, which would make it irrelevant to the issue of Kasberger's residence on March 11, 2003, it incorrectly shows Kasberger's wife as residing in Florida when she was still physically located in Alabama and had not even visited Florida. Consequently, the form is of little assistance to any issue before the Court.
At the end of March, Kasberger and his wife signed the lease on the apartment in which he now resides with his wife in Florida.
At the time this lawsuit was filed, Kasberger's automobile was registered by and licensed in Alabama. At the time this case was removed to federal court, Kasberger's vehicle continued to be licensed and registered in Alabama, and he had taken no steps to change the license and registration to Florida. Similarly, at the time this lawsuit was filed and when it was removed, Kasberger's driver's license was issued by the State of Alabama, and he had taken no steps to obtain a Florida driver's license. Kasberger was and continues to be registered to vote in Alabama, and he has taken no steps to register to vote in Florida or to be taken off of the voter registration rolls in Alabama. Kasberger continued to use his cell phone with an Alabama telephone number after relocating to Florida and by the time of the filing of this lawsuit he had not applied for a Florida residential telephone number. When Kasberger "moved" to Florida on February 18, 2003, Kasberger did not file a change of address with the United States Postal Service seeking to reroute his mail delivery to Florida and he admits that bills for the utilities on the Alabama apartment may have continued to be mailed to that address after he left for Florida. There is no evidence before this Court with respect to church or club memberships which would bear on the issue of Kasberger's domicile as of March 11, 2003.
III. DISCUSSION
As an initial matter, the Court notes that federal courts are courts of *1225 limited jurisdiction. See, e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir.1994). As such, they may only hear cases that they have been authorized to hear by the Constitution or the Congress of the United States. See Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673. Consequently, remand of removed cases is favored where federal jurisdiction is not absolutely clear. See, e.g., Burns, 31 F.3d at 1095; Rayfield v. Nat'l Auction Group, Inc., 878 F.Supp. 203, 206 (M.D.Ala.1995) ("Because the removal statutes are strictly construed against removal, generally speaking, all doubts about removal must be resolved in favor of remand.") As the proponents of removal, Defendants have "the burden of proving the existence of federal jurisdiction." Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1356 (11th Cir.1996). Accord, McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002) ("[T]he party invoking the court's jurisdiction bears the burden of proving, by a preponderance of the evidence, facts supporting the existence of federal jurisdiction."); Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir.1996), cert. denied, 520 U.S. 1162, 117 S.Ct. 1349, 137 L.Ed.2d 506 (1997) (stating that the party seeking removal to federal court has the burden of establishing federal jurisdiction).
Removal of a case from state to federal court is proper if the case could have been brought originally in federal court. See 28 U.S.C. § 1441(a). Accord, Tapscott, 77 F.3d at 1356 ("Any civil case filed in state court may be removed by the defendant to federal court if the case could have been brought originally in federal court.") (citations omitted). Defendants argue that removal was proper because the Court has jurisdiction over this case due to diversity of citizenship.
The diversity statute confers jurisdiction on the federal courts in civil actions between citizens of different states, in which the jurisdictional amount of greater than $75,000, exclusive of interest and costs, is met. See 28 U.S.C. § 1332(a)(1). According to the rule of "complete diversity," no plaintiff may share the same state citizenship with any defendant. See Riley v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 292 F.3d 1334, 1337 (11th Cir.2002). Indeed, one of the Supreme Court's earliest cases, Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806),[4] held that there is no diversity jurisdiction when any party on one side of the suit is a citizen of the same state as any party on the other side.
When a court is reviewing the citizenship of the parties to determine if the suit meets the requirements of diversity jurisdiction, the court must look to the citizenship of the parties at the time the action was filed and at the time of removal. See, e.g., Stevens v. Nichols, 130 U.S. 230, 231, 9 S.Ct. 518, 32 L.Ed. 914 (1889); Roecker v. U.S., 379 F.2d 400, 407 (5th Cir.), cert. denied, 389 U.S. 1005, 88 S.Ct. 563, 19 L.Ed.2d 600 (1967)[5]; Brown v. TranSouth Finan. Corp., 897 F.Supp. 1398, 1402 (M.D.Ala.1995); Goff v. Michelin Tire Corp., 837 F.Supp. 1143, 1144 (M.D.Ala.1993).[6]
*1226 For purposes of diversity jurisdiction, "citizenship" means "domicile." Stine v. Moore, 213 F.2d 446, 448 (5th Cir.1954). In fact, it is a party's domicile rather than his residence which is determinative of citizenship for diversity jurisdiction. Jagiella v. Jagiella, 647 F.2d 561, 563 (5th Cir.1981); Combee v. Shell Oil Co., 615 F.2d 698, 700 (5th Cir.1980); Rayfield, 878 F.Supp. at p. 207. "A person's domicile is the place of his true, fixed, and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom. ..." Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir.) cert. denied, 419 U.S. 842, 95 S.Ct. 74, 42 L.Ed.2d 70 (1974) (internal quotations omitted); Spann v. Northwestern Mut. Life Ins. Co., 795 F.Supp. 386, 390 (M.D.Ala.1992).
Courts have acknowledged the usefulness of certain presumptions with respect to a person's domicile. See Mitchell v. United States, 88 U.S. (21 Wall.) 350, 352, 22 L.Ed. 584 (1874) (listing useful presumptions); McDonald v. Equitable Life Ins. Co. of Iowa, 13 F.Supp.2d 1279, 1281 (M.D.Ala.1998) ("In determining domicile, a court should consider both positive evidence and presumptions."). First among these presumptions is "that the state in which a person resides at any given time is also that person's domicile." McDonald, 13 F.Supp.2d at 1281 (citing District of Columbia v. Murphy, 314 U.S. 441, 455, 62 S.Ct. 303, 86 L.Ed. 329 (1941), and Stine v. Moore, 213 F.2d 446, 448 (5th Cir.1954)). Second, "once an individual has established a domicile, he remains a citizen there until he satisfies the mental and physical requirements of domicile in a new state." McDonald, 13 F.Supp.2d at 1281 (citing McDougald v. Jenson, 786 F.2d 1465, 1483 (11th Cir.1986)). Another important presumption is that of
favoring an established domicile as against an allegedly newly acquired one. The effect of this presumption is to put a heavier burden on a party who is trying to show a change of domicile than is placed on one who is trying to show the retention of an existing or former one.
Brown, 897 F.Supp. at 1402 (internal quotations omitted).
Once a person establishes a domicile, it continues until the person establishes a new domicile. Id. (emphasis added). In this circuit, it is elementary that, to effect a change of one's legal domicile, two things are indispensable: First, residence in the new locality; and second, the intention to remain there. The change cannot be made, except facto et animo. Both are alike necessary. Either without the other is insufficient. Welsh v. Am. Sur. Co. of New York, 186 F.2d 16, 17 (5th Cir.1951) (emphasis added). Accord, McCormick, 293 F.3d at 1258 (quoting Mas, 489 F.2d at 1399).
Courts examine numerous specific objective facts to determine whether a domicile has been established; these facts include:
location of employment; home ownership and ownership of other real property; location of one's household furnishings; registration and title to one's automobiles; driver's licensing; voter registration; payment for utilities; banking; acquiring a telephone number and listing it; receiving mail; and establishing membership in local professional, civic, religious, or social organizations. *1227 Rayfield, 878 F.Supp. at 206 (citing Simmons v. Skyway of Ocala, 592 F.Supp. 356, 359 (S.D.Ga.1984)). However, no single factor is conclusive; instead, a "totality of evidence" approach is necessary. McDonald, 13 F.Supp.2d at 1281; Nat'l Artists Mgmt. Co. v. Weaving, 769 F.Supp. 1224, 1228 (S.D.N.Y.1991).
Kasberger would have this Court accept his sworn representation that he established a residence in Florida and that as of February 18, 2003, that residence was the place to which he intended to return. An individual's statements of intent are also considered in determining domicile. McDonald, 13 F.Supp.2d at 1281. A party seeking to establish that he has changed his domicile may submit declarations of his intention to establish a domicile in a particular state, however like other self-serving declarations, such statements may lack persuasiveness or be negated by other declarations or inconsistent acts. Welsh, 186 F.2d at 18; McDonald, 13 F.Supp.2d at 1281 ("when subjective expressions of intent conflict with established facts, courts accord them little weight."); Rayfield, 878 F.Supp. at 206. Kasberger's subjective expressions of intent do conflict with established facts and with the declaration he made at the March 4, 2003 unemployment compensation hearing. Consequently, these self-serving declarations lack persuasiveness.
While Plaintiffs claim that Hendry v. Masonite Corp., 455 F.2d 955 (5th Cir. 1972) requires remand of this case, the Court finds that Hendry alone is an insufficient basis for remand because it is distinguishable from the instant case in many key respects.[7]
The suggestion made by counsel for Kasberger that the Court disregard it because it is an old case displays a fundamental lack of understanding of stare decisis. First, part of the ruling in Hendry was premised on the fact that the defendant had voted as a Mississippi resident twice after the date on which he claimed to have become an Illinois domiciliary. Second, the defendant in Hendry owned property in Mississippi after he claimed to have changed his domicile. It is true that in all other respects similar to the one at hand; however, the Court finds that Hendry alone does not compel remand because there is no evidence that Kasberger owned property or voted in Alabama after the filing of this lawsuit. Consequently, the Court must now examine the Rayfield factors.
Kasberger has not presented any evidence that he owned[8] or rented a residence in Florida prior the end of March of 2003 when he leased the apartment in which he currently presides. Prior to that date, he stayed with his parents in their Florida home and his wife at their apartment in Alabama. The Alabama apartment was not vacated until March 15, 2003, several days after this lawsuit was filed. Kasberger's merely living with someone in Florida part time and saying that he intended that to be his home after he learned that he had been sued in Alabama hardly outweighs the evidence to the contrary. See Rayfield, 878 F.Supp. at 207.
While Kasberger had obtained employment prior to the initiation of this lawsuit, his own testimony reveals that he began that employment before his February 18, 2003 move to Florida. Thus, the Court cannot find that the fact of the employment alone required his presence in Florida. Nevertheless, Kasberger did move his *1228 clothing and personal belongings to Florida prior to being sued. Additionally, he had opened bank accounts in Florida and his wife had announced that they were planning a move to Florida.
Kasberger's spouse and their household furnishings remained in their Alabama apartment until after the date this suit was filed. Kasberger did not become responsible for any utility payments in Florida prior to the filing of this lawsuit. Kasberger's driver's license, vehicle registration and license plate all were issued by the State of Alabama and long after this lawsuit was filed and Kasberger "moved" to Florida, and Kasberger did nothing to change this prior to the date on which this suit was filed. Similarly, as of the date of the initiation of this action, Kasberger was a registered voter in Alabama, and he had done nothing to rescind that registration or to register to vote in Florida. As of the date of the filing of this lawsuit, Kasberger had not acquired a Florida telephone number, but instead was continuing to use his cell phone which had an Alabama number. Kasberger had not established membership in any local professional, civic, religious or social organizations in Florida by the date on which he was sued.
The Court finds that the totality of the relevant evidence before it indicates that Kasberger was, for purposes of diversity jurisdiction, a domiciliary of Alabama on March 11, 2003, when Plaintiffs filed this lawsuit, and that as of that date he had not changed his domicile to Florida. Given these findings and the requirement that diversity exist at the time that the lawsuit sought to be removed was filed, the Court need not explore whether Kasberger successfully changed his domicile at some later date. Thus, the Court finds that Kasberger has not met his burden of establishing that the requirements for diversity jurisdiction are satisfied. Consequently, this case is due to be remanded to the Circuit Court of Lee County, Alabama.
IV. CONCLUSION
The Court concludes that Kasberger was domiciled in Alabama on the date that this lawsuit was filed and was a citizen of Alabama for diversity purposes within the meaning of 28 U.S.C. § 1332(a)(1). Accordingly, the complete diversity requirement in § 1332(a)(1) is not met, as each defendant is not diverse from each plaintiff. Plaintiffs' Motion to Remand (Doc. # 7) is due to be GRANTED and the case shall be remanded to the Circuit Court of Lee County, Alabama.
A separate Order will be entered in accordance with this Memorandum Opinion.
ORDER
In accordance with the Memorandum Opinion entered in on this day, it is hereby ORDERED as follows:
1. Plaintiffs' Motion to Remand (Doc. # 7) is GRANTED.
2. This case is REMANDED to the Circuit Court of Lee County, Alabama.
3. The Clerk is DIRECTED to take appropriate steps to effect the remand.
4. Any pending motions are left for resolution by the Circuit Court of Lee County, Alabama.
NOTES
[1] On January 13, 2003, Kasberger's wife notified her employer that she would be resigning, but she agreed to continuing working through "tax season." Her last day of employment was March 14, 2003. She moved to Florida on March 15, 2003.
[2] The lease for this apartment extended to August of 2003. Kasberger does not know the effective date of the termination of the lease.
[3] It is not clear from Kasberger's Affidavit what he means when he states that he was "responsible for paying taxes in the State of Florida."
[4] Overruled on other grounds by 43 U.S. (2 How.) 497, 11 L.Ed. 353 (1844).
[5] In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of business on September 30, 1981.
[6] See also cases cited and commentary in Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction 3d § 3723, p. 574 ("The purpose of requiring diversity to exist at both times apparently is to prevent a nondiverse defendant from acquiring a new domicile after the commencement of the state suit and then removing on the basis of newly created diversity of citizenship.")
[7] Nothing in this statement should be taken as a rejection of the Hendry case. Despite its age, it continues to operate as binding precedent on this Court.
[8] From the record, it would not appear that Kasberger owns a home or any other real property in either Florida or Alabama.
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496 So.2d 536 (1986)
Rhett R. RYLAND
v.
The LAW FIRM OF TAYLOR, PORTER, BROOKS, AND PHILLIPS, Eugene R. Groves, Frederick Tulley and Gulf States Utilities Company.
No. 85 CA 0848.
Court of Appeal of Louisiana, First Circuit.
October 15, 1986.
Writ Denied December 12, 1986.
*538 Rhett R. Ryland, and B. Dexter Ryland, Baton Rouge, for plaintiff-appellant Rhett R. Ryland.
W. Luther Wilson, Baton Rouge, for defendant-appellee The Law Firm, et al.
Before SAVOIE, CRAIN and JOHN S. COVINGTON, JJ.
CRAIN, Judge.
Plaintiff, Rhett R. Ryland, brought an action for malicious prosecution arising out of a disputed utility bill. Defendants are Gulf States Utilities, the law firm that represented GSU in the law suit to collect the disputed bill, Taylor, Porter, Brooks, and Phillips, and the two attorneys at Taylor, Porter that actually handled the disputed utility bill, Eugene R. Groves and Frederick Tulley. After trial on the merits, a jury found that GSU had instituted a malicious prosecution, while Groves, Tulley and the law firm of Taylor, Porter had not. The jury found that Ryland was at fault and barred him from collecting damages. From this judgment Ryland appeals.
FACTS
The heart of this controversy is the $707.86 monthly utility bill Ryland received on February 28, 1978. Ryland, a local attorney, owned a law office building in Baton Rouge. The previous utility bills had been averaging about $158 a month.
Ryland was convinced that the bill was erroneous and he contacted GSU about it repeatedly. The meter readings, which were the basis of the bill, were checked and double checked and found to be correct. The meter itself was tested by GSU and found to be accurate. Over a period of several months, different representatives of GSU, including its in-house counsel, discussed the bill with plaintiff. No serious attempt was made to negotiate a settlement. GSU insisted the entire bill was due and Ryland insisted that the bill had to be wrong.[1]
GSU turned the bill over to the law firm of Taylor, Porter, Brooks, and Phillips for collection. Eugene Groves, a member of Taylor, Porter, contacted Ryland. Groves took the position that the bill had to be paid in full. Ryland and Groves engaged in at least two conversations about the bill. The exact nature of these discussions is greatly disputed, but it is clear that they were fruitless. Groves sent Ryland a demand letter on June 21, 1978. This letter was sent as a prerequisite to a suit on an open account and the collection of attorney fees, in accordance with La.R.S. 9:2781.
Groves claims to have had nothing further to do with the case after sending the demand letter. He contends that he turned the file over to Frederick Tulley with instructions *539 to file suit as soon as the then existing 30 day grace period provided by La.R.S. 9:2781 had expired. Tulley had recently been assigned to handle Taylor, Porter's collection practice. Tulley testified that in August he instructed his secretary to call Ryland to inform him of the suit just before it was going to be filed. Ryland is adamant that he never received any notice that the suit was about to be filed. Instead, he maintains that he received a disconnect notice from GSU informing him that his office's electricity would be turned off on August 17th if his bill was not paid. He claims that representatives of GSU came to his office on August 16 to confirm that the utilities would be cut off the following day. GSU denies sending anyone to Ryland's office.
On the morning of August 17, Ryland walked from his office down the street to GSU's office to a teller's window and paid the entire outstanding bill.
Neither GSU nor Ryland contacted Taylor, Porter or Groves or Tulley to inform them that the bill had been paid. On August 23, 1978, Tulley filed suit on Gulf States' behalf. The suit against Ryland was published in the Baton Rouge newspapers' legal sections and in the Baton Rouge Daily Legal News. It was apparently common knowledge in the Baton Rouge legal community that Ryland had been sued by GSU for nonpayment of his utilities bill. Upon discovering that Ryland had previously paid the bill, Taylor, Porter dismissed the suit. Ryland sent Taylor, Porter a letter requesting that the judgment of dismissal explain that the suit was filed in error, but Taylor, Porter did not respond. In turn, Ryland filed the instant suit for malicious prosecution on September 28, 1978. Trial was not held until February, 1985.
ERROR
Ryland's appeal alleges the following assignments of error:
I. The trial judge erred in giving jury instructions that contributory negligence can defeat a finding of malicious prosecution.
II. The trial judge erred in giving jury interrogatories that included a question regarding fault of the plaintiff.
III. The jury erred as a matter of law in finding that contributory negligence can defeat a finding of malicious prosecution.
IV. The jury erred in finding that Eugene Groves, Fred Tulley and the law firm of Taylor, Porter were not guilty of malicious prosecution.
V. The jury erred in finding plaintiff was guilty of any contributory negligence that could defeat his recovery.
VI. The trial judge erred in allowing the law firm of Taylor, Porter to represent all defendants in view of a clear conflict of interest.[2]
VIII. The trial judge erred in charging the jury that the Canons of Ethics was applicable to bar plaintiff from paying his utility bill direct to Gulf States Utilities.
In their brief defendants-appellees contend that the jury erred in its finding against GSU.
MALICIOUS PROSECUTION
GSU
Defendants contend the jury erred in finding that GSU instituted a malicious prosecution. Six requirements must be satisfied before an action in malicious prosecution can be maintained. They are as follows:
(1) commencement or continuance of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant against plaintiff who was defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) *540 the presence of malice therein; and (6) damage conforming to legal standards resulting to plaintiff.
Robinson v. Goudchaux's, 307 So.2d 287 (La.1975); Bessie v. K-Mart Apparel Fashions Corp., 472 So.2d 251 (La.App. 1st Cir.1985).
The first four elements of the action are not in doubt. Malice exists when charges and allegations in a suit are made that one knows to be false. Malice can be presumed where a lack of probable cause for filing a suit results from a reckless and inexcusable indifference of the rights of the party sued, indicative of a lack of caution and inquiry a prudent person would employ before suing someone. Robinson, 307 So.2d 291; Breda v. Attaway, 371 So.2d 1270 (La.App. 3rd Cir.1979). The test for probable cause is whether a reasonable man would have acted the same under the circumstances. Buisson v. Prestia, 45 So.2d 531 (La.App.Orl.Cir.1950).
GSU claims that its actions were not so unreasonable as to constitute malice. Clearly, GSU's actions constituted negligence, and there was no probable cause for instituting the suit. The jury determined that this negligence amounted to an inexcusable indifference of Ryland's rights. Our review of the record discloses that there is reasonable factual basis for this finding and that it is not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).
GSU received the disputed payment on August 17. Ryland testified he informed the teller the payment was delinquent. The payment was entered in GSU's computer. Payment history printouts made by GSU after payment, but before suit was filed, showed that the payment had been made, yet GSU never informed its attorneys of this fact.
GSU originally sent Taylor, Porter an unsigned itemized statement of account reflecting that the account was due and owing. Two days later, on August 22, GSU ran an updated check on Ryland's account in preparation for the suit. The clerk failed to notice that payments had been made and suit was filed.
GSU's defense is that the clerk checked the account, and saw that it showed an unpaid balance. She did not check the amount that was unpaid, and therefore, according to GSU, she had no reason to believe anything had changed.
The reason the account did not show paid in full was that Ryland owed $36.17 on his current bill for the month of August. Ryland had been paying his subsequent monthly bills on time, but the disputed portion was carried over on each new bill. His utilities were never disconnected. His August bill was due but not delinquent.
From these facts, the jury could have reasonably concluded that Gulf States' conduct showed a reckless and inexcusable indifference reflected by a lack of caution and inquiry a prudent person would ordinarily employ before suing someone. Robinson, 307 So.2d 291. The risk of harm that can result from filing a baseless lawsuit against anyone, but especially a professional person is great. A prudent person would ordinarily take great care when filing a lawsuit. GSU's clerk knew that Ryland was being sued for over $700, but when she reviewed his account two days later a $36 balance was allowed to justify the suit. A cursory inspection of the statement would have shown the discrepancy.
Additionally, GSU's collections department did not appear to have been structured with much concern or regard for events like these. Evidently, GSU's computers were not set up to automatically initiate an immediate inquiry whenever a payment was received on an account which had been turned over to an attorney for collection. Although a payment made directly to GSU, even after a demand letter had been sent would not be uncommon, and would probably be routine, Dennis Singletary, the person in charge of such matters for GSU admitted that no such procedural safeguards existed. When these facts are viewed in light of the presumption of malice, we cannot say that the conclusion of the jury is clearly wrong.
*541 TAYLOR, PORTER
Ryland contends that the jury erred in not finding the law firm of Taylor, Porter and Eugene Groves and Frederick Tulley guilty of instituting a malicious prosecution. We find no merit to this argument. Under the instant facts, it was well within the jury's province to find that in regard to these defendants' particular conduct, their negligence, if any, did not amount to a reckless indifference to Ryland's rights. The jury could have found they acted reasonably in relying on the information GSU had twice supplied them just prior to institution of the suit.
Ryland vigorously argues that Groves had assured him that no suit would be filed without some prior notification. The real issue here is whether such notice was received or not. It was hotly contested, and the testimony was directly conflicting. If Groves and Tulley failed to do so, then the jury might reasonably have held them liable. Obviously, the jury decided against Ryland on this point. This was essentially a credibility issue. The jury was in a much better position to make these determinations than we are. There is a reasonable factual basis to uphold this finding, and nothing to show that it is clearly wrong.
JURY INSTRUCTIONS
Most of Ryland's assignments of error deal with the issue of his own alleged contributory negligence. We note that plaintiff failed to timely object to the instructions given to the jury on the issue of contributory negligence. Ordinarily, plaintiff would have forfeited his right to raise these issues on appeal. La.C.C.P. art. 1793. However, plaintiff did timely object to one particular instruction regarding contributory negligence. We find this instruction was erroneously given and prejudicial. Consequently, the jury verdict is not entitled to any weight in this regard. Accordingly, we will address plaintiff's assignments in this area.
CANONS OF ETHICS
Plaintiff alleges that the trial court erred in instructing the jury that the Canons of Ethics, specifically, Code of Professional Responsibility DR 7-104(A)(1) prohibited Ryland from making the payments directly to GSU, instead of to Taylor, Porter, GSU's attorneys.
DR 7-104(A)(1) provides:
(A) During the course of his representation of a client a lawyer shall not:
(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.
The jury was instructed that because Ryland was an attorney, it could consider that he breached the Code of Ethics by communicating (paying the bill) with GSU, as GSU was a party which he knew was being represented by another lawyer.
Defendants maintain that, "[t]here is no suggestion that the obligations and practices change when an attorney is representing himself". While we agree with this statement, it ignores the fundamental question of whether or not Ryland was acting in a representative capacity on his own behalf, or, as he claims, "... an aggrieved individual with an exceptionally high utility bill".
Contributory negligence is an affirmative defense which the defendants have the burden of proving. There is no evidence in the record that Ryland was acting in a representative capacity as his own attorney at anytime. No testimony was elicited whatsoever in this regard. A prudent business person would not necessarily feel the need for legal representation until the time when he knew suit was going to be filed. At that point, he would either pay the bill as requested in the demand letter, or hire an attorney. This was no more than what Ryland actually did. Without proof of some overt act that only an attorney at law would undertake, the application of the Code of Ethics was inappropriate. Defendants argue that the instruction *542 was given only in order to show that Ryland breached a standard of care and custom in the community. However, we agree with plaintiff that the obvious implication was that he was guilty of unethical conduct, which could have highly prejudiced the jury against him.
CONTRIBUTORY NEGLIGENCE
Malicious prosecution is traditionally categorized as an intentional tort. The general rule is that contributory negligence is not a defense to an intentional tort. South Texas Lloyds v. Jones, 273 So.2d 853 (La.App. 2d Cir.1973). Louisiana has never recognized this defense. Hebert v. First Guaranty Bank, 493 So.2d 150 (La.App. 1st Cir.1986). The commentators agree that contributory negligence is also not a defense to:
[T]hat aggravated form of negligence, approaching intent, which has been characterized variously as `wilful,' `wanton,' or `reckless,' as to which all courts have held that ordinary negligence on the part of the plaintiff will not bar recovery. Such conduct differs from negligence not only in degree but in kind, and in the social condemnation attached to it.
Prosser & Keaton, Law of Torts (5th ed. 1984) § 65 p. 462. See Restatement (second) of Torts § 481. Accordingly, we find that the jury was erroneously instructed that contributory negligence is a defense to an action for malicious prosecution.
When a jury has been improperly instructed on the law, no weight should be accorded the judgment of the trial court and the verdict is not entitled to a presumption of regularity. Thomas v. Missouri Pacific R. Co., 466 So.2d 1280 (La.1985). In such cases, our supreme court has mandated that the appellate courts, in the interest of judicial economy, are not to remand the case to obtain a proper jury verdict, but are to conduct a trial de novo on appeal.[3]Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975). Rose v. State Farm Mut. Auto. Ins. Co., 468 So.2d 833 (La.App. 1st Cir.1985), writ denied 474 So.2d 1307 (La.1985). When the jury has made factual findings that are favorable to each party, each finding is to be evaluated in light of the erroneously given instructions. Those findings that are not affected by the instructions are entitled to the usual standard of review (manifest error). Picou v. Ferrara, 483 So.2d 915 (La.1986).
In the instant case we have determined that the initial findings regarding liability of the defendants are not affected by the erroneous instructions regarding plaintiff's alleged fault. The jury finding, that GSU showed a reckless indifference to plaintiff's rights, was made in response to an interrogatory concerning only GSU's conduct. Consequently, this finding was made independently of the issue of whether plaintiff's actions contributed to his damages. Therefore, we find no justification for disregarding the jury's answers to the interrogatories regarding the defendants' actions, even though we are setting aside those findings with reference to plaintiff's conduct. Picou, 483 So.2d 915.
DAMAGES
Where the record is complete and no damages were awarded because of an error, we are required to decide the damage issue, de novo, on appeal. Jones v. P.K. Smith Chevrolet-Olds, Inc., 444 So.2d 1372 (La.App. 2d Cir.1984).
As a result of the original lawsuit, Ryland claims to have suffered damage to his personal and professional reputation in the community, and a consequent loss of income. He argues that because the bill he was sued over was so large, it looked as though it was several months in arrears, making it appear that he could not pay his bills and was about to "go under". His practice largely consists of personal injury *543 referrals, and he claims other lawyers shyed away from risking a referral to him as it was thought he was experiencing financial difficulties.
Damages as a result of a malicious prosecution are presumed. Robinson, 307 So.2d at 290. Undoubtedly, Ryland's personal and professional reputations were damaged in some degree, as a result of the suit. However, there is no proof of such damages in the record, and it is questionable as to whether any appreciable injury was suffered. Ryland did not present any testimony that his standing in the community was actually diminished. In such cases, per Robinson, only nominal damages are to be awarded.[4] We consider a nominal award of $1500 for damage to his personal and professional reputation to be adequate.
Similarly, there is no evidence in the record that Ryland actually lost any business as a result of the suit. Without any evidence, such an award would be speculative. We decline to make any award for lost profits.
We do find sufficient evidence in the record to support an award for mental anguish, humiliation and embarrassment. There is testimony from witnesses that Ryland was extremely agitated and upset on several occasions at having been unjustly sued, and there is evidence that some attorneys had occasion to make light of his circumstances.[5] We feel that $7,500 would be adequate compensation.
DECREE
Accordingly, the judgment of the trial court as to Gulf States Utilities is reversed, rendering them liable for damages in the amount of $9,000. The judgment is otherwise affirmed. GSU is cast for costs.
AFFIRMED IN PART, REVERSED IN PART AND RENDERED.
NOTES
[1] Ryland almost certainly owed the full bill. It appears that earlier on in the year the meter was improperly read, making the bills for those months artificially low. Later, the correctly taken meter reading for February compensated for the prior inaccuracies and resulted in one very large bill.
[2] Having rendered a judgment for plaintiff on appeal, we deem it unnecessary to address this assignment of error.
[3] One exception to this rule is that remand is warranted where the weight of the evidence is so nearly equal, that a first hand view of the witnesses is essential to a proper resolution of the issue. Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707 (La.1980). We do not find these circumstances in the instant case.
[4] Robinson pointed out that the stigma resulting from a wrongfully instituted civil proceeding is not as great as that resulting from a criminal proceeding.
[5] This consisted of a letter from neighboring attorneys which, among other things, offered to run an extension cord across Government Street to supply electricity to Ryland's "Dark" office.
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188 Ill. App.3d 1027 (1989)
544 N.E.2d 1307
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
GREGG GREEN, Defendant-Appellant.
No. 2-88-0517.
Illinois Appellate Court Second District.
Opinion filed October 2, 1989.
G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender's Office, of Elgin, for appellant.
James E. Ryan, State's Attorney, of Wheaton (William L. Browers, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Appeal dismissed.
JUSTICE INGLIS delivered the opinion of the court:
Defendant, Gregg Green, appeals from the judgment and sentence dated August 30, 1985, in which the circuit court of Du Page County found him guilty of attempt (murder) (Ill. Rev. Stat. 1985, ch. 38, pars. 8-4(a), 9-1(a)(1)) and sentenced him to 10 years' imprisonment with no credit for time served. Defendant argues on appeal that the sentence violated section 5-8-7(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-7(b)) because it denied him credit for time spent in custody prior to conviction. The immediate issue in this case, however, is whether this court has jurisdiction to consider this appeal given that defendant did not timely file his notice of appeal but alleges that the underlying mittimus is in part void.
The facts are not in dispute. On May 27, 1984, defendant, Gregg Green, lived with his wife, Rhonda Green, and his wife's unemployed *1028 fiance, William Arold, at defendant's home in Downer's Grove, Illinois. Also living with defendant at the time were Aaron Arold and Tessa Arold, minor children of William Arold. Defendant was in the process of dissolving his marriage, but was still supporting his wife and the Arolds. About 8:30 p.m. on the day in question, Rhonda Green and William Arold returned home from a local hospital with their newborn infant, Violet. They were accompanied by Tessa and Aaron. Defendant met the five at the door, and shortly after they entered defendant's house, an argument ensued between defendant and William Arold over Arold's treatment of defendant's dogs. Defendant thereupon shot Arold twice with a .45 caliber automatic handgun and fled the scene in a car.
After defendant was apprehended, he was indicted for attempted murder. The record does not reflect how much time defendant spent in custody before he posted a bond. The case was tried on May 28-29, 1985, after which the court, sitting without a jury, found defendant guilty of attempted murder. The court continued the cause to June 20, 1985, for sentencing.
After defendant withdrew all of his savings from the bank, the State was notified and subsequently moved to revoke his bond, and an arrest warrant was issued. Defendant failed to appear for the June 20, 1985, sentencing hearing, and the cause was again continued to July 25, 1985. Defendant also failed to appear at the July 25, 1985, hearing. On August 30, 1985, defendant was sentenced in absentia to a term of 10 years' imprisonment. Since defendant was not present, the court was not able to admonish defendant of his right to appeal. The trial court did not orally deny defendant credit for time served, but the denial did appear on the mittimus. Defendant was subsequently apprehended and appeared in court in 1988. The State returned an indictment against defendant for violating his bail bond. On May 31, 1988, the clerk of the circuit court filed a notice of appeal of the August 30, 1985, order.
In its brief, the State did not respond to defendant's argument on appeal but argued instead that the appeal must be dismissed because defendant did not file a notice of appeal within 30 days after the final judgment as required by Supreme Court Rule 606(b) (107 Ill.2d R. 606(b)). (See People v. Blanchette (1989), 182 Ill. App.3d 396, 398.) Defendant argues that the appeal is proper because the underlying order is void and, as such, may be set aside at any time. Thus, defendant argues that this cause should be remanded with instructions for the trial court to correct the mittimus.
Defendant's argument is based on the rule that a void judgment *1029 may be attacked "at any time," either directly or collaterally. (People v. Wade (1987), 116 Ill.2d 1, 5.) Defendant argues that where a court has jurisdiction to impose a sentence and renders one in excess of what a statute permits, the authorized portion of the sentence is not void, but the excess portion is void. (In re T.E. (1981), 85 Ill.2d 326, 333-34; People v. Perruquet (1989), 181 Ill. App.3d 660, 663; In re C.T. (1985), 137 Ill. App.3d 42, 46.) Because credit for time served is mandatory (Moore v. Strayhorn (1986), 114 Ill.2d 538, 541; People v. Scheib (1979), 76 Ill.2d 244, 255), defendant argues that the portion of the mittimus denying him credit was void and thus subject to attack at any time.
1, 2 Although defendant's argument that the order is void has some merit (see Wade, 116 Ill.2d at 5; People ex rel. Village of Winnetka v. Dorner (1989), 181 Ill. App.3d 25, 27; In re C.T., 137 Ill. App.3d at 46; but see Newkirk v. Bigard (1985), 109 Ill.2d 28, 39), we do not decide the issue because he has not persuaded us that the appellate court has jurisdiction over this cause. Defendant has failed to cite any direct authority that the appellate court has jurisdiction over a void order after the 30-day period for filing the notice of appeal has run. Instead, defendant cites People v. Kline (1980), 80 Ill. App.3d 66, for the proposition that this court obtains jurisdiction because the judgment appealed from is void. In Kline, the defendant filed a timely appeal from an order denying his motion to vacate a void judgment, but since the motion was filed after the 30-day period for filing a notice of appeal, the trial court lost all jurisdiction to review the original judgment unless that judgment was void. (Kline, 80 Ill. App.3d at 67-68.) The defendant had not shown the order to be void, and therefore, the appellate court affirmed the trial court's order that the trial court did not have jurisdiction to vacate the judgment. 80 Ill. App.3d at 68.
In the case at bar, contrary to Kline, defendant did not file a motion before the trial court to correct the mittimus, but instead has attempted to appeal the judgment directly in this court. In addition, defendant filed his notice of appeal nearly two years and nine months after the court sentenced defendant on the attempted murder conviction. Defendant might have initiated proceedings in the trial court to challenge the mittimus after 30 days from imposition of sentence, such as filing a petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122-1; People v. Teague (1980), 83 Ill. App.3d 990, 994), or a motion to expunge a void order (Ill. Rev. Stat. 1987, ch. 110, par. 2-1401; see also R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill.2d 304, 309-10; Potenz Corp. v. Petrozzini *1030 (1988), 170 Ill. App.3d 617, 618), or any other existing method to procure relief (Ill. Rev. Stat. 1987, ch. 110, par. 2-1401(f)).
Although some cases have held that an appellate court can review a void order "at any time" (see Cain v. Sukkar (1988), 167 Ill. App.3d 941, 944), in our view the notice of appeal still must be filed within 30 days after the entry of the final judgment or within the time as extended by the appellate court. (See 107 Ill.2d Rules 606 (b), (c).) A timely notice of appeal is still necessary for the appellate court to obtain jurisdiction. Blanchette, 182 Ill. App.3d at 398.
We have found no authority which would allow an appellate court to obtain jurisdiction over a void judgment other than as permitted by Rules 303 or 606 (107 Ill.2d Rules 303, 606), nor did Presiding Justice Green in Cain v. Sukkar (1988), 167 Ill. App.3d 941, 947, 950-51 (Green, P.J., specially concurring). We agree with Justice Green that appellate jurisdiction should not be extended merely because an order is void. Such a rule would destroy the finality of judgments and cause undue delay in proceedings in the trial court.
Finally, we note that at least in one instance the appellate court has ruled that it could not review the issue of whether the defendant was denied the correct amount of credit for time served where the defendant failed to raise the issue in a post-conviction petition before the trial court (People v. Bates (1989), 179 Ill. App.3d 705, 708), although that court did not address the issue of whether such an order was void. However, since defendant in the cause before the court has not filed a timely notice of appeal, we have no jurisdiction to determine the issue of the appropriate amount of credit for the time defendant served while in custody prior to his conviction. Nothing in our opinion precludes defendant from challenging the validity of the mittimus in the trial court.
For the above reasons, the appeal from the judgment of the circuit court of Du Page County is dismissed.
Appeal dismissed.
UNVERZAGT, P.J., and REINHARD, J., concur.
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