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665 F.2d 500 Robert D. BLAIR, Appellant,v.UNITED STATES of America, Appellee.Charles L. MOORE, Appellant,v.UNITED STATES of America, Appellee.William G. DODDS, Jr., Appellant,v.UNITED STATES of America, Appellee. Nos. 80-5207 to 80-5209. United States Court of Appeals,Fourth Circuit. Argued July 16, 1981.Decided Nov. 30, 1981. J. Flowers Mark, Alexandria, Va. (William B. Moffitt, Barry Wolf, Mark & Moffitt, P.C., John Kenneth Zwerling, Jonathan Shapiro, Zwerling & Shapiro, Alexandria, Va., Robert G. Fierer, Atlanta, Ga., Myron L. Wolfson, Towson, Md., on brief), for appellants. Paul R. Kramer, Deputy U. S. Atty., Baltimore, Md. (Russell T. Baker, Jr., U. S. Atty., Baltimore, Md., on brief), for appellee. Before PHILLIPS, MURNAGHAN and ERVIN, Circuit Judges. ERVIN, Circuit Judge: 1 Robert D. Blair, Charles L. Moore, Jr., and William G. Dodds, Jr. were convicted of traveling in interstate commerce with the intent to further unlawful activity, possessing and conspiring to possess marijuana with the intent to distribute, importing and conspiring to import marijuana, and aiding and abetting, in violation of 18 U.S.C. § 1952, 21 U.S.C. §§ 841(a)(1), 846, 952, and 963, and 18 U.S.C. § 2. The district court sentenced all three defendants to five years on each count, the sentences to run concurrently. The defendants assign as error the district court's denial of their motion to suppress evidence of the marijuana. Additionally, Blair charges that the district court abused its discretion and denied him due process in sentencing him. We affirm the defendants' convictions and the sentence imposed upon Blair. I. Background 2 In the early morning hours of April 29, 1979, Sergeant Hutchinson and another officer of the Charles County, Maryland, sheriff's department arrived at Smith Point on the Potomac River, an area previously used as a drop-off for smuggled drugs, to check into a report that suspicious looking vehicles had been spotted there. They discovered a parked truck, a van, what appeared to be marijuana residue in the van, CB equipment, diesel fuel, a generator, a vacuum cleaner, a tarp, a handtruck, an extension cord, a lamp, a locked trunk, wire, and indentations in the sand apparently made by people running, all of which led them to initiate a drug investigation. 3 As it grew light, the officers noticed a thirty-one foot sailboat off shore, and, after observing a crew member tossing something overboard, they had the sheriff's department instruct the Maryland marine police to board the vessel in connection with the drug investigation underway. The seizure and search of that vessel-not challenged here-turned up no contraband. 4 Customs officer Bass, who had been advised to contact the sheriff's department about the investigation and was therefore present at the boat, along with customs officer Jungerfeld, then received a call from a previously reliable informant regarding another suspect vessel. The informant, who knew of the suspicious vehicles found earlier that day at Smith Point, claimed to have seen a three masted, fifty to sixty foot sailboat with five persons on board and riding low in the water, in the area near Smith Point. The customs officers, accompanied by Maryland marine police officers Sciukas and Furey and by Sergeant Hutchinson, set out on the Potomac in a Boston Whaler owned by the marine police to intercept the vessel. 5 Although aided by a state police helicopter, the officers did not discover any three masted boats. The helicopter patrol, however, had spotted two two masted sailboats, one thirty to forty feet long and the other a fifty foot Morgan. After receiving word that the informant upon reconsideration thought that the boat he saw might have only been two masted and that it was white with a black stripe and had a dinghy in tow, the officers decided to "check out" both vessels. 6 The officers first motored over to the smaller boat, only to learn that a family known to one of them was aboard. They then headed for the fifty foot Morgan, and, after observing that it appeared to be heavily loaded and after checking the area for other boats of similar description and finding none, they approached it. Their observations were that the boat, named the CENTAURUS, was riding low in the water, that it was white and had two masts and three sails and was towing a dinghy, that the vessel's letters were not properly displayed, and that there appeared to be three men on board. 7 As the officers' Whaler closed in upon the sailboat, Sergeant Hutchinson stood in the front, holding a shotgun, and, when the Whaler pulled alongside the CENTAURUS, one of the individuals on board raised his hands and exclaimed, "Don't shoot; we are unarmed; we don't have any guns; you have got us." 8 Sergeant Sciukas immediately started to climb onto the CENTAURUS, and, as he stood on the edge of the Whaler in preparation for boarding with his head and shoulders above the cockpit of the CENTAURUS, he smelled "a very heavy odor of marijuana." When he stepped into the CENTAURUS' cockpit, he could see what he described as bales inside two open hatches. Customs officer Jungerfeld then boarded it, and he too smelled the aroma of marijuana and saw burlap covered bales. Customs officer Bass upon boarding spotted marijuana residue scattered on top of some of the bales and also saw what appeared to be marijuana in a small open container in the galley area. Sergeant Hutchinson then arrested the crew of three, Blair, Moore, and Dodds; customs officer Bass requested the boat's documentation in order to determine if the boat was involved in smuggling; and the boat was searched for other individuals. 9 The CENTAURUS was taken to the Naval Ordinance Station at Indian Head, Maryland, where it was kept until the next day, when the marijuana was unloaded. The marijuana had been packaged in cardboard boxes, some of which had also been wrapped in burlap and secured by tape. Either prior to or during the unloading, however, some of the packages had split and broken open, revealing their contents. After the unloading had been completed, Drug Enforcement Administration (DEA) agents, without having secured a warrant, opened some of the packages for sampling purposes. 10 Subsequent to their indictment, the defendants moved to suppress the evidence of the marijuana as well as film found aboard the CENTAURUS. After conducting an evidentiary hearing, the magistrate recommended denial of the motion to suppress the evidence except for the film. Upon review of the magistrate's findings and conclusions, the district court denied the motion in total, and the defendants were subsequently convicted and sentenced.II. Suppression of the Marijuana 11 On appeal the defendants strenuously argue that the marijuana1 should have been suppressed on two grounds: (1) that the seizure and search of the CENTAURUS was unlawful, and (2) that the opening of the boxes of marijuana after the CENTAURUS had been unloaded constituted an illegal search. We explore in turn each of these grounds for suppression. A. Seizure and Search of the CENTAURUS 12 The government contends that the seizure and boarding of the CENTAURUS were lawful upon a theory either that the customs officers and marine police had statutory authority to stop and board a vessel, or that the seizure and boarding were reasonable, and hence constitutional, under the fourth amendment. The subsequent search of the CENTAURUS was legal, it asserts, because Sergeant Sciukas' recognition of the pungent odor of marijuana while climbing on board the CENTAURUS supplied probable cause for the search and because the mobility of the vessel created exigent circumstances excusing the acquisition of a warrant. We find lawful the initial stop of the CENTAURUS and agree that the warrantless search was legal because the officers had probable cause and faced exigent circumstances at the time it occurred. 13 The justification for the seizure and search of the CENTAURUS lies in both the statutory powers of the customs officers and state marine police and the reasonableness of the seizure and search under the fourth amendment. These sources of authority are not separate, however, as the government would seem to suggest, but are instead interrelated. The applicable statutes vested the officers with the authority to stop and search the boat. The fourth amendment's requirement of reasonableness, however, limited their statutory authority in these circumstances to that of making a brief investigatory stop upon a reasonable suspicion of illegal activity and searching the boat only upon probable cause. 14 The statutory authority of customs officers to stop, board, and search a vessel is found in 19 U.S.C. § 1581(a), which reads in pertinent part: 15 Any officer of the customs may at any time go on board of any vessel ... at any place in the United States or within the customs waters ... and examine the manifest and other documents and papers and examine, inspect, and search the vessel ... and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel ... and use all necessary force to compel compliance. 16 Maryland marine police officers' statutory authority to stop, board, and search a vessel is similarly broad; Md.Nat.Res.Code Ann. § 8-727 (1974) reads: 17 A natural resources police officer or any law enforcement officer enforcing the provisions of this subtitle (the State Boat Act) may stop, board, or inspect any vessel subject to this subtitle.2 18 By their terms, these statutes appear to grant customs officers and the Maryland marine police and other state law enforcement officers unfettered authority to stop and search a vessel. The statutory language must be read, however, in light of the fourth amendment's requirement that seizures and searches be reasonable,3 for no statute can authorize a violation of the Constitution. See Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973). 19 The initial question before us is whether the stop of the CENTAURUS was a reasonable seizure under the fourth amendment. The requirements that the fourth amendment's reasonableness standard imposes upon a vessel seizure vary greatly according to that vessel's geographic location. A coast guard stop of a vessel on the high seas under 14 U.S.C. § 89(a), for instance, is the equivalent of a border stop and therefore is reasonable even absent any suspicion of criminal activity on board. See United States v. Harper, 617 F.2d 35 (4th Cir.), cert. denied, 449 U.S. 887, 101 S.Ct. 243, 66 L.Ed.2d 113 (1980). The seizure of a vessel by customs officers or the coast guard in customs waters, including the territorial waters running from the coast to the three mile border at sea, may also be reasonable as a border stop requiring no probable cause, if the vessel came from international waters and crossed the territorial border. See, e. g., United States v. Laughman, 618 F.2d 1067, 1072 n.2 (4th Cir.), cert. denied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980) (dictim); United States v. Tilton, 534 F.2d 1363 (9th Cir. 1976). 20 Our case, however, concerns the seizure of a vessel on inland waters, the Potomac River, with no allegation that the vessel crossed an international border. Under these circumstances, we conclude in accordance with the district court that the fourth amendment requires the customs officers and state police to have had at least a reasonable suspicion that the CENTAURUS was engaged in illegal activity and to have limited the seizure to a brief investigatory stop. This is the prevailing standard of reasonableness under the fourth amendment with respect to a vessel seizure in inland waters, made without sufficient evidence of a border crossing. See United States v. D'Antignac, 628 F.2d 428 (5th Cir. 1980), cert. denied, 450 U.S. 967, 101 S.Ct. 1485, 67 L.Ed.2d 617 (1981); United States v. Zurosky, 614 F.2d 779 (1st Cir. 1979), cert. denied, 446 U.S. 967, 100 S.Ct. 2945, 64 L.Ed.2d 826 (1980); United States v. Odneal, 565 F.2d 598 (9th Cir. 1977), cert. denied, 435 U.S. 952, 98 S.Ct. 1581, 55 L.Ed.2d 803 (1978). 21 The officers on board the marine police Whaler clearly had a reasonable suspicion that the CENTAURUS was engaged in smuggling marijuana: the evidence of a smuggling operation underway at Smith Point, the sighting by a reliable informant of a sailboat riding low in the water, and the discovery of a heavily laden sailboat of similar description, were, as the district court found, objective and articulable facts creating a reasonable suspicion of illegality which justified a brief investigatory stop. 22 The defendants do not protest that the officers had a reasonable suspicion sufficient to support the stop. They do, however, argue that an investigatory vessel stop does not include a boarding and that, by commencing to board the CENTAURUS without probable cause to support a search, Sergeant Sciukas exceeded the limits of the stop. We are persuaded that a boarding is a necessary element of many vessel investigatory stops, given the sound and motion of water, the often significant size differential between the government's boat and the investigated vessel, and the extreme mobility of water craft. At least two other circuits have concluded that an investigatory stop of a vessel permits a boarding. See United States v. D'Antignac, 628 F.2d 428 (5th Cir. 1980), cert. denied, 450 U.S. 967, 101 S.Ct. 1485, 67 L.Ed.2d 617 (1981); United States v. Zurosky, 614 F.2d 779 (1st Cir. 1979), cert. denied, 446 U.S. 967, 100 S.Ct. 2945, 64 L.Ed.2d 826 (1980). We caution that license to board a vessel during an investigatory stop, however, is not license to wander all over the boat or to search for evidence of illegality: the boarding is a part of a brief investigation and the investigating officers' actions must be limited accordingly. A boarding, nevertheless, can be an appropriate part of an investigatory stop, and we hold that in this case it was. Sergeant Sciukas was therefore still acting within the confines of a brief investigatory stop when he started to board the CENTAURUS. 23 While he was in the process of boarding, Sergeant Sciukas smelled the odor of marijuana. The smell supplied probable cause for the state officers and customs officials to act upon their statutory authority and conduct a search of the boat. See, e. g., United States v. Rivera, 595 F.2d 1095, 1099 (5th Cir. 1979). The officers then undertook a warrantless search of the CENTAURUS, the exigent circumstances arising out of the boat's mobility justifying the conduct of the search without a warrant. See United States v. Hensler, 625 F.2d 1141, 1142 (4th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981); United States v. Laughman, 618 F.2d 1067, 1073 (4th Cir. 1980), cert. denied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980). During the course of this search, they discovered numerous bales, some with marijuana residue sprinkled on top, in the two open hatches of the boat, as well as the marijuana in the galley. 24 The defendants raise an additional challenge to both the seizure and the search: they argue that the officers' professed intention at the outset to conduct far more than a brief investigatory stop of the CENTAURUS-they had planned to search the CENTAURUS thoroughly, even without probable cause-tainted the stop and search with illegality. We are not persuaded by the argument. However ill intentioned the officers, we must restrict our review to the objective circumstances of the detention in determining its lawfulness. Just as courts should not validate an objectively unreasonable search or seizure on the basis of an officer's good faith intentions, see Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), so should they steer clear of excluding evidence discovered by objectively lawful means, even if the officers harbored bad faith intent. Reliance upon objective facts and not subjective intentions in judging the legality of a search or seizure best promotes the protections of the fourth amendment. The seizure and search of the CENTAURUS in all objective respects comported with the requirements of the fourth amendment: a reasonable suspicion that the CENTAURUS contained a large quantity of marijuana allowed the officers to stop and detain the CENTAURUS briefly and to board her for investigatory questioning of the crew; the aroma of marijuana supplied probable cause to search the boat; and the exigencies of the situation eliminated the need for a warrant prior to conducting the search. Whatever the officers may have intended to do had probable cause to search not arisen, it is clear that objective circumstances made the seizure and search entirely lawful. 25 Finding no merit in the defendants' arguments, we conclude, as did the district court, that the seizure and search of the CENTAURUS was lawful and that the resulting evidence of marijuana importation and possession offenses should not have been suppressed on this ground. B. The Search of the Containers 26 The defendants further assert that the district court should have suppressed the marijuana on the ground that it was the fruit of an unlawful warrantless search of the bales by DEA agents. The district court held the search lawful because the defendants had no reasonable expectation of privacy in the bales. We agree that the search was lawful, but for the reason that the marijuana was in plain view and therefore that no warrant was required. 27 Our starting point is the general rule that a valid search requires that the authorities have obtained a warrant supported by probable cause and issued by a detached and neutral magistrate. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). That rule has been recently applied by the Supreme Court in Robbins v. California, --- U.S. ----, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), to invalidate a warrantless search of two plastic covered bundles containing marijuana and found in the luggage compartment of a station wagon, and more recently by this court in United States v. Sharpe, 660 F.2d 967 (4th Cir. 1981), to hold unlawful the search of well packaged bales of marijuana found in the back of a camper. 28 Had the containers of marijuana in this case been so well packaged that no marijuana was visible to the officers, we would follow the decisions in Robbins and Sharpe and decline to uphold the warrantless search. For, as those decisions make clear, we cannot excuse the requirement of a warrant to search the containers simply on the basis of exigent circumstances resulting from the containers' discovery on a moving vessel, what sort of containers they are, or even their suspicious odor of marijuana. We conclude, however, that a particular variation of one of the few exceptions to the warrant requirement-the plain view exception-applies in this case and that the warrantless search of the containers of marijuana conducted by the DEA agents was lawful. 29 Relying upon earlier reasoning in Arkansas v. Sanders, 442 U.S. 753, 764-65 n.13, 99 S.Ct. 2586, 2593, 61 L.Ed.2d 235 (1979), the plurality in Robbins clearly acknowledged that there was a plain view exception to the bright line rule announced concerning a container search. The exception is actually in two parts. First, if the container is open and its contents exposed, its contents can be said to be in plain view. Second, if a container proclaims its contents by its distinctive configuration or otherwise and thus allows by its outward appearance an inference to be made of its contents, those contents are similarly considered to be in plain view. --- U.S. at ---- - ----, 101 S.Ct. at 2844-2846. In either instance, an investigating authority need not obtain a warrant to search the container, the reasoning behind the exception being that a warrant under those circumstances would be superfluous. 30 The marijuana in the bales seized from the CENTAURUS was in plain view for a combination of those two reasons. As the defendants concede, some of the bales-the record is unclear on the exact number-were split open and marijuana exposed to view prior to the search, that is, the opening and sampling of the bales by DEA agents. The plain view of that marijuana, in combination with the virtually identical appearances of the other intact bales and the presence of marijuana residue on top of some of the bales noted while the bales were still on board the CENTAURUS, allowed the authorities to infer under the latter prong of the plain view exception that the bales not split open also contained marijuana. 31 Because the marijuana was in plain view, the DEA agents did not need to acquire a warrant prior to taking samples from the bales. The search was therefore valid and the motion to suppress on this ground properly denied. III. Blair's Sentence 32 In addition to the search and seizure arguments raised by the defendants, Blair appeals the imposition of his sentence. He argues that the sentencing was an abuse of the district court's discretion and a denial of due process because (1) the court impermissibly held Blair accountable for his failure to provide further information about the smuggling operation to the government, and (2) it improperly considered Moore's and Dodds' failure to disclose that information in sentencing him. 33 In fashioning a sentence, a district court may, under 18 U.S.C. § 3577, consider without limitation information concerning the background, character, and conduct of the person to be sentenced.4 It may not, however, impose a sentence "on the basis of 'misinformation of constitutional magnitude,' " Roberts v. United States, 445 U.S. 552, 556, 100 S.Ct. 1358, 1362, 63 L.Ed.2d 622 (1980), quoting United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972), and it is upon this due process limitation to a district court's sentencing discretion that Blair relies in arguing that consideration of his failure to supply the government with information was improper. He asserts that the district court erroneously believed that he had information about unidentified members of the drug scheme that he was unwilling to divulge, when in actuality he had no information of that sort. 34 Accepting for purposes of argument that such a misunderstanding would qualify as "misinformation of constitutional magnitude," we nevertheless are not persuaded by the argument, because we find insufficient factual basis for it in the record. First, contrary to Blair's assertion on appeal that he had no information to give the government, his own remarks to the district court prior to sentencing suggest that he did not reveal the information because he was not asked to do so: he told the court, 35 I have tried to cooperate with the Board. I think I am the only one of the defendants that wrote my own statement-you know; and I wasn't asked to mention any names is the only reason I didn't mention any names. (emphasis added). 36 Second, the record does not support Blair's assertion that the district court actually relied on Blair's failure to divulge information in imposing sentence. The court did state that it was concerned that "those who financed and stood behind this criminal venture, those who stood to gain the most, are not here in court." Immediately thereafter, however, it said that a prison sentence for Blair was nevertheless necessary "to act as a deterrent" to young men like Blair who "willingly take the risk" for those others who would profit the most. The sentence, thus, was not imposed as retaliation for Blair's failure to divulge names but in order to deter others from acting as fronts in a smuggling operation. Deterrence is clearly a legitimate sentencing objective. See United States v. Moore, 599 F.2d 310, 315 (9th Cir. 1979), cert. denied, 444 U.S. 1024, 100 S.Ct. 687, 62 L.Ed.2d 658 (1980). 37 Blair's contention that the district court improperly considered the failure of Moore and Dodd to reveal information to the government in sentencing him is similarly not persuasive. While it is true that the court openly expressed its concern at all of the sentencing proceedings that the key individuals behind the drug operation were escaping punishment, and that all three of the defendants received identical sentences, it cannot therefore be inferred that Blair was sentenced for Moore's and Dodds' reluctance to talk. 38 Having disposed of these contentions, we further observe that the sentence was within statutory limits and was not mechanistically imposed but was instead the result of discretion exercised in light of societal considerations and Blair's personal circumstances. See United States v. Neidinger, 647 F.2d 408 (4th Cir., 1981). We accordingly affirm the sentence. IV. 39 The search and seizure of the CENTAURUS and the search of the bales of marijuana having been lawful, the district court properly denied the defendants' motion to suppress. The district court, moreover, did not abuse its discretion or offend due process in sentencing the defendant Blair. We therefore affirm the defendants' convictions and Blair's sentence. 40 AFFIRMED. 41 MURNAGHAN, Circuit Judge, dissenting in part and concurring in part: 42 Whenever the exclusionary rule applies, with the resulting suppression of trenchant evidence of guilt, and the substantial and regrettable consequence that an offender against society may go free, the judge is apt to wince or at least to feel a twinge. Perhaps the exclusionary rule, in its entirety, or as to possible exceptions, should be reexamined. Mr. Justice Cardozo, after all was a force to be reckoned with and he disapproved of the rule.1 See People v. DeFore, 242 N.Y. 13, 150 N.E. 585 (1926). 43 Still, a study looking to possible revision is not open to those who sit at a level beneath the rank of the United States Supreme Court. Unless and until that Court reconsiders the predominating weight it has assigned to stringent measures to keep the policeman decent and law-abiding at practically any cost in terms of convictions of the perpetrators of crime, it behooves us to give full force to what it has laid down as the law. The responsibility extends to preservation of the vitality of related rules. We should not avoid or vitiate the effectiveness of the exclusionary rule by distorting what constitutes the essential ingredients of a proper search or seizure. 44 It is my regretful conclusion that such a distortion-an attempt, by two wrongs, to make a right-occurs in the majority opinion. 45 First, it must be emphasized that the law enforcement officers had nothing more to go on than (a) awareness that some unidentified group in the neighborhood was engaged in a drug importation scheme and (b) an informer's tip that a large boat was engaged in a drug smuggling caper. Perceiving one large boat in the vicinity on the Potomac River, the officers drew alongside, and with no real justification other than the vessel's size and location in the vicinity2 peremptorily compelled the vessel to accompany them to shore and conducted a warrantless search.3 Regardless of whether there was enough to permit a Terry stop, there was, I submit, no reasonable basis for seeking a warrant. The search was illegal both because no warrant was sought and because no warrant, if one had been sought, would have issued in the absence of probable cause.4 It also was fruitless. No marijuana was discovered. The officers who conducted the search deserve an expression of judicial disapproval, at least in the way of a rebuke, for their trampling on the constitutional Fourth Amendment rights of the citizens aboard that vessel. 46 No doubt disappointed, yet undeterred by their lack of success, the enforcement officers turned to the next big boat in the vicinity. Again with nothing more than size to go on, they drew alongside with every intention of boarding and conducting a warrantless search. They intended an unlawful act. The boat turned out to be one known to one of the officers, so the planned unlawful search was aborted. Nothing if not dogged in their determination to proceed in defiance of the Fourth Amendment, the officers bore down on a third large vessel, the CENTAURUS. 47 This time, a beneficent fate intervened to provide the providential and fragrant whiff of marijuana just as the first officer was about to transfer to the suspect vessel. And still more manna fell from Heaven: the words "You have got us" emerged from one of the party aboard the CENTAURUS. At that point a Terry stop was certainly justified. So, too, we may assume, was the arrest of all aboard, which promptly occurred. Also, unlike the situation the first time, there was probable cause to justify a search. We may assume that exigency justified making a search, without a warrant, of the vessel. United States v. Laughman, 618 F.2d 1067 (4th Cir. 1980), cert. denied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980). 48 That leaves unanswered, however, the question of the propriety of going further, as to covered parcels discovered in the search of the vessel, and breaking them open to ascertain their contents, although no warrant had been sought. Again there was probable cause, but a significant difference also existed. The search of the vessel justified an arrest of all aboard, which promptly occurred. Hence, mobility of the CENTAURUS and any associated exigency about breaking open the bales were at an end. 49 It is elementary that probable cause alone does not permit a search. It only provides a substantiating basis for issuance of a warrant.5 A warrantless search is per se unreasonable in all but a very narrow set of circumstances.6 The exceptions to the requirement that a warrant be obtained are "few." Robbins v. California, --- U.S. ----, ----, 101 S.Ct. 2841, 2844, 69 L.Ed.2d 744 (1981). 50 The arrest of the occupants of the CENTAURUS preceded any effort to open and inspect the contents of any of the burlap-covered and cigarette carton packaged bales found below deck in the CENTAURUS. Consequently, any removal of the vessel from the supervision of the authorities, likelihood of dissipation of evidence, resort to the packages for concealed weapons, or disappearance of persons aboard the vessel had evaporated before invasion of the bales occurred.7 51 The possibly unique treatment of automobiles derives from "their inherent mobility, which often makes obtaining a judicial warrant impracticable." United States v. Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977); Robbins, supra, 101 S.Ct. at 2845. The invasions without warrants here took place as to some bales split open subsequently, during the course of unloading by government agents or employees, which occurred on the following day when the CENTAURUS was fully secure at a Naval Ordnance Station. Thereafter, while the vessel was equally secure, DEA agents, without warrants, broke open some of the bales.8 52 The arguably applicable circumstances advanced to excuse obtention of a warrant are (a) exigency or (b) plain view. 53 No one, however, should seriously contend for exigency. On navigable waters the boat presented little, if any, resemblance to a fleeting motor vehicle on the public streets. The law enforcement officers, having arrested the ship's complement, were in complete control, in a position effectively to frustrate any flight of the boat, dissipation of evidence or disappearance of persons.9 54 As for plain view,10 reliance is placed on the facts that (1) a small quantity of marijuana was contained in a container set out in the galley area for use by those on board; (2) there were stored below a large number of bales,11 (3) some marijuana residue was scattered on top of some of the bales, and (4) the old reliance which justified boarding of the CENTAURUS in the first place, there was an aroma of marijuana. 55 Of course, if, on opening, those bales had disclosed their contents to be cotton or rags, the case would have taken on a very different aspect.12 One may question whether the small amount (about 2 ounces) of marijuana available for personal use would have even led to criminal charges. The immediate expected response is: "But it wasn't cotton, or rags, it was marijuana." That sort of after-the-fact reasoning, however, ignores the possibility that things could well have been otherwise. We, in court, only see the case where an unwarranted breaking of a package actually turns up contraband. An apparent 100% in smelling percentage may, on undistorted statistics (i. e. statistics not skewed by the consideration that prosecutions rarely if ever eventuate when the smell is "pot" but the bale contents turn out to be something else), reduce to 50% or less. Moreover, whatever the likelihood percentage, that does not bring the contents of the bales into plain view. Even if the likelihood that marijuana lies behind the covering of the bales is very high, that fact does not have relevance as to what the eye could see. Probability is simply not visibility. 56 As Robbins v. California, supra, has established, it takes an open package, or one whose configuration is distinctive as to its contents (i. e., a kit of burglary tools or a gun case) to bring into play the plain view exception to the generally unyielding rule that a warrant must first be obtained. Here, however, the contents of the bales fitted neither description. The bursting open of bales did not occur until the next day, and was the product of the government's activities, not of anything done by the defendants. The burlap coverings were as opaque as the green plastic covering the marijuana in Robbins, and more durable than the paper bag referred to in the Court's opinion as being entitled to an expectation of privacy. 57 Nor does the strong likelihood, based on other facts, that the concealed contents are marijuana have anything to do with whether they are revealed to the naked eye. Rather, the other facts merely enhanced the probable cause to believe the hidden substance was marijuana, thereby making the basis for a warrant all the stronger. The fact that an officer is manifestly entitled to a warrant is not a reason to excuse him from the necessity to apply for it.13 58 I do not ignore the contention that the phrase "plain view," while, from a strict linguistic point of view, it refers to only one of the senses, nevertheless may be broadened to apply to the others. In the dark, the sense of touch may convey as precise an impression as the eye does in daylight. But the "view" must be "plain." Smell is by nature fleeting and evanescent. It also is too easy, after the fact, to assert and essentially impossible to refute. Hence to accept it here would justify any and every warrantless search which turns up marijuana, however securely packed, regardless of the unmentioned occasions when the same nose betrayed its owner, when the bales turned out to contain tea, or spices, or rags or cotton. 59 Indeed, in this very case, the reliance on smell to construct a plain view exception for the contents of the bales is rendered suspect because of the presence of a small container of marijuana available for use by the crew members. It also gave off a scent. While it heightened the probability that the bales contained marijuana, nevertheless, it reduced substantially the basis for contending that what was smelled emanated from the bales. Nothing in the evidence produced showed that the bales were known to be the source of what was in the small container. The contents of the bales were simply not visible, by sight or by smell. They, consequently, were not in plain view.14 60 The residue scattered on top of some bales also merely increases the probability, not the visibility. It is at least as likely as any other explanation that the residue came from something earlier stowed above the bales, perhaps containers already off-loaded elsewhere. The bales beneath the residue are by no means certainly their source. Furthermore, the record in no way connects the bales broken open by the DEA, or during off-loading, with those on which marijuana residue was scattered. 61 The enforcement officers brought the CENTAURUS to shore and tied it up in a manner secure, not only against wind and weather, but also against intrusion. A day later the bales were off-loaded. The initial breakage of bales occurred in the course of that operation. All the time which could be needed for obtaining a warrant existed, yet no one bothered to get one. The same was even more true for the DEA sampling of the contents of the bales, without a warrant, which took place still later. We should not encourage lawlessness by excusing the neglectful and the sloppy, by pretending a nonexistent exigency, and by imagining that what could not be seen was in "plain view." 62 The ironic aspect of all this is that, had the prosecutor thought about it, he need not have pushed for unlawful proof about the contents of the bales. Had he contended himself with evidence (a) of the small container of marijuana for individual use, and of the scattered residue, and (b) showing the existence of the many bales, as to which an inference (the basis for a finding of probable cause which would have supported an application for a warrant) could, under all the circumstances here present, have been drawn as to their contents, even though the contents were not in plain view, he probably would have secured his convictions. The convictions would not, then, have been at the price of permitting tainted evidence, obtained in violation of the Fourth Amendment. 63 Instead, he went too far, preferring what may well have been overkill. The convictions so obtained should not stand. I would reverse to permit a new trial undefiled by constitutional violations. 64 As to the other issues addressed by the majority, I concur in the conclusions they have reached. 1 The defendants do not appeal the district court's refusal to suppress the film found aboard the CENTAURUS 2 The defendants argue that, in addition to being unconstitutionally applied, the statute does not support the marine officers' stop of the CENTAURUS, as it references a vessel stop only to enforcement of the provisions of the subtitle in which the statute is found, that is, the State Boat Act, Md.Nat.Res.Code Ann. § 8-701 et seq. (1974). Enforcing the State Boat Act, they assert, does not encompass the stop of a vessel suspected of illegal drug activity We are not persuaded by the argument. The intent of the Act, by its own terms, is "to foster the development, use, and enjoyment of all the waters of Maryland," Id. § 8-702, and the officers were mandated to cooperate with the federal authorities "for special events or to meet emergency situations." Id. § 8-704(b)(8). Without engaging in detailed analysis of the state statutory scheme, we conclude that the State Boat Act authorizes, to the limits allowed by the fourth amendment, the state marine police to stop and search in state waters a vessel suspected of illegal activity and to assist federal authorities in making such a stop and search. Our conclusion is supported by the statutory language of Md.Nat.Res.Code Ann. § 1-204(a) (1974), which states in part, "In addition to any other powers conferred by this title, the Secretary and every natural resource police officer shall have all the powers conferred upon police officers of the state. These powers may be exercised anywhere within the state." 3 The fourth amendment states that "(t)he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S.Const. amend. IV 4 18 U.S.C. § 3577 recites that (n)o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence. 1 In that statement, I do not intend to align myself with those who would do away with the exclusionary rule. A distinguished lawyer, speaking from the perspective of the prosecutor, presented a compelling case when he recently urged the rejection of two bills designed to weaken the exclusionary rule, and recommended extreme skepticism "of the many proposals, now very much in vogue, to modify a rule which has barred unconstitutionally seized evidence from federal criminal trials...." Stephen H. Sachs, Attorney General of Maryland, Statement of October 5, 1981 to the United States Senate Judiciary Subcommittee on Criminal Law Attorney General Sachs was the United States Attorney for the District of Maryland from 1967 to 1970, having previously served three years as an Assistant United States Attorney. 2 Someone on the boat was observed throwing some unidentified object overboard. Anyone who sails knows that such is a frequent occurrence, generating no grounds for suspicion 3 On approaching, the law enforcement officers observed a registration violation, an expired decal posted on the side of the boat. They thereupon arrested the owner for a registration violation and compelled the vessel to accompany them to a boat basin to "board the boat and check it out." The main reason (and evidently, in the circumstances, the only real reason) was the report of a boat suspected of drug smuggling The boat occupants were held while ownership of the vessel was checked. The officers then, without any probable cause, informed them that they were suspects in a drug investigation and sought permission to and did search the boat. There is, of course, no finding that, on the totality of the circumstances, the consent to search that vessel was truly voluntary. It seems most questionable. 4 The majority would brush aside the apparent lawlessness with the observation that "seizure and search of that vessel-not challenged here-turned up no contraband." Slip op. at 4. The practical certainty that the innocent in such circumstances would not go so far as to press a legal claim only emphasizes the need for alertness on the part of the courts to curb such impermissible behavior. In all events, who would or could have standing to challenge that violation of law "here"-i. e. in the case before us? 5 Arkansas v. Sanders, 442 U.S. 753, 758, 99 S.Ct. 2586, 2590, 61 L.Ed.2d 235 (1979): The mere reasonableness of a search, assessed in the light of the surrounding circumstances, is not a substitute for the judicial warrant required under the Fourth Amendment. 6 Walter v. United States, 447 U.S. 649, 657-58 n.10, 100 S.Ct. 2395, 2401-2402, 65 L.Ed.2d 410 (1980): The fact that the labels on the boxes established probable cause to believe the films were obscene clearly cannot excuse the failure to obtain a warrant; for if probable cause dispensed with the necessity of a warrant, one would never be needed. Cf. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948): Power is a heady thing; and history shows that the police acting on their own cannot be trusted .... We cannot be true to that constitutional requirement (a prior warrant from a magistrate) and excuse the absence of a search warrant without a showing ... that the exigencies of the situation made that course imperative. 7 New York v. Belton, --- U.S. ----, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) deals with a situation where search of the contents of the passenger compartment of an automobile incident to, and contemporaneous with, a lawful, though warrantless, custodial arrest occurred. One container in the passenger compartment was an item of clothing, a jacket. The court held that a warrant was not required in exigent circumstances, where the container searched was "within the immediate control of the arrestee" and "from within which (an arrestee) might gain possession of a weapon or destructible evidence." 101 S.Ct. at 2863, quoting from Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969) The containers in the instant case, by contrast, were neither so accessible, nor so destructible. Furthermore, the search of the bales to ascertain their contents occurred, at the earliest, a day later. The Belton majority were careful to distinguish United States v. Chadwick, 433 U.S. 1, 15, 97 S.Ct. 2476, 2485, 53 L.Ed.2d 538 (1977) on the precise grounds that "the search was conducted more than an hour after the federal agents had gained exclusive control of the (container) and long after respondents were securely in custody; the search therefore cannot be viewed as incidental to the arrest or as justified by any other exigency." 101 S.Ct. at 2865. 8 Testimony of Sergeant Hutchinson: Q. Now, the bales themselves are for the most part burlap covered? A. Yes, sir. Q. Inside the burlap there were cigarette carton boxes and inside of that was the substance? A. Yes, sir. Q. Now, when, to your knowledge, was the first bale broken open to see what was inside? Was it that day or the next day? We will start there. A. I have no recollection of the first day of the bales being broken open. I do recall the second day after we unloaded the bales. .... Q. And on the next succeeding day, which was Monday, you had yet to open the bales or the DEA agent, as I understand your testimony, had yet begin to open any of the bales; that is true, is it not, sir? A. I have no knowledge on the first day which was Sunday, of anyone opening the bales. On the second day I seem to recollect that either by accident or on purpose, and I don't know which, one or more of the bales were open. Testimony of Officer Sciukas: Q. Did you participate in the unloading of the vessel? A. Yes, the next day. Q. Do you know how many bales were finally gotten off? .... Q. Were there any open containers of bales of marijuana that was in view that you saw? A. Some of the bales were split and broken open. In the forward cabin area, when you looked through the forward hatch there was a bag of marijuana with rolling papers hanging in plain view, of a small quantity, maybe two ounces or so. Q. As you were unloading were items found that were later secured? A. Yes sir. It should be observed that it is far from clear whether the testimony relates to the time of boarding the CENTAURUS or the time of off-loading on the following day. In any event, nothing in the testimony establishes that the contents of bales split and broken open were visible. It is to be noted that, besides the burlap, the bales were covered by cigarette carton boxes as well. 9 At oral argument, the government acknowledged that there were no exigent circumstances, saying: .... COURT: Do you agree that there was no exigency to conduct this search? AUSA: I'll have to agree that there wasn't any. But I'd like to qualify that Your Honor because there was no need and the reason .... COURT: But there was no exigency because you by that time had complete control of the vessel; you were going to take it to a government controlled location; there was no way anybody could get at it and I take it that a magistrate or other person to issue a warrant was not very far away. AUSA: Well it was Sunday but I concede that it could have been gotten. COURT: You could have waited until Monday without any real risk of losing the loot. AUSA: I think that is true. COURT: But I want to make sure what we have is a situation where the exception is being argued for without exigency in the picture and it is only a question of whether there was such an abandonment of any expectation of privacy that you could go ahead and disregard the Fourth Amendment because there was no expectation of privacy. That is what your argument really is down to. AUSA: Yes sir. .... The situation differs markedly from that presented in United States v. Hensler, 625 F.2d 1141 (4th Cir. 1980), cert. denied, 450 U.S. 980, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981) where the persons operating the vessel were not apprehended and so were free to return and make off with her at any time. She had no line ashore, no anchor, indeed no moorings of any sort. Heeling at about 45 degrees with the tide, to all appearances she was quarry both to storm and stealth, to be carried out to sea or to the bottom, or towed to a more ready location for the discharge or dispensing of drugs. Id. at 1143 (emphasis in original). United States v. Laughman, 618 F.2d 1067, 1073 (4th Cir. 1980), cert. denied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980) also is not here pertinent, involving only the legality of a search without warrant which turned up marijuana residue, evidently perceptible to the naked eye. I accept that, here, the warrantless search of the vessel was legal. The question here concerns the right to make a further warrantless search of covered parcels, bales swathed in burlap. 10 The district court concluded that there was no reasonable expectation of privacy, although the concealed contraband was stowed, in bales, below decks, in hatches. The majority of the panel does not appear to approve that approach, however, for it explicitly, at 506-507, switches to a "plain view" rationale 11 A few of the bales were shown, at some later time, to be torn or cracked, but that point in time clearly came after the boarding and initial search of the CENTAURUS and the arrest of its entire complement. Indeed, the breaking open of any bale was not shown to have occurred until the next day when, in the course of offloading by the government, the splitting of some bales, revealing their contents, occurred. See at 503: Either prior to or during the unloading, however, some of the packages had split and broken open, revealing their contents. Cf. Id. 507: ... some of the bales-the record is unclear on the exact number-were split open and marijuana exposed to view prior to the search, that is, the opening and sampling of the bales by DEA agents. (Emphasis in original.) The majority does not suggest, nor does the record reveal, that any bales were broken open until after seizure of the CENTAURUS and arrest of her occupants had been fully completed. Consequently, any creation of a plain view state for the contents of the bales was the work of the government agents, not of the vessel occupants. On the approach that would uphold the sampling of bale contents by the DEA in the present case, on the grounds that the contents were in plain view, there always will be plain view. The encouragement to sloppy work with emphasis on dropping, bumping and the like of closed containers will become routine. 12 Compare the situation in Walter v. United States, supra, 447 U.S. 649, 656 n.6, 100 S.Ct. 2395, 2401, 65 L.Ed.2d 410, where the markings on packages created an inference that the contents were obscene, yet, since only 5 of the 25 film titles were used as a basis for prosecution, it was presumed that the other films were not obscene 13 Walter, supra, is instructive. There the wrappings of a shipment of twelve large packages had been torn open before it came lawfully into the government's hands. Descriptive labels on the contents, 871 reels of film, gave the basis for an overwhelming inference that they were obscene. The government proceeded to screen the films without first obtaining a warrant The Supreme Court rejected the government's argument that the opening of the packages, and one or more of the boxes containing reels of film before they came into government hands and the existence of visible labels establishing probable cause to believe the films were obscene justified a search without warrant. "Prior to the Government screening, one could only draw inferences about what was on the films." 447 U.S. at 657, 100 S.Ct. at 2401. Prior to the government breaking open of the bales, one could only draw inferences about what was in them. The expansion of the search in both cases was significant. Each required a warrant to make it lawful. "That separate search was not supported by any exigency, or by a warrant even though one could have easily been obtained." Id. 14 The existence of a competing source of the aroma was not a factor in United States v. Haynie, 637 F.2d 227, 233 (4th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 2051, 68 L.Ed.2d 351 (1981); United States v. Hensler, 625 F.2d 1141, 1142 (4th Cir. 1980), cert. denied, 450 U.S. 980, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981); or United States v. Sifuentes, 504 F.2d 845, 848 (4th Cir. 1974). Contra United States v. Bradshaw, 490 F.2d 1097, 1101 (4th Cir. 1974), cert. denied, 419 U.S. 895, 95 S.Ct. 173, 42 L.Ed.2d 139 (1974) ("The liquor was certainly not in 'plain view,' within the ordinary meaning of that phrase, when Agent Williams first detected the odor emanating from the truck. Nor did he, at that point, have any basis upon which to conclude, with certainty, that liquor was actually present in the truck. An alternative explanation of the smell was equally probable-that liquor had once been present in the truck but had since been removed leaving the truck permeated with its vapors. Agent Williams thus had no more than a reasonable ground to infer the presence of liquor at this point.") The present case is clearly distinguishable on the ground that here there was more than one explanation of where the smell came from. That very consideration was present in Robbins, supra, where a search without a warrant of two packages containing marijuana located in a recessed luggage compartment in a station wagon, was held to have violated the Fourth Amendment. The law enforcement officers had smelled marijuana on approaching the vehicle, and had found marijuana in the passenger compartment. Those considerations, nevertheless, did not eliminate the expectation of privacy for the two bricks of marijuana in the luggage compartment, or result in a finding that their contents were in plain view. Note also that the smell of marijuana, though present, was not relied on in any way in the reaching of the result in New York v. Belton, --- U.S. ----, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).	{ "pile_set_name": "FreeLaw" }
463 U.S. 1303 103 S.Ct. 3524 77 L.Ed.2d 1284 CAPITAL CITIES MEDIA, INC., et al.v. Patrick J. TOOLE, Jr., Judge of the Court of Common Pleas of Luzerne County. No. A-1070. July 13, 1983. Justice BRENNAN, Circuit Justice. 1 This is an application for an immediate stay of several orders entered by the Court of Common Pleas of Luzerne County, Pennsylvania, in connection with a homicide trial in that court, Commonwealth v. Banks, Criminal Nos. 1290, 1506, 1507, 1508, 1519, 1520, 1524 of 1982, that had attracted a great deal of public interest. The specific orders in question were entered by respondent Judge Toole on June 3, 1983, after selection of the trial jury but before its sequestration. In one order, respondent directed first that "[n]o person shall print or announce in any way the names or addresses of any juror," Order in Accordance with Pa.Rules Crim.Proc. 1111(c), June 3, 1983, ¶ 2 (hereinafter ¶ 2), and also that "[n]o person shall draw sketches, photographs, televise or videotape any juror or jurors during their service in these proceedings . . .," id., ¶ 6 (hereinafter ¶ 6). In a separate order, Judge Toole ordered that "[n]o one, except attorneys of record, their agents, court personnel, witnesses and jurors may handle exhibits except by Order of the Court," Order Pursuant to Pa.Rules Crim.Proc. 326, June 3, 1983, ¶ 11 (hereinafter ¶ 11). The application for a stay was first presented to me on June 18, 1983, but I held it pending action by the Supreme Court of Pennsylvania on a substantially identical application for summary relief. On June 21, the jury returned a guilty verdict in the Banks case and was discharged; on June 30, the Supreme Court of Pennsylvania denied summary relief. Applicants immediately r applied to me for a stay. An initial response was received by telegram on July 7, with a more complete response submitted on July 13. 2 In recent years, several Justices have had occasion to explain the role of a Circuit Justice in precisely this context, when a trial court has enjoined the press and other media from publication of information in connection with a criminal trial. Caution is the refrain of any Justice acting as Circuit Justice, but we have recognized the special importance of swift action to guard against the threat to First Amendment values posed by prior restraints. It is clear that even a short-lived "gag" order in a case of widespread concern to the community constitutes a substantial prior restraint and causes irreparable injury to First Amendment interests as long as it remains in effect. When it appears that there is a significant possibility that this Court would grant plenary review and reverse the lower court's decision, at least in part, a stay may issue. Nebraska Press Assn. v. Stuart, 423 U.S. 1327, 1330, 96 S.Ct. 251, 254, 46 L.Ed.2d 237 (1975) (BLACKMUN, Circuit Justice); Times-Picayune Publishing Corp. v. Schulingkamp, 419 U.S. 1301, 1305, 95 S.Ct. 1, 3, 42 L.Ed.2d 17 (1974) (POWELL, Circuit Justice). See also Bonura v. CBS, Inc., --- U.S. ----, 103 S.Ct. 665, 74 L.Ed.2d 592 (1983) (WHITE, Circuit Justice). 3 I address first the ¶ 2 provision, which on its face permanently restrains publication of the names or addresses of any juror. Counsel for respondent has informed the Clerk of this Court that this order remains in effect, and that publication at this time of the name of a juror would subject the publisher to the possibility of being held in contempt of court. This order was entered by the Court sua sponte and without a hearing or a record; neither the prosecution nor defendant has expressed any interest in it. Compare Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). The jury was selected at voir dire proceedings begun prior to the issuance of this order, from which the press and public were not excluded, and at which the names of the prospective jurors were not kept confidential. Compare Press-Enterprise Co. v. Superior Court, --- U.S. ----, 103 S.Ct. 813, 74 L.Ed.2d 1012 (1983). 4 It hardly requires repetition that "[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity," and that the State "carries a heavy burden of showing justification for the imposition of such a restraint." New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1971) (per curiam ). This Court has given plenary consideration to a number of state statutes and court orders issued thereunder restraining publication of information in connection with a criminal trial or restricting press access to a criminal trial for the purpose of preventing such publication. Just last Term, in Globe Newspaper Co. v. Superior Court, --- U.S. ----, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), we held that the First and Fourteenth Amendments prohibited enforcement of a rule barring press and public access to criminal sex-offense trials during the testimony of minor victims. We adopted a familiar standard: "Where, as in the present case, the State attempts . . . to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest." Id., at ----, 102 S.Ct., at 2620; cf. Smith v. Daily Mail Publishing Co., 443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979). 5 I assume, for purposes of argument only, that the State has a compelling interest in keeping personal information about jurors confidential in an appropriate case, either to assure the defendant a fair trial or to protect the privacy of jurors. Cf. Globe Newspaper, -- U.S., at ----, 102 S.Ct., at 2621; Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 600, 100 S.Ct. 2814, 2840, 65 L.Ed.2d 973 (1980) (Stewart, J., concurring in the judgment). Our precedents make clear, however, that far more justification than appears on this record would be necessary to show that this categorical, permanent prohibition against publishing information already in the public record was "narrowly tailored to serve that interest," if indeed any justification would suffice to sustain a permanent order. Based on these precedents, I must conclude that if the Supreme Court of Pennsylvania sustained this order on its merits, four Justices of this Court would vote to grant review, and there would be a substantial prospect of reversal. 6 Insofar as the State's interest is in shielding jurors from pressure during the course of the trial, so as to ensure the defendant a fair trial, that interest becomes attenuated after the jury brings in its verdict and is discharged. Cf. Gannett Co. v. DePasquale, 443 U.S., at 400, 99 S.Ct., at 2916 (POWELL, J., concurring). As for the State's concern for the jurors' privacy, we have not permitted restrictions on the publication of information that would have been available to any member of the public who attended an open proceeding in a criminal trial, Oklahoma Publishing Co. v. District Court, 430 U.S. 308, 311-312, 97 S.Ct. 1045, 1047, 51 L.Ed.2d 355 (1977) (per curiam ); Nebraska Press Assn. v. Stuart, 427 U.S. 539, 568, 96 S.Ct. 2791, 2807, 49 L.Ed.2d 683 (1976), even for the obviously sympathetic purpose of protecting the privacy of rape victims, Globe Newspaper, --- U.S., at ----, 102 S.Ct., at 2621-2622; Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491-495, 95 S.Ct. 1029, 1044-1046, 43 L.Ed.2d 328 (1975). See also Smith v. Daily Mail, 443 U.S., at 104, 99 S.Ct., at 2671: "If the information is lawfully obtained . . . the state may not punish its publication except when necessary to further an interest more substantial than is present here"—i.e., protecting the privacy of an 11-year-old boy charged with a juvenile offense. In an extraordinary case such a restriction might be justified, but the justifications must be adduced on a case-by-case basis, with all interested parties given the opportunity to participate, and less restrictive alternatives must be adopted if feasible. Globe Newspaper, --- U.S., at ----, and n. 25, 102 S.Ct., at 2622, and n. 25; Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580-581, 100 S.Ct. 2814, 2829, 65 L.Ed.2d 973 (1980) (opinion of THE CHIEF JUSTICE); Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 842-843, 98 S.Ct. 1535, 1543, 56 L.Ed.2d 1 (1978). The ¶ 2 order was entered without a hearing, and without findings of fact that would justify it; respondent has suggested no concern specific to this case in support of his order. Accordingly, I grant applicant's request for a stay of the ¶ 2 provision. 7 It would be inappropriate for me to grant a stay of the ¶ 6 or ¶ 11 provisions. By its terms, the ¶ 6 provision applied only "during [the jurors'] service in these proceedings." Since the jury has been discharged, this particular provision can no longer have effect. It may be that such an order, although it had expired, could still receive appellate review in this Court under the "capable of repetition, yet evading review" doctrine, see Nebraska Press Assn., 427 U.S., at 546-547, 96 S.Ct., at 2796-2797, but there is no prospect of immediate injury to applicants before they can seek review of the order, so their application for a stay must be denied. As for the ¶ 11 provision, restricting access to exhibits, applicants have neither identified the exhibits to which they seek access, nor have they indicated that they have sought a court order permitting them access. The application for a stay of the ¶ 11 provision is denied without prejudice to its renewal in the event a request for access to exhibits is denied by the trial judge. 8 I shall issue an order accordingly.	{ "pile_set_name": "FreeLaw" }
902 N.E.2d 1083 (2009) 231 Ill.2d 630 DE BOUSE v. BAYER AG. No. 107528. Supreme Court of Illinois. January Term, 2009. Disposition of petition for leave to appeal[]. Allowed. NOTES [] For Cumulative Leave to Appeal Tables see preliminary pages of advance sheets and Annual Illinois Cumulative Leave to Appeal Table.	{ "pile_set_name": "FreeLaw" }
466 Pa. 81 (1976) 351 A.2d 631 Louis FRUMENTO, Appellant, v. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Appellee, and Dominick Staffieri, Inc., Intervening Appellee. Supreme Court of Pennsylvania. Argued January 17, 1975. Decided January 29, 1976. 82 Marvin F. Galfand, Philadelphia, for appellant. John C. Wright, Jr., Peter Broida, Philadelphia, for appellee, Dominick Staffieri, Inc. Sydney Reuben, Harrisburg, for appellee, Unemployment Comp. Bd. of Rev. Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ. OPINION OF THE COURT NIX, Justice. This appeal arises under the Unemployment Compensation Law, Act of December 5, 1936, P.L. [1937] 2897, 83 as amended, 43 P.S. § 751 et seq. The specific question is whether appellant-employee was properly excluded from benefits under this Act because of a termination of employment as a result of "willful misconduct" in accordance with section 402(e), 43 P.S. § 802(e). Appellant's application for unemployment compensation benefits was denied by the Bureau of Employment Security premised upon a determination that his discharge was as a result of willful misconduct. This determination was reversed by a referee who was in turn reversed by the Unemployment Compensation Board. The Commonwealth Court affirmed the action of the Board and this Court granted allocatur. There is no serious dispute as to the events which resulted in the discharge. Appellant Louis Frumento had been employed by Dominick Staffieri, Inc. as a compressor truck driver for approximately three years. In January of 1972, Frumento advised his employer that he had been elected judge of election and that it would be necessary for him to miss work on primary and general election days. The employer then told Frumento that permission for missing work on these two days would depend on the volume of work at the time. On April 24, 1972, Frumento advised his employer that he would miss work the next day, which was primary election day. His employer refused to give Frumento the day off and warned him that he would be discharged if he did not come to work. Frumento did not report for work and was discharged. The dispute arises because the statute does not define the term "willful misconduct." The Superior Court has had an occasion to define this concept as: "`Willful misconduct' . . . has been held to comprehend an act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has a right to expect of an employee, 84 or negligence indicating an intentional disregard of the employer's interest or of the employe's duties and obligations to the employer." Moyer Unemployment Compensation Case, 177 Pa.Super. 72, 74, 110 A.2d 753, 754 (1955). See also Davis v. Unemployment Compensation Board of Review, 187 Pa.Super. 116, 117, 144 A.2d 452, 454 (1958). While all parties to this action expressed their agreement with the language of the Superior Court quoted above, each side attempts to construe the meaning in accordance with their understanding of the philosophy of the Act. For instance, intervening-appellee, Staffieri, argues "it matters not to the employer whether the employee has a good reason." The employer would urge that we extend the term "willful misconduct" to embrace every deliberate absence contrary to the expressed instructions of an employer which has not been "truly involuntary". In citing an example of a situation that could properly be considered as "truly involuntary", the employer suggests one where an employee's absence is as a result of compliance with a legal subpoena. Here appellant asserted that his absence was compelled by the provision of the Election Code[1] which makes the willful failure of a judge of election to fulfill his responsibilities a misdemeanor. The employer adopts the argument of the Commonwealth Court rejecting this contention because 85 Frumento voluntarily assumed this responsibility.[2] We reject the reasoning of the employer and the Commonwealth Court as being too restrictive to carry out the clear legislative intention of this section of the Unemployment Compensation Act. Paramount in our analysis is the realization that this act was intended to be remedial and, thus, should be liberally construed to achieve its express purposes. "In attempting to arrive at a definition for this term, it is helpful to be mindful of the guiding principle announced by this Court in Wedner v. Unemployment Compensation Board of Review, 449 Pa. 460, 467, 296 A.2d 792, 796 (1972): "`Finally, it is to be remembered that the Unemployment Compensation Law is a remedial statute, and, excepting the sections imposing taxes, its provisions must be liberally and broadly construed so that its objectives [insuring that employees who become unemployed through no fault of their own are provided with some semblance of economic security] may be completely achieved.' Blum Unemployment Compensation Case, 163 Pa.Super. 271, 278, 60 A.2d 568, 571 (1948)." Lattanzio v. Unemployment Compensation Board of Review, 461 Pa. 392, 336 A.2d 595, 598 (1975). See also 86 Lybarger Unemployment Compensation Case, 418 Pa. 471, 211 A.2d 463 (1965). Equally germane to the inquiry is a recognition that the issue is not whether the employer had the right to discharge for the questioned conduct of the employee,[3] but rather whether the State is justified in reinforcing that decision by denying benefits under this Act for the complained of conduct.[4] The legislative intention could not be achieved if we were to accept a view that would fail to look beyond the fact that an employee in a single instance had acted in a manner contrary to the express direction of the employer. This much is conceded by the employer herein. However, we must reject their test of "truly involuntary", particularly as it is sought to be applied here, as too circumscribed. As suggested by the definition developed 87 by the Superior Court in order to fall within the definition of "wilful misconduct" the actions must represent "a disregard of standards of behavior which the employer has a right to expect of an employe[e]." Moyer v. Unemployment Compensation Board of Review, supra. Thus, not only must we look to the employee's reason for non-compliance we must also evaluate the reasonableness of the request in light of all of the circumstances. To accommodate this end the Superior Court developed a concept of good cause. Crib Diaper Service v. Unemployment Compensation Board of Review, 174 Pa.Super. 71, 98 A.2d 470 (1953), see also Krawczyk Unemployment Compensation Board of Review, 175 Pa.Super. 361, 104 A.2d 171 (1954). The rationale upon which this concept of good cause was developed was that where the action of the employee is justifiable or reasonable under the circumstances it can not be considered wilful misconduct since it can not properly be charged as a wilful disregard of the employer's intents or rules or the standard of conduct the employer has a right to expect. Crib Diaper Service v. Unemployment Compensation Board of Review, supra. We find this reasoning persuasive. Applying this concept of good cause to the instant facts, we are satisfied that the Commonwealth Court and Board erred in denying benefits to this appellant. If the nature of the employee's undertaking (judge of election) was inimical to the employer's interest, he was provided ample opportunity to request that Frumento relinquish this responsibility. Having waited until the day before the primary election, when the question was again raised by the employee, to issue the directive in question appears to have been an unreasonable approach. Further, the employer first conditioned his approval of the absence upon whether the work load would allow the loss of the employee's services for the day. The refusal, however, was predicated upon the absence of other employees *88 and not an increase in the volume of the normal work load.[5] We have carefully reviewed the authorities offered by intervening appellee and find them inapplicable. In Burke v. Unemployment Compensation Board of Review, 199 Pa.Super. 565, 186 A.2d 425, although a denial of benefits was upheld for claimant's refusal to work during the Christmas holidays, the court took great care to point out that the employer had fairly attempted to equalize days off between his employees and the employee failed to offer any explanation for the decision not to appear on the days assigned. See Davis v. Unemployment Compensation Board of Review, 187 Pa.Super. 116, 144 A.2d 452 (1958). In Morgan v. Unemployment Compensation Board of Review, 176 Pa.Super. 297, 106 A.2d 618 (1954) the conduct of claimant was an arbitrary and flagrant disregard of the employer's interest, and clearly inapposite to the instant factual situation. However, the court in that decision recognized that "a single instance of misconduct is usually not such as to bring an employe[e] within the purview of § 402(e)." Lastly, the employer offers Butchko v. Unemployment Compensation Board of Review, 168 Pa.Super. 618, 82 A.2d 282 (1951) where the appeal was dismissed because claimant failed to file a brief or appear for argument. The order of the Commonwealth Court is reversed and the matter is remanded to the Unemployment Compensation Board of Review for further proceedings consistent herewith. NOTES [1] The Election Code, Act of June 3, 1937, P.L. 1333, art. XVIII, § 1848, 25 P.S. § 3548 provides: "Any Secretary of the Commonwealth, member of a county board of elections, chief clerk, employe, overseer, judge of election, inspector of election, clerk of election, machine inspector or custodian of voting machines on whom a duty is laid by this act who shall wilfully neglect or refuse to perform his duty, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced to pay a fine not exceeding one thousand ($1,000.00) dollars, or to undergo an imprisonment of not more than two (2) years, or both, in the discretion of the court. (Emphasis supplied.) [2] We find it difficult to follow the logic of this reasoning under the employer's "truly voluntary" theory. If the gist of the alleged misbehavior on the part of the employee was his acceptance of the responsibility without the prior approval of the employer, then the issue would be whether that conduct fell within the concept of "wilful misconduct". However, he was not here discharged for the acceptance of the office without prior approval of the employer. Most significantly, when apprised of the fact of Frumento's election to this office, the employer did not either order or suggest that he consider resigning. Having once undertaken the responsibilities of an election official he was subject to the same obligation as all others in his category by virtue of § 3548 regardless of the circumstances under which he assumed office. The degree of compulsion mandated by § 3548 upon one subject to its provisions is in no way alleviated because of a voluntary assumption of this responsibility. [3] There is some authority in this jurisdiction suggesting that an employee hired at will may be dismissed without cause. Cf. Henry v. Pittsburgh & Lake Erie Railroad Co., 139 Pa. 289, 21 A.2d 157 (1891). [4] The policy sought to be achieved by this legislation is set forth as follows: "Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of the Commonwealth. Involuntary unemployment and its resulting burden of indigency falls with crushing force upon the unemployed worker, and ultimately upon the Commonwealth and its political subdivisions in the form of poor relief assistance. Security against unemployment and the spread of indigency can best be provided by the systematic setting aside of financial reserves to be used as compensation for loss of wages by employees during periods when they become unemployed through no fault of their own. The principle of the accumulation of financial reserves, the sharing of risks, and the payment of compensation with respect to unemployment meets the need of protection against the hazards of unemployment and indigency. The Legislature, therefore, declares that in its considered judgment the public good and the general welfare of the citizens of this Commonwealth require the exercise of the police powers of the Commonwealth in the enactment of this act for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own." Unemployment Compensation Law, Act of December 5, 1936, supra, at 43 P.S. § 752. [5] The record failed to offer any explanation for the absence of the other employees or whether any action was taken against them. Cf. Woodson v. Unemployment Compensation Board of Review, 461 Pa. 439, 336 A.2d 867 (1975).	{ "pile_set_name": "FreeLaw" }
T.C. Memo. 1998-134 UNITED STATES TAX COURT DAKOTAH HILLS OFFICES LIMITED PARTNERSHIP, AN ARIZONA LIMITED PARTNERSHIP, WILLIAM M. AND DIANNE B. STEPHENS, TAX MATTERS PARTNER, ET AL.,1 Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent 1 Cases of the following petitioners are consolidated herewith: Pavillion II Limited Partnership, An Arizona Limited Partnership, William M. and Dianne B. Stephens, Tax Matters Partner, docket No. 18956-93; Copper Crest I Limited Partnership, An Arizona Limited Partnership, William M. and Dianne B. Stephens, Tax Matters Partner, docket No. 18962-93; Dakotah Hills Retail Limited Partnership, An Arizona Limited Partnership, William M. and Dianne B. Stephens, Tax Matters Partner, docket No. 18963-93; Club Carmel Limited Partnership, An Arizona Limited Partnership, William M. and Dianne B. Stephens, Tax Matters Partner, docket No. 18965-93; Pio Decimo II Limited Partnership, An Arizona Limited Partnership, William M. and Dianne B. Stephens, Tax Matters Partner, docket No. 18990-93; Ina Thornydale Limited Partnership, An Arizona Limited Partnership, William M. and Dianne B. Stephens, Tax Matters Partner, docket No. 18992-93; Ironwood Manufacturing, Ltd., An Arizona Limited Partnership, William M. and Dianne B. Stephens, Tax Matters Partner, docket No. 18993-93; and Vail Commerce Center Limited Partnership, An Arizona Limited Partnership, William M. and Dianne B. Stephens, Tax Matters Partner, docket No. 19067-93. - 2 - Docket Nos. 18955-93, 18956-93, Filed April 6, 1998. 18962-93, 18963-93, 18965-93, 18990-93, 18992-93, 18993-93, 19067-93. William M. and Dianne B. Stephens, pro sese.2 James E. Archie, for respondent. MEMORANDUM OPINION HAMBLEN, Judge: Respondent issued a notice of final partnership administrative adjustments (FPAA) to each partnership involved in these cases. The proposed adjustments determined by respondent in each case for the 1989 taxable year are as follows: Partnership Adjustment Dakotah Hills Offices Ltd. Partnership $385,519 Pavilion II Ltd. Partnership 432,084 Copper Crest I Ltd. Partnership 181,371 Dakotah Hills Retail Ltd. Partnership 972,812 Club Carmel Ltd. Partnership 234,902 Pio Decimo II Ltd. Partnership 2,685,926 Ina Thornydale Ltd. Partnership 480,813 Ironwood Manufacturing Ltd. Partnership 918,765 Vail Commerce Center Ltd. Partnership 417,156 After concessions, the principal issue for decision is whether petitioners recognized income pursuant to a section 752(b) deemed distribution.3 2 On Jan. 30, 1996, this Court granted George Tomas Rhodus' petition to withdraw as counsel for petitioners. 3 All section references are to the Internal Revenue Code in effect for the year at issue, and all Rule references are to the Tax Court Rules of Practice and Procedure, unless otherwise (continued...) - 3 - FINDINGS OF FACTS This case was submitted on the basis of the entire record. The stipulation of facts and the annexed exhibits are incorporated herein and found accordingly. The principal place of business of the partnerships was located in Tucson, Arizona, at the time the petitions were filed. The partnerships were formed on the following dates: Dakotah Hills Offices Limited October 25, 1984 Pavilion II Limited Partnership May 16, 1986 Copper Crest I Limited Partnership February 7, 1986 Dakotah Hills Retail Limited Partnership July 19, 1985 Club Carmel Limited Partnership August 22, 1985 Pio Decimo II Limited Partnership December 18, 1984 Ina Thornydale Limited Partnership April 9, 1985 Ironwood Manufacturing Limited Partnership December 3, 1985 Vail Commerce Center Limited Partnership December 3, 1985 The Agreements and Certificates of Limited Partnership (Agreements) designated, inter alia, D. Randall Jenkins, and the JNC Companies, as the general partners for the partnerships. Most of the Agreements provided that the partnerships were to be capitalized by promissory notes (investor notes) which were executed and delivered by the limited partners to the partnerships as consideration for the acquisition of their partnership interests, i.e., "partnership units". In most instances, the Agreements provided: 2.10 First Promissory Note(s): Shall mean the Demand Promissory Note(s) executed by the Limited Partners as payment for each Limited Partnership 3 (...continued) indicated. - 4 - Unit(s) being purchased, and shall be in an amount equal to [dollar amounts] per unit which shall be secured by the Limited Partner's unit(s) being purchased and which is intended to be converted into an installment promissory note(s) (the "Second Promissory Note") when the Partnership obtains a financial commitment from a bank, savings and loan association or other financial institution. * * * * * * * 2.18 Partnership Unit: Partnership unit is the quantitative term of measurement used to measure one (1) Limited Partner's interest in the Limited Partnership as compared with other Limited Partners and the entire Partnership. * * * * * * * * * * 2.21 Second Promissory Note(s): Shall mean the Second Promissory Note(s) shall be executed by the Limited Partners as a modification of and in satisfaction of the First Promissory Note(s) and shall be prepared so as to satisfy the requirements of the bank, savings and loan association or other financial institution that has given the Partnership a loan commitment. Similarly, the remaining Agreements stipulated that the investor notes would be utilized to acquire partnership interests in the limited partnerships. Furthermore, the Agreements required each investor to execute a security agreement which conveyed to the partnership a security interest in his or her partnership - 5 - interest.4 This requirement was imposed, in part, to secure payment of the investor notes. In accordance with the aforementioned security agreements, the partnerships negotiated, pledged, and assigned all of the investor notes as collateral for loans to the partnerships from financial institutions. In turn, the partnerships acquired a number of real properties with the loan proceeds. The notes issued to the lenders by the partnerships were nonrecourse to the general partners, but through various additional agreements, the general partners were rendered liable with respect to the partnership indebtedness. These notes were not, by their terms, recourse to the limited partners.5 4 As an example, on Oct. 12, 1984, William M. and Dianne B. Stephens, as investors, signed a Security Agreement, in which they: [acknowledged] that the investor note and this agreement, which stands as collateral therefore [sic], will be assigned by the partnership as collateral for a loan to a lender, and [the Stephens] hereby expressly waives every defense, counterclaim or set-off which [the Stephens] or any of [the other investors] may now have or hereinafter may have to any action by such lender or the lender's assignee. This Security Agreement designates "Dakotah Hills Offices Limited Partnership" as the "Secured Party". 5 For purposes of this opinion, the term, "recourse indebtedness" means that the debtor's assets may be reached by creditors if the debt is not paid. Conversely, "nonrecourse indebtedness" means that a creditor's remedies are limited to a particular collateral for the debt. Raphan v. United States, 759 F.2d 879 (Fed. Cir. 1985). - 6 - As an additional inducement for the lenders to accept the investor notes from the partnerships as collateral, the partnerships negotiated and purchased financial guaranty bonds from Admiral Insurance Co. (Admiral). The bonds provided that in the event any limited partner defaulted on his or her obligations under the investor notes, Admiral agreed to pay to the lender(s) the amount due under the investor notes. The terms of the financial guaranty bonds provided that upon the satisfaction of the bond, the lenders were required to transfer the investor notes as well as the security agreements to Admiral. Concomitantly with the purchase of the bonds, the partnerships entered into indemnity agreements in which the partnerships agreed to indemnify Admiral against any loss on the bonds. In most instances, the partnerships' obligation under the indemnity agreements was secured by liens on real estate properties owned by the partnerships. Sometime in 1987 and 1988, the partnerships initiated bankruptcy proceedings and terminated payments on the partnership notes held by the financial lenders. Consequently, the lenders made demand on the limited partners who had contributed the investor notes, to the extent stipulated in the financial guaranty bonds. The limited partners, however, refused to honor the outstanding investor notes. The lenders, therefore, demanded and received a settlement from Admiral pursuant to the terms of the bonds. - 7 - Subsequently, within and without the bankruptcy proceedings, the parties engaged in prolonged and lengthy litigation. In particular, Admiral sued the limited partners who had defaulted on the outstanding investor notes, contending that it had become the holder of the aforementioned notes. The limited partners, in turn, countersued Admiral, alleging that they had been fraudulently induced to enter the partnerships and that Admiral had been party to the fraud. On November 10, 1989, Admiral and the representatives of the limited partners, executed a Settlement Agreement. The preamble to the Settlement Agreement states that Admiral and the investors were "parties to certain lawsuits" which, at the time of the agreement, were "pending in the United States District Court for the District of Arizona and/or the Arizona Superior Court in which Admiral has asserted claims against Investors and Investors have asserted claims against Admiral."6 Under the terms of the Settlement Agreement, an investor was given until December 31, 1989, to elect one of two options. The first option was as follows: Commencing on the later of (i) January 1, 1990, or (ii) the effective date of any enacted statutory provisions amending the Internal Revenue Code to provide for preferential treatment with respect to the 6 It appears that at least some of the limited partners in the various partnerships were parties to a suit against Admiral, but the record does not disclose whether all of the limited partners involved in this proceeding were parties to such lawsuit. - 8 - gain arising from the sale or exchange of a capital asset, the Investors shall abandon their interests in the JNC Partnerships by conveying them to the Trustee, and thereafter, the Investors' promissory notes that are the subject of claims by Admiral against the Investors or are otherwise held by Admiral shall be returned to the Investors. The return of the Investors' promissory notes is intended as a purchase price reduction within the meaning of I.R.C. Section 108(e)(5). * * * The second option provided as follows: Immediately after the conclusion of the bankruptcy proceedings, the Investors shall convey their interests in the JNC Partnerships to the Trustee; and all promissory notes executed by the Investors that are the subject of claims by Admiral against the Investors or are otherwise held by Admiral shall be returned to the Investors. The return of the Investors' promissory notes is intended as a purchase price reduction within the meaning of I.R.C. Section 108(e)(5). In sum, under the Settlement Agreement, an investor could "abandon" his or her interest or interests in the partnership "by conveying them to the Trustee", or the investor could elect to "convey" his or her interest or interests in the partnership to the trustee. In either event, the investor notes were to be returned. Moreover, under the Settlement Agreement, the investors assigned to Admiral: all of their right, title and interest in and to (i) any claim or cause of action against any and all Third Parties * * * and (ii) any claim, or cause of action which was, could have been, could be or might be asserted arising out of or in any manner related to the bankruptcy of JNC, the JNC Partnerships or the principals, general partners or affiliates thereof * * * - 9 - In turn, Admiral agreed not to pursue the investors' claims against specific individuals enumerated in the document, but reserved the right to "pursue any of the assigned claims against any other person, or any of its own claims against any person." The investors, however, retained the right to pursue other specific, enumerated individuals at their own individual expense and, through counsel of their own choosing. Next, Admiral agreed to "indemnify, defend and hold harmless the Investors" against claims by third parties relating to the investor notes. Finally, on December 29, 1989, the Settlement Agreement was approved by the bankruptcy court.7 In April 1993, respondent mailed the FPAA's, to petitioners, which proposed adjustments on the premise that "the discharge of liability on the partners' capital contribution notes in 1989 resulted in a partnership distribution pursuant to * * * section 752(b)." Petitioners filed a petition with this Court contesting respondent's proposed adjustments. Thereafter, we granted petitioners' motion to consolidate all of the cases, pursuant to Rule 141. Petitioners filed a motion for summary judgment, on the ground that the adjustments in the FPAA's were not 7 The record indicates, however, that the Settlement Agreement did not encompass all of the investors involved in the partnerships. - 10 - "partnership items" for purposes of section 6231.8 Subsequently, the case was submitted on the basis of the record. Petitioners did not file a brief, but respondent filed a brief within the time designated by the Court. OPINION In the instant case, the fundamental issue is whether there was a section 752(b) distribution adjustment by any of the partnerships to those limited partners who accepted the settlement with Admiral and the partnerships. Specifically, the parties diverge on the legal substance and effect of the Settlement Agreement. Respondent asserts that the financial arrangements embodied in the Settlement Agreement resulted in a section 752(b) distribution to petitioners. Conversely, petitioners contend that none of the partnerships made such a distribution to them. Section 61 requires that certain amounts be included in gross income. Section 61(a)(13) provides, in part, that gross income means all income from whatever source derived, including, inter alia, distributive shares of a partnership's gross income. Section 701 provides that a partnership is not liable for Federal income taxes; instead, persons carrying on business as partners are liable in their separate or individual capacities for the income taxes arising from partnership operations. In 8 The motion was denied. Dakotah Hills Offices Ltd. Partnership v. Commissioner, T.C. Memo. 1996-35. - 11 - determining his or her income tax, a partner must take into account his "distributive share" of each item of partnership income, gain, loss, deduction, and credit. Sec. 702. Each partner is taxed on his distributive share of partnership income without regard to whether the income is actually distributed to him. Sec. 1.702-1(a), Income Tax Regs. Section 722 provides that the basis of a partnership interest acquired by contribution of money or other property to a partnership is the amount of such money, and the adjusted basis of such property, increased by any gain recognized under section 721(b) to the contributing partner at such time. A partner's basis of his partnership interest is subject to adjustments. In particular, a partner's share of liabilities of the partnership are included in computing the partner's tax basis of his partnership interest. Cf. Crane v. Commissioner, 331 U.S. 1 (1947). Section 752(a) provides that any increase in a partner's share of the liabilities of a partnership, or any increase in a partner's individual liability by reason of the assumption by such partner of partnership liabilities, shall be considered a contribution of money by such partner to the partnership. This contribution results in an increase in the partner's basis of his partnership interest. Sec. 722. Section 752(b) provides that any decrease in a partner's share of the liabilities of a partnership, or any decrease in a - 12 - partner's individual liabilities by reason of the assumption by the partnership of such individual liabilities, shall be considered as a distribution of money to the partner by the partnership. Likewise, such a decrease in a partner's share of the liabilities of a partnership results in a reduction in a partner's tax basis in his partnership interest. Sec. 722. A partner's contribution of a promissory note to a partnership will not, in and of itself, establish basis since the note is not deemed to be cash, and is not property in which the partner possesses a basis. Sec. 722; Gemini Twin Fund III v. Commissioner, T.C. Memo. 1991-315, affd. without published opinion 8 F.3d 26 (9th Cir. 1993). However, in order for a limited partner to acquire basis in his or her partnership interest with respect to the contribution of a promissory note, the rules of section 752(a) apply. Accordingly, if the limited partner's share of the partnership's liabilities is increased upon the contribution of a promissory note, the increase will be treated as a contribution of money, and will, therefore, increase basis pursuant to section 722. Sec. 1.752-1(e), Income Tax Regs.9 The aforementioned provisions' requirement that the limited partner is obligated to make an additional contribution is satisfied if the limited partner has an unconditional, ultimate 9 Applicable to partnership liabilities incurred or assumed before Jan. 30, 1989. - 13 - liability to contribute certain amounts toward the partnership's recourse liabilities in the event the partnership's assets are insufficient to satisfy the outstanding liabilities, and if the limited partner has no right of reimbursement if constrained to make up the difference. Gefen v. Commissioner, 87 T.C. 1471 (1986); Abramson v. Commissioner, 86 T.C. 360 (1986); Smith v. Commissioner, 84 T.C. 889 (1985), affd. without published opinion 805 F.2d 1073 (D.C. Cir. 1986). Accordingly, our determination in this instance concerns the limited partners' personal liability with respect to the payment of partnership recourse liabilities derived from the investor notes that were contributed to the partnerships. Respondent contends that the limited partners became obligated to Admiral due to the partnerships' failure to meet the terms of the various loans from the lenders. In turn, the limited partners were either unable or refused to meet their obligations as delineated in the investor notes. Therefore, respondent argues that, in 1989, constructive distributions occurred as a result of the Settlement Agreement between the limited partners, the partnerships, and Admiral. In particular, respondent cites the language of the Settlement Agreement which provided that the investor notes contributed by the limited partners would be returned to the investors and never be enforced against the limited partners themselves. On the other hand, petitioners argue that the investor notes were not liabilities, but, rather, - 14 - assets of the partnerships. In essence, petitioners contend that the investor notes did not result in an increase, pursuant to section 752(a), in the basis of their partnership interests. Additionally, petitioners evidently assert that Admiral was the "equitable owner" of the investor notes, and that, the partnerships were the owners de jure of the aforementioned notes. In other words, petitioners argue that Admiral was not the ultimate creditor. Also, petitioners argue that since there was no actual distribution of money, there was no section 752(b) distribution. We agree with respondent. The financing arrangements in the instant case rendered each limited partner liable with respect to the recourse liabilities of the partnerships up to and including the amount of that limited partner's note in the event of default by the partnership on such liabilities. Moreover, at the inception of the partnerships, the limited partners were aware that their investor notes (held by the partnerships as assets) would be converted into and applied as collateral by the partnerships. Specifically, the limited partners executed security agreements which conveyed to the respective partnerships security interests in the investor notes. As noted, the partnerships held the investor notes as assets which were utilized as collateral for loans in connection with real estate acquisitions. In particular, the partnerships assigned their security interests in the investor notes to the - 15 - lenders. Also, to obtain loans from the lenders, the partnerships made financial arrangements with Admiral in which it guaranteed the performance of the limited partners. In that regard, the partnerships executed an agreement to indemnify Admiral against losses on the financial guaranty bonds in the event that the insurance company was obligated to reimburse the lenders on all outstanding loans. In connection with the foregoing transactions, Admiral possessed security interests in the investor notes. The partnerships, however, were unable to discharge the indebtedness to the lenders. Furthermore, upon notice and demand from the lenders, the limited partners did not meet their obligations under the outstanding investor notes. Consequently, Admiral, as the guarantor, was obligated to pay the lenders on the bonds. Subsequently, there was a settlement in which both Admiral and the partnerships released the limited partners from all obligations on the investor notes, and, in turn, the limited partners agreed to surrender and convey their partnership interests back to the partnerships. Moreover, Admiral agreed to indemnify the limited partners against claims by third parties in connection with the investor notes. The sum and substance of the foregoing transactions reflect that the limited partners did not unilaterally possess rights of reimbursement from the partnerships or the general partners for amounts owed by the limited partners to the lenders with respect to the investor notes. At the time those notes were pledged as - 16 - collateral for the partnerships' liabilities, the limited partners, accordingly, secured, pursuant to section 752(a), an increase in the basis of their interests in the partnerships equal to the amounts of those notes. In the Settlement Agreement, the investors were, in essence, relieved of personal liability with respect to their interests in the partnerships and in the investor notes. When Admiral satisfied the partnerships' obligations to the lenders, the partnerships were under obligation to Admiral. Correspondingly, Admiral acquired all interest in the investor notes, and, for all practical purposes, became the holder in due course of the investor notes. Admiral, therefore, became a creditor of the partnerships, and an asset of the partnership (the investor notes) was acquired by Admiral as collateral for the partnerships' indebtedness to Admiral. Petitioners contend that, subsequent to the Settlement Agreement, the partnerships still possessed "legal muniment of title" in the investor notes. In that vein, petitioners assert that Admiral was simply the "equitable owner" of the investor notes. Petitioners argue, in essence, that while the Settlement Agreement may have extinguished Admiral's security interest in the investor notes, the partnerships still retained and held interest in the investor notes as assets. The partnerships, however, did not possess any rights with respect to the outstanding investor notes. Petitioners disregard - 17 - the indisputable fact that the partnerships assigned the investor notes to the lenders in return for real estate loans. Once the partnerships defaulted on the aforementioned loans, all title and interest passed to the lenders. In due course, Admiral, therefore, possessed the right to hold the limited partners liable on the investor notes. Indeed, petitioners evidently concede as much. In that regard, the Settlement Agreement divested the limited partners of liability for the outstanding investor notes. Also, in the event that the investors were still held liable by third parties for the investor notes contributed to the partnerships, Admiral agreed to compensate or save harmless the aforementioned investors. Accordingly, the investors' execution of the Settlement Agreement resulted in distributions to them under section 752(b). We reject, likewise, petitioners' contention that they are not liable for a section 752(b) deemed distribution because there was no actual cash distribution. Although there was no such distribution, petitioners are, pursuant to section 752(b), considered to have received a deemed or constructive distribution when they were relieved of their share of the partnerships' debts. O'Brien v. Commissioner, 77 T.C. 113, 118 (1981). Specifically, O'Brien v. Commissioner, supra, involved a partner's abandonment of his interest in a real estate partnership. The partnership held real estate subject to nonrecourse debt. The taxpayer sent a letter to the partnership - 18 - abandoning his interest and walked away from the venture. The partnership continued in business. We held that a partner's abandonment of his partnership interest resulted in a decrease in his share of the partnership liabilities within the meaning of section 752(b), not because he ever had personal liability under State law, but because he is no longer considered under the applicable Code provisions as sharing in the nonrecourse liabilities of the partnership. O'Brien v. Commissioner, Id. at 118. Thus, the taxpayer was held to have been relieved of his share of partnership liabilities upon the abandonment of his interest, causing a constructive cash distribution under section 752(b). Moreover, this constructive distribution was held to be in liquidation of the partner's interest; it occurred upon termination of his partnership interest by abandonment. See also White v. Commissioner, 991 F.2d 657, 661 (10th Cir. 1993), affg. T.C. Memo. 1991-552 ("reduction in partner's liabilities by reason of a partnership's assumption of those liabilities is a cash distribution" citing sec. 752(b)). As noted, in the Settlement Agreement, petitioners' respective shares of the partnerships' recourse liabilities were decreased. Accordingly, under section 752(b), petitioners are considered to have received constructive distributions through the abandonment of their partnership interests and the forgiveness of the outstanding investor notes by Admiral and the partnerships. White v. Commissioner, supra. - 19 - Accordingly, we hold that petitioners realized distributions pursuant to section 752(b). Due to concessions, Decisions will be entered under Rule 155.	{ "pile_set_name": "FreeLaw" }
31 F.Supp. 736 (1940) ZEFF v. SANFORD, Warden. No. 1502. District Court, N. D. Georgia, Atlanta Division. February 26, 1940. Hal Lindsay and Morris Brandon, Jr., both of Atlanta, Ga., for petitioner. Harvey H. Tisinger, Asst. U. S. Atty., of Atlanta, Ga., for respondent. UNDERWOOD, District Judge. The above case came on for final hearing on February 20, 1940, after delays due to requests for continuances to amend and to take testimony, and for a rehearing, all of which were granted. Petitioner plead guilty to an indictment in two counts, the first charging the unlawful shipment of obscene literature in interstate commerce, and the second charging that petitioner unlawfully caused to be delivered by the United States Mails a letter which was, under the law, non-mailable matter. 737 In his petition for a writ of habeas corpus, petitioner contends, first, that he was denied assistance of counsel; second, that the second count is void because it does not charge a Federal offense; and third, that the sentence imposed is illegal and void, because the judgment of the Court was arrived at in the absence of petitioner in a hearing at which the prosecuting attorney was present and presented his views, and was imposed in Chambers and not in open court. It appears not only from the testimony of petitioner, but also from that of the United States Attorney and his Assistant who prosecuted the indictment in question, that petitioner's allegations with respect to the consideration and tentative determination of his sentence out of his presence are true. It appears from such testimony that the District Judge had adopted the practice of holding what was termed a "Pre-Sentence Hearing" in cases in which he had been advised that the defendants were going to plead guilty. In conformity with this practice, the following procedure was had in the instant case. Petitioner went into the office of the United States Attorney and indicated he wanted to plead guilty and asked Mr. McGuire, the Assistant United States Attorney, if the Judge would take his plea at that time. Mr. McGuire told the Judge that petitioner had come from Cincinnati and wished to plead guilty. The Judge replied, "I will take his plea but I want to go over this matter." Then there was held, in the absence of petitioner, what the Government Attorneys termed a "Pre-Sentence Hearing," at which time the Judge discussed the case with them and the Probation Officer, examined the obscene literature and tentatively determined the sentence to be imposed. During this hearing the Judge asked Mr. McGuire to inform him what the maximum penalty was and he was told that it was five years on each count. Thereupon the Judge stated, "This man being the originator of this and being responsible for these other two parties being in the penitentiary I think * * I will give him ten years." After this hearing, petitioner was called into the Judge's Chambers and was there arraigned and sentenced. Neither the arraignment nor the sentence took place in open court. Petitioner, upon appearing before the Court, admitted he had committed the offenses and plead guilty. The Court then said, "I will give you two five-year sentences concurrently." The United States Attorney spoke up and said, "Do you mean concurrently or consecutively?" The Judge replied, "I mean consecutively." The United States Attorney testified that he asked the Court this question because the Judge had told Mr. McGuire at the Pre-Sentence Hearing that he was going to give petitioner a ten-year sentence. There is no dispute as to the above facts and, therefore, the question presented is, whether or not the so-called "pre-sentence hearing" by the Judge in the absence of petitioner and before his arraignment and plea of guilty but in the presence of the Probation Officer and the prosecuting attorneys, and the imposition of the sentence in Chambers without advising petitioner of such proceeding and of his rights to assistance of counsel, invalidated the sentence that was imposed. There is no evidence or claim that the Judge or prosecuting attorneys acted from any wrong motive, but on the contrary, it appears that the Judge, who had already been advised of petitioner's desire to plead guilty, was trying to ascertain all the facts available concerning petitioner and his crime, in order that a just sentence might be imposed. Furthermore, petitioner had previously voluntarily disclosed to Mr. McGuire his previous convictions and all the facts concerning the crime he was charged with in the indictment and had discussed with him the probable length of sentence he would receive. The fact that two other perpetrators of offenses connected with those committed by petitioner were given eight-year sentences, was known to petitioner, and this fact and the fact that he, as the originator of the crime, would probably receive a longer sentence, were discussed by petitioner and Mr. McGuire before the pre-sentence hearing. The complaint filed against petitioner before the United States Commissioner was in only one count and petitioner never saw the indictment until a copy was handed him about a half an hour before he went before the Judge. He contends that he did not know there were two counts in the indictment and that he only intended to plead guilty on the first count, which contained the sole charge made against him before the Commissioner. He went before the Judge in Chambers, alone, without a lawyer or friends and not even his bondsman 738 stayed to hear the plea and sentence. At the time of arraignment and sentence, neither the Judge nor any one else advised him that a lawyer could be appointed to represent him without expense to himself. Petitioner contends he did not know of this right and would have asked for an attorney if he had. Previously he had stated to his bondsman that he did want a lawyer, not to contest his case, but to represent him at the time he entered his plea of guilty and to plead for the mercy of the Court. The bondsman made some inquiries for him and brought one lawyer to the jail to see him, but because he did not have money to pay a fee and thought that he should not place this additional burden upon his indigent dependants, and not knowing that the Court would appoint a lawyer to serve without compensation, he entered his plea without the assistance of counsel. If an accused, with knowledge of his rights and pertinent facts, admits his guilt and states to the Court that he does not desire counsel but wishes to plead guilty and place himself upon the mercy of the Court, and does so, such act is a competent and intelligent waiver of his right to assistance of counsel. Erwin v. Sanford, D.C., 27 F.Supp. 892. But if a Court, before conviction or the entry of a plea of guilty, hears, in private and in the absence of the accused and without his knowledge or consent, a presentation of the case by the prosecuting attorney and others, and determines, in such hearing, upon the sentence to be imposed, and thereafter, without advising the accused of such hearing and what took place therein and of his right to assistance of counsel, imposes, in chambers and not in open court, the sentence previously decided upon, then the entry of a plea of guilty in these circumstances and in ignorance of his right to assistance of counsel would not amount to an intelligent and competent waiver of counsel and the sentence imposed, in the absence of express waiver, would be void. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. An accused could hardly be presumed, in such circumstances, to have waived assistance of counsel or to entertain a desire to place himself upon the mercy of the Court, when the Court had already, without his knowledge, previously determined, without hearing him, to give him the maximum sentence that could be imposed under the law. The situation with respect to securing information to enable the Judge to wisely and justly impose sentence, procured after conviction or the entry of a plea of guilty, is quite different. In such case, under the technique of modern penology, the accused, who is supposedly entering his plea of guilty in open court or standing in open court before the Judge after verdict, is told that his case is to be investigated before imposition of sentence and he, unless he objects, impliedly consents to such investigation. It seems, therefore, perfectly proper for a thorough investigation to be made, after conviction or plea of guilty, of the accused's reputation, past offenses, economic, social and educational background, and of all other matters which a Judge should have before him in determining the kind of sentence which should be imposed. Even in such cases, however, any information not received from the accused himself or not given in his presence, which might influence the judgment, should be called to his attention, without necessarily disclosing the sources of such information, so that he may be afforded an opportunity to object to its use and to rebut same. Even after conviction or plea of guilty, great care should be exercised to see that the accused understands what is taking place and has, before sentence is imposed, a fair and full opportunity to answer charges made against him. If progress is to be made in the administration of criminal law and offenders treated in a scientific manner, such latitude must be left to the Judge unless blind and irresponsible judgments are to be imposed. Pre-sentence investigation, after conviction or plea of guilty, is the most just, effective and humane method, if properly used, of arriving at a sentence which will protect both society and the accused. Such a situation, however, is very different from one where the accused, with right to assistance of counsel and to arraignment, trial and sentence in open court, is permitted to enter a plea of guilty in ignorance of his right to assistance of counsel and the fact that his sentence has been predetermined without hearing from him, although the purpose of the Judge be highly praiseworthy and adopted from the best motives. The sentence in this case, imposed in the circumstances above stated, is, in my opinion void because petitioner was not 739 provided with counsel and did not waive his right to same. If this finding is correct, there is no need to consider petitioner's claim that the second count does not charge a Federal offense and is void. If the finding is incorrect and the sentence on the first count is valid, then consideration of the validity of the second count and sentence imposed thereon would be premature. McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238. Whereupon, it is considered, ordered and adjudged that the writ of habeas corpus be, and the same hereby is sustained, and that respondent discharge petitioner from custody at the end of fifteen (15) days from this date, unless a further supersedeas be granted by this Court, such delay being allowed to afford opportunity for appeal if desired, or, in order to enable the Court that imposed the sentence to reassume jurisdiction of petitioner and to take such further steps in the case as the law may permit.	{ "pile_set_name": "FreeLaw" }
484 F.Supp.2d 1314 (2007) VOLKSWAGEN OF AMERICA, INC., Plaintiff, v. UNITED STATES, Defendant. Slip Op. 07-47, Court No. 96-01-00132. United States Court of International Trade. March 28, 2007. 1315 1316 Law Offices of Thomas J. Kovarcik (Thomas J. Kovarcik), New York City, for Plaintiff Volkswagen of America, Inc. Peter D. Keisler, Assistant Attorney General; Barbara S. Williams, Attorney in Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, U.S. Department of Justice; Yelena Slepak, Office of Assistant Chief Counsel, International Trade Litigation, U.S. Customs and Border Protection, Of Counsel, for Defendant United States. OPINION GOLDBERG, Senior Judge. In this case, Plaintiff Volkswagen of America, Inc., ("Volkswagen") seeks an allowance against import duties for the value of imported automobiles that were allegedly defective at the time of importation. The United States Customs Service[1] ("Customs") liquidated the entries without an allowance in the appraised value of the merchandise. Customs denied Volkswagen's protests, and Volkswagen commenced an action to challenge the protest denials in this Court. Both Customs and Volkswagen filed motions for summary judgment. The Court held that it lacked jurisdiction over vehicles that were repaired after the date of protest because Volkswagen "could not have had in mind defects to automobiles that had not been repaired before the protests were filed." Volkswagen of Am., Inc. v. United States, 27 CIT 1201, 1206, 277 F.Supp.2d 1364, 1369 (2003) ("Volkswagen I"). As for the remaining claims, the Court denied both motions because factual issues remained as to whether the defects existed at the time of importation and the amount of allowances tied to those defects. See id. at 1208, 277 F.Supp.2d at 1371. The Court specifically noted that "[w]hat remains for trial is development of the factual record to `independently confirm the validity' of the repair records, to establish that the defects did indeed exist at the time of importation." Id. (quoting Samsung Elecs. Am., Inc. v. United States, 23 CIT 2, 8, 35 F.Supp.2d 942, 947 (1999)), aff'd 195 F.3d 1367 (Fed.Cir.1999). After the Court's decision in Volkswagen I, this action was stayed pending the resolution of Saab Cars USA, Inc. v. United States, 434 F.3d 1359 (Fed.Cir.2006) ("Saab III"). The circumstances in Saab III are very similar to those presented in this action. The Federal Circuit held that Saab failed to prove by a preponderance of the evidence that its merchandise was defective at the time of importation. See id. at 1375. After Saab III was decided, the Court ordered Volkswagen to attempt to demonstrate how that case was distinguishable from the circumstances of Volkswagen's case.[2] Volkswagen has complied with this order, and has made clear that 1317 with the additional trial evidence it has submitted, its supporting brief constitutes its summation at trial. Pl.'s Br. 4. Accordingly, the decision rendered in this action will be submitted as a final judgment. I. JURISDICTION In its evidence submitted for trial, Volkswagen includes repairs completed after the vehicles' respective protest dates. Volkswagen claims that the Court has jurisdiction over these repairs, because as long as at least one repair was done prior to protest, the Court has jurisdiction over the "vehicle." Consequently, the Court would have jurisdiction over every subsequent repair performed on that vehicle, even if the repair was done after the date of protest. Customs disagrees, and argues that all claims relating to repairs that occurred after the date of protest should be dismissed for lack of jurisdiction. The Court has exclusive jurisdiction over "any civil action commenced to contest the denial of a protest, in whole or in part, under [19 U.S.C. § 1515]." 28 U.S.C. § 1581(a) (2000). The Court does not have jurisdiction over the action pursuant to § 1581(a) if the plaintiff has not filed a valid protest. See Computime, Inc. v. United States, 772 F.2d 874, 875 (Fed. Cir.1985). If certain vehicle repairs are not covered by a valid protest, the Court has no jurisdiction over those repairs. A valid protest must set forth distinctly and specifically each decision as to which a protest is made, and the nature of and reasons for each objection. See 19 U.S.C. § 1514(c)(1) (2000); 19 C.F.R. § 174.13(a)(6) (2006). The governing principles concerning what constitutes a valid protest were articulated by the Supreme Court in Davies v. Arthur: [T]he objections [in a protest] must be so distinct and specific, as, when fairly construed, to show that the objection taken at the trial was at the time in the mind of the importer, and that it was sufficient to notify the collector of its true nature and character, to the end that he might ascertain the precise facts, and have an opportunity to correct the mistake and cure the defect, if it was one which could be obviated. 96 U.S. 148, 151, 24 L.Ed. 758 (1878); accord VWP of Am., Inc. v. United States, Slip Op. 06-144, 2006 WL 2779988, 2006 Ct. Intl. Trade LEXIS 146, at 16 (CIT Sept. 26, 2006) ("The minimal requirement has long been whether the importer has sufficiently conveyed to Customs an impression of the injury it believes it suffered by Customs' decision or action."). In its evidence submitted for trial, Volkswagen has included thousands of repairs that occurred after the protest date. These alleged defects could not have been "in the mind of the importer" when the protest was made. Additionally, Customs would never have had the opportunity to "correct the mistake and cure the defect" if a valid protest could include thousands of repairs added post-protest. A protest should sufficiently define the outside parameters of the dispute so that they are brought to the attention of the Customs Service.[3]See 1318 Lykes Pasco, Inc. v. United States, 22 CIT 614, 615, 14 F.Supp.2d 748, 750 (1998). In this case, the parameters of the dispute would not be sufficiently defined by the protest if Volkswagen was permitted to continually add defects and repair evidence as they are discovered. Following these principles, the Court held in Volkswagen I that it did "not have jurisdiction over vehicles repaired after the individual protest dates of each of the eighteen entries." 27 CIT at 1206, 277 F.Supp.2d at 1369. The Court reasoned as follows: It is clear that [Volkswagen] had in mind at the time of protest defective automobiles that had already been repaired; however, [Volkswagen] could not have had in mind defects to automobiles that had not been repaired before the protests were filed. Therefore, the Court does not have jurisdiction over the automobiles that were repaired after the date [Volkswagen] filed its protests with Customs. See Mattel v. U.S., 72 Cust.Ct. 257, 260, 377 F.Supp. 955, 959 (1974) ("a protest . . . must show fairly that the objection afterwards made at the trial was in the mind of the party at the time the protest was made"). Id. (footnote omitted). To support its theory of jurisdiction, Volkswagen focuses on the Court's statement in Volkswagen I that "the Court does not have jurisdiction over the automobiles that were repaired after the date [Volkswagen] filed its protests. . . ." Id. (emphasis added). Volkswagen puts great emphasis on the fact that the Court used the word "automobiles" instead of "repairs" when making this statement. Additionally, the Federal Circuit in Saab III "affirm[ed] the decision of the CIT dismissing those claims relating to cars as to which no repair existed at the time of protest, because Saab provided no evidence that it was aware of those defects at that time." 434 F.3d at 1368 (emphasis added). Once again, because the focus of this language is on "cars," and not "repairs," Volkswagen believes that once the Court has jurisdiction relating to a vehicle, it has jurisdiction over repairs to that vehicle discovered after the protest date. Volkswagen is incorrect because its theory of jurisdiction is completely divorced from the requirements of a valid protest. Regardless of how the jurisdictional holdings were phrased in both Volkswagen I and Saab III, the principles set forth in Davies v. Arthur and 19 U.S.C. § 1514(c)(1) must be followed. Additionally, Volkswagen fails to note that in Saab I, the Court clearly stated that it "lacks jurisdiction over claims for vehicle repairs that occurred after the vehicles' respective protest dates." Saab Cars USA, Inc. v. United States, 27 CIT 979, 991, 276 F.Supp.2d 1322, 1333 (2003) ("Saab I") (emphasis added). This language clarifies that the Court did not intend to make a distinction between vehicles that had at least one repair before the protest date and vehicles that had no repairs. Instead, the Court found a relevant legal distinction between the defects Volkswagen knew about at the time of protest, and the defects that were unknown at that time. In light of the above, the Court does not have jurisdiction over defects discovered (as evidenced by repairs done) after the date of protest. The Court does have jurisdiction over Volkswagen's remaining claims pursuant to 28 U.S.C. § 1581(a). II. STANDARD OF REVIEW Customs' appraisement decisions are ordinarily entitled to a statutory presumption of correctness. See 28 U.S.C. 1319 2639(a)(1) (2000); Saab Cars USA, Inc. v. United States, 28 CIT ___, ___, 306 F.Supp.2d 1279, 1283 (2004) ("Saab II"), aff'd, Saab III, 434 F.3d at 1359. However, this presumption "carries no force as to questions of law." Universal Elecs. Inc. v. United States, 112 F.3d 488, 492 (Fed.Cir. 1997). "[A] question as to the legal sufficiency of the evidence is a question of law." Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir.2004). In the present case, the Court is asked to determine, in light of Saab II and Saab III, whether Volkswagen has put forth sufficient evidence to sustain its burden of proving by a preponderance of the evidence that certain defects existed in its merchandise at the time of importation. Because this is a question of law, the Court will review it de novo. III. DISCUSSION A. Volkswagen's Evidence Submitted for Trial Volkswagen's trial evidence consists of two exhibits.[4] Exhibit A includes eighteen documents; one for each of the eighteen subject entries. See Pl.'s Ex. A (Confidential); Pl.'s Br. 12. Each document contains a chart with eighteen columns of warranty repair details. The eighteen information categories Volkswagen has provided are: (1) vehicle model number, (2) vehicle identification number ("VIN"), (3) repair order number, (4) warranty claim type, (5) damage code, (6) deciphered damage code, (7) mileage, (8) in-service date, (9) repair date, (10) labor cost, (11) part cost, (12) other costs and credits, (13) total repair cost paid by plaintiff, (14) adjustments, (15) repair cost billable to factory, (16) qualifying warranty repair cost, (17) qualifying warranty overhead cost, (18) total qualifying warranty cost. See Pl.'s Ex. A (Confidential); Pl.'s Br. 12. Most of this information was already before the Court in Volkswagen I, with the exception of the vehicle model number, the deciphered damage code, mileage, and the in-service date. Volkswagen has also provided the Court with Exhibit B, which is entitled "Damage Code Key." See Pl.'s Ex. B (Confidential). This exhibit categorizes the different warranty claim types listed in Exhibit A. Volkswagen first lists what it considers to be "included claim types." These are warranty claim categories that, according to Volkswagen, necessarily encompass repairs of defects existing at the time of importation. For example, the list of "included claim types" includes emissions warranty repairs, recall repairs, paint claims and powertrain defect repairs.[5]See Pl.'s Br. 15-16. Volkswagen claims that all repairs performed under these claim-types reflect defects that existed at the time of importation. If a repair reflects damage that did not exist at importation, it would be categorized under one of the several "excluded claim types" listed in Exhibit B. Additionally, Exhibit B contains more detailed descriptions of the repairs listed in Exhibit A. In order to connect the more detailed descriptions in Exhibit B to the repairs in Exhibit A, the Court is required to look at [] listed in Exhibit A. That [] code is further deciphered in Exhibit B. This process is further discussed below. B. An Allowance for Damage Existing at the Time of Importation Pursuant to 19 C.F.R. 158.12 An importer may claim an allowance in value for merchandise that is partially damaged at the time of importation. 1320 See 19 C.F.R. § 158.12 (2006).[6] In order to successfully claim a § 158.12 allowance, an importer must "establish by a preponderance of the evidence which entries had defects at the time of importation."[7]Volkswagen I, 27 CIT at 1208, 277 F.Supp.2d 1364; accord Fabil Mfg. Co. v. United States, 237 F.3d 1335, 1339 (Fed. Cir.2001). In Volkswagen I, this Court was satisfied that Volkswagen could, in part, link defective merchandise to specific entries. See 27 CIT at 1208, 277 F.Supp.2d at 1371. While Volkswagen was able to connect evidence of repairs to specific vehicles, and in turn connect those vehicles to specific entries, it still needed to develop the factual record to "independently confirm the validity" of the repair records. Id. This independent confirmation is necessary to "establish that the defects did indeed exist at the time of importation." Id. C. Independent Confirmation of the Validity of the Repair Records The Court discussed the "independent confirmation" requirement in detail in Samsung, 23 CIT at 7-9, 35 F.Supp.2d at 947-48. In that case, Samsung presented consumer warranties as evidence that the subject merchandise was damaged at importation. See id. at 7, 35 F.Supp.2d at 947. Samsung's warranty only covered repairs for defective merchandise, and not merchandise damaged through misuse or mishandling. See id. at 8, 35 F.Supp.2d at 947. In addition, an executive from Samsung stated via affidavit that under the warranty, only merchandise with latent defects was repaired or replaced. See id. The Court found this evidence insufficient. The Court stated that "[a]lthough the Court has no reason to doubt the veracity of Samsung's assertions, without additional, independent evidence to corroborate the assertions, the Court cannot verify that the merchandise was actually defective at the time of importation, as opposed to damaged later through misuse or mishandling." Id. The Court went on to describe how a claimant could prevail on a § 158.12 claim: [T]o make a section 158.12 claim, a claimant should provide specific descriptions of the damage or defect alleged and, in some manner, relate that defective merchandise to a particular entry. Such descriptions are necessary because both the Court and Customs must independently confirm the validity of an allowance claim. And, descriptions or samples provide a reasonably objective basis upon which to assess such a claim. For example, descriptions can be reviewed by the Court and by independent experts to confirm that the alleged damage existed at the time of importation, or that the damage is recognizable as a true manufacturing defect. Id. at 8, 35 F.Supp.2d at 947-48.[8] 1321 In Saab II, the importer Saab attempted to meet this evidentiary standard by providing the Court with short descriptions of each vehicle part or component that was allegedly defective. 28 CIT at ___, 306 F.Supp.2d at 1283. The Court again found these insufficient because they were "not detailed enough for anyone to ascertain whether the alleged defects existed at the time of importation." Id. at ___, 306 F.Supp.2d at 1285. The Federal Circuit affirmed, and elaborated on the requirement that the evidence needed to prove defects existed at the time of importation be independently verifiable.[9]See Saab III, 434 F.3d at 1374-75. In light of these precedents, Volkswagen's brief descriptions for each repair are insufficient to permit an objective fact-finder to conclude by a preponderance of the evidence that the claimed defects existed at the time of importation. First, Volkswagen argues that repairs covered by certain warranties, classified by "claim-types," are evidence of defects existing at the time of importation.[10] It has therefore listed all repairs made pursuant to certain "included claim-types" in Exhibit A. Even if these warranties make it clear that Volkswagen would be reimbursed by the manufacturer only for actual manufacturing or design defects in the imported automobiles, still "it is not clear that all warranty repairs necessarily indicate damage that existed at the time of importation as required for an allowance under § 158.12." Id. at 1374; accord Samsung, 23 CIT at 8, 35 F.Supp.2d at 947 (holding that evidence of warranty that only covers repairs for defective merchandise is insufficient to prove § 158.12 claim without "additional, independent evidence to corroborate"). In other words, evidence of warranty claims alone is not sufficient without corroboration, even if the warranty 1322 only covers repairs for design and manufacturing defects.[11] Second, Volkswagen discusses the descriptions it has provided of each repair. The short descriptions in Exhibit A provide slightly more detail than Saab's brief descriptions of repaired parts; however, as Volkswagen recognizes, they are still insufficient to make a § 158.12 claim. See Pl.'s Br. 20. For example, VIN [][12] corresponds to the following description: "steering lock/cylinder; stiff (sticks, jams); replaced." This short statement does not give the Court or Customs enough objective, independent and recognizable information to determine wither the alleged defect existed at the time of importation. Volkswagen goes on to explain that the Court can further decipher the vehicle's damage code by looking at Exhibit B, the Damage Code Key, to find more information about the nature of the repair. According to Volkswagen, the Damage Code Key contains descriptions of "each defect in each part with detail sufficient to prove that it existed at importation." Id. 14. For VIN [], the relevant portion of the damage code is H. When these [] are cross-referenced with the Damage Code Key, the Court finds the following statement: "Binding All moving parts which stick, jam, are too tight, seized, locked, difficult to shift, rubbing, insufficient play, do not engage or disengage properly. Examples: Seized or scored pistons, door hinges." Ex. B 46. This language explains that this particular part was damaged at the time it was repaired, but it certainly does nothing to demonstrate, with independent and verifiable evidence, that a defect existed at the time of importation. Even the descriptions that use the word "defect," or similar words, are not adequate. VIN [][13] is described as "oe power antenna; electrical defects; replaced." In the Damage Code Key, this repair is further described as "Electrical malfunction Malfunctions in the electrical or electronic system (where mechanical defects, corrosion or noise cannot be determined), such as an open or shorted electrical circuit or no current flow . . . Examples: Alternator not charging, incorrect indication, flasher inoperative[.]" This description explains that there was an electrical malfunction, but it does nothing to verify that the malfunction was caused by a defect that existed at importation. Volkswagen is asking the Court and Customs to assume that any repair listed in Exhibit A must be the result of a latent defect, but the evidence does not compel this conclusion. Volkswagen does label the repair as a "defect," but this description is merely conclusory. It does not allow an independent fact-finder to conclude that this repair was necessary to remedy a defect that more likely than not existed at the time of impartation. D. The Distinction between Port Repairs and Warranty Repairs In Saab II, the Court made a distinction between port repairs and warranty repairs. 1323 A "port repair" was performed "almost immediately after importation," so the Court was less concerned "that the repairs might have been made to remedy damage resulting from intervening circumstances." Saab IL 28 CIT at ___, 306 F.Supp.2d at 1287. Regarding port repairs, Saab met its burden of proof with its short, simple descriptions of the repaired part. On the other hand, a "warranty repair" is performed at some time after importation. When a repair is not performed at the time of importation, the claimant must provide more specific evidence as described above. See Saab III, 434 F.3d at 1374 (holding that in the absence of evidence of temporal proximity, claimant must provide more than warranty agreements and more specific descriptions). In the present case, Volkswagen contends that all repairs made before the "in-service date" should be considered "port repairs." The Court will not adopt this sweeping generalization. The Court will not assume that any vehicle repaired before its "in-service date" was unlikely to be damaged due to intervening circumstances. If Volkswagen wished to alleviate the Court's concerns about intervening misuse or mishandling, Volkswagen should have (1) clearly identified the vehicle repairs that it likened to the "port repairs" in Saab II, and (2) demonstrated that the repairs were completed "immediately" after importation. It did not do this. All the repairs are lumped together in Exhibit A, and the import dates are not listed at all.[14] IV. CONCLUSION Volkswagen used a categorical approach to attempt to prove that over 300,000 defects existed at the time of importation of certain entries. According to Volkswagen, it has provided Customs and the Court with a straightforward compilation of Volkswagen's defect claims. For any particular repair, if more description is needed, the Court and Customs need only turn to the Damage Code Key in Exhibit B (Confidential). However, this shortcut method is not sufficient to meet the burden set forth in Saab III. As discussed above, it requires the Court and Customs to make too many unfounded assumptions about whether any damage actually existed at the time of importation. Section 158.12 does permit an allowance for any defect that existed at the time of importation, even when the damage is discovered later. See Saab III, 434 F.3d at 1371. However, claimants must keep in mind that "[o]nce Customs has liquidated merchandise, it can be damaged through a number of causes, including misuse or mishandling. This makes it difficult, or in some cases impossible, to identify the root cause of the damage or defect." Samsung, 23 CIT at 8, 35 F.Supp.2d at 947. Volkswagen has failed to overcome this difficult task with the evidence it has submitted for trial in this case.[15] For the foregoing reasons, judgment will be entered in favor of the defendant. JUDGMENT Upon consideration of Plaintiff Volkswagen of America, Inc.'s Brief Demonstrating 1324 that its Additional Evidence Submitted For Trial Herewith Is Sufficient to Prove An Allowance for Defects, Defendant United States' Memorandum in Opposition to Plaintiffs Brief, Plaintiffs Reply Brief, and all accompanying papers, and upon due deliberation, it is hereby: ORDERED, ADJUDGED AND DECREED that the Court lacks subject matter jurisdiction over repairs performed after the date of Volkswagen's protests; and it is further ORDERED, ADJUDGED AND DECREED that, as to the remaining repairs, judgment is entered for Defendant. IT IS SO ORDERED. NOTES [1] The United States Customs Service has since become the Bureau of Customs and Border Protection per the Homeland Security Act of 2002, § 1502, Pub.L. No. 107-296, 116 Stat. 2135, 2308-09 (Nov. 25, 2002), and the Reorganization Plan Modification for the Department of Homeland Security, H.R. Doc. 108-32, p. 4 (Feb. 4, 2003). [2] The order stated the following in relevant part: [I]t is hereby ORDERED that Plaintiff Volkswagen of America, Inc. ("Plaintiff"), shall . . . file a brief addressing why it believes the evidence in this case, and in particular the evidence produced after this Court's denial of Plaintiff's summary judgment motion August 13, 2003, establishes that the alleged defects existed at the time of importation; and it is further ORDERED that such brief endeavor to distinguish the circumstances of this case from the circumstances in Saab Cars USA, Inc. v. United States, 434 F.3d 1359 (Fed.Cir.2006), where the U.S. Court of Appeals for the Federal Circuit held that that plaintiff's reliance on probabilistic warranty tracking evidence, though "generally reliable," was not sufficient to sustain a plaintiff's burden of proving by a preponderance of the evidence that the particular defects in that case as to which allowances were claimed under 19 C.F.R. § 158.12 existed at the time of importation. . . . Sched. Order 1, May 8, 2006. [3] This is not to say that all omissions, including minor and inadvertent ones, could divest the Court of jurisdiction. As long as the original protest gave sufficient notice to Customs of the actual claim, then jurisdiction will lie. See VWP, Slip Op. 06-144, 2006 WL 2779988, 2006 Ct. Intl. Trade LEXIS 146, at 16-17. (stating that an inadvertent error in entry number contained in original protest is not a jurisdictional bar if Customs was apprised of the proper entry number). [4] For a discussion of evidence already before the Court in Volkswagen I, see 27 CIT at 1206-08, 277 F.Supp.2d at 1370-71. [5] The complete list of "included claim types" is as follows: H. See Pl.'s Ex. B (Confidential); Pl.'s Br. 16-17 (Confidential). [6] Section 158.12 states the following: Merchandise partially damaged at time of importation. (a) Allowance in value. Merchandise which is subject to ad valorem or compound duties and found by the port director to be partially damaged at the time of importation shall be appraised in its condition as imported, with an allowance made in the value to the extent of the damage. 19 U.S.C. § 158.12. [7] There are actually three requirements for an importer to successfully claim an allowance under 19 C.F.R. § 158.12:(1) the importer must show that it contracted for defect-free merchandise, (2) the importer must link the defective merchandise to specific entries, and (3) the importer must prove the amount of the allowance value for each entry. See Volkswagen I, 27 CIT at 1207, 277 F.Supp.2d at 1370; Samsung, 23 CIT at 4-6, 35 F.Supp.2d at 945-46. Volkswagen has already successfully established that it contracted for "defectfree" merchandise. See Volkswagen I, 27 CIT at 1207, 277 F.Supp.2d at 1370. [8] The Court in Samsung applied a "clear and convincing" evidentiary standard to § 158.12 claims, 23 CIT at 6, 35 F.Supp.2d at 946, which is obviously a stricter standard than is currently applied in these cases. See Fabil Mfg. Co., 237 F.3d at 1339 (holding that the elements of § 158.12 must be proven by a preponderance of the evidence). However, the language in the Samsung cases regarding sufficiency of evidence for § 158.12 claims has been adopted in later cases applying the preponderance of the evidence standard. The requirement of independent verification must be met in order to meet the preponderance of the evidence standard. [9] The Saab III court stated the following: We conclude that although some repairs authorized under the various warranties may relate to damage that existed at the time of importation, they do not necessarily so relate. Saab's rigorous system for tracking and auditing warranty repair claims does not alter this result. That system, which involves specialized databases that allow Saab to track all vehicle repairs by VIN and uses three levels of audits to ensure that dealers are making only appropriate warranty claims, certainly increases one's confidence that Saab's warranty claims in the aggregate are generally reliable. Operating as it does, however, by auditing a limited number of claims from a limited number of dealers, it provides somewhat less assurance that any particular warranty claim is valid. We acknowledge, of course, the probative value of the kind of statistical assurance that the auditing system provides, but conclude that our cases' emphasis on the need for specificity in allowance claims requires more than this kind of probabilistic evidence. Saab III, 434 F.3d at 1374-75. [10] Volkswagen also argues that every repair that was made pursuant to a recall is, by definition, a repair of a design defect that constitutes damage that existed at the time of importation pursuant to § 158.12. See Pl.'s Br. 30. However, recall repairs are not "by definition" repairs of damage that existed at importation, because when the vehicle was ordered and imported, it may have been manufactured exactly to the construction specifications requested by Volkswagen. If this is the case, the vehicle was not damaged at the time of importation. Thus, the Court cannot conclude simply from the evidence before it that repairs done pursuant to a recall constitute evidence of damage that existed at the time of importation. [11] Volkswagen argues that when evidence of a warranty is presented, it should be assumed that any repair of that vehicle within the warranty time period represents a defect that existed at the time of importation in the absence of intervening events. See Pl.'s Br. 22. This incorrectly shifts the burden to Customs to prove the existence of intervening events. The burden is undoubtedly on Volkswagen to prove the elements of its claim. [12] This VIN No. is found in the file in Exhibit A (Confidential) for Entry No. 110-1030393-9. [13] This VIN No. is found in the file in Exhibit A (Confidential) for Entry No. 110-1030393-9. [14] In its Reply Brief, Volkswagen attached a list of the import dates for each entry. This last-minute addition does not help Volkswagen to sufficiently identify, in a manner that is readable by the Court, which repairs that it considered "port repairs" because they were completed immediately after importation. Therefore, Volkswagen has failed to meet its burden of proof. [15] Because Volkswagen has failed to prove that the damage at issue existed at the time of importation, the Court need not address the question of proving the value of that damage.	{ "pile_set_name": "FreeLaw" }
258 S.W.2d 436 (1953) SMITH et al. v. TRADERS & GENERAL INS. CO. No. 3018. Court of Civil Appeals of Texas, Eastland. May 15, 1953. Rehearing Denied June 5, 1953. Carter, Gallagher, Roberts & Jones, Dallas, for appellants. Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellee. LONG, Justice. Mrs. Vernice Smith, the widow of Emmett Thorne Smith, individually and as next friend for David Thorne Smith, the minor son of deceased, Emmett Thorne Smith, brought this suit against Traders & General Insurance Company for death benefits under the Workmen's Compensation Act. A jury was waived and judgment was rendered in favor of the insurance company. Plaintiffs have appealed. The case was tried solely upon an agreed stipulation of facts which stipulations, in part, are as follows: "That prior to the 6th day of July, 1951, N. H. Williams, one of the owners of the Winkler County News, had purchased all of the equipment of a small newspaper owned by Harley Hightower of Dallas, Texas, the printing equipment being located in Dallas, Texas. That N. H. Williams was desirous of coming to Dallas, Texas, for the purpose of inspecting such printing equipment purchased to determine what part of the equipment he could use in his own newspaper plant and to determine what part of such equipment was to be sold to others. In this connection it was his desire to have his employee, Emmett Thorne Smith, accompany him on the trip inasmuch as Emmett Thorne Smith was his composing room superintendent and would be of material assistance in determining what part of the equipment could be used and what part could be sold. "That on July 6, 1951, N. H. Williams instructed Emmett Thorne Smith to accompany him to Dallas for 437 the purpose of inspecting such equipment, and that they left their homes and place of business on the morning of July 6th and drove to Dallas in N. H. Williams' automobile. That N. H. Williams had agreed to pay and was to pay all expenses incurred by Emmett Thorne Smith in such trip to Dallas, Texas. That N. H. Williams and Emmett Thorne Smith arrived in Dallas at approximately 7:00 P.M. on July 6, 1951, and registered at the Jefferson Hotel in Dallas, Texas, and were assigned to Room 717 on the seventh floor of said hotel. That after arrival in Dallas, N. H. Williams and Emmett Thorne Smith contacted Harley Hightower and made arrangements to meet him at 8:00 A.M. on July 7, 1951, for the purpose of looking over the purchased equipment. That N. H. Williams and Emmett Thorne Smith also scheduled a truck to be at the printing shop formerly owned by Harley Hightower at 12:00 noon on July 7th for the purpose of transporting the usable equipment back to Kermit for the Winkler County News. "Following these arrangements, N. H. Williams asked Emmett Thorne Smith whether or not he would desire to take a drink of liquor, and Emmett Thorne Smith, the employee, readily agreed to such suggestion; whereupon, N. H. Williams produced a fifth of bourbon whiskey from his suitcase. Following this and for a period of approximately one hour, N. H. Williams and Emmett Thorne Smith drank from the bottle of liquor so produced by N. H. Williams, and during such time the two men drank approximately two-thirds of said bottle. That while said employer and employee were engaged in consuming the aforementioned whiskey, they began telephoning friends of theirs in the printing trade in the city of Dallas for the purpose of seeking companions for the evening, and finally did contact and prevail upon one Cecil O. Hill to join them in their hotel room. Hill arrived at the hotel room at approximately 8:00 P.M. on July 6th. "That prior to operating the Winkler County News, N. H. Williams had formerly worked for the A. H. Belo Corporation, publishers of the Dallas Morning News in Dallas, Texas. Cecil O. Hill had been a co-employee of N. H. Williams for some years prior to the occasion in question but had never met Emmett Thorne Smith previously. That shortly after 8:00 P.M. after having several more drinks, N. H. Williams and Emmett Thorne Smith accompanied Cecil O. Hill to the plant of the Dallas Morning News and inspected same, said newspaper plant being a recent construction and containing therein the latest of all newspaper equipment. "Following the inspection of the plant of the A. H. Belo Corporation, the three men returned to the Jefferson Hotel and went to Room 717. Upon arriving at Room 717, the three men consumed the remainder of the original fifth of whiskey. Thereupon, N. H. Williams, employer, wanted more whiskey for the occasion and gave Cecil O. Hill some money, the exact amount being unknown, and asked him to procure additional liquor. Cecil O. Hill gave the money to Emmett Thorne Smith, and Smith departed from the room and returned in approximately fifteen minutes with two additional fifths of whiskey. The three men then drank one of said fifths of whiskey and a portion of the other. "At this time of the evening, it then being approximately 10:00 P.M., the three men went to a tavern near the Jefferson Hotel in Dallas, Texas, known as the Water Front Cafe, and consumed several rounds of beer. "Following this, the above mentioned three men left the Water Front Cafe and went to a place of business known as Squeege's Bar and there consumed more beer. By this time of 438 the evening the men were beginning to feel the effects of alcohol, and the three men engaged in some argument with the personnel of the bar, and a slight altercation took place, at which time they were asked to leave Squeege's Bar by reason of their boisterous conduct. "The men then returned to Room 717 on the seventh floor at the Jefferson Hotel, and three of them there commenced drinking more whiskey. N. H. Williams became intoxicated and it is thought that he completely passed out and while in an unconscious state lay on the floor of the hotel room. This occurred at approximately midnight or shortly thereafter. Emmett Thorne Smith became intoxicated but was able to stand on his feet and, so far as is known, did not pass out. "Either before N. H. Williams passed out or after he passed out, some nature of altercation took place either between Cecil O. Hill and Emmett Thorne Smith or among Cecil O. Hill, Emmett Thorne Smith and N. H. Williams, the exact nature of which is unknown and unascertainable, but in any event, as a result of said altercation, Cecil O. Hill was struck in the mouth, the blow breaking a dental plate and knocking loose some of his teeth. As a result of such blow Cecil O. Hill went to the bathroom of the hotel room in question for the purpose of washing his face, spitting out his broken teeth and attending his cuts and bruises. While Cecil O. Hill was in the bathroom so engaged, N. H. Williams was in an unconscious state on the floor of the hotel room. "While N. H. Williams was passed out on the floor and while Cecil O. Hill was in the bathroom, Emmett Thorne Smith in some manner fell from the window of the hotel room, and, as a result thereof, met his immediate death. Said death occurred at approximately 1:00 A.M. on July 7, 1951, and resulted from an injury received while the said Emmett Thorne Smith was in a state of intoxication." The insurance company pleaded that the death of Emmett Thorne Smith resulted from an injury received while he was in a state of intoxication and that on the occasion in question, Smith was not in the course of his employment. By a supplemental petition, plaintiff alleged that the defense of intoxication was not applicable because the employer originated and participated in the drinking activities of the deceased and that by reason thereof, defendant was estopped from setting up the defense of intoxication. Article 8309, section 1, Vernon's Annotated Civil Statutes provides that: "The term `injury sustained in the course of employment,' as used in this law, shall not include: * * * * * * "3. An injury received while in a state of intoxication." It was agreed on the trial that the injury was received by Smith while he was in a state of intoxication. We believe this fact was a complete defense to plaintiff's cause of action. Traders & General Insurance Company v. Williams, Tex.Civ.App., 66 S.W.2d 780. The fact that the employer of Smith may have originated and participated in the drinking of intoxicants with Smith has no bearing on the situation. Section (3) of Article 8309, section 1, is plain and unambiguous. It clearly declares that an injury received while in the state of intoxication is not an injury sustained in the course of employment. We believe that the holding of this court in an opinion by the then Chief Justice Hickman, who is now Chief Justice of our Supreme Court, in the case of Texas Indemnity Ins. Co. v. Dill, Tex.Civ.App., 42 S.W.2d 1059, and affirmed by the Commission of Appeals in 63 S.W.2d 1016, is decisive of this question. The trial court was correct in holding that plaintiffs could not recover and in rendering judgment for defendant. The judgment of the trial court is affirmed.	{ "pile_set_name": "FreeLaw" }
NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ REPROS THERAPEUTICS INC., Plaintiff-Appellee v. HARRY FISCH, Defendant-Appellant JOSEPH S. PODOLSKI, RONALD WIEHLE, Defendants ______________________ 2015-1328 ______________________ Appeal from the United States District Court for the Southern District of Texas in No. 4:13-cv-02266, Judge Vanessa D. Gilmore. ______________________ JUDGMENT ______________________ ALLYSON NEWTON HO, Morgan, Lewis & Brockius LLP, Dallas, TX, argued for plaintiff-appellee. Also repre- sented by DAVID W. CLOUGH, JOHN W. CAMPBELL, CHRISTOPHER MICHAEL CABRAL, Chicago, IL; WINSTOL D. CARTER, JR., CRAIG A. STANFIELD, RYAN B. MCBETH, NICHOLAUS E. FLOYD, Houston, TX. MICHAEL ANTHONY NICODEMA, Greenberg Traurig LLP, Florham Park, NJ, argued for defendant-appellant. Also represented by BARRY SCHINDLER, JULIE PAMELA BOOKBINDER, New York, NY; ELLIOT H. SCHERKER, JOSE PENA, STEPHANIE L. VARELA, Miami, FL; MICHAEL J. SCHAENGOLD, Washington, DC. ______________________ THIS CAUSE having been heard and considered, it is ORDERED and ADJUDGED: PER CURIAM (MOORE, BRYSON, and WALLACH, Circuit Judges). AFFIRMED. See Fed. Cir. R. 36. ENTERED BY ORDER OF THE COURT January 7, 2016 /s/ Daniel E. O’Toole Date Daniel E. O’Toole Clerk of Court	{ "pile_set_name": "FreeLaw" }
863 F.2d 46 U.S.v.USA Caro NO. 88-1009 United States Court of Appeals,Second Circuit. OCT 20, 1988 1 Appeal From: E.D.N.Y. 2 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
477 F.2d 451 155 U.S.App.D.C. 282 U. S.v.Riddick 72-1346 UNITED STATES COURT OF APPEALS District of Columbia Circuit 4/27/73 1 D.C.D.C. AFFIRMED	{ "pile_set_name": "FreeLaw" }
207 So.2d 422 (1968) Albert Lee RICKARD v. STATE. 3 Div. 278. Court of Appeals of Alabama. February 6, 1968. 423 Albert Lee Rickard, pro se. MacDonald Gallion, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State. CATES, Judge. Appeal from denial of coram nobis. In the circuit court the State's motion to dismiss was granted under Supreme Court Rule 50 which provides in part: " * * and the sentencing court shall not be required to entertain a second or successive petition for similar relief on behalf of the same prisoner. A successive petition on different grounds will not be entertained unless good cause is shown why the new ground or grounds were not known or could not have been reasonably ascertained when the first petition was heard." Originally Rickard claims he was indicted for robbery and seemingly he pled guilty to assault with intent to rob. I. Nowhere in the instant petition does Rickard explain why he failed to set forth the now averred grounds in his former applications for the writ. The State's motion was well taken. See the last sentence of Rule 50 above. II. By way of dictum, we think that part of Rickard's allegations as to lack of a jury could be disposed of by the following from Lott, 43 Ala.App. 256, 188 So.2d 285: "That appellant's punishment was fixed by the court instead of by a jury (Code 1940, T. 14, Sec. 415), is a procedural error which cannot be raised in a coram nobis proceeding. Thomas v. State, 40 Ala.App. 697, 122 So.2d 535; Isbell v. State, 42 Ala.App. 498, 169 So.2d 27." Moreover, it might be inferred that Richard pled guilty to the lessor offense of assault with intent to rob. If so, the judge alone can set punishment on a plea of guilty. See Ex parte Richardson, 42 Ala.App. 626, 174 So.2d 693, T. 14, § 38, and T. 15, § 328. In Robertson, 24 Ala.App. 237, 133 So. 742, we find: "Under an indictment for robbery, there may be a conviction for assault with intent to rob, for larceny, for attempt to rob, for assault, or for an assault and battery. Rambo v. State, 134 Ala. 71, 32 So. 650; Morris v. State, 97 Ala. 82, 12 So. 276; Carnathan v. State, 18 Ala.App. 452, 93 So. 50; Thomas v. State, 91 Ala. 34, 9 So. 81; Code 1928, § 8697, and many other authorities that might be cited." When an indicted person pleads guilty[1] to an offense wherein a statute 424 does not require a jury to fix the punishment, then the plea alone stands as both evidence and verdict. Woodard, 42 Ala. App. 552, 171 So. 462; Busby v. Holman, 356 F.2d 75. See also Merrill, J., in Knowles, 280 Ala. 406, 194 So.2d 562. Implicitly a voluntary plea of guilty in open court on advice of counsel dispenses with the need for a judicial fact-finding. The accused does not waive a jury: rather he pleads himself past its function. He submits himself for allocutus and punishment. Arrington, 35 Ala.App. 205, 45 So.2d 9. Williams v. State of Oklahoma, 358 U.S. 576, at 585, 79 S.Ct. 421, 3 L.Ed.2d 516. No due process question arises. Maxwell v. Dow, 176 U.S. 581. III. In conclusion, we note that, on his original trial, Rickard himself by the plea of guilty transcended the need for a jury. Also, in his coram nobis application of instant concern he omitted to aver that he had a valid defense to the indictment. In Argo, 43 Ala.App. 564, 195 So.2d 901, we listed the authorities in this respect: "Under the Alabama concept of the remedy afforded by the writ of error coram nobis, the prisoner must plead and prove that he had a valid defense to the original charge of which he stands convicted. Ex parte Taylor, 249 Ala. 667, 32 So.2d 659; Ex parte Fewell, 261 Ala. 246, 73 So.2d 558; Ex parte Argo, 41 Ala. App. 442, 137 So.2d 775; Ex parte Anderson, 41 Ala.App. 620, 147 So.2d 862; Woodard v. State, 42 Ala.App. 552, 171 So.2d 462 (hn. 5-8); Ex parte Davis, 43 Ala.App. 188, 185 So.2d 417; Freeland v. State, 43 Ala.App. 406, 191 So.2d 245 (hn. 7). See also Wiman v. Argo, 5 Cir. 308 F.2d 674, and Ard v. State, 42 Ala.App. 505, 169 So.2d 327." Though a rule often is tested by its exceptions, here Rickard has claimed no self executing constitutional right even within the scope asserted by the petitioner in Duncan v. State of Louisiana, 388 U.S. 809, 88 S.Ct. 98, 19 L.Ed.2d 63 (No. 410, U.S.S.Ct. 1967-68 Term, to review 250 La. 253, 195 So.2d 142). The exceptions recognized by this court in Barnes v. State, 42 Ala.App. 504, 169 So.2d 313; Brown v. State, 42 Ala.App. 690, 170 So.2d 504 (explained 277 Ala. 353, 170 So.2d 504), and Couch v. State, 43 Ala.App. 707, 198 So.2d 308, partake of the exceptions discussed in 23 Am.Jur., Fraud and Deceit, § 48. Rickard's pleading in this case fails to establish any pertinent reason to forego the valid defense requirement. The judgment below is due to be Affirmed. NOTES [1] "An accused's plea of guilty may be accepted only if it is made voluntarily and knowingly. If it appears that a guilty plea is the product of coercion, either mental or physical, or was unfairly obtained or given through ignorance, fear or inadvertence, it is void since it is a violation of constitutional safeguards. * *" Howard v. State, 280 Ala. 430, 194 So.2d 834.	{ "pile_set_name": "FreeLaw" }
Opinion filed June 17, 2010 In The Eleventh Court of Appeals __________ Nos. 11-10-00094-CR, 11-10-00096-CR, 11-10-00097-CR, & 11-10-00098-CR __________ BOBBY BLANTON, Appellant V. STATE OF TEXAS, Appellee On Appeal from the 7th District Court Smith County, Texas Trial Court Cause Nos. 007-1463-09, 007-1465-09, 007-1466-09, & 007-1467-09 MEMORANDUM OPINION The trial court convicted Bobby Blanton, upon his pleas of guilty, of three offenses of aggravated sexual assault of a child1 and one offense of indecency with a child.2 Plea bargain agreements were not reached. The trial court assessed punishment at confinement for life for each of the aggravated sexual assaults and at confinement for twenty years for the indecency offense. We dismiss each appeal. 1 11-10-00094-CR, 11-10-00096-CR, and 11-10-00097-CR. 2 11-10-00098-CR. In each appeal, appellant=s court-appointed counsel has filed a motion to withdraw. Each motion is supported by a brief in which counsel professionally and conscientiously examines the records and applicable law and states that he has concluded that the appeal is frivolous. Counsel has provided appellant with copies of the briefs and advised appellant of his right to review the records and file responses. No responses have been filed. Court-appointed counsel has complied with the requirements of Anders v. California, 386 U.S. 738 (1967); In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); and Eaden v. State, 161 S.W.3d 173 (Tex. App.CEastland 2005, no pet.). Following the procedures outlined in Anders, we have independently reviewed the records, and we agree that the appeals are without merit. We note that counsel has the responsibility to advise appellant that he may file petitions for discretionary review by the Texas Court of Criminal Appeals. Ex parte Owens, 206 S.W.3d 670 (Tex. Crim. App. 2006). Likewise, this court advises appellant that he may file petitions for discretionary review pursuant to TEX. R. APP. P. 66. Black v. State, 217 S.W.3d 687 (Tex. App.CEastland 2007, no pet.). The motions to withdraw are granted, and the appeals are dismissed. PER CURIAM June 17, 2010 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J., McCall, J., and Strange, J. 2	{ "pile_set_name": "FreeLaw" }
In the United States Court of Appeals For the Seventh Circuit No. 00-1110 United Airlines, Inc., Plaintiff, Counterdefendant-Appellee, v. Mesa Airlines, Inc., and WestAir Commuter Airlines, Inc., Defendants, Counterplaintiffs-Appellants, v. SkyWest Airlines, Inc., Third-Party Defendant-Appellee. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 4455--Elaine E. Bucklo, Judge. Argued May 10, 2000--Decided July 5, 2000 Before Easterbrook, Ripple, and Rovner, Circuit Judges. Easterbrook, Circuit Judge. Like other major air carriers, United has entered into code-sharing agreements with regional airlines, which fly smaller planes for shorter distances to less- populated destinations. The major carrier permits the commuter carrier to use its service marks and logos for flights to and from its hub airports, and it lists the connecting flights in its computer reservation system under its name, carrier code, and flight numbers, such as "UA 2345" (hence the term "code-share," see 14 C.F.R. sec.257(c)). The commuter carrier also receives part of the revenue from through traffic that uses both carriers’ facilities. In exchange, the commuter carrier is subject to substantial direction: it tailors its schedules so that they mesh with the major carrier’s arrivals and departures at the hub, provides planes appropriate to the traffic generated by the major carrier, and agrees to accept revenue that the major carrier controls. (Contracts set the percentage of through rates that the commuter carrier receives, but the major carrier sets the total fares, and thus determines the commuter carriers’ revenues.) Major carriers could use their discretion to make commuter carriers’ operations unprofitable, but that would hurt the majors’ business by drying up local service and driving passengers to other carriers that provide better connecting flights. Market forces thus constrain the exercise of contractual powers. Mesa Airlines and WestAir Commuter Airlines, two regional airlines that had code-share arrangements with United, believe that courts as well as markets should constrain the major carriers’ conduct. Mesa conducted regional operations to and from Denver, and WestAir to and from Los Angeles, San Francisco, Portland, and Seattle. Mesa acquired WestAir as a subsidiary in 1992. In 1995 United extended Mesa’s contractual term for ten years and to additional cities; at the same time, Mesa purchased a number of planes from United. Mesa believes that by paying (in its view, overpaying) for these aircraft it acquired rights beyond those of other commuter carriers; it contends that United became its "partner" rather than simply the opposite party to an arms’-length contract. Relations soured in June 1997 when United replaced WestAir with SkyWest Airlines on eight routes out of Los Angeles. After WestAir protested, United filed this suit under the diversity jurisdiction seeking a declaratory judgment that the WestAir-United contract permitted United to make these changes. WestAir abandoned its remaining commuter routes in May 1998. Meanwhile Mesa and United reached impasse on financial arrangements at Denver. Mesa contended that United was keeping for itself too much of the revenues on through routes and charging excessively for space and baggage- handling services at Denver International Airport, which opened early in 1995. Mesa contends that it began to incur losses of $1 million per month, to which it responded by eliminating service to some local markets. United insisted that Mesa serve all regional markets to which it had exclusive rights under the extended agreement; after Mesa refused, United terminated the agreement in January 1998 and amended its suit by seeking a declaratory judgment that this step, too, was proper, and damages for Mesa’s breach. Mesa and WestAir filed counterclaims against United and added SkyWest as a third-party defendant. They seek damages on four theories. First, Mesa and WestAir contend that United broke its contracts; these claims are mirror images of United’s. Second, Mesa and WestAir contend that SkyWest is liable for tortiously interfering with the contract between United and WestAir at Los Angeles. They contend that SkyWest inveigled United to switch regional carriers by offering two gates at Los Angeles International Airport-- gates that United coveted, an offer that WestAir could not match. Third, Mesa and WestAir allege that United violated the fiduciary duties that it owed them as their partner. Fourth, Mesa contends that United fraudulently induced it to purchase the airplanes and enter into the extension. Claims 2, 3, and 4 seek punitive as well as compensatory damages. United and SkyWest prevailed on the pleadings after the district court concluded that these three claims are preempted by sec.105(a)(1) of the Airline Deregulation Act of 1978. As recodified in 1994, this statute reads: Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart. 49 U.S.C. sec.41713(b)(1). State common law counts as an "other provision having the force and effect of law" for purposes of this statute. See American Airlines, Inc. v. Wolens, 513 U.S. 219, 233 n.8 (1995); Morales v. Trans World Airlines, Inc., 504 U.S. 374, 388 (1992). See also Medtronic, Inc. v. Lohr, 518 U.S. 470, 502- 03 (1996) (plurality opinion), id. at 503-05 (Breyer, J., concurring), id., at 509-12 (O’Connor, J., concurring in part and dissenting in part) (characterizing tort remedies as regulatory provisions for purposes of preemption clauses in another statute). A broad clause saving common-law remedies might overcome the understanding that judgments in tort suits should be treated like state laws and regulations to the extent they have the same practical effect as laws and regulations, see Geier v. American Honda Motor Co., 120 S. Ct. 1913, 1918 (2000); cf. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 249- 56 (1984); but the savings clause in the Airline Deregulation Act says only that "[a] remedy under this part is in addition to any other remedies provided by law." 49 U.S.C. sec.40120(c). This does not carve any domain from the scope of sec.105(a)(1). The district court concluded that all three tort claims relate to an air carrier’s routes--they concern which carriers fly to which destinations from which airports, and which carriers provide service (and at what rates) on through or joint routes--and therefore are preempted. See Travel All Over the World, Inc. v. Saudi Arabia, 73 F.3d 1423, 1430-35 (7th Cir. 1996). The district judge certified the order for interlocutory appeal under 28 U.S.C. sec.1292(b). We agreed to hear the appeal; proceedings on both sides’ contract claims (which under Wolens are not preempted) have stalled pending its resolution. One line of argument might have been that although the claims at issue may be "related to a . . . route . . . of an air carrier" in interstate commerce, Mesa and WestAir do not rely on any "law, regulation, or other provision having the force and effect of law related to a . . . route . . . of an air carrier" (emphasis added). Section 105(a)(1) might have been read to limit preemption to a law, regulation, or common- law doctrine directed to the air transportation industry, as in Morales, which held that sec.105(a)(1) precludes efforts by state attorneys general to promulgate a special code of conduct for advertisements by air carriers. On this understanding, laws of general applicability would not be preempted just because the subject of a particular case was air transportation. Tort law is not industry-specific; Mesa and WestAir want to use the same principles that apply to disputes about computer software, see J.D. Edwards & Co. v. Podany, 168 F.3d 1020 (7th Cir. 1999) (Illinois law), and employment, see Farr v. Gruber, 950 F.2d 399 (7th Cir. 1991) (Wisconsin law). Wolens read sec.105(a)(1) more broadly, however. Participants in a carrier’s frequent flyer program filed suit when the carrier changed the program’s rules. One claim arose under a state’s consumer fraud act, a statute of general applicability. Nonetheless, the Court held, sec.105(a)(1) preempts application of that law to frequent flyer programs, which affect rates because they are discounts. 513 U.S. at 226-28. Because Wolens held general consumer-fraud law preempted, Mesa and WestAir have a big problem. One solution, as they see it, lies in recent decisions under ERISA, which preempts state laws that "relate to" its subject. Both Morales and Wolens relied on doctrine developed under ERISA, and at the time the Court’s opinions tended to read the ERISA language broadly. E.g., Morales, 504 U.S. at 383-84, relying on Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983). Times have changed for pension and welfare plans. More recent decisions hold that state laws of general applicability are not preempted just because they have economic effects on pension or welfare plans. See, e.g., New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co., 514 U.S. 645 (1995); California Division of Labor Standards Enforcement v. Dillingham Construction, N.A., Inc., 519 U.S. 316 (1997); De Buono v. NYSA-ILA Medical and Clinical Services Fund, 520 U.S. 806 (1997). Mesa and WestAir ask us to follow this approach and curtail the preemptive effect of sec.105(a)(1) accordingly. But if developments in pension law have undercut holdings in air-transportation law, it is for the Supreme Court itself to make the adjustment. Our marching orders are clear: follow decisions until the Supreme Court overrules them. State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). Opinions such as Taj Mahal Travel, Inc. v. Delta Airlines Inc., 164 F.3d 186, 195 (3d Cir. 1998), which say that state law is preempted by sec.105(a)(1) only if it "frustrate[s] Congressional intent [or] impose[s] a state utility-like regulation on the airlines", cannot be reconciled with Wolens (the general anti-fraud statute held preempted there was a long distance from "utility-like regulation"), and we doubt that this position could be justified by the latest ERISA cases, even if we were free (which we are not) to prefer decisions such as De Buono and Dillingham over Wolens and Morales. One subject of UNUM Life Insurance Co. v. Ward, 526 U.S. 358 (1999), the Court’s most recent encounter with preemption under ERISA, was whether a general doctrine of state agency law could be used to override the express terms of a welfare-benefit plan. The Court answered "no," see 526 U.S. at 377-79, and this conclusion, like Wolens, necessarily means that a claim under, or application of, state law may be preempted as related to the federal topic, even though the rule in question does not single out pension or welfare plans--or air carriers’ rates, routes, or services. Our opinion in Travel All Over the World used the approach established by Wolens and Morales, concluding that a claim is preempted if either the state rule expressly refers to air carriers’ rates, routes, or services, or application of the state’s rule would have "a significant economic effect upon them" (73 F.3d at 1432); nothing any other circuit has said about the subject persuades us to alter course. The possibility that recent ERISA decisions would lead us to abandon Travel All Over the World and follow Taj Mahal Travel (which declined to follow this circuit’s position, see 164 F.3d at 193-95) is what induced the district court to certify its order for interlocutory appeal. But an appeal under sec.1292(b) brings up the whole certified order, Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 204-05 (1996); Edwardsville National Bank & Trust Co. v. Marion Laboratories, Inc., 808 F.2d 648, 650-51 (7th Cir. 1987), rather than just the legal issue that led to certification. Thus we must tackle the regional carriers’ contention that their claims are sound, despite Travel All Over the World, for the same reason the Supreme Court held in Wolens that contract claims are not preempted: sec.105(a)(1) is designed to replace regulation with voluntary agreements, see 513 U.S. at 228-35, and the fact that states sometimes apply the label "tort" to common-law doctrines that implement private agreements cannot doom their claims, the carriers insist. This is unimpeachable as a principle, but does it save these carriers’ claims? Wolens tells us to distinguish between what the State dictates and what the airline itself undertakes[, which] confines courts . . . to the parties’ bargain, with no enlargement or enhancement based on state laws or policies external to the agreement. 513 U.S. at 233 (footnote omitted). It is awfully hard to understand the regional carriers’ claims as efforts to enforce "the parties’ bargain, with no enlargement or enhancement based on state laws or policies external to the agreement." Let us start with Mesa’s contention that its purchase of aircraft, and the extension of its code-sharing agreement with United at Denver, are the result of fraudulent inducement. This is not by any stretch of the imagination a request to enforce the parties’ bargains; it is a plea for the court to replace those bargains with something else. Doubtless the institution of contract depends on truthfulness; the staunchest defenders of private institutions and limited government believe that public bodies must enforce rules against force and fraud. E.g., Richard A. Epstein, Principles for a Free Society 82-85 (1998). When all a state does is use these rules to determine whether agreement was reached, or whether instead one party acted under duress, it transgresses no federal rule. But when the state begins to change the parties’ financial arrangements, as Mesa demands, it is supplying external norms, a process that the national government has reserved to itself in the air transportation business. Mesa does not want to cancel the agreement and restore the status quo as of 1994. It wants damages. Wolens held that sec.105(a)(1) preempts state anti-fraud statutes as applied to air carriers’ rates, routes, and services, 513 U.S. at 227-28; just so with common-law rules against fraudulent inducement, which differs from a contention that one party knuckled under to a show of force by the other. And as in Wolens this conclusion does not leave regional air carriers at the mercy of unscrupulous major carriers (or the reverse); the Secretary of Transportation has been charged with investigating claims of deceit in the air transportation business and has the power to issue remedial orders (including monetary penalties) against air carriers that resort to fraudulent practices. 49 U.S.C. sec.sec. 41712, 46301; Wolens, 513 U.S. at 228 n.4; Morales, 504 U.S. at 379, 390-91. Next consider the contention of both Mesa and WestAir that fiduciary principles drawn from partnership law should be applied. Partnership is contractual; partners can and do specify their relations in detail, and the norms of partnership law are just background rules that cover a subject when contracts do not. In this sense partnership and fiduciary rules are a part of contract law, cf. John H. Langbein, The Contractarian Basis of the Law of Trusts, 105 Yale L.J. 625 (1995). But Mesa and WestAir assert that the law of partnerships imposes on United duties that override the contract. For example, United contends that its contracts permit it to regulate the destinations and flight frequency of the code-share regional carriers; Mesa and WestAir deny this, and if they are right then they will prevail under their contracts. But they contend (under their partnership theory) that they prevail even if United had the contractual power to do what it did. According to Mesa and WestAir, United had a fiduciary obligation to use its contractual powers for their economic benefit, rather than for its own, and that they are entitled to punitive damages because (in the language of their brief) United attempted "to terminate Mesa’s rights and interests in the Partner Agreement for its own benefit and to Mesa’s detriment". Illinois permits one party to a contract to use for its own benefit the rights and powers it has negotiated. See L.A.P.D., Inc. v. General Electric Corp., 132 F.3d 402 (7th Cir. 1997); Echo, Inc. v. Whitson Co., 121 F.3d 1099 (7th Cir. 1997); Digital Equipment Corp. v. Uniq Digital Technologies, Inc., 73 F.3d 756 (7th Cir. 1996); Industrial Representatives, Inc. v. CP Clare Corp., 74 F.3d 128 (7th Cir. 1996); Continental Bank, N.A. v. Everett, 964 F.2d 701 (7th Cir. 1992); Jespersen v. Minnesota Mining & Mfg. Co., 183 Ill. 2d 290, 700 N.E.2d 1014 (1998); Hentze v. Unverfehrt, 237 Ill. App. 3d 606, 610-11, 604 N.E.2d 536, 539 (5th Dist. 1992). Only rules external to the parties’ bargain could defeat this, but sec.105(a)(1) in turn defeats external rules. (We are skeptical that the word "partner" on the cover sheet of a complex contract that characterizes the regional carriers as "independent contractors" would bring the law of partnership into play in the first place. Businesses often refer to suppliers, customers, and producers of complementary products coloquially as "our partners" without summoning up fiduciary duties. See Vaughn v. General Foods Corp., 797 F.2d 1403 (7th Cir. 1986). A consumer who sees the advertising slogan "Partners in Progress" would not assume that he had become a "partner" of the producer, which then must set prices for the consumer’s benefit. But we need not pursue this point, given sec.105(a)(1).) Finally, consider the claim that SkyWest tortiously interfered with the contract WestAir had with United. Here, too, Mesa and WestAir rely on principles outside the parties’ agreements-- for they have reached no agreement at all with SkyWest. Why can’t SkyWest offer United gates at Los Angeles International Airport in exchange for some code-share business at LAX? That question can’t be answered by reference to a contract between SkyWest and any other party to the case. Even the appearance of a link between the claim against SkyWest and the contract claim against United may be illusory, because most states (including Illinois) treat as tortious some interferences with prospective economic advantage, even if the interference does not cause anyone to break a promise. Suppose, for example, that United’s contract with WestAir contained a clause entitling United to end the business relation for any or no reason. Then WestAir could not sue United--but it still could prevail in tort against SkyWest, if the sort of inducement SkyWest offered, or the motive for SkyWest’s action, ran afoul of a state’s public policy. See, e.g., J.D. Edwards, supra; Jeppesen v. Rust, 8 F.3d 1235 (7th Cir. 1993); Poulos v. Lutheran Social Services of Illinois, Inc., 728 N.E.2d 547 (Ill. App. 1st Dist. 2000); Strosberg v. Brauvin Realty Services, Inc., 295 Ill. App. 3d 17, 33, 691 N.E.2d 834, 845 (1st Dist. 1998); Reuben H. Donnelley Corp. v. Brauer, 275 Ill. App. 3d 300, 312-13, 655 N.E.2d 1162, 1172 (1st Dist. 1995). No surprise, then, that courts regularly treat claims of tortious interference with contract (or interference with economic advantage) as preempted in labor law, given how readily these claims may be used to get around contracts (or limits on the means of enforcing contracts). See, e.g., Lingle v. Norge Division of Magic Chef, Inc., 823 F.2d 1031, 1047, 1049 (7th Cir. 1987) (en banc), reversed on other grounds, 486 U.S. 399 (1988); Kimbro v. Pepsico, Inc., No. 99-2823 (7th Cir. June 2, 2000). Likewise they are preempted when they would have a significant effect on air carriers’ rates, routes, or services--as these claims, which are all about WestAir’s (and SkyWest’s) routes and divisions of revenues, assuredly do whether or not they would lead to punitive damages. Cf. Speakers of Sport, Inc. v. ProServ, Inc., 178 F.3d 862 (7th Cir. 1999) (illustrating how the tort of interference with economic advantage may be used to suppress competition, which would undercut the Airline Deregulation Act of 1978). Mesa and WestAir protest that none of their claims offends the goals and policies that Congress likely aimed at in 1978. One could have said the same (indeed, Justice Stevens did say the same) about the regulations and statutes held preempted in Morales and Wolens. But Justice Stevens was in dissent; the majority concluded that the statute applies according to its text, rather than according to goals and motives imputed to legislators. For what it may be worth, however, we are inclined to think that allowing these claims to proceed could gum up the works. Mesa offered service to multiple states from Denver, service United used to construct through rates and routes for travel across many jurisdictions. So too for regional service out of Los Angeles, which reached Oregon and Washington, and affected through travel to and from other states and nations. Yet Mesa and WestAir want us to hold that the tort law of Illinois determines (for example) what inducements SkyWest may offer United to reassign routes among regional carriers in the southwest, and how much Mesa should receive for its portion of through rates on service from Miami through Denver to Jackson, Wyoming. Illinois is United’s headquarters, and the parties agreed that their contracts would be interpreted under Illinois law, but as a source of tort law Illinois has no plausible claim--and for that matter no other state has much of a claim either. Basic rules for inter-carrier transactions may come from voluntary agreements or from the Department of Transportation; applying the conflicting tort principles of 50 different states to these interstate and international transactions would make a mess of things. Preemption under sec.105(a)(1) enables a system of private law, with nationally uniform overrides, to flourish. Affirmed	{ "pile_set_name": "FreeLaw" }
955 N.E.2d 631 (2011) 353 Ill. Dec. 164 The PEOPLE ex rel. the DEPARTMENT OF LABOR, Plaintiff, v. Pedro VALDIVIA, Individually and d/b/a V & A Landscaping, Defendant and Third-Party Plaintiff-Appellant (Pasqualino Divito, Individually and d/b/a Patnick Construction, Inc., Third-Party Defendant-Appellee). No. 2-10-0998. Appellate Court of Illinois, Second District. August 16, 2011. 633 Lance C. Ziebell, Lavell Law, Ltd., Palatine, for Pedro Valdivia. David N. Michael, Joseph P. Bonavita, Gould & Ratner LLP, Chicago, for Pasqualino Divito. Lisa Madigan, Attorney General, State of Illinois, Destiny R. Woods, Assistant Attorney General, for People ex rel. Illinois Department of Labor. OPINION Justice ZENOFF delivered the judgment of the court, with opinion. ¶ 1 The Department of Labor (Department) filed a complaint against defendant, subcontractor Pedro Valdivia, individually and doing business as V & A Landscaping (Valdivia), alleging that he violated the Prevailing Wage Act (Prevailing Wage Act or Act) (820 ILCS 130/1 et seq. (West 2004)). Valdivia filed a two-count third-party complaint against general contractor Pasqualino Divito, individually and doing business as Patnick Construction, Inc. (Divito), seeking the full amount of any judgment entered against Valdivia and in favor of the Department. Valdivia appeals from the trial court's dismissal of the second count. For the following reasons, we affirm. ¶ 2 I. BACKGROUND ¶ 3 In June 2004, the Village of Woodridge, Illinois, accepted Divito's bid on its "Suburban Estates Water Main Improvements" 634 project. The bid included a cost of $85,638 for "sodding, special." In September 2004, Divito entered into an oral agreement with Valdivia in which Valdivia would install the topsoil and sod for the project for $44,493.75. Valdivia completed his work on the project in November 2004. Valdivia paid his employees his standard wage and overtime rates. Divito paid Valdivia the agreed amount of $44,493.75. ¶ 4 On February 4, 2005, the Department sent Valdivia a letter stating that its audit showed that he failed to pay the prevailing wage to his employees on the project and demanding payment within 10 days on behalf of those employees. Valdivia's attorney responded with letters to both the Department and Divito, disclaiming any liability under the Prevailing Wage Act and asserting that Divito was liable for the back wages due to his failure to inform Valdivia of the Act's applicability to the project and his failure to post the prevailing wage rates at the jobsite. ¶ 5 On March 15, 2005, the Department sent Divito a letter stating that it would hold him responsible for Valdivia's failure to pay the back wages owed to Valdivia's employees. Divito's attorney responded by letter to the Department disclaiming any liability under the Prevailing Wage Act. On March 29, the Department sent Divito a letter indicating that it had a right to pursue a bond claim on his contractor bond for the project. The Department gave Divito 10 days to respond. Thereafter, the Department made no more contact with Divito. ¶ 6 On October 23, 2009, the Department filed against Valdivia a complaint alleging that Valdivia violated the Prevailing Wage Act by failing to pay the prevailing wage to his employees on the project. It sought payment of back wages of $78,185.55; a statutory penalty of $15,637.11; and statutory punitive damages of $14,386.04. ¶ 7 In addition to filing an answer and affirmative defense, Valdivia filed a two-count, third-party complaint against Divito, alleging that Divito violated section 4 of the Prevailing Wage Act by failing to notify Valdivia that the Act applied and by failing to post the prevailing wage rates on the jobsite (820 ILCS 130/4 (West 2004)). Count I, entitled "Violation of the Illinois Prevailing Wage Act," alleged that Divito's failure to comply with the Act's notice requirement subjected Valdivia to suit by the Department. Count II, entitled "Fraudulent Concealment," alleged that Divito knew that the Act was applicable to the project but did not notify Valdivia because Divito intended to induce Valdivia to enter into the landscaping contract for a price less than he would have agreed to had he known that he would be required to pay the prevailing wage. Both counts sought as relief Divito's payment of the full amount of any judgment entered against Valdivia in the underlying suit. ¶ 8 Divito filed a combined motion to dismiss the third-party complaint pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2010)). The trial court granted the motion with respect to count I, dismissing it with prejudice. It is not at issue in this appeal. The court denied Divito's motion with respect to count II. The court stated that count II, though entitled "Fraudulent Concealment," was essentially a claim for contribution under the Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/1 et seq. (West 2010)). The court granted Divito leave to file a motion to reconsider or to provide supplemental authority as to count II. Divito filed a motion to reconsider; Valdivia responded; and Divito replied. On August 19, 2010, the court heard argument and dismissed count II with prejudice. On September 2, the court entered an order modifying its 635 August 19 order to include a finding pursuant to Illinois Supreme Court Rule 304(a) (eff.Feb.26, 2010). Valdivia timely appealed. ¶ 9 II. ANALYSIS ¶ 10 Valdivia argues that he stated a claim for contribution in count II of his third-party complaint and that the trial court erred in dismissing it. After construing count II as a claim for contribution, the trial court dismissed it for failure to state a claim. A cause of action should not be dismissed for failure to state a cause of action "unless it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to relief." Tedrick v. Community Resource Center, Inc., 235 Ill.2d 155, 161, 336 Ill.Dec. 210, 920 N.E.2d 220 (2009) (reviewing dismissal pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2010))). We take all well-pleaded facts as true and draw all reasonable inferences in favor of the nonmoving party. Tedrick, 235 Ill.2d at 161, 336 Ill.Dec. 210, 920 N.E.2d 220. Our review is de novo. Tedrick, 235 Ill.2d at 161, 336 Ill.Dec. 210, 920 N.E.2d 220. ¶ 11 Section 2 of the Contribution Act provides for a right of contribution "where 2 or more persons are subject to liability in tort arising out of the same injury to person or property." 740 ILCS 100/2(a) (West 2010). The same-injury requirement refers to "that which is incurred by the plaintiff, as opposed to any injury suffered by the parties seeking contribution." People v. Brockman, 143 Ill.2d 351, 371, 158 Ill.Dec. 513, 574 N.E.2d 626 (1991). Thus, to state a claim under the Contribution Act, a party must show that both he and the party from whom he seeks contribution are subject to liability in tort for the injury suffered by the plaintiff in the underlying suit. Vroegh v. J & M Forklift, 165 Ill.2d 523, 529, 209 Ill.Dec. 193, 651 N.E.2d 121 (1995). Here, the underlying plaintiffs were Valdivia's employees. See 820 ILCS 130/11 (West 2004) (provision of the Prevailing Wage Act stating that the Department has a right of action on behalf of any person with a right of action under this section). The injury they suffered was underpayment of wages. Therefore, the relevant inquiry is whether Valdivia showed that both he and Divito were subject to liability in tort for the underpayment of wages to Valdivia's employees. ¶ 12 "Tort law * * applies in situations where society recognizes a duty to exist wholly apart from any contractual undertaking. Tort obligations are general obligations that impose liability when a person negligently, carelessly or purposely causes injury to others." Collins v. Reynard, 154 Ill.2d 48, 51, 180 Ill.Dec. 672, 607 N.E.2d 1185 (1992). A tort duty can derive either from the common law or from statute. Harnischfeger Corp. v. Gleason Crane Rentals, Inc., 223 Ill.App.3d 444, 452, 165 Ill.Dec. 770, 585 N.E.2d 166 (1991). A statute may expressly create a tort duty. Rommel v. Illinois State Toll Highway Authority, 405 Ill.App.3d 1124, 1128, 345 Ill.Dec. 242, 938 N.E.2d 1163 (2010). Or, a tort duty may be inferred from a statute intended to protect human life or property. Rommel, 405 Ill.App.3d at 1128, 345 Ill.Dec. 242, 938 N.E.2d 1163; see, e.g., Calloway v. Kinkelaar, 168 Ill.2d 312, 326, 213 Ill.Dec. 675, 659 N.E.2d 1322 (1995) (holding that the Illinois Domestic Violence Act of 1986 (750 ILCS 60/101 et seq. (West 1992)) imposed a duty on law enforcement to take reasonable steps to assist a person protected under that act); Doyle v. Rhodes, 101 Ill.2d 1, 17, 77 Ill. Dec. 759, 461 N.E.2d 382 (1984) (holding that violation of a "safety statute" such as the Road Construction Injuries Act (Ill. Rev.Stat.1981, ch. 121, ¶ 314 et seq.) can 636 subject a party to liability in tort sufficient to satisfy the Contribution Act). But cf. Jodelis v. Harris, 118 Ill.2d 482, 487, 115 Ill.Dec. 369, 517 N.E.2d 1055 (1987) (holding that the liability created by the Illinois Dramshop Act (Ill.Rev.Stat.1979, ch. 43, ¶ 135) was "`exclusive, sui generis nontort liability'" that did not satisfy the requirement of the Illinois Contribution Act (quoting Hopkins v. Powers, 113 Ill.2d 206, 211, 100 Ill.Dec. 579, 497 N.E.2d 757 (1986))). ¶ 13 Valdivia argues that the Prevailing Wage Act imposes a duty on general contractors and that violation of the Act's requirements subjects a general contractor to liability in tort. The Act requires both general contractors and subcontractors on public-works projects to pay the prevailing wage to their employees. 820 ILCS 130/4 (West 2004). The policy behind the Act is to ensure that workers on public-works projects are paid the prevailing wage for their work and that public-works projects will therefore be completed efficiently and expeditiously. 820 ILCS 130/1 (West 2004); People ex rel. Department of Labor v. Sackville Construction, Inc., 402 Ill.App.3d 195, 198, 341 Ill.Dec. 549, 930 N.E.2d 1063 (2010). Section 11 of the Act creates a right of action in those underpaid employees included within its scope, allowing them to claim back wages and punitive damages. 820 ILCS 130/11 (West 2004). The Act does not expressly create a tort duty, and a plain reading of the Act indicates that it was not intended to protect human life or property. Therefore, the Act cannot create a duty in tort. See Rommel, 405 Ill. App.3d at 1129, 345 Ill.Dec. 242, 938 N.E.2d 1163 (holding that the Toll Highway Act (605 ILCS 10/1 et seq. (West 2008))was a mechanism to finance construction and maintenance of highways and did not create a duty to prevent crossover collisions because it was not designed to protect human life or property). Accordingly, even if Divito violated the Prevailing Wage Act, he was not subject to liability in tort within the meaning of the Contribution Act, and the trial court did not err in dismissing count II of the third-party complaint. See Vroegh, 165 Ill.2d at 531, 209 Ill.Dec. 193, 651 N.E.2d 121 (holding that, because the contribution defendant had no duty to the underlying plaintiff, it was not subject to liability in tort within the meaning of the Contribution Act). ¶ 14 Valdivia specifically argues that section 4 of the Prevailing Wage Act imposed duties on Divito to notify Valdivia of the Act's applicability to the project and to post the prevailing wage rates at the jobsite. Valdivia asserts that Divito's violations of section 4's requirements were the cause of Valdivia's failure to pay his employees the prevailing wage, thus causing the injury suffered by Valdivia's employees. According to Valdivia, therefore, Divito's failure to comply with the Act rendered Divito liable in tort to Valdivia's employees. ¶ 15 Divito initially responds that Valdivia forfeited his argument that Divito owed a duty to Valdivia's employees, because he neither alleged such a duty in his third-party complaint nor argued to the trial court that such a duty existed. See In re Marriage of Holthaus, 387 Ill.App.3d 367, 377, 326 Ill.Dec. 138, 899 N.E.2d 355 (2008) (arguments not raised in the trial court are forfeited on review). We agree that Valdivia did not allege in count II that Divito owed a duty to Valdivia's employees. However, the trial court sua sponte construed count II for fraudulent concealment as a claim for contribution, and the parties briefed and argued the issue. In his written response to Divito's motion to reconsider, Valdivia argued that Divito's violations of the Prevailing Wage Act subjected 637 Divito to liability in tort to both the State and Valdivia's employees. Under the unique procedural history here, Valdivia did not forfeit his argument that Divito owed a duty to Valdivia's employees, because the issue was thoroughly addressed by the parties and the court below. See Cambridge Engineering, Inc. v. Mercury Partners 90 BI, Inc., 378 Ill.App.3d 437, 453, 316 Ill.Dec. 445, 879 N.E.2d 512 (2007) (one purpose of the forfeiture rule is to prevent prejudicing a party who had no opportunity to argue the issue before the trial court). ¶ 16 Divito further responds that the posting requirement was not in effect in October and November 2004, when the underlying plaintiffs were underpaid. The 2004 version of the Prevailing Wage Act included two section 4s. One reflected amendment by Public Acts 93-15, § 905 (eff. June 11, 2003) and 93-16, § 5 (eff. Jan.1, 2004), which were identical and added the posting requirement. The other reflected amendment by Public Act 93-38, § 5 (eff. June 1, 2004), which added the notice requirement. The language of section 5 of Public Act 93-38 did not include the language adding the posting requirement. However, because the notice and posting requirements do not irreconcilably conflict, we give effect to both. See 5 ILCS 70/6 (West 2010) ("Two or more Acts which relate to same subject matter and which are enacted by the same General Assembly shall be construed together in such manner as to give full effect to each Act except in case of an irreconcilable conflict."). ¶ 17 We now address Valdivia's argument that failure to comply with the notice requirement of section 4 of the Prevailing Wage Act subjected Divito to liability in tort to Valdivia's employees because the lack of notice caused Valdivia not to pay the prevailing wage. Section 4 of the Act requires both general contractors and subcontractors to pay the prevailing wage to all those "employed by them" on a public-works project. 820 ILCS 130/4 (West 2004). Section 4 additionally requires a general contractor to "insert into each subcontract * * * a written stipulation to the effect that not less than the prevailing rate of wages shall be paid to all * * * performing work under the contract." Pub. Act 93-38, § 5 (eff. June 1, 2004). However, notice is not a condition precedent to the obligation to pay the prevailing wage. See Sackville Construction, 402 Ill.App.3d at 203, 341 Ill.Dec. 549, 930 N.E.2d 1063 (holding that the failure of a public body to provide notice to a general contractor does not alleviate the obligation of the general contractor or its subcontractors to pay the prevailing wage to their employees). Neither is a general contractor a guarantor of payment for a subcontractor's employees in the event that the subcontractor fails to pay the prevailing wage. Cement Masons Pension Fund v. William A. Randolph, Inc., 358 Ill.App.3d 638, 645-46, 295 Ill.Dec. 77, 832 N.E.2d 228 (2005). ¶ 18 In Cement Masons, the plaintiffs were fringe-benefit-funds administrators who sued defendant, the general contractor on a public-works project, for its subcontractor's failure to pay the prevailing wage. Cement Masons, 358 Ill.App.3d at 639, 295 Ill.Dec. 77, 832 N.E.2d 228. The appellate court declined to expand the plain meaning of the Prevailing Wage Act and held that the Act did not allow a cause of action against a general contractor for its subcontractor's violation. Cement Masons, 358 Ill.App.3d at 646, 295 Ill.Dec. 77, 832 N.E.2d 228. This holding was the basis of the trial court's dismissal here of count I of the third-party complaint, which alleged Divito's violation of the Act. Although Valdivia does not appeal from the 638 dismissal of count I, he makes much of the fact that Cement Masons was decided in June 2005, after the conduct at issue here occurred (in the fall of 2004). Nonetheless, the relevant language of the Act interpreted by the court in Cement Masons was the same as that in effect in 2004; thus, Cement Masons is apposite. We agree with Valdivia that Cement Masons does not directly address the issue presented herethe viability of a contribution claim. However, it is persuasive for the proposition for which we cite itthat a general contractor is not a guarantor of payment for its subcontractor's employees. ¶ 19 Under the Prevailing Wage Act, Valdivia's employees were entitled to payment of the prevailing wage from Valdivia, regardless of Divito's notice to Valdivia. Accordingly, section 4's notice requirement could not have created any duty owed by Divito to Valdivia's employees, let alone one sounding in tort. See Sackville Construction, 402 Ill.App.3d at 203, 341 Ill. Dec. 549, 930 N.E.2d 1063 (analyzing language from the 2006 version of the Act, which was identical to that in the 2004 version, and holding that "the plain language of sections 1 and 4 requires payment of back wages at the prevailing rate regardless of any notice to the subcontractor that the Act applies"). ¶ 20 Valdivia also maintains that section 4's requirement that a general contractor post the prevailing wages for the various crafts at the jobsite is for the benefit of all of the workers on a public-works project and, therefore, it created a duty owed by Divito to Valdivia's employees. Section 4 requires a general contractor to "post, at a location on the project site of the public works that is easily accessible to the workers engaged on the project, the prevailing wage rates for each craft or type of worker." Pub. Act 93-16, § 5 (eff.Jan.1, 2004). Although the posting requirement conceivably is for the benefit of the employees, the required posting merely informs the employees of what the prevailing wage rates are, not that they are entitled to receive them. Moreover, as discussed above, the intent to ensure that workers employed in public works are paid the prevailing wage simply does not sound in tort, because it has nothing to do with the prevention of personal injury or property damage. See Rommel, 405 Ill.App.3d at 1129, 345 Ill.Dec. 242, 938 N.E.2d 1163 (holding that a statute not designed to protect human life or property did not create a duty). ¶ 21 In support of his proposition that the posting requirement created a duty, Valdivia relies solely on Brockman. In Brockman, the State filed a complaint against the owner-operators of a landfill for violations of the Illinois Environmental Protection Act (Ill.Rev.Stat.1979, Ch. 111½, ¶ 1001 et seq.). Brockman, 143 Ill.2d at 358, 158 Ill.Dec. 513, 574 N.E.2d 626. The owner-operators filed a third-party complaint against their customersvarious generators and transporters of waste deposited at the landfill. Brockman, 143 Ill.2d at 359, 158 Ill.Dec. 513, 574 N.E.2d 626. The trial court dismissed the third-party complaint with prejudice, and the owner-operators appealed. Brockman, 143 Ill.2d at 360, 158 Ill.Dec. 513, 574 N.E.2d 626. Ultimately, the supreme court held that violation of the Environmental Protection Act could constitute liability in tort under the Contribution Act because, "[w]ithout question, third-party defendants had a duty not to contaminate the environment." Brockman, 143 Ill.2d at 372-73, 158 Ill.Dec. 513, 574 N.E.2d 626. ¶ 22 The court's conclusion in Brockman that the Environmental Protection Act created a tort duty is consistent with the concept of a tort itself. Brockman, like the cases mentioned above in which courts 639 found statutory tort duties, involved the legislature's intent to prevent personal injury or property damage, specifically to prevent injury to persons and harm to the environment from hazardous substances. See Brockman, 143 Ill.2d at 375, 158 Ill. Dec. 513, 574 N.E.2d 626 (noting that the purpose of the Environmental Protection Act is to impose liability on those who create a situation harmful to the environment); 415 ILCS 5/2(a)(i) (West 2010) (stating the General Assembly's finding that "environmental damage seriously endangers the public health and welfare"). In contrast, the Prevailing Wage Act does not involve such concerns. Rather, the purpose of the Act is to ensure that workers on public-works projects are paid the prevailing wage. Accordingly, Brockman is inapposite. ¶ 23 Valdivia's argument that a recent amendment to the Prevailing Wage Act compels a different conclusion is not convincing. The Act was amended, effective January 1, 2010, to require a general contractor to pay the penalties that would otherwise be imposed on a subcontractor, if the general contractor failed to notify the subcontractor of the Act's applicability. 820 ILCS 130/4(b-2) (West 2010). Valdivia argues that this amendment, rather than changing the law, served to clarify the law as it existed at the relevant time here, thus supporting his right to contribution under the theory that general contractors have duties to notify and post. We first note that, as Valdivia acknowledges, the amended language makes clear that a general contractor's failure to notify "does not relieve the subcontractor of the duty to comply with the prevailing wage rate, nor of the obligation to pay any back wages." 820 ILCS 130/4(b-2) (West 2010). Even more significant here is that the amendment applies to violations of the notice requirement, not the posting requirement. As it is only the posting requirement that could possibly benefit Valdivia's employees, the amendment does not support the viability of Valdivia's contribution claim. ¶ 24 Valdivia finally argues that the equities compel the conclusion that he be permitted to seek contribution because otherwise Divito will be unjustly enriched and Valdivia will be unfairly burdened with the total cost of the back wages owed plus penalties. Contribution is based on principles of equity. Doyle, 101 Ill.2d at 16, 77 Ill.Dec. 759, 461 N.E.2d 382. However, "[t]he equitable powers of a court may not be exercised to direct a remedy in contradiction to the plain requirements of a statute." 601 West 81st Street Corp. v. City of Chicago, 129 Ill.App.3d 410, 418, 84 Ill.Dec. 690, 472 N.E.2d 827 (1984). ¶ 25 Valdivia's argument that Divito will be unjustly enriched if he is not subject to contribution is purely speculative. It is premised on the facts that Divito's bid to the Village included a cost of $85,638 for "sodding, special," while under his contract with Valdivia for sodding, he paid only $44,493.75. Superficially, these facts might suggest unfairness; indeed, the trial court stated that the equities favored Valdivia. Nonetheless, to the extent that the parties entered into a contract[1] for the $44,493.75 price, the theory of unjust enrichment really has no relevance. See People ex rel. Hartigan v. E & E Hauling, Inc., 153 Ill.2d 473, 497, 180 Ill.Dec. 271, 607 N.E.2d 165 (1992) (stating that, because the theory of unjust enrichment is based on a contract implied in law, it has no applicability where an actual contract exists). Moreover, Valdivia actually paid *640 $19,474.91 in wages and is subject to an additional $78,185.55 in back wages. Thus, the total prevailing wage owed was $97,660.46-$12,000 more than the sodding cost listed in Divito's bid to the Village (and that does not include any cost for materials). Consequently, it would seem that other factors, about which we decline to speculate, figured into Divito's sodding cost in his bid, which consisted of 47 different items and totaled $653,829. We also disagree with Valdivia's argument that precluding a contribution claim in this type of situation allows general contractors to profit from their disregard for the notice provision. The Act provides that general contractors who violate its provisions are subject to being barred from public-works projects for two years. See 820 ILCS 130/11 a (West 2004). Thus, any "profit" from a violation would be short-lived. ¶ 26 We are also not convinced that, absent a claim for contribution, Valdivia will be unfairly burdened with the total cost of the back wages owed plus penalties. Valdivia was statutorily obligated to pay the prevailing wage, regardless of notice of the Act's applicability. See Sackville Construction, 402 Ill.App.3d at 203, 341 Ill. Dec. 549, 930 N.E.2d 1063 (notice is not a condition precedent to the obligation to pay the prevailing wage). Valdivia's failure to comply with the Act subjected him to owing back wages and penalties. See Sackville Construction, 402 Ill.App.3d at 203, 341 Ill.Dec. 549, 930 N.E.2d 1063 (holding that, despite lack of notice, the subcontractor's failure to pay the prevailing wage subjected it to back wages and penalties under the Act). Even if we were to agree with the trial court's conclusion that the equities favored Valdivia, we cannot circumvent the clear mandate of the Contribution Act's requirement that both parties be subject to liability in tort. See 601 West 81st Street Corp., 129 Ill.App.3d at 418, 84 Ill.Dec. 690, 472 N.E.2d 827 (court cannot use equity to contradict a statute's requirements). Any perceived unfairness must be rectified by the legislature. Henrich v. Libertyville High School, 186 Ill.2d 381, 394, 238 Ill.Dec. 576, 712 N.E.2d 298 (1998) ("The responsibility for the justice or wisdom of legislation rests upon the legislature."). ¶ 27 Based on the foregoing reasons, we affirm the judgment of the circuit court of Du Page County. ¶ 28 Affirmed. Justices HUTCHINSON and BIRKETT concurred in the judgment and opinion. NOTES [1] Paragraph 7 of Valdivia's affirmative defense asserts that the parties "entered into an oral agreement." Paragraph 9 alleges that Valdivia performed all of his obligations "under said contract."	{ "pile_set_name": "FreeLaw" }
Filed 5/30/13 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO MITCHELL SIMS et al., Plaintiffs and Respondents, A135290 v. DEPARTMENT OF CORRECTIONS (Marin County AND REHABILITATION et al., Super. Ct. No. CIV 1004019) Defendants and Appellants. The question presented by this appeal is whether regulations promulgated by the California Department of Corrections and Rehabilitation (CDCR or agency) regarding the manner in which the death penalty is carried out substantially comply with the California Administrative Procedure Act (APA) (Gov. Code, § 11340 et seq.).1 Finding that the CDCR “substantially failed to comply” with mandatory procedural requirements of the APA, the trial court invalidated the regulations in their entirety. (§ 11350, subd. (a).) We shall affirm the judgment. BACKGROUND California law, which provides for capital punishment, offers persons sentenced to death a choice between execution by lethal injection or by lethal gas. (Pen. Code, § 3604, subd. (b).) The responsibility to develop procedures for administering both forms of execution lies with the CDCR. (Pen. Code, § 3604, subd. (a).) Until 2006, the CDCR‟s standards for conducting lethal injections were set forth in a procedural manual known as Operational Procedure No. 0-770 (OP 770). In 1 Unless otherwise indicated, all statutory references are to provisions of the APA set forth in the Government Code. 1 December of that year a federal court ruled that the protocol prescribed by OP 770 violated the Eighth Amendment‟s prohibition against cruel and unusual punishment. (Morales v. Tilton (N.D.Cal. 2006) 465 F.Supp.2d 972.) In order to cure this deficiency, the CDCR substantially revised OP 770 on May 15, 2007. Later that year, condemned inmates filed a complaint in the Marin County Superior Court contending that any procedure employed to carry out the death penalty must be adopted through the regulatory approval process prescribed by the APA, rather than as an agency operational procedure. The superior court agreed. Finding that the revised version of OP 770 constituted an “underground regulation,”2 the court enjoined the CDCR from executing condemned inmates by lethal injection “unless and until” the applicable regulations were enacted in “full compliance with the Administrative Procedure Act.” The CDCR appealed and, in 2008, Division Five of this court affirmed the trial court‟s decision. (Morales v. California Dept. of Corrections & Rehabilitation (2008) 168 Cal.App.4th 729.) In response to that ruling, the CDCR undertook to promulgate a lethal injection protocol through the APA rulemaking process.3 2 “ „Underground regulation‟ means any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, including a rule governing a state agency procedure, that is a regulation as defined in section 11342.600 of the Government Code, but has not been adopted as a regulation and filed with the Secretary of State pursuant to the APA and is not subject to an express statutory exemption from adoption pursuant to the APA.” (Cal. Code Regs., tit. 1, ch. 2, § 250, subd. (a).) 3 While the CDCR‟s appeal of the Marin County Superior Court decision was pending in this court, the United States Supreme Court issued its opinion in Baze v. Rees (2008) 553 U.S. 35 (Baze). Baze rejected a claim by a condemned inmate that Kentucky‟s three-drug legal injection method of capital punishment, which was similar to that proposed in OP 770, posed an unacceptable risk of significant pain, and was cruel and unusual within the meaning of the Eighth Amendment. As later explained, the CDCR could not have relied on Baze when it decided to use a three-drug legal injection method, because that method was selected prior to the decision in Baze. Nonetheless, the CDCR relies upon Baze and subsequent federal decisions rejecting challenges to states‟ three-drug protocols for the proposition, unchallenged in this case, that California‟s three- drug protocol passes constitutional muster. (See, e.g., Dickens v. Brewer (9th Cir. 2011) 2 The process commenced on May 1, 2009, when the CDCR submitted to the Office of Administrative Law (OAL), and made available to the public upon request, a draft regulation4 and notice of proposed regulatory action, as well as an “initial statement of reasons” (ISOR) explaining the rationale of the proposed regulations. (§ 11346.2, subds. (a), (b).) The agency also posted notice of the proposed rulemaking in all of the state‟s prisons, including multiple postings in San Quentin Prison, where executions are carried out and condemned male prisoners are housed. During the initial 60-day period of public comment and two subsequent periods additionally allowed, the CDCR received a total of 29,416 letters, facsimiles and emails from the public. At a six-hour public hearing in Sacramento on June 30, 2009, 102 people expressed their views on the proposed regulations. On January 4, 2010, the CDCR provided public notice of modifications to the proposed regulation in response to the written comments it had received, and set a 15-day comment period on the modifications. On April 29 of that year, the CDCR submitted the new regulations for review by the OAL. On June 8, the OAL disapproved the regulations, finding, among other things, that CDCR had failed to comply with the clarity, consistency and necessity standards of the APA (§§ 11342.2, 11342.580, 11349) and several APA procedural requirements. On June 11, the CDCR published another notice to the public addressing the issues the OAL had raised, allowing a 15-day comment period. On July 6, the CDCR resubmitted modified regulations, which were approved by the OAL on July 30. The regulations, now set forth in California Code of Regulations, title 15, sections 3349 through 3349.4.6, took effect 30 days later, on August 29, 2010. 631 F.3d 1139, 1144-1146 (Arizona); Rhoades v. Reinke (9th Cir. 2011) 671 F.3d 856, 858-863 (Idaho).) 4 The regulations initially submitted to the OAL were almost identical to the execution protocols set forth in the May 15, 2007 version of OP 770. 3 PROCEEDINGS BELOW Under the APA, “no regulation adopted is valid or effective unless consistent and not in conflict with the statute and reasonably necessary to effectuate the purpose of the statute.” (§ 11342.2.) A regulation “may be declared to be invalid for a substantial failure to comply with [the APA]” or if the determination of the promulgating agency that it is reasonably necessary to effectuate the purpose of the statute “is not supported by substantial evidence.” (§ 11350, subds. (a), (b)(1).)5 On August 2, 2010, respondent Mitchell Sims filed a complaint seeking declarative and injunctive relief.6 The first cause of action alleged that several significant provisions of the regulations approved by the OAL “are entirely unnecessary to effectuate the purpose of Penal Code section 3604[, subdivision] (a)[7] and impose undue burdens on those effected by the regulations.” The gist of the claim is that the use of one of the three drugs in the three-drug regulatory formula—pancuronium bromide, a neuromuscular agent that paralyzes the body‟s voluntary muscles—“is unnecessary and dangerous, and serves only to increase the risk that the condemned person will suffer excruciating pain” and “the rulemaking file makes clear that there are no countervailing benefits or compelling reasons to use pancuronium bromide as part of the execution process.” 5 “ „Necessity‟ means the record of the rulemaking proceeding demonstrates by substantial evidence the need for a regulation to effectuate the purpose of the statute, court decision, or other provision of law that the regulation implements, interprets, or makes specific, taking into account the totality of the record. For purposes of this standard, evidence includes, but is not limited to, facts, studies, and expert opinion.” (§ 11349, subd. (a).) 6 On September 11, 2010, condemned inmate Albert Greenwood Brown, Jr. was granted leave to intervene as a plaintiff, as was condemned inmate Kevin Cooper on July 29, 2011. The complaints filed by Brown and Cooper were virtually identical to that filed by Sims. The three plaintiffs thereafter moved for summary judgment jointly. 7 Penal Code section 3604, subdivision (a), provides that “[t]he punishment of death shall be inflicted by the administration of a lethal gas or by an intravenous injection of a substance or substances in lethal quantity sufficient to cause death, by standards established under the direction of the Department of Corrections.” 4 After finding that the rulemaking file contained substantial evidence favorable to the use of pancuroniam bromide, or confirmed the experience of other states that proper application of the same three-drug formula authorized by the regulations “will result in a rapid death of the inmate without undue pain or suffering,” the trial court, on December 19, 2011, denied respondents‟ motion for summary judgment on their first cause of action alleging no substantial evidence showing the use of pancuronium bromide “reasonably necessary” to effectuate the purpose of the proposed regulations. However, in the same ruling, the trial court granted respondents‟ motion for summary judgment with respect to the second cause of action and invalidated the regulations, based upon its finding that undisputed evidence shows that the CDCR “substantial[ly] fail[ed] to comply with the mandatory procedural requirements of the Administrative Procedure Act” when it adopted the regulations, in violation of section 11350, subdivision (a). The CDCR admitted below, as it does here, that it did not actually comply with many of the requirements of the APA that respondents claim constitute a substantial failure to comply. Specifically, the CDCR admitted it (1) failed to explain in the ISOR and “final statement of reasons” (FSOR) (§ 11346.9) its consideration and rejection of alternatives to the three-drug protocol, as required by sections 11346.2, subdivision (b)(3), and 11346.9, subdivision (a)(3), and falsely represented that it relied on the Supreme Court decision in Baze, supra, 553 U.S. 35, which validated a three-drug lethal injection method of capital punishment but had not been decided when the CDCR rejected alternatives to that method; (2) failed to make the complete rulemaking file available to the public for inspection as of the date the notice of proposed action was published (§ 11347.3), and delayed making the rulemaking file available until June 11, 2009, six weeks after publication of the notice of proposed action, when fewer than three weeks remained in the comment period; (3) failed to identify the latest version of OP 770 as the primary basis of the proposed lethal injection protocol; (4) failed to summarize and respond to about two dozen written comments specifically directed at the agency‟s proposed action explaining whether and how the proposed regulations had been changed 5 to accommodate each objection or recommendation, as required by section 11346.9, subdivision (a)(3); and (5) included irrelevant information in the rulemaking file made available to the public. After respondents voluntarily dismissed the first cause of action, the judgment invalidating the regulations for substantial failure to comply with the requirements of the APA was entered on February 21, 2012. The court permanently enjoined the CDCR from administering executions by lethal injection until new regulations were promulgated in compliance with the APA, and also from administering executions by lethal gas until regulations applicable to that method of execution were properly adopted. The CDCR was also permanently enjoined from administering the execution of any condemned female inmate until applicable regulations were promulgated that complied with the requirements of the APA. The CDCR filed a timely notice of appeal on April 26, 2012. THE TRIAL COURT’S RULING A regulation “may be declared to be invalid for a substantial failure to comply with [the APA].” (§ 11350, subd. (a), italics added.) The trial court‟s 17- page final ruling granting summary judgment identified and discussed its reasons for concluding that, “collectively, if not singly,” the deficiencies in the CDCR‟s rulemaking process “constitute a substantial failure . . . to comply with procedures mandated by the Administrative Procedures Act,” requiring invalidation of the regulations regarding lethal injection in their entirety. The deficiencies in the CDCR‟s rulemaking process the court believed most clearly “substantial,” and sufficient in and of themselves to warrant invalidation of the proposed regulation in its entirety, relate to APA requirements that agencies proposing regulations timely provide the interested public certain types of relevant information. The court found that the ISOR and FSOR failed to describe alternatives to the proposed three-drug protocol, failed to provide a sufficient rationale for rejecting those alternatives, and failed to explain, with supporting documentation, why a one-drug alternative would not be as effective or better than the adopted three-drug procedure, as required by the 6 APA. (§§ 11346.2, subd. (b)(3)(A) and 11346.9, subd. (a)(4).) The ISOR and FSOR both stated that the CDCR “considered alternatives to the existing three-chemical process, including a one-chemical process” and was “guided by the United States Supreme Court‟s decision in [Baze, supra,] 553 U.S. 35,” which upheld Kentucky‟s use of a three-chemical process. However, as the ruling explains and the CDCR concedes, the agency‟s consideration of alternatives was not guided by the decision in Baze because the three-drug protocol was decided upon by Governor Schwarzenegger in May 2007, well before the issuance of Baze, and the issue was not revisited after Baze was decided.8 The failure to forthrightly discuss alternatives to the three-drug method was particularly significant, the court stated, because many who commented upon the proposed regulations had claimed that use of pancuronium bromide was unnecessary, dangerous, and created a risk of excruciating pain, or had raised the issue of a barbiturate- only protocol; the CDCR had taken the position in a federal lawsuit that a single-drug formula consisting of five grams of sodium thiopental was sufficient to cause death in a constitutional manner; and the CDCR‟s expert had recommended adoption of a single- drug formula. The court also found the CDCR substantially failed to make the complete rulemaking file available for public inspection in the timely manner required by the APA. (§ 11347.3, subd. (a).) The file was not made available to the public until June 11, 2009, 8 With respect to alternatives, the FSOR states only that “[t]he Department has determined that no alternative considered would be more effective in carrying out the purpose of this action or would be as effective and less burdensome to affected persons.” Later, the document reiterates that the agency had “ „considered alternatives to the existing three-chemical process, including a one-chemical process.‟ ” The CDCR did not argue below, nor does it now claim, that these conclusory statements satisfy the requirement that the FSOR submitted to the OAL must include “a determination with supporting information that no alternative considered by the agency would be more effective in carrying out the purpose for which the regulation is proposed or would be as effective and less burdensome to affected private persons than the adopted regulation.” (§ 11346.9, subd. (a)(4), italics added.) Nor has the CDCR sought to explain how the two statements in the FSOR rectify the agency‟s failure to say anything about the consideration of alternatives in the ISOR or elsewhere at the time the rulemaking process commenced. 7 six weeks after publication of the notice of proposed action on May 1, 2009, and less than three weeks before the end of the public comment period on June 30, 2009. Additionally, the rulemaking file did not contain several significant documents the CDCR had relied upon in drafting the proposed regulations, which were therefore required by the APA to be included in the file.9 (§ 11347.3, subd. (b).) The trial court‟s determination that the CDCR substantially failed to comply with the APA also rested on the agency‟s failure to respond to public comments in the manner and as fully as the APA requires. The APA provides that an agency‟s FSOR “shall include . . . [¶] . . . [a] summary of each objection or recommendation made regarding the specific adoption . . . proposed, together with an explanation of how the proposed action has been changed to accommodate each objection or recommendation, or the reasons for making no change.” (§ 11346.9, subd. (a)(3).)10 The court‟s ruling states that the CDCR received over 29,400 written comments on the proposed regulations and neither responded to nor summarized approximately two dozen comments. The court concluded that despite the large number of comments the CDCR properly addressed, its failure to respond to or summarize approximately 24 comments could not be treated as merely a “technical defect.” “By not summarizing and responding to these comments,” the court stated, “the Department did not give substance to the central APA requirement that all 9 The documents were OP 70; the statement of decision of the Federal District Court in Morales v. Tilton, supra, 465 F.Supp.2d 972 (declaring the protocol prescribed by OP 770 violative of the Eighth Amendment); the reports or declarations of experts received in evidence in Morales v. Tilton; the lethal injection protocol employed by the Federal Bureau of Prisons; and responses by 15 states to a survey conducted by the CDCR regarding methods of executing condemned prisoners. 10 Subdivision (a)(3) of section 11346.9 goes on to state that “[t]his requirement applies only to objections or recommendations specifically directed at the agency‟s proposed action or to the procedures followed by the agency in proposing or adopting the action. The agency may aggregate and summarize repetitive or irrelevant comments as a group, and may respond to repetitive or summarily dismiss irrelevant comments as a group. For the purposes of this paragraph, a comment is „irrelevant‟ if it is not specifically directed at the agency‟s proposed action or to the procedures followed by the agency in proposing or adopting the action.” 8 interested persons be afforded a meaningful chance to have their objections heard and to inform the rulemaker‟s decision.” The court added that some of the responses to comments the CDCR did make “are incomplete, incorrect, or inadequate,” noting, as an example, that about 15 commentators objecting to the use of pancuronium bromide did so on the basis of “various medical and humanitarian grounds,” yet the CDCR answered by relying on the recent decision in Baze v. Rees, supra, 553 U.S. 35, which did not relate to those concerns, and erroneously indicated the three-chemical protocol had been selected on the basis of the Supreme Court‟s analysis in Baze. Concluding that the foregoing deficiencies, all of which were supported by “undisputed evidence,” “infect[ed] the entire regulatory scheme” prescribed by the APA, and “undermined meaningful public participation in the rulemaking process,” the court concluded it was necessary to declare the proposed lethal injection protocol, “as a whole,” invalid. The trial court found the CDCR also failed to comply with the APA in other respects, but these deficiencies only justified the invalidation of individual regulations, or the addition of information improperly omitted from the regulation (such as the fiscal impact of the regulation), not invalidation of the regulations in their entirety. Thus the court found the CDCR violated the APA requirement that it explain why a regulatory provision “is reasonably necessary to carry out the purpose and address the problem for which it was proposed” (§ 11346.2, subd. (b)(1)), because the CDCR provided no explanation why certain procedures were required to take place during the five days before execution. For example, the ISOR failed to explain why it was necessary for unit staff to monitor the inmate and to complete documentation every 15 minutes during the five-day period; “why all personal property must be removed from the inmate‟s cell”; or “why inmates must be bound with waist restraints during visits.” The court also found that “some” of the regulations did not comply with the APA- mandated standard of “clarity,” which requires that regulations be written or displayed so that their meaning “will be easily understood by those persons directly affected by them.” (§ 11349, subd. (c).) By way of example, the court cited a regulation related to the 9 warden‟s review of information bearing on the sanity of a condemned inmate. In the court‟s view, the regulation requires the inmate‟s counsel to submit such information no later than seven days prior to the scheduled execution, whereas the FSOR indicates such information can be offered to and received by the warden “at any time” prior to execution, thereby creating an ambiguity rendering the regulation invalid. The court also found that the term “reputable citizen,” used in a regulation restricting the number of witnesses to an execution, “may have more than one meaning” and was, therefore, also ambiguous. The trial court also agreed with respondents that the CDCR‟s notice of proposed adoption of regulation failed to estimate the additional costs or savings it would incur in reasonable compliance with the proposed regulation, as required by the APA. (§ 11346.5, subd. (a)(6).) In making this finding, the court rejected the CDCR‟s contention that it was not required to provide such estimates because “ „the costs and fiscal impacts of lethal-injection executions are caused by the fact that the Penal Code, not a regulation, mandates this type of execution.‟ ” Lastly, although the court ruled that ”[t]he all-male plaintiffs do not have standing to raise the [e]qual [p]rotection challenges on behalf of condemned female inmates, because they do not claim the disparate treatment they hypothesize,” it nevertheless permanently enjoined the CDCR from executing any condemned female inmate, or executing any inmate under sentence of death by lethal gas, until applicable regulations were properly promulgated. STANDARD OF REVIEW “On appeal we exercise „an independent assessment of the correctness of the trial court‟s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.‟ ” (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201, quoting Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.) As respondents correctly point out, where, as here, neither party claims there are any triable issues of material fact, the appellate court independently 10 interprets and applies the law to undisputed facts. That is, “[i]n the context of a motion for summary judgment, questions of law include whether a triable issue of material fact exists and whether the moving party is entitled to judgment as a matter of law.” (Coburn v. Sievert (2005) 133 Cal.App.4th 1483, 1492, citing Code Civ. Proc., § 437c, subds. (c) & (f); see Certain Underwriters of Lloyd’s of London v. Superior Court (2001) 24 Cal.4th 945, 972.) We also agree with respondents that courts reviewing regulations for compliance with the APA owe no deference to the promulgating agency‟s opinion that it complied with the prescriptions of the APA. The CDCR does not contest this point. As we noted in California Advocates for Nursing Home Reform v. Bonta (2003) 106 Cal.App.4th 498, “ „Agencies are not normally delegated power to determine authoritatively whether they complied with generally applicable rule-making procedures, . . . As a result, courts may usually determine the lawfulness of agencies‟ compliance with those rule-making procedures entirely de novo, simply substituting their judgment on that question for that of the agencies.‟ ” (Id. at p. 506, quoting Bonfield, State Administrative Rule Making (1986) § 9.2.12, p. 582.) Additionally, a court reviewing regulations for compliance with the APA “shall not” consider the approval of the regulations by OAL “in any action for declaratory relief.” (§ 11350, subd. (c).) ANALYSIS The CDCR contends: (1) there was no substantial failure to comply with the APA because the high level of public participation in the rulemaking process rendered harmless its failure to actually comply with certain provisions of the APA; (2) the trial court lacked authority to review the regulations for clarity; (3) the court lacked authority to review the regulations for “necessity”; (4) the absence of a fiscal impact report does not violate the APA; and (5) the court erred in enjoining the execution of condemned female inmates and executions by means of lethal gas. I. As we have said, the judgment rests on a provision of the APA stating that a “regulation . . . may be declared to be invalid for a substantial failure to comply with this 11 chapter.” (§ 11350, subd. (a), italics added.) The parties cite no case, and we are aware of none, defining “substantial failure” to comply with the APA or a comparable statute. The two federal cases the CDCR relies upon for application of the harmless error rule, United States v. Bearden (5th Cir. 1981) 659 F.2d 590 (Bearden) and United States v. Martinez (9th Cir. 1970) 436 F.2d 12 (Martinez), do not involve the APA or comparable statute, but they do pertain to a statutory scheme that, like the APA, is enforced upon a court‟s determination “of substantial failure to comply with the provisions” of the measure. (28 U.S.C. § 1867, subds. (a), (b), (c).) Bearden and Martinez both interpret and apply provisions of the federal Jury Selection and Service Act of 1968, the chief purposes of which are “to ensure that potential grand and petit jurors are selected at random from a representative cross section of the community and that all qualified citizens have the opportunity to be considered for service.” (Bearden, at p. 593, citing 28 U.S.C.A. § 1861.) The finding in both cases was that the failures of responsible government officials to comply with the federal act were not “substantial” because they did not frustrate these two important general principles. As stated in Bearden, “[a] substantial violation of the Act will be found only when these principles are frustrated. Mere „technical‟ deviations from the Act or even a number of them are insufficient. [Citations.] [¶] The same analysis is applied for claims alleging a failure to comply with the Local Plan. The court must determine whether noncompliance with the Plan has resulted in a substantial violation of the Act and its underlying principles. [Citations.] The mere claim the Plan has been violated is insufficient, absent a further showing the Act itself and its goals have been frustrated.” (Bearden, at p. 601, italics added.)11 11 For example, the Bearden court found that “while the practice of granting permanent rather than temporary [juror] excusals failed to comply with the Act, it did not rise to the level of a substantial violation. Even assuming all 212 permanent excusals [of jurors] were wrongful, this amounts to only .7% of the persons on the qualified wheels, an insignificant amount. Moreover, there is no evidence indicating the excusals were made on the basis of improper subjective criteria.” (Bearden, supra, 659 F.2d at p. 609, fn. omitted, italics added.) 12 The reasoning of Bearden and Martinez is consistent with the concept of substantial compliance articulated by our Supreme Court more than 50 years ago in Stasher v. Hager-Haldeman (1962) 58 Cal.2d 23 (Stasher), which is still authoritative. (See, e.g., North Pacifica LLC v. California Coastal Comm. (2008) 166 Cal.App.4th 1416, 1431-1432.) As stated in Stasher, “[s]ubstantial compliance, as the phrase is used in the decisions, means actual compliance in respect to the substance essential to every reasonable objective of the statute. But when there is such actual compliance as to all matters of substance then mere technical imperfections of form . . . should not be given the stature of noncompliance . . . .” (Stasher, at p. 29, first italics added by Stasher court, second added by this court.) Substantial compliance, an affirmative proposition, is the counterpart, or obverse, of the substantial failure to comply, which negatively expresses the same idea. Following Stasher, it is therefore proper to say that noncompliance is insubstantial, or “harmless,” only where it does not compromise any “reasonable objective” of the APA. The CDCR argues that its failure to “fully comply with every technical requirement” of the APA constitutes harmless error because it did not prevent the agency from achieving what the CDCR considers the overarching purpose of the APA: “providing an opportunity for those affected by the regulation to provide input about it.” Emphasizing the “wealth of public participation” the agency afforded, the CDCR points out that it responded to 29,416 separate pieces of correspondence submitted by groups and individuals interested in the proposed lethal injection protocol, posted notice of the regulatory action in all 33 California prisons, and held a lengthy hearing at which 102 people provided input. The CDCR‟s view of the purpose of the APA is far too limited and simplistic. It is of course true, as the CDCR repeatedly reminds us, that the APA is designed “to provide a procedure whereby people to be affected may be heard on the merits of the proposed rules” (Armistead v. State Personnel Board (1978) 22 Cal.3d 198, 204), and to ensure “meaningful public participation in the adoption of administrative regulations by state agencies. (California Optometric Assn. v. Lackner (1976) 60 Cal.App.3d 500, 506; Voss 13 v. Superior Court (1996) 46 Cal.App.4th 900, 908-909.) But affected people cannot be thought to have been heard “on the merits,” and public participation cannot be considered “meaningful,” simply because large numbers of interested people were provided an opportunity to be heard. The public participation contemplated by the APA is not a numbers game. A hearing is “on the merits” and “meaningful” only if the interested public has timely received all available information that is relevant to the proposed regulations, accurate, and as complete as reasonably possible. The public that participated in the CDCR‟s rulemaking process was not so fully informed. The trial court invalidated the lethal injection protocol in its entirety primarily due to the consequences of the CDCR‟s noncompliance with three provisions of the APA: section 11346.2, subdivision (b), which pertains to the content of the ISOR; section 11346.9, subdivision (a), which pertains to the content of the FSOR; and section 11347.3, which defines the rulemaking file required to be published in the California Regulatory Notice Register and made available to the interested public. As we have said, the CDCR violated these provisions by failing to set forth (in both the ISOR and FSOR) alternatives to the proposed three-drug lethal injection protocol; by failing to provide a rationale for rejecting those alternatives; by failing to explain, with supporting documentation, why the three-drug alternative was superior to the use of a single drug; by falsely representing that it selected the three-drug alternative on the basis of the Supreme Court decision in Baze, supra, 553 U.S. 35; by failing to include documents required to be disclosed in its rulemaking file; and by failing to make the rulemaking file available for public inspection until six weeks after it was required to do so, when less than three weeks remained in the period within which public comment was allowed. The requirements violated by the foregoing conduct are certainly not, as the CDCR says, merely “technical.” The “enormous amount of public participation” for which the CDCR takes credit—which was undoubtedly primarily attributable to the high level of public interest in the death penalty—cannot diminish the significance of these failures; otherwise, rulemaking in areas of high public interest would be subject to a less rigorous standard of 14 compliance than that applicable to rulemaking in areas of lesser interest to the public, which would be absurd. More importantly, the aim of the APA is not just a high level of public participation in the rulemaking process, but a high level of “meaningful” participation in that process. (California Optometric Assn. v. Lackner, supra, 60 Cal.App.3d at p. 506; Voss v. Superior Court, supra, 46 Cal.App.4th at pp. 908-909.) Meaningful public participation on the merits of a proposed regulation takes place only when there is actual compliance with the “basic minimum procedural requirements for the adoption, amendment, or repeal of administrative regulations” established under the APA. (§ 11346, subd. (a).) These include timely provision to the public of a statement of the purpose of the proposed regulations, the rationale of the agency‟s determination that the regulations are necessary to carry out that purpose, the information or documents the agency relied upon in proposing adoption of the regulation, the alternatives to the proposed regulation the agency considered reasonable, and the basis or bases upon which the agency rejected those alternatives. (§ 11346.2.) As we have seen, the 102 people who attended the June 30, 2010 hearing and the 29,416 who submitted written comments were not made aware (or timely made aware) of much of the information relied upon by the CDCR in proposing the three-drug protocol, and were, in fact, misled about this. Nor were they made aware of the alternatives to that protocol, which the CDCR deemed reasonable and considered, or the CDCR‟s reasons for rejecting those alternatives. As earlier noted, the CDCR‟s failure to discuss the one-drug lethal injection alternative in the FSOR, which did not correct but perpetuated omissions in the ISOR, was justifiably considered “particularly significant” by the trial court because many commentators—who felt that use of pancuronium bromide in the three-drug method “was unnecessary, dangerous, and creates a risk of excruciating pain”—believed the one-drug method superior. Nor was the public provided other important information required by the APA to be included in the rulemaking file, and that file was not made available to the public until June 11, 2009, six weeks after the CDCR published notice of the proposed regulation and less than three weeks before expiration of the public comment period. 15 Because undisputed evidence shows there was not “actual compliance” with the basic minimum procedural requirements for the adoption of administration regulations established by the APA, we shall affirm the judgment insofar as it invalidates the CDCR‟s proposed regulations in their entirety for substantial failure to comply with requirements imposed by sections 11346.2, 11346.9, subdivision (a)(4), and 11347.3, subdivisions (a) and (b).12 II. As previously explained, the trial court found that particular provisions of the proposed regulations failed to comply with the “necessity” and “clarity” requirements of the APA. The CDCR claims the trial court lacked authority to make these findings because the question whether proposed regulations satisfy these requirements is committed to the OAL, not the courts. Respondents disagree, but claim we should not address the issues because the CDCR failed to raise them in the trial court. The CDCR concedes it did not raise the issues below, but argues that an appellant may newly raise a pure issue of law presented on undisputed facts where, as here, “important issues of public policy are at issue.” (In re Marriage of Hinds (1988) 205 Cal.App.3d 1398, 1403; 12 Since the judgment we affirm declares the regulations establishing the lethal injection protocol entirely invalid, and the CDCR will need to commence a new rulemaking process, we need not determine whether the judgment can also be sustained on the ground of the trial court‟s findings that the CDCR also failed to substantially comply with provisions of the APA other than sections 11346.2, 11346.9, subdivision (a)(4), and 11347.3, subdivisions (a) and (b). As noted, one such ground is the court‟s finding that, in violation of section 11346.9, subdivision (a)(3), the CDCR failed to summarize and respond to “two dozen or so” public comments, as required by section 11346.9, subdivision (a)(3). The court concluded that “[b]y not summarizing and responding to these comments, the [agency] did not give substance to the central APA requirement that all interested persons be afforded a meaningful chance to have their objections heard and to inform the rule- maker‟s decision;” and therefore “substantially failed” to comply with subdivision (a)(3) of section 11346.9. Although this failure was among those the trial court relied upon in invalidating the three-drug protocol in its entirety, our affirmance of the judgment does not rely on this finding and nothing in this opinion is meant to suggest that we take any position on the propriety of that finding. 16 see, e.g., Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 654, fn. 2; People v. Runyan (2012) 54 Cal.4th 849, 859, fn. 3.) We agree with the CDCR that the issue whether an OAL finding of compliance with the “necessity” and “clarity” requirements of the APA is subject to judicial review is a matter of continuing public interest. It may also continue to be an issue in the rulemaking procedure mandated by our decision in this case, and is briefed by the parties. For these reasons we shall address the issue. The necessity and clarity requirements are dealt with in three different portions of the APA, which appear in articles 5, 6, and 8 of title 2, division 3, chapter 3.5 of the Government Code. Section 11346.2, in article 5 (“Public Participation: Procedure for Adoption of Regulations”), requires agencies subject to the APA to prepare and submit to the OAL a copy of the express terms of a proposed regulation, and directs them, among other things, to “draft the regulation in plain English”; that is, the regulation should be drafted “in plain, straightforward language, avoiding technical terms as much as possible, and using a coherent and easily readable style.” (§ 11346.2, subd. (a)(1).) Section 11346.2 also requires the submitting agency to provide the OAL the “rationale” for its determination that the proposed regulation “is reasonably necessary to carry out the purpose for which it is proposed.” (§ 11346.2, subd. (b)(1).) Section 11349.1, in article 6 (“Review of Proposed Regulations”), requires the OAL to review all regulations adopted pursuant to the procedure specified in article 5 and submitted to it for publication in the California Code of Regulations and “make determinations” as to, among other standards, “Necessity” and “Clarity.” (§ 11349.1, subd. (a).) “ „Necessity‟ means the record of the rulemaking proceeding demonstrates by substantial evidence the need for a regulation to effectuate the purpose of the statute, court decision, or other provision of law that the regulation implements, interprets, or makes specific, taking into account the totality of the record. For purposes of this standard, evidence includes, but is not limited to, facts, studies, and expert opinion.” (§ 11349, subd. (a).) “ „Clarity‟ means written or displayed so that the meaning of 17 regulations will be easily understood by those persons directly affected by them.” (§ 11349, subd. (c).) As earlier noted, section 11350, in article 8 (“Judicial Review”), provides that “[a]ny interested person may obtain a judicial declaration as to the validity of any regulation . . . by bringing an action for declaratory relief in the superior court in accordance with the Code of Civil Procedure.” (§ 11350, subd. (a).) The CDCR‟s claim that the review of regulations for “necessity” and “clarity” is exclusively committed to the OAL cannot be squared with the scheme described by the foregoing provisions of the APA. To begin with, section 11350 specifically authorizes a “judicial declaration” as to the validity of a regulation that has previously been promulgated. The statutory authority of the OAL is limited to the review of proposed regulations prior to their submission for publication in the California Code of Regulations Supplement and transmittal to the Secretary of State. (§ 11349.1, subd. (a).) Moreover, the APA was designed not simply to advance meaningful public participation in the rulemaking process, but also to create “ „an administrative record assuring effective judicial review.‟ ” (Voss v. Superior Court, supra, 46 Cal.App.4th at p. 908, quoting California Optometric Assn. v. Lackner, supra, 60 Cal.App.3d 500, 506.) Finally, in adjudicating the declaratory relief actions authorized by the APA, courts have entertained claims that regulations lack the “clarity” or “necessity” mandated by the APA. (See, e.g., Californians for Safe Prescriptions v. California State Bd. of Pharmacy (1993) 19 Cal.App.4th 1136, 1153-1155 [“clarity”]; California Forestry Assn. v. California Fish & Game Commission (2007) 156 Cal.App.4th 1535, 1552-1554 [“necessity”].) Like the United States Supreme Court, the California Supreme Court has emphasized that a strong presumption in favor of judicial review operates when it is claimed that an administrative agency‟s action is in excess of its delegated powers and contrary to a specific statutory prohibition. (International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 270 (International Assn. of Fire Fighters), citing Leedom v. Kyne (1958) 358 U.S. 184, 188.) Accordingly, California courts “will not infer a legislative intent to entirely deprive the 18 superior courts of judicial authority in a particular area; the Legislature must have expressly so provided or otherwise clearly indicated such an intent. [Citations.]” (International Assn. of Fire Fighters, at p. 270, citing, e.g., Garrison v. Rourke (1948) 32 Cal.2d 430, 435-436.) The Legislature that enacted the APA not only failed to indicate any intent to deprive the superior courts of authority to review an agency‟s compliance with a provision of the APA after a finding by the OAL that the agency had complied; it unambiguously indicated the opposite intent. Subdivision (c) of section 11350 states that “[t]he approval of a regulation by the [OAL] . . . shall not be considered by a court in any action for declaratory relief brought with respect to a regulation.” The text of the APA thus makes clear that initial review of a proposed regulation by the OAL is not exclusive but subordinate to judicial review. Finally, the Legislature knows how to insulate a provision of the APA from judicial review when it wants to do so. Section 11346.45, which applies to proposed regulations that “involve complex proposals or a large number of proposals that cannot easily be reviewed during the comment period,” requires the agency to involve parties who would be subject to the proposed regulations “in public discussions regarding those proposed regulations” prior to publication of the required notice. Subdivision (d) of this statute declares that “[t]he provisions of this section shall not be subject to judicial review or [to OAL review pursuant to] section 11349.1.” This express exclusion from judicial review clearly indicates the Legislature intended no others to be inferred. No such exemption from judicial review applies to the “necessity” or “clarity” requirements set forth in section 11346.2. Given the absence of any legislative indication that the “necessity” and “clarity” requirements of the APA are exempt from judicial review, the CDCR fails to rebut the presumption of judicial review of administrative agency action. The CDCR‟s contention that responsibility to review a regulation for “clarity” or “necessity” “belongs solely to the Office of Administrative Law” rests entirely on our opinion in California Assn. of Medical Products Suppliers v. Maxwell-Jolly (2011) 199 Cal.App.4th 286 (CAMPS).) In that case, the trial court denied a trade association‟s 19 petition for writ of mandate and complaint for declaratory and injunctive relief, in which it sought the invalidation of regulations adopted by the Department of Health Care Services to set upper billing limits (UBL) for providers of certain medical equipment and supplies to Medi-Cal recipients. The plaintiff in CAMPS argued that the Department‟s adoption of the UBL was outside its statutory authority and asked us to invalidate it because, among other alleged deficiencies, it lacked the minimum level of “clarity” required by the APA. We rejected the argument because we agreed with the Department that the issue “is for the Office of Administrative Law, not this court, to review pursuant to Government Code section 11349.1, subdivision (a), . . . [which] provides that „[t]he office shall review all regulations adopted . . . and make determinations using all of the following standards: [[¶] . . . [¶] (3) Clarity.‟ ” (CAMPS. at p. 319, citing Gov. Code, § 11349.1, subd. (a)(3).) CAMPS does not assist the CDCR because it does not address the pertinent substantive legal issues. To begin with, we did not in CAMPS question the appropriateness of our adjudicating the plaintiff‟s claim that the Department violated the “necessity” requirement of the APA. Concluding the UBL was “a rational response to the Department‟s efforts to prevent fraud and abuse . . . and was not arbitrary and capricious,” we saw “no basis for invalidating the UBL for lack of reasonable necessity.” (CAMPS. supra, 199 Cal.App.4th at p. 318.) Furthermore, with respect to the “clarity” requirement, the plaintiff in CAMPS failed to claim in its opening brief that (1) an unclear regulation may amount to an arbitrary and capricious act by an agency where it is too vague to provide adequate notice of the conduct proscribed or prescribed, or to provide sufficiently definite guidelines for enforcement, and (2) a regulation could be so unclear that it rises to failure to substantially comply with the APA. We expressly declined to address these issues in CAMPS because the plaintiff in that case presented those arguments only “tardily” in a reply brief, “without explanation” or “legal authority.” (CAMPS, at p. 319.) In short, we were not called upon in CAMPS to dispositively decide the authority of a trial court to review proposed regulations for compliance with the “clarity” requirement of the APA. That is not here the case. The CDCR‟s opening brief 20 takes the position that “exclusive authority to examine the regulations for clarity” rests with the OAL and respondents have contested the claim. Nor do we think Pulaski v. Occupational Safety & Health Stds. Bd. (1999) 75 Cal.App.4th 1315 (Pulaski), which we relied on in CAMPS, applicable to the case at hand. Pulaski held that a trial court abused its discretion in striking a provision in a regulation as “unnecessary surplusage and ambiguous” because “it was not the court‟s function to clarify the standard . . . ” for the administrative board, since “[t]he Legislature has expressly delegated to the OAL the responsibility for reviewing proposed regulations for „clarity,‟ „consistency‟ and „nonduplication.‟ (Gov. Code, § 11349.1, subd. (a).)” (Pulaski, at p. 1332.) There was no such abuse of discretion in the present case, as the trial court did not alter, amend, or clarify any OAL regulation. With respect to “necessity,” it simply determined the ISOR “fail[ed] to describe the purpose and/or the rationale for the agency‟s determination” that it was necessary to monitor the inmate continuously for five days prior to execution, and to document this every 15 minutes; to remove all personal property from the inmate‟s cell; and to bind inmates with waist restraints during visits. In making this ruling, the trial court cited not just the mandate of section 11346.2, subdivision (b)(1)—which requires the ISOR to state the “specific purpose of each regulation adopt[ed]” and “the rationale for the determination by the agency that each adoption . . . is reasonably necessary to carry out the purpose and address the problem for which it is proposed” (§ 11346.2, subd. (b)(1))—but also a provision of OAL‟s own regulations defining the criteria to be employed in reviewing whether proposed regulations are necessary. The OAL regulation provides that “[i]n order to meet the „necessity‟ standard of Government Code section 11349.1, the record of the rulemaking proceeding shall include” both “[a] statement of the specific purpose” of a proposed regulation, and “information explaining why each provision of the adopted regulation is required to carry out the described purpose of the provision.” (Cal. Code Regs., tit. 1, 21 § 10, subd. (b) (1), (2).)13 The court did not expand or depart from the statutory and regulatory standards but enforced them. With respect to “clarity,” the trial court found that some of the regulations will not be “easily understood by those persons directly affected by them” (§ 11349, subd. (c)), such as a provision requiring submission to the warden of information bearing on the sanity of a condemned inmate. The court pointed out that the proposed CDCR regulation on that subject (Cal. Code Regs., tit. 15, § 3349.3.2, subd. (a)(1)), which requires the inmate‟s counsel to submit such information no later than a week prior to the scheduled execution, conflicts with the CDCR‟s description of the effect of this regulation in an Addendum to the FSOR, which indicated this information could be offered to and received by the warden “at any time” prior to execution. The court apparently found the ambiguity provided insufficient notice of the duty of counsel and might interfere with enforcement of the regulation. The court also found that the term “reputable citizen” in a regulation restricting the number of witnesses to an execution “may have more than one meaning,” which also might interfere with enforcement. In making these rulings, the court cited provisions of OAL‟s regulatory guidelines establishing that “[a] regulation shall be presumed not to comply with the „clarity‟ [requirement of Government Code section 11349.1]” if, among other things, “the regulation can, on its face, be reasonably and logically interpreted to have more than one meaning” or “the language of the regulation conflicts with the agency‟s description of the effect of the regulation.” (Cal. Code Regs., tit 1, § 16, subd. (a)(1), (2).) Citation of the OAL standard of review of a claimed violation of the “clarity” requirement cannot be compared to the conduct condemned in Pulaski. Moreover, the claim that authority to review whether proposed regulations comply with the “necessity” and “clarity” 13 The OAL regulation goes on to state that the explanatory information “shall include, but is not limited to, facts, studies, or expert opinion. When the explanation is based upon policies, conclusions, speculation, or conjecture, the rulemaking record must include, in addition, supporting facts, studies, expert opinion, or other information.” (Cal. Code Regs., tit. 1, § 10, subd. (b)(2).) 22 requirements of the APA rests exclusively with the OAL, precluding judicial review, was never presented in Pulaski and certainly not decided. We conclude that, as a matter of law, the OAL‟s finding that proposed regulations comply with the “necessity” and “clarity” requirements—or comply with any of the other requirements the OAL is directed to review under section 11349.1, subdivision (a)—does not defeat the authority of the superior court to review regulations promulgated by an agency for compliance with those requirements. III. The CDCR claims the trial court erred by “incorrectly conclud[ing] that the APA required the CDCR to provide an assessment of the regulations‟ fiscal impact.” The CDCR does not advance this claim in the form of legal argument. Its contention that it should not be required to comply with this requirement is set forth in its opening brief in a single paragraph consisting of four sentences, none of which advert to any case, statute, regulation, or other legal authority. 14 “ „Appellate briefs must provide argument and legal authority for the positions taken. “When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.” ‟ (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.) „We are not bound to develop appellants‟ arguments for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.‟ (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830; see also Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2; People v. Stanley (1995) 14 The CDCR argues: “Contrary to the court‟s ruling, [the] CDCR was not required to assess the fiscal impact of the costs mentioned in the judgment, including increased staffing and overtime charges. Those are fixed costs that would be associated with any execution, whether [the]CDCR used lethal gas, a single drug, or the three-drug method set forth in the regulations. The Legislature, not [the] CDCR, has mandated executions by lethal injection. Therefore, because the bulk of the costs and fiscal impact of lethal-injection executions are caused by the fact that the Penal Code, not CDCR‟s regulation, mandates this type of execution, a fiscal impact assessment was not required in this case.” 23 10 Cal.4th 764, 793.)” (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) We could consider this argument waived, but we can easily dispose of it on the merits. The APA states that the notice of proposed adoption of a regulation “shall include” an estimate of the “additional costs or savings, both direct and indirect, that a public agency necessarily incurs in reasonable compliance with [the proposed] regulations.” (§ 11346.5, subd. (a)(6); see also Pulaski, supra, 75 Cal.App.4th 1315, 1328-1329.) The point of the CDCR‟s argument—that a fiscal impact assessment is not required here because the costs and fiscal impact of lethal-injection executions are caused by the statute authorizing this type of execution (Pen. Code, § 3604), not by the CDCR‟s regulations—seems fanciful. Since virtually all regulations subject to the APA implement a legislative enactment, acceptance of the CDCR‟s argument would render section 11346.5 meaningless. Moreover, Penal Code section 3604 does not mandate many of the administrative measures required by the proposed CDCR regulation, such as the monthly training of 20-member “lethal injection teams” and the use of particular drugs and an array of specialized medical equipment. (Cal. Code Regs., tit. 15, §§ 3349.1.2, subd. (a)(1); 3349.1.4, subd. (c)(1); 3349.4.5) As the trial court noted, the former warden of San Quentin prison, where the death penalty is carried out, stated that depending upon the way in which they were carried out, the cost of past executions has ranged from “between $70,000 to more than $200,000 per execution.” The trial court did not err in finding that a fiscal impact assessment was required. IV. In its final ruling, the trial court pointed out that the CDCR has not promulgated regulations pertaining to execution by means of lethal gas or the execution in any way of female condemned inmates, and therefore no regulatory authority “to carry out the execution of condemned inmates by lethal gas, or to execute any condemned female inmate.” Apparently on this basis, the judgment executed and filed by the court declares that CDCR “is permanently enjoined from carrying out the execution of any condemned inmate by lethal gas unless and until regulations governing execution by lethal gas are 24 drafted and approved following successful completion of the APA review and public comment process,” and also “permanently enjoined from carrying out the execution of any female inmate unless and until regulations governing the execution of female inmates are drafted and approved” pursuant to the APA. The CDCR claims it was error to enjoin it from carrying out executions by means of lethal gas and of female condemned inmates because respondents challenged only the lethal-injection regulations,15 and the trial court found that respondents lacked standing to raise claims concerning condemned female inmates. The issues of execution by lethal gas and execution of condemned female inmates were raised below in connection with respondents‟ claim that the proposed regulation incorporated documents pertaining to these matters by reference, without subjecting them to the APA review process. (Cal. Code Regs., tit. 1, § 20.) The trial court rejected the claim because the CDCR represented that procedures regarding the use of lethal gas and the execution of female condemned inmates did not then exist, “would be the subjects of separate documents and/or regulations,” and were not improperly incorporated by reference in the proposed regulations. “That said,” the court observed, “unless and until these prospective, separate documents/regulations have been drafted and approved following successful completion of the APA review and public comment process, the [CDCR] has no authority under [Cal. Code] Regs., tit. 15, §§ 3349-3349.4.6, to carry out the execution of condemned inmates by lethal gas, or to execute any condemned female inmate.” Apparently on the basis of this judicial observation, the judgment, which at the request of the court was prepared by respondents‟ counsel, permanently enjoins the CDCR “from carrying out the execution of any condemned inmate by lethal gas” and “from carrying out the execution of any female inmate” unless and until regulations 15 The provision of the Penal Code granting persons sentenced to death “the opportunity to elect to have the punishment imposed by lethal gas or lethal injection” (Pen. Code, § 3604, subd. (b)), is qualified by the proviso that “if either manner of execution . . . is held invalid, the punishment of death shall be imposed by the alternative means.” (Pen. Code, § 3604, subd. (d).) 25 governing these matters “are drafted and approved following successful completion of the APA review and public comment process.” So far as the record shows, the CDCR has never indicated any intent to execute condemned inmates by means of lethal gas, or to execute female condemned inmates in any manner, before it has promulgated regulations pertaining to such executions that comply with the requirements of the APA. Indeed, in response to our inquiry, the CDCR has here specifically acknowledged that, under Morales v. California Dept. of Corrections & Rehabilitation, supra, 168 Cal.App.4th 729, it cannot execute condemned female inmates or carry out any executions by lethal gas without promulgating regulations regarding such executions that comply with that Act. Since these matters have never been placed at issue in this litigation, the trial court‟s comments regarding execution by means of lethal gas and the execution of female condemned inmates are gratuitous, as are the related provisions of paragraphs 4 and 5 of the judgment. This case is simply not among those in which the granting of injunctive relief is statutorily authorized. (Code Civ. Proc., § 526.) DISPOSITION For the foregoing reasons, paragraphs 4 and 5 of the judgment are hereby vacated. The judgment is affirmed insofar as it declares that the CDCR‟s lethal injection protocol (Cal. Code Regs., tit. 15, §§ 3349-3349.4.6) is invalid for substantial failure to comply with the requirements of the APA, and permanently enjoins the CDCR from carrying out the execution of any condemned inmate by lethal injection unless and until new regulations governing lethal injection execution are promulgated in compliance with the APA. Each party shall bear its own costs on appeal. 26 _________________________ Kline, P.J. We concur: _________________________ Lambden, J. _________________________ Richman, J. A135290, Sims et al. v. California Department of Corrections and Rehabilitation, et al. 27 Trial Court: Marin County Superior Court Trial Judge: Honorable Faye D‟Opal Attorneys for Appellants: Kamala Harris, Attorney General Jonathan Wolff, Sr. Asst. Atty. General Thomas S. Patterson, Super. Deputy A.G. Mitchell J. Quinn, Deputy Attorney General Attorneys for Respondents: Arnold & Porter LLP Steven L. Mayer Julian Y. Waldo Ginamarie Caya 28	{ "pile_set_name": "FreeLaw" }
853 P.2d 553 (1993) 123 Idaho 808 FRONTIER FEDERAL SAVINGS AND LOAN ASSOCIATION, Plaintiff-Respondent, v. Harlan D. DOUGLASS and Maxine H. Douglass, husband and wife; and Steven J. Hassing, a single man, Defendants-Appellants. No. 18748. Supreme Court of Idaho, Boise, October 1992 Term. April 23, 1993. Rehearing Denied June 18, 1993. 554 Cooke, LaManna, Smith & Cogswell, Sandpoint, Delay, Curran, Thompson & Pontarolo, P.S., of Spokane, WA, and Elam, Burke & Boyd, Boise, for defendants-appellants. Joseph P. Delay argued. Eberle, Berlin, Kading, Turnbow & McKlveen, Chtd., Boise, and Stoel, Rives, Boley, Jones & Grey, Boise, for plaintiff-respondent. Dale G. Higer argued. McDEVITT, Chief Justice. BACKGROUND AND PRIOR PROCEEDINGS On February 3, 1989, respondent, Frontier Federal Savings and Loan Association ("Frontier"), filed a complaint against appellants, Harlan D. Douglass, Maxine H. Douglass, and Steven J. Hassing ("Douglass and Hassing"). Frontier alleged that Douglass and Hassing executed a note and deed of trust upon certain real property in Kootenai County, Idaho, dated October 3, 1985, to secure indebtedness to Frontier in the amount of $1,300,000.00. On July 1, 1988, Frontier alleged that Douglass and Hassing failed to pay the monthly installment due on the note. As a result, Frontier effected a nonjudicial foreclosure of the deed of trust, and held a trustee's sale on February 2, 1989. At the time of sale, Frontier alleged the following amounts due on the note: (1) principal in the amount of $1,293,608.21; (2) interest in the amount of $84,536.49; and (3) late charges in the amount of $3,211.88. In addition, Frontier alleged that it incurred the following expenses: (1) taxes and insurance on the real property in the amount of $4,235.37; (2) trustee fees and costs in the amount of $4,094.30; (3) appraisal fees in the amount of $3,200.00; and (4) attorney fees in the amount of $600.00. 555 Frontier purchased the real property at the trustee's sale for $869,000.00. Applying this figure and the $20,606.01 in net rents received from the property to the above-listed amounts due and fees and costs incurred, Frontier alleged that Douglass and Hassing still owed $500,680.24 plus interest from February 2, 1989, to Frontier. Frontier also requested $25,000.00 in attorney fees pursuant to the term of the note. After the complaint was filed, both parties moved for summary judgment. The district court granted Frontier's motion for summary judgment, and entered an order requiring Douglass and Hassing to pay Frontier $241,811.46, interest at $36.65 per day from May 1, 1990, until the date of the judgment, and attorney fees and costs. ISSUES RAISED ON APPEAL Douglass and Hassing raise a number of issues on appeal to this Court. First, they argue that Frontier (the beneficiary) was precluded from recovering a statutory deficiency judgment allowed by I.C. § 45-1512 by waiver or estoppel because the notice of trustee's sale stated that "[t]he beneficiary elects to sell or cause the trust property to be sold to satisfy said obligation...." (Emphasis appellant's.) Second, they argue that the sale was invalid, precluding a deficiency judgment, due to multiple violations of the nonjudicial deed of trust foreclosure statute. In this regard, Douglass and Hassing point to the following: 1. Frontier failed to nominate First American Title Insurance Company ("First American") as successor trustee to Pioneer Title Company ("Pioneer") in writing pursuant to I.C. § 45-1504(2), after Pioneer's resignation as trustee on September 7, 1988; 2. Frontier failed to obtain Pioneer's resignation by failing to serve notice of intention to appoint a successor trustee upon Pioneer and Douglass and Hassing, pursuant to I.C. § 45-1504(2); 3. Frontier requested that notice of default be issued by First American when it was not the trustee, rather than by Pioneer; 4. The appointment of First American as trustee was made before the resignation of Pioneer as evidenced by the order in which they were recorded; 5. Frontier failed to deposit the deed of trust and note with the trustee as required under the terms of the deed of trust; 6. The trustee's deed provides that "the beneficiary made demand upon said Trustee to sell said property pursuant to the terms of said deed of trust." Frontier failed to make such demand upon Pioneer, and any such demand made on First American was not made on the then-existing trustee; 7. The trustee's deed certification of acknowledgment was defective because one signator did not sign in the presence of a notary; 8. The trustee's deed was void because it was not executed by the trustee because of improper resignation and appointment; and 9. The trustee breached its fiduciary relationship with Douglass and Hassing under the deed of trust by acting solely for and on behalf of Frontier. Further, Douglass and Hassing argue that the district court erred in calculating damages, that this Court should reverse the district court based upon I.R.C.P. 54(d), 54(e), and I.C. §§ 12-120 or 12-121, and that if this Court reverses the district court, they are entitled to attorney fees and costs on appeal pursuant to I.A.R. 41. Finally, Frontier requests attorney fees on appeal. ANALYSIS A. Argument Regarding Waiver and Estoppel. The thrust of Douglass and Hassing's argument goes to the language of the notice of trustee's sale and similar language in the notice of default: "[t]he beneficiary elects to sell or cause the trust 556 property to be sold to satisfy said obligation." Essentially, Douglass and Hassing are saying that Frontier has waived or is estopped from asserting its right to a deficiency judgment, as set forth in I.C. § 45-1512, because the relevant language in the notice of trustee's sale and notice of default provides that the sale of the property will satisfy the obligation. Idaho Code § 45-1505 (1957)[1] sets forth the conditions under which the trustee may foreclose a trust deed by advertisement and sale. It provides: 45-1505. Foreclosure of trust deed, when. The trustee may foreclose a trust deed by advertisement and sale under this act if: (1) The trust deed, any assignments of the trust deed by the trustee or the beneficiary and any appointment of a successor trustee are recorded in mortgage records in the counties in which the property described in the deed is situated; and (2) There is a default by the grantor or other person owing an obligation the performance of which is secured by the trust deed or by their successors in interest with respect to any provision in the deed which authorizes sale in the event of default of such provision; and (3) The trustee or beneficiary shall have filed for record in the office of the recorder in each county wherein the trust property, or some part or parcel, is situated, a notice of default identifying the deed of trust by stating the name or names of the trustor or trustors and giving the book and page where the same is recorded, or a description of the trust property, and containing a statement that a breach of the obligation for which the transfer in trust security has occurred, and setting forth the nature of such breach and his election to sell or cause to be sold such property to satisfy such obligation; and a copy of such notice by registered or certified mail to any person requesting such notice of record as hereinafter provided. (4) No action, suit or proceeding has been instituted to recover the debt then remaining secured by the trust deed, or any part thereof, or if such action or proceeding has been instituted, the action or proceeding has been dismissed. (Emphasis added.) Idaho Code § 45-1512 permits a beneficiary under a deed of trust to seek a deficiency judgment after a trustee's sale under a deed of trust. It provides: 45-1512. Money judgment Action seeking balance due on obligation. At any time within 3 months after any sale under a deed of trust, as hereinbefore provided, a money judgment may be sought for the balance due upon the obligation for which such deed of trust was given as security, and in such action the plaintiff shall set forth in his complaint the entire amount of indebtedness which was secured by such deed of trust and the amount for which the same was sold and the fair market value at the date of sale, together with interest from such date of sale, costs of sale and attorney[] fees. Before rendering judgment the court shall find the fair market value of the real property sold at the time of sale. The court may not render judgment for more than the amount by which the entire amount of indebtedness due at the time of sale exceeds the fair market value at that time, with interest from date of sale, but in no event may the judgment exceed the difference between the amount for which such property was sold and the entire amount of the indebtedness secured by the deed of trust. The above-quoted statutes, I.C. § 45-1505 (1957) and I.C. § 45-1512, were both enacted in 1957 as part of an act relating to deeds of trust. An Act Relating To Deeds Of Trust, ch. 181, §§ 5, 12, 1957 Idaho Session Laws 345, 347, 351-52. Thus, these statutes are in pari materia and must be construed together as parts of the act. Curtis v. Canyon Highway Dist. No. 4, 122 Idaho 73, 82, 831 P.2d 541, 550 557 (1992); Achenbach v. Kincaid, 25 Idaho 768, 775, 140 P. 529, 531 (1914). Subdivision (3) of I.C. § 45-1505 requires that the trustee or beneficiary file a notice of default identifying the deed of trust and containing, among other things, a statement setting forth his or her "election to sell or cause to be sold such property to satisfy such obligation." (Emphasis added.) Douglass and Hassing argue that the relevant language of the notice of trustee's sale and notice of default, regarding Frontier's election to sell the property to satisfy the obligation, is inconsistent with I.C. § 45-1512, resulting in Frontier waiving or being quasi-estopped from asserting its right to seek a deficiency judgment. However, it is clear that the relevant language in the notice of trustee's sale and notice of default is required by I.C. § 45-1505(3). It is well settled that "[w]aiver is a voluntary, intentional relinquishment of a known right or advantage." Tiffany v. City of Payette, 121 Idaho 396, 403, 825 P.2d 493, 500 (1992), quoting Brand S Corp. v. King, 102 Idaho 731, 734, 639 P.2d 429, 432 (1981). Nothing in the record before this Court establishes that Frontier voluntarily and intentionally relinquished its right to seek deficiency judgment. We must construe I.C. §§ 45-1505 and 45-1512 together, since they are both parts of the same act, directly relating to the same subject matter. If Douglass' and Hassing's argument were correct, I.C. § 45-1505(3) would render I.C. § 45-1512 meaningless. Every time a beneficiary or trustee complied with the requirements of I.C. § 45-1505(3), they would not be permitted to seek deficiency judgment after the sale because, as appellant argues, they would have agreed to accept the amount received at the sale in full satisfaction of the obligation. In order for quasi-estoppel to apply, Frontier would have had to have taken an earlier position, with knowledge of the facts and its rights, inconsistent with its later position that it was entitled to seek deficiency judgment, to the detriment of Douglass and Hassing. KTVB, Inc. v. Boise City, 94 Idaho 279, 282, 486 P.2d 992, 994 (1971). The record clearly shows that Frontier complied with the relevant statutes. In other words, Frontier's actions evidence its intent to follow the statutory scheme so that it could seek a deficiency judgment on Douglass' and Hassing's note obligation. B. Argument Regarding Multiple Violations of the Nonjudicial Deed of Trust Foreclosure Statute, I.C. § 45-1504. Douglass and Hassing essentially argue that there were cumulative errors made by Frontier and, these errors, taken in toto, require this Court to reverse the district court. Our review of the record, however, establishes that none of the alleged errors are violations of the statute. Subdivision (2) of I.C. § 45-1504 provides: (2) In the event of death, dissolution, incapacity, disability or resignation of the trustee, the beneficiary may nominate in writing another qualified trustee. Provided, however, that the beneficiary may, for any reason obtain the resignation of the trustee by serving upon the trustee and the grantor in the deed of trust, at their last known address, a notice of intention to appoint a successor trustee. Said notice shall be given by registered or certified mail, and twenty (20) days after the date of mailing the notice of intention to appoint a successor trustee the beneficiary may nominate a successor trustee. Upon recording in the mortgage records of the county or counties in which the trust deed is recorded of the appointment of a successor trustee, the successor trustee shall be vested with all of the powers of the original trustee. Provided that a trustee may not be changed at the beneficiary's nomination after foreclosure has commenced by the filing of the notice of default and is proceeding timely. As to Douglass' and Hassing's first assignment of error, regarding the nomination of First American as successor trustee to Pioneer, we find no error. The record clearly shows that Pioneer voluntarily resigned as trustee on September 7, 1988, 558 and First American was appointed successor trustee on the same day. Frontier's actions in this regard comply with the language of the statute. Douglass' and Hassing's second assignment of error, regarding Frontier's failure to serve notice of its intention to appoint First American as successor trustee, also fails. The second and third sentences of I.C. § 45-1504(2), which provide for notice, are clearly intended to apply to those situations where the trustee refuses to resign. Here, Pioneer voluntarily resigned. The third assignment of error, regarding Frontier's request for issuance of the notice of default by First American, is also not error. There is no requirement that a resignation of trustee be recorded. The fact is that First American was appointed successor trustee and that appointment was recorded, thus giving First American all powers of the original trustee, I.C. § 45-1504(2), and complying with the first of three requirements before foreclosure could proceed, I.C. § 45-1505(1). Furthermore, the record shows that the notice of default was executed after Frontier had appointed First American as successor trustee. The fourth assignment of error, regarding the appointment of First American before the recordation of Pioneer's resignation, also must fail. There is no requirement that the resignation of a trustee be recorded. The fifth assignment of error, regarding deposit of the deed of trust and note with the trustee as required by the deed of trust, also fails. The record shows that First American received the notice of default, which provided that "a breach of the obligation for which such transfer has occurred ... and that the beneficiary elects to sell or cause the trust property to be sold to satisfy said obligation." Furthermore, the deed of trust does not state when the deed of trust and note must be deposited with the trustee. Based on these facts, we conclude that the district court correctly ruled that Douglass and Hassing were not prejudiced by any delay in providing the instruments to First American. The sixth assignment of error, regarding demand to sell upon the trustee, is also not error. Once again, Douglass and Hassing are arguing that First American was not the trustee at the time Frontier made demand upon it. As we have already held, the record clearly shows that Pioneer had resigned as trustee and that First American was properly appointed as trustee. The seventh assignment of error, regarding a signator of the trustee's deed not signing in the presence of a notary, also fails. This argument relates only to whether the deed could be recorded and not to the validity of the deed or sale. The eighth assignment of error, relating to execution of the trustee's deed, is simply another attack on whether First American was properly appointed as successor trustee, and, for the reasons stated above, fails. The ninth assignment of error, regarding the trustee fiduciary relationship with the grantors, also fails. The record shows that First American accepted Frontier's bid of $869,000.00. Frontier, acting through First American, was the only bidder at the sale, and the trustee under the terms of the notice of sale was obligated to accept Frontier's bid. Idaho Code § 45-1506(8) dictates, inter alia, that: "[t]he trustee shall sell the property in one parcel or in separate parcels at auction to the highest bidder. Any person, including the beneficiary under the trust deed, may bid at the trustee's sale...." (Emphasis added.) In addition, I.C. § 45-1506(9) provides that "[t]he purchaser at the sale shall forthwith pay the price bid and upon receipt of payment the trustee shall execute and deliver the trustee's deed to such purchaser. ..." (Emphasis added.) Frontier was the only bidder at the sale. Thus, First American was obligated to accept Frontier's bid and deliver the trustee's deed to Frontier upon receipt of payment. C. Argument Regarding the District Court's Calculation of Damages. Idaho Code § 45-1512 (which is quoted above) establishes the beneficiary's 559 right to seek a deficiency judgment, as well as the formula for calculating that judgment. The statute states that "the plaintiff shall set forth in his [or her] complaint the entire amount for which the same was sold and the fair market value at the date of sale, together with interest from such date of sale, costs of sale and attorney fees." I.C. § 45-1512. This amount may include such items as "taxes, assessments, premiums for insurance or advances made by a beneficiary in accordance with the terms of the deed of trust...." I.C. § 45-1506(12). The district court's award complied with these limitations. The deed of trust provides that in the event of default, the holder of the note can declare the whole amount due and payable "and the same shall thereafter bear interest at the rate of sixteen percent (16%)." The note provides for the payment of interest until the entire indebtedness is fully paid. This language clearly gives Frontier a right to receive the 16% interest it alleged in the amounts owing. We hold that Frontier is entitled to this rate of interest until the date of judgment. D. Frontier's Request for Attorney Fees on Appeal. Frontier requests attorney fees on appeal pursuant to provisions in the note, deed of trust, and I.C. §§ 12-120(3) and 121. The first provision of the note, appearing in the second paragraph on page 3, states: Should any action be brought for the collection of any principal or interest of this Note, the undersigned promises to pay all costs thereof, including such additional sum as attorney fees as the court may adjudge reasonable. Douglass and Hassing were the "undersigned" who promised to pay reasonable attorney fees in the event that an action was brought to collect any principal or interest. Pursuant to this provision, and because Frontier is the prevailing party on appeal, we award reasonable attorney fees on appeal to Frontier. See Hellar v. Cenarrusa, 106 Idaho 571, 578, 682 P.2d 524, 531 (1984) ("attorney fees are to be awarded only where they are authorized by statute or contract"). For the foregoing reasons, we affirm the decision of the district court. Costs and attorney fees on appeal to Frontier. JOHNSON and TROUT, JJ., concur. BAKES, J., Pro Tem (following retirement on February 1, 1993), concurs. BISTLINE, Justice, dissenting. This office originally circulated to the Court membership a final draft of a proposed majority opinion, much of which now comprises this dissenting opinion. That opinion failed to obtain a majority, and now is meaningless ancient history, other than serving to demonstrate the collegiality of the Court as presently constituted. Justice McDevitt, in authoring his opinion which has gained a majority, embodies much of what this office wrote earlier. Putting that observation aside, I add that Justice McDevitt's majority opinion is well written; it represents one view. I write to set forth my initial views which, in comparison to the opinion drafted by Justice McDevitt, primarily relate to the main issue, i.e., what message did Frontier send to Douglass and Hassing in advising them that Frontier was going to sell the Douglass trust property for the purpose which Frontier stated, that is, to satisfy such obligation. Justice McDevitt has written similarly: Subdivision (3) of I.C. § 45-1505 requires that the trustee or beneficiary file a notice of default identifying the deed of trust and containing, among other things, a statement setting forth his or her `election to sell or cause to be sold such property to satisfy such obligation.' There is no ambiguity whatever in the immediately foregoing statement, and it is a true and accurate statement. It was incumbent upon Frontier to select the language it would use, and it did so. Frontier in retrospect likely would prefer that the language of I.C. § 45-1505(3) stated that the property would be sold "toward satisfaction" 560 of the unpaid debt. But that language was not used, and things are as Justice McDevitt states, i.e., the Douglass property will be sold to satisfy the debt obligation of Douglass (including his co-defendants). Language clearly written, as is the above quoted sentence, leaves no room for tortuous misconstruction. Frontier complains of the statutory language because of the havoc which that language may wreak on its plan to reap yet a second harvest from whatever holdings Douglass and Hassing may have left. That lament would be better made to the legislature, which was the authoring body of I.C. § 45-1505(3). Equally clear, Frontier has taken no remedial action seeking the legislature's revision of I.C. § 45-1505(3), thus evidencing the wise decision to let a sleeping dog lie. Justice McDevitt next states: Douglass and Hassing argue that the relevant language of the notice of trustee's sale and notice of default, regarding Frontier's election to sell the property to satisfy the obligation, is inconsistent with I.C. § 45-1512, resulting in Frontier waiving or being quasi-estopped from asserting its right to seek a deficiency judgment. However, it is clear that the relevant language in the notice of trustee's sale and notice of default is required by I.C. § 45-1505(3). It is well settled that `[w]aiver is a voluntary, intentional relinquishment of a known right or advantage.' Tiffany v. City of Payette, 121 Idaho 396, 403, 825 P.2d 493, 500 (1992), quoting Brand S. Corp. v. King, 102 Idaho 731, 734, 639 P.2d 429, 432 (1981). Nothing in the record before this court establishes that Frontier voluntarily and intentionally relinquished its right to seek deficiency judgment. Little needs to be said relative to the above statement that "it is clear that the relevant language in the notice of trustee's sale and notice of default is required by I.C. § 45-1505(3)." True enough, the language so reads. It would amount to fundamental error or lack of procedural due process if a party were not given notice of a proceeding wherein he or she is involved. But the fact still remains that the statute does not speak in terms of selling such trust property and applying the proceeds toward satisfaction of the debtor's obligation. The statute speaks in terms of "selling such property to satisfy such obligation," a difference with a distinction, a distinction which Frontier is not at liberty to disregard not if this Court is to retain its integrity. In the paragraph above quoted, Justice McDevitt correctly illustrates the contentions of Douglass and Hassing relevant to the particular statutory language which they assert is required by I.C. § 45-1505(3). That provision requires a notice of default identifying the deed of trust, a borrower's breach, and a trustee's "election to sell or cause to be sold such property to satisfy such obligation." The "to satisfy" language is entirely without ambiguity; "toward satisfaction" would be equally so. Everyone knows when paying on an account, he or she does not pay off the account. It might be perchance that the proceeds from a mortgage foreclosure sale would satisfy the debt, but equally likely, the proceeds realized on selling out an impoverished farmer might not satisfy his or her indebtedness, in which event the forecloser may, or may not, discover other assets. Judge Magnuson attempted to shed light on these circumstances wherein neither of the parties involved bears any responsibility for the questionably worded statute: [T]he defendants point to the phrase: `And that [sic, the] beneficiary elects to sell or cause the trust property to be sold to satisfy said obligation,' which was set forth in the closing sentence of the Notice of Default, issued by Frontier on September 7, 1988. Defendants claim the plaintiff thereby waived any claim to a deficiency judgment. The defendants also point to the following sentence used in the Notice of Trustee's Sale: `Said sale will be made ... to satisfy the obligation secured by and pursuant to the power of sale conferred in the deed of trust executed by (defendants) to (First American, as successor) 561 for the benefit and security of (frontier) ...' This subject was also mentioned a second time in the Notice of Trustee's Sale, wherein it was stated: `The beneficiary elects to sell or cause the trust property to be sold to satisfy said obligation.' An examination of the Notice of Default shows the first quotation was a part of the printed form used by Frontier. Such examination of the Notice of Trustee's Sale indicates the first subject quotation therein was a part of the printed form, while the second quotation therein was set out in typewritten form. The last three quotations above form the basis for defendants' contention that Frontier somehow waived its right to later claim a deficiency, or forfeited such right, inasmuch as these instruments did not mention or warn the defendants that a claim for deficiency may be later made against them.[2] This Court understands these quotations regarding the `satisfaction of obligation,' to have been used to describe the purpose of the sale, rather than to indicate, in anyway [sic], a waiver by the beneficiary of any claim to a deficiency.[3] `Waiver' is defined by Black's Law Dictionary, Third Edition as: `The intentional or voluntary relinquishment of a known right.' It is distinguished from `estoppel,' which is based on some misleading conduct or language of one person, which, being relied on, operates to the prejudice of another. In the Idaho case of Brand S v. King, 103 Ida. 731 [sic 102 Idaho 731], at 734 [639 P.2d 429], it was stated that waiver is a voluntary, intentional relinquishment of a known right or advantage.[4] In the case of Riverside Development v. Ritchie, 103 Ida. 515 [650 P.2d 657], the court said the existence of a waiver is ordinarily a question of fact[5] and if there 562 is substantial evidence in the record to support such waiver it is for the trier of fact to determine whether the evidence establishes such waiver. In that case, both sides moved for a summary judgment on the same evidentiary facts and effectively stipulated there was no genuine issue of material fact. The Supreme Court stated in the Riverside case that, where the matter is to be tried by the court rather than a jury, summary judgment still may be appropriate despite the possibility of conflicting inferences, because the court alone will be responsible for resolving the conflict between those inferences. Their review of the waiver issue extended only to determining if the record before them was sufficient to justify the district court's finding that Riverside did not waive its right to terminate the lease.... On [103 Idaho] p. 520 [650 P.2d 657] of their decision, they stated that waiver is foremost a question of intent, and in order to establish waiver the intention to waive must clearly appear.... They upheld the trial court's entry of a partial summary judgment which included a finding that the lessor did not waive its right to terminate the subject lease. The Idaho Court of Appeals addressed the subject of waiver in the case of Jones v. Maestas, 108 Ida. 69 [696 P.2d 920], which held waiver will not be inferred except from a clear and unequivocal act manifesting an intent to waive, or from conduct amounting to estoppel. In our instant case, this Court concludes there is not any clear evidence indicating waiver by Frontier or evidence of its conduct which would give rise to estoppel as a matter of law. To establish a waiver, the intention to waive must clearly appear. Seaport v. Dippel, 112 Ida. 736 [735 P.2d 1047] (App.).[6] This Court concludes there was not any statutory or contractual requirement that any notice to the defendants specifically recite the beneficiary of a deed of trust intended to claim a deficiency. The Idaho legislature in enacting Section 45-1505(3) utilized the phrase `to satisfy such obligation' to mean the proceeds of the sale would be applied to the obligation.[7] Their enactment of this section 563 of the Idaho Code was made at the same time as they enacted Section 45-1512 Idaho Code which provides the right of a beneficiary of a trust deed to seek a money judgment for the balance due (deficiency) upon the obligation for which such deed of trust was given as security. (See Chapter 181 of the 1957 Session Laws of the State of Idaho.) The right to seek and obtain a deficiency judgment is provided for by Idaho statute and need not be specifically claimed or reiterated in the notice of default or notice of trustee's sale.[8] After this Court's review of the facts presented herein, it concludes the defendants, including Harlan Douglass, were not justified in relying upon the aforesaid quotations as a waiver by Frontier of any rights it had to later seek a deficiency judgment. This Court concludes the documents related to Pioneer's resignation as trustee, Frontier's appointment of First American as trustee, Frontier's Notice of Default and the First American's Notice of Trustee's Sale all fulfilled the requirements of the pertinent statutes or the deed of trust, and they were properly executed and recorded. All parties entitled to receive notice of these proceedings did receive such notice. The trustee's sale was properly conducted. Judge Magnuson's Memorandum Opinion, R. 164-68 (emphasis and footnotes added). The notice of default mentioned above in Judge Magnuson's written opinion bears the signatures of two Frontier vice presidents, duly acknowledged on the same date as the instrument was executed. The district court also discussed other contentions of both parties, none of which are germane because of the dispositive conclusion which cannot be ignored relative to the waiver and/or estoppel issue. Both notices of sale and of default correctly describe the property which Douglass deeded in trust as security for the benefit of Frontier, and its recordation. There is no issue in regard to the accuracy or validity of those notices. The total amount of the unpaid and past due obligation set forth on the notices was $1,293,608.21, plus accruing interest, all due as of September 28, 1988. Turning to Douglass's first contention, both Frontier's notice of default and the trustee's notice of sale contained the following language, the application of which is disputed: "[t]he beneficiary elects to sell or cause the trust property to be sold to satisfy said obligation," R. Vol. I, pp. 100-01 (emphasis added), which appeared once in the notice of default as part of the printed form, and twice in the notice of sale, as part of the printed form and as a typewritten addition. In essence, Douglass contends that the language used in both of Frontier's notices inappropriately misled him into understanding that he was not going to be pursued for any resulting deficiency. Otherwise stated, his perception was that Frontier had made the determination to expose the property to public sale for whatever amount the property would fetch and forego any attempt to obtain a deficiency judgment, which might very well be valueless. Accordingly, he has asserted that the above language resulted in estoppel and/or waiver by Frontier of its right under I.C. § 45-1512 to seek a deficiency judgment after the completion of the foreclosure sale.[9] Although this procedure is available under applicable Idaho statutes, it may be given up by a specific waiver, and also by conduct amounting to estoppel or waiver. The district court, as noted hereinabove, 564 understood the contested language as serving no function other than describing the general purpose of the sale, i.e., which was that there was going to be an auction sale conducted by Frontier's appointed and instructed trustee. Accordingly, as noted above, the court summarily determined that Frontier had not, by waiver or by conduct giving rise to estoppel, precluded itself from pursuing Douglass for a deficiency judgment. The legal effect of an unambiguous written document is a matter of law for this Court as well as for the trial court, over which we exercise free review. Latham v. Garner, 105 Idaho 854, 673 P.2d 1048 (1983). The initial inquiry for determining whether a document is ambiguous is also a matter of law. Prouse v. Ransom, 117 Idaho 734, 791 P.2d 1313 (Ct.App.1989) (citing Clearwater Minerals Corp. v. Presnell, 111 Idaho 945, 729 P.2d 420 (Ct.App. 1986)). In determining the effect of the notices of default and of sale received by Douglass, "to be sold to satisfy said obligation" is reasonably susceptible to only one meaning. "To satisfy" is not vague, unknown phraseology but has a well-settled definition known to the general populace. "Satisfy" is defined as "to carry out the terms of ... discharge ... to meet a financial obligation to (a creditor)." Webster's Third New International Dictionary (1967). Roget's Thesaurus defines "satisfy" as "[t]o supply fully or completely," and lists as synonyms, "answer, fill, fulfill, meet." Roget's II, The New Thesaurus (1980). "Satisfy" is also an established term of art in the business world and in the judiciary. Black's defines "satisfy" as "[t]o answer or discharge, as a claim, debt, legal demand or the like.... To comply actually and fully with a demand; to extinguish, by payment or performance." Black's Law Dictionary 1342 (6th ed. 1990). Additionally, several courts have construed the term. See Boca Ratone Co. v. Commissioner, 86 F.2d 9 (3d Cir.1936), and Swaner v. Union Mortgage Co., 99 Utah 298, 105 P.2d 342 (1940) ("satisfy" means to answer or discharge, as a claim, debt, legal demand or the like); Waters v. Lanier, 116 Ga.App. 471, 157 S.E.2d 796 (1967) ("satisfaction" is the discharge of an obligation by paying a party what is due him or her, as on a mortgage, lien or contract); Pennsylvania Threshermen & Farmers Mut. Casualty Ins. Co. v. Hill, 113 Ga. App. 283, 148 S.E.2d 83 (1966) ("satisfaction" is an acceptance of full compensation for an injury); Jersey Island Dredging Co. v. Whitney, 149 Cal. 269, 86 P. 509 (1906) ("satisfaction" imports a release and discharge of the obligation in reference to which it is given); Kronebusch v. Raumin, 6 Dakota 243, 42 N.W. 656 (1889) ("satisfaction" means to comply with the rightful demands of; to give what is due to; to pay off; to requite). In notifying Douglass that Frontier intended to sell the property to satisfy the obligation owed to Frontier, Frontier implicitly represented that the debt would be thereby discharged. Significantly, not only was that language contained in the pre-printed forms, but it also had been manually typed on the printed form used for giving notice of trustee's sale. Douglass, in his affidavit, avers that he relied upon this language to his detriment. No conceivable reason has been advanced to demonstrate that Douglass was not entitled to rely upon words of the English language which were entirely clear as to import and which were wholly unattributable to him. As stated in Douglass's affidavit of December 6, 1989, he would have attended the foreclosure sale and entered a bid but for his reliance on the notices, which led him to believe that no deficiency judgment would be sought. That was an election which he was as equally free to make as was Frontier's election to auction the property which Douglass had deeded in trust as security protecting Frontier. Under such circumstances, he believed that he could let the property go for the amount which was against it. This Court should hold that his understanding of the notices received from Frontier and its appointed trustee was patently reasonable[10] and that 565 Frontier is estopped from pursuing a deficiency judgment under both estoppel and the equitable doctrine of quasi estoppel. Unlike waiver, which requires a voluntary and intentional relinquishment of a known right or advantage, quasi estoppel is not dependent on intent. Keesee v. Fetzek, 111 Idaho 360, 723 P.2d 904 (Ct.App. 1986).[11] Moreover, "concealment or misrepresentation of existing facts on the one side, or ignorance or reliance on the other is a necessary ingredient." Id. at 362, 723 P.2d at 906 (citing Evans v. Idaho State Tax Commission, 97 Idaho 148, 540 P.2d 810 (1975)); see Theriault v. A.H. Robins Co., 108 Idaho 303, 698 P.2d 365 (1985). Quasi estoppel simply "precludes a party from asserting, to another's disadvantage, a right inconsistent with a position previously taken by him." Id. 111 Idaho at 362, 723 P.2d at 906 (quoting KTVB, Inc. v. Boise City, 94 Idaho 279, 281, 486 P.2d 992, 994 (1971)). The requirements for the application of quasi estoppel are that the party against whom it is asserted has previously taken an inconsistent position, with knowledge of the facts and his rights, to the detriment of the party seeking application of the doctrine. KTVB, Inc. v. Boise City, 94 Idaho 279, 486 P.2d 992 (1971). The Court should find that the elements of quasi estoppel have been satisfied. With full awareness of its statutory right to seek a deficiency judgment, Frontier inserted language into its notices of default and sale, which language was inconsistent with later pursuing Douglass for a deficiency judgment. Actual reliance, although not necessary to quasi estoppel, see Keesee, has been established by Douglass's affidavit statement that the notices led him to forego appearing and bidding at the sale. By causing such a detriment to Douglass, Frontier has limited itself to foreclosure of the property. To hold otherwise would work an unconscionably harsh disadvantage upon Douglass. The Court should conclude that Frontier is precluded from being awarded a deficiency judgment. The Court should further hold that the elements of both estoppel and quasi estoppel are satisfied. The judgment of the district court should be reversed and the cause remanded with directions to enter judgment in favor of Douglass for costs and attorney fees. BISTLINE, Judge, dissenting on denial of petition for rehearing. PART I. Deserving of a just resolution is the defendants/borrowers' contention that they were misled by the plaintiff/lender, Frontier, into the understanding that Frontier would not pursue them for the entry of a deficiency judgment for the unpaid balance due Frontier Federal after it foreclosed on the encumbered property of the defendants. It is abundantly clear, and beyond cavil, that "the beneficiary" informed the Douglasses and Hassing that it had elected "to sell or cause the trust property to be 566 sold to satisfy said obligation." Nothing could have been more certain than Frontier's statement of the election thus made. The Douglasses and Hassing were entitled to believe that the loss of their encumbered assets, i.e., the trust property, would be sold in satisfaction of their obligation. The majority, apparently believing itself obliged to come to the rescue of Frontier Federal Savings, predicates its contrary position on the slim hypothesis that: "Every time a beneficiary or trustee complied with the requirements of I.C. § 45-1505(3), they [beneficiary or trustee] would not be permitted to seek deficiency judgment after the sale because, as [defendants] argue, they would have agreed to accept the amount received at the sale in full satisfaction of the obligation." 123 Idaho at 812, 853 P.2d at 557. That statement is accepted as sound. It is the resultant reality encountered by Frontier Federal in blindly falling into the pitfall which resulted from the legislature's poor choice of language in drafting and enacting I.C. § 45-1505. It is submitted that any attorney who is to some extent conversant with the English language, and possessed of reasonable schooling in the processes of the law, would readily see there is in fact and in truth only one correct reading of that passage. Nevertheless, the majority opinion encounters no problem in avoiding the irrefutable fact that neither plaintiff Frontier nor the Court majority are at liberty to ignore the language found in Frontier Federal's foreclosure notice: "Pursuant to I.C. § 45-1505, the trustee or beneficiary elect[s] to sell or cause to be sold such property to satisfy such obligation." The majority declines to come to grips with the realization that Frontier Federal, had it stated in its notices of default and sale that it elected to sell the trust property toward satisfaction of such obligation, would not have found itself thereafter beset, besieged, and beleaguered. If, perchance, the sale netted enough cash return to pay the due amount of defendants' indebtedness, then in that event no further proceedings would be required. In what is now ch. 15, TRUST DEEDS, particularly I.C. § 45-1505 (Vol. 8A), is found the identical language which first appeared in ch. 18, § 5(3) of the Idaho Code, approved upon enactment by declaration of an emergency, March 9, 1957: (3) The trustee or beneficiary shall have filed for record in the office of the recorder in each county wherein the trust property, or some part or parcel, is situated, a notice of default identifying the deed of trust by stating the name or names of the trustor or trustors and giving the book and page where the same is recorded, or a description of the trust property, and containing a statement that a breach of the obligation for which the transfer in trust is security has occurred, and setting forth the nature of such breach and his election to sell or cause to be sold such property to satisfy such obligation; and a copy of such notice by registered or certified mail to any person requesting such notice of record as hereinafter provided. Apparently it never occurred to the legislative personnel employed to draft the above that there could be foreclosure actions other than for total satisfaction of the borrower's indebtedness. Whoever sponsored the legislation obviously did not oversee the selection of language relative to foreclosing. Otherwise put, it is not inconceivable, but indeed likely that there have been other foreclosures whereat the lender knew and realized that a fair way to treat an impecunious borrower would be to pursue what monies could be obtained, and in that way strive to obtain some remuneration for application on the indebtedness due, i.e., toward satisfaction of the indebtedness rather than in full satisfaction. In any event, it is abundantly clear that for a long period of time, extending from enactment of I.C. § 45-1505 in the spring of 1957 to midsummer of this year 1993, a lapse of over thirty-six years, I.C. § 45-1505 has remained intact as it was first written. Moreover, it is clear and unambiguous. For over the span of more than one-third of a century that statute has provided the right in the lender to foreclose a trust deed by advertisement and sale, provided 567 that the lender (or his trustee or beneficiary), has complied with the requirements of I.C. § 45-1505, i.e., the proper filing of a notice of default which identifies the deed of trust by providing the name or names of the trustor or trustors, and giving the book and page where the same is recorded, stating the nature of the breach and his election to sell or cause to be sold such property to satisfy such obligation. Unfortunately, so it would seem, Frontier Federal did not pause to consider available options, one of which was to not make an "election to sell or cause to be sold such [trust] property to satisfy such obligation." The obligation was simply that Hassing and the Douglasses were indebted to Frontier Federal, and not in any position to avoid the foreclosure being visited upon them, according to the provisions of I.C. § 45-1505. For the reasons above and those stated in my dissenting opinion to this Court's 1993 Opinion No. 41, issued April 23, 1993, I would grant rehearing. PART II. Defendants-appellants' counsel on rehearing, Bobbi K. Dominick, a gifted writer, has researched the very narrow, single issue which is before us, and favors the Court with a well-written, fair, and dispassionate overview of the singularly not complex litigation, which is readily adopted and incorporated herein as Appendix A. APPENDIX A. A. STATEMENT OF THE ISSUES Appellants, pursuant to Rule 42 of Idaho Appellate Rules, petitioned this court for a rehearing on the following issues: (1) Did Douglass (appellants') have a right to rely on the clear, unambiguous language of the Notice of Sale which stated the property would be sold to "satisfy" the underlying obligation, thereby precluding Frontier Federal by waiver or quasi-estoppel, from asserting any right to a deficiency judgment? (2) Under the circumstances of this case, with no evidence to rebut actual reliance, and evidence of inconsistent positions of Frontier Federal, is Frontier Federal estopped, by application of the doctrine of estoppel or quasi-estoppel, to deny Douglass' right to rely on the plain, unambiguous language of the Notice of Sale? (3) Was Douglass denied his Constitutional right to due process? B. ARGUMENT The majority opinion justifies their decision by relying on provision (3) of I.C. § 45-1505. The court asserts that this statute authorizes the trustee or beneficiary to file a Notice of Default identifying the deed of trust and containing, among other things, a statement setting forth his or her `election to sell or cause to be sold such property to satisfy such obligation' (emphasis added). The court stated in its majority opinion: However, it is clear that the relevant language in the notice of trustee's sale and notice of default is required by I.C. § 45-1505(3). The majority further states that if Douglass' argument was correct, I.C. § 45-1505(3) would render I.C. § 45-1512 (the deficiency statute) meaningless. At most, the statute applies only to a Notice of Default, however, the Court extended the statute to apply to the Notice of Trustee's Sale. There is no question that provision (3) of I.C. § 45-1505 is clear and applies only to a Notice of Default. However, the Court in its majority opinion incorrectly extended the application of the statute to the Notice of Sale. In these proceedings, Douglass relied upon the Notice of Sale principally and secondarily on the Notice of Default. Douglass stated in his affidavit that he relied upon the unequivocal language in the Notice of Sale, to his detriment. This statement is uncontroverted, undisputed and is an established fact. Douglass asserts I.C. § 45-1505(3) is clear and that Douglass took the language in the Notice of Sale literally to mean that the property was sold to `satisfy' the underlying 568 obligation. This language did not authorize a deficiency action by Frontier. The language has no other interpretation. Justice Bistline in his dissent states: In determining the effect of the notices of default and of sale received by Douglass, "to be sold to satisfy said obligation" is reasonably susceptible to only one meaning. "To satisfy" is not vague, unknown phraseology but has a well-settled definition known to the general populace. "Satisfy" is defined as "to carry out the terms of ... discharge ... to meet a financial obligation to (a creditor)." Webster's Third New International Dictionary (1967). Roget's Thesaurus defines "satisfy" as "[t]o supply fully or completely," and lists as synonyms, "answer, fill, fulfill, meet." Roget's II, The New Thesaurus (1980). "Satisfy" is also an establish term of art in the business world and in the judiciary. Black's defines "satisfy" as "[t]o answer or discharge, as a claim, debt, legal demand or the like ... To comply actually and fully with a demand; to extinguish, by payment or performance." Black's Law Dictionary 1342 (6th ed. 1990). Additionally, several courts have construed the term. See Boca Ratone Co. v. Commissioner, 86 F.2d 9 (3d Cir. 1936), and Swaner v. Union Mortgage Co., 99 Utah 298, 105 P.2d 342 (1940) ("satisfy" means to answer or discharge, as a claim, debt, legal demand or the like); Waters v. Lanier, 116 Ga.App. 471, 157 S.E.2d 796 (1967) ("satisfaction" is the discharge of an obligation by paying a party what is due him or her, as on a mortgage, lien or contract); Pennsylvania Threshermen & Farmers Mut. Casualty Ins. Co. v. Hill, 113 Ga.App. 283, 148 S.E.2d 83 (1966) ("satisfaction" is an acceptance of full compensation for an injury); Jersey Island Dredging Co. v. Whitney, 149 Cal. 269, 86 P. 509 (1906) ("satisfaction" imports a release and discharge of the obligation in reference to which it is given); Kronebusch v. Raumin, 6 Dakota 243, 42 N.W. 656 (1889) ("satisfaction" means to comply with the rightful demands of; to give what is due to; to pay off; to requite). In notifying Douglass that Frontier intended to sell the property to satisfy the obligation owed to Frontier, Frontier implicitly represented that the debt would be thereby discharged. Significantly, not only was that language contained in the preprinted forms, but it also had been manually typed on the printed form used for giving notice of trustee's sale. Douglass, in his affidavit, avers that he relied upon this language to his detriment. No conceivable reason has been advanced to demonstrate that Douglass was not entitled to rely upon words of the English language which were entirely clear as to import and which were wholly unattributable to him. As stated in Douglass's affidavit of December 6, 1989, he would have attended the foreclosure sale and entered a bid but for his reliance on the notices, which led him to believe that no deficiency judgment would be sought. It was clear to Douglass, who is entitled to due process, that the trust property was to be sold to satisfy the obligation to Frontier. Justice Bistline also stated that by applying Idaho law to the facts in these proceedings, quasiestoppel should apply against Frontier to preclude Frontier from any additional action for deficiency against Douglass. See KTVB, Inc. v. Boise City, 94 Idaho 279, 486 P.2d 992 (1971); Keesee v. Petzek, 111 Idaho 360, 723 P.2d 904 (Ct. App.1986). Douglass petitions this Court to follow the dissenting opinion by holding that Douglass relied to his detriment on Frontier's notices and that Frontier is limited to foreclosure of the property. It is not the duty of the Court to legislate; this power is left to the legislature. The function of the Court is to construe the Notice of Trustee's Sale as given. Neither the Notice of Trustee's Sale nor the Notice of Default gave Douglass proper notice of a possible deficiency judgment, only that the sale was satisfying the obligation. 569 The Court's decision to read I.C. § 45-1512 and I.C. § 45-1505(3) together denies Douglass his right to due process. The Fourteenth Amendment to the United States Constitution provides in part that no `state (shall) deprive any person of life, liberty, or property, without due process of law ...' By uncontroverted affidavit, Douglass alleges that he relied upon the clear wording of the Notice of Trustee's Sale to his detriment. Douglass has been deprived of his property without proper due process of law. It has been recognized that `parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.' Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233, 17 L.Ed. 531 (1864). It has also been held that the fundamental requisites of due process are `the opportunity to be heard.' Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). Therefore, `at a minimum' the Fourteenth Amendment due process clause requires that a deprivation of life, liberty or property must be preceded by `notice and opportunity for hearing appropriate to the nature of the case.' Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). In addition, such notice `must be granted at a meaningful time and in a meaningful manner.' Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). Explaining the fundamental requirements of procedural due process, the United States Supreme Court set forth the following standard: (D]ue process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard. Boddie v. Connecticut, 401 U.S. 371, 377, 91 S.Ct. 780, 785, 28 L.Ed.2d 113 (1971). Douglass was denied his constitutional right to proper notice. The Court should not place its stamp of approval on a faulty statute. By Douglass' uncontroverted affidavit, he explained that he would have attended the foreclosure sale and bid on the property had he known that a deficiency judgment was possible. Such lack of notice in the Notice of Trustee's Sale is a blatant violation of Douglass' right to due process guaranteed by the Fourteenth Amendment to the U.S. Constitution and Article I, Section 13 of the Idaho State Constitution. Under both the Idaho and United States Constitutions the right to procedural due process is guaranteed, requiring that a person involved in the judicial process be given meaningful notice and a meaningful opportunity to be heard. Rudd v. Rudd, 105 Idaho 112, 666 P.2d 639 (1983). Idaho law states that the fact that the Idaho Constitution contains a due process clause with the same language found in the Fourteenth Amendment to the Constitution of the United States indicates that the drafters of the Idaho Constitution believed that the federal due process clause did not make it unnecessary for the Idaho Constitution to guarantee due process of law. Cootz v. State, 117 Idaho 38, 785 P.2d 163 (1989). Also, according to Idaho law the right to use one's property in a lawful manner is within the protection of Section 1 of the Fourteenth Amendment of the Constitution of the United States, and this section providing that no person shall be deprived of life, liberty or property without due process of law. O'Connor v. City of Moscow, 69 Idaho 37, 202 P.2d 401 (1949). Additionally, the Idaho courts have explained that the fundamental requirement of due process is the opportunity to be heard in a meaningful manner. Sweitzer v. Dean, 118 Idaho 568, 798 P.2d 27 (1990). In the consolidated cases of Fuentes v. Shevin and Parham v. Cortese, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), the United States Supreme Court reviewed the constitutionality of state laws permitting the summary seizure of goods or chattels under a writ of replevin. In this case the Court stated: 570 [T]he statutes provide for the issuance of writs ordering state agents to seize a person's possessions, simply upon the ex parte application of any other person who claims a right to them and posts a security bond. Neither statute provides for notice to be given to the possessor of the property, and neither statute gives the possessor an opportunity to challenge the seizure at any kind of prior hearing. Fuentes v. Shevin, supra at 69, 92 S.Ct. at 1988. As in Fuentes, I.C. § 45-1512 and I.C. § 45-1505, even when construed together allow the state to seize Douglass' possessions by Frontier's ex parte application. As in Fuentes, Douglass' due process is violated because these statutes do not give Douglass `an opportunity to challenge the seizure at any kind of prior hearing.' The United States Supreme Court has also explained that [D]ue process is afforded only by the kinds of "notice" and "hearing" that are aimed at establishing the validity, or at least the probable validity, of the underlying claim against the alleged debtor before he can be deprived of his property ... Sniadach v. Family Finance Corp., 395 U.S. 337, 343, 89 S.Ct. 1820, 1823, 23 L.Ed.2d 349 (1969). In effect, the Court's decision allowing a deficiency judgment against Douglass without proper notice equates to unconstitutional summary seizure of Douglass' property (the amount of the deficiency judgment). The statutory scheme of I.C. § 45-1512 and I.C. § 45-1505 is constitutionally defective by failing to provide proper notice as required by procedural due process. The majority [of the] court, by construing the two statutes together, fails to rectify the inadequate notice and ensure that constitutionally required procedural safeguards are followed. The Court should properly conclude that the statutory language used in the Notice of Trustee's Sale denies Douglass his right to due process by insufficient notice. The Court should not disregard the U.S. Constitution and Douglass' Fourteenth Amendment Rights in interpreting I.C. § 45-1505(3). The language was plain and simple, and the Court can come to only one logical conclusion: the property was sold to satisfy the obligation. An analogy can be drawn from the example of when a person is served with a summons and complaint. He has the right to rely solely on the clear meaning of its language or otherwise he is denied due process. The Court's majority opinion states that in order to get the full meaning of the Notice of Trustee's Sale, I.C. § 45-1505 and I.C. § 45-1512 `must be construed together.' In effect the Court is ruling that a person cannot rely on the clear language of a Notice of Trustee's Sale. The Court's ruling requires that in order for a person to be properly notified of an impending foreclosure action against him he must additionally look to I.C. § 45-1505 and then construe it together with I.C. § 45-1512. Once he has construed the statutes, he must conclude that the language of the Trustee's Notice of Sale to satisfy the obligation does not really mean to `satisfy' the obligation, but means that a deficiency judgment can also be brought against him. This is not proper notice. The Court's decision defeats the purpose and intent of the Notice of Trustee's Sale. No statutes were served on Douglass. Douglass should not be penalized because he relied on the Notice of Trustee's Sale and did not seek out additional statutory law and then `construe' the statutes together for proper notice. Douglass acted properly by relying solely on the Notice of Trustee's Sale and should not be denied his Constitutional right to due process as a result. C. CONCLUSION Douglass justifiably relied upon the clear statutory language inserted into the Notice of Trustee's Sale and Notice of Default stating that the sale of the property was to `satisfy' the obligation. The meaning of 571 `satisfy' is clear and unambiguous as explained by Justice Bistline's dissent. I.C. § 45-1512 and I.C. § 45-1505 unconstitutionally deprive Douglass of his right to due process by not affording him proper notice of the deficiency judgment. The Court should adopt the minority opinion and find that the Notice of Trustee's Sale in these proceedings precludes Frontier's recovery of a deficiency judgment. The petition for rehearing should be granted. Respectfully submitted this 20th day of May, 1993. ELAM, BURKE AND BOYD, Chartered .... By /s/ Bobbi K. Dominick DELAY, CURRAN, THOMPSON & PONTAROLO, P.S. .... By /s/ Joseph P. Delay Joseph P. Delay, WSBA No. 02044 Attorneys for Appellants Douglass and Hassing NOTES [1] Idaho Code § 45-1505 was amended, for the first time, in 1990, ch. 401, § 1, 1990 Idaho Session Laws 1122. Since the nonjudicial foreclosure in this case occurred prior to this amendment, we apply the 1957 version of I.C. § 45-1505. [2] A foreclosing mortgagee has no obligation to give warning of an anticipated foreclosure action. It is not seen wherein Douglass raised any contention of being entitled to a warning of any kind whatever. The district court here went astray, albeit only slightly. [3] There is not in this paragraph a tendered explanation as to how the district judge was brought to that understanding. Nor are we able to theorize a rationale which would be apropos the particular scenario here presented. Although the trial court clearly recognized the critical importance of "to satisfy the obligation" and reviewed prior pertinent authority, not justified is the ipse dixit conclusion that the language of the statute was pointed at the "purpose of the sale," which purpose was clearly "to satisfy said obligation." Simply stated, the court presented no ratio decidendi for his "understanding." Moreover, the Douglass claim is not as to the Frontier "intent" to waive, but was to the fact that it did waive, although such was attributable to the misguidance of the statutory language. [4] This Court in its unanimous opinion in Brand S v. King did say, as the trial court here stated, "Waiver is a voluntary, intentional relinquishment of a known right or advantage." 102 Idaho at 734, 639 P.2d at 432. In the same paragraph in which is found the quotation supplied by Judge Magnuson, this Court's Brand S opinion went on to cite four cases from this Court, the most recent of which was Idaho Bank of Commerce v. Chastain, 86 Idaho 146, 383 P.2d 849 (1963), which had the same holding as Riverside v. Ritchie, 103 Idaho at 521, 650 P.2d at 663, note 5, infra, i.e., "Waiver arising out of conduct is in the nature of estoppel." [5] The language used in this Court's Riverside opinion is: [W]aiver is primarily a question of intent, and we believe the better policy is to judge each situation on a case by case basis. In regard to similar questions involving the theory of equitable estoppel,5 this Court has rejected the adoption of rigid standards, relying rather on a case by case analysis, City of Nampa v. Swayne, 97 Idaho 530, 534, 547 P.2d 1135, 1139 (1976); Dalton Highway Dist. of Kootenai County v. Sowder, 88 Idaho 556, 562, 401 P.2d 813 (1965), and we think that policy is prudent here. 5 Waiver arising out of conduct is in the nature of estoppel. Idaho Bank of Commerce v. Chastain, 86 Idaho 146, 154, 383 P.2d 849, 853-84 (1963). It is to be kept in mind that the district court, although it discussed the Riverside opinion, omitted any mention of footnote 5 therein and its content. Nevertheless, the district court on its reading of Jones v. Maestas, 108 Idaho 69, 696 P.2d 920 (1985), did observe that waiver could be found in evidence of conduct giving rise to an estoppel as a matter of law. Having advanced that thought, however, the court turned to the principle of waiver as discussed in Seaport Citizens Bank v. Dippel, 112 Idaho 736, 735 P.2d 1047 (1987), which is notable for bringing to the surface Independent Gas & Oil Co. v. T.B. Smith Co., 51 Idaho 710, 10 P.2d 317 (1932). In Independent Gas this Court's opinion dealt with distinctions between the principles of waiver and estoppel by approving and adopting Judge Robert M. Terrell's memorandum opinion denying a motion for a new trial. Id. at 719-24, 10 P.2d at 320-23. The Court of Appeals' Seaport v. Dippel opinion was the most recent case to utilize Independent Gas. It also quoted a passage which it saw as applicable in the case before it for decision, and which we likewise see applicable in the instant case: This case presents elements of both waiver and estoppel. As noted by our Supreme Court, approving and adopting the analysis of a district judge: The only distinction that I can observe between an implied waiver such as pleaded here and estoppel would seem to be that in the case of an implied waiver there must be some conduct on the part of the person waiving from which it may be inferred that the person waiving intended to waive; in other words, affirmative action on the part of the person waiving indicating an intention to waive some benefit or advantage; whereas, in estoppel a barrier is simply set up regardless of the parties' intentions which precludes one from asserting a right which he would otherwise have but for the matters and things pleaded by the way of estoppel, if such matters and things are properly pleaded and proven. In other words, it is conceivable that an estoppel might sometimes apply in a case where at the same time the evidence would not support the conclusion that some right had been impliedly intentionally waived. Seaport v. Dippel, 112 Idaho at 739, 735 P.2d at 1050 (emphasis added) (quoting Independent Gas, 51 Idaho at 720, 10 P.2d at 321). [6] The district court is correct in relation to "waive." As to estoppel, however, it seems that the court, in concluding that evidence is missing as to a course of conduct giving rise to an estoppel, has failed to observe that the notice of default and the notice of trustee's sale, sent out by Frontier and its trustee, constitute evidence of conduct on the part of Frontier showing its intent to seek a deficiency judgment, notwithstanding the express representation in the notices that the purpose of the sale was stated as "to satisfy the obligation" of the Douglass note. [7] There is a distinction with a difference in a phrase which states "to satisfy such obligation" as compared to a phrase which states "the proceeds obtained on the sale will be applied to the balance due on the note." Had Frontier's notices contained this latter statement or similar language, it is doubted that litigation would have become necessary. [8] The final sentence of this paragraph is overly broad in that the "right to seek a deficiency judgment" is all that the statute provides. If timely brought, "a money judgment may be sought for the balance due upon the obligation which such deed of trust was given as security. ..." There may be other obstacles which surface whenever a grantor/trustor seeks to exact a deficiency judgment. [9] As the district court correctly noted, I.C. § 45-1512 does not require that a creditor affirmatively reserve the right to seek a deficiency judgment; it provides that "[a]t any time within 3 months after any sale under a deed of trust ... a money judgment may be sought for the balance due upon the obligation for which such deed of trust was given as security...." I.C. § 45-1512. [10] The judge's view, being that of an experienced jurist and counselor learned in the law, naturally differed from the Douglass view, which was that of one not so knowledgeable in the law. [11] Keesee is practically on all fours with the underlying circumstances. In that controversy, as here, the transaction went awry when the buyer, Fetzek, who was purchasing on an installment contract, defaulted: But here reliance has been established. It is undisputed that the buyer, who had cured an earlier default in response to a notice referring to `other' remedies, decided to forego curing the default in this instance because the sellers' notice told him that the consequence for not curing would be forfeiture a consequence he was willing to accept. The buyer claims and it is uncontroverted that if `other' remedies had been mentioned, he would have cured the default and this lawsuit would have been avoided. Accordingly, we hold that quasi estoppel may be applied to this case. We further hold that the elements of quasi estoppel are satisfied here. The sellers have changed their position, subjecting the buyer to the expense of avoidable and unwanted litigation. Moreover, they now seek to collect the balance of the contract, whereas previously the buyer would have been required only to cure the then existing default. The buyer has been unfairly prejudiced, and stands to suffer an unconscionable detriment, as a result of the sellers' change in position. We conclude that quasi estoppel, accompanied in this case by reliance, justifies limiting the sellers to their original choice of forfeiture as a remedy. Keesee, 111 Idaho at 362-63, 723 P.2d at 906-97.	{ "pile_set_name": "FreeLaw" }
852 F.2d 1205 Frank H. WOOD, Individually and on behalf of all otherssimilarly situated, Plaintiff-Appellee,v.Franklin Y.K. SUNN; Edwin Shimoda; William F. Haning III;and Beatrice Chang, Defendants-Appellants. No. 87-2056. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 11, 1988.Decided July 27, 1988. Steven S. Michaels, Deputy Atty. Gen., State of Hawaii, Honolulu, Hawaii, for defendants-appellants. Eric A. Seitz and Joan M. Yamaguchi, Honolulu, Hawaii, for plaintiff-appellee. Appeal from the United States District Court for the District of Hawaii. Before SCHROEDER, REINHARDT and LEAVY, Circuit Judges. LEAVY, Circuit Judge: OVERVIEW 1 The appellee Frank H. Wood, a prison inmate at the Oahu Community Correctional Center (OCCC) in the state of Hawaii, filed an action claiming his eighth amendment rights were violated when certain prison staff and administrators acted with deliberate indifference toward his serious medical needs. Wood, who was born with only one kidney, has a history of urological complications which has required hospitalization before and during his incarceration.1 Pursuant to 42 U.S.C. Sec. 1983, Wood sued the appellants Franklin Y.K. Sunn, the director of the Department of Social Services and Housing of the State of Hawaii, which administers the state's correctional facilities; Edwin Shimoda, administrator of the OCCC; Dr. William Haning, OCCC's medical director and physician consultant; and Beatrice Chang, a registered nurse and administrator of the medical unit. Wood sought damages for pain, suffering, and emotional distress during the period from May 23, 1983 to October 18, 1983. Following a trial to the district court, the judge found the defendants were deliberately indifferent to Wood's medical needs pursuant to Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976) and awarded Wood $25,000 in damages, plus costs and attorneys' fees of $49,523.17. 2 The prison staff and administrators claim on appeal that they are entitled to qualified immunity in light of a recent Supreme Court decision, Anderson v. Creighton, --- U.S. ----, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). They claim the district court erred in finding deliberate indifference to Wood's medical needs. They also claim the court erred in its use of a multiplier in awarding attorneys' fees. In addition, Dr. Haning and Nurse Chang claim they are not liable because they did not act under color of state law. We affirm on all issues except the imposition of liability on Sunn and Shimoda and the award of attorneys' fees. FACTS AND PROCEDURAL HISTORY 3 On December 2, 1982, Wood was incarcerated at OCCC. At that time he had urological complications stemming from a work-related injury and subsequent hernia operation in 1980. His symptoms included urinary tract infections, recurrent inflammations, urine retention, and neurological problems which required hospitalization several times prior to his incarceration. Upon incarceration, Wood provided OCCC's medical staff with a history of his problems and treatment. He was placed in the medical module of the prison. 4 Shortly after he was incarcerated, Wood was hospitalized under the care of a urology specialist, Dr. Andrew Morgan. Dr. Morgan performed two exploratory surgeries and removed a blood clot. Wood continued to see Dr. Morgan until May 23, 1983. At that time, Dr. Morgan recommended that all antibiotics be discontinued and that cultures be taken of any new infections. He stated that Wood might require pain medication. 5 On May 21, 1983, Wood saw Dr. Haning for the first time. Wood complained of pain in his left testicle. Haning, who is a general practitioner, prescribed an antibiotic to treat the infection he suspected was present in the lower urinary tract. 6 On June 6, 1983, Dr. Birendra Huja, another OCCC general practitioner, recommended that Wood see another urologist for a second opinion with respect to Wood's continuing complaints. Although the OCCC medical staff did not contact a second urologist, it made an appointment for Wood to see Dr. Morgan, but failed to arrange transportation. 7 On June 24, 1983, Wood saw Haning twice, complaining of drainage from his left scrotal area. Haning noted the area was warm to the touch and that a red, purulent material was draining from a shallow abscess. Later laboratory tests showed a staphylococcal infection was present in the abscess. Haning prescribed several antibiotics to be given twice a day for ten days. However, no prison records show that Wood received the antibiotics. From January 1983 to December 1985 there are no medical records whatsoever on Wood. Accordingly, there is no documentation of treatments or tests, if any, that Wood received subsequent to Dr. Morgan's or any other doctor's recommendations. 8 From May to October of 1983, Wood continued to report testicular pain and difficulty in urinating to the OCCC staff. He claims his requests for medical attention and treatment were ignored, and that he was taunted and accused of malingering. He required catheterization, which was done only twice a day. 9 On October 18, 1983, Wood was taken to Dr. Lee Simmons, a urology specialist. Dr. Simmons' initial notes describe Wood's problems as: 10 post-surgical and inflammatory neuralgia, left genital femoral nerve. This, I believe, is the patient's source of pain.... Chronic prostatitis, low grade, active, dysfunctional voiding with history of recurrent urinary retention.... Questionable beginning hydradenitis supurativum, left groin, and depression, reactive, situational most likely. 11 Simmons thought Wood needed ongoing supervision and urological overview in light of his chronic prostatic infections and problems with voiding. Dr. Simmons also recommended psychological evaluation and treatment. 12 Two days after seeing Dr. Simmons, Wood was admitted to the hospital for two weeks of treatment for acute urinary retention and painful, potentially dangerous infections. Since then, Wood cannot urinate and is constantly catheterized. STANDARD OF REVIEW 13 The trial judge's findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Fed.R.Civ.P. 52(a), Cooling Systems and Flexibles, Inc. v. Stuart Radiator, Inc., 777 F.2d 485, 487 (9th Cir.1985). A district court's determinations on questions of law and on mixed questions of law and fact which implicate constitutional rights are reviewed de novo. LaDuke v. Nelson, 762 F.2d 1318, 1322 (9th Cir.1985). See, e.g., Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 854 (9th Cir.1985) (the issue of whether inmates were provided meaningful access to the courts is reviewed de novo). 14 A district court's award of attorney fees will not be disturbed absent an abuse of discretion. Clark v. City of Los Angeles, 803 F.2d 987, 990 (9th Cir.1986). DISCUSSION 15 1. Whether This Court Must Consider the Qualified Immunity Issue in Light of Anderson v. Creighton 16 The appellants argue they are not liable for damages under 42 U.S.C. Sec. 1983. They claim this court must either decide or remand on the issue of whether they have qualified immunity in light of Creighton. The district court did not decide whether the defendants were entitled to qualified immunity. That defense was not argued at trial; it was presented only in the answer to the complaint. However, the appellants claim the issue is preserved on appeal because this defense was raised in the answer and can be deemed to have been ruled upon by the district court.2 They also claim: 17 Under Judge Canby's decision for the Court in Albers v. Whitley, 743 F.2d 1372 (9th Cir.1984), reversed on other grounds, 475 U.S. 312 [106 S.Ct. 1078, 89 L.Ed.2d 251] (1986), it was impossible in this Circuit, at the time this case was presented to the District Court, to make any claim that state officials in discretionary roles had any real protection under the objective qualified immunity rule of Harlow v. Fitzgerald, 457 U.S. 800 [102 S.Ct. 2727, 73 L.Ed.2d 396] (1982), in cases brought pursuant to Estelle v. Gamble, 429 U.S. 97 [97 S.Ct. 285, 50 L.Ed.2d 251] (1976).3 18 The appellants claim Whitley prevented a defense of qualified immunity because it held that "[a] finding of deliberate indifference is inconsistent with a finding of good faith or qualified immunity" and "[t]he two findings are mutually exclusive." Whitley, 743 F.2d at 1376. The appellants claim the Supreme Court now has overruled Whitley's immunity analysis in Creighton. 19 The appellants also maintain that this issue, even if raised for the first time on appeal, should be decided as an exception under Romain v. Shear, 799 F.2d 1416 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 2183, 95 L.Ed.2d 840 (1987). Romain states: 20 This court will generally not consider an issue raised for the first time on appeal. Bolker v. Commisisoner, 760 F.2d 1039, 1042 (9th Cir.1985). Three exceptions to this rule exist: (1) in an "exceptional" case when review is necessary to prevent a miscarriage of justice or to preserve the integrity of the judicial process, (2) when a new issue arises while appeal is pending because of a change in law, or (3) when the issue is purely one of law and the necessary facts are fully developed. 21 Id. at 1419. The appellants invoke the second exception, claiming Creighton changed the law in this circuit, and the third exception. They also claim that manifest injustice will result if this court does not consider the qualified immunity defense. 22 Other circuits have held that a defense raised in an answer but not presented to the district court for consideration, and not ruled upon, is not preserved for appeal. Cavic v. Pioneer Astro Indus., Inc., 825 F.2d 1421, 1425 (10th Cir.1987); King v. Stevenson, 445 F.2d 565, 570-71 (7th Cir.1971). Those holdings are reasonable. A district court justifiably would assume that defenses presented only in an answer had been abandoned. 23 The argument that the defense was impossible to bring because of this circuit's decision in Whitley has no merit. Whitley directs a court's findings; it does not prevent an immunity defense at trial on a section 1983 claim. It holds that a court's finding of deliberate indifference precludes it from also finding qualified immunity, because "[t]hose 'deliberately indifferent' to the [plaintiff's right] ... could not show that they had not violated 'established statutory or constitutional rights of which a reasonable person would have known.' " Whitley, 743 F.2d at 1376. The appellants tried to prove they were not deliberately indifferent to Wood's medical needs. Nothing prevented them from also arguing that they were entitled to qualified immunity. 24 Further, Creighton does not hold that a finding of deliberate indifference no longer mutually excludes a finding of qualified immunity. The Supreme Court decided an entirely different issue in this case: precisely what must be "clearly established" for a law enforcement officer to be entitled to summary judgment on the issue of qualified immunity in the context of a warrantless search.4 The Supreme Court held that qualified immunity is available if a reasonable police officer could have believed that the search was justified, in light of clearly established law and the information that the officer possessed. Despite Creighton, the Whitley rule that "a finding of deliberate indifference is inconsistent with ... qualified immunity" remains the law of the circuit. 25 Accordingly, the second Romain exception cannot be invoked because the decision in Creighton did not change the law of this circuit. The third Romain exception is also inapplicable. The facts surrounding qualified immunity are not fully developed because the defense was never argued. Finally, there is no miscarriage of justice when the appellants failed to present their own defense. The issue is not preserved for appeal. 26 2. Whether the Finding of Deliberate Indifference Was in Error 27 The appellants insist the district court made both factual and legal errors in concluding that they were deliberately indifferent to Wood's serious medical needs. The factual errors they claim are the finding that Wood did not receive medication as prescribed and the court's suggestion that Wood did not see a doctor as often as needed for his complaints. The legal errors they claim are misapplying the "deliberately indifferent" standard set forth in Estelle and not deferring to the judgment of the OCCC's administrators or its medical staff. 28 a. The Factual Errors 29 The appellants claim the district court should not have inferred "wholly from the absence of patient records" that medicine was not delivered as prescribed. However, the court had other evidence upon which to base this finding. Chang, the administrator of the medical unit, testified that the absence of documentation "probably" meant that Wood never received his medication. Neither she nor Dr. Haning had any personal knowledge that Wood received it. Based on this testimony and the lack of medical records, the district court was not clearly erroneous in concluding that Wood did not receive his medication as needed. Even though Wood testified he received "some" medication, the court could reasonably infer that his serious medical needs were not met, especially in light of Dr. Simmons' testimony that an antibiotic not taken at regular intervals loses its effectiveness and is likely to exacerbate an infection. 30 Further, it was not clearly erroneous to conclude that Wood did not receive the doctor's attention he needed from May 23 to October 18, 1983. Dr. Haning testified he last examined Wood on June 24, 1983. He testified he talked only briefly with Wood during the summer of 1983 when they happened to be in the medical unit at the same time. Haning said he did not refer Wood to a specialist because it might reinforce Wood's idea that his pain was physical rather than psychological. Haning and Chang admit they were indifferent to Wood's complaints because Dr. Haning had decided Wood's pain was psychological and therefore did not require medical attention. Appellant's Brief at 17-18. 31 b. The Legal Errors 32 The appellants maintain the district court misapplied the standard of deliberate indifference. They contend they acted in good faith since it was Haning's "medical judgment [to be] indifferent to inmate Wood's complaints," so as to "be helpful with regard to inmate Wood's needs," since he believed Wood's pain was psychological. They maintain that conflicts among doctors regarding proper medical techniques do not violate the eighth amendment. They state "it is true that the state officials ignored inmate Wood's demands" but that "[p]risons being what they are, state officials must be deliberately indifferent to many, many things." 33 To state a claim under 42 U.S.C. Sec. 1983 based on a violation of his eighth amendment right to adequate medical treatment, Wood must show that the appellants acted with deliberate indifference to his serious medical needs. Estelle, 429 U.S. at 106, 97 S.Ct. at 292. This indifference must be more than mere negligence. Id. Deliberate indifference involves the "unnecessary and wanton infliction of pain." Id. at 104, 97 S.Ct. at 291 (citing Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976)). Isolated occurrences of neglect do not amount to deliberate indifference. Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987). 34 The issue here is whether OCCC's non-treatment of Wood amounts to mere malpractice, or is a violation of constitutional rights. See Estelle, 429 U.S. at 104-06, 97 S.Ct. at 291-92; Whitley, 743 F.2d at 1375. Deliberate indifference goes well beyond negligence because it is the "unnecessary and wanton infliction of pain" which the eighth amendment proscribes. Whitley, 743 F.2d at 1375 (quoting Estelle, 429 U.S. at 104, 97 S.Ct. at 291). 35 The government has an obligation to provide medical care for those whom it punishes by incarceration. Estelle, 429 U.S. at 103, 97 S.Ct. at 290. "An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met." Id. 104-05, 97 S.Ct. at 291-92. On the other hand, an inadvertent failure to provide adequate medical care cannot be said to constitute an unnecessary and wanton infliction of pain. Estelle, 429 U.S. at 105, 97 S.Ct. at 291. 36 Even before incarceration, the evidence shows that Wood's medical problems were serious. During the hernia operation in 1980, a Marlex mesh was placed in him which he testified contributed to his recurrent infections and inflammation of the genital area. This mesh is nonabsorbable, and the body attempts to sequester and discharge it. Even surgical procedures cannot remove all of it. Wood was hospitalized in Seattle, Washington for over a month in July and August of 1980 after the operation, where three surgical procedures were performed. In September 1980, he was hospitalized in Florida. He was hospitalized again shortly after his incarceration, exploratory surgery was performed, and a blood clot removed. He was under Dr. Morgan's care until May 23, 1983. On June 6, Dr. Huja thought Wood's continuing problems serious enough to recommend a second opinion from a specialist. The OCCC medical staff apparently agreed since it made an appointment for Wood with Dr. Morgan. At trial, Dr. Haning testified that Wood's urine should have been monitored periodically to prevent the onset of urinary tract infections, which he admitted were of particular concern because Wood has one kidney. Dr. Simmons testified if Wood had received adequate general medical care at OCCC, the subsequent urinary retention might have been avoided or ameliorated. Given these facts, the arguments that Wood's needs were not serious and non-medical completely lack merit. 37 Whether or not Wood's pain was physically based, it was real.5 The pain persisted despite Dr. Haning's recommendation that it could be cured by ignoring Wood's complaints. Wood's serious medical needs were not met because the appellants delayed and/or denied him access to medical or psychological help. Dr. Simmons testified that in accordance with minimum medical standards existing in Hawaii at the time: 38 I think that he should have had three primary elements of care. One, evaluation of complaints as they might arise, expecting that there would be ongoing recurrent problems. Two, periodic surveillance from the standpoint of monitoring infection in both the urinary tract and the wound, problems of the left groin, and three, emotional support for--or let's say general medical support for his ongoing problems that cannot be readily resolved, i.e., the pain of the left groin and testicle area. 39 Dr. Simmons also testified that Wood's many attempts to get medical attention without success demonstrates a "manifest indifference to just the simple dignities of being a human being, as well as being a patient in need of medical care." 40 The appellants also claim the district court decision usurped the authority reserved to prison administrators under Estelle to make medical assessments. This contention lacks merit. Nowhere does Estelle hold that a federal court must defer to the judgment of either prison doctors or administrators in deciding whether there was deliberate indifference to an inmate's serious medical needs. 41 Upon review of the entire record, deliberate indifference to Wood's serious medical needs is apparent. This situation is incompatible with "the evolving standards of decency that mark the progress of a maturing society." Estelle, 429 U.S. at 102, 97 S.Ct. at 290; Whitley, 743 F.2d at 1374. With Wood's medical history, no one could reasonably believe that indifference to his complaints would not create the unnecessary and wanton infliction of pain in violation of the eighth amendment. The finding of the district court is affirmed. 42 3. Whether Appellants Sunn and Shimoda Are Liable 43 Sunn, director of the Department of Social Services and Housing of the State of Hawaii, and Shimoda, administrator of the Correctional Center, claim the district court erred in entering a judgment against them. They claim they cannot be liable vicariously under 42 U.S.C. Sec. 1983, citing Monell v. Department of Social Services, 436 U.S. 658, 693, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). 44 In a section 1983 action in this circuit, vicarious liability may not be imposed in the absence of a state law imposing such liability. Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.1978), cert. denied, 442 U.S. 941, 99 S.Ct. 2883, 61 L.Ed.2d 311 (1979). Wood brought no such law to our attention. In the absence of such a law, the state official must play a personal role in the constitutional deprivation to be liable. See id. There is no evidence in the record to impose personal liability on Sunn or Shimoda. The transcripts provided on appeal show that neither official testified at trial. Although Wood claims in his brief that he wrote letters to Sunn and Shimoda, which he claims they acknowledged, he provides no citations to the record. There is no correspondence addressed to Shimoda in the record. There is one letter to Sunn from Wood dated September 19, 1983. Plaintiff's exhibit 22. At trial, Wood testified he received a response to this letter, but it is not included in the trial record. Finally, the district court found that after letters to the defendant Sunn and the state ombudsman, Wood was hospitalized. Contrary to a finding that Sunn was at fault, the record supports a finding that the Department of Social Services and Housing was part of the solution. 45 There is nothing in the record to show that Sunn and Shimoda had personal knowledge of Wood's specific complaints. 46 Because there is no evidence that Sunn and Shimoda violated Wood's constitutional rights, these appellants are not liable under section 1983. The judgment against them is reversed. 47 4. Whether the Issue of Sufficient State Action is Preserved On Appeal 48 To establish a claim under 42 U.S.C. Sec. 1983, a plaintiff must show a defendant acted under the color of state law. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Whitley, 743 F.2d at 1374. Haning and Chang argue for the first time on appeal that they were not state actors. We ordinarily will not consider an issue raised for the first time on appeal. In Re Ryther, 799 F.2d 1412, 1414 (9th Cir.1986). Haning and Chang's claim does not fit within any exception to this rule. See Bolker, 760 F.2d at 1042. 49 5. Whether the District Court Erred in Using a Multiplier in the Attorney's Fee Award 50 Title 42 U.S.C. Sec. 1988 provides that in federal civil rights actions "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." The initial estimate, or lodestar, of a reasonable attorney's fee is calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate. This lodestar figure is presumptively a reasonable fee. Clark, 803 F.2d at 990. Many factors previously identified by courts as probative on the issue of "reasonableness" of a fee award, see e.g., Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976),6 are now subsumed within the initial calculation of the lodestar amount. Blum v. Stenson, 465 U.S. 886, 898-900, 104 S.Ct. 1541, 1548-50, 79 L.Ed.2d 891 (1984) ("the novelty and complexity of the issues," "the special skill and experience of counsel," the "quality of the representation," and the "results obtained" are subsumed within the lodestar); Pennsylvania v. Delaware Valley Citizen's Council, 478 U.S. 546, 106 S.Ct. 3088, 3098-99, 92 L.Ed.2d 439 (1986) rev'd after rehearing on other grounds, --- U.S. ----, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987) (an attorney's "superior performance" is subsumed). 51 In "rare" and "exceptional" cases, an upward adjustment of the lodestar may be justified, but the relevant factors identified in Kerr, 526 F.2d at 70, must be analyzed. Clark, 803 F.2d at 991. Detailed findings of why the lodestar amount was unreasonable must be given. Delaware Valley Citizen's Council, 106 S.Ct. at 3100. 52 The district court decided this matter before the decisions in Delaware Valley and Clark. Perhaps for that reason, it did not analyze the relevant factors or explain why the lodestar amount was unreasonable. Finding the request for a multiplier of fifty percent appropriate, the district court gave these reasons to justify the upward adjustment of the lodestar amount: 53 During the course of this litigation up to the time of the trial itself, defendants were difficult to deal with. This was demonstrated by their refusal to consider settlement, numerous motions for summary judgment, and their delay in naming an expert until a short time before trial. In addition, the court acknowledges that few attorneys are willing to represent prisoners and the importance of having legal services available to them. 54 None of these reasons except perhaps the last one justifies the use of a multiplier. See Blum, 104 S.Ct. at 1550-51 (Brennan, J. and Marshall, J. concurring) (the risk of not prevailing and thus not recovering any fees is a proper basis for an upward adjustment); Clark, 803 F.2d at 991 (upholding the application of a 1.5 multiplier to the lodestar, in part because of the " 'extreme undesirability of th[e] case' "); cf. Delaware Valley, 107 S.Ct. at 3089 (there must be a real risk of not prevailing and an upward adjustment should as a general rule be no more than one-third of the lodestar). 55 The failure to consider the appropriate factors in determining the reasonableness of an award of attorney's fees is an abuse of discretion. Kerr, 526 F.2d at 70. Accordingly, this issue is remanded to the district court for findings consistent with recent Supreme Court and Ninth Circuit caselaw.7 CONCLUSION 56 The appellants Haning and Chang acted with deliberate indifference to Wood's serious medical needs. The complaints of pain by an inmate with this history of medical problems and hospitalization should not be ignored merely because a prison medical staff believe the pain is psychological and/or not serious and admits its deliberate indifference. Regardless of the source of pain, its infliction on an inmate with this kind of medical history is unnecessary, wanton, and in violation of the eighth amendment. Such action does not comport with standards of decency in a maturing society. The district court did not consider the issues of qualified immunity or whether Haning and Chang acted under color of state law. These issues were not preserved adequately for appeal. 57 The evidence was not sufficient to impose liability on Sunn or Shimoda under section 1983. The judgment against them is reversed. 58 The issue of attorney's fees is remanded. The district court abused its discretion in its use of the multiplier. Its fee enhancement is not in accord with recent Supreme Court and Ninth Circuit cases. Upon remand, specific findings should be made with respect to what constitutes a reasonable attorney's fee. AFFIRMED in part; REVERSED in part; and remanded. 1 At trial, a urologist testified that any infection in Wood's urinary tract might affect the single kidney, placing him at high risk 2 In its third defense to this action, the answer states merely: "Defendants are protected from liability by the doctrine of qualified immunity[.]" 3 Under the rule in Harlow, government officials "are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory rights of which a reasonable person would have known." 457 U.S. at 818, 102 S.Ct. at 2738. The standard is objective. Whitley, 743 F.2d at 1376. Estelle holds that deliberate indifference to serious medical needs of prisoners constitutes the "unnecessary and wanton infliction of pain" which the eighth amendment proscribes 4 The purpose of the decision in Creighton was to show the level of generality at which the legal rule of Harlow operates. 107 S.Ct. at 3038-39 5 Dr. Simmons confirmed Wood's pain was physically based in that it derived from inflammatory neuralgia of the left genital femoral nerve. His inability to void apparently was psychological 6 The factors to consider are: (1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the "undesirability" of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases 7 The fee petition appears to contain other reasons which may justify the use of a multiplier. Petitioner states he was precluded from other employment, and that the case was rejected by other attorneys. See Clark, 803 F.2d at 991-92. The district court should determine whether a fifty percent multiplier is justified in light of Delaware Valley, 107 S.Ct. at 3089	{ "pile_set_name": "FreeLaw" }
461 So.2d 793 (1984) Dr. Robert L. WHITE v. Charles F. FRIDGE, Sr. 83-590. Supreme Court of Alabama. December 21, 1984. 794 James J. Duffy, Jr. and Dennis McKenna of Inge, Twitty, Duffy & Prince, Mobile, for appellant. M.A. Marsal and George L. Simons, Mobile, for appellee. JONES, Justice. This is an appeal from a jury verdict for Plaintiff Charles Fridge in a medical malpractice action. Defendant Dr. White's motions for judgment notwithstanding the verdict or new trial or remittitur were denied. On appeal, Dr. White challenges the trial court's denial of his new trial motion, asserting only that the $60,000 damages award was so excessive as to indicate a mistake or an improper motive on the part of the jury. The law which governs this appeal is stated with such frequency in the opinions of this Court and is so well-settled in the law of Alabama that it is axiomatic. Jury verdicts are presumed to be correct (Southern Railway Co. v. Roberts, 380 So.2d 774 (Ala.1980)), and the power of a trial court to set aside these verdicts, "while inherent in order to prevent irreparable injustice, is a power hesitantly exercised because of the solemnity of a jury verdict regarded in the background of that most precious of rights, the right of a trial by jury." Walker v. Henderson, 275 Ala. 541, 544, 156 So.2d 633, 636 (1963). This presumption of correctness which attends a jury verdict is strengthened by the trial court's denial of a motion for new trial. Osborne v. Cobb, 410 So.2d 396, 397 (Ala.1982); Southern Railway Co. v. Roberts, supra. In cases such as the one now before us, in which pain and suffering are at issue, there exists no absolute standard by which to measure the adequacy of damages (Central of Georgia Railway Co. v. Steed, 287 Ala. 64, 248 So.2d 110 (1971)), and the trial court is not authorized to interfere with the jury's verdict simply because the court may believe the jury gave too little or too much. Airheart v. Green, 267 Ala. 689, 104 So.2d 687 (1958). Only where it clearly appears that the jury's verdict is so excessive as to indicate that it is either the result of "bias, passion, prejudice, corruption or other improper motive" or "some 795 mistaken view of the merits of the case," can the trial court properly interfere. Vest v. Gay, 275 Ala. 286, 154 So.2d 297 (1963). Similarly, this Court accords due deference to the discretion of the trial court in these matters. The trial court and jury are present to see and to hear the testimony of each witness, which was, in this particular case, "a peculiar advantage upon the issue[s] of fact for determination." Jacks v. City of Birmingham, 268 Ala. 138, 143, 105 So.2d 121, 126 (1958). See, also, Southern Railway Co. v. Roberts, supra.[1] We have reviewed the entire record of the trial, giving special attention to the evidence from which the jury could have made its determination of the amount of the award. A detailed discussion of the evidence is unnecessary. We note, however, that the evidence relating to the issue of the injury incurred by Plaintiff Fridge reveals that Fridge began to experience the symptoms of headaches and spasms of severe facial pain in the summer of 1980. By 1981, the symptoms had become much more frequent (as much as three times in one night) and severe (the testimony of a neurosurgeon at trial indicated that the severity and frequency of the pain of this condition had caused suicide in some patients). Fridge's medication had been increased, but to no effect. In 1981, a neurologist diagnosed Fridge's ailment as that of trigeminal neuralgia or tic douloureux of the right side of the face. The neurologist determined that Fridge's condition could not be successfully treated with medication and requested the consultation of a neurosurgeon. On February 6, 1981, after the consultation with the neurologist and Fridge, Defendant Dr. White, a neurosurgeon, performed a surgical procedure known as thermal percutaneous rhizotomy to deaden the trigeminal nerve and relieve Fridge's pain. The procedure involves the insertion of a needle containing a temperature electrode at the corner of the patient's mouth through to the area of the pain, usually below and behind the cheekbone. When the needle/electrode is in place, the patient, who has not been anesthetized, is asked about the location of his pain and is then given a short-duration anesthetic. The lesion is made and the patient is revived and questioned as to whether the procedure has been effective in relieving the pain. The procedure is repeated until it is successful or until the patient's tolerance for the anesthetic is reached or exceeded. The surgery was performed on the left side of Fridge's face, and Fridge was anesthetized six times before Dr. White determined that the procedure had been unsuccessful. After the surgery, Fridge's face was bruised and bloodshot, and his left eye drooped and was bloodshot. The numbness created by the procedure on the left side of Fridge's face remained at the time of trial, was noticeable when Fridge shaved, and caused problems with chewing on the left side. After the procedure, Fridge developed pneumonia while still in the hospital and remained in the hospital until February 13, 1981. Fridge testified that the procedure had not relieved the pain on the right side of his face and that he has continued to experience effects of the condition since the surgery. Fridge and his wife testified as to the emotional effects of the surgery in that Fridge suffered from depression following the procedure and would begin to cry and stutter whenever anyone spoke to him. In light of the evidence, and giving every presumption to be accorded the determination of the jury, we cannot find that the damages awarded are so excessive as to evidence either an improper motive or a mistaken view of the case. We cannot conclude that the verdict was based upon any improper reasoning as opposed to its *796 being a reasonable verdict based upon a careful consideration of the evidence. The judgment appealed from is hereby affirmed. AFFIRMED. TORBERT, C.J., and ALMON, SHORES and BEATTY, JJ. concur. NOTES [1] For an excellent discussion of the foregoing, see C. Gamble and D. Corley, Alabama Law of Damages, § 7-6 (1982).	{ "pile_set_name": "FreeLaw" }
598 So.2d 18 (1992) Walter MAUL v. STATE. CR 89-104. Court of Criminal Appeals of Alabama. January 17, 1992. Rehearing Denied February 28, 1992. Certiorari Denied May 22, 1992. 19 Karen Bullock, Birmingham, for appellant. James H. Evans, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for appellee. Alabama Supreme Court 1910895. JAMES H. FAULKNER, Retired Justice. Walter Maul was indicted for the offenses of rape in the first degree, in violation of § 13A-6-61, Code of Alabama 1975, and sodomy in the first degree, in violation of § 13A-6-63, Code of Alabama 1975. The trial court granted the State's motion to consolidate Maul's cases with those of two of his codefendants: 1) Larry Williams, who was indicted for the offenses of rape in the first degree and sodomy in the first degree; and 2) Raymond June Saxon Mims, who was indicted for the offenses of kidnapping in the first degree, in violation of § 13A-6-43, Code of Alabama 1975, rape in the first degree, and sodomy in the first degree. The jury found Maul guilty of the two offenses as charged in the indictment, and he was sentenced as a habitual offender to life imprisonment without parole for each conviction. Seven issues are raised on appeal. I The victim testified at trial that, on March 14, 1989, she had gone "job hunting" and was walking to the house of her brother's girlfriend, Valerie, also known as "Short." The victim testified that she "ran into" Willie Ford, also known as "Batman," who asked her if she wanted a ride. Batman drove her to the front of Short's house, and she stayed there a while before walking to the store to get some milk for Short's baby. Batman later walked to Short's house and the victim subsequently left, walking home with Batman. According to the victim, she and Batman stopped along the way at some picnic tables at a community center and talked. They then headed back to Short's house because she had forgotten her purse. She heard some people at the community center whistling at Batman, and she followed as Batman went over to talk to these people. She noticed a red two-door Jaguar automobile parked in front of the center and several individualsincluding Mims and Terry Harris, also known as "Blue"standing around the car. She testified that Mims threw her the car keys but that she did not know how to drive. The victim got into the car with Mims, Blue, and Batman. She testified that she asked where they were going but that she got no answer, and that she said she wanted to go home. According to her, Mims drove the car to Homewood and began "tailing" a green car with tinted windows. She further testified that Mims drove the car to an apartment complex in Homewood; that Mims, Blue, Batman, and she walked upstairs to an apartment; that the men knocked on the apartment door; and that Walter Maul, also known as "Smokey," opened the door. She noticed that the apartment was completely empty with the exception of a large "boom box" radio on the floor and that Larry Williams, also known as "Little Larry," and Louis Nix, also known as "Bird," were in the apartment. The victim next testified that Maul touched her breast, and she knocked his hand away. Mims then pulled her into the bedroom and Blue followed. Blue told her that she had better do what Mims wanted. Mims slapped her, threw her against the wall and to the floor, and had sexual intercourse with her while she fought and screamed. Mims then told Blue that he could do what he wanted to do to her. Blue then had sexual intercourse with her and threatened to kill her. Maul, Bird, and Williams then had sexual intercourse with her while she fought and screamed. Someone then grabbed her from behind, and Mims, Blue, and Williams forced her to perform oral sex on them. Mims then urinated in her mouth and on her face. According to the victim, she was then carried to the living room, where her clothes were taken off and she was surrounded by men, including two new individuals, a man known as "Player" and a man 20 with a "jericurl." Blue then had anal intercourse with the victim and "burned" her with a coat hanger whenever she screamed. Maul, Bird, Blue, Player, and the man with the jericurl then had repeated sexual intercourse and oral sex with her. Mims, Maul, and Williams left the apartment, and Blue and Bird took the victim to the bedroom, where they had repeated sexual intercourse and oral sex with her over a period of several hours. According to the victim, Batman was in the apartment when all these events transpired but he never did anything. Whenever she screamed or yelled, someone turned up the volume on the "boom box" radio. She subsequently heard a knock on the apartment door and heard Mims and a girl come into the apartment. She heard the girl refer to Mims as "Raymond." Mims then went into the bedroom and had sexual intercourse with the victim. A stout man with glasses then went into the bedroom and had sexual intercourse with her. She then convinced Blue to leave her alone in the bedroom, and she locked the door. She put on her panties, the only article of her clothing that she could find in the bedroom, and she jumped out of the second floor window and ran. A couple saw her, took her to their apartment, and called the police. The victim then went to the apartment with two police officers and identified Mims and the girl with him. According to the victim, all the other men and the "boom box" radio were gone. Also, according to the victim, the girl said that Mims had been with her all evening and Mims said that he had never seen the victim before. The girl subsequently admitted that Mims had not been with her all evening. II Maul contends that the trial court erred in consolidating his cases with those of his codefendants, Raymond Mims and Larry Williams. An informal hearing was held on September 29, 1989, on the State's motion to consolidate for one trial the various rape and sodomy, cases pending against Maul, Mims, and Williams and the kidnapping case against Mims. The transcript of those proceedings is not contained in the record on appeal. On October 12, 1989, the trial court issued an order consolidating the cases for trial. A motion for severance was filed on October 19, 1989. Following trial, the three codefendants filed a motion for new trial, which was denied after a hearing. In the order denying the motion for new trial, the trial court made the following findings of fact relative to its earlier consolidation order: "On October 12, 1989, consolidation of the cases against Mims, Maul and Williams was ordered. Defendants Nix and Harris were severed because of Bruton [v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) ] considerations. Written order on consolidation is, of course, part of each defendant's transcript. "Having tried these cases to a conclusion, it is apparent that in spite of counsel's pre-trial protestations, these cases were entirely appropriate for consolidation as directed. "The defenses were not antagonistic, all defendants urging the `consent defense'; there were not Bruton problems because no defendant made a statement; no defendant testified nor was any evidence adduced on behalf of any defendant; the evidence was not confusing and except for the evidence relative to defendant Mims and the leasing arrangements of the apartment and the registration of Mims's sports car the whole evidence pertained to the three defendants. "Except for the kidnapping charge levied against Mims, for which he was convicted, the charges of rape and sodomy were common to each defendant. Obviously the kidnapping offense was inextricably woven into the other charges and could not have conceivably confused the jury. "It is observed that throughout the litigation of these cases, both pre-trial, during trial and post-trial that the respective defense lawyers worked closely together, adopting each other's motions, arguments and strategies." 21 Rule 15.4, A.R.Cr.P.Temp., states as follows: "(a) Joinder. Two or more defendants may be charged in the same indictment, information, or complaint: "(i) if they are alleged to have participated in the same act or transaction; or "(ii) when the several offenses are a part of a common conspiracy, scheme, or plan; or "(iii) when the several offenses are otherwise so closely connected that it would be difficult to separate the proof of one from the proof of the other. "Such defendants may be charged in one or more counts together or separately, and all of the defendants need not be charged in each count. "(b) Consolidation. If defendants are charged in separate indictments, informations, or complaints, the court, on its own initiative or on motion of any party, may, no later than seven (7) days prior to trial, order that the defendants be joined for the purposes of trial if the defendants could have been joined in a single indictment, information, or complaint. Proceedings thereafter shall be the same as if the prosecution initially had been under a single indictment, information, or complaint. However, the court shall not order that the defendants be tried together without first providing the defendants and the prosecutor an opportunity to be heard. "(c) Trial. Defendants joined in the same indictment, information, or complaint, or joined for trial by court order pursuant to section (b), shall be jointly tried unless severed as provided in sections (d)-(g). "(d) Severance Grounds. If the court finds that by a joinder of defendants in an indictment, information, or complaint, or a joinder by order of court, as provided in this rule, a defendant or the state may be prejudiced to the extent that a fair trial cannot be afforded, the court shall order a severance of defendants or provide whatever other relief justice requires. However, without a finding of prejudice, the court may, with the agreement of all the parties, order a severance of defendants." To establish that a trial judge abused his discretion in consolidating cases for trial, Maul must meet his burden of establishing that he was unable to obtain a fair trial without a severance and that he suffered compelling prejudice that the trial court could not prevent. Cowart v. State, 488 So.2d 497 (Ala.Cr.App.1985), overruled on other grounds, McClendon v. State, 513 So.2d 102 (Ala.Cr.App.1986) Compelling prejudice requiring severance does not result when the evidence against a codefendant is more damaging than the evidence against the defendant. Faircloth v. State, 471 So.2d 485 (Ala.Cr App.1984), aff'd, 471 So.2d 493 (Ala.1985). "Consolidation of defendants is `procedural, and as such [does] not generally affect the substantial rights of the parties.' Montgomery v. State, 446 So.2d 697 (Ala.Crim.App. 1983), cert. denied, 446 So.2d 697 (Ala. 1984). The test for determining when a severance should be granted on the ground of prejudice is `whether under all the circumstances as a practical matter it is within the capacity of the jurors to follow the court's instructions and to collate and apprise the independent evidence against each defendant solely upon that defendant's own acts.' Montgomery, supra at 700 (quoting Holsemback v. State, 443 So. 2d 1371 (Ala.Crim.App.1983), cert. denied, 443 So.2d 1371 (Ala.1984)). The trial judge obviously determined that the jury could consider the evidence presented in this case separately against these appellants and found that the interests of judicial economy outweighed any prejudice to the appellants as a result of the consolidated trial. His decision will not be disturbed absent an abuse of discretion. Montgomery, supra." Graham v. State, 494 So.2d 916, 920 (Ala. Cr.App.1986). In the case sub judice, involving the gang rape and sodomy of a young woman, Maul, Mims, and Williams are alleged to have participated in the same act or transaction, and the offenses are part of a common 22 conspiracy, scheme, or plan and are so closely connected that it would be difficult to separate proof of one from proof of the others. Moreover, this court has repeatedly held that where evidence shows that two or more defendants raped the prosecutrix as part of one plan and as part of a single transaction, the joinder of those defendants is proper. Martin v. State, 482 So.2d 1272 (Ala.Cr.App.1985). Although only Mims's case contained an additional kidnapping count, the trial court obviously determined that the jury could consider the evidence presented in this case separately against these three codefendants and that the interest of judicial economy outweighed any prejudice to the three codefendants as a result of the consolidation. Graham v. State, supra, 494 So.2d at 920. Pursuant to Rule 15.4(b), A.R.Cr. P.Temp., consolidation is proper, and the trial court did not abuse its discretion. III Maul contends that the trial court erred in refusing to give his written requested charges on sexual misconduct. Maul filed written jury instructions, requesting that the court give the following charges to the jury: "FIRST REQUESTED CHARGE "A person commits the crime of sexual misconduct if: "Being a male, he engages in sexual intercourse with a female and without her consent (under circumstances other than those covered by rape in the first or second degree) or with her consent where consent was obtained by the use of or engages in deviate sexual intercourse with another person (under circumstances other than those covered by sodomy in the first or second degree), either with or without the consent of the other person. "SECOND REQUESTED CHARGE "To sustain the charge of sexual misconduct in this case the state by the evidence must prove beyond a reasonable doubt the following elements of the offense: "First: That Walter Maul, a male, engaged in sexual intercourse with [A.D.], a female, and Second: That he did so without her consent (under the circumstances other than those covered by rape in the first degree); or "Second: That Walter Maul, engaged in deviate sexual intercourse with [A.D.]." Following the trial court's oral charge to the jury, the court asked if there were any exceptions and counsel for Maul said, "Your Honor, I think I am already on the record about my charges." It appears that an off-the-record charge conference was held. The trial court noted that Maul's attorney had objected to its not charging on lesser included offenses, but that the grounds for those objections were not put in the record. After discussion of other charges, counsel for Maul excepted to the judge's not giving the charges but failed again to put his specific charges or grounds on the record. The burden is upon the appellant to check the record to ensure that his objections and the grounds therefor are clearly in the record. See Hollins v. State, 415 So.2d 1249 (Ala.Cr.App.1982). Since Maul clearly failed to state the grounds for his exceptions, the court is due to be affirmed on this issue. Kyser v. State, 513 So.2d 68 (Ala.Cr.App.1987). Rule 14, A.R.Cr.P.Temp., states as follows: "No party may assign as error the court's giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection." We note, moreover, that even had this issue been properly preserved for review, the two requested jury charges on sexual misconduct were properly refused because *23 they were confusing and misleading. Page v. State, 487 So.2d 999 (Ala.Cr.App.1986). The trial court therefore properly refused Maul's two requested jury charges on sexual misconduct. IV Maul contends that the trial court erred in sentencing Maul as a habitual offender because Maul received more severe sentences than any of his codefendants. The State in this case gave oral notice at trial of its intent to proceed under the Habitual Felony Offender Act with respect to Maul. At the sentencing hearing, the State produced certified copies of case action summaries for seven prior felony convictions for Maul. It was noted at the hearing that Maul was a juvenile at the time of these 1980 and 1981 felony convictions. The records, however, clearly show that in six of these convictions, Maul applied for but was denied youthful offender treatment. Maul also admitted that he was represented by an attorney at all the 1980 and 1981 cases and that he was treated as an adult in each of them. Hence, with more than three prior felony convictions and with the present two Class A felony convictions, the trial court sentenced him to the two mandatory life without parole sentences. The Alabama Habitual Felony Offender Act, codified at § 13A-5-9 et seq., Code of Alabama 1975, states at § 13A-5-9(c)(3) as follows: "(c) In all cases when it is shown that a criminal defendant has been previously convicted of any three felonies and such convictions has committed another felony, he must be punished as follows: ".... "(3) On conviction of a Class A felony, he must be punished by imprisonment for life without parole." A variation in sentences between co-actors in a criminal transaction does not alone make the harsher sentence cruel and unusual. Maddox v. State, 502 So.2d 790 (Ala.Cr.App.1986), writ denied, 502 So.2d 794 (Ala.), cert. denied, 481 U.S. 1051, 107 S.Ct. 2185, 95 L.Ed.2d 841 (1987). "[D]isparate treatment of similarly situated individuals at sentencing is not constitutionally impermissible. The Supreme Court has recognized that the `Constitution permits qualitative differences in meting out punishment and there is no requirement that two persons convicted of the same offense receive identical sentences.' Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 2023, 26 L.Ed.2d 586 (1970). A sentencing authority must be given wide latitude in fixing the punishment for convicted offenders." United States v. Satterfield, 743 F.2d 827, 841 (11th Cir.1984), cert. denied, 471 U.S. 1117, 105 S.Ct. 2362, 86 L.Ed.2d 262 (1985). We note that, prior to trial, Maul was offered a life sentence, which he declined. Hence, the reason for the disparity in sentences was the mandatory application of the Alabama Habitual Offender Act, which has repeatedly been held to be constitutional. Jemison v. State, 439 So.2d 786 (Ala. Cr.App.1983). We therefore hold that the trial court properly sentenced Maul as a habitual offender under this statute. V The remaining four issues are affirmed on the authority of Mims v. State, 591 So.2d 120 (Ala.Cr.App.1991). The foregoing opinion was prepared by the Honorable JAMES H. FAULKNER, a former Alabama Supreme Court Justice, and his opinion is hereby adopted as that of the court. The judgment of the circuit court is affirmed. AFFIRMED. All Judges concur.	{ "pile_set_name": "FreeLaw" }
41 So.3d 230 (2010) ALMADOVAR v. STATE. No. 5D10-1154. District Court of Appeal of Florida, Fifth District. July 28, 2010. Decision without published opinion Affirmed.	{ "pile_set_name": "FreeLaw" }
847 F.2d 1038 FARMLAND DAIRIES and Fair Lawn Dairies, Inc., Plaintiffs-Appellees,v.COMMISSIONER OF the NEW YORK STATE DEPARTMENT OF AGRICULTUREAND MARKETS, and Joseph Gerace, FormerCommissioner of the New York StateDepartment of Agriculture andMarkets, Defendants-Appellees,andGold Medal Farms, Inc., Manchester Cream Co., BeachhurstFarms, Inc., Dellwood Foods, Inc., Elmhurst Milk & CreamCo., Inc., Hy-Grade Milk & Cream Co., Inc., MeadowbrookFarms, Inc., Park Lane Dairies, Inc. and Silvercrest Farms,Inc., Proposed Intervenors-Appellants. Nos. 1275 to 1278, Dockets 87-7108, 87-7110, 87-7210, 87-7212. United States Court of Appeals,Second Circuit. Argued June 12, 1987.Decided May 26, 1988. John M. Freyer, Albany, N.Y. (Bond, Schoeneck & King, Richard A. Reed, Albany, N.Y., of counsel), for proposed intervenors-appellants Beachhurst Farms, Inc., Dellwood Foods, Inc., Elmhurst Milk & Cream Co., Inc., Hy-Grade Milk & Cream Co., Inc., Meadowbrook Farms, Inc., Park Lane Dairies, Inc. and Silvercrest Farms, Inc. Stuart I. Friedman, New York City (Friedman, Wittenstein & Hochman, Andrew A. Wittenstein, David J. Nathan, Jody Kasten, New York City, of counsel), for plaintiffs-appellees. Barrie L. Goldstein, Asst. Atty. Gen., State of N.Y., New York City (Robert Abrams, Atty. Gen., State of N.Y., O. Peter Sherwood, Sol. Gen., R. Scott Greathead, First Asst. Atty. Gen., New York City, of counsel), for defendants-appellees. Michael G. Shannon, New York City (Summit Rovins & Feldesman, Michelle I. Schauer, New York City, of counsel) for proposed intervenors-appellants Gold Medal Farms, Inc. and Manchester Cream Co. Before VAN GRAAFEILAND, KEARSE and MAHONEY, Circuit Judges. MAHONEY, Circuit Judge: 1 Plaintiffs-appellees Farmland Dairies and Fair Lawn Dairies, Inc. (collectively "Farmland") are dairy companies based in New Jersey and licensed by the New York Department of Agriculture and Markets (the "Department") to distribute milk in New York State in Orange, Richmond, Rockland and Westchester counties.1 Until January 2, 1987, defendant Joseph Gerace was the Commissioner of the Department (the "Commissioner") and was responsible, inter alia, for administration of the law governing the licensing of milk dealers in New York. The proposed intervenors-appellants ("Appellants") are milk dealers based in New York and licensed to distribute milk in the New York metropolitan area. 2 In an action brought by Farmland against Commissioner Gerace in the United States District Court for the Eastern District of New York, Leonard D. Wexler, Judge, Farmland contested the refusal of the Commissioner to allow Farmland to distribute milk in New York, Bronx, Kings and Queens counties as violative of the interstate commerce clause of the federal Constitution. The district court agreed, and ordered the Commissioner to refrain from applying New York's Agriculture and Markets Law unconstitutionally so as to deprive Farmland of access to the New York metropolitan milk market. See Farmland Dairies v. Comm'r of New York State Dep't of Agric. and Mkts., 650 F.Supp. 939 (E.D.N.Y.1987). Thereafter, the parties entered into a settlement agreement. Appellants then sought leave to intervene in order to appeal the district court's judgment. The district court denied the motion as untimely. 3 Appellants took these appeals from the district court's order denying intervention, and from several other orders of the district court in this action. For the reasons set forth below, we conclude that the district court's denial of Appellants' motions to intervene was not an abuse of the court's discretion. Accordingly, we affirm that order, and dismiss the appeals taken from the remaining orders. Background 4 New York regulates the sale of milk pursuant to a licensing scheme set forth in Article 21 of its Agriculture and Markets Law, N.Y.Agric. & Mkts.Law Secs. 252 through 258-r (McKinney 1972 & Supp.1988), and regulations promulgated thereunder, N.Y.Admin.Code tit. 1A, Secs. 24-1.1 through 24-1.5 (1986). An applicant seeking to sell milk in New York must apply to the Department for a license or licenses on a county-by-county basis. Id. at Secs. 24-1.3(a)(2) and 27.1. Until recently, section 258-c of the Agriculture and Markets Law permitted the Commissioner to deny any license if he "finds by a preponderance of the evidence, after due notice and opportunity of hearing to the applicant or licensee, ... that the issuance of the license will tend to a destructive competition in a market already adequately served; or ... that the issuance of the license is not in the public interest."2 5 On December 30, 1985, Farmland applied for an extension of its milk dealer's license to serve New York, Bronx, Kings and Queens counties (the "four counties") which, together with Richmond County (a/k/a Staten Island), constitute New York City. In early April, 1986, Farmland was notified that the Department would hold hearings on the application. The hearings were conducted from June 23 to July 18, 1986. 6 By notice dated April 17, 1986, the Department notified affected milk dealers that Tuscan Dairy Farms, Inc. ("Tuscan"), a New Jersey-based dairy in competition with Farmland, had applied on April 10, 1986 for an extension of its New York license to acquire and operate the assets of the Metropolitan Division of Dairylea Cooperative, Inc. ("Dairylea"), a major New York dairy manufacturing concern. This division included a Queens County processing plant and distributed milk throughout New York City, as well as in Nassau, Suffolk and Westchester counties. The Department's notice invited submission of written comments pertaining to Tuscan's application not later than April 30, 1986, and stated an intention to take "prompt action on the application after consideration of written comments and other relevant facts." 7 In response to this notice, a law firm representing Farmland wrote the Commissioner on April 25, 1986 objecting to allegedly discriminatory treatment of Farmland's four-county application, on which hearings were scheduled, in contrast with Tuscan's application, which was to be the subject of "prompt action" without hearings. Tuscan's application was granted, and its license extension became effective on May 5, 1986. 8 Thereafter, pursuant to New York's Freedom of Information Law, Farmland requested the Department to provide information concerning the background of Tuscan's application. The response disclosed a letter dated May 6, 1986 from the Department to Tuscan conditioning the Tuscan approval on the understanding that for one year following the effective date of its license extension, Tuscan would notify the Department and obtain approval "for any significant change in plant source of packaged milk" for the Metropolitan Division of Dairylea. Notification, but not approval, was required during the second and third years, and thereafter if the Queens processing plant was to be shut down for a period in excess of one week or closed. Thus, the milk to be processed at the Queens processing plant would continue to originate in New York, and the Tuscan acquisition would not introduce into New York, at least immediately, competition based in New Jersey. 9 On June 9, 1986, Farmland commenced the instant litigation against Commissioner Gerace in his official and individual capacities. Farmland sought a declaration that N.Y.Agric. & Mkts.Law Sec. 258-c, as applied to block Farmland from selling milk in the four counties, violated the commerce clause of the federal Constitution, and that Gerace had violated Farmland's equal protection and due process rights under the fourteenth amendment. Farmland sought both injunctive relief and damages. 10 On June 10, 1986, by order to show cause, Farmland moved for a preliminary injunction restraining Gerace from continuing to enforce section 258-c in a manner violative of the Constitution. The motion was denied by the district court on July 29, 1986, without prejudice to its renewal on October 13, 1986, by which date Gerace was to have decided Farmland's four-county application. 11 Meanwhile, the Department's hearings on Farmland's application commenced on June 23 and concluded on July 18, 1986. The administrative record consisted of over two thousand pages of testimony by thirty-six witnesses, and sixty-one exhibits. The Appellants intervened and participated in the administrative proceedings, offering evidence relevant to the statutory concerns of destructive competition and the public interest. 12 On August 7, 1986, Commissioner Gerace moved for summary judgment before Judge Wexler. On August 22, 1986, Farmland cross-moved for partial summary judgment, contending that there existed no genuine issue of material fact as to the Commissioner's violation of the commerce clause in his administration of section 258-c. 13 On September 10, 1986 the hearing officer presiding over the state administrative proceeding issued a detailed report recommending that Farmland's application to sell milk in the four counties be granted. The report was sent to Commissioner Gerace for a final determination. 14 No determination concerning Farmland's application was reached by October 13, 1986, so Farmland renewed its motion for a preliminary injunction on October 14. On October 24, 1986, just prior to the scheduled oral argument on the motions before the district court, Commissioner Gerace issued a determination to reopen the administrative hearing on Farmland's application "for the purpose of receiving specific testimony and evidence concerning customer solicitation, capacity and service throughout the entire market." The district court declined to rule on any of the pending motions, but secured a commitment from Commissioner Gerace that a decision would be rendered on Farmland's application by December 11, 1986. On that date, Gerace denied Farmland's application to sell milk in the four counties. 15 There was widespread public criticism of that decision. New York State Governor Cuomo described the "outcome" as "disappointing," although expressing his confidence that Commissioner Gerace "exercised his best judgment on the law." New York City Mayor Koch stated "[t]he consumer has been dealt a body blow," and assailed Commissioner Gerace as "becoming the protector of the milk monopoly." Gerace resigned as Commissioner on January 2, 1987. 16 On January 8, 1987, the district court issued a memorandum and order in which it sustained Farmland's commerce clause claim. Judge Wexler held that Gerace's application of section 258-c to Farmland's application had both the purpose and the effect of discriminating against interstate commerce. Farmland's motion for summary judgment was granted, and the Commissioner was permanently enjoined "from applying section 258-c unconstitutionally by continuing to deny Farmland access to the New York milk market."3 650 F.Supp. at 951. The court rejected defendants' claims that Farmland lacked standing and that Farmland's commerce clause claim was moot. The district court also denied defendant's motion for summary judgment with respect to Farmland's claim for damages, concluding that material issues of fact existed with respect to defendant's eleventh amendment and official immunity defenses to that claim. 17 Immediately after the district court issued its decision, representatives of New York State Attorney General Robert Abrams consulted with the office of Counsel to the Governor (collectively the "State") to determine whether to appeal the court's judgment. They assessed Farmland's ultimate likelihood of success, and the nature and burden of any proceedings likely to ensue if the State were successful on appeal. They considered that a remand from a successful appeal would precipitate extensive discovery and a complex, expensive trial, and that if Farmland were to prevail following trial on its damages claim against former Commissioner Gerace, the State, which would presumably indemnify Gerace, would be exposed to a substantial money judgment. See N.Y.Pub.Off.Law Sec. 17 (McKinney Supp.1988) (requiring state defense and indemnification of state employees under certain circumstances). Based upon these considerations, the State decided not to appeal. 18 Negotiations with Farmland followed. An agreement settling this case and related litigation4 was reached on January 9, 1987, and was promptly announced by Governor Cuomo. The State agreed to forgo an appeal of the district court decision and to license Farmland to sell milk in the four counties, as well as in Nassau and Suffolk counties. Farmland agreed to drop its damage claim against Gerace, contingent upon reaching an agreement for State reimbursement of Farmland's litigation costs and attorneys' fees, which thereafter occurred. 19 On January 12, 1987, Farmland, the State and Appellants appeared before Judge Wexler. The terms of the settlement were read into the record, and the court marked the case "settled and discontinued with prejudice."5 At this juncture, Appellants moved for leave to intervene in this litigation "both for reargument ..., and so that if necessary, the intervenors may pursue an appeal to the Court of Appeals for the Second Circuit...." In response to questions posed by Judge Wexler, Appellants admitted that although they had made no earlier application to intervene, they had been aware of this lawsuit since July, 1986. Appellants stated that they deemed their interests adequately represented by the State prior to the settlement, although Appellants' attorneys never personally reviewed the relevant court files. 20 Farmland and the State were permitted until January 23, 1987 to respond to the motions for intervention. Oral argument followed on February 5, 1987. Prior to the oral argument, however, Appellants filed notices of appeal from the memorandum and order granting Farmland summary judgment and a permanent injunction which was entered January 8, 1987, and the order of discontinuance entered January 13, 1987. 21 On February 5, 1987, the district court denied Appellants' applications to intervene, finding them untimely and likely to cause prejudice to the existing parties if they were granted. The court's order denying intervention was entered on February 19, 1987. Appellants filed further notices of appeal on March 2, 1987.6 22 The State moved to dismiss the appeals by motion dated March 18, 1987; by order dated April 7, 1987, another panel of this court denied the motion without prejudice to its renewal before this panel. All appeals have been consolidated. 23 Numerous arguments have been presented to us. Appellants argue that they filed timely notices of appeal from the injunction order; that the appeals present a case or controversy; that the district court abused its discretion in denying the intervention motions; that the court erred in denying the State's motion for summary judgment and in granting Farmland's; and that the court violated the abstention doctrine in enjoining the Department from applying section 258-c to Farmland. The State contends that this court has no power to hear these appeals, arguing that Appellants failed to file a timely notice of appeal from the injunction order; that no case or controversy exists; and that Appellants lack standing to appeal the injunction order. The State also argues that the district court did not abuse its discretion in denying intervenor status to Appellants under Fed.R.Civ.P. 24(a)(2). Farmland similarly contends that this court is without power to entertain these appeals because the State's decision not to appeal the injunction order has extinguished any otherwise viable case or controversy, that Appellants lack standing, and that the case, having been settled, is moot. Alternatively, Farmland argues that the district court's Rule 24 order was sound. Farmland has also presented arguments going to the merits. 24 We find it necessary to treat only the intervention issue. Discussion 25 In general, only a party of record in an action may appeal an adverse judgment. Marino v. Ortiz, --- U.S. ----, ----, 108 S.Ct. 586, 587, 98 L.Ed.2d 629 (1988) (per curiam) (citing United States ex rel. Louisiana v. Jack, 244 U.S. 397, 402, 37 S.Ct. 605, 607, 61 L.Ed. 1222 (1917), and Fed.R.App.P. 3(c)); Martin-Trigona v. Shiff, 702 F.2d 380, 385 (2d Cir.1983); United States v. McFaddin Express, Inc., 310 F.2d 799, 801 (2d Cir.1962). Of course, parties of record include those who have been permitted to intervene. Hispanic Soc'y v. New York City Police Dep't, 806 F.2d 1147, 1152 (2d Cir.1986), aff'd sub. nom. Marino v. Ortiz, --- U.S. ----, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988) (per curiam). Accordingly, the threshold (and ultimately dispositive) question before us is the correctness Judge Wexler's order denying intervention. 26 Appellants sought leave to intervene as of right pursuant to Fed.R.Civ.P. 24(a)(2). Under Rule 24(a)(2), the proposed intervenor must "(1) file timely, (2) demonstrate an interest in the action, (3) show an impairment of that interest arising from an unfavorable disposition, and (4) have an interest not otherwise adequately protected." United States v. New York, 820 F.2d 554, 556 (2d Cir.1987) (citing Restor-A-Dent Laboratories, Inc. v. Certified Alloy Products, Inc., 725 F.2d 871, 874 (2d Cir.1984)). Failure to satisfy any one of these requirements is a sufficient ground to deny the application. United States v. New York, 820 F.2d at 556 (citing United States v. City of Chicago, 798 F.2d 969, 972 (7th Cir.1986), cert. denied sub nom. O'Sullivan v. United States, --- U.S. ----, 108 S.Ct. 771, 98 L.Ed.2d 858 (1988)). Thus, an untimely motion to intervene must be denied. NAACP v. New York, 413 U.S. 345, 365, 93 S.Ct. 2591, 2602, 37 L.Ed.2d 648 (1973); United States v. Yonkers Bd. of Educ., 801 F.2d 593, 594 (2d Cir.1986) (quoting NAACP v. New York, and citing United States Postal Service v. Brennan, 579 F.2d 188, 191 (2d Cir.1978)). 27 The determination of the timeliness of an application to intervene is committed to the sound discretion of the trial court, and we therefore review only as to abuse of that discretion. NAACP v. New York, 413 U.S. at 366, 93 S.Ct. at 2603; United States v. New York, 820 F.2d at 557; United States v. Yonkers Bd. of Educ., 801 F.2d at 594-95. Of course, that discretion is not unfettered. An application's timeliness must be evaluated against the totality of the circumstances before the court. NAACP v. New York, 413 U.S. at 366, 93 S.Ct. at 2603; United States v. Yonkers Bd. of Educ., 801 F.2d at 595. While not necessarily an exhaustive enumeration, the following factors should guide the district court's determination: (1) the length of time the applicant knew or should have known of his interest before making the motion; (2) prejudice to existing parties resulting from the applicant's delay; (3) prejudice to the applicant if the motion is denied; and (4) the presence of unusual circumstances militating for or against a finding of timeliness. United States v. New York, 820 F.2d at 557. In addition, post-judgment intervention is generally disfavored because it fosters delay and prejudice to existing parties. United States v. Yonkers Bd. of Educ., 801 F.2d at 596 (collecting authorities). 28 Applying these criteria, we conclude that the district court did not abuse its discretion by denying as untimely Appellants' motions to intervene. The court noted that Appellants were aware of this and related litigation, and "are not poor, ignorant people whose rights have to be protected." Appellants intervened and participated fully in the state administrative hearings on Farmland's four-county application. No reason appears why they could not have acted similarly in this litigation. 29 Appellants point out that they moved to intervene promptly after learning that the Attorney General of New York State would not appeal the district court's injunction order, and contend that "[u]p to that time, [they] had every reason to believe that the State would defend the constitutionality of Sec. 258-c and the decisions of the Commissioner thereunder, as it always had in the past." Appellants should certainly have been aware, however, that the interests represented by the Attorney General are not coterminous with their own. That officer is charged with the responsibility to "[p]rosecute and defend all actions and proceedings in which the state is interested ... in order to protect the interest of the state...." N.Y.Exec.Law Sec. 63(1) (McKinney 1982) (emphasis added). Thus, the Attorney General "represents the whole people and a public interest, and not mere individuals and private rights." People v. Brooklyn, Flatbush & Coney Island Ry. Co., 89 N.Y. 75, 93 (1882) (citations omitted). 30 Furthermore, if Appellants were permitted to intervene at this late date, there is no question that the settlement concluded by Farmland and the State would be jeopardized. Following the district court's grant of summary judgment and a permanent injunction to Farmland, the State determined that the public interest would best be served by forgoing appeal and permitting Farmland's entry into the four counties and Nassau and Suffolk. In consideration of that permission, Farmland agreed to drop its damage claim against Gerace--subject only to resolution of the question of attorneys' fees, which thereafter occurred. The interests prejudiced by intervention--Farmland's interest in the licenses which have been granted to it, and the State's interest in avoiding continuing litigation and a potential obligation to indemnify defendant Gerace against Farmland's damage claim--are clearly substantial. 31 The harm Appellants face absent leave to intervene--competition from Farmland--does not, in our view, tip the balance in their favor,7 especially in the context of post-judgment intervention. Rather, "it does not strike us as unjust that intervention on the part of the late-arrivers must yield under all the circumstances herein." United States v. Yonkers Bd. of Educ., 801 F.2d at 596. 32 Since the district court did not abuse its discretion in denying Appellants' motions to intervene as untimely, we have no occasion to consider the other requirements, see United States v. New York, 820 F.2d at 856, for Rule 24(a)(2) intervention. Further, since we accordingly affirm the order denying intervention, Appellants have no standing to appeal any other order entered by the district court, and their appeals from those orders must be dismissed. Marino v. Ortiz, --- U.S. ----, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988). Conclusion 33 The order of the district court denying Appellants' motions to intervene is affirmed. The appeals from other orders of the district court are dismissed. 1 Farmland had previously filed lawsuits against Commissioner Gerace in both state and federal courts concerning its distribution of milk in some of these counties. See Farmland Dairies v. Comm'r. of New York State Dep't of Agric. and Mkts., 650 F.Supp. 939, 949 n. 7 (E.D.N.Y.1987) (opinion below) 2 Subsequent to the decision below, section 258-c was amended to delete these grounds for denial, as well as the requirement of a finding by a preponderance of the evidence, effective April 1, 1988 3 Since defendant Gerace had by then resigned as Commissioner, his "successor" was "automatically substituted as a party" in accordance with Fed.R.Civ.P. 25(d). No successor having been named at the time of the district court decision, Judge Wexler specified that "[a]ny relief awarded by the Court against the Commissioner in his official capacity shall be enforceable against the individual chosen to take on the Commissioner's responsibilities, either on an acting or permanent basis." 650 F.Supp. at 941 n. 2. Since damages were sought against defendant Gerace in his individual capacity, he was continued as a defendant 4 See supra note 1 5 An order to that effect was entered the following day. In view of the settlement that had been achieved, the permanent injunction was not continued 6 These notices reiterated the appeals from the orders entered January 8 and January 13, 1987, and in addition appealed from the order denying intervention which was entered on February 19, 1987. The notices also appealed from a stipulation and order entered on February 5, 1987 which related to the damage claim against Gerace, which claim was thereafter finally settled (as between Farmland and the defendants-appellees) 7 Although, for the reasons herein stated, we do not reach the merits of Appellants' contentions, we note that Appellants' position on the competition issue is severely undermined by the intervening statutory amendment eliminating the grounds upon which former Commissioner Gerace relied for administrative denial of the Farmland four-county application. See supra note 2	{ "pile_set_name": "FreeLaw" }
729 F.2d 778 Morvantv.Teledyne Movible Offshore* NO. 83-4468 United States Court of Appeals,fifth Circuit. MAR 16, 1984 1 Appeal From: W.D.La. 2 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2	{ "pile_set_name": "FreeLaw" }
435 N.W.2d 337 (1989) STATE of Iowa, Appellant, v. Ronnie D. BRUMAGE, Appellee. No. 87-1571. Supreme Court of Iowa. January 25, 1989. 338 Thomas J. Miller, Atty. Gen., Christie J. Scase, Asst. Atty. Gen., E.A. Westfall, County Atty., for appellant. David E. Richter, Council Bluffs, and Troyce A. Wheeler, Council Bluffs, for appellee. Considered by McGIVERIN, C.J., and LARSON, SCHULTZ, CARTER, and ANDREASEN, JJ. SCHULTZ, Justice. The State appeals from the trial court's pretrial dismissal of four criminal charges filed against Ronnie D. Brumage for the drugging of dogs in violation of Iowa Code section 99D.25(3)(b) (1987). Following a hearing on defendant's motion to dismiss, the defendant abandoned the portion of his motion based on the State's failure to state a prima facie case. He instead relied solely on the claim that the charging statute was unconstitutionally vague. The court entered a dismissal on its own initiative pursuant to Iowa Rule of Criminal Procedure 27(1), dismissing the Trial Information "in the furtherance of justice." While the court did not directly rely on the constitutional claim, it opined that section 99D.25(3) was vague. The State appeals, claiming that the trial court abused its discretion by dismissing the Trial Information and that Iowa Code section 99D.25(3) is not unconstitutionally vague. We reverse. The "minutes of testimony," attached to the trial information, reveal that State agents conducted a dog drugging investigation at the Brumage Kennels at Bluffs Run track in Council Bluffs. It was 339 learned that defendant Ronnie Brumage, son of the kennel owner, was injecting some of their dogs with a substance to improve their racing performance. Four dogs were injected on March 9, 1987, and each dog raced on either March 10th or 11th. The state agent seized drug vials and syringes. The Diagnostic Laboratory at Iowa State University tested the contents of a vial and syringe, the results revealing they contained Boldenone Undecylenate, an anabolic steroid found in the drug Equipose. This drug is used to increase muscle mass, influence metabolism rates and sometimes produce aggressive behavior in animals. It is a synthetic compound not naturally found in animals. The urine samples taken on the dogs prior to their races on March 10th and 11th continue under testing. In adopting pari-mutuel betting, the legislature prohibited certain acts relating to horse or dog racing. In charging Brumage, the State relied upon the prohibition against "the drugging of a ... dog with knowledge or reason to believe that the ... dog will compete in a race while so drugged...." § 99D.25(3)(b). "Drugging" is defined as "administering to a ... dog any substance, foreign to the natural... dog prior to the start of a race." § 99D.25(1)(a). Defendant filed a motion to dismiss which was set for hearing and generated a rather unusual evidentiary proceeding. Without objection, defendant called the county attorney as a witness and sought to have her interpret the terms of the applicable statute. Defendant also called other racing officials, veterinarians, and a D.C.I. agent seeking their interpretations of terms, among other matters. The State, on the other hand, presented no evidence, but did ask the court to take judicial notice of certain rules of Greyhound Racing. This hearing was conducted despite the fact that defendant had neither sought, nor obtained, the required Bill of Particulars for a motion to dismiss grounded generally on insufficiency of the evidence. See State v. Graham, 291 N.W.2d 345, 350 (Iowa 1980). At oral argument on appeal, defendant's counsel conceded that he was aware of this deficiency. He further stated that when an in-chambers conference with the judge led him to believe that his motion was going to be sustained, he withdrew the portion of the motion based on general insufficiency of the evidence to avoid this problem. Despite the withdrawal of this portion of the motion, the trial court was troubled by what it perceived to be the weakness of the State's case. It reviewed the defendant's evidence and the proof required under the charging section. It decided that the State could not show that these dogs competed while drugged and concluded that if the case were to proceed to trial, the court would be forced to sustain an acquittal motion at the conclusion of the State's evidence. After commenting on the wasted expense of a trial, the court dismissed the case in the furtherance of justice under Rule of Criminal Procedure 27(1). I. Dismissal. Various procedures for dismissal are available. First, trial courts are vested with authority to dismiss criminal charges by Iowa Rule of Criminal Procedure 10(6), which sets out specific grounds required for such a motion. Second, after the State's evidence is offered at trial, the defendant is entitled to a judgment of acquittal if the evidence is insufficient to sustain a conviction of the offense charged. Iowa R.Crim.P. 18(8)(a). A third method of dismissing an action is under Rule of Criminal Procedure 27(1), which was relied upon by the trial court in this case. This rule provides: The court, upon its own motion or the application of the prosecuting attorney, in the furtherance of justice, may order the dismissal of any pending criminal prosecution, the reasons therefor being stated in the order and entered of record, and no such prosecution shall be discontinued or abandoned in any other manner. Such a dismissal is a bar to another prosecution for the same offense if it is a simple or serious misdemeanor; but it is not a bar if the offense charged be a felony or an aggravated misdemeanor. 340 The State maintains that the trial court erred in two respects: first, the State should have been advised of the court's intention to dismiss in the furtherance of justice, enabling it to present an argument on the merits of the case; and second, the court abused its discretion in dismissing the charges prior to trial because, contrary to the trial court's conclusion, the evidence creates a jury question regarding defendant's guilt of the crimes charged. A. Notice. The State complained that the trial court failed to provide notice that it was contemplating dismissing the case under Rule 27(1). Defendant concedes that there is no record of notification. We must determine whether notice to the parties is required. No specific provision in Rule 27(1) requires a trial court to give notice before entering a dismissal. However, our previous pronouncements leave little doubt that such notice is mandated. In regard to our rule's predecessor, we stated that prior to dismissal, "a fair opportunity for each side to present its case must be afforded" to provide a requisite "opportunity for each side to be heard." In re Judges of the Municipal Court, 256 Iowa 1135, 1137, 130 N.W.2d 553, 555 (1964). Our court of appeals specifically recognized a right of notice to the State in stating, "[i]f trial court was considering dismissal of the charges in the furtherance of justice, fair notice of its intention to do so should have been given to the parties and a full hearing held to permit them to argue the merits of dismissal or trial of the remaining charges." State v. Lundeen, 297 N.W.2d 232, 235 (Iowa App.1980). We hold that the trial court's failure to afford the State an opportunity to present reason why the case should not be dismissed was an abuse of its discretion. B. Propriety of Dismissal. A trial court's authority to dismiss under Rule 27(1) is limited by the general phrase "in the furtherance of justice." While we have not previously defined the bounds of this phrase, we have suggested that proper reasons for dismissal under this rule include "facilitating the State in gathering evidence, procuring witnesses, or plea bargaining." State v. Fisher, 351 N.W.2d 798, 801 (Iowa 1984) (citing State v. Johnson, 217 N.W.2d 609, 612-13 (Iowa 1974)). Other jurisdictions with similar statutes have curtailed the trial court's authority to dismiss. Perhaps the most limited application has been made by the Washington court which requires that the dismissal be based on a showing of arbitrary action or governmental misconduct. State v. Whitney, 96 Wash.2d 578, 579-80, 637 P.2d 956, 958 (1981). The Washington appellate courts have also upheld the trial court's inherent authority to dismiss for insufficiency of the charge or insufficiency of the evidence. State v. Knapstad, 41 Wash. App. 781, 786, 706 P.2d 238, 241 (1985). However, the state Supreme Court indicated that a motion to dismiss on this ground is premature before the court has opportunity to hear the evidence at trial. State v. Tyler, 77 Wash.2d 726, 738, 466 P.2d 120, 127 (1970). In interpreting its similarly worded statute, the California Supreme Court stated that such language "requires consideration both of the constitutional rights of the defendant, and the interest of society represented by the People, in determining whether there should be a dismissal." People v. Orin, 13 Cal.3d 937, 945, 533 P.2d 193, 199, 120 Cal.Rptr. 65, 71 (1975). At a minimum, the reason for dismissal must be "that which would motivate a reasonable judge." Id. at 945, 533 P.2d at 199, 120 Cal.Rptr. at 71. Similar to California, New York interpreted its statute to require a court to attain a sensitive balance between the individual and the state. People v. Insignares, 109 A.D.2d 221, 231, 491 N.Y.S.2d 166, 173 (1985). The court warned that the trial court's discretion to dismiss in the interest of justice, should be "exercised sparingly" and only in that "rare" and "unusual" case where it "cries out for fundamental justice beyond the confines of conventional consideration." Id. at 234, 491 N.Y.S.2d at 175 (citation omitted); see e.g., People v. Superior Court, 69 Cal.2d 491, 504, 446 P.2d 138, 147, 72 Cal.Rptr. 330, 339 (1968) (to avoid 341 harassment of retrial when defendant has already served appropriate period of incarceration awaiting trial, "notwithstanding the fact that there is sufficient evidence of guilt"); People v. Dewberry, 40 Cal.App.3d 175, 185, 114 Cal.Rptr. 815, 822 (1974) (dismissal proper when essential evidence to prove guilt is required to be excluded); People v. Superior Court, Santa Barbara County, 20 Cal.App.3d 684, 687, 97 Cal. Rptr. 886, 888 (1971) ("only possible result of a conviction ... would be a concurrent sentence" and such a nominal increase in penalty would only "harass defendant"); State v. Witt, 572 S.W.2d 913, 917 (Tenn. 1978) (court's inherent authority properly used to dismiss indictment after three prior error-free trials resulted in deadlocked juries and, at future trial, substantially the same evidence would be presented). In interpreting the "in furtherance of justice" language of our rule, we believe that California and New York have the better-reasoned rule. We hold that our trial court should dismiss only after considering the substantive rights of the defendant and the interests of the state. Our court of appeals adopted certain factors for trial court consideration including, but not limited to: (1) weight of the evidence of guilt or innocence; (2) nature of the crime involved; (3) whether defendant is or has been incarcerated awaiting trial; (4) whether defendant has been sentenced in a related or similar case; (5) length of such incarceration; (6) possibility of harassment; (7) likelihood of new or additional evidence at trial; (8) effect on the protection to society in case the defendant should actually be guilty; (9) probability of greater incarceration upon conviction of another offense; (10) defendant's prior record; (11) the purpose and effect of further punishment; and (12) any prejudice resulting to defendant by the passage of time. Lundeen, 297 N.W.2d at 236. We approve of these factors, however, we would also note that a court has broader discretion to dismiss a case in the furtherance of justice after the verdict than during the trial. People v. Superior Court of Marin County, 69 Cal.2d 491, 503, 446 P.2d 138, 146, 72 Cal.Rptr. 330, 338 (1968). After the verdict, the judge has heard the prosecution's evidence, whereas before trial, there is always a possibility that without a dismissal, more evidence may be received. Id. at 503, 446 P.2d at 146, 72 Cal.Rptr. at 338. Our review of the trial court's dismissal under Rule 27(1) is for abuse of discretion. Lundeen, 297 N.W.2d at 235. This court will not find an abuse of discretion unless the State shows that such discretion was exercised on grounds clearly untenable or, to an extent, clearly unreasonable. State v. Morrison, 323 N.W.2d 254, 256 (Iowa 1982). The trial court in this case held that for reasons of justice and economy, the charges should be dismissed because it assumed that the defendant would be entitled to an acquittal motion at the conclusion of the State's evidence. We find this reasoning clearly untenable. While the court had heard some of the evidence, the State had not presented its case. The State was deprived of its opportunity to put forth evidence to satisfy the elements of the charge. Nevertheless, defendant urges that the trial court relied upon certain undisputed evidence in its ruling. This reliance was misplaced. The trial court stated it was undisputed that the defendant is neither the owner nor the trainer of these dogs and did not enter the dogs in a race. These are elements of section 99D.25(3)(a), but are not required in subsection (b), the section under which defendant's charges were pending. Whether Brumage was the dogs' owner or trainer or entered the animals in a race is irrelevant. Finally, the trial court indicated that the State must be able to prove that the dogs "will compete while drugged." It stated that all the drug tests on the pertinent dogs have been negative and that the State cannot show by any means that a certain dog has competed while drugged without a positive test result. The trial court also misreads subsection (b). This statute does not prohibit the drugging of a dog that 342 competes in a race. Rather, it prohibits the drugging of a dog with the belief that the dog will compete in a race while so drugged. The State should have been allowed to demonstrate at trial that the defendant drugged the dogs with the intent that they would race while drugged. In summary, we hold that the trial court abused its discretion by dismissing the charges "in the furtherance of justice" based on the lack of evidence before the State had an opportunity to present its case at trial. II. Vagueness. In his motion to dismiss, defendant claimed that section 99D.25(3)(b) is so overbroad as to violate both the federal and state constitutions. Apparently, the defendant's attack on the overbreadth of the statute shifted to a claim of vagueness during the proceedings. Both his trial brief and the trial court ruling refer only to vagueness. The issue of vagueness appears to have been before the trial court by consent. After dismissing the charges "in the furtherance of justice," the trial court ruling went on to characterize section 99D.25(3)(b) as unconstitutionally vague. Although the trial court did not directly rely on this conclusion in its dismissal, it essentially stated constitutionality as an alternate reason for its ruling. Both parties argued this issue on appeal and we believe that it is properly before us. Our principles of review for the validity of a criminal statute were summarized in State v. Duncan, 414 N.W.2d 91 (Iowa 1987). The person challenging the statute carries the heavy burden of rebutting the presumption of constitutionality. Id. at 95. If the statute can be made constitutional by a reasonable construction, the court is required to give it that construction. Id. The statute will only be declared unconstitutional when it clearly, palpably and without doubt, infringes the constitution. Id. A penal statute, attacked on vagueness grounds, must satisfy two specific standards: (1) it must give a person of ordinary intelligence fair warning of what is prohibited; and (2) it must provide explicit standards for those who enforce it. State v. McKee, 392 N.W.2d 493, 494 (Iowa 1986). A statute is not unconstitutionally vague if the meaning of the words used can be fairly ascertained by reference to similar statutes, other judicial determinations, the common law, the dictionary, or the common and generally accepted meaning of the words themselves. Id. In this case, defendant claims two parts of this statute are so general as to render the statute void. Specifically, the phrases "any substance foreign to the natural dog" and "prior to the start of a race" are objected to. Defendant contends that the witnesses' interpretations of these phrases varied greatly. He claims that the statute's "prohibitions are not clearly defined and causes persons of ordinary intelligence to guess what is prohibited." He further asserts, "the language is so overbroad as to include conduct which no one ever intended to make illegal." A statute may be challenged for vagueness either on its face or as it applies to the specific defendant. A facial challenge claims the law is totally invalid and therefore, "incapable of any valid application." Duncan, 414 N.W.2d at 96 (quoting Village of Hoffman Estates v. Flipside, Hoffman Estates Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362, 369 (1982), reh'g denied, 456 U.S. 950, 102 S.Ct. 2023, 72 L.Ed.2d 476 (1982)). As we read defendant's trial and appellate briefs and the trial court decision, this appears to be a facial attack on the statute. In summarizing the applicable law for facial attacks to statutes, the United States Supreme Court stated: In a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all 343 of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law. Hoffman Estates, 455 U.S. at 494-95, 102 S.Ct. at 1191, 71 L.Ed.2d at 369 (footnotes omitted). Defendant initially claimed that the statute is so far-reaching that it is overbroad. The overbreadth doctrine is applicable to state regulations which sweep unnecessarily broadly and invade the area of protected freedoms. See Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830, 839-40 (1973). That doctrine does not apply here. Turning next to the facial vagueness challenge, we must determine if, under the statute, "no standard of conduct is specified at all," Parker v. Levy, 417 U.S. 733, 755, 94 S.Ct. 2547, 2561, 41 L.Ed.2d 439, 457 (1974), or if the statute "is impermissibly vague in all of its applications." Hoffman Estates, 455 U.S. at 497, 102 S.Ct. at 1193, 71 L.Ed.2d at 371. We conclude that defendant made no such showing. Section 99D.25(3)(b) does specify a standard of conduct when viewed in light of statutory and agency definitions and the specified purposes of the statute. The statute prohibits the drugging of a dog with the knowledge or reasonable belief that the dog will race while drugged. "Drugging" is defined as the administering of a foreign substance to the dog prior to a race. § 99D.25(1)(a). The Iowa Racing and Gaming Commission's regulations further define "foreign substance" as "any drug ... foreign to the greyhound's body, which does or could affect the racing condition of a greyhound, or which does or could affect sampling or testing procedures." Iowa Admin.Code 491-7.1(99D) (1988). The statute's purposes further clarify these phrases. Section 99D.25(2) states that the drugging of a dog prior to a race: a. Corrupts the integrity of the sport of racing and promotes criminal fraud in the sport; b. Misleads the wagering public and those desiring to purchase a horse or dog as to the condition and ability of the horse or dog; .... When these provisions are considered together, a standard of prohibited conduct is specified. Foreign substances, such as drugs which could affect the racing condition or ability of a dog, are not to be administered at a time prior to the race so that the dog will race while drugged, thereby misleading the wagering public of the dog's condition. In addition, when we examine vagueness, we need first look only to the statute's specific application to defendant to determine whether it is vague. Hoffman Estates, 455 U.S. at 495, 102 S.Ct. at 1191, 71 L.Ed.2d at 369. If it is constitutional as applied, by definition, it is not unconstitutional on its face. State v. Hepburn, 270 N.W.2d 629, 631 (Iowa 1978). The litigant cannot "borrow" the unconstitutionality claim of another. Id. We do not believe that the term "substance foreign to the natural dog" is so uncertain that defendant did not understand its application. The State asserted that defendant drugged four different dogs between March 1 and March 23, 1987, with reason to believe that the dogs would compete in a race while so drugged. The State anticipates proving that during this time period, defendant was injecting his dogs with an anabolic steroid called Equipose. The State expects an employee of the kennel to testify that defendant stated "he was getting something in that would help the dogs run better," that the employee was "to keep her mouth shut about it" and that "the injection he was using would not show up in any of the tests performed by the Racing Commission." It is obvious that the legislature meant to prohibit the placing of any drug or other like substance into the body of a dog, where it is not normally found, in order to affect the outcome of a race. Defendant is charged with injecting the dogs shortly before he would expect them to run. We believe that as applied to the defendant, *344 this statute satisfies the vagueness test previously set forth. Therefore, defendant's facial attack of the statute must fail because a standard of conduct is specified and further, it is not vague in all of its applications. This defendant, whose own activity clearly falls within the statute's proscription, is not entitled to attack the statute because the statute does not give similar fair warning to other conduct which might be within its broad and literal ambit. Parker, 417 U.S. at 756, 94 S.Ct. at 2562, 41 L.Ed.2d at 458; see also Hoffman Estates, 455 U.S. at 495, 102 S.Ct. at 1191, 71 L.Ed. 2d at 369; Hepburn, 270 N.W.2d at 631. Therefore, we find that the trial court erred in determining that section 99D.25(3) is unconstitutionally vague as applied to defendant. REVERSED AND REMANDED.	{ "pile_set_name": "FreeLaw" }
12 F.2d 253 (1926) DAVIS v. UNITED STATES. LAND v. SAME. Nos. 4681, 4697. Circuit Court of Appeals, Fifth Circuit. March 31, 1926. Rehearing Denied April 22, 1926. 254 Philip D. Beall and John M. Coe, both of Pensacola, Fla., and Ira A. Hutchison, of Panama City, Fla, for plaintiff in error Davis. Wm. Fisher of Pensacola, Fla., and Paul Carter, of Marianna, Fla., for plaintiff in error Land. Fred Cubberly, U. S. Atty., and George Earl Hoffman, Asst. U. S. Atty., both of Pensacola, Fla. Before WALKER, BRYAN, and FOSTER, Circuit Judges. BRYAN, Circuit Judge. These are prosecutions for holding, arresting, and returning four men to a condition of peonage, in violation of section 269 of the Criminal Code (Comp. St. § 10442). Originally there were four indictments, numbered 2068, 2069, 2070, and 2071. Indictment 2068 consists of a single count, and charges M. D. Davis with holding Henry Sanders to a condition of peonage. Indictment 2069, in separate counts, charges Davis with holding George Diamond, Galvester Jackson, and De Witt, Stonan, respectively, to a condition of peonage. Indictment 2070 consists of eight counts, and charges Davis, Charles Land, Carey Whitfield, Frank Daniels, and Will Proctor, all as principals, in the first four counts with arresting, and in the last four counts with returning, Sanders, Diamond, Jackson, and Stonan to a condition of peonage. Indictment 2071 also contains eight counts, and charges Davis, as principal, in the first four counts with arresting, and in the last four counts with returning, separately and severally, Sanders, Jackson, Diamond, and Stonan, respectively, to a condition of peonage, in order to compel them to work for Davis in payment of debts which they owed him. In the last-named indictment, Land, Whitfield, Daniels, and Proctor are charged in each count with aiding and abetting Davis. The holdings to a condition of peonage were alleged to have occurred on September 29, 1924, and the arrests and returns thereto on September 30, 1924. The four indictments were consolidated for trial over the objection and exception of all the defendants, but during the trial the government was required to elect between indictments 2070 and 2071, and this requirement resulted in the withdrawal of indictment 2070 from the consideration of the jury. Davis was convicted on all counts of the three indictments submitted to the jury, and sentenced to serve 13 months in the penitentiary and to pay a fine of $500. Land was convicted on the first four counts of indictment 2071, which separately charges the arrest to a condition of peonage of Sanders, Diamond, Jackson, and Stonan, and sentenced to serve a year and a day in the penitentiary and to pay a fine of $500. The other defendants were convicted on several counts of indictment 2071, but it is unnecessary to consider their cases as they have not sued out writs of error. Davis and Land have sued out separate writs of error, which may be disposed of in one opinion. There was evidence for the government to the following effect: In the year 1924 the defendant Davis operated two turpentine farms, one called Camp Sanders, and the other Farmdale, located, respectively, 10 miles west and 25 miles southwest of Wewahitchka, a town in Calhoun county, Fla. Whitfield, Daniels, and Proctor, defendants in the court below, were employees of Davis at his Farmdale place. Defendant Land was not connected in business with Davis, but had a turpentine place of his own near Wewahitchka. The so-called peons, Diamond and Jackson, went to work for Davis at Camp Sanders in June, 1924. About two weeks after their employment began, they obtained permission to go to River Junction, which is some distance north of Wewahitchka, for the purpose of moving Diamond's family to Camp Sanders. Diamond and Jackson, not having returned, were arrested on August 8 at River Junction, at the instigation of Davis, and taken to Blountstown, the county seat of Calhoun county, on a charge of larceny of property of the value of $8.50 belonging to Davis. When they were brought before the county judge to plead to the charge against them, Davis was present and made the statement, with the apparent 255 approval of the county judge, that if they did not plead guilty they would be imprisoned for a period of eight months, whereupon they both pleaded guilty. At the same time Henry Sanders, another alleged peon, was before the county judge on a charge of larceny from Land's brother of property of the value of $2.75, and he also pleaded guilty. The county judge ordered the three prisoners released on payment of costs. Davis paid the costs, which amounted to $37.28 against Diamond and Jackson, and $25 against Sanders, and in addition assumed responsibility to Land's brother for a debt of $100, which the latter claimed against Sanders, and took Diamond, Jackson, and Sanders, to his turpentine place at Farmdale, and held them there upon their agreements to work out the debts thus incurred, as well as other claims of indebtedness which he held against Diamond and Jackson. Do Witt Stonan was also being held at Farmdale for a debt, but so far as appears had not been charged with crime. The four peons were kept under surveillance, and remained against their will, because of their fear of physical punishment and criminal prosecution, until the night of September 29, 1924, when they, accompanied by the wife of Sanders and the wife of Stonan, secretly left Farmdale with the intention of making their escape. On the next morning, September 30, 1924, they arrived at the home of one May Bell McGee, near Wewahitchka, where the women were left. The four men went around the town and hid in the woods adjacent to what is called the West Arm highway bridge, which it appears was the only practical means of proceeding northward toward Blountstown, with the intention of crossing the bridge at night, when the chances of apprehension would be less than in the daytime. This bridge is about a mile north of Wewahitchka. Early on the morning of September 30, Davis and his employees, Whitfield, Daniels, and Proctor, appeared in Wewahitchka in search of the escaped laborers. Davis and one other man proceeded across the West Arm bridge to the home of Matthew Brown, the father of Sanders' wife. Upon being assured that Sanders was not at Brown's house, he proceeded on up the road in the direction of Blountstown. Brown then went in his automobile to search for his daughter, and found her and Stonan's wife at the McGee woman's home. He took them in his car, with the intention of taking them to his home. Davis and his employees overtook them, and took the women out of Brown's car, put them in Davis' car, and carried them back to Wewahitchka, where Proctor took charge of them and kept them under guard. Later in the day, after a consultation between Davis, Land, Whitfield, and Daniels, Davis and Land drove off in Land's automobile. After dark, Sanders, Diamond, Jackson, and Stonan were apprehended by Whitfield and Daniels at the north end of the bridge. Within a short time, variously estimated at from 15 to 30 minutes, Davis and Land arrived on the scene in Land's automobile. The four defendants, each of whom was armed, placed the recaptured men in Land's automobile, and, after making Stonan whip the others, returned with them to Wewahitchka. There Diamond was turned over to Land, and Sanders, Jackson, Stonan, and the two women, who had been left in Proctor's charge, were taken by the other defendants back to Farmdale. Within a few days H. H. Bowles, a deputy marshal, went to Farmdale to summon Henry Sanders and others as witnesses. He was permitted to testify over objection that Davis asked him what it took to constitute peonage, and then had a conversation with Sanders, and the latter was also permitted ever objection to testify that at that time he was requested by Davis and agreed to tell Bowles or other officers that he had been working for Davis of his own free will, and that he would not show to the officers the signs upon his body of the whipping he had received. Sanders further testified that Davis said "he was a friend of mine, and if I would help him he would help me." Land moved the court to instruct a verdict of not guilty as to him, on the grounds that the evidence failed to show an arrest, or that he had participated in the arrest, and that there was a variance, in that indictment 2071 charges that Diamond was arrested to be returned to Davis whereas the evidence shows that he was returned to Land. In its charge to the jury the court instructed them that the defendants should be convicted if the evidence satisfied them beyond a reasonable doubt that there had been a holding to a condition of peonage, and that the jury would be warranted in finding a verdict of guilty if the defendants held them to work out a debt. However, in other parts of the charge the court instructed the jury that Davis alone was charged with the offense of holding, that each defendant was entitled to the presumption of innocence, and that any particular 256 defendant should be acquitted if there was a reasonable doubt of his guilt. Exceptions were duly taken to the above-mentioned rulings and charges of the court. Defendants join in assignments of error to the effect that the court erred in the order allowing the indictments to be consolidated, and in admitting testimony concerning the original arrests of Sanders, Diamond, and Jackson. Section 1024 of the Revised Statutes (Comp. St. § 1690) authorizes the consolidation of several indictments against any person upon several charges of crimes connected together, or of the same class, whereever such charges could properly be joined in separate counts of a single indictment. That statute applies as well to several defendants as to a single defendant. Emanuel v. United States, 196 F. 317, 116 C. C. A. 137. Defendants argue that a consolidation of indictments is not authorized, except where the defendants are the same in all the indictments, and contend that this in effect was the ruling in McElroy v. United States, 164 U. S. 76, 17 S. Ct. 31, 41 L. Ed. 355. In that case six defendants were indicted on two separate charges of assaults to murder different persons on the same day, and for arson on a later day, while three of the defendants were indicted for arson committed on the same day as the assaults to murder. The charges of arson were of the dwelling houses of different persons. It was held that a consolidation could not "be sustained where the parties are not the same, and where the offenses are in no wise parts of the same transaction, and must depend upon evidence of a different state of facts as to each or some of them." In these cases the offenses charged were closely connected, were of the same class, were alleged to have been committed against the same individuals, and required proof of the same state of facts. As to Davis it hardly can be contended that the consolidation was unauthorized. Land was charged with aiding and abetting in the offense of returning to a condition of peonage. It was necessary to show a previous holding, because otherwise the evidence would have fallen short of showing the offense of returning. Clyatt v. United States, 197 U. S. 207, 25 S. Ct. 429, 49 L. Ed. 726. In these circumstances, it was within the trial court's discretion to refuse a severance. In Milner v. United States, 293 F. 590, we held that the crimes of larceny and receiving goods with knowledge that they had been stolen are of the same class, and that it is permissible to charge the same defendant in separate counts with these offenses. We think the better rule is that one defendant may be charged in one count with larceny, and another defendant in another count with receiving with guilty knowledge, because in proving the receiving it is necessary to show that a larceny of the same goods has been committed. Redman v. State, 1 Blackf. (Ind.) 429; Commonwealth v. Darling, 129 Mass. 112; Commonwealth v. Mullen, 150 Mass. 394, 23 N. E. 51; 1 Chitty's Crim. Law, 254; 31 C. J. 756. The crimes charged in the case at bar are, to say the least, as closely connected as are the crimes of larceny and receiving stolen goods. In peonage, "the basal fact is indebtedness." Clyatt v. United States, supra; United States v. Reynolds, 235 U. S. 133, 35 S. Ct. 86, 59 L. Ed. 162. Therefore it was necessary to show that the peons were being held for debt, and the testimony as to what transpired at the office of the county judge was admissible, not only against Davis, but against Land also. Exceptions to rulings and charges of the court form the basis of additional assignments of error by Land. It was not error to refuse to give the requested peremptory instruction in favor of that defendant. It is argued that the statute denouncing peonage contemplates only an original arrest, and does not have any reference to an arrest made after there has been a holding. It is insisted that Clyatt v. United States, supra, sustains this position, but we do not so understand that case. Of course, a prosecution could be had for an original arrest; but it does not follow that one who rearrests a person who had been previously held to a condition of peonage would be guiltless. The order in which the words, "holds, arrests, returns," appear in the statute, would seem to dispose of this argument. A rearrest is an arrest, and doubtless it would not be necessary to show a previous holding. It is also contended that Land was entitled to a directed verdict, because he did not participate in the arrest of the peons, who, as he claims, had already been arrested before he and Davis came upon the scene, and because a variance exists between the count, which charges him with aiding and abetting Davis in the arrest of Diamond, and the proof, which was to the effect that Diamond was returned to him, and not to Davis. One who aids or abets in the commission 257 of an offense against the United States is a principal. Criminal Code, § 332 (Comp. St. § 10506). There was no difference in legal effect between indictment 2070, which was abandoned, and indictment 2071, upon which Land was convicted. It may be assumed, without being decided, that the arrest had been completed by Whitfield and Daniels before Davis and Land arrived at the West Arm bridge. It is a fair inference from the government's evidence that Land and all the other defendants were acting in concert, with intent to apprehend and arrest the escaped laborers and return them to a condition of peonage. That evidence was sufficient to support the conclusions that, pursuant to agreement between all the defendants. Whitfield and Daniels stationed themselves at the bridge for the purpose of intercepting the men they were seeking to find, while Davis and Land made search for them, and that the meeting of the defendants at the bridge was prearranged and not accidental. Although conspiracy be not charged, if it be shown by the evidence to exist, the act of one or more defendants in furtherance of the common plan is in law the act of all. United States v. Gooding, 12 Wheat. 460, 6 L. Ed. 693; Brown v. United States, 150 U. S. 93, 14 S. Ct. 37, 37 L. Ed. 1010. In 2 Wigmore on Evidence, § 1079, will be found a selection of cases to the same effect. See, also, 1 Greenleaf (16th Ed.) § 184a; Underhill's Criminal Evidence, §§ 715, 718; 1 Bishop on Criminal Law (9th Ed.) §§ 629, 630; 2 Bishop's Criminal Procedure (2d Ed.) §§ 1248, 1249. The question of variance, which was insisted on as to one count of indictment 2071, becomes immaterial, as Land was convicted on three other counts, and his punishment was less than could have been imposed under any count. The conversations Davis had with Bowles and Sanders after the crimes were completed were admissible against Davis, as tending to show an attempt to suppress testimony, so as to shield himself from the consequences of his crimes. Land was not mentioned in these conversations. It is not error to admit evidence which relates only to one of several defendants on trial together. The charge of the court, taken altogether, was not misleading, as it clearly informed the jury that each defendant was presumed to be innocent until shown beyond a reasonable doubt to be guilty of the offense with which he was charged. The judgments are affirmed.	{ "pile_set_name": "FreeLaw" }
356 S.E.2d 357 (1987) 319 N.C. 627 Tony C. HARRIS v. DUKE POWER COMPANY, a corporation. No. 697A86. Supreme Court of North Carolina. June 2, 1987. 358 Russell & Sheely by Michael A. Sheely, Charlotte, and Edelstein & Payne by M. Travis Payne, Raleigh, for plaintiff-appellant. Mullins & Van Hoy by Philip M. Van Hoy, and Duke Power Co. Legal Dept. by Robert M. Bisanar, Charlotte, for defendant-appellee. Ogletree, Deakins, Nash, Smoak and Stewart by Stuart M. Vaughan, Jr., Raleigh, for North Carolina Associated Industries, amicus curiae. MEYER, Justice. In his complaint, plaintiff alleged that he had been employed as a welder by Duke Power Company at the Catawba Nuclear Power Plant and that he was discharged without cause in November 1984. Plaintiff further alleged that defendant's termination policy, as contained in its management procedure manual on the subject of "Rules of Conduct," was incorporated and became an integral part of his contract of employment. A copy of the management procedure pamphlet was attached to the complaint. Plaintiff alleged that he was discharged from his employment in violation of the employer's Rules of Conduct as contained in the management procedure manual. He did not allege that he was employed for a fixed term or that he had furnished any special consideration for the incorporation of these rules in his employment contract. The sole question presented on this appeal is whether the trial court erred in dismissing plaintiff's complaint. We hold that under the facts and circumstances of this case, plaintiff has failed to allege a cause of action sufficient to withstand defendant's motion to dismiss, and we therefore affirm the opinion of the Court of Appeals. The superior court granted defendant's motion to dismiss, and the Court of Appeals affirmed, based upon plaintiff's status as an employee-at-will. The majority of 359 the panel below held that even if the provisions of the management procedure were made part of plaintiff's contract of employment, plaintiff had no right to relief because the procedure did not contain any promise or representation that defendant would discharge plaintiff only for cause. Judge Phillips dissented, arguing that the plaintiff's complaint raised the issue of whether his employment was subject to conditions set forth in defendant's management procedure manual. North Carolina courts have repeatedly held that absent some form of contractual agreement between an employer and employee establishing a definite period of employment, the employment is presumed to be an "at-will" employment, terminable at the will of either party, irrespective of the quality of performance by the other party, and the employee states no cause of action for breach of contract by alleging that he has been discharged without just cause. Still v. Lance, 279 N.C. 254, 182 S.E.2d 403 (1971). The "employee-at-will" rule is subject to some well-defined exceptions. First, statutory authority often dictates that an otherwise terminable-at-will employee shall not be discharged in retaliation for certain protected activities, e.g., filing workers' compensation claims, N.C.G.S. § 97-6.1 (1985); engaging in labor union activities, N.C.G.S. § 95-83 (1985); instituting an Occupational Safety and Health Act proceeding, N.C.G.S. § 95-130(8) (1985). Second, if an employee furnishes "additional consideration" or gives something additional of value, such consideration may take the case out of the usual employment-at-will rule. Tuttle v. Kernersville Lumber Co., 263 N.C. 216, 139 S.E.2d 249 (1964) (setting forth exception, but declining to apply to the facts); Sides v. Duke University Hospital, 74 N.C.App. 331, 328 S.E.2d 818, disc. rev. denied, 314 N.C. 331, 333 S.E.2d 490 (1985) (plaintiff's moving from Michigan to North Carolina to accept position with defendant was additional consideration which took contract out of traditional employment-at-will rule). Cf. Malever v. Jewelry Co., 223 N.C. 148, 25 S.E.2d 436 (1943). See also L. Larson, Unjust Dismissal § 10.34 (1985 and Supp.1987). Plaintiff does not fall within any of the well-recognized exceptions to the general rule that an employment contract of indefinite duration is terminable at the will of either employer or employee. He contends, however, that this Court should join those jurisdictions in which an employer's personnel policy is incorporated by reference into an employment contract. See Annot., "Right to Discharge Allegedly `At Will' Employee as Affected by Employer's Promulgation of Employment Policies as to Discharge," 33 A.L.R.4th 120, §§ 3-4 (1984 and Supp.1986); Note, Continued Resistance to Inclusion of Personnel Policies in Contracts of Employment, 62 N.C.L.Rev. 1326 (1984); Note, Employee Handbooks and Employment At Will Contracts, 1985 Duke L.J. 196 (1985); Parker, The Uses of the Past: The Surprising History of Terminable-at-Will Employment in North Carolina, 22 Wake Forest L.Rev. 167 (1987). Several cases decided by the Court of Appeals, and federal courts applying North Carolina law, hold that an employer's personnel manual is not part of an employee's contract of employment. Walker v. Westinghouse, 77 N.C.App. 253, 335 S.E.2d 79 (1985), disc. rev. denied, 315 N.C. 597, 341 S.E.2d 39 (1986) (handbook not part of employment contract, notwithstanding language that the handbook would "become more than a handbook ... it will become an understanding"); Smith v. Monsanto Corp., 71 N.C.App. 632, 322 S.E.2d 611 (1984) (company policy not incorporated in employment contract); Griffin v. Housing Authority, 62 N.C.App. 556, 303 S.E.2d 200 (1983) (defendant-employer's personnel manual not expressly incorporated into plaintiff's contract of employment); Williams v. Biscuitville, Inc., 40 N.C.App. 405, 253 S.E.2d 18, cert. denied, 297 N.C. 457, 256 S.E.2d 810 (1979) (operations manual unilaterally adopted by employer and could be changed; employer could discharge plaintiff in manner not set forth in manual); Rupinsky v. Miller Brewing Co., 627 F.Supp. 1181 (W.D.Pa.1986) (applying North Carolina law). We have not been 360 persuaded to depart from the rules developed and applied in our prior decisions. It is noteworthy that in those jurisdictions in which statements in employment handbooks have been treated as binding on the employer, making the traditional rule of employment-at-will inoperative, the handbook, policy manual, or personnel manual contains an express representation that employees will be dismissed only for "just cause." Toussaint v. Blue Cross and Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880, reh'g denied, 409 Mich. 1101 (1980). Compare Weiner v. McGraw Hill, 57 N.Y.2d 458, 443 N.E.2d 441, 457 N.Y.S.2d 193 (1982) (handbook indicated that employer would resort to dismissal for "just and sufficient cause only") with Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 506 N.E.2d 919, 514 N.Y.S.2d 209 (1987) (personnel manual merely suggests standards for dismissal; employee fails to demonstrate express limitation on employer's unfettered right to discharge). See L. Larson, Unjust Dismissal § 8.02 (1985 and Supp.1987). Plaintiff relies on Trought v. Richardson, 78 N.C.App. 758, 338 S.E.2d 617, disc. rev. denied, 316 N.C. 557, 344 S.E.2d 18 (1986). There, the plaintiff alleged, inter alia, that the hospital's policy manual provided that employees could be discharged only for cause; that when she was hired as a nurse, she was required to sign a statement that she had been read the policy manual; and that she had been discharged without cause. The Court of Appeals held that such allegations were sufficient to defeat defendant's motion to dismiss. While this Court has not addressed the issue presented in Trought and does not do so here, that case is readily distinguished from the case at bar by reason of the specific no-discharge-except-for-cause allegation in Trought. The management procedure in question here, and upon which plaintiff relies, contains no such express representation, and plaintiff does not so allege. Plaintiff's complaint alleges that he performed a particular weld or "tack" at the request of a fitter. This procedure was investigated by management employees, and plaintiff was then discharged for Class B and Class C violations. Plaintiff alleges that his actions in making the weld were, at most, a Class B (concealing defective work) violation. On a motion to dismiss pursuant to Rule 12(b)(6), we treat the factual allegations of the complaint as if they were established. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). Thus, for the purposes of review, deeming as true plaintiff's allegations that he specifically relied upon the terms of the management procedure in question in entering into employment with Duke, we hold that the trial court properly dismissed the complaint, because plaintiff does not allege, nor does the procedure contain, any promise or representation that employee will be subject to dismissal only for violations of specific Class A, Class B, or Class C offenses. Plaintiff's complaint also alleges, with respect to defendant's management procedure manual, that defendant represented to him that "as long as he followed said rules he would not be terminated for violating said rules." From our detailed review of the management procedure relied upon by the plaintiff, we conclude that it could not be reasonably interpreted as a manual of rules of conduct to be followed by employees. The six-page manual or pamphlet in question is labeled "Duke Power Company Management Procedure Number XXXX-XXXX CONS 010; Subject: Rules of Conduct." The entire content of the manual is directed towards management personnel and relates solely to carrying out disciplinary actions against employees. In the prefatory statement, which describes the Construction Department's rules relating to disciplinary action, the procedure states: The Construction Department's rules are limited to the basic minimums necessary for orderly and efficient operations. They are not intended to be all-inclusive. They serve as examples of the types of offenses that require disciplinary action. The section labeled "Rules of Conduct" categorizes or classifies disciplinary action 361 offenses as "Class A," "Class B," or "Class C." These classes of offenses are said to "provide a general framework for taking consistent corrective action." Class A offenses are the least serious and will result in discharge after the third offense, if warranted upon review; Class B offenses are more serious and will result in discharge after the second offense, if warranted upon review; Class C offenses are the most serious and will result in discharge after the first offense, if warranted upon review. As already noted, the pamphlet referred to was labeled a management procedure; it contains no rules by which employees are to conduct themselves; it thus sets forth no manner by which plaintiff could have "followed said rules," without being a management employee charged with carrying out the disciplinary procedures specified therein. Indeed, rather than setting out rules of conduct by which employees are to conduct themselves in their work, it contains descriptions of acts which are prohibited; uses the terms "offenses," "violations," etc.; provides for "warnings"; and instructs the reader as to how to word the warnings and notices of disciplinary action and where to file and how to distribute them. Therefore, even taking plaintiff's allegation as truethat defendant represented that he would not be terminated if he followed the "Rules of Conduct"he fails to state a cause of action, because the "Rules of Conduct," under the most liberal reading, set forth no rules for plaintiff to follow. For the foregoing reasons, we affirm the judgment of the Court of Appeals. AFFIRMED. EXUM, Chief Justice, concurring. I do not understand the Court to hold that personnel policy manuals distributed, or personnel policies explained, to employees by employers can never be part of the contract of employment binding on the employer. Rather I read the Court's opinion to say that the "Management Procedure" brochure relied on by plaintiff and attached to the complaint cannot in law be a part of plaintiff's employment contract because the brochure makes no promises, express or implied, to defendant's employees. Rather the brochure because of its unambiguous, plain terms is as a matter of law a guide for defendant's managers, creates no benefits for defendant's employees, and imposes no limitations on defendant's power to discharge plaintiff at will. Neither could the plaintiff reasonably rely on the brochure as limiting the circumstances under which he could be discharged. I concur in the Court's legal construction of the brochure and in the result reached on the basis of that construction. In my view an employer's personnel policies, if couched in language that either expressly or by implication makes promises to employees, may bind the employer to these promises and restrict the employer's power to discharge even if the policies are unilaterally promulgated and are supported by no consideration apart from the employee's acceptance or continuation of employment. See Trought v. Richardson, 78 N.C. App. 758, 338 S.E.2d 617, disc. rev. denied, 316 N.C. 557, 344 S.E.2d 18 (1986); Pine River State Bank v. Mettille, 333 N.W.2d 622 (Minn.1983); Toussaint v. Blue Cross and Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880, reh'g denied, 409 Mich. 1101 (1980); see generally, Note, Employee Handbooks and Employment at Will Contracts, 1985 Duke L.J. 196 (1985). I do not understand our decision today to hold to the contrary. MARTIN, J., joins in this concurring opinion.	{ "pile_set_name": "FreeLaw" }
Filed 01/28/20 by Clerk of Supreme Court IN THE SUPREME COURT STATE OF N OR TH DAK OT A 2020 ND 25 State of North Dakota, Plaintiff and Appellee v. Corey Wickham, Defendant and Appellant No. 20190144 Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Gail Hagerty, Judge. AFFIRMED. Opinion of the Court by Crothers, Justice. Joshua A. Amundson, Assistant State’s Attorney, Bismarck, ND, for plaintiff and appellee. Russell J. Myhre, Enderlin, ND, for defendant and appellant. State v. Wickham No. 20190144 Crothers, Justice. Corey Wickham appeals from a judgment entered after convictions for gross sexual imposition, arguing the district court erred by admitting expert opinion testimony. We affirm. I Wickham was working as a rideshare driver when he allegedly stopped a passenger from exiting his automobile, kissed her on the mouth, put his hands down her pants, digitally penetrated her, and touched her breasts. He was charged with two counts of gross sexual imposition. A jury found Wickham guilty on both counts. On appeal Wickham argues the district court obviously erred by admitting opinion testimony from five witnesses without requiring the State to qualify them as experts. Wickham argues that without their testimony the evidence was insufficient to convict him. II Wickham concedes he did not object to the testimony at trial, and the appropriate standard of review is for obvious error. “This Court has previously noted that ‘issues not raised at trial will not be addressed on appeal unless the alleged error rises to the level of obvious error under N.D.R.Crim.P. 52(b).’” State v. Pemberton, 2019 ND 157, ¶ 8, 930 N.W.2d 125 (citing State v. Lott, 2019 ND 18, ¶ 8, 921 N.W.2d 428). The obvious error standard is well established: “To establish obvious error, the defendant has the burden to demonstrate plain error which affected his substantial rights. To constitute obvious error, the error must be a clear deviation from an applicable legal rule under current law. There is no obvious error when an applicable rule of law is not clearly established.” 1 Id. (citing Lott, at ¶ 8) (quoting State v. Tresenriter, 2012 ND 240, ¶ 12, 823 N.W.2d 774). “When asserting a claim of obvious error, a defendant must show: (1) error; (2) that is plain; and (3) the error affects the defendant’s substantial rights.” Pemberton, 2019 ND 157, ¶ 9, 930 N.W.2d 125 (citing State v. Wangstad, 2018 ND 217, ¶ 14, 917 N.W.2d 515). “We exercise our power to consider obvious error cautiously and only in exceptional situations where the defendant has suffered serious injustice.” Pemberton, at ¶ 9 (citing State v. Glass, 2000 ND 212, ¶ 4, 620 N.W.2d 146) (internal quotation marks omitted). “If evidence was admitted in error, this Court will consider the entire record and decide in light of all the evidence whether the error was so prejudicial the defendant’s rights were affected and a different decision would have occurred absent the error.” State v. Saulter, 2009 ND 78, ¶ 18, 764 N.W.2d 430 (citing City of Fargo v. Erickson, 1999 ND 145, ¶ 13, 598 N.W.2d 787). This Court has also noted the following regarding obvious error: “Even if the defendant meets his burden of establishing obvious error affecting substantial rights, the determination whether to correct the error lies within the discretion of the appellate court, and the court should exercise that discretion only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. An alleged error does not constitute obvious error unless there is a clear deviation from an applicable legal rule under current law.” Pemberton, 2019 ND 157, ¶ 9, 930 N.W.2d 125 (citing State v. Patterson, 2014 ND 193, ¶ 4, 855 N.W.2d 113) (citations omitted). III Wickham argues the trial court obviously erred by admitting testimony from five witnesses without requiring the State to qualify them as opinion experts. Wickham argues the evidence was insufficient to convict him without their testimony. 2 The State argues none of the witnesses testified under N.D.R.Ev. 702. Therefore, the trial court did not commit obvious error when it did not require the State to qualify them as experts before giving opinion testimony. The State further argues sufficient evidence supports Wickham’s convictions. A This Court has discussed three types of trial testimony as fact, lay opinion, and expert opinion. See State v. Louser, 2017 ND 10, ¶¶ 9, 11, 890 N.W.2d 1. Fact testimony comes from a witness who is competent and after “evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” State v. Foster, 2019 ND 28, ¶ 4, 921 N.W.2d 454; N.D.R.Ev. 601, 602. “Testimony that falls within the personal knowledge of the lay witness is different from opinion testimony, which is governed by N.D.R.Ev. 701.” Id. “Under the North Dakota Rules of Evidence, lay witnesses may testify to observations or facts within their personal knowledge. Such testimony does not constitute opinion testimony.” Id. The admission of lay opinion testimony is governed by N.D.R.Ev. 701, which states: “If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; and (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue.” “Lay opinion testimony is limited to testimony that is ‘rationally based on the perception of the witness.’” Saulter, 2009 ND 78, ¶ 12, 764 N.W.2d 430 (citing N.D.R.Ev. 701). Therefore, the witness must have observed the incident or have first-hand knowledge of the facts that form the basis of the opinion. Id. A lay witness’s opinion must be based on his or her perception or personal knowledge of the matter. Id. The scope of permissible lay opinion testimony has been described as follows: 3 “The prototypical example of the type of evidence contemplated by the adoption of Rule 701 relates to the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences.” Asplundh Mfg. Div. v. Benton Harbor Eng’g, 57 F.3d 1190, 1196 (3rd Cir. 1995). In 2000, Federal Rule 701 was amended to include a requirement “that lay opinion testimony could not be based on scientific, technical or other specialized knowledge that is within the scope of Fed.R.Evid. 702.” Saulter, 2009 ND 78, ¶ 10, 764 N.W.2d 430. Wickham argues Rule 701, N.D.R.Ev., is an adoption of Fed.R.Evid. 701, and we should follow the federal interpretation of the rule as persuasive authority. North Dakota has not adopted the limiting language from Federal Rule 701 and we refuse Wickham’s invitation to engraft the federal restriction to our Rule 701 through this decision. Expert opinion testimony is governed by N.D.R.Ev. 702 and states: “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” “A critical distinction between Rule 701 and Rule 702 testimony is that an expert witness ‘must possess some specialized knowledge or skill or education that is not in the possession of the jurors.’” Saulter, 2009 ND 78, ¶ 11, 764 N.W.2d 430. “A witness’s testimony is not necessarily expert testimony simply because the witness has specialized knowledge and was chosen to carry out an investigation because of that knowledge, the witness’s testimony is expert testimony if the testimony is rooted exclusively in his expertise or is not a product[ion] of his investigation but instead reflects his specialized knowledge[,]” Louser, 2017 ND 10, ¶ 9, 890 N.W.2d 1 (citing Saulter, at ¶ 15). 4 B In State v. Saulter, this Court held the district court misapplied the law and abused its discretion by allowing Detective Vigness’s opinion testimony because some was rooted exclusively in his expertise rather than as “a product of his investigation.” 2009 ND 78, ¶ 15, 764 N.W.2d 430. Vigness testified domestic violence was his area of expertise, he had several hundred hours of training specific to domestic violence, and he was trained on strangulation crimes. He also testified about the symptoms of strangulation in general, that strangulation victims sometimes have difficulty articulating exactly what happened and may forget details, strangulation victims commonly do not realize how serious the crime is, and often do not seek medical treatment. Id. at ¶ 14. We noted, “Vigness primarily testified about strangulation crimes in general and not about this particular crime or his investigation of this crime.” Id. “Vigness’s testimony about strangulation in general was used to provide specialized explanations and was used as a foundation to support his opinions about what may have occurred and to answer hypothetical questions.” Id. at ¶ 15. In State v. Foster, testimony by an oil company operations coordinator was based on personal knowledge and included permissible fact testimony notwithstanding his specialized knowledge and experience. 2019 ND 28, ¶ 4, 921 N.W.2d 454. Trevor Pollock was a manager for the TransCanada pipeline operation control center. Id. at ¶ 2. He testified against Michael Foster who was charged with conspiracy to commit criminal mischief, criminal mischief, and criminal trespass. Id. at ¶ 1. Pollock testified about his observations and activities as the operations coordinator on the day Foster closed the pipeline valve. Id. at ¶ 6. He testified about his duties which included monitoring pressure at various points in the system, monitoring and controlling pumps and automated valves, reviewing electronic logs, participating in meetings, responding to issues and generally operating the pipeline to achieve the target flow volume. Id. He also testified he knew that shipper’s requests to transport oil exceeded pipeline capacity, and that on the day at issue the actual flow rate was 634,000 barrels per day. Id. at ¶¶ 6-7. Since Pollock was responsible for 5 monitoring and setting flow rates, the district court did not abuse its discretion in permitting him to testify to his personal knowledge about the flow rates, transport capacity, duration of the outage, and the volume of oil TransCanada lost the opportunity to transport. Id. at ¶ 7. This Court concluded, “Pollock’s testimony was not expert testimony because it was not ‘based on scientific, technical, or other specialized knowledge.’” Id. at ¶ 5. In State v. Crissler, the defendant challenged Officer Kuntz’s testimony on the basis it was speculative. 2017 ND 249, ¶ 9, 902 N.W.2d 925. This Court concluded the testimony was admissible under N.D.R.Ev. 701. Id. Officer Kuntz testified the pencil found under the defendant’s mattress was very flexible in its unaltered state, but was wrapped in wetted paper and wound with string to increase rigidity. Id. at ¶ 3. Further, there appeared to be underwear elastic around the pencil to make it easier to grip. Id. Kuntz further testified the sharpened, stiffened, and reinforced pencil could allow a person to stab another while simultaneously punching him. Id. We concluded the statements were testimony of Kuntz’s perceptions, based on personal knowledge and observations of the pencil itself, and not based on scientific, technical, or specialized knowledge. Id. at ¶ 9. C 1 Here, Wickham broadly argues the district court erred by allowing five witnesses to testify as experts. Two of the witnesses, Kyle Splichal and Emily Hoge, are forensic scientists. They testified about the processes they followed to prepare materials and samples for DNA testing, and the DNA testing performed in this case. Like in Foster, Splichal and Hoge testified to their activities and observations as forensic scientists. Significantly, Splichal and Hoge did not provide opinion testimony, much less expert opinion testimony “based on scientific, technical, or other specialized knowledge.” Crissler, 2017 ND 249, ¶ 7, 902 N.W.2d 925. “[T]estimony ‘relating to purely physical facts requires no special qualification and does not come within the scope of expert opinion evidence.’” Foster, 2019 ND 28, ¶ 5, 921 N.W.2d 454 (citing State v. 6 Engel, 289 N.W.2d 204, 208 (N.D. 1980)). Because Splichal and Hoge testified about their work activities and provided no opinion, the trial court did not err by admitting Splichal’s and Hoge’s testimony. 2 Forensic scientist Amy Gebhardt testified about her job duties, the number of DNA samples she has analyzed, her training and education, and her one unsatisfactory proficiency test. Gebhardt testified she analyzed the samples provided in this case, made the comparison results, and wrote the report. She explained how she conducted the tests and concluded a major contributor on L.A.’s underwear matched a known sample from Wickham. Gebhardt’s testimony about how she prepared samples for testing and how she performed the testing was factual. That evidence about her work activities was not opinion testimony for the same reasons discussed above for witnesses Splichal and Hoge. Gebhardt also testified a major contributor of DNA found on L.A.’s underwear matched a known sample from Wickham. The district court was not asked to decide whether Gebhardt’s answer to that question was an expression of an expert’s opinion. The record does not provide us with sufficient information to decide this question as a matter of law. But, assuming without deciding Gebhardt’s testimony about a DNA match was expert opinion testimony, we conclude the district court did not commit obvious error. “To constitute obvious error, the error must be a clear deviation from an applicable legal rule under current law. There is no obvious error when an applicable rule of law is not clearly established.” Pemberton, 2019 ND 157, ¶ 8, 930 N.W.2d 125 (citing Lott, 2019 ND 18, ¶ 8, 921 N.W.2d 428) (quoting Tresenriter, 2012 ND 240, ¶ 12, 823 N.W.2d 774). Here, Wickham has not brought to our attention, and we have not found, a clear statement of law providing a district court errs by not stopping a witness from testifying by way of a mix of permissible lay opinion testimony and arguably impermissible expert opinion testimony. Rather than providing a clear statement of law that 7 admission of undisclosed opinion testimony is error, our cases hold that evidentiary issues such as these are addressed to the district court’s discretion. See Crissler, 2017 ND 249, 902 N.W.2d 925; State v. Evans, 2013 ND 195, 838 N.W.2d 605; Saulter, 2009 ND 78, 764 N.W.2d 430. 3 Registered nurse Renae Sisk testified about her education and training as a sexual assault nurse examiner. She testified she has received between 200 and 300 hours of continuing education, including 40 hours of sexual assault training. Sisk testified that victim trauma responses are a “major part of our training.” She explained different trauma responses such as fear, guilt, wondering what they could have done to prevent what happened, memory lapses, and could experience physical pain or physical symptoms of trauma. Sisk testified victims may delay reporting because during the assault they did not have control, but they do have control over whether they report the assault. Sisk also answered “no” to a more general question about injuries to vaginas, explained why the injury she saw on L.A. was not consistent with a normal sexual encounter, that patients can have bruising a few days after the assault, and that L.A.’s injury was consistent with forced digital penetration. Sisk testified about what occurs during a sexual assault exam, the process for the exam, that sexual assault nurse examiners do not make a diagnosis after the exam, and that her role as a sexual assault nurse examiner is objective. Sisk testified she performed the sexual assault exam on L.A., and described what she observed as a result of the examination. She testified the examination was stopped because L.A.’s pain became intolerable. She heard L.A.’s answers to the questions asked during the interview. She heard L.A. state she was digitally penetrated, that she showered after the assault, that she vomited, and that the level of pain was a seven out of ten. Like in Foster, Sisk’s testimony describing her job activities and her observations during L.A.’s examination was not opinion evidence, and the trial 8 court did not err by admitting that portion of Sisk’s testimony as fact evidence. See N.D.R.Ev. 602. Sisk’s testimony about victim trauma, victim reporting, and that the injury in L.A.’s case was not consistent with a normal sexual encounter were conclusions based on her education, training and experience. Like in Saulter, these opinions should have been disclosed under N.D.R.Ev. 702 and the State should have otherwise complied with the requirements of a witness offering expert opinion testimony. However, unlike Saulter where the officer primarily testified about strangulation crimes rather than the particular crime or his investigation of the crime, Sisk’s testimony was primarily about the exam she performed. Additionally, like Certain Underwriters at Lloyd’s London v. Sinkovich cited in Saulter, some of Sisk’s testimony regarding trauma responses, delayed reporting, or having bruising a few days after the assault may be properly characterized as lay opinions that “a normal person would form.” Saulter, 2009 ND 78, ¶ 13, 764 N.W.2d (citing Certain Underwriters at Lloyd’s London v. Sinkovich, 232 F.3d 200, 203-204 (4th Cir. 2000)). Therefore, Sisk’s testimony was a mix of lay opinions permitted under N.D.R.Ev. 701, and expert opinions more stringently regulated under N.D.R.Ev. 702. To the extent Sisk’s testimony included expert opinions, that evidence could have been excluded upon a timely objection. However, Wickham made no such objection and we are left to analyze whether the situation present at trial was such that the district court was required to prevent admission of the testimony without the assistance of an objection. “To constitute obvious error, the error must be a clear deviation from an applicable legal rule under current law. There is no obvious error when an applicable rule of law is not clearly established.” Pemberton, 2019 ND 157, ¶ 8, 930 N.W.2d 125 (citing Lott, 2019 ND 18, ¶ 8, 921 N.W.2d 428) (quoting Tresenriter, 2012 ND 240, ¶ 12, 823 N.W.2d 774). Here, Wickham has not brought to our attention, and we have not found, a clear statement of law 9 providing that a district court errs by not stopping a witness from testifying by way of a mix of permissible lay opinion testimony and arguably impermissible expert opinion testimony. Rather than providing a clear statement of law that admission of undisclosed opinion testimony is error, our cases hold that evidentiary issues such as these are addressed to the district court’s discretion. See Crissler, 2017 ND 249, 902 N.W.2d 925; Evans, 2013 ND 195, 838 N.W.2d 605; Saulter, 2009 ND 78, 764 N.W.2d 430. Therefore, the district court in this case did not commit obvious error because it did not clearly deviate from an applicable legal rule or precedent in not stopping Sisk from providing the jury with minimal expert opinion testimony. 4 Jon Lahr testified he is a detective for the Bismarck police department. He also testified about his education and training, and the number of interviews he has conducted. He testified that he investigated the sexual assault complaint by L.A. against Wickham, and that he interviewed Wickham and L.A. Like the other witnesses, much of Lahr’s testimony recited what he saw and heard during his investigation. That was permissible fact testimony under N.D.R.Ev. 602. Lahr also testified about Wickham’s appearance and behavior during the interview process. For example, Lahr testified that Wickham’s story was inconsistent, Wickham was visibly shaking, and Wickham’s tone changed as if he was talking out of the back of his throat like he was scared. From these observations, Lahr testified he believed Wickham was not being truthful. This testimony could be characterized as permissible lay opinions under N.D.R.Ev. 701. Lahr also was asked about his training on interview techniques and then applied his training to Wickham’s case. On direct examination Lahr was asked, “[s]o, when you’re trained on interview techniques, is that something that you’re taught to notice, the body position and the squaring up?” He responded, 10 “Correct.” He then was asked to explain why. Detective Lahr described when a person is trying to avoid a situation or conversation they typically turn themselves away or put something in front of themselves. He testified that Wickham did both. Detective Lahr was asked, “[s]o what other things are you noticing about his behavior that you’ve been trained to watch for in an interview?” He responded that police ask direct questions because they are looking for one-word answers and that “[a] truthful person would just simply say ‘no’ or ‘yes.’” Lahr testified that in response to the question “At no point did you sexually assault her[?]” Wickham responded, “no, absolutely not.” Based upon his training and experience, and from what he learned investigating this case, Lahr opined Wickham was being deceitful with him during his interviews. He testified he based his opinion on other evidence like the visitation between Wickham and his mother, and the DNA samples he swabbed and reviewed. Lahr testified, “[w]ith everything combined I came to the conclusion that he was being—that he lied to me during the interview and was not honest about what had happened.” Here, Lahr expressed permissible lay opinions under N.D.R.Ev. 701 when he testified about how Wickham’s shaking and tone of voice, and inconsistent story telling led Lahr to believe Wickham was not telling the truth. However, Lahr crossed the line into expert opinion testimony when, for example, he relied on specialized knowledge and training to form an opinion that Wickham’s nonverbal communication and one-word answers were indicia of untruthfulness. This portion of Lahr’s testimony should have been disclosed and qualified as expert opinion testimony. Having concluded admission of a part of Lahr’s opinion testimony was error, the question becomes whether the district court committed obvious error and should have sua sponte stopped or limited Lahr’s testimony. “To constitute obvious error, the error must be a clear deviation from an applicable legal rule under current law. There is no obvious error when an applicable rule of law is not clearly established.” Pemberton, 2019 ND 157, ¶ 8, 11 930 N.W.2d 125 (citing Lott, 2019 ND 18, ¶ 8, 921 N.W.2d 428) (quoting Tresenriter, 2012 ND 240, ¶ 12, 823 N.W.2d 774). Like with Sisk and Gebhardt, Wickham has not brought to our attention, and we have not found, a clear statement of law providing that a district court errs by not stopping Lahr from testifying by way of a mix of permissible lay opinion testimony and arguably impermissible expert opinion testimony. Rather than providing a clear statement of law that admission of undisclosed opinion testimony is error, our cases hold that evidentiary issues such as these are addressed to the district court’s discretion. See Crissler, 2017 ND 249, 902 N.W.2d 925; Evans, 2013 ND 195, 838 N.W.2d 605; Saulter, 2009 ND 78, 764 N.W.2d 430. Therefore, the district court in this case did not commit obvious error because it did not clearly deviate from an applicable legal rule or precedent in not stopping Lahr from providing the jury with minimal expert opinion testimony. IV The district court did not err in admitting the testimony of Splichal and Hoge. To the extent the district court erred in admitting limited expert opinion testimony from Gebhardt, Sisk, and Lahr, the error was not obvious. We affirm the judgment. Daniel J. Crothers Lisa Fair McEvers Jerod E. Tufte Benny Graff, S.J. Jon J. Jensen, C.J. The Honorable Benny Graff, S.J., sitting in place of VandeWalle, C.J., disqualified. 12	{ "pile_set_name": "FreeLaw" }
216 F.3d 355 (3rd Cir. 2000) ALFRED F. MARINELLI,v.CITY OF ERIE, PENNSYLVANIA, APPELLANT No. 99-3027 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Argued: Wednesday, May 10, 2000Opinion Filed: June 22, 2000 1 On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civ. No. 94-cv-00039E) District Judge: Honorable Maurice B. Cohill, Jr.[Copyrighted Material Omitted] 2 Before: Greenberg, McKEE and Garth, Circuit Judges OPINION OF THE COURT Garth, Circuit Judge 3 At the time of its passage, many rightfully hailed the Americans with Disabilities Act (ADA) as comprehensive civil rights legislation. See, e.g., Statement by President George Bush upon Signing S.933, 26 WEEKLY COMP. PRES. DOC. 1165 (July 30, 1990) (stating that the ADA "promises to open up all aspects of American life to individuals with disabilities"). Notwithstanding its comprehensive nature, however, the ADA's employment provisions specifically limit its protections to those individuals who can establish that they are indeed "disabled." Upon the ADA's promulgation, both the House and the Senate stipulated that Congress did not intend the ADA to protect those who suffered from "minor, trivial impairments"; to the contrary, an individual is only "disabled" under the auspices of the ADA if his "important life activities are restricted as to the conditions, manner, or duration under which they can be performed in comparison to most people." H.R. REP. NO. 101-485, at 52 (1990); S. Rep. No. 101-116, at 23 (1989). 4 Alfred Marinelli ("Marinelli") brought the present action against the City of Erie ("the City") in February 1994. Marinelli essentially averred that the City violated the ADA when it failed to provide him with an accommodation that would allegedly have allowed him to return to his previous position as a member of the City's shift crew, notwithstanding the residual medical difficulties from which he suffered as a result of injuries sustained in an earlier truck accident. After Marinelli had submitted his evidence at trial, the City moved the District Court for judgment as a matter of law, arguing that Marinelli had not introduced sufficient evidence for a reasonable juror to conclude that he was "disabled" under the ADA. The District Court denied the motion, and the jury returned a verdict in favor of Marinelli. Because the record discloses that Marinelli only suffered from a "minor impairment" as opposed to the more substantial forms of "disability" Congress intended to protect through the ADA, we will vacate the judgment entered in favor of Marinelli, and remand this matter to the District Court with instructions to enter judgment as a matter of law in favor of the City. I. 5 Marinelli was born and raised in Erie, Pennsylvania. He has received his high school diploma, and is now taking college-level classes in pursuit of his teacher certification. After his graduation from high school, Marinelli held several low-paying and low-skilled jobs including that of laborer, janitor, vending machine maintenance, and street meter reader. 6 Marinelli's employment with the City began on July 16, 1974, when he assumed a position as a laborer in the City's waste water treatment plant. Eventually, Marinelli transferred into the City's Streets Department as a laborer, a position that entailed many manual tasks, such as cutting grass, filling pot holes, and removing fallen leaves from the street. In 1978, Marinelli became a truck driver for the City, driving one or five ton trucks that, primarily during the winter months, were utilized to clear the snow from City streets, and apply salt to the streets in order to prevent icing. During the summer months, Marinelli was responsible for laying asphalt. 7 In 1989, Marinelli obtained a position with the City's "shift crew" that he possessed at all times relevant to the present appeal. Although Marinelli admitted that he never saw an actual job description for the "shift crew" position, he testified that the job consisted of a myriad of different tasks, including answering telephones, responding to emergency needs for labor, pumping gas for City vehicles, and snow plowing during the cold winter months of Northern Pennsylvania. Marinelli indicated that he and his colleagues divided this labor amongst themselves according to their varied preferences on a given day, and that it was not uncommon for one individual to work primarily on one task exclusively -- especially if that individual's ability to work was hampered by medical problems. 8 In the early morning hours of January 18, 1991, Marinelli was driving a snow plow on City streets when another individual driving a pick-up truck lost control of his vehicle and collided with Marinelli. Although Marinelli did not seek immediate medical assistance, he alleges that he experienced such great pain within thirty-six hours that he visited the emergency room at his local hospital. The emergency room doctor told Marinelli simply to rest, and to seek a consultation with an orthopaedist. Dr. Rahner, the orthopaedist with whom Marinelli consulted, ordered an MRI and referred Marinelli to Dr. Duncombe, a neurologist. Dr. Duncombe conducted basic neurological tests and eventually suggested that Marinelli receive physical therapy as a form of treatment. 9 During this time, Marinelli had not returned to work and had sought worker's compensation benefits. At trial, Marinelli testified that he could not return to work because he had continuing residual pain in his arm. More specifically, Marinelli stated that "[t]he main factors were increasing pain with repetitive use of my left arm. The more I used my arm, the more pain I would get, the more I'd have to lay down till [sic] it would go away." App. at 70a. In more practical terms, Marinelli alleged that after the injury, he could no longer perform household chores, including scrubbing floors, washing walls, and shoveling the snow from the driveway. Marinelli also testified that as a result of his injuries, he remains unable either to operate a circular saw or to drive the snow plows that the City utilizes and requires typical shift crew members to employ. Particularly, Marinelli stated the following:I can do most of the shift crew work, if not all of it, depending on the weather. The only problem I would have doing the shift crew work would be when it's really cold or really wet, that's when my arm and neck kick up really bad. 10 App. at 97a. 11 When Marinelli attempted to return to his former position in October 1992, he asked the City to modify his workload to take into account his medical difficulties. Specifically, Marinelli requested the City to allow him to return to the shift crew position he held prior to his injury, except that he would primarily answer phones (and perform other sedentary tasks) rather than perform all of the tasks for which a typical shift crew member would be responsible. Indeed, as stated earlier, Marinelli testified that the City had structured other shift crew members' work load in a like fashion in order to compensate for their particular impairments. The City refused to provide such an accommodation to Marinelli, and on January 3, 1993, Marinelli filed a charge against the City with the EEOC, claiming that the City had discriminated against him as a result of his injuries, and therefore in violation of the ADA. 12 After Marinelli filed his charge with the EEOC, the parties entered a stalemate period, with neither Marinelli nor the City taking much action to find Marinelli a suitable position with the City. By the summer of 1993, Marinelli began looking for alternative positions with other employers. Because this process did not yield any success for Marinelli, he allegedly became very depressed, and eventually sought the assistance of a state vocational counselor in December 1994. The Pennsylvania Office of Rehabilitation determined that Marinelli, having already obtained a number of college credits prior to his employment with the City, qualified for state financial aid in order to complete his college education. Marinelli pursued this course of action, and as of this date, has nearly completed his college studies, which will ultimately lead to his teaching certificate. He claims that it was for this reason that he rejected the City's offer of a stockroom position in February 1996. 13 Because the EEOC failed to act on Marinelli's petition within the required 180 days, Marinelli obtained a "right-to-sue" letter, and instituted the present action in the Western District of Pennsylvania on February 25, 1994. Subsequent to discovery, the parties proceeded to a jury trial on August 21, 1996. The District Court also bifurcated the issues for which both it and the jury were responsible. The jury was called on to decide whether the City had violated the provisions of the ADA and was therefore liable to Marinelli, and if so, the extent of Marinelli's non-economic compensatory damages. The remaining damage issues (back pay, reinstatement, front pay, prejudgment interest, and attorney fees), if the jury found the City liable, were reserved for the District Court's determination. 14 At trial, the City moved the District Court for judgment as a matter of law after both Marinelli and the City had completed entering their evidence, and the District Court denied both motions. On August 28, 1996, the jury returned a verdict against the City and assessed Marinelli's non-economic compensatory damages at $85,000. The City then renewed its motion for judgment as a matter of law and filed a motion for a new trial, both of which the District Court denied through an order dated October 28, 1996. The District Court granted the City's motion to certify such an order pursuant to Federal Rule of Civil Procedure 54(b), in order for the City to attempt an interlocutory appeal. This Court, however, dismissed the City's attempt for a lack of appellate jurisdiction through a memorandum opinion filed on December 29, 1997. 15 After remand, the District Court conducted a bench trial concerning the damage issues that remained before the court as a result of the bifurcated trial structure. In an order and accompanying opinion filed on November 5, 1998, see Marinelli v. City of Erie, 25 F. Supp. 2d 674 (W.D. Pa. 1998), the District Court awarded Marinelli-- with interest -- back pay, a reimbursement for health insurance, and attorney fees for his counsel (both with respect to the present ADA claim and Marinelli's attempt to secure worker's compensation benefits). Including the jury's compensatory damage award, Marinelli was awarded $241,465.53 in damages through a final judgment order entered by the District Court on December 22, 1998. This timely appeal ensued. II. 16 The District Court exercised subject matter jurisdiction over Marinelli's ADA cause of action pursuant to 28 U.S.C. S 1331. Our appellate jurisdiction is based upon the final order doctrine of 28 U.S.C. S 1291. III. 17 We turn to the City's predominant argument -- that the District Court erred in denying its motion for judgment as a matter of law insofar as Marinelli failed to introduce evidence sufficient to establish that he was "disabled" under the ADA. With respect to motions for judgment as a matter of law, Federal Rule of Civil Procedure 50(a)(1) states as follows: 18 If during a trial by jury a party has been fully heard on an issue, and there is no legally sufficient basis for a reasonable jury to find for the party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue. 19 FED. R. CIV. P. 50(a)(1). We have previously held that "[a] motion for judgment as a matter of law under Federal Rule 50(a) `should be granted only if, viewing the evidence in the light most favorable to the nonmoving party, there is no question of material fact for the jury and any verdict other than the one directed would be erroneous under the governing law.' " Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (quoting Macleary v. Hines , 817 F.2d 1081, 1083 (3d Cir. 1987)). Our review over the District Court's denial of the City's motion for judgment as a matter of law is plenary, and we apply an identical standard to that which the District Court was obligated to employ. See Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993). IV. 20 In order to state a cognizable cause of action under the ADA, a putative plaintiff must establish that he is a "qualified individual with a disability." See 42 U.S.C. S 12112(a); Cleveland v. Policy Management Sys. Corp., 526 U.S. 795, 806 (1999) (quoting 42 U.S.C. S 12111(8)). The statute defines "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." Id. S 12111(8). Further, and of foremost importance for purposes of the present appeal, a "disability" is defined as either (1) "a physical or mental impairment that substantially limits one or more of the major life activities of such [an] individual"; (2) "a record of such impairment"; or (3) "being regarded as having such an impairment." Id. at S 12102(2)(A)-(C). Both parties concede that Marinelli could not qualify as disabled under the two latter provisions listed above (i.e., either having a record of or being regarded as having an impairment); as a result, the present appeal turns exclusively on whether Marinelli introduced sufficient evidence for any reasonable juror to conclude that he suffered from "a physical or mental impairment that substantially limit[ed] one or more [of his] major life activities."A. 21 The EEOC regulations, in pertinent part, define "impairment" as follows: 22 Any physiological disorder, or condition . . . or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory . . . cardiovascular, reproductive . . . . 23 29 C.F.R. S 1630.2(h)(1) (1999). Further, the EEOC's interpretative guidance with respect to the ADA distinguishes true impairments from mere physical characteristics, such as eye and hair color, pregnancy, or personality traits. Id. App. S 1630.2(h). Although Marinelli's difficulties do not appear to arise from a "disorder" to the extent that the term is synonymous with "disease," his snow plow accident left him with residual pain that is properly understood as a "condition" that affects his musculoskeletal system. See, e.g., Plant v. Morton Int'l, Inc., No. 99-3445, 212 F.3d 929, 937 (6th Cir. May 12, 2000) (holding a "back strain" to qualify as an impairment for ADA purposes). Indeed, the City, by failing to argue to the contrary, appears to concede that Marinelli suffered from an "impairment" within the purview of the ADA. 24 The City does argue, however, that Marinelli's ADA claim should fail because he has not introduced any medical evidence to support his allegations of impairment. We have yet to confront this issue directly.1 The most oft-cited court of appeals discussion of the issue is that of the First Circuit in Katz v. City Metal Co., 87 F.3d 26 (1st Cir. 1996). In Katz, the court held that 25 [t]here is certainly no general rule that medical testimony is always necessary to establish disability. Some long-term impairments would be obvious to a jury (e.g., a missing arm) and it is certainly within the realm of possibility that a plaintiff himself in a disabilities case might offer a description of treatment and symptoms over a substantial period that would [allow] the jury [to] determine that[the plaintiff] did suffer from a disability. 26 Id. at 32. In other words, the necessity of medical testimony turns on the extent to which the alleged impairment is within the comprehension of a jury that does not possess a command of medical or otherwise scientific knowledge. Building upon this notion, other courts have held similarly, and have added that a lack of medical testimony should be a factor cutting against a plaintiff 's claim of disability. See, e.g., United States v. City of Denver, 49 F. Supp. 2d 1233 (D. Colo. 1999) (holding that a lack of physician testimony is but one factor in determining whether a plaintiff has met his burden to establish disability); Colwell v. Suffolk County Police Dep't, 967 F. Supp. 1419, 1425-26 (E.D.N.Y. 1997) (holding that "nothing in the ADA compels the conclusion that medical evidence is necessary to establish disability status"); rev'd on other grounds, 158 F.3d 635 (2d Cir. 1998). Cf. Schwimmer v. Kaladjian, 988 F. Supp. 631, 640 (S.D.N.Y. 1997) (holding, in a section 1983 case, that medical testimony is more persuasive than the witness's own recapitulation of his injuries).2 27 With respect to the instant matter, Marinelli's alleged medical difficulties (i.e., arm and neck pain) are among those ailments that are the least technical in nature and are the most amenable to comprehension by a lay jury. As such, Marinelli's failure to present medical evidence of his impairment, in and of itself, does not warrant judgment as a matter of law in favor of the City. Nevertheless, given the other weaknesses in Marinelli's disability claim, see text infra, the fact that Marinelli did not produce a shred of medical evidence to substantiate his allegations of impairment argues in favor of the City's position. B. 28 Although Marinelli introduced evidence sufficient for a reasonable juror to conclude that he suffered an impairment, as stated above, he must also establish that such an impairment "significantly limited one or more major life activity." The EEOC's interpretive guidance indicates that "major life activities" "are those basic activities that the average person in the general population can perform with little or no difficulty." 29 C.F.R. App. S 1630.2(i) (1999). Operating from this premise, the actual regulations list "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working" as examples of major life activities. Id. S 1630.2(i). Indeed, the Supreme Court recently held that the ability to reproduce qualified as a major life activity. See Bragdon v. Abbott, 524 U.S. 624, 639-40 (1998). 29 The impairment must not only affect the way in which the plaintiff engages in such an activity, however. To the contrary, a plaintiff must establish that the impairment substantially limits the ability to engage in the activity, and on this score, the regulations are rather specific. Pursuant to 29 C.F.R. S 1630.2(j), the EEOC defines "substantially limits" as leaving the plaintiff (1) "unable to perform a major life activity that the average person in the general population can perform; or" (2) "significantly restricted as to the condition, manner, or duration under which an individual [the plaintiff] can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. S 1630.2(j)(1) (i)-(ii) (1999).3 30 Three relatively recent opinions from this court assist in giving meaning to these rather abstruse concepts. In Taylor v. Pathmark Stores, Inc., 177 F.3d 180 (3d Cir. 1999), a supermarket cashier who had undergone arthroscopic surgery for an ankle problem and walked with crutches brought an ADA claim against his employer. See id. at 183. Taylor, the cashier, indicated that he could walk or stand for fifty minutes without rest. See id. at 186. Finding that Taylor was no different than an average person with respect to walking or standing during this fifty minute stretch, and as such, could "carry out most regular activities that require standing and walking," we held that Taylor was not disabled within the purview of the ADA. Id. at 186. In so holding, we stated that the "purpose of the ADA would be undermined if protection could be claimed by those whose relative severity of impairment was widely shared." Id. 31 In Kelly v. Drexel University, 94 F.3d 102 (3d Cir. 1996), the plaintiff had suffered a hip fracture, was left with a rather noticeable limp, and as a result, claimed that he was "disabled" under the ADA because he could not walk more than a mile without stopping. See id. at 103-04. Holding that "comparatively moderate restrictions on the ability to walk are not disabilities," we denied the plaintiff 's claim of disability, and affirmed the District Court's grant of summary judgment to the defendant. Id. at 106; see also Penchinson v. Stroh Brewery Co., 932 F. Supp. 671, 674 (E.D. Pa. 1996) (holding that an individual who could not walk at full pace and had to use both feet to walk up the stairs was not disabled). 32 Finally, in Taylor v. Phoenixville Sch. Dist. , 184 F.3d 296 (3d Cir. 1999) (see note 1 supra), the plaintiff argued that her bipolar and manic depressive disorders qualified her for disability status under the ADA. See id. at 302. Although the "episodes" from which plaintiff suffered as a result of her disorders were rather severe, the panel acknowledged that such problems were, for the most part, controlled by her medication.4 See id. at 308. Nonetheless, the medication that the plaintiff took to ease her symptoms produced many side effects that from time-to-time would leave the plaintiff severely nauseated with an inability to concentrate. See id. Because, in our view, these "repeated flare-ups" could "have a cumulative weight that wears down a person's resolve and continually breaks apart longer-term projects," we held the plaintiff to be disabled under the ADA. Id. at 309. 33 One may glean two general propositions from these opinions: (1) courts must adjudicate ADA claims on a case-by-case basis; and (2) we have held only extremely limiting disabilities -- in either the short or long-term-- to qualify for protected status under the ADA. Having said this, we recognize that Marinelli argues that his impairment substantially limits his ability to engage in a major life activity in three ways: (1) he is unable to perform household chores, such as cleaning his floors; (2) he is unable to lift objects on greater than a sedentary scale; and (3) he is unable to operate the type of snow plow utilized by the City, and is thus substantially limited from working.5 34 i. 35 With respect to Marinelli's first argument, courts have generally held that "cleaning," or, more generally, "doing housework," does not qualify as a major life activity. Although the EEOC regulations list "caring for oneself " as a major life activity, courts interpreting this regulation have held that such relates only to basic activities such as washing dishes and picking up trash. See Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995); see also Lockett v. Wal-Mart Stores, Inc., No. 99 0247-CB-C, 2000 WL 284295, at *8 (S.D. Ala. Mar. 8, 2000); Richards v. American Axle & Man., Inc., 84 F. Supp. 2d 862, 870 (E.D. Mich. 2000). In other words, "cleaning" is only considered a major life activity to the extent that such an activity is necessary for one to live in a healthy or sanitary environment. On the other hand, merely "performing housework other than basic chores" does not qualify as a major life activity. Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 643 (2d Cir. 1998); see also Weber v. Strippit, Inc., 186 F.3d 907, 914 (8th Cir. 1999), cert. denied, 120 S. Ct. 794 (2000) (holding that shoveling snow, gardening, and mowing the lawn were not major life activities). 36 With respect to his ability to clean, Marinelli testified as follows: 37 Everything changed. I used to scrub the floors in the house, wash the walls, do the dishes, clean the counters, do the housework. . . . After the injury, I couldn't do most of that. . . . Like if I tried to wash a floor, I'm right-handed. I can't use my left hand. And even when you're using your right hand, if I put weight on the left hand, I'm collapsing. It was ridiculous. 38 App. at 71a (emphasis added). The only task within Marinelli's discussion with respect to cleaning that courts have even considered a major life activity is washing dishes. Even though Marinelli casually mentioned such a task during his testimony, he failed to indicate how his medical difficulties affected his ability to wash the dishes. Further, Marinelli stated that his injury only limited his ability to do most of the tasks listed above. It is possible, therefore, without further explanation, that Marinelli continued to be able to wash dishes after the injury. The only task that Marinelli discussed in detail is that of washing the floor, which, as stated above, is not subsumed within the activity of "caring for oneself." At the very least, Marinelli's cursory statement concerning household activities is not sufficient to survive judgment as a matter of law. We therefore hold Marinelli's inability to perform certain household chores does not render him disabled. 39 ii. 40 Marinelli argues next that his inability to lift articles at more than a sedentary level establishes that he is substantially limited in a major life activity. To be sure, as stated above, the EEOC regulations indicate that "lifting" is a major life activity. Unlike his assertion concerning housework, therefore, our present inquiry is geared towards whether Marinelli's injury substantially limits his ability to lift. The only evidence introduced at trial related to Marinelli's lifting difficulties is found within the deposition of Dr. Fred Cohen, who examined Marinelli on December 19, 1995, after the instant action had been filed, and at the behest of the City. Cohen testified that Marinelli had informed him that Marinelli was unable to do any "heavy work greater than ten pounds." App. at 484a. The deposition transcript indicates that Marinelli informed Cohen of this difficulty -- and the specificity of his weight restriction -- without any supporting materials; in other words, Marinelli simply estimated the weight that he believed he could lift. 41 Initially, we note that the City, not Marinelli, introduced Dr. Cohen's deposition testimony into the record at trial. Because, as stated earlier, Marinelli bears the burden of establishing that he is disabled within the meaning of the ADA, he must affirmatively introduce evidence to this end in order to survive a motion for judgment as a matter of law. Indeed, the City appeals not only the District Court's denial of the motion for judgment as a matter of law it submitted after all the evidence had been introduced; the City also argues that the District Court erred in denying the motion for judgment as a matter of law it submitted subsequent to the close of the plaintiff 's case-in-chief (i.e., before Dr. Cohen's testimony had been introduced). As a result, Marinelli cannot rely upon Dr. Cohen's deposition testimony in his effort to avoid judgment as a matter of law. 42 Even if we were to consider such evidence, however, courts have rejected claims of disability based on an inability to lift similar weights to those with which Marinelli alleges to experience difficulty. For instance, in Williams v. Channel Master Satellite Sys., Inc., 101 F.3d 346 (4th Cir. 1996), the Fourth Circuit held a twenty-five pound lifting restriction not significantly limiting. See id. at 349. The Fifth and Eighth Circuits have held similarly. See Ray v. Glidden Co., 85 F.3d 227, 229 (5th Cir. 1996); Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1319 (8th Cir. 1996); see also Thompson v. Holy Family Hosp. , 121 F.3d 537 (9th Cir. 1997) (per curiam) (holding that a woman that could only lift twenty-five pounds consistently, fifty pounds twice a day, and one hundred pounds once a day was not disabled within the meaning of the ADA). As Marinelli's ten-pound limitation is not far removed from the twenty-five pound restrictions our sister circuits have held not to render one disabled under the ADA, we would also hold that Marinelli's lifting restriction does not render him sufficiently different from the general population such that he is substantially limited in his ability to lift. 43 iii. 44 Marinelli finally argues that his physical impairment significantly limits his ability to work, which he properly classifies as a major life activity. See 29 C.F.R. SS 1630.2(i); 1630.2(i)(3) (1999). The EEOC has stipulated that in order for one to be properly characterized as substantially limited from working as required by the ADA, an individual must be unable "to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." Id. S 1630.2(j)(3)(i). To the contrary, the mere "inability to perform a single, particular job" will not suffice to establish a substantial limitation with respect to working. Id. The EEOC's interpretive guidance expands on this point, stating that an individual that "is unable to perform a particular job for one employer, or . . . is unable to perform a specialized job" is not substantially limited in his ability to work. Id. App. S 1630.2(j).6 Both the EEOC and the courts therefore have required a plaintiff to show that his or her impairment prevents them from engaging in a category of jobs. 45 Marinelli argues that the restrictions placed upon his work by Dr. Cohen -- that he was only capable of a "medium range of exertion" -- limits his ability to perform "all super heavy and heavy jobs and all medium, light and sedentary positions requiring bilateral grip or repetitive use of the left extremity." Brief of Appellee, at 19.7 This assertion, however, only lists the restrictions that a physician has placed on Marinelli's work; it does not indicate, as stated above, the class of jobs (e.g., meatpacker, pilot, chef) from which he is disqualified as a result of his impairment (and resulting restrictions). 46 Further, courts have held such general averments insufficient to establish disability status under the ADA. In Broussard v. University of California, 192 F.3d 1252 (9th Cir. 1999), the plaintiff introduced a vocational rehabilitation expert's opinion that she could only work at the "sedentary to light" categories of workload. See id. at 1257. The Ninth Circuit held that because an expert's opinion only took "categories of jobs" into account, such evidence could not serve to defeat a motion for summary judgment with respect to whether the plaintiff was sufficiently limited from working. See id. at 1258 (emphasis added) (citing Thompson v. Holy Family Hospital , 121 F.3d 537 (9th Cir. 1997) (per curiam)). Likewise, in McKay v. Toyota Motor Mfg., U.S.A., Inc., 110 F.3d 369 (6th Cir. 1997), the Sixth Circuit held that a plaintiff 's carpel tunnel syndrome, which restricted her from performing medium to heavy work (i.e., any position requiring "repetitive motion or frequent lifting of more than ten pounds") was insufficient to establish that the impairment disqualified her from a broad range of jobs. Id. at 372-73. Finally, in Colwell v. Suffolk County Police Dep't, 158 F.3d 635 (2d Cir. 1998), the Second Circuit held that testimony suggesting that a plaintiff could only perform light or sedentary work merely established that the individual was disqualified from a "narrow range of jobs," and therefore was insufficient to establish that the plaintiff was disabled within the meaning of the ADA. See id. at 644-45. As a result, Marinelli cannot avoid judgment as a matter of law simply by pointing to the restrictions that Dr. Cohen placed upon his work. 47 Marinelli also testified that he could not operate the large snow plows utilized by the City. More specifically, Marinelli stated the following: 48 [I]t is my position that I can't drive a large snow plow. . . . [Because] [w]hen you're driving a large truck like that, you're going in and out of traffic, you do a lot of scanning with your mirrors, you do all the driving with your left hand, your right hand is always on controls. 49 App. at 96a. With respect to the other tasks required of shift crew members, as we reported earlier, Marinelli indicated that he would have little difficulty: 50 I can do most of the shift crew work, if not all of it, depending on the weather. The only problem I would have doing that shift crew work would be when it's really cold or really wet, that's when my arm and neck kick up really bad. 51 App. at 97a. As a result, Marinelli's assertion must be limited to his ability to drive the more sophisticated snow plows used by the City. 52 This argument, however, is far removed from being unable to perform a "broad range of jobs" as the EEOC regulations require. To the contrary, Marinelli's claim resembles the example provided by the EEOC's interpretive guidance; i.e., a pilot with an eye impairment that disqualifies him from flying commercial aircraft, but does not forbid him from serving as a co-pilot, or as a pilot on other aircraft. See 29 C.F.R. App. S1630.2(j) (1999). As the interpretive guidance advises, an individual faced with such a scenario is not disabled under the ADA. 53 On this score, a pair of Seventh Circuit decisions are quite apposite to the present appeal. In Best v. Shell Oil Co., 107 F.3d 544 (7th Cir. 1997), the plaintiff had a knee impairment that made it difficult to drive most of the trucks in defendant Shell's fleet. See id. at 545. Although the court believed that the plaintiff had presented sufficient evidence to survive summary judgment, it framed the question posed to the district court on remand as whether the plaintiff 's knee injury prevented him from driving most trucks in general, or only those trucks that comprised Shell's fleet. See id. at 548-49. If, as is the case with Marinelli, the plaintiff 's impairment only precluded him from driving the particular trucks Shell used, but did not prevent him from driving the majority of trucks utilized in the industry, he would not be disabled. See id. 54 Further, in Baulos v. Roadway Express, Inc., 139 F.3d 1147 (7th Cir. 1998), a plaintiff who suffered from kidney troubles that prevented him from sleeping inside a truck claimed that he was substantially limited in his ability to work as a truck driver. See id. The evidence, however, showed that the plaintiff 's impairment only disqualified him from trucking positions that involved overnight travel, and therefore, the plaintiff could perform the majority of other trucking positions. See id. at 1153. The Baulos court thus held that the plaintiff was not disabled. See id.; see also Thompson v. Dot Foods, Inc., 5 F. Supp. 2d 622, 626 (C.D. Ill. 1998) (holding plaintiff truck driver to be substantially limited in the major life activity of working in case in which plaintiff had submitted evidence establishing that he could not perform any trucking position involving road travel). 55 In the present appeal, the evidence -- viewed in the light most favorable to Marinelli -- indicates only that Marinelli's injury precluded him from driving the type of snow plow utilized by the City. He has not introduced any evidence to suggest that his injury would hamper an attempt to obtain a position driving any other truck utilized by any employer -- including the City. Indeed, the evidence is quite to the contrary, as Marinelli testified that he obtained a commercial driver's license shortly after his accident. App. at 115a. We therefore hold that Marinelli did not introduce evidence sufficient for a reasonable juror to conclude that he was substantially limited in the major life activity of working.8 56 iv. 57 Marinelli failed to present evidence at trial that would substantiate his claim that, as required by the ADA, he was substantially limited in a major life activity. The District Court thus erred in denying the City's initial motion for judgment as a matter of law. V. 58 Congress did not intend for the ADA to protect all individuals who suffer from medical difficulties; rather, Congress desired to shield from adverse employment actions those individuals whose medical troubles prevented them from engaging in significant daily activities. Because the record does not reveal that Marinelli submitted evidence that would allow a reasonable juror to conclude that he was a member of the latter class of individuals, we hold that the District Court erred in denying the City's motion for judgment as a matter of law.9 We will therefore vacate the final judgment order awarding Marinelli $241,465.53, and entered by the District Court on December 22, 1998, and will further remand this matter to the District Court with the direction to enter judgment as a matter of law in favor of the City. Notes: 1 In Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 308 n.3 (3d Cir. 1997), which presented claims of disability discrimination under both the ADA and the Pennsylvania Human Relations Act ("PHRA"), we restated the fact that the New Jersey Supreme Court had held, in the context of evaluating a claim under the New Jersey Law Against Discrimination ("LAD"), that " `expert medical testimony is required to establish the fact of the employee's [handicap].' " See id. at 308 n. 3 (quoting Gaul v. AT&T, Inc., 955 F. Supp. 346 (D.N.J. 1997), aff'd sub nom on other grounds Gaul v. Lucent Tech., Inc., 134 F.3d 576 (3d Cir. 1998)) (quoting in turn Clowes v. Terminix Int'l, Inc., 538 A.2d 794, 806 (N.J. 1988)). Clearly our observation in Taylor did not pertain to the ADA. See Clowes, 538 A.2d at 805-06 (holding that the plaintiff, who claimed that he suffered from alcoholism, failed to establish that he was "handicapped" under LAD because there was no testimony in the record from a treating or examining physician demonstrating that the plaintiff had been diagnosed as an alcoholic). 2 Although this view is certainly that which most comports with the terms of the ADA and with notions of common sense, it is not without its critics. See, e.g., Poldermann v. Northwest Airlines, Inc., 40 F. Supp. 2d 456, 463 (N.D. Ohio 1999) (holding that "plaintiff 's testimony as to her ability to work with the public, without supporting medical testimony, is not sufficient to establish her prima facie case under the ADA" (citing Douglas v. Victor Capital Grp. , 21 F. Supp. 2d 379, 392 (S.D.N.Y. 1998))). 3 The EEOC's regulations also provide that "[t]he following factors should be considered in determining whether an individual is substantially limited in a major life activity: (i) the nature and severity of the impairment; (ii) the duration or expected duration of the impairment; and (iii) the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." 29 C.F.R. S 1630.2(j)(2)(i)-(iii). 4 In two 1998 term decisions, the Supreme Court held that a court must look at an ADA plaintiff 's impairment after corrective measures are taken -- e.g., medication, eyeglasses -- in order to determine whether such an impairment was substantially limiting to the plaintiff 's major life activities. See Albertson's, Inc. v. Kirkinburg, 119 S. Ct. 2162, 2169 (1999); Sutton v. United Air Lines, Inc., 119 S. Ct. 2139, 2146 (1999). 5 The EEOC's interpretive guidance stipulates that we should not inquire into whether an individual is substantially limited in the major life activity of working unless the individual "is not substantially limited with respect to any other major life activity." 29 C.F.R. App. S 1630.2(j). 6 In this respect, the interpretive guidance offers a rather helpful example: [A]n individual who cannot be a commercial airline pilot because of a minor vision impairment, but who can be a commercial airline co- pilot or a pilot for a courier service, would not be substantially limited in the major life activity of working. 29 C.F.R. App. S 1630.2(j) (1999). 7 We note again that Marinelli did not offer Dr. Cohen's deposition testimony as a part of his case-in-chief, and as such, is not entitled to utilize the same to avoid judgment as a matter of law. Because, as above, Dr. Cohen's testimony cannot assist Marinelli in any event, we will discuss the merits of Marinelli's argument. 8 Marinelli also attempts to equate his successful attempt to receive worker's compensation benefits with being disabled pursuant to the ADA. In Pennsylvania, worker's compensation benefits are only paid to those who have "lost earning capacity." Fink v. Workmen's Compensation Appeal Bd., 678 A.2d 853, 857 (Pa. Commw. Ct. 1996). Because an ADA plaintiff must establish that he or she can perform the "essential functions" of the job he seeks, see 42 U.S.C. S 12111(8), it would appear that a finding of worker's compensation benefits would contradict -- not support -- a claim of disability under the ADA. Although the Supreme Court has held that plaintiffs ought not be entirely estopped from seeking ADA relief merely because they were the recipient of worker's compensation (or social security) benefits, see Cleveland v. Policy Management Sys. Corp., 526 U.S. 795, 807 (1999), obtaining worker's compensation benefits certainly does not mandate a finding of disability under the ADA. 9 The City raised other issues in this appeal regarding the District Court's various rulings in the present matter; namely, that Marinelli did not adequately assist the City in formulating a proper accommodation that would allow him to return to work, that the verdict levied against the City was "shockingly excessive," and that the District Court erred in its calculation of attorneys' fees. Insofar as we hold that Marinelli has failed to establish that he is disabled within the purview of the ADA, we need not address these additional issues.	{ "pile_set_name": "FreeLaw" }
998 F.2d 1006 U.S.v.Menendez (Ernesto), #13829-050 NO. 92-1898 United States Court of Appeals,Third Circuit. June 10, 1993 Appeal From: E.D.Pa., Gawthrop, J. 1 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
Opinion issued February 10, 2015 In The Court of Appeals For The First District of Texas ———————————— NO. 01-13-01053-CR ——————————— RODRICK SHIMI WALKER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 182nd District Court Harris County, Texas Trial Court Case No. 1365221 MEMORANDUM OPINION Appellant, Joseph Roderick Shimi Walker, was charged by indictment with the felony offense of aggravated sexual assault. See TEX. PENAL CODE. ANN. § 22.021(a)(1)(A)(i), (a)(2)(A)(iv) (West 2011). Appellant pleaded guilty to the offense without an agreed recommendation by the State as to punishment. The trial court found appellant guilty and sentenced appellant to 75 years’ imprisonment. Appellant timely filed a notice of appeal. Appellant’s appointed counsel on appeal has filed a motion to withdraw, along with a brief stating that the record presents no reversible error and the appeal is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). Counsel’s brief meets the Anders requirements by presenting a professional evaluation of the record and supplying us with references to the record and legal authority. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel indicates that he has thoroughly reviewed the record and he is unable to advance any grounds of error that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State, 193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.). We independently reviewed the entire record in this appeal, and we conclude that no reversible error exists in the record, there are no arguable grounds for review, and the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not counsel—determines, after full examination of proceedings, whether appeal is wholly frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing 2 court determines whether arguable grounds exist by reviewing entire record). We note that an appellant may challenge a holding that there are no arguable grounds for appeal by filing a petition for discretionary review in the Texas Court of Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6. We affirm the judgment of the trial court and grant counsel’s motion to withdraw.* Attorney Kurt B. Wentz must immediately send appellant the required notice and file a copy of the notice with the Clerk of this Court. See TEX. R. APP. P. 6.5(c). Any other pending motions are dismissed as moot. PER CURIAM Panel consists of Justices Jennings, Massengale, and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b). * Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). 3	{ "pile_set_name": "FreeLaw" }
272 P.3d 125 (2011) PARRISH v. FERRITER. No. OP 11-0481. Supreme Court of Montana. September 27, 2011. DECISION WITHOUT PUBLISHED OPINION Denied.	{ "pile_set_name": "FreeLaw" }
4 Cal.App.4th 646 (1992) 6 Cal. Rptr.2d 77 PEGGY J. CLAYPOOL et al., Petitioners, v. PETE WILSON, as Governor, etc., et al., Respondents. Docket No. C011580. Court of Appeals of California, Third District. March 12, 1992. 651 COUNSEL Gary Reynolds, Howard Schwartz, Anne Stausboll, Margie Valdez, Maureen C. Whelan, William Corman, Davis, Reno & Courtney, Alan C. Davis, Deborah L. Shibley and Dennis F. Moss for Petitioners. Joan R. Gallo, City Attorney (San Jose), Susan Devencenzi, Deputy City Attorney, Nancy A. Williams, Mark A. Madsen, Kevin A. Howard, McDonough, Holland & Allen, William C. Hilson, Jr., Diepenbrock, Wulff, Plant & Hannegan, Steven H. Felderstein, George Kim Johnson, Sigman & Lewis, Dan Feinberg, Jeffrey Lewis, Carlos Resendez, Groce, Locke & Hebdon, Crofts, Callaway & Jefferson, Sharon E. Callaway, W. Bebb Francis III, James Q. Shirley, Sheehan, Phinney, Bass & Green, Alan P. Cleveland and Charles F. Conrad as Amici Curiae on behalf of Petitioners. Daniel E. Lungren, Attorney General, N. Eugene Hill, Assistant Attorney General, Ramon M. de la Guardia, Cathy A. Neff, Daniel G. Stone and Richard Thomson, Deputy Attorneys General, Hufstedler, Kaus & Ettinger, Joseph L. Wyatt, Jr., Michael V. Toumanoff, John W. Alden, Jr., Lawrence E. Gercovich, D. Robert Shuman, Richard J. Chivaro and Larry W. Kreig for Respondents. 652 OPINION BLEASE, J. In this original mandamus proceeding members of the Public Employees' Retirement System (PERS) and their employee organizations (collectively Petitioners), challenge the constitutionality of two parts of chapter 83 of the Statutes of 1991 (Chapter 83). One part repeals three funded supplemental cost of living (Cola) programs and directs that the funds be used to offset contributions otherwise due from PERS employers. The other transfers the responsibility for actuarial determinations from the PERS board to an actuary acting under a contract with the Governor. Petitioners and their allies, the nominal respondent Board of Administration of PERS (PERS Board) and amici curiae, contend that repeal of the supplemental Cola programs and reallocation of the funds to offset employer contributions unconstitutionally impair the contract rights of PERS beneficiaries and, along with the transfer of actuarial functions, violate California Constitution, article XVI, section 17, which declares that the assets of a public pension or retirement system are trust funds. The heart of the controversy has two chambers. One concerns the permissible uses of a unique fund within PERS amounting to some $2 billion. The fund was generated from earnings on the investment of mandatory payroll contributions of employee members of the system. Ordinarily, such earnings are accumulated to meet the basic pension obligations of the state (State) and other PERS employers. Some were diverted to fund supplemental Cola benefits to retirees to aid in the preservation of the purchasing power of their pensions. Under Chapter 83 the statutes providing for the supplemental Colas are repealed, a new supplemental Cola program enacted, and the funds reallocated to meet the basic pension obligations of PERS employers. Petitioners claim that this reallocation of investment earnings impairs the vested contract rights of PERS members. We will conclude that no contract rights are impaired. The principal beneficiaries of the fund, if not reallocated, are former employees who ceased employment prior to the time when an implied statutory promise not to reallocate the fund could have arisen. They earned no vested contract rights under the repealed statutes and must rely, along with present employees, upon a new supplemental Cola program enacted by Chapter 83 as a replacement for the repealed programs. The employees who may have earned vested contract rights by rendering service under the repealed statutes are given comparable advantages under the new supplemental Cola program and for that reason their rights are not unconstitutionally impaired. The second chamber of the controversy concerns the transfer of PERS Board actuarial functions to an actuary selected by the Governor (the 653 Actuary). The key issue is whether the assignment of these matters to an outside actuary violates the requirement of California Constitution, article XVI, section 17, that PERS be managed as a trust. We will conclude that Chapter 83 contains safeguards which insulate the Actuary from the control of the Governor and that the transfer of actuarial functions is not facially inconsistent with trust law. We will deny the petition. FACTS AND STATUTORY BACKGROUND The facts for the most part are contained in the history of the Public Employees' Retirement Law and matters subject to judicial notice. (See Valdes v. Cory (1983) 139 Cal. App.3d 773, 780 [189 Cal. Rptr. 212]; California Teachers Assn. v. Cory (1984) 155 Cal. App.3d 494, 500, fn. 2 [202 Cal. Rptr. 611].) Our point of departure is the opinion of this court in Valdes v. Cory. There, we recounted the history of PERS to March 1982, the date of the enactment challenged in that case. (139 Cal. App.3d at pp. 780-783.) We will revisit this history before relating subsequent developments. Except as we note, the statutes governing PERS have been substantially carried forward to the present. A. PERS History Prior to 1982 In 1931 the Legislature established the State Employees' Retirement System, presently known as PERS. (Stats. 1931, ch. 700, § 25, p. 1444; Gov. Code, § 20004.)[1] The system included a fund derived from mandatory employee payroll contributions (member contributions), contributions of the state, and earnings on the investment of the fund. (Stats. 1931, ch. 700, §§ 41, p. 1445, 63, p. 1448, 65-74, pp. 1448-1451.) The member contributions were calculated to provide an average annuity at age 65 equal to one 140th of a member's final compensation multiplied by the years of service. (Id., § 65, p. 1448.) These contributions were deducted from the payroll of each office or department and the remaining salary payment was declared a full and complete discharge of the obligation owed an employee except for claims of benefits under the retirement law. (Id., § 67, p. 1450.) The system was administered by a board of administration. At the outset the PERS Board was directed to make actuarial valuations of the fund and the liabilities of the system and to recommend to the Legislature appropriate changes in the rates of contribution to achieve equality between valuation 654 and liabilities. (Stats. 1931, ch. 700, §§ 51, p. 1447, 58, pp. 1447-1448, 69-72, pp. 1450-1451.) Each year the PERS Board was to credit member contributions with 4 percent interest or such greater amount of interest as it deemed proper in light of the earnings on the fund in that year, but no more than actual earnings. (Stats. 1931, ch. 700, § 52, p. 1447.) An individual member account was kept for each member of the retirement system and was credited with the member's payroll contributions and with annual interest. (Id., § 67, p. 1450.) The records and accounts of the PERS Board were directed to show the accumulated contributions of the State. (Id., §§ 56-57, p. 1447.) If a member discontinued employment other than by death or retirement the member was to be paid the amount of his or her accumulated member contributions. (Id., § 75, pp. 1451-1452.) A member was entitled to retire at age 60 with 20 years of service and to receive a retirement allowance consisting of an annuity equal to the value of the accumulated employee contributions together with a matching pension funded by the state contributions. (Id., §§ 79-82, p. 1452.) In 1937 a reserve against deficiencies was created. "Income, of whatever nature, earned on the retirement fund during any fiscal year, in excess of the interest credited to contributions during said year shall be retained in said fund as a reserve against deficiencies in interest earned in other years, losses under investments, and other contingencies." (Stats. 1937, ch. 806, § 8, p. 2284; see now § 20203.) In 1939 the system was expanded to include any municipal corporation in the State which elected to contract with the PERS Board for coverage of its employees. (Stats. 1939, ch. 927, § 3b, p. 2605.) The law was also amended to provide that interest at the current rate rather than 4 percent should be the baseline credit to member contributions. (Id., § 13, p. 2611.) In 1943 the system was expanded to include any public agency in the State which elected to contract with the PERS Board for coverage of its employees. (Stats. 1943, ch. 640, p. 2259.) In 1945 the original enactments were repealed but the provisions in essential part were carried over as the State Employees' Retirement Law. (Stats. 1945, ch. 123, §§ 1-2, pp. 535-609; §§ 20000-21455.) In 1947 the pension component of the retirement allowance was defined to be the amount, which when added to the annuity component, met prescribed target amounts based on age at retirement and final compensation. (Stats. 1947, ch. 732, § 4, pp. 785-786.) Under the present version of this provision, for example, a state miscellaneous member retiring at age 60 with 25 years of service is entitled to a retirement allowance of 2 percent of final compensation multiplied by the number of years of service, i.e., half-pay. 655 (§ 21251.13.) This allowance is increased annually by a basic Cola limited to 2 percent per year. (§§ 21222, 21224.) Some other classifications of members have a higher basic Cola. In the early years of the system the reserve against deficiencies was not substantial. "For years, the interest credited to accumulated contributions closely paralleled the actual earnings rate after deduction of administrative costs. Until 1971, the crediting rate was usually within one quarter of one percent of the earnings rate. In recent years, however, the crediting rate has not kept pace with market rates of interest, resulting in a dramatic increase in the reserve account because of current record-high investment yields in financial markets. Consequently, the PERS currently [1982] has a reserve approaching $1 billion." (Valdes v. Cory, supra, 139 Cal. App.3d at p. 783.) A consequence of the burgeoning reserve for deficiencies was the enactment of former section 21231 in 1980 (Stats. 1980, ch. 1244, § 1, p. 4219). It established a special account within PERS and transferred from the reserve for deficiencies to the account monies exceeding 2 percent of PERS assets. (Ibid.) The purpose of this account was to increase by 10 percent for the period October 1, 1980, through September 30, 1982, the monthly allowance of every person eligible to receive an allowance on December 31, 1979. (Ibid.) We adopt the usage of the parties and refer to this benefit as the "Boatwright benefit." Subdivision (c) of section 21231 provided that recipients of this benefit are to be informed that "the increases are not cumulative and shall not be included in their base allowance and may be available for only a limited period of time." In March 1982, chapter 115 was enacted. The provisions of this enactment, challenged in Valdes v. Cory, directed that employer contributions payable for a portion of that year not be paid and that the PERS Board make up the shortfall by transfer of an equivalent sum from the reserve against deficiencies. (Stats. 1982, ch. 115, §§ 14, subd. (b), p. 344, 58-61, pp. 370-371.) The PERS Board adopted a resolution declining to make this transfer until compelled so to do by a final judgment of an appellate court. (Valdes v. Cory, supra, Cal. App.3d at p. 779.) This led to the Valdes v. Cory litigation. B. Chapter 330 of the Statutes of 1982 In June 1982, chapter 330 was enacted. Section 1 states the legislative intent of the enactment in pertinent part as follows: "It is the intent of the Legislature in enacting this act to preserve the actuarial integrity of the Public Employees' Retirement System, to recognize 656 the fiduciary role of the Board of Administration of the Public Employees' Retirement System, to assist in the orderly and equitable disposition of the reserve against deficiencies created by Section 20203 of the Government Code, and to provide for repayment of state and school employer retirement contributions. In enacting this act, the Legislature agrees with the findings of the chief actuary and the board, who, on June 16, 1982, determined that funds in the reserve for deficiencies may be allocated from the reserve without jeopardizing the actuarial soundness of the system. The Legislature also concurs with the board's finding that direct relief from contributions in this time of fiscal stress is for the exclusive benefit of the members and retired members of the system." (Stats. 1982, ch. 330, § 1, pp. 1617-1618.) Under chapter 330, former section 20203 was amended to provide in pertinent part: "At the end of each fiscal year, the amount in the reserve against deficiencies which exceeds 1 percent of the total assets of the system shall be credited to other accounts as prescribed by this part." (Stats. 1982, ch. 330, § 14, p. 1622.) Chapter 330 also enacted several notable statutes governing PERS. Section 20131.1 requires the PERS Board to credit employer contributions with interest at the current net earnings rate. (Stats. 1982, ch. 330, § 12, p. 1621.) Section 21232 requires the board to transfer $130 million from the reserve for deficiencies to a special account to pay Boatwright benefits for an additional two years. (Stats. 1982, ch. 330, § 29, p. 1626.) The Boatwright benefit has been extended subsequently with pourover funding from the Investment Dividend Disbursement Account, which we next explain. (Stats. 1984, ch. 671, § 1, pp. 2465-2466; Stats. 1985, ch. 1495, § 3, pp. 5504-5505; Stats. 1988, ch. 1356, § 3, pp. 4491-4492.) Section 21235 requires that the PERS Board establish an Investment Dividend Disbursement Account (Investment Dividend Account) for the purpose of increasing retirement allowances to an amount equal to 75 percent of their original purchasing power. (Stats. 1982, ch. 330, § 30, pp. 1624-1627.) The Investment Dividend Account is funded by the residue from earnings after deducting system administration costs, funding the reserve against deficiencies to 1 percent of total assets, and crediting interest to member accounts. (Stats. 1982, ch. 330, § 30, pp. 1626-1627.) Member contributions are credited at the current actuarial interest rate. The PERS Board is required to notify recipients of this benefit that "the increases are not cumulative, not part of the base retirement allowance, and may be available for only a limited period of time and that the board may discontinue the increases." (Stats. 1982, ch. 330, § 30, pp. 1626-1627.) Chapter 330 also provides that the authorization to pay increased allowances from the Investment Dividend Account under section 21235 was to expire on January 1, 1989. (Stats. 1982, ch. 330, § 30, pp. 1626-1627.) 657 C. Chapter 1356 of the Statutes of 1988 Statutes of 1988, chapter 1356 reconfigured the Investment Dividend Account program. Section 20203 was amended to reduce the maximum size of the reserve against deficiencies to 0.30 percent of system assets. The Investment Dividend Account was set at a fixed amount and drew interest at the rate used to credit retired member reserves. (§ 21237.) The remaining funds available under the allocation formula of section 21235 were retained in so-called Purchasing Power Accounts. (§ 21237.) The funds in these accounts were used to pay Boatwright benefits and other purchasing power benefits. (§§ 21235-21236.) The Investment Dividend Account supplemented the Purchasing Power Accounts to pay these benefits. (§ 21235.) Chapter 1356 also established the Extraordinary Performance Dividend Account (Extraordinary Performance Account). Section 21238 permitted the PERS Board, in years in which the 75 percent of purchasing power goal was met by payments from the Purchasing Power Accounts, to raise pensions to a higher common minimum purchasing power level. The first payment from the Extraordinary Performance Account occurred in January 1991, and under the policies adopted by the PERS Board, brought all allowances up to 80 percent of original purchasing power. Payments under this program were paid by a separate warrant and recipients were notified "that the payments are not cumulative, not part of the base retirement allowance, and may be available only as a result of extraordinary investment returns to the system." (former § 21238.) The Extraordinary Performance Account was funded by pourover funds from the Purchasing Power Accounts consisting of the amount, not to exceed the amount disbursed in the preceding fiscal year, remaining after disbursements were credited to retired member accounts from any funds in excess of those disbursed pursuant to sections 21235 and 21236 for Boatwright benefits and purchasing power allowances in the four preceding years. (§ 21237, subd. (b).) Petitioners concede that the funds, credited to retired member accounts, became employer asserts for purposes of the effect on the employers' contribution obligations, since they were available to make up part of the ordinary retirement allowance. D. Chapter 83 of the Statutes of 1991 That brings us to Chapter 83 of the Statutes of 1991, which is the subject of Petitioners' challenge. This enactment repeals the statutes providing for the Boatwright benefit, the 75 percent of purchasing power floor, and the Extraordinary Performance Account benefit (collectively former supplemental Colas). (Stats. 1991, ch. 83, §§ 35, 37, 39, 40.) The funds allocated for 658 these benefits are to be used to "reduce employer contributions in fiscal year 1991-92 and subsequent fiscal years until those amounts are depleted." (§ 20131.01.) In place of the repealed programs section 21235.5 enacts an alternative Cola program, as follows: "(a) On an annual basis, the board shall transfer the lesser of: (1) the amount necessary to increase all monthly allowances paid by the system to 75 percent of the purchasing power of the initial monthly allowances; or (2) up to 1.1 percent of the net earnings on member contributions, as determined by Section 20132.6, to a supplemental account. "(b) The funds so transferred to the supplemental account shall be utilized to increase all monthly allowances paid by the system up to a maximum of 75 percent of the purchasing power, as determined by the actuary, of the initial monthly allowances that were received by every retired person or survivor or beneficiary of a state, school or local member or retired person who was eligible to receive any allowance at the end of each fiscal year. Funds remaining in the account after the payment of benefits under this section shall be transferred to the employer accounts." (Stats. 1991, ch. 83, § 36.) Chapter 83 also transfers many of the actuarial duties previously assigned to the PERS Board to the Actuary. Section 20006 provides: "(a) `Actuary' means an individual or firm practicing as an enrolled consulting actuary appointed by the Governor under contract with the Governor's Office. The contract shall not be subject to any provisions of law relating to competitive bidding. The contract shall be for a fixed period of time not to exceed three years as determined by the Governor. The compensation paid to the actuary and other necessary employees of the actuary shall be fixed by the contract. The actuary under contract with the Governor's Office pursuant to this section may not be awarded a successive contract. All costs of the contract for the actuary shall be paid from the retirement fund on an annual basis. In carrying out duties under this part, the actuary shall be deemed to succeed to and assume the fiduciary obligations pertaining to actuarial determinations previously held by members of the board, including, but not limited to, those set forth in Section 17 of Article XVI of the California Constitution. "(b) The Governor shall submit the name of the actuary to each house of the Legislature. The actuary shall commence serving in office on the day 659 after receipt of confirmation by both houses of the Legislature. However, the appointment shall become effective and be deemed confirmed the 61st calendar day after the submission of the nomination unless a majority of either house affirmatively rejects the nomination. If the 60-day period ends during a recess of the Legislature, the period is extended to the sixth day following the date on which the Legislature reconvenes." (Stats. 1991, ch. 83, § 5.) Under the statutes enacted by Chapter 83 the Actuary, among other things, values the liabilities and assets of PERS (§ 20006.1), adopts the annual interest rate and the actuarial interest rate (§§ 20026.1, 20026.2), and determines the employer contribution rates (§ 20750.905). Additional facts will be introduced at appropriate points in the discussion of the contentions made by the parties. DISCUSSION Introduction We address the most forceful of the arguments advanced by Petitioners and their allies, the PERS Board and the numerous amici curiae, without separate attribution.[2] In the voluminous briefings there are numerous arguments which we will not relate or discuss. Many of them are addressed to the wisdom of Chapter 83, a topic outside our purview. (See, e.g., Valdes v. Cory, supra, 139 Cal. App.3d at p. 780.) Other arguments are simply overtaken or outflanked by resolution of the matters which we do discuss or do not warrant discussion because they are too fragmentary or obscure. (See 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 479.) Petitioners and their allies challenge the validity of the repeal of the former supplemental Cola programs and the reallocation of the monies made available thereby to offset the payment obligations of PERS employers. They claim that all members of the retirement system have contractual rights to the benefits of the repealed programs which have been unconstitutionally impaired by their repeal and replacement by a Cola program which does not provide comparable benefits. Failing that argument they claim that the monies which funded the repealed programs are held in trust for PERS members and cannot be used to offset the obligations of PERS employers. They also challenge the transfer of the PERS Board actuarial duties to an actuary selected by the Governor. We will answer these claims in the following ways. 660 We begin by assuming that the statutes which created the former supplemental Colas establish contractual rights which may not be altered except by replacement with a program establishing comparable benefits. Our assumption does not extend to PERS members who retired prior to the effective dates of the former programs because they did not exchange their labors for the benefits created after retirement and for that reason gained no vested contractual rights to them. This circumstance affects the comparability of the new Cola program because the former employees are the principal beneficiaries of the repealed programs. A significant feature of the repealed programs is that their benefits were limited by the amounts in the fund out of which they were to be paid. If the funds declined so did the benefits which they funded. A significant provision of Chapter 83 is that it creates a "second tier" of pension benefits for new employees, who do not make member contributions. The validity of that provision determines whether the new Cola program provides benefits which are comparable to those afforded under the repealed supplemental Cola programs. Since the repealed and new Cola programs must be similarly judged the benefits provided by the repealed programs must be viewed as if modified by the creation of a second tier of noncontributory employees. So viewed, the fund out of which the former supplemental Colas would have been paid would have ceased to grow and would have been largely consumed by payments to retired members lacking vested contractual rights to the benefits paid by the fund. We determine that the Legislature could validly amend the statutes governing PERS by the addition of a second tier of noncontributory employees, the effect of which would have been to erase the benefits to members with vested rights in the former supplemental Cola programs. For that reason the new Cola program provides an obvious new advantage for such members, actual benefits for the theoretical but illusory higher benefits under the repealed programs. Petitioners and their allies nonetheless argue that because the fund made available by the repeal of the former supplemental Cola programs is held in trust for the benefit of PERS members it may not be used to defray employer contributions which otherwise would be required. We conclude that although the fund must be committed to the payment of PERS trust benefits, since the repeal of the former supplemental Cola programs makes available monies not previously counted toward the actuarial soundness of the trust fund, they may be counted so as to offset PERS employer obligations until employer contributions are again required for actuarial soundness. Counted in this manner the funds remain committed to the payment of PERS trust benefits. Petitioners and their allies claim that the provisions of section 20006, which transfer the PERS Board actuarial duties to an actuary selected by the 661 Governor, violate article XVI, section 17 of the California Constitution which declares that PERS assets are trust assets. They assert, and we assume, that this provision constitutionalizes the law of trusts. Section 20006 provides that the Actuary must "assume the fiduciary obligations ... previously held by members of the [PERS] board, including ... those set forth in Section 17 of Article XVI of the California Constitution." (§ 20006, subd. (a).) Because Petitioners challenge the validity of section 20006 on its face we are constrained by the limited scope of judicial review appropriate to such a challenge to rule out conjecture predicated upon hypothetical applications of the statute. We will conclude that there is nothing in section 20006 which facially precludes the Actuary from complying with its direction to comply with the "fiduciary obligations [imposed by] Section 17 of Article XVI of the California Constitution." I The Repeal of the Former Supplemental Cola Statutes Does Not Impair Vested Rights of Contract (1a) Petitioners challenge the reallocation of the funds committed to the former supplemental Cola programs to defray PERS employer funding obligations. We first address the predicate contention that the repeal of the statutes establishing the former supplemental Cola programs unconstitutionally impairs rights of contract. If that contention is successful the remaining claims are moot. If the repeal of these statutes is invalid the funds allocated to the former supplemental Colas are not available to defray the employer funding obligations. (2) The basic doctrines governing pension rights are set out in the following passage from Betts v. Board of Administration (1978) 21 Cal.3d 859 [148 Cal. Rptr. 158, 582 P.2d 614]: "A public employee's pension constitutes an element of compensation, and a vested contractual right to pension benefits accrues upon acceptance of employment. Such a pension right may not be destroyed, once vested, without impairing a contractual obligation of the employing public entity. The employee does not obtain, prior to retirement, any absolute right to fixed or specific benefits, but only to a `substantial or reasonable pension'.... "... `An employee's vested contractual pension rights may be modified prior to retirement for the purpose of keeping a pension system flexible to permit adjustments in accord with changing conditions and at the same time maintain the integrity of the system. Such modifications must be reasonable, 662 and it is for the courts to determine upon the facts of each case what constitutes a permissible change. To be sustained as reasonable, alterations of employees' pension rights must bear some material relation to the theory of a pension system and its successful operation, and changes in a pension plan which result in disadvantage to employees should be accompanied by comparable new advantages.'" (Id. at pp. 863-864, citations and italics omitted; also see Annot., Vested Right of Pensioner to Pension (1957) 52 A.L.R.2d 437, 444-450 for a synopsis of California case law.) A. Only Persons Employed After January 1, 1989, Could Have Vested Rights to Former Cola Benefits (1b) Petitioners and the Governor join issue on the question whether the former supplemental Colas vest contract rights to pension benefits in anyone within the meaning of Betts. The Governor claims that the peculiar character of these programs distinguishes them from the statutory entitlements which were the subject of the cases in which the vesting rule developed. He relies upon two primary considerations: (1) that the benefits are expressly conditioned upon the sufficiency of a fund for which there is no promise of actuarial soundness, and (2) that the former supplemental Cola statutes contain admonishments to recipients that future benefit payments are not assured. Petitioners reply that the fact that benefits are subject to a condition only limits vesting to the circumstances addressed by the condition and that the admonitions only inform the beneficiaries of the condition. (3) At the outset it is useful to resolve a subordinate vesting question, whether members who ceased employment prior to the enactment of the former supplemental Colas have vested rights in their continuance. Petitioners' initial arguments fuse the interests of these members (former employees) with those employed after their effective dates (present employees). The contractual basis of a pension right is the exchange of an employee's services for the pension right offered by the statute. (See, e.g., California Teachers Assn. v. Cory, supra, 155 Cal. App.3d at p. 506.) A member whose employment terminated before enactment of a statute offering additional benefits does not exchange services for the right to the benefits. We asked the parties whether these former employees have vested rights. Petitioners first claim that once new pension benefits are made applicable to retired persons they may not be taken away, relying upon Terry v. City of Berkeley (1953) 41 Cal.2d 698, 702 [263 P.2d 833] and Wallace v. City of Fresno (1954) 42 Cal.2d 180 [265 P.2d 884]. The cases are inapposite. Terry did not address the question. It concerned the construction of ambiguous 663 language in a pension ordinance applicable at the time the plaintiff retired for a physical disability incurred in the line of duty. (41 Cal.2d at p. 699.) The court construed the language in favor of the retiree, holding that an attempt to cure the ambiguity by an amendment of the ordinance "more than four years after the plaintiff retired" was ineffectual. (Id. at pp. 702-703.) For the same reason Wallace is inapposite. It addressed the reasonableness "of an amendment [to the employee's pension plan], made before [the] employee is eligible to retire, which provides for termination of pension rights if he is convicted of a felony after retirement." (42 Cal.2d at p. 184.) Petitioners' remaining claim of direct support rests on Olson v. Cory (1980) 27 Cal.3d 532 [178 Cal. Rptr. 568, 636 P.2d 532]. At issue was the validity of the repeal of a statute which resulted in a full Cola for judicial pensioners who had retired before the statute was enacted. The court held that the repeal of the statute was invalid regardless whether the pensioners had earned a vested right in the full Cola by service after its enactment. Petitioners conclude therefrom that benefits given retirees after retirement cannot be reduced regardless whether they earned vested rights to them. Petitioners misread the case. The holding is predicated upon a vested contract right which the retired member did hold. The right was earned not by service under the Cola statute but by service under a statute which measured retirement rights as a percentage of the salary of the judge's successor in office. If the successor had vested rights to a full Cola adjustment in salary by service after its enactment the pensioner obtained a vested right to a percentage of that salary by virtue of the statute in effect at the time of retirement. The court said: "Contractually, each judicial pensioner is entitled to some fixed percentage of the salary payable to the [successor] judge.... The resolution of pensioner vested rights, then, is dependent on the foregoing resolution of [the successor] judges' vested rights...." (Olson v. Cory, supra, 27 Cal.3d at pp. 541-542, italics added.) Since the successor judges earned vested rights to the salary called for under the full Cola salary statute, the pensioners' vested contract right to a percentage of that salary rendered its repeal invalid as to them. (1c) Olson v. Cory does not aid Petitioners because the pension rights of PERS members are not tied to their successors' salary. For that reason employees who ended their service prior to the enactment of the former supplemental Cola statutes have no vested right which could be impaired by their repeal. (See 27 Cal.3d at p. 542; Pasadena Police Officers Assn. v. City of Pasadena (1983) 147 Cal. App.3d 695, 706 [195 Cal. Rptr. 339]; York Paid Firemens Pension Fund Board of York City v. Lindsey (Pa. Cmwlth. Ct. 1980) 52 Pa. Comwlth. 51 [415 A.2d 441].) 664 That brings us to Petitioners' claim that former employees obtained a vested right to continuance of the former supplemental Colas because they exchanged another vested right for them. Petitioners suggest that this is a case like Pasadena Police Officers Assn., supra, 147 Cal. App.3d 695, which held that employees were entitled to the continuation of a Cola based upon such an exchange. In that case the retirees had earned a contractually vested right to a fixed pension which could not be reduced. A postemployment amendment of the pension ordinance offered these retired employees an option to exchange that vested right for a pension measured by a Cola having the potential of increasing or decreasing the pension by a Cola adjustment. The court held that retirees who elected the Cola provision were protected from repeal of the amendment because their post employment election to exchange benefits created a contract that could not be impaired. Petitioners argue that former state employees are in an analogous situation because the statutes establishing the former supplemental Colas funded them by reduction of the reserve against deficiencies from 1 percent of PERS assets to 0.30 percent of PERS assets. They claim that the former employees had a vested contract right to a reserve account of 1 percent of PERS assets under our holding in Valdes v. Cory and suggest that the only manner in which the reduction of the reserve account could have passed constitutional muster is on the theory the pension rights were reasonably modified pursuant to the criteria in Betts. They claim that the former supplemental Colas were the comparable new advantage required to offset the disadvantage of reduction of the reserve account. The analogy to Pasadena Police Officers Assn. is inapposite. The former employees made no election (acceptance) of an alternative pension right offered by the employer. No new contract was formed by an exchange. Their claim of right must be founded upon the antecedent contract, entered into prior to retirement, or they have none. As we will show (pt. II, post, pp. 670-673), Valdes does not hold that there is a vested contract right to a reserve account of 1 percent of system assets. Moreover, retirees, unlike employees, are not subject to the reasonable modification doctrine. (See e.g., Terry, 41 Cal.2d at pp. 702-703; Betts, 21 Cal.3d at pp. 864-865.) If their contracts had been impaired by the reduction of the reserve account their remedy was a timely action to avert or halt the impairment. The only arguable claims of vested contractual rights pertain to present employees, members employed after Statutes of 1988, chapter 1356 reconfigured the Investment Dividend Account program. Prior to that enactment the former supplemental Cola programs were subject to expiration by sunset provisions. (See, e.g., Stats. 1982, ch. 330, § 29, p. 1626.) The elapsed 665 period between these enactments and their sunset dates are such that employees who worked under them would not have reached eligibility for payment of supplemental Cola benefits prior to their expiration. B. Reasonable Modification We need not reach the issue whether members employed after January 1, 1989, are entitled to vested contractual rights in the former supplemental Cola programs. Under California law an "`employee's vested contractual pension rights may be modified prior to retirement [provided that the] modifications must be reasonable....'" (Betts, supra, 21 Cal.3d at p. 864.) Because it poses novel constitutional questions, the resolution of the question of vested rights is more problematic than resolution of the question whether Chapter 83 is a reasonable modification of the prior supplemental Cola programs. If we resolved the vesting question in favor of Petitioners we would nonetheless have to address this latter question. (4) Since constitutional adjudication is eschewed where possible (E.g., Cumero v. Public Employment Relations Bd. (1989) 49 Cal.3d 575, 586 [262 Cal. Rptr. 46, 778 P.2d 174]) we will proceed to the question of reasonable modification, assuming for the sake of discussion that Petitioners would prevail on the vesting question as to persons employed after January 1, 1989. 1. The Changes in the Supplemental Colas Bear a Material Relation to the Theory of PERS (5) Under Betts a modification of a vested pension right is reasonable only if it "bear[s] some material relation to the theory of a pension system and its successful operation, and changes in [it] which result in disadvantage to employees [are] accompanied by comparable new advantages." (21 Cal.3d at pp. 864-865, italics omitted.) (1d) Petitioners first argue that the new supplemental Cola program lacks the requisite relation to the theory of the pension system and its successful operation because the purpose of the enactment is to alleviate a state budget deficit. The Governor argues that the changes provide a more certain source of long-term funding for the supplemental Cola benefits as well as alleviating a deficit. Petitioners suggest that the material relation requirement renders changes made with a purpose of saving the public employer money invalid per se. We disagree. The saving of public employer money is not an illicit purpose if changes in the pension program are accompanied by comparable new advantages to the employee. If that were not the case the reasonable modification doctrine 666 would add little flexibility to the administration of the public pension systems. The "material relation" requirement fulfills "the purpose of keeping the pension system flexible to permit adjustments in accord with changing conditions and at the same time maintain the integrity of the system...." (See Wallace v. City of Fresno, supra, 42 Cal.2d at pp. 184-185.) The case law which applies the "material relation" requirement is sparse. Wallace held that an amendment which terminated all pension rights of a pensioner upon conviction of a felony after retirement did not satisfy that requirement. (42 Cal.2d at p. 185.) "[T]he change was designed to benefit the city and ... to meet the objections of taxpayers who would be opposed to contributing funds for the maintenance of a pensioner who had been convicted of a felony." (Ibid.) In Allen v. City of Long Beach (1955) 45 Cal.2d 128, 133 [287 P.2d 765], it was held that amendments which increased the employee contribution rate, providing for a fixed pension and requiring a contribution from employees returning from military service, did not bear a relation to the functioning and integrity of the pension system. The city did not claim that the changes were necessary to preserve or protect the pension program or that otherwise it would have difficulty in meeting its pension obligations. (Ibid.) It claimed that newer employees, not eligible for the original pension rights, were disgruntled and that to remedy that condition it wished to equalize the compensation of the two groups of employees. (Ibid.) (6) Wallace and Allen show that considerations external to the functioning of the pension system, such as increased taxpayer hostility to felons or jealousy of employees not covered by the system, will not justify a change. The justification must relate to considerations internal to the pension system, e.g., its preservation or protection or the advancement of the ability of the employer to meet its pension obligations. Changes made to effect economies and save the employer money do "bear some material relation to the theory of a pension system and its successful operation...." (Betts v. Board of Administration, supra, 21 Cal.3d at p. 864.) That is not to say that a purpose to save the employer money is a sufficient justification for change. The change must be otherwise lawful and must provide comparable advantages to the employees whose contract rights are modified. (1e) We hold only that the monetary objective will not invalidate a modification which is otherwise valid. 2. Unless the Second Tier Provision Is Invalid, the New Supplemental Cola Provides a Comparable Advantage in Lieu of the Disadvantage of Lower Maximum Benefits Petitioners locate the disadvantage principally in the lowered purchasing power maximums for the new supplemental Cola benefits under section 667 21235.5.[3] As we next show, the claim fails unless the provision of Chapter 83, which requires that certain state employees hired after the effective date of the statute be placed in a noncontributory pension plan (mandatory second tier) is invalid. Under the former supplemental Cola programs retirees eligible for Boatwright benefits could receive more than 75 percent of the original purchasing power of their pensions and all retirees could receive more than that level under the Extraordinary Performance Account program. Under new section 21235.5 the maximum level of purchasing power protection is 75 percent. Petitioners originally argued that this is a disadvantage for which there is no offsetting comparable advantage. The Governor replied that comparability does not require point by point equality and suggested that the potential for greater benefits under the repealed statutes is offset by the greater assurance of funding under section 21235.5. The Governor adduced an independent actuarial report (the Foster-Higgins report), provided to PERS on January 15, 1991, under a contract authorized by former section 20234.[4] He argues that it shows that the accumulated former supplemental Cola funds would have been exhausted in about a decade and that the annual funding mechanism for that program is less reliable and productive than the annual funding mechanism under the new supplemental Cola. The Petitioners challenge both the interpretation and methodology of the report. The Petitioners adduced expert actuarial opinion testimony supporting the conclusion that if the former supplemental Cola program had continued and had been operated under past policies, its annual funding mechanism would have been more productive than the funding mechanism under the new supplemental Cola. The Governor replied with contrary expert actuarial opinion. 668 As we have shown, the reasonableness of the modification must be viewed from the vantage point of persons employed on or after January 1, 1989. That has significant consequences for Petitioners' original arguments. Boatwright benefits were available only to persons whose employment terminated prior to the enactment of the program. Therefore no one has vested rights in it. The loss of the potentially higher level of benefits under the Extraordinary Performance Account program is a disadvantage, but that potential must be evaluated by its actuarial consequences. A person employed on January 1, 1989, was not entitled to receive Extraordinary Performance Account benefits (as the program was administered by PERS) until retirement and erosion of the pension's value to 80 percent of its original purchasing power. That would not occur until nine years after the date of retirement, assuming a 5 percent inflation rate and a basic Cola of 2 percent. For that reason the comparability of the new supplemental Colas to those under the Extraordinary Performance Account must be gauged by the benefits which would accrue for the period beginning in 1998 and extending over the likely duration of their receipt. In light of this measure of comparability and the conflicting opinion testimony, we asked the parties to compare the projected benefits of a typical, hypothetical present employee under the former and new supplemental Cola programs. Because Chapter 83 has a mandatory second tier under which most new state employees who are miscellaneous and state industrial members of PERS would make no member contributions (§ 20013.75), we asked the parties to factor the absence of such contributions into their calculations of projected benefits under both supplemental Cola programs. The parties adduced evidence in response to our request. The Governor adduced evidence of projected benefits predicated upon a mandatory second tier. This evidence shows that the projected new benefits are likely to be equivalent to or greater than those available under the former program. The Petitioners declined to compare projected benefits on the assumption of a mandatory second tier applicable to the former supplemental Cola programs.[5] They argue that the comparison would be misleading. "The very reason that the [new supplemental Cola] Program fails, when compared to the [former supplemental Cola] Program, is that the [new supplemental 669 Cola] Program is accompanied by a mandatory second tier, while the [former supplemental Cola] program was not." It is apparent that Petitioners' claim of unreasonable modification succeeds only if the mandatory second tier is invalid if applied to the former supplemental Cola programs. Unless the second tier is invalid the new supplemental Cola program provides an obvious new advantage for present employees, actual benefits for the theoretical but illusory higher Extraordinary Performance Account benefits. Accordingly, Petitioners' contention that the repeal of the former supplemental Colas is invalid fails unless the addition of a mandatory second tier provision is infirm. 3. A Mandatory Second Tier Provision Does Not Unconstitutionally Impair Rights of Contract (7) Petitioners, apprehending the foregoing implication, now contend that a mandatory second tier provision impairs vested contract rights under the former supplemental Cola statutes because of its derivative impact upon benefits under those programs. They argue, without benefit of legal support, that since a mandatory second tier provision would ultimately cause benefits under the former supplemental Colas to fall short of the maximum levels called for "it destroys the vested [former supplemental Cola] benefit." The argument assumes the answer. The appropriate question is whether there is a vested contract right under the former supplemental Cola statutes to continued contributions by new employees which is impaired by a statute that places new employees in a noncontributory pension program. Unlike most statutes providing for pension benefits, the former supplemental Cola statutes offer benefits which are expressly predicated upon the availability of monies in the fund from which they are to be drawn. (§§ 21235-21236; Stats. 1988, ch. 1356.) There is no right to their payment if the fund is insufficient to fund the benefits. (See Bellus v. City of Eureka (1968) 69 Cal.2d 336, 352 [71 Cal. Rptr. 135, 444 P.2d 711].) The question then arises whether the statutory scheme establishing the former supplemental Colas contains an express or implied promise that the Legislature will not change the nature of the pension system as to future employees if that would have a detrimental impact on the fund from which the former supplemental Colas were to be paid. (See California Teachers Assn. v. Cory, supra, 155 Cal. App.3d at pp. 504-506.) There is no such promise in the statutory scheme, either express or implied. The express dependence of the former supplemental Cola benefits 670 upon the prescribed funding scheme belies an assurance that the benefit targets are promises. A promise not to change the character of a pension program as to new employees is a fundamental constraint on the freedom of action of the Legislature. There is no such promise expressed in the statutes and we will not imply one. "Future employees do not have a vested right in any particular pension plan (Estes v. City of Richmond [(1967) 249 Cal. App.2d 538], pp. 544-545 [57 Cal. Rptr. 536].) And, although active and retired members have a vested right to a pension, they do not have a vested right to control the administration of the plan which provides for the payment of pensions." (Whitmire v. City of Eureka (1972) 29 Cal. App.3d 28, 34 [105 Cal. Rptr. 185].) This court implied contractual obligations in Valdes v. Cory and California Teachers Assn. v. Cory which constrained the administration of PERS and the Teachers' Retirement Fund. We did so on the strength of assurances to be found in the language of the governing statutes. In both cases the statutes showed a "commitment to permanency" of funding of "critical importance" to the "underlying contractual promise to pay the pensions...." (California Teachers Assn. v. Cory, supra, 155 Cal. App.3d at p. 506.) We noted that the implication of suspension of legislative control must be "unmistakable." (Id. at p. 509.) The implication Petitioners urge here falls short of that requirement. Had the mandatory second tier been enacted independently of the new Cola program its impact upon the funding of the former supplemental Colas would furnish no cause of action. For that reason the mandatory second tier must be taken into account in evaluating the comparative value of the new supplemental Cola. As we have explained, that renders nonmeritorious Petitioners' contention that the new supplemental Cola is not a reasonable modification as to the employees who may have vested contract rights. The repeal of the former supplemental Cola statutes effected by Chapter 83 is valid. II The Use of Funds From the Former Supplemental Cola Programs to Offset Employer Contributions Does Not Impair Funding Rights Identified in Valdes v. Cory (8) Petitioners contend that in any event, the use of the fund made available by the repeal of the former supplemental Cola programs to defray employer contributions to the PERS fund impairs vested contract rights to funding which we identified in Valdes v. Cory, supra, 139 Cal. App.3d 773. 671 What we said in Valdes v. Cory, to which Petitioners point, rests upon "the nature of the reserve against deficiencies." (139 Cal. App.3d at p. 788.) That fund is statutorily allocated to meet contingencies that could impair the actuarial soundness of the PERS fund. In this case, the valid repeal of the former supplemental Cola programs has created a unique fund of a critically different nature. These moneys were not previously counted toward the actuarial soundness of PERS, were not reserved to underwrite the actuarial soundness of the basic pension benefits, and are not now tied to the provision of any special benefits required to be paid.[6] Shorn of its relation to the benefits provided under the former supplemental Cola programs, the fund is available to back the actuarial soundness of the PERS system and may be applied to offset the employer contributions that would otherwise be required to that end. Petitioners rely upon the portion of Valdes v. Cory which rejects the argument that the state had not defaulted in its continuing obligation to make monthly payments to the PERS fund by merely changing the source of the contributions from the general fund to the PERS reserve against deficiencies. (139 Cal. App.3d at pp. 787-790.) In this passage we considered the argument of the Director of Finance that the state met its continuing obligation to make monthly payments from the PERS reserve against deficiencies. (Id. at p. 787.) We rejected the argument on the ground that it "misconceives the nature of the reserve against deficiencies." (Id. at p. 788.) Petitioners submit that the passage forbids the use of any PERS fund of whatever nature to offset an otherwise required employer contribution. To the extent that the language in Valdes v. Cory is susceptible to this reading it addresses matters not in issue in that case. The preservation of the actuarial soundness of PERS entails a comparison of the funds available to meet its financial obligations with the obligations. If for some lawful reason the existing PERS funds are demonstrably sufficient for actuarial soundness without the state's periodic contribution, the Legislature may forego the contribution without violating the holding in Valdes v. Cory. (See 139 Cal. App.3d at p. 787.) Funds may be counted only once to determine the amount of the employer contribution necessary to keep the system in actuarial trim. In keeping with 672 Valdes v. Cory, funds in a reserve account which are dedicated to backstopping the integrity of the system against unexpected contingencies may not be used to offset the employers' obligations to contribute to the actuarial soundness of the system unless there is a predicate showing that their use will not undermine the financial integrity of the system. Petitioners claim that Valdes v. Cory prohibits the offset here because, as in that case, Chapter 83 was enacted "without any actuarial input or recommendation from the Board, as directed by former section 20750.9, that contributions could or should be eliminated." The argument is unpersuasive because, unlike Valdes v. Cory, an appropriate actuarial predicate existed prior to the enactment of Chapter 83. In Valdes v. Cory we discerned in the statutes which imposed actuarial duties upon the PERS Board a requirement that periodic employer contributions not be altered "absent actuarial input from the board in a timely manner." (139 Cal. App.3d at p. 787.) The evidence we considered did not show whether the transfer of funds from the reserve against deficiencies would undermine the security of members' rights to receive vested benefits.[7] The failure of the State to meet its burden to demonstrate the absence of such an impact accounts for our rejection of its arguments, both those considered in the opinion and those rejected without discussion. In this case, the monies which initially funded the former supplemental Colas were obtained from the reserve against deficiencies pursuant to a finding by the PERS Board that the money could be so allocated without jeopardizing the actuarial soundness of the system. "In enacting this act, the Legislature agrees with the findings of the chief actuary and the board, who, on June 16, 1982, determined that funds in the reserve for deficiencies may be allocated from the reserve without jeopardizing the actuarial soundness of the system." (Stats. 1982, ch. 330, § 1, pp. 1617-1618.) The subsequent allocations of earnings on employee contributions to the former supplemental Cola funds were accomplished, with the apparent acquiescence of the PERS Board, pursuant to statutes which were not challenged as actuarially unsound when enacted. 673 The Legislature was entitled to view this allocation of monies to fund the former supplemental Colas as not undermining the security of members' rights to receive their basic pension benefits. Unlike the reserve against deficiencies the former supplemental Cola funds were not allocated to backstop the basic pension benefit promises. Since the funds were not counted toward the maintenance of the actuarial soundness of the PERS fund or allocated to cover contingencies that could impair actuarial soundness they are logically immaterial to actuarial soundness. Their use to offset employer contributions that would otherwise be required to be made is not prohibited by the holding in Valdes v. Cory. III The Use of Former Supplemental Cola Funds to Reduce Employer Contributions Otherwise Required Does Not Unconstitutionally Invade the PERS Trust (9) Petitioners contend that the use of the former supplemental Cola funds to reduce employer contributions violates California Constitution, article XVI, section 17.[8] The thrust of the argument is that since the assets of the system are declared in that section to be "trust funds" which "shall be held for the exclusive purposes of providing benefits to participants in the pension or retirement system and their beneficiaries and defraying reasonable expenses of administering the system" they cannot be used to defray the employers' funding obligation. The answer to this argument is that the money has not been diverted from the system and is to be used for the purposes authorized by the California Constitution.[9] 674 The language of California Constitution article XVI, section 17, upon which Petitioners rely, was enacted by an amendment of June 5, 1984. The ballot arguments of the proponents of the measure asserted that the measure would "give public pension assets full constitutional protection as trust funds" and "guarantee[] that neither the Governor nor future Legislatures will ever be able to use this money for other purposes." (Ballot Pamp., argument in favor of Prop. 21 as presented to the voters, Prim. Elec. (June 5, 1984) p. 26.) The arguments also assert that under the measure "the only purpose for which these trust assets can be used is the delivery of retirement benefits" and that it "[e]nacts the sole and exclusive purpose rule which imposes on fund trustees the legal obligation to perform their duties solely in the interest of plan beneficiaries." (Ibid., original italics.) Neither the trust provisions of California Constitution article XVI, section 17, nor the statements of its proponents in the ballot argument apply to the action challenged here. The use of the former supplemental Cola funds to reduce the employer contributions otherwise necessary to keep the PERS fund in actuarial trim does not invade the PERS trust. (Cf., e.g., Stats. 1982, ch. 330, § 1, pp. 1617-1618 quoted ante, at pp. 655-656.) The funds, in the words of the California Constitution, continue to be "held for the exclusive purposes of providing benefits to participants in the pension or retirement system and their beneficiaries and defraying reasonable expenses of administering the system." The funds, in the words of the ballot argument, will only be used for "the delivery of retirement benefits." They remain PERS assets until they are paid to PERS members or beneficiaries or to defray the costs of administration of the system. The use of these funds to meet the employers' continuing funding obligation is no more proscribed by California Constitution article XVI, section 17, than is the use of earnings attributable to the employer accounts of the PERS fund for the same purpose. The contract right to periodic employer funding can only be determined by considering the value of the PERS assets that are available to defray its legal obligations. If this use were barred by the exclusive purpose language of subdivision (a) of article XVI, section 17, the funding obligation would be rendered unintelligible. For these reasons the contention that the use of the former supplemental Cola funds to reduce employer contributions violates California Constitution, article XVI, section 17, is not meritorious. 675 IV The Assignment of PERS Actuarial Duties to an Outside Actuary Is Not Unconstitutional A. Appointment of the Actuary by the Governor Does Not Present an Intolerable Conflict of Interest (10a) Petitioners challenge other provisions of Chapter 83, which transfer actuarial duties from the PERS Board to an actuary appointed by the Governor, as violating article XVI, section 17 of the California Constitution. As related, it provides that the PERS assets "are trust funds" and the "fiduciary of the ... system shall discharge his or her duties ... solely in the interest of, and for the exclusive purposes of providing benefits to, participants and their beneficiaries, minimizing employer contributions thereto, and defraying reasonable expenses of administering the system." Petitioners suggest that these provisions constitutionalize the law of trusts and under that law the Actuary cannot qualify as a fiduciary because Chapter 83 places the Actuary under the control of the Governor and subject thereby to an intolerable conflict of interest precluding a fiduciary relationship with beneficiaries of the PERS trust fund. (11) Since Petitioners tender a facial challenge to the constitutionality of Chapter 83 we must test the legislation by the fair reach of its terms, avoiding a resolution predicated upon uncertain or contingent future events. "To support a determination of facial unconstitutionality, voiding the [challenged provisions of the] statute as a whole, petitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute.... Rather, petitioners must demonstrate that the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions." (Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180-181 [172 Cal. Rptr. 487, 624 P.2d 1215], original italics.) (10b) Nonetheless, the amendment of California Constitution article XVI, section 17, in 1984 requires close judicial scrutiny of changes to the status quo which threaten the trust protection of public employee retirement funds. "[A] major change [wrought by the amendment] was to specify that the trust funds held by a public pension or retirement system are to be administered in a manner to best provide benefits to the participants of the plan. (See, Historical Notes to Cal. Const., art. XVI, § 17, 3 West's Ann. Cal. Const (1991 pocket supp.) pp. 150-157.) This latter change gave constitutional significance to the preexisting statutory mandate that the `Public Employees' Retirement Fund is a trust fund created and administered ..., solely for the benefit of the members and retired members of the system and their survivors and beneficiaries.' 676 (§ 20200.)" (City of Sacramento v. Public Employees Retirement System, supra, 229 Cal. App.3d at p. 1493.) Section 20006, as enacted by Chapter 83, provides that the Actuary "shall be deemed to succeed to and assume the fiduciary obligations pertaining to actuarial determinations previously held by members of the board, including, but not limited to, those set forth in Section 17 of Article XVI of the California Constitution." We must assume, consistent with our limited scope of review, that the Actuary in carrying out the assigned duties will comply with this mandate. Section 20006.1 provides that the Actuary shall "make an actuarial investigation into the mortality, service, and compensation experience of members and persons receiving benefits," make an "actuarial valuation of the assets and liabilities of this system," and "determine the rate of interest being earned on the Retirement Fund...."[10] Under the prior law these functions were carried out by the PERS Board based upon calculations and advice of actuaries "regularly employed ... by the [PERS] board or the chief actuary's designee." (Stat. 1979, ch. 1110, § 3, p. 4018, eff. Sept. 28, 1979.) We will assume that California Constitution article XVI, section 17, imports the existing law of trusts and that the Actuary must satisfy its requirements for fitness to serve as a trustee. A trustee may be removed by a court for misconduct, unfitness, or acquisition of an adverse interest. (See, e.g., Prob. Code, § 15642; 11 Witkin, Summary of Cal. Law (9th ed. 1990) Trusts, § 55.) Petitioners cite numerous cases in which trustees subject to a conflict of interest have been sanctioned. These cases involve a conflict which resulted in an identified breach of trust. The claim in this case is tendered in the absence of an actual breach of trust. The cases relied upon are therefore inapposite. There is no precedent in the law of trusts for the circumstance in which a Legislature has created the office of actuary and it is claimed that the manner of appointment to the office constitutes a categorical conflict of interest. Ordinarily the Legislature is free to prescribe the law of trusts. Viewing the Legislature in this circumstance as analogous to the settlor of the PERS trust, there is no breach of the trust law. (12) Where a trustee is named by the 677 settlor who is aware of the possible conflicts of interest inherent in the appointment, removal on the ground of conflict of interest is ordinarily unwarranted without an actual breach of trust. (See, e.g., Estate of Gilliland (1977) 73 Cal. App.3d 515, 528 [140 Cal. Rptr. 795]; Rest.2d Trusts, § 107, com. f.[11]) The bare potential for a conflict of interest does not categorically bar a fiduciary from functioning as a trustee. (10c) The most forceful of Petitioners' claims of conflict of interest is that under section 20006 (ante, at p. 658) the Actuary's contract is subject to termination at the will of the Governor. That is the reading initially adopted by the Governor. His original contract proposal provided for termination of the Actuary's contract on 30 days notice. Section 20006 provides that the contract of appointment "shall be for a fixed period of time not to exceed three years as determined by the Governor." We asked the parties whether termination at will is consistent with this provision. The Governor responded that section 20006 precludes him from terminating the Actuary's contract without just cause during the "fixed" period of the contract and that the contract executed with the Actuary will so provide. This is our construction of section 20006. The term "fixed period" implies that the contract is not subject to termination at will. (Compare Lab. Code, §§ 2924, 2922.) Section 20006 contains several provisions which minimize the possibility that the Governor might attempt to influence the performance of the Actuary's duties through the power of selection. The Actuary must be an enrolled actuary,[12] the compensation must be fixed by the contract, the Actuary may not be awarded a "successive" contract[13] and must assume the fiduciary obligations formerly assigned to the PERS Board, and the Legislature must approve the choice of the Actuary. (§ 20006.) These provisions underscore the view that the "fixed period" serves a similar purpose. This reading is favored because it minimizes the prospect of an unconstitutional conflict with article XVI, section 17 of the California Constitution. (See Association for Retarded Citizens v. Department of Developmental Services (1985) 38 Cal.3d 384, 394 [211 Cal. Rptr. 758, 696 P.2d 150].) 678 The pertinent question is whether the selection of the Actuary by the Governor under these conditions places the Actuary in a position hopelessly in conflict with the fiduciary obligations imposed by California Constitution article XVI, section 17. We think not. The safeguards enacted in section 20006 sufficiently insulate the Actuary from control by the Governor so as to permit the Actuary to function as a fiduciary. Those duties are constitutionally prescribed by article XVI, section 17. This implicitly subsumes the principle of trust law that the Actuary's primary duty is to the beneficiaries of the trust. (See City of Sacramento v. Public Employees Retirement System, supra, 229 Cal. App.3d at p. 1494.) B. The Law of Trusts Does Not Require That Actuarial and Other Functions Be Performed by the Same Trustees Petitioners claim that the transfer of actuarial functions is inconsistent with the law of trusts because the PERS Board trustees cannot administer PERS without the power to control the Actuary. We asked the parties whether a division of trustee functions would be permissible under the law of trusts if we viewed the Actuary and the PERS Board as cotrustees or the Actuary as a special trustee. Petitioners suggest that these doctrines cannot be applied because cotrustees must supervise each other. The Governor replies that nothing in the law of trusts precludes the division of functions resulting from Chapter 83 among cotrustees or special trustees. The Governor has the more persuasive argument. Petitioners suggest that under California law cotrustees must act unanimously, citing Probate Code section 15620. However, that statute belies the assertion since it merely prescribes unanimity unless otherwise provided in the trust instrument. As the Governor notes, Restatement Second of Trusts section 194, comment d, indicates a general rule that powers can be divided among trustees if it is so provided by the terms of the trust. The comments to section 185 of the Restatement show that discretionary powers may be assigned to nontrustees, who may also be subject to fiduciary obligations. Petitioners suggest that the division of powers is inconsistent with the law of trusts because it imposes on each trustee the duty to participate in the administration of the trust and to take reasonable steps to prevent or cure a breach of trust by fellow trustees. (See Prob. Code, § 16013.) It is not a necessary consequence of these obligations that all trustees be given an equal share of the duties or powers accorded by the trust instrument. If that were the case there would be no doctrine of special trustees or holders of special powers. While there may be legitimate concerns regarding a potential conflict of interest, we cannot assume that the Actuary will not faithfully adhere to the 679 fiduciary obligations imposed upon it. Given their facial challenge, Petitioners "cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise" from the application of Chapter 83. (Pacific Legal Foundation v. Brown, supra, 29 Cal.3d at p. 180.) Petitioners point to no case law nor doctrine in the law of trusts which can reasonably be applied under the aegis of California Constitution article XVI, section 17, to categorically bar the Actuary from acting as a fiduciary under a section 20006 contract. If the Actuary violates those obligations, Petitioners may seek judicial relief in the manner of all other beneficiaries of a trust. C. The Transfer of Actuarial Functions Is Not Invalid on Grounds of Improper Urgency Statute, Impairment of Contract, Denial of Due Process, or Improper Delegation That leaves several less developed claims of invalidity of the transfer of actuarial functions. Petitioners contend that the transfer of functions is founded on a pretextual declaration of urgency, improperly impairs a vested contract right to have the PERS Board perform those functions, denies due process of law, and improperly delegates legislative authority without appropriate safeguards or standards. These claims warrant no extended discussion. Petitioners suggest that the transfer of function provisions contravenes California Constitution, article IV, section 8, subdivision (d), which defines the term "urgency statute." The argument is elliptical and undeveloped except for the claim that the "fiscal emergency" proffered by the Legislature as the ground of urgency are pretextual. Petitioners cite Sonoma County Organization of Public Employees v. County of Sonoma (1979) 23 Cal.3d 296 [152 Cal. Rptr. 903, 591 P.2d 1] in support of the suggestion that this court may freely "look past the bald assertion" of "fiscal emergency." However, that case is inapposite. It addresses the topic of review of a justification for a contract impairment and not the standard applicable to review of a declaration tendered to justify an urgency statute. As the Governor suggests, the latter scope of review is exceedingly limited (e.g., Davis v. County of Los Angeles (1938) 12 Cal.2d 412, 422-423 [84 P.2d 1034]) and Petitioners make no showing invoking such review. Petitioners suggest that the transfer impairs contract rights of PERS members and of the City of Sacramento, which made a contract with PERS calling for employer contributions "subject to adjustment by [the PERS] Board." These claims are groundless for the reasons given in response to the contention that the mandatory second tier provision impairs a vested contract right. (Discussed in pt. I(b)(3), ante.) There is no ground for implying a statutory promise that the duty of performing these functions would not be 680 transferred to another entity. There is a similar shortcoming in the argument regarding the City of Sacramento. Assuming for the sake of discussion that Petitioners are proper parties to raise purported rights under that contract, the claim is even weaker, since the state has no obligation of payment under that contract. (See, California Teachers Assn. v. Cory, supra, 155 Cal. App.3d at p. 511.) That brings us to the claim that the transfer of functions violates both substantive and procedural due process of law. As to substantive due process (see 7 Witkin, Summary Cal. Law (1988) Constitutional Law, § 481, p. 669) Petitioners claim that the transfer is arbitrary. Their legal argument is perfunctory, consisting of a bare citation of a police power case. The citation is inapposite. (13) The wisdom of the legislation is not within our purview. (See American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 369 [204 Cal. Rptr. 671, 683 P.2d 670, 41 A.L.R.4th 233].) (10d) The determination of which of two lawful ways of performing the transferred actuarial functions is preferable is a policy judgment for the Legislature. Petitioners offer no persuasive backing for their claim that the alternative selected by the Legislature is irrational. Petitioners also claim that the transfer scheme violates procedural due process because it does not afford PERS members notice and a hearing on the determinations assigned to the Actuary. They suggest they have a property right to an actuarially sound PERS fund which may be violated by mistakes the Actuary makes in setting employer contribution rates too low and which warrants procedural due process protection. We will assume for the sake of discussion that Petitioners are correct. The claim nonetheless fails on two threshold grounds. Petitioners make no examination of what process is due. For example, they do not examine the adequacy of the process afforded by judicial review. We are not inclined to develop their gossamer argument on this point in light of their burden to establish the claim of unconstitutionality. The second shortcoming is that Petitioners fail to show an entitlement to the remedy they seek. They seek to invalidate the transfer of functions on this ground in order to revive the former statutory scheme. (Voiding every statutory mechanism to set employer contributions is no help; that would work the same deprivation of the claimed property right.) However, the former scheme can as easily be faulted along the same lines. Petitioners suggest that the former scheme provided superior notice and an opportunity to be heard because under it they were afforded the "opportunity *681 to review" proposed actuarial determinations in a hearing before the PERS Board. They fail to cite authority for this claim. If the opportunity is a matter of practice, the same practice could be adopted by the Actuary. The deficiency in process, if any, is not attributable to a difference in the statutory schemes. (Cf. 7 Witkin, Summary Cal. Law, supra, Constitutional Law, § 519.) Petitioners' remedy, if any, is to seek the creation of an appropriate administrative process by implication from the present statutory scheme. (See generally, Southern Pacific Transportation Co. v. State Board of Equalization (1987) 191 Cal. App.3d 938, 950 [237 Cal. Rptr. 191].) They seek no such remedy in these proceedings, and in view of the undeveloped nature of their arguments, we imply no view of the matter beyond the conclusion that their claim of invalidity is not meritorious. That leaves their claim that the delegation of powers to the Actuary is improper. Petitioners do not explain how the transfer of functions provides less of a standard for the exercise of the actuarial functions than the antecedent scheme. In light of Petitioners' sketchy argument it suffices to say that the standards for the conduct of the Actuary appear sufficiently set out in Chapter 83 when coupled with the implication that the field of actuarial practice is subject to professional norms known to its practitioners and enforceable, if need be, by the judiciary. DISPOSITION None of the claims of invalidity of Chapter 83 tendered by the Petitioners has merit. The alternative writ is discharged and the petition is denied. Puglia, P.J., and Davis, J., concurred. Petitions for a rehearing were denied April 13, 1992, and the petitions of both petitioners and respondents for review by the Supreme Court were denied June 18, 1992. Mosk, J., and Kennard, J., were of the opinion that the petitions should be granted. NOTES [1] References to a section are to the Government Code unless otherwise specified. [2] Petitioners have expressly adopted and incorporated the arguments of their allies. [3] Petitioners assert in a reply memorandum that the new supplemental Cola program has the disadvantage of a funding mechanism which generates lower funding in years when the rate of earnings on employee contributions is low. As appears in the text the evidence under the appropriate assumptions shows greater average benefits under the new supplemental Cola program. This is an advantage that compensates for the fluctuations that may occur in poor earnings years. [4] Former section 20234 (Stats. 1982, ch. 1496, § 5, p. 5798; repealed Stats. 1991, ch. 83, § 26) is as follows: "The board shall annually contract with an independent actuary to analyze and comment on the application of generally accepted actuarial practices to the actuarial assumptions utilized by the board during the preceding fiscal year and the effect of the benefit provided by Section 21235 on employer contribution rates. [¶] A copy of the report shall be filed with each house of the Legislature, the chairman of each affected policy committee, and the Governor at the same time as the report required by Section 20136." [5] The PERS Board also provided sketchy evidence regarding the comparability of benefits in response to our request. That evidence tends to show that "[a]s long as there are sufficient funds to pay [former supplemental Cola] benefits, those payments are larger than the payments provided by [Chapter 83]." However, that begs the question of the effect of a second tier upon the continued availability of funds to pay the supplemental Cola benefits. The PERS Board failed to address that question. [6] For this reason petitioners' argument that permitting consideration of the former supplemental Cola funds to offset employer contributions will establish a precedent for future expropriation of other PERS funds is ill-founded. Petitioners' alarm is apparently based upon the addition of the following underlined language in an amendment of section 20203.3. "Notwithstanding any other provision of law, no funds in the retirement fund shall be expended for any purpose other than the cost of administration of the system, investments for the benefit of the system, the reduction of employer contributions, and the provision of benefits to the members and retired members of the system and their survivors and beneficiaries." Whatever the purpose of the amendment, it cannot overrule Valdes v. Cory. [7] At the outset of Valdes v. Cory we ascertained that PERS is intended to be maintained on a sound actuarial basis and that such a transfer of funds impaired the member's contract rights in such a fund. (139 Cal. App.3d at pp. 785-786.) We then said: "[h]aving delivered ourselves of this dictum we confess that the record before us is woefully incomplete and inadequate as a basis upon which to determine whether the disputed provisions of chapter 115 do in fact impair the actuarial soundness of the PERS. [Citations.] [¶] We therefore turn to consideration of the contention that the state has a statutorily created contractual obligation, impaired by operation of chapter 115, to make systematic, substantial monthly contributions to the PERS fund in order to fund pension benefits as liability therefor is incurred." (Id. at p. 786, italics added.) The subsequent analysis rests upon this state of the record. [8] California Constitution, article XVI, section 17, in pertinent part is as follows: "............................ "Notwithstanding provisions to the contrary in this section and Section 6 of Article XVI, the Legislature may authorize the investment of moneys of any public pension or retirement system, subject to all of the following: "(a) The assets of a public pension or retirement system are trust funds and shall be held for the exclusive purposes of providing benefits to participants in the pension or retirement system and their beneficiaries and defraying reasonable expenses of administering the system. "(b) The fiduciary of the public pension or retirement system shall discharge his or her duties with respect to the system solely in the interest of, and for the exclusive purposes of providing benefits to, participants and their beneficiaries, minimizing employer contributions thereto, and defraying reasonable expenses of administering the system." [9] We note parenthetically that the parties argue over the application of subdivision (b) of article XVI, section 17, the topic of a recent opinion of this court in City of Sacramento v. Public Employees Retirement System (1991) 229 Cal. App.3d 1470, 1492-1494 [280 Cal. Rptr. 847]. The argument is a digression since the subdivision pertains to the duties of the fiduciary of the public pension or retirement system. This refers to the duties of the trustees and not, save perhaps derivatively when legislating upon that topic, to the duties of the Legislature which are in issue here. [10] Section 20006.1 provides: "On an annual basis, no later than December 1 of each year, the actuary shall make an actuarial valuation of the liabilities for benefits under this part on account of employees of the state. As of the effective date of this section, and thereafter at the end of periods not to exceed four years, the actuary shall make an actuarial investigation into the mortality, service, and compensation experience of members and persons receiving benefits and an actuarial valuation of the assets and liabilities of this system. From time to time, the actuary shall determine the rate of interest being earned on the Retirement Fund after deducting from earnings amounts applied to costs of administration of the system." [11] We note the following caveat in Restatement Second of Trusts section 107, comment f: "In such a case [where the trustee seems subject to a conflict], however, the conduct of the trustee in the administration of the trust will be subject to careful scrutiny; and if it appears to the court that because of his interest or otherwise he is unduly favoring himself and not fairly exercising the discretion conferred upon him, the court will remove him as trustee." [12] An "enrolled actuary" means an actuary enrolled under subtitle C of title III of the federal Employee Retirement Income Security Act of 1974. (See § 7507.) [13] The term "successive" does not preclude subsequent appointments of the same actuary. Whether this is subject to redress for abuse by manipulation of the frequency and terms of the contracts is an issue we do not reach as it may never arise. As we note in the text, an abuse of the process of selection which impairs the fiduciary obligations of the Actuary is subject to judicial scrutiny.	{ "pile_set_name": "FreeLaw" }
J. S84032/18 NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 KENDALL GARLAND, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : No. 2433 EDA 2018 : DAGE GARDNER, ET AL. : Appeal from the Order Entered July 20, 2018, in the Court of Common Pleas of Philadelphia County Civil Division at No. July Term, 2018 No. 1810 BEFORE: BENDER, P.J.E., OTT, J., AND FORD ELLIOTT, P.J.E. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 11, 2019 Kendall Garland appeals pro se from the July 20, 2018 order1 granting his in forma pauperis (“IFP”) petition and dismissing his complaint against appellees, Probation Officers Dage Gardner, Benjamin Mallow, and David Knorr; “Unknown Arresting Officer;” and the City of Philadelphia, for failure to set forth a cause of action upon which relief could be granted, 1 Both our supreme court and this court have recognized that orders that grant or deny IFP status and dismiss companion complaints as frivolous are final and appealable. See Grant v. Blaine, 868 A.2d 400, 402-403 (Pa. 2005); Crosby Square Apartments v. Henson, 666 A.2d 737, 738 (Pa.Super. 1995). J. S84032/18 pursuant to Pa.R.C.P. 240(j)(1).2 After careful review, we affirm on the basis of the well-reasoned opinion of the trial court.3 The trial court summarized the relevant facts and procedural history of this case as follows: [On July 17, 2018, appellant] commenced this action against [appellees]. [Appellant] contemporaneously filed a Petition to Proceed In Forma Pauperis [], which was assigned to this court. As permitted under Pa.R.C.P. 240(j)(1), the court reviewed the IFP Petition and the Complaint. .... The Complaint includes nine counts and states claims for malicious prosecution; false arrest and imprisonment; abuse of process; “retaliation for success related to the January, 2017 SORNA[4] charges”; and “punishment without due process and the violation of [appellant’s] rights to be free from Ex Post Facto Puni[s]hment ([Appellant] required and still currently being required to register in violation of the Pa Supreme Court Muniz[5] decision).” Upon review, the court granted the IFP Petition and dismissed the action as frivolous [on July 20, 2018]. Trial court opinion, 9/17/18 at 1-3 (quotation marks in original). 2 The caption has been amended to acknowledge the additional appellees. 3 No appellee brief was filed in this matter. 4Pennsylvania’s Sex Offender Registration and Notification Act, 42 Pa.C.S.A. §§ 9799.10-9799.41. 5Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied, U.S. , 138 S.Ct. 925 (2018). -2- J. S84032/18 On August 15, 2018, appellant filed a timely pro se notice of appeal. The trial court did not direct appellant to file a concise statement of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b). On September 17, 2018, the trial court filed an opinion. Appellant raises the following issues for our review: 1. Does the Complaint state a claim upon which relief may be granted? [2]. And should [appellant] have either been given latitude as a pro se litigant and/or at least been given the opportunity to amend the complaint if the complaint did not technically state a claim (since the gist of the issues in the complaint are clear and obvious and the complaint, even though [appellant] asserts that it does state a claim, it could be validly and easily amended to cure any potential defects in the pleadings)[?] Appellant’s brief at 3.6 “Our review of a decision dismissing an action pursuant to Pa.R.C.P. 240(j) is limited to a determination of whether the plaintiff’s constitutional rights have been violated and whether the trial court abused its discretion or committed an error of law.” Ocasio v. Prison Health Servs., 979 A.2d 352, 354 (Pa.Super. 2009) (citation omitted). Rule 240(j) provides, in relevant part, as follows: If, simultaneous with the commencement of an action or proceeding or the taking of an appeal, a party has filed a petition for leave to proceed 6 Appellant’s brief does not contain pagination; for the ease of our discussion, we have assigned each page a corresponding number. -3- J. S84032/18 in forma pauperis, the court prior to acting upon the petition may dismiss the action, proceeding or appeal if the allegation of poverty is untrue or if it is satisfied that the action, proceeding or appeal is frivolous. Pa.R.C.P. 240(j)(1) (emphasis added). “Under Rule 240(j), an action is frivolous if, on its face, it does not set forth a valid cause of action.” Ocasio, 979 A.2d at 354 (citation and internal quotation marks omitted). Instantly, appellant contends that he possessed viable causes of action against appellees for malicious prosecution, false imprisonment, abuse of process, “retaliation,” and various due process violations presumably under 42 U.S.C.A. § 1983.7 (Appellant’s brief at 5-9.) Following our careful review of the record, including appellant’s brief and the applicable law, and in light of this court’s scope and standard of review, it is our determination that there is no merit to the issues raised on appeal. The trial court’s September 17, 2018 opinion comprehensively discusses and disposes of each of appellant’s claims. (See trial court opinion, 9/17/18 at 3-7.) We agree with the trial court that, “the Complaint fails to set forth facts essential to support any of the stated causes of action.” (Id. at 4.) Moreover, in reaching this conclusion, we emphasize that, [a]lthough this Court is willing to liberally construe materials filed by a pro se litigant, pro se status confers no special benefit upon the appellant. To the contrary, any person choosing to represent himself 7 42 U.S.C.A. § 1983, Civil action for deprivation of rights. -4- J. S84032/18 in a legal proceeding must, to a reasonable extent, assume that his lack of expertise and legal training will be his undoing. In re Ullman, 995 A.2d 1207, 1211-1212 (Pa.Super. 2010) (citations omitted), appeal denied, 20 A.3d 489 (Pa. 2011). Accordingly, we discern no error on the part of the trial court in dismissing appellant’s complaint under Rule 240(j)(1), and adopt the trial court’s opinion as our own for purposes of this appellate review. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 2/11/19 -5- Circulated 01/29/2019 10:19 AM IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION � ..-, KENDALL GARLAND JULY TERM, 2018 v. NO. 1810 DAGE GARDNER et al. SUPERIOR COURT NO. (. 2433 EDA 2018 ·,, 2481 EDA 20181 -··, �--- OPINION Plaintiff Kendall Garland, prose, appeals this court's Order dismissing his action as Garland Vs Gardner Etal-OPFLD frivolous pursuant to Pa.R.C.P. 240(j)(l). FACTUAL and PROCEDURAL HISTORY llllllll 11111111111111111111111 18070181000012 Plaintiff commenced this action against Defendants Dage Gardner, Benjamin Mallow, David Knorr, "Unknown Arresting Officer", and City of Philadelphia by Complaint. Plaintiff contemporaneously filed a Petition to Proceed In Forma Pauperis ("IFP Petition"), which was assigned to this court. As permitted under Pa.R.C.P. 240(j)(l), the court reviewed the IFP Petition and the Complaint. The Complaint states (under a heading labeled "Introductory Statement") that: This is an action for monetary damages against Pennsylvania Parole Board Officers, Agent Dage Gardner, Agent Benjamin Mallow, and Agent David Knorr, and an unknown arresting Philadelphia Police Officer or Pennsylvania State Trooper and the City of Philadelphia for false arrest, false imprisonment, deprivation of due process and punishment without due process, malicious prosecution, and retaliation arising from plaintiff's unjustified and unlawful arrest for alleged violations of SORNA2 registration requirements on or about 1 Upon review of this court's dockets, Plaintiff filed one appeal under Philadelphia CCP No. 180701810. The Superior Court issued two docket sheets. In that the appeal involves one Order, this court issues one Opinion. 2 Pennsylvania's Sex Offender Registration and Notification Act, 42 Pa.C.S. §§ 9799.10-9799.41. approximately January or February, 2017 and March, 2017; also for false arrest and imprisonment, malicious prosecution and abuse of process stemming from improper initiation of revocation proceedings, improper sentencing of the plaintiff, and revocation of plaintiff's probation sentence in 2014; and also for plaintiff's unjustified and unlawful arrest for an alleged violation of probation in August, 2017 by Agent Knorr where there was no basis whatsoever for the plaintiff's arrest and detention, and where also Agent Knorr arrested the plaintiff in retaliation for the plaintiff's success in defending against the earlier SORNA violation charges lodged, and also where the plaintiff has also subsequently had his sentence of probation vacated and the plaintiff also should not even have been under punitive probationary supervision or on probation to begin with (as related to both the January, 2017 SORNA arrest, including an extended incarceration relating thereto, and the August, 2017 arrest). Defendant sought to harm plaintiff, Mr. Garland and Mr. Garland's liberty interests and also caused the plaintiff to suffer loss of liberty, loss of property, loss of income and job prospects, as well as the loss of the opportunity to pursue and further the plaintiff's career goals due to incarceration from approximately February 6, 2017 to June 6, 2017 and incarceration from approximately August 8, 2017 to December 12, 2017 as well as incarceration from May 6, 2014 to January 23, 2016. The plaintiff also has incurred various injuries from being punished without due process during the period from 2012 to presently as a result of being required to register in violation of plaintiff's due process rights and the plaintiff's rights to be free from ex post facto punishment (per the Pa. Supreme Court's decision of Commonwealth v. Muniz).3 Defendants have also caused extreme emotional distress due to the prospect of the plaintiff having to defend himself against charges lodged against him and facing potentially 20 years of incarceration, which at the plaintiff's age would amount to spending the remaining part of his life in jail. The "Facts" section of the Complaint is divided into subsections titled "A. Facts regarding the charges for alleged SORNA violation arrest in 2017"; "B. Facts regarding the false arrest and imprisonment for alleged 2017 probation violation"; "C. Facts related to conditions now ruled as punishment under Muniz and also punishment without due process from 2012 to 2018 as a result of being required to register under the law when no valid law 3 Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017). existed; and "D. Facts related to the False Arrest and Imprisonment regarding the 2014 revocation of probation and that sentence being vacated." The Complaint includes nine counts and states claims for malicious prosecution; false arrest and imprisonment; abuse of process; "retaliation for success related to the January, 2017 SORNA charges"; and "punishment without due process and the violation of plaintiff's rights to be free from Ex Post Facto Puni[s]hment (Plaintiff required and still currently being required to register in violation of the Pa Supreme Court Muniz decision)." Upon review, the court granted the IFP Petition and dismissed the action as frivolous. This appeal followed. DISCUSSION In relevant part, Rule 240(j)(l) states: If, simultaneous with the commencement of an action or proceeding or the taking of an appeal, a party has filed a petition for leave to proceed in forma pauperis, the court prior to acting upon the petition may dismiss the action, proceeding or appeal if the allegation of poverty is untrue or if it is satisfied that the action, proceeding or appeal is frivolous. Pa.R.C.P. No. 240(j)(l). A frivolous action or proceeding has been defined as "one that lacks an arguable basis either in law or in fact." Pa.R.C.P. No. 240(j)(l), Note. An action is frivolous "if, on its face, it does not set forth a valid cause of action." Ocasio v. Prison Health Servs., 979 A.2d 352, 354 (Pa.Super. 2009). Pennsylvania is a fact pleading state, and a complaint must not only give the defendant notice of the plaintiffs claim and the grounds upon which it rests, but must summarize those facts essential to support the claim. Donaldson v. Davidson Brothers, Inc; 144 A.3d 93, 103 (Pa.Super. 2016). Here, the Complaint fails to set forth facts essential to support any of the stated causes of action. The tort of malicious prosecution "imposes liability on a private person who initiates or procures the institution of criminal proceedings against another who is not guilty of the offense charged when: (1) the proceedings are initiated or procured without probable cause and primarily for a purpose other than that of bringing an offender to justice; and (2) the proceedings are terminated in the favor of the accused." Hess v. Lancaster County, 100 Pa. Commw. 316, 514 A.2d 681 (1986). Here, the Complaint does not allege that Defendants, as private persons, initiated any of the proceedings described in the Complaint without probable cause or for a purpose other than that of bringing an offender to justice. The Complaint's only substantive allegation regarding the initiation of criminal proceedings is that "Defendants first and foremost should never have brought [SORNA violation] charges against the plaintiff solely upon the allegation of someone who was allegedly representing himself as a representative of a treatment facility for mental health or a treatment facility for a drug and alcohol program." This allegation is factually vague, and fails to allege the necessary elements of the stated cause of action. As such, the Complaint fails to state a claim for malicious prosecution. Under Pennsylvania law, false arrest is synonymous with false imprisonment. Gagliardi v. Lynn, 446 Pa. 144, 149, 285 A.2d 109, 111 (1971). The elements of false imprisonment are "(1) the detention of another person, and (2) the unlawfulness of such detention." Renk v. City of Pittsburgh, 537 Pa. 68, 76, 641 A.2d 289, 293 (1994). An action for false arrest requires that the process used for the arrest was void on its face or that the issuing tribunal was without jurisdiction; it is not sufficient that the charges were unjustified. Strickland v. Univ. of Scranton, 700 A.2d 979, 984 (Pa.Super. 1997). Here, the Complaint fails to allege that Defendants lacked probable cause for any of the arrests or detainment described in the Complaint, or that the process used for the arrests was void on its face. The Complaint also fails to allege any facts to support the conclusory allegation that "the actions and conduct of defendants City of Philadelphia and Probation Officer Agent Dage Gardner constitute and resulted in the false arrest and imprisonment of plaintiff Garland." As such, the Complaint fails to state a claim for false arrest or false imprisonment. The tort of abuse of process is defined as "the use of legal process against another primarily to accomplish a purpose for which it is not designed." Greenberg v. McGraw, 2017 PA Super 136, 161 A.3d 976, 990 (Pa.Super. 2017). To establish a claim for abuse of process it must be shown that "the defendant (1) used a legal process against the plaintiff, (2) primarily to accomplish a purpose for which the process was not designed; and (3) harm has been caused to the plaintiff." Id. The "gravamen of abuse of process is the perversion of the particular legal process for a purpose of benefit to the defendant, which is not an authorized goal of the procedure." Id. Here, the Complaint alleges that Defendant Gardner "made a baseless lie at the plaintiff's Gagnon II probation hearing ... in order to create a false basis for the Court to revoke probation." This allegation lacks sufficient factual specificity, in that the Complaint does not describe the "baseless lie" or how it constitutes a misuse of the legal process. Moreover, there are no factual allegations that Defendants benefitted from any behavior described in the Complaint. As such, the Complaint fails to state a claim for abuse of process. The Complaint's allegation of "retaliation" is also legally insufficient, in that "retaliation" is not a stand alone cause of action. A prisoner may state a claim against prison officials for retaliation for exercising a constitutional right. Yount v. Department of Corrections, 600 Pa. 418, 426, 966 A.2d 1115, 1120 (2009). If so, the prisoner "must allege that he engaged in constitutionally protected conduct, that prison officials took adverse action, and that the protected conduct was a substantial or motivating factor for the action." Id Here, the Complaint's allegations of retaliation are not related to Plaintiff's incarceration. Moreover, the Complaint fails to allege that Defendants retaliated against Plaintiff for engaging in constitutionally protected conduct. Instead, the Complaint makes the conclusory allegation that "Defendants City of Philadelphia and Probation Officer Agent David Knorr were both retaliating against the plaintiff in arresting and/or falsely imprisoning the plaintiff in August, 2017." As such, the Complaint fails to state a valid claim. The Complaint's last stated cause of action is "punishment without due process and the violation of plaintiff's rights to be free from Ex Post Facto Pun[is]hment." Although not stated in the body of the Complaint, it appears that Plaintiff is seeking compensatory damages for due process violations pursuant to 42 U.S.C. § 1983.4 In determining whether plaintiffs have stated a cause of action under Section 1983, "the inquiry must focus on whether the two essential elements of the action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or the laws of the United States." Hennessy v. Santiago, 708 A.2d 1269, 1274 4 The cover sheet of the Complaint identifies the "statutory basis for cause of action" as "section 1983, 42 U.S.C." (Pa.Super. 1998). A plaintiff pursuing a cause of action under Section 1983 "must plead the facts that give rise to the claimed deprivation of civil liberties and specifically avoid vague and conclusory allegations." Scott v. Willis, 116 Pa. Cmwlth. 327, 337, 543 A.2d 165, 170 (1988). Here, the Complaint alleges that "Defendant City of Philadelphia, Agent Benjamin Mallow and Unknown arresting officer [were] recklessly indifferent regarding the plaintiff's ex post facto rights and has also exhibited a culture of being indifferent to [its'] citizen['s] civil rights." As the Complaint does not state what specific actions by Defendants deprived Plaintiff of his civil liberties, or how Defendants were "recklessly indifferent", Plaintiff's allegations are both improperly vague and conclusory. As such, the Complaint fails to set forth a claim under Section 1983. For the foregoing reasons, this court's Order dismissing Plaintiff's action as frivolous should be affirmed. BY THE COURT: IDEE C. FOX, J. Date: -------- IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION KENDALL GARLAND JULY TERM, 2018 v. NO. 1810 DAGE GARDNER et al. SUPERIOR COURT NO. 2433 EDA 2018 2481 EDA 20181 OPINION Plaintiff Kendall Garland, pro se, appeals this court's Order dismissing his action as frivolous pursuant to Pa.R.C.P. 240U){l). FACTUAL and PROCEDURAL HISTORY Plaintiff commenced this action against Defendants Dage Gardner, Benjamin Mallow, David Knorr, "Unknown Arresting Officer", and City of Philadelphia by Complaint. Plaintiff contemporaneously filed a Petition to Proceed In Forma Pauperis ("IFP Petition"), which was assigned to this court. As permitted under Pa.R.C.P. 240U)(l), the court reviewed the IFP Petition and the Complaint. The Complaint states (under a heading labeled "Introductory Statement'') that: This is an action for monetary damages against Pennsylvania Parole Board Officers, Agent Dage Gardner, Agent Benjamin Mallow, and Agent David Knorr, and an unknown arresting Philadelphia Police Officer or Pennsylvania State Trooper and the City of Philadelphia for false arrest, false imprisonment, deprivation of due process and punishment without due process, malicious prosecution, and retaliation arising from plaintiff's unjustified and unlawful arrest for alleged violations of SORNA2 registration requirements on or about 1 Upon review of this court's dockets, Plaintiff filed one appeal under Philadelphia CCP No. 180701810. The Superior Court issued two docket sheets. In that the appeal involves one Order, this court issues one Opinion. 2 Pennsylvania's Sex Offender Registration and Notification Act, 42 Pa.C.S. §§ 9799.10-9799.41. approximately January or February, 2017 and March, 2017; also for false arrest and imprisonment, malicious prosecution and abuse of process stemming from improper initiation of revocation proceedings, improper sentencing of the plaintiff, and revocation of plaintiff's probation sentence in 2014; and also for plaintiff's unjustified and unlawful arrest for an alleged violation of probation in August, 2017 by Agent Knorr where there was no basis whatsoever for the plaintiff's arrest and detention, and where also Agent Knorr arrested the plaintiff in retaliation for the plaintiff's success in defending against the earlier SORNA violation charges lodged, and also where the plaintiff has also subsequently had his sentence of probation vacated and the plaintiff also should not even have been under punitive probationary supervision or on probation to begin with (as related to both the January, 2017 SORNA arrest, including an extended incarceration relating thereto, and the August, 2017 arrest). Defendant sought to harm plaintiff, Mr. Garland and Mr. Garland's liberty interests and also caused the plaintiff to suffer loss of liberty, loss of property, loss of income and job prospects, as well as the loss of the opportunity to pursue and further the plaintiff's career goals due to incarceration from approximately February 6, 2017 to June 6, 2017 and incarceration from approximately August 8, 2017 to December 12, 2017 as well as incarceration from May 6, 2014 to January 23, 2016. The plaintiff also has incurred various injuries from being punished without due process during the period from 2012 to presently as a result of being required to register in violation of plaintiff's due process rights and the plaintiff's rights to be free from ex post facto punishment (per the Pa. Supreme Court's decision of Commonwealth v. Muniz).3 Defendants have also caused extreme emotional distress due to the prospect of the plaintiff having to defend himself against charges lodged against him and facing potentially 20 years of incarceration, which at the plaintiff's age would amount to spending the remaining part of his life in jail. The "Facts" section of the Complaint is divided into subsections titled "A. Facts regarding the charges for alleged SORNA violation arrest in 2017"; "B. Facts regarding the false arrest and imprisonment for alleged 2017 probation violation"; "C. Facts related to conditions now ruled as punishment under Muniz and also punishment without due process from 2012 to 2018 as a result of being required to register under the law when no valid law 3 Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017). existed; and "D. Facts related to the False Arrest and Imprisonment regarding the 2014 revocation of probation and that sentence being vacated." The Complaint includes nine counts and states claims for malicious prosecution; false arrest and imprisonment; abuse of process; "retaliation for success related to the January, 2017 SORNA charges"; and "punishment without due process and the violation of plaintiff's rights to be free from Ex Post Facto Puni[s]hment (Plaintiff required and still currently being required to register in violation of the Pa Supreme Court Muniz decision)." Upon review, the court granted the IFP Petition and dismissed the action as frivolous. This appeal followed. DISCUSSION In relevant part, Rule 240(j)(l) states: If, simultaneous with the commencement of an action or proceeding or the taking of an appeal, a party has filed a petition for leave to proceed in forma pauperis, the court prior to acting upon the petition may dismiss the action, proceeding or appeal if the allegation of poverty is untrue or if it is satisfied that the action, proceeding or appeal is frivolous. Pa.R.C.P. No. 240(j)(l). A frivolous action or proceeding has been defined as "one that lacks an arguable basis either in law or in fact." Pa.R.C.P. No. 240(j)(l), Note. An action is frivolous "if, on its face, it does not set forth a valid cause of action." Ocasio v. Prison Health Servs., 979 A.2d 352, 354 (Pa.Super. 2009). Pennsylvania is a fact pleading state, and a complaint must not only give the defendant notice of the plaintiffs claim and the grounds upon which it rests, but must summarize those facts essential to support the claim. Donaldson v. Davidson Brothers, Inc; 144 A.3d 93, 103 (Pa.Super. 2016). Here, the Complaint fails to set forth facts essential to support any of the stated causes of action. The tort of malicious prosecution "imposes liability on a private person who initiates or procures the institution of criminal proceedings against another who is not guilty of the offense charged when: (1) the proceedings are initiated or procured without probable cause and primarily for a purpose other than that of bringing an offender to justice; and (2) the proceedings are terminated in the favor of the accused." Hess v. Lancaster County, 100 Pa. Commw. 316, 514 A.2d 681 (1986). Here, the Complaint does not allege that Defendants, as private persons, initiated any of the proceedings described in the Complaint without probable cause or for a purpose other than that of bringing an offender to justice. The Complaint's only substantive allegation regarding the initiation of criminal proceedings is that "Defendants first and foremost should never have brought [SORNA violation] charges against the plaintiff solely upon the allegation of someone who was allegedly representing himself as a representative of a treatment facility for mental health or a treatment facility for a drug and alcohol program." This allegation is factually vague, and fails to allege the necessary elements of the stated cause of action. As such, the Complaint fails to state a claim for malicious prosecution. Under Pennsylvania law, false arrest is synonymous with false imprisonment. Gagliardi v. Lynn, 446 Pa. 144, 149, 285 A.2d 109, 111 (1971). The elements of false imprisonment are "(1) the detention of another person, and (2) the unlawfulness of such detention." Renk v. City of Pittsburgh, 537 Pa. 68, 76, 641 A.2d 289, 293 (1994). An action for false arrest requires that the process used for the arrest was void on its face or that the issuing tribunal was without jurisdiction; it is not sufficient that the charges were unjustified. Strickland v. Univ. of Scranton, 700 A.2d 979, 984 (Pa.Super. 1997). Here, the Complaint fails to allege that Defendants lacked probable cause for any of the arrests or detainment described in the Complaint, or that the process used for the arrests was void on its face. The Complaint also fails to allege any facts to support the conclusory allegation that "the actions and conduct of defendants City of Philadelphia and Probation Officer Agent Dage Gardner constitute and resulted in the false arrest and imprisonment of plaintiff Garland." As such, the Complaint fails to state a claim for false arrest or false imprisonment. The tort of abuse of process is defined as "the use of legal process against another primarily to accomplish a purpose for which it is not designed." Greenberg v. McGraw, 2017 PA Super 136, 161 A.3d 976, 990 (Pa.Super. 2017). To establish a claim for abuse of process it must be shown that "the defendant (1) used a legal process against the plaintiff, (2) primarily to accomplish a purpose for which the process was not designed; and (3) harm has been caused to the plaintiff." Id The "gravamen of abuse of process is the perversion of the particular legal process for a purpose of benefit to the defendant, which is not an authorized goal of the procedure." Id Here, the Complaint alleges that Defendant Gardner "made a baseless lie at the plaintiff's Gagnon II probation hearing ... in order to create a false basis for the Court to revoke probation." This allegation lacks sufficient factual specificity, in that the Complaint does not describe the "baseless lie" or how it constitutes a misuse of the legal process. Moreover, there are no factual allegations that Defendants benefitted from any behavior described in the Complaint. As such, the Complaint fails to state a claim for abuse of process. The Complaint's allegation of "retaliation" is also legally insufficient, in that "retaliation" is not a stand alone cause of action. A prisoner may state a claim against prison officials for retaliation for exercising a constitutional right. Yount v. Department of Corrections, 600 Pa. 418, 426, 966 A.2d 1115, 1120 (2009). If so, the prisoner "must allege that he engaged in constitutionally protected conduct, that prison officials took adverse action, and that the protected conduct was a substantial or motivating factor for the action." Id Here, the Complaint's allegations of retaliation are not related to Plaintiff's incarceration. Moreover, the Complaint fails to allege that Defendants retaliated against Plaintiff for engaging in constitutionally protected conduct. Instead, the Complaint makes the conclusory allegation that "Defendants City of Philadelphia and Probation Officer Agent David Knorr were both retaliating against the plaintiff in arresting and/or falsely imprisoning the plaintiff in August, 2017." As such, the Complaint fails to state a valid claim. The Complaint's last stated cause of action is "punishment without due process and the violation of plaintiff's rights to be free from Ex Post Facto Pun[is]hment." Although not stated in the body of the Complaint, it appears that Plaintiff is seeking compensatory damages for due process violations pursuant to 42 U.S.C. § 1983.4 In determining whether plaintiffs have stated a cause of action under Section 1983, "the inquiry must focus on whether the two essential elements of the action are present: ( 1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or the laws of the United States." Hennessy v. Santiago, 708 A.2d 1269, 1274 4 The cover sheet of the Complaint identifies the "statutory basis for cause of action" as "section 1983, 42 U.S.C." (Pa.Super. 1998). A plaintiff pursuing a cause of action under Section 1983 "must plead the facts that give rise to the claimed deprivation of civil liberties and specifically avoid vague and conclusory allegations." Scott v. Willis, 116 Pa. Cmwlth. 327, 337, 543 A.2d 165, 170 (1988). Here, the Complaint alleges that "Defendant City of Philadelphia, Agent Benjamin Mallow and Unknown arresting officer [were] recklessly indifferent regarding the plaintiff's ex post facto rights and has also exhibited a culture of being indifferent to [its'] citizen['s] civil rights." As the Complaint does not state what specific actions by Defendants deprived Plaintiff of his civil liberties, or how Defendants were "recklessly indifferent", Plaintiff's allegations are both improperly vague and conclusory. As such, the Complaint fails to set forth a claim under Section 1983. For the foregoing reasons, this court's Order dismissing Plaintiff's action as frivolous should be affirmed. IDEE C. FOX, J.	{ "pile_set_name": "FreeLaw" }
907 S.W.2d 423 (1995) RICARDO N., INC., Petitioner, v. Maria Margarita TURCIOS DE ARGUETA, as Administrator of the Estate of Juan Luis Argueta, Deceased, and as Guardian of Xiomara Margarita Argueta, Maria de Los Angeles Argueta, Jorge Samuel Argueta, and Maria Aidee, Minors, Respondents. No. 94-0111. Supreme Court of Texas. Argued November 17, 1994. Filed June 8, 1995. 424 Christa Brown, Austin, G. Don Schauer, Daniel D. Pipitone, Corpus Christi, for petitioner. Miguel A. Saldana, Richard E. Zayas, Brownsville, for respondents. HECHT, Justice, delivered the opinion of the Court. With no word of explanation, Juan Luis Argueta, a seaman on the shrimping vessel, the Betty N, jumped overboard in the middle of the night in high seas about eighty miles off the Texas coast. His disappearance and presumed death make it impossible to ascertain his motives, but there are indications that he acted out of distress over rumors of his wife's infidelity. She, Maria Margarita Turcios de Argueta, on behalf of herself, Argueta's estate and his four minor children, sued the Betty N and its owner, Ricardo N., Inc., alleging negligence under the Jones Act, 46 U.S.C.App. § 688 (1988), and unseaworthiness under the Death on the High Seas Act ["DOHSA"], 46 U.S.C.App. § 761 (1988). After trial to the bench, the court found for Turcios on both claims and rendered judgment against both defendants for actual and punitive damages, and pre- and post-judgment interest. The court of appeals reversed the judgment against the Betty N, and reversed the punitive damages award, but affirmed the judgment for actual damages and interest against Ricardo N. 870 S.W.2d 95. Of the several arguments defendants make on appeal, we find one dispositive. We hold that Turcios was obliged to prove that defendants caused Argueta's death, and that she failed to do so. Accordingly, we reverse the judgment of the court of appeals and render judgment that Turcios take nothing. I Argueta, a citizen of El Salvador, came to Brownsville to live with his sister. He found work as a shrimper on the Betty N, a fishing vessel with a crew of four: the captain, who was in command of the vessel; a rigman, who worked the nets; and two headers, who looked for shrimp. Argueta was one of the headers. Argueta had worked on the Betty N about six months when he learned that his wife, who was still in El Salvador, was being unfaithful to him. Disturbed by this news, Argueta asked his wife to join him in the United States, and she traveled as far as Belize. Argueta sent her money for the rest of the trip via a friend, but later heard that the friend also had an affair with her. Argueta was even more upset at this latest episode, but by the time he next embarked upon the Betty N he seemed fine and did not mention his wife. On the third day at sea Argueta asked to be taken to Houston. The captain responded 425 that he would either call the Coast Guard to come get Argueta or put him ashore at the nearest port the next morning. Argueta began working that evening, but later threw his stored clothes overboard and told the captain that he did not want to work. Argueta went to his cabin, either voluntarily or on the captain's orders. At 1:30 a.m., the crew was still working and the boat was moving forward at about two miles per hour. The night was clear with a bright moon; the seas were high, four to six feet; the wind was blowing at fifteen to twenty knots. Argueta came on deck wearing only his pants and shoes, and stripped to his underwear. When a crew member asked what he was doing, Argueta, without reply, jumped overboard. Argueta was a good swimmer and the water was warm enough for someone to survive in it for several hours. The captain immediately ran forward to the pilot house to stop the vessel. No flare was thrown to mark the spot where Argueta entered the water, nor was a life ring thrown because the crew could not see Argueta. The captain marked the vessel's position on the chart and recorded the compass reading in the log. Meanwhile, the rigman raised the nets, which took about fifteen minutes. The crew then called for help using citizen band radios, which had a shorter range than the ship's sideband radios. About eighty minutes after Argueta jumped overboard, the crew contacted another vessel, which in turn contacted the Coast Guard. The Betty N searched for Argueta the rest of the night, the Coast Guard searched the next day, and the Betty N fished in the same area for three days, but Argueta was never found. Turcios testified that Argueta did not have suicidal tendencies. The trial court found that the Betty N was unseaworthy because it was not properly equipped, nor its crew properly trained, for emergencies. There is no dispute that the ship did not have flares or cable cutters to jettison the nets. There is no evidence whether the ship's life preservers did or did not have lights as required by Coast Guard regulation, 46 C.F.R. § 25.25-13. No evidence suggests that any of the crew members had been trained for emergencies while employed by Ricardo N., although the captain had received such instruction in obtaining certification as a vessel captain in El Salvador. The safety materials on the Betty N were in English, and only the rigman could read English. It is unclear whether anyone knew how to use the sideband radios. The trial court also found that Ricardo N. was negligent in failing to prepare the Betty N and its crew for emergencies. The court found that the crew should have detached the fishing nets instead of lifting them, radioed for help immediately with a sideband radio, thrown out life preservers, set off flares, posted a lookout to try to keep Argueta in sight, and turned the vessel toward the direction Argueta jumped overboard. The trial court awarded $100,000 to Turcios and $50,000 to each of the four minor plaintiffs. The court also awarded plaintiffs $200,000 in punitive damages. The court of appeals reversed the punitive damage award, holding that such damages cannot be recovered under either the Jones Act or the DOHSA. The appeals court also reversed the judgment against the Betty N, holding that jurisdiction of in rem suits in admiralty is exclusive in the federal courts. Turcios does not appeal from either of these holdings. The court of appeals affirmed the award of actual damages against Ricardo N. Ricardo N. denies that any evidence supports the trial court's findings of unseaworthiness and negligence, but it does not argue for reversal of the court of appeals' judgment based on this lack of evidence. Rather, Ricardo N. argues that there is no evidence that the unseaworthiness and negligence found by the trial court could have caused Argueta's death. It points to the testimony of Turcios' own expert to the effect that even if the Betty N had done everything perfectly, it would "probably not" have made any difference in rescuing Argueta, and that it was "sheer and utter speculation" to think that anything the Betty N might have done differently could have saved him. The court of appeals determined that there is some evidence to support the trial court's finding of causation, and that in any event, there should be a presumption of causation under the 426 circumstances of this case, a presumption that Ricardo N. failed to overcome. II Before we consider the evidence of causation, we must first identify the duty Ricardo N. owed Argueta. That duty is prescribed by the marine rescue doctrine, which holds that when a person goes overboard the ship must use every reasonable means to retrieve him from the water if he can be seen from the ship, and if he cannot be seen, must search for him as long as it is reasonably possible he is alive. Reyes v. Vantage S.S. Co., 609 F.2d 140, 142 (5th Cir.1980). The doctrine thus stated has two branches. 1B Benedict on Admiralty § 30, at 3-223 to 3-239 (7th ed. 1991). One branch"search" casesconcerns seamen who disappear, having apparently fallen overboard; their "presence or location in the water is not readily discernible from the ship." Reyes, 609 F.2d at 142 (quoting 1B BENEDICT ON ADMIRALTY § 30 at 3-225 (6th ed. 1976)); Gardner v. National Bulk Carriers, 310 F.2d 284, 286 (4th Cir.1962), cert. denied, 372 U.S. 913, 83 S.Ct. 728, 9 L.Ed.2d 721 (1963). In these situations, the ship must search for the seaman as long as it is reasonably possible he is alive in the water, and must, of course, retrieve him if found. Reyes, 609 F.2d at 142. The other branch"rescue" casesinvolves "those where a seaman has fallen overboard and is struggling in close proximity to and is visible from the ship." 1B Benedict on Admiralty § 30, at 3-225. In rescue situations, the ship must use "every reasonable means to retrieve the seaman from the water." Reyes, 609 F.2d at 142. Whether a seaman falls or jumps into the water, the duty to rescue arises the instant he goes overboard. Id. at 143. The duty arises because the seaman must follow orders, even orders putting him in danger; because the sea is inherently dangerous; and because the vessel represents the only means to save the life of a human being with no other source of help. See Harris v. Pennsylvania R.R., 50 F.2d 866, 868-69 (4th Cir. 1931). III The court of appeals thought that the causal connection between the conduct of a ship's crew and the failure to rescue a man overboard is often presumed in "rescue" cases in which the seaman remains visible, as opposed to "search" cases in which the seaman has disappeared, and that this is a "rescue" case. Ricardo N. argues that this is not a "rescue" case because there is no evidence Argueta could be seen from the moment he entered the water. Thus, Ricardo N. contends that the appeals court applied the wrong branch of the marine rescue doctrine. This dispute assumes that the proof required for causation depends on the nature of the duty owed to the seaman. We are unable to discern such a connection, either in the caselaw or in the underlying justification for presumptions. Caselaw illustrates that whether causation is presumed does not depend on which branch of the marine rescue doctrine applies. E.g., Abbott v. United States Lines, 512 F.2d 118 (4th Cir.1975) (search case, causation presumed); Grantham v. Quinn Menhaden Fisheries, 344 F.2d 590 (4th Cir.1965) (rescue case, causation not presumed); Gardner v. National Bulk Carriers, 310 F.2d 284 (4th Cir.1962) (search case, causation presumed); Schlichter v. Port Arthur Towing, 288 F.2d 801 (5th Cir.), cert. denied, 368 U.S. 828, 82 S.Ct. 50, 7 L.Ed.2d 32 (1961) (rescue case, causation not presumed); Kirincich v. Standard Dredging Co., 112 F.2d 163 (3rd Cir. 1940) (rescue case, causation presumed); Harris v. Pennsylvania R.R., 50 F.2d 866 (4th Cir.1931) (rescue case, causation not presumed); In Re Joint Adventure, Inc., 1989 A.M.C. 2762, 1989 WL 201244 (S.D.Ala. 1989) (search case, causation not presumed); Kiesel v. American Trading & Prod. Co., 347 F.Supp. 673 (D.Md.1972) (search case, causation not presumed); Britt v. Marine Transp. Lines, 1970 A.M.C. 652 (S.D.Tex.1969) (rescue case, causation not presumed). As these cases show, causation is presumed, in either branch of the marine rescue doctrine, for two main reasonsviolation of a statutory or regulatory duty (the "Pennsylvania rule"), and equity. The first reason for presuming causation is exemplified in The Pennsylvania, 86 U.S. (19 427 Wall.) 125, 22 L.Ed. 148 (1874), holding that a party violating a statute must prove that its violation not only did not contribute, but could not have contributed, to causing the collision of two vessels. Id. at 136-37; Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty § 7-5 (2d Ed.1975). The Pennsylvania presumptioneffectively shifting the burden of disproving causation to the defendanthas been extended to rescue cases in the context of actions based on the Limitation of Liability Act, 46 U.S.C.App. §§ 181-196 (1988). See In re Seaboard Shipping Corp., 449 F.2d 132, 136 (2nd Cir.1971), cert. denied, 406 U.S. 949, 92 S.Ct. 2038, 32 L.Ed.2d 337 (1972). In Reyes, the Fifth Circuit recognized the presumption in "rescue" cases under the Jones Act when a Coast Guard regulation was breached. 609 F.2d at 144-45. But even when a statute or regulation is violated, courts do not uniformly shift the burden, especially when the causal connection between breach of the statute and the injury is weak. See Wilkins v. American Export Isbrandtsen Lines, 446 F.2d 480, 484 (2d Cir.1971), cert. denied, 404 U.S. 1018, 92 S.Ct. 679, 30 L.Ed.2d 665 (1972). The equitable basis for presuming causation is illustrated in a number of cases. One, Reyes, involved a claim under the Jones Act for the death of a seaman who dove overboard into the ocean to swim, having become quite drunk on beer served on board. As the seaman began swimming to a mooring buoy a few hundred feet away from the ship, the crew spotted him immediately and knew "from the time of first sighting that Reyes was in mortal danger." 609 F.2d at 142. By the time the crew could act, Reyes was beyond the range of a hand-thrown life ring or line. No one made any effort to rescue him as he struggled against the current toward the buoy, became motionless in the water, and died. The court concluded that the ship violated Coast Guard regulations by failing to have a rocket-powered line-throwing device, which could have been used to save Reyes. Id. at 143. The court remanded on the issue of causation, the resolution of which involved a number of difficult questions: whether the required line-throwing device would have been properly positioned to help Reyes; whether it would have been reasonable to use the device; and whether a thrown line would have saved the seaman's life. The court recognized that resolving these causation issues would be very difficult: [C]ausation in this situation turns on a number of either ambiguous or hypothetical issues of fact ... made most difficult by the facts that (i) the ship lacked required equipment which could conceivably have been used for rescue and by (ii) the actual failure of the ship to even attempt a rescue. These omissions are solely the fault of the ship. Id. at 144. Partly because of these evidentiary difficulties, the district court was ordered on remand to presume the existence of causation. Id. In Gardner v. National Bulk Carriers, 310 F.2d 284 (4th Cir.1962), cert. denied, 372 U.S. 913, 83 S.Ct. 728, 9 L.Ed.2d 721 (1963), the seminal "search" case, Gardner disappeared from his ship sometime within a 6-½ hour period. The ship's master alerted the Coast Guard to Gardner's disappearance but did nothing more. Presuming the earliest time Gardner could have gone overboard, the trial court found he was beyond the possibility of being rescued when he was first missed. The Fourth Circuit reversed because the trial court's basic premise was flawed: no one could know when Gardner went overboard because the ship failed to make any search at all. As the court explained: "Unless a search was made by that or other vessels in the area, it could not be determined that Gardner was beyond rescue. This is the classic situation which in reason and humanity called for the exercise of every reasonable effort to ascertain his whereabouts." Id. at 287. The court rejected the ship's proximate cause argumentthat its failure to reverse course did not of itself cause the death because failing to search "obliterated all possibility of evidence to prove whether a search, if undertaken, would have succeeded or failed." Id. Both Reyes and Gardner acknowledged and yielded to "practical considerations of proof where the defendant's negligence [made] it difficult or impossible to prove causation...." Lori R. Ellis, Note, Loss of 428 Chance as Technique: Toeing the Line at Fifty Percent, 72 Tex.L.Rev. 369, 392 (1993). Further, shifting the burden of proof represented not only a practical solution to the causation conundrum, it also represented the most equitable course. Unlike the Betty N in the present case, neither ship in Reyes or Gardner did anything to help the overboard seaman. Indeed, the ship's act in Reyes of running a "floating dram shop" made proving causation difficult; the ship provided Reyes the beer that may have impaired the seaman's judgment and abilities. See Reyes, 609 F.2d at 142 & n. 1. The Betty N has not by any such acts or omissions impaired Turcios' ability to show causation. A case in contrast with Reyes and Gardner is Schlichter v. Port Arthur Towing, 288 F.2d 801 (5th Cir.), cert. denied, 368 U.S. 828, 82 S.Ct. 50, 7 L.Ed.2d 32 (1961), a Jones Act negligence claim for the death of a seaman. Schlichter was left in charge of a moored vessel while others were at home on shore leave. Schlichter locked up the vessel and went ashore with two friends, Redden and Slade. Later that night, the group returned to the vessel drunk, and Schlichter fell overboard. Both companions heard the splash, and Redden dove into the water to save Schlichter. Slade saw Redden's head but never saw Schlichter's. Slade then went after life jackets in the nearby galley, but the galley was locked. Slade ran forward to the wheelhouse, which was not locked, got life jackets, and returned to the stern. By that time, both Schlichter and Redden had disappeared. The Jones Act claim rested on the inadequacy or unavailability of life jackets, a violation of Coast Guard regulations. Life jackets were not immediately available, however, because Schlichter himself had locked all the doors to the main deck. There was no evidence that Schlichter's employer had overridden Schlichter's control of the vesseli.e., to lock the doors or not. Even with the very light burden of Jones Act causationto prove that employer negligence played any role in the injurythe plaintiff in Schlichter offered no evidence of causation. Slade never saw Schlichter and never heard Redden or Schlichter cry out. No evidence showed where Schlichter was in the water or where he might have been seen. Even if life jackets had been immediately at hand, it was "sheer fantasy" to expect anyone to have been rescued. Id. at 806. Finally, Schlichter's drunkenness made determining causation difficult: "Whether there is a reasonable likelihood that Schlichter would have been saved cannot avoid taking into account the undisputed evidence about the substantial... state of his inebriation as it bore on his capacity for self help or survival." Id. The plaintiff, Schlichter's widow, was not aided by a presumption of causation, at least in part, because Schlichter's own acts made proving causation difficult. Id. at 806-07. Britt v. Marine Transport Lines, 1970 A.M.C. 652 (S.D.Tex.1969), is identical to the present case in all material respects. Britt, a seaman aboard a tanker in the Texas City channel, learned that his wife had been injured in a car accident. He asked the master of the vessel for permission to leave immediately, and the master granted permission to do so after they had completed the maneuver in which the vessel was involved. Impatient, Britt jumped overboard. The pilot took appropriate evasive maneuvers and radioed nearby tugs to go to Britt's rescue. Britt nonetheless drowned. The court dismissed the complaint, concluding that Britt's death "was the sole and proximate result of his own negligence in voluntarily jumping overboard and attempting to swim to shore in violation of the Master's orders for him to remain on board". Id. at 656. The Reyes court noted that the trial court's finding in Britt relied on the seaman's offsetting negligence and on lack of causation. 609 F.2d at 143 n. 3. Neither of the marine rescue doctrine's rationales for presuming causation applies to the current case. Ricardo N. did not violate a statutory or regulatory requirement. And equity does not weigh in favor of the presumption because Argueta's own actionsjumping overboard without his life vest, at night, in high seasmade it very difficult for Ricardo N. to disprove causation. Under these facts, as in Britt, the burden of proving causation properly remains with the plaintiff. 429 IV We thus come to the question whether any evidence proves Ricardo N. caused Argueta's death. The plaintiff's burden in a Jones Act case has been characterized as "featherweight", Alverez v. J. Ray McDermott & Co., 674 F.2d 1037, 1042 (5th Cir.1982), and is carried if defendant's negligence contributes "even in the slightest degree" to the injury. Sanford Bros. Boats, Inc. v. Vidrine, 412 F.2d 958, 962 (5th Cir. 1969); see Reyes, 609 F.2d at 146. Even under this standard, Turcios still did not prove causation. There is no evidence that the Betty N's crew could have done anything to save Argueta, as Turcios' own expert acknowledged. Asked whether the crew should not have thrown Argueta a flotation device, the captain replied: "What were they going to throw him? They didn't see him." A life ring thrown indiscriminately overboard does no good, and presents no evidence of causation. See Schlichter, 288 F.2d at 805-806. Because Turcios' causation claims do not meet the Jones Act standard for causation, they cannot meet the more stringent causation standard for unseaworthiness, which demands proximate cause in the traditional sense. E.g., Smith v. Trans-World Drilling Co., 772 F.2d 157, 162 (5th Cir.1985); Alverez, 674 F.2d at 1042-1043. Accordingly, we conclude that Turcios failed to establish Ricardo N.'s liability either for negligence or unseaworthiness, and is not entitled to recover damages against Ricardo N. V Our conclusion in this case that judgment should be rendered against Turcios makes it unnecessary for us to address other complaints Ricardo N. raises that would entitle it only to a remand for a new trial. While the effect of our decision is to vacate the court of appeals' opinion, we are concerned that that opinion may be cited as authority on issues which we have not addressed with the notation that the judgment of the court of appeals was "reversed on other grounds". We therefore address these issues briefly. Turcios timely requested a jury but did not pay the jury fee. A few days before the case was set for trial, Turcios' counsel appeared before the court and announced ready for a non-jury trial. Arriving later and learning that the case was set for a bench trial, Ricardo N.'s counsel paid the fee and made its own jury request, which the trial court denied. Tex.R.Civ.P. 216. Ricardo N. then removed the case to federal court based on the Limitation of Liability Act, 46 U.S.C.App. §§ 181-196 (1988). Four years later the federal district court remanded the case to state court. The federal court specifically found that Ricardo N. had removed the case in good faith and Ricardo N.'s conduct did not merit sanctions under Rule 11 of the Federal Rules of Civil Procedure. Notwithstanding these findings, the state trial court found that Ricardo N. had removed for the purpose of delay, and sanctioned Ricardo N. by ordering that the case be tried as it stood before removal, that is, before the bench. The judge also disallowed the testimony of witnesses designated after the original trial date, denied trial amendments and cross-examination about Turcios' status as the children's representative, denied Ricardo N.'s requests for further discovery and for a continuance, refused to deem admitted requests for admissions that Ricardo N. had filed in federal court, and denied Ricardo N.'s renewed request for a jury trial. The court of appeals approved all of these rulings. 870 S.W.2d at 103-13. Assuming Ricardo N.'s request for a jury in advance of the first trial setting was not timely made, that request had certainly become timely when the case was remanded from federal court four years later. Halsell v. Dehoyos, 810 S.W.2d 371 (Tex. 1991) (per curiam). The same lapse of time made Ricardo N.'s designation of witnesses timely. H.B. Zachry Co. v. Gonzalez, 847 S.W.2d 246 (Tex.1993) (per curiam). The trial court abused its discretion in sanctioning Ricardo N. for removing the case in bad faith when the federal court had already determined that the removal was not in bad faith. Ricardo N. was entitled to have the case tried in its posture following remand. We disapprove the court of appeals' opinion to the extent it reaches contrary conclusions. * * * * * * *430 For the reasons we have explained, the judgment of the court of appeals is reversed to the extent it allows recovery against Ricardo N., judgment is rendered that Turcios take nothing against Ricardo N., and in all other respects the judgment of the court of appeals is affirmed.	{ "pile_set_name": "FreeLaw" }
Filed 5/17/16 P. v. Ramirez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ---- THE PEOPLE, C077861 Plaintiff and Respondent, (Super. Ct. No. 14F02743) v. MARK STEVEN RAMIREZ, Defendant and Appellant. As a result of defendant Mark Steven Ramirez striking her, probably with a screwdriver, the victim of domestic violence in this case suffered a concussion, bled profusely all over her clothes and car, and sustained a zigzag gash on her head that penetrated the skin to the connective tissue covering the skull and required five staples to close. A jury convicted defendant of the infliction of corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)) and battery resulting in serious bodily injury (Pen. Code, § 243, subd. (d)). He was sentenced to a total term of 18 years in state prison, including a five-year enhancement for a prior conviction of making terrorist threats. On appeal, defendant complains the trial court refused to instruct on the lesser included offense of simple battery and improperly imposed a five-year enhancement even though the jury found he had inflicted “serious bodily injury” rather than “great bodily injury.” We affirm. 1 FACTS The victim fits the sad stereotype of a battered woman. While at the hospital receiving treatment for her head wound, she told the doctor, her daughters, and the investigating police officer that defendant, angry she had been out all night, stabbed her with what she thought was a screwdriver. Her daughters, Tasha and Velecity, testified she was terrified to return to the unit she shared with defendant in a duplex in which her daughter Tasha and grandchildren also resided. Velecity testified that her mom “kept saying over and over and over again how scared she was. He kept hitting her, hitting her, and hitting her. And the blood was running down her face into her eyes.” She lived with Velecity for a almost week after release from the hospital, and Velecity’s husband took a week off work to be with her. Nevertheless, once she began talking to defendant again, she recanted her statements and thereafter claimed the gash was self-inflicted. It was this version of events she gave at the preliminary hearing. She then married defendant and refused to testify at trial. The transcript of the preliminary hearing was read to the jury at trial. While driving home from San Jose at about 10:00 p.m. on March 2, 2014, Tasha received a telephone call from her mother. A few moments after they hung up, the phone rang and the display indicated it was her mother again. She was unable to get her mother to respond, but she was able to hear some of what her mother screamed, including, “ Oh, God. No. Please Mark. Please don’t hit me. No.” Tasha continued to listen until her battery ran out. She was afraid her mother was dead. She later received a voice mail message from her mother, who indicated it was an emergency. Tasha returned her mother’s call, and defendant’s daughter grabbed the phone and reported that Tasha’s mom was hurt pretty badly and was en route to the hospital. Tasha and Velecity went directly to the hospital to be with their mother. The victim was covered in blood and appeared to Tasha to be “out of it.” 2 The emergency room doctor did not observe signs of intoxication and did not order any blood tests. He did, however, order a CT scan. The victim complained of nausea, dizziness, and blurred vision, symptoms consistent with a concussion, and the doctor wanted to assess the severity of the head injury. According to the doctor, the laceration penetrated the full thickness of the victim’s scalp; Velecity testified the injury was closed with five staples. She was released from the hospital a few hours after admission. Several weeks later the police went to the victim’s duplex to serve an arrest warrant on defendant. The victim denied that defendant was in the residence. The police found him hiding under some blankets between the bed and the wall in the bedroom. The victim did not protest or claim responsibility for the infliction of the injuries at that time. DISCUSSION I Instruction on Lesser Included Offense of Simple Battery Defendant was charged with and convicted of battery resulting in serious bodily injury. (Pen. Code, § 243, subd. (d).) The trial court refused his request to instruct the jury on simple battery as a lesser included offense, concluding there is insufficient evidence to support the instruction. Defendant argues that the failure to instruct on simple battery put the jury in an untenable “all or nothing” position and constituted reversible error. He insists the jury could have found the victim’s head wound did not constitute a serious bodily injury and therefore that he committed simple battery. We disagree. The trial court instructed the jury in the language of CALCRIM No. 925 as follows: “The defendant is charged in Count 2 with battery causing serious bodily injury in violation of Penal Code section 243(d). “To prove that the defendant is guilty of this crime, the People must prove that: 3 “1. The defendant willfully touched [the victim] in a harmful or offensive manner; and “2. [The victim] suffered serious bodily injury as a result of the force used. “Someone commits an act willfully when he or she does it willfully or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. “Making contact with another person, including through his or her clothing, is enough to commit a battery. “A serious bodily injury means a serious impairment of physical condition. Such an injury may include: loss of consciousness, concussion, bone fracture, protracted loss or impairment of function of any bodily member or organ, a wound requiring extensive suturing, and serious disfigurement. “The touching can be done indirectly by causing an object or someone else to touch the other person.” A trial court must instruct the jury on “any uncharged offense that is lesser than, and included in, a greater charged offense, but only if there is substantial evidence supporting a jury determination that the defendant was in fact guilty only of the lesser offense.” (People v. Parson (2008) 44 Cal.4th 332, 348-349.) The failure to instruct on a lesser included offense that is supported by substantial evidence is usually harmless unless there is a reasonable probability that the error affected the outcome. (People v. Breverman (1998) 19 Cal.4th 142, 176-177.) There is no dispute that a simple battery is a lesser included offense of battery causing serious injury. The question is whether a jury could find that a four-centimeter gash requiring five staples accompanied by significant bleeding and a concussion was not a serious bodily injury as explained to the jury in CALCRIM No. 925. Defendant minimizes the wound, pointing out that it was not very deep and did not cause any permanent injury. He attributes the victim’s nausea and dizziness to 4 intoxication. Thus, in his view, the jury could have found the injury was not of sufficient gravity to constitute a serious injury. Not so. A serious bodily injury includes a concussion and a wound requiring extensive suturing. (Pen. Code, § 243, subd. (f)(4).) According to the emergency room doctor, the victim suffered a concussion. The laceration required five staples to heal. Although there was some evidence the victim might have been drinking, neither the doctor nor the interrogating police officer observed any signs of intoxication. Both testified she appeared coherent and cooperative. She was able to answer all their questions and describe exactly what had happened to her. There were no blood tests taken. To suggest, therefore, as defendant does, that the victim did not suffer a concussion as diagnosed by the emergency room physician but that her nausea and dizziness were a result of her intoxication is pure speculation. Moreover, the doctor also determined that the gash would not heal properly without administering five staples, and a wound requiring extensive suturing constitutes a serious injury. Given the gravity of the injury as evidenced by the concussion and suturing, there is substantial evidence defendant committed the greater offense and no substantial evidence that if the jury found he committed a battery it could have found that he did not inflict serious bodily injury. Neither protracted impairment nor disfigurement is required for serious bodily injury. (Pen. Code, § 243, subd. (f)(4).) As a consequence, we conclude the trial court properly instructed the jury on the greater offense alone. Relying on People v. Nava (1989) 207 Cal.App.3d 1490, defendant argues that the victim’s head injury, like the victim’s fractured nose in Nava, may have been insufficient to sustain the great bodily injury enhancement. Defendant’s reliance on Nava is misplaced. Nava involved the offense of assault by means of force likely to produce great bodily injury under Penal Code section 245, subdivision (a)(1) and merely held it was error to instruct the jury that a bone fracture constitutes a significant and substantial physical injury within the meaning of the statute. (Nava, at p. 1494.) There was no 5 similar instruction in this case. The court concluded that a broken bone may constitute great bodily injury, but every bone fracture does not constitute great bodily injury as a matter of law. (Id. at p. 1498.) Nava holds that a jury could reasonably sustain a great bodily injury enhancement based on a fractured nose. And where a jury makes a comparable finding, as it did here, we will not disturb it on appeal. II Right to Jury Trial on Enhancement for Inflicting Great Bodily Injury Defendant next asserts the trial court violated his constitutional right to a jury trial by imposing a five-year serious felony enhancement under Penal Code section 667, subdivision (a). It is true that the charged felonies are not listed in the 41 categories of serious felonies set forth in subdivision (c) of section 667, but a serious felony described in subdivision (c)(8) also includes “[a]ny felony in which the defendant inflicts great bodily injury on any person other than an accomplice . . . .” Although the jury expressly found that defendant inflicted a serious bodily injury, he complains the jury did not find that he inflicted “great bodily injury.” We agree with the Attorney General that, under the facts presented here, the two concepts are synonymous and the trial court committed no error by imposing the enhancement. Defendant argues that under the logic of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] and its progeny, all facts that are legally essential to the determination of an offender’s current offense must be determined by a jury. (Id. at p. 490; Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403].) Because the trial court enhanced defendant’s punishment without a jury’s finding that he inflicted great bodily injury, defendant urges us to strike the five-year enhancement. He contends that the “closely analogous” United States Court of Appeals, Ninth Circuit opinion in Dillard v. Roe (9th Cir. 2001) 244 F.3d 758 (Dillard) supports his position. The facts in Dillard are not at all analogous. Nor did the Ninth Circuit rely on Apprendi; indeed, the court expressly distanced itself from the holding. (Dillard, at p. 773, fn. 19.) In short, 6 the case is easily distinguished and does not support the proposition that a jury finding of serious injury is not equivalent to a finding of great bodily injury. Let us begin with the most blatant distinction. A jury convicted Dillard of inflicting corporal injury upon a cohabitant (Pen. Code, § 273.5, subd. (a)), but it did not, as here, convict Dillard of battery resulting in serious bodily injury (Dillard, supra, 244 F.3d at p. 761). In order to enhance Dillard’s sentence, the judge had to find he personally used a gun, a finding the jury had not made. (Id. at p. 771.) The Ninth Circuit concluded “that the additional fact found by the trial judge in this case is an element that transforms the offense for which Dillard was charged and convicted into a different, more serious offense that exposes him to greater and additional punishment. Accordingly, we agree with the district court that Dillard’s constitutional rights were violated when the state trial judge imposed the two five-year sentence enhancements without having a jury determine beyond a reasonable doubt that Dillard ‘personally used a firearm’ in the commission of the offense against [the victim].” (Id. at p. 773.) The jury also convicted defendant of inflicting corporal injury upon a cohabitant. But commission of that offense alone does not qualify as a serious felony and justify imposition of an enhancement. Here, unlike in Dillard, the jury made the critical additional finding that defendant inflicted serious injury when he battered his victim. We reject the notion that the trial court’s finding that Dillard personally used a firearm is in any way similar to the court’s utilization here of the jury’s finding he inflicted serious injury and thus that he inflicted great bodily injury. Dillard bears no relevance to the case before us. Because the jury, not the judge, made the essential finding upon which defendant’s enhancement was based, the issue is whether a finding of “serious injury” is equivalent to a finding of “great bodily injury.” Defendant insists there is a wide chasm in meaning. Persuasive authority is to the contrary. As a general rule, the terms “ ‘serious bodily injury’ ” and “ ‘ “great bodily injury” ’ ” are essentially equivalent. (People v. Wade 7 (2012) 204 Cal.App.4th 1142, 1149; see People v. Moore (1992) 10 Cal.App.4th 1868, 1871; see also People v. Johnson (1980) 104 Cal.App.3d 598, 610; see also People v. Kent (1979) 96 Cal.App.3d 130, 136-137.) People v. Taylor (2004) 118 Cal.App.4th 11, cited by defendant, is an aberration. It, too, accepts the fundamental proposition that a jury finding of serious bodily injury is equivalent to a finding of great bodily injury. (Id. at p. 22.) The unique problem in Taylor, however, was that the jury found the defendant had inflicted serious bodily injury but also found, for enhancement purposes based on the same conduct, he had not inflicted great bodily injury. Faced with an express jury finding the defendant had not inflicted great bodily injury, instructions that provided different definitions for serious and great bodily injury, and the arguments of counsel distinguishing the two, the court held the imposition of the enhancement violated the defendant’s right to a jury trial. (Id. at p. 30.) We are not confronted with conflicting jury findings or instructions distinguishing the two concepts. To the contrary, the jury was presented with overwhelming evidence that the victim’s injuries were significant and substantial. As described above, the emergency room doctor testified the victim suffered a concussion and an approximate four centimeter, Z-shaped subcutaneous laceration, which had penetrated all layers of skin down to the connective tissue on the top of her scalp. She required five staples to close the wound to her head. The jury found that these were serious injuries and they made no contrary findings, nor were there any confusing or conflicting instructions. We therefore must follow the general rule that a jury finding of serious bodily injury constitutes a finding of great bodily injury, and the five-year enhancement was not based on a finding by the court in violation of defendant’s right to a jury trial. III Remand for Court to Determine Amount of Fees Despite our admonition that “[t]he clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of 8 judgment” (People v. Zackery (2007) 147 Cal.App.4th 380, 387-388), the clerk here added to the abstract of judgment the amount of fines and fees the court intended to impose by referencing a probation report despite the fact the court did not orally pronounce the fees. The Attorney General agrees with defendant that the written abstract cannot add to or modify the oral judgment it purports to reflect (People v. Mitchell (2001) 26 Cal.4th 181, 185) and joins in defendant’s request for us to remand the matter to the trial court to orally specify the nature and amount of the mandatory restitution fee (Pen. Code, § 1202.4, subd. (b)), the parole revocation fine (Pen. Code, § 1202.45), the main jail booking fee (Gov. Code, § 29550.2), and the main jail classification fee (ibid.). We agree and remand the matter to cure any deficiency in the rendition of judgment for failure to specify the nature and amount of these fees and fines. DISPOSITION The matter is remanded to the trial court to separately specify the nature and amount of each fine or fee it intends to impose. The trial court is further directed to amend the abstract of judgment accordingly and to send a certified copy thereof to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed. RAYE , P. J. We concur: BLEASE , J. MAURO , J. 9	{ "pile_set_name": "FreeLaw" }
No. 8 4 - 1 1 6 IN THE SUPREME COURT OF THE STATE OF MONTANA 1984 MICHAEL IRVING FOLEY and CHERYL DENISE FOLEY, Plaintiffs and Appellants, AUDIT SERVICES, INC., a Montana Corporation, Defendants and Respondents. APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Henry Loble, Judge presiding. COUNSEL OF RECORD: For Appellant: Harrison, Yeshe & Thweatt, Harold H. Harrison argued, Helena, Montana For Respondent: Swanberg, Koby, Swanberg & Matteucci; Robert J. Vermillion argued, Great Falls, Montana Submitted: October 30, 1 9 8 4 Decided: January 3, 1 9 8 5 Filed: J A ! ~ j 1985 Mr. Justice Fred J. Weber delivered the Opinion of the Court. Plaintiffs Michael Irving Foley and Cheryl Denise Foley filed this action against defendant Audit Services for wrong- ful execution and conversion. Plaintiffs' bank account was levied upon under a writ of execution obtained by Audit Services. Plaintiffs were strangers to the action from which the writ issued against the judgment debtor, Mike Foley. Plaintiffs seek actual and punitive damages. The Lewis and Clark County District Court granted summary judgment in favor of Audit Services and plaintiffs appeal. We affirm. The issues are: 1. Did the the District Court err in concluding that the judgment creditor, Audit Services, did not direct the wrong- ful levy of execution against plaintiffs? 2. Did the District Court err in concl.uding there is no genuine issue of material fact regarding malice? Audit Services obtained a judgment in 1981 against one "Mike Foley" in Jefferson County. On September 7, 1983 counsel for Audit Services obtained a writ of execution from the Jefferson County District Court pursuant to the 1981 judgment. The writ and praecipe were addressed to the Lewis and Clark County Sheriff and were mailed to the sheriff by counsel for Audit Services on September 8, 1983. The praeci- pe requested the sheriff to levy on all monies, credits or debts due and owing to Mike Foley in possession or control of certain listed banks or Mike Foley's employer. On September 16, 1983 the sheriff served the writ of execution on the establishments listed in the praecipe. First Security Bank debited plaintiffs ' account for $51.74, the entire account balance. The record is silent regarding how or why the bank allowed levy against "Mike Foley" on an account named "Michael Irving Foley and Cheryl Denise Fol~y." None of the other entities delivered any assets to the sheriff. Audit Services contends that no one connected with Audit Services was informed of anything nor communicated with the sheriff regarding the writ of execution from the time it was sent to the sheriff until Audit Services was served with the complaint in this action on September 28, 1983. Further, when Audit Services learned that the levy had been attempted, it requested that the sheriff release any funds received as a result of the levy. Plaintiffs do not dispute these contentions. On September 26, 1983 plaintiffs filed a two-count verified complaint against Audit Services. The second count, requesting injunctive relief, was resolved by stipulation of the parties and is not a subject of this appeal. The first count of the complaint alleged wrongful execu- tion, conversion, abuse of process and invasion of privacy. The complaint further alleged that as a result of defendant's actions, plaintiffs suffered embarrassment, humiliation, mental anguish and damage to their reputation. The complaint alleged that defendant's conduct was outrageous, accompanied by oppression, fraud and malice, and entitles plaintiffs to exemplary damages. On October 14, 1983 Audit Services made a combined motion to dismiss or for summary judgment. Plaintiffs op- posed the motion and moved for summary judgment, but filed no affidavits, electing to rely solely on the allegations of their verified complaint. On January 20, 1984 the District Court issued an order granting summary judgment in favor of Audit Services and denying plaintiffs' motion. The District Court found there were no material fact issues; that under Rule 56 (e), M.R.Civ.P., plaintiffs were not entitled to rely upon the allegations of their complaint; that defendant was not liable for wrongful execution because it did not advise, direct or assist in commission of the wrongful execution, but had merely obtained a writ of execution and sent it to the sher- iff. Plaintiffs appeal. I Did the District Court err in concluding that defendant did not direct the wrongful levy of execution against plaintiffs? Plaintiffs do not dispute the general rule of law relied upon by the District Court, that an execution creditor who advises, directs or assists in a wrongful execution is lia- ble. However, they contend it was erroneously applied by the District Court. Plaintiffs argue that by obtaining the writ and sending it and the praecipe to the sheriff, Audit Servic- es "directed" the wrongful execution within the meaning of the general rule. They contend case law supports a finding of liability on these facts. Thus, they argue, the court erred in granting summary judgment for Audit Services. Defendant emphasizes the general rule relied upon by the District Court, noting that a creditor who obtains a writ of execution presumes no unauthorized action will be taken and is not liable unless he assists, advises, or participates directly in the wrongful aspect of the execution, or subse- quently ratifies the sheriff's actions. Audit Services argues it did not "direct" the wrongful execution within the meaning of the rule. We conclude that the District Court correctly applied the general rule regarding wrongful execution. The rule states: "The liability of an execution creditor for a wrongful levy or sale under an execution does not rest on his causing the writ to be issued and delivered to an officer, but rests on his direction or ratification, or assistance or participation in the commission, of the wrongful act or on his authorization of directions or instructions given by his attorney. "When [the judgment creditor] places his execution in the hands of an officer for service, he is presumed to intend that no action shall be taken thereunder not authorized by the terms of the writ, and, in the absence of ratification, he will not be liable for a wrongful execution of the writ unless he ordered or directed the officer or participated directly or otherwise than by merely causing the issuance of the process and the delivery of it to the officer. However, if it is shown that the execution creditor advised, directed or assisted in, the commission of the unlawful act he will be 1iabl.e with the officer for the injury sustained." 33 C.J.S. Executions section 456 (b) (2). Here, the record is completely devoid of facts suggest- ing that Audit Services in any way participated in or direct- ed the wrongful execution on plaintiffs' bank account. Audit Services lawfully obtained a writ of execution directed against assets of "Mike Foley." Contrary to the directions in the writ of execution and praecipe, levy was made on an account in the names of Michael Irving Foley and Cheryl Denise Fol-ey. The wrongful levy of execution was made with- out any direction or participation by Audit Services. Ca-se law supports the critical distinction between merely obtaining the writ and giving it to the sheriff on the one hand, and actively directing or participating in the wrongful execution on the other hand. Liability is generally premised upon direct participation, such as advising the sheriff to seize certain assets not belonging to the judgment debtor or ratification of the sheriff's wrongful acts. See, e.g., Mica Industries, Ine. v. Penland (N.C. 19591, 107 S.E.2d 120; Pinkston v. Wills (Tex. 1947), 200 s.w.2d 843. None of these elements a.re present here. Plaintiffs nonetheless argue that Audit Services "directed" the wrongful execution here by merely obtaining the writ and sending it to the sheriff, thereby initiating the process whereby plaintiffs were harmed. In Schaub v. Welfare Finance Corporation (Ohio 1939) , 29 N.E.2d 223, the creditor of the husband obtained a writ and delivered it to the sheriff, who levied on the wife1s property. Under Ohio law, her property could not be seized to satisfy her hus- band's debt. The appellate court reversed the trial court's entry of a directed verdict in the creditor's favor. Howev- er, in Schaub, the creditor's attorney told the sheriff to levy on specific property whicli belonged to the wife. 29 N. E. 2d at 224. Schaub is therefore factually distinguishable from the present case. Moreover, as the general rule regard- ing wrongful execution liability provides, liability does not rest on merely causing the writ to be issued and delivered to an officer. We hold the District Court correctly concluded that defendant Audit Services did not direct the the wrongful levy of execution against plaintiffs. PI-aintiffs also argue that Audit Services is liable under a conversion theory through an agency rel-ationshipwith the sheriff. We disagree. A sheriff is not a cred.itorf s agent with respect to unlawful acts. 70 Am. Jur. 2d sheriffs, Pol-ice, and Constables section 1. Moreover, if the creditor authorized the unlawful act, the creditor would be liable in its own capacity for wrongful execution. We hold that the District Court properly granted summary judgment in favor of Audit Services on the issue of liability for wrongful execution on plaintiffs1 bank account. Having concluded that the District Court properly grant- ed summary judgment on the liablity issue, we find it unnecessary to address the second issue regarding plaintiffs' punitive damages claim. The District Court's jud.gment is affirmed. We concur:	{ "pile_set_name": "FreeLaw" }
79 Ariz. 191 (1955) 286 P.2d 195 Oscar KELSEY, Petitioner, v. The INDUSTRIAL COMMISSION of Arizona, and B.F. Hill, F.A. Nathan and A.R. Kleindienst, members thereof; and Minard-Kennison Realty and Construction Company, Inc., Respondents. No. 6045. Supreme Court of Arizona. July 12, 1955. 193 H.S. McCluskey, Phoenix, for petitioner. John R. Franks, Phoenix, Donald J. Morgan, Robert K. Park, Phoenix, and John F. Mills, Prescott, of counsel, for respondent Industrial Commission. UDALL, Justice. Petitioner, Oscar Kelsey (a man 53 years of age), while in the employ of Minard-Kennison Realty and Construction Co., Inc., was injured by an accident admittedly arising out of and in the course of his employment, which it was later found resulted in a permanent partial disability. The Commission assumed jurisdiction and by an order dated August 18, 1952, found the claim to be compensable. The petitioner being wholly dissatisfied with the awards thereafter made has by certiorari attempted to bring the whole matter before us for review. Respondent, the Industrial Commission of Arizona, appears as the insurance carrier. There was no appearance by the employer. Petitioner, following his trade as a carpenter, went to work for the above-named employer on July 21, 1952. The next morning he was assigned to work on a roof where he was engaged in receiving sheeting lumber being handed up from below when he "slipped on sawdust on roof and fell to ground, landing on both heels". The fall was from a height of about eight feet. He was immediately hospitalized and X-rays showed bilateral fractures of the os calcis (calcaneus or heel bone) of both feet. After a two and one-half month stay in the hospital he was discharged therefrom on October 7, 1952, but still remained under doctor's care. Later, in March 1953, petitioner was re-hospitalized for a few days where a urinary disorder claimed to have been caused by the original fall was investigated fully. At all times the petitioner has had the best of medical care (he was treated or examined by at least a half dozen doctors during this two and one-half year period) and has received the accident benefits prescribed by law. Rarely in a workmen's compensation case have we been confronted with such a voluminous record as is here presented. After petitioner employed counsel on March 5, 1953, procedurally speaking a legal marathon ensued. In all, a half dozen or more petitions for hearing or rehearing were filed; five formal hearings were held, the reporter's transcript thereof comprising some 427 pages; 91 documents, in addition to exhibits and transcripts, were certified over to us; and some six formal findings and awards were made. It would only create confusion and leave the reader in a haze for us to recite the various steps taken 194 or attempt to summarize the evidence adduced. As to wage scale the Commission in the first instance determined that petitioner's earning capacity during the year preceding the accident (he had worked only one full day for this employer) averaged $145.80 monthly and for a time he was erroneously compensated for temporary total disability upon this basis. Thereafter the Commission, following the method approved in the case of Steward v. Industrial Comm., 69 Ariz. 159, 211 P.2d 217, used the average wage pattern of three other carpenters employed by this employer as is provided for by section 56-952, A.C.A. 1939 to determine that petitioner's average monthly wage was $397.76. The total temporary and partial temporary disability compensation was adjusted accordingly for the period July 23, 1952, to July 30, 1953. This aggregated the sum of $3,208.19, all of which has been paid. The same wage base was used in making the final award; however, petitioner stoutly maintains his monthly wage scale should have been fixed at $435.60. A medical consulting board consisting of Doctors L.L. Stolfa, R.S. Haines, Joseph Bank and James R. Moore, on April 24, 1953, made a unanimous report to the Commission that in their opinion the petitioner's condition had become stationary and that he had sustained a 15% permanent physical functional disability. Furthermore they stated: "His upper extremities function normally. His back is flexible, having an excellent range of motion. There is no back deformity present. * * * * * * * * * "From a very careful review of this case and the consideration of the history, all of the information contained in the various reports on file, and the findings on examination we are of the opinion that the urinary condition described is not a result of any injury sustained in the accident in question. Furthermore, we are of the opinion that the spells of dizziness, weakness and fainting which he described are not attributable to the accident in question." The Commission by its award dated May 20, 1953, in effect adopted as a part of its findings the doctors' consultation report covering all of the above matters. In fairness it should be stated there was a slight conflict in the evidence on these matters. Petition for rehearing was filed and on December 18, 1953, the Commission reaffirmed its order of May 20, 1953. Petitioner contends that these findings of the Commission relating to his average monthly wage, the stationary condition of his disability, and the lack of causal connection between the accident and 195 the claimed kidney disorder are erroneous. As stated, all these matters are encompassed within the findings and award reaffirmed on December 18, 1953. A petition for rehearing of this award was filed and subsequently withdrawn, and no appeal by certiorari was prosecuted to this court therefrom, as is provided by section 56-972, A.C.A. 1939, although this was specified in the award as being petitioner's remedy. Under these circumstances this award has become final, and the findings of the Commission on these matters are res judicata and binding on petitioner and the Commission alike. Ellison v. Industrial Commission, 75 Ariz. 374, 257 P.2d 391; Beutler v. Industrial Commission, 67 Ariz. 72, 190 P.2d 918; Stephens v. Miami Copper Co., 59 Ariz. 528, 130 P.2d 507. The principal assignments of error go to the Commission's determination of petitioner's loss of earning capacity. When it made the second award dated May 20, 1953, the Commission recognized that there was then no competent evidence before it on which to base findings for loss of future earnings, hence it directed the petitioner to seek light work for a short period and deferred making a permanent award until later. Petitioner thereafter made periodic reports as to his earnings and by a fourth award dated April 6, 1954, the Commission found: "11. That applicant's work record since his condition became stationary does not truly represent his ability to earn and is not indicative of his true loss of earning capacity." Other hearings were held and at one of them the petitioner, when questioned concerning the type of work he could do, stated that he was a handy man and he thought he was physically able to perform "maintenance work" or other similar labor which did not require too strenuous physical exertion, or standing on his feet for prolonged periods of time. The Commission, in order to establish petitioner's earning capacity, held a hearing at which the managers of three office buildings in Phoenix were called to testify as to wages paid their "maintenance men". These wages were averaged out and the Commission in its fifth award found that petitioner had "sustained a 32.35% loss of earning capacity, in that he is now able to earn the sum of $269.08 per month." Using this factor and the average monthly wage of $397.76 theretofore established it was determined that he was entitled to an award for an unscheduled permanent partial disability in the sum of $70.77 per month. The award recites that the Commission gave due consideration to all the factors enumerated in section 56-957, A.C.A. 1939, as construed in the cases of Hoffman v. Brophy, 61 Ariz. 307, 149 P.2d 160; Eagle Indemnity Co. v. Hadley, 70 Ariz. 179, 218 P.2d 488; Schnatzmeyer v. Industrial Commission, 77 Ariz. 266, 270 P.2d 794, 795. It appears from the record that this finding of the 196 Commission is supported by competent evidence, and under well-recognized principles will not be disturbed by this court on appeal. Petitioner further contends that because he is unable to find regular employment he was then and is now permanently and totally disabled within the meaning of the law. This proposition permeates the entire record. In the Schnatzmeyer case, supra, this same contention was made. We there said: "Clearly, from the evidence, petitioner is incapacitated from following his former line of work as a carpenter but is capable of performing light work if the same were available. Consequently, if compensation is to be allowed on a basis of inability to secure employment he is capable of performing, the Commission must find as a fact that his failure to find work is caused by his injuries. * * * The cause of unemployment is necessarily an inference to be drawn from all the facts and circumstances bearing on that issue * * ." (Emphasis supplied.) In the instant case, we are unable to say from the record before us that the Commission was legally required to infer that petitioner's inability to secure employment was caused by his physical disability resulting from the accident. As we stated in the case of Davidson v. Industrial Commission, 72 Ariz. 314, 235 P.2d 1007, 1009: "The mere showing that a claimant has not returned to work is not proof of the fact that he cannot work because of a physical disability arising out of an industrial accident." We hold the Commission did not err in refusing to make an award to petitioner based upon a permanent total disability. Petitioner claims the Commission erred in not permitting him to testify as to what medical advice was orally given him at Mayo Clinic concerning his condition. It is well settled that the Commission, under section 56-973, A.C.A. 1939, has wide latitude in the admission of evidence, including hearsay. Young v. Hodgman & Mac Vicar, 42 Ariz. 370, 26 P.2d 355; Ocean A. & G. Corp. v. Industrial Comm., 34 Ariz. 175, 269 P. 77. However, in the case of Gomez v. Industrial Comm., 72 Ariz. 265, 233 P.2d 827, 828, we stated: " * * The commission must * * provide proper safeguards for the purpose of ascertaining the substantial rights of the parties and carrying out the spirit of the Act, in the admission of testimony, including hearsay." (Emphasis supplied.) We are of the opinion that the Commission in the instant case properly excluded the 197 proffered testimony. It accepted letters and a report of the Mayo Clinic roentologist on the matter. Petitioner's testimony was selfserving hearsay of little probative value, and could not possibly have been rebutted. There were no proper safeguards supporting its validity, and there was, therefore, no error in refusing it. Finally it is contended the Commission erred in failing, in the final award, to fix an attorneys' fee in accordance with Laws '53, ch. 112, sec. 1 (now appearing as section 56-972a, 1954 Cum.Supp. to A.C.A. 1939). This section provides: " * * In all cases coming before the commission in which attorneys have been employed by the claimant and have rendered services reasonably necessary to the processing of the claim, the commission shall, upon application of the attorney or the claimant, fix a reasonable attorneys' fee to be paid to the attorney for such services and shall provide for the payment thereof out of the award, in installments or otherwise, as the commission shall determine to be proper in the light of the award made, and shall further provide for the payment of such attorneys' fee direct to the attorney and shall charge the amount of such payment or payments against the award made to the claimant." (Emphasis supplied.) This salutary enactment enables the injured workman to obtain such legal services as may be "reasonably necessary to the processing of [his] claim," and provides compensation for the attorney to be deducted from the award made to petitioner. Under its provisions the Commission, upon application therefor, is required to fix a reasonable fee for services "reasonably necessary" and provide for payment of same to the attorney if he has performed such legal services, although the act does not specify when this fee is to be determined. The Commission, therefore, under its quasi-judicial powers must take such action as will comply with the provisions of this statute. The Commission states in its brief that it has been its practice since enactment of this law to fix the required fee by a "supplemental order" when the award has become final or upon determination of any appeal that might be prosecuted. Petitioner challenges its legal right to do this. In the instant case a motion to fix attorney's fee was filed December 6, 1954. The final award was not entered until two months thereafter, but no provision for an attorney's fee was included therein. The Commission contends determination of an attorney's fee while an appeal is pending is premature, and state they will fix such fee when the appellate proceedings have been completed. 198 This raises some very interesting and important questions which are matters of first impression. Unfortunately on this review, as we see it, we do not have jurisdiction to pass upon them. It is to be noted that as regards attorneys' fees the complaint made is not directed to any action taken by the Commission, but to its inaction, i.e., failure to fix a fee. Mandamus might lie to force such action but certainly under the circumscribed right of review granted by the legislature we have no right in these certiorari proceedings to require the Commission to take affirmative action. The statutory provision for appeal is section 56-972, A.C.A. 1939, which reads in part: " * * The review shall be limited to determining whether or not the commission acted without or in excess of its powers; and, if findings of fact were made, whether or not such findings of fact support the award under review. If necessary the court may review the evidence. * * *" (Emphasis supplied.) It seems obvious that in the instant case the Commission has not acted "without or in excess of its powers". An interpretation of this attorneys' fee statute must necessarily await a review or appeal when such a matter is properly before us. We think it unnecessary to discuss petitioner's remaining assignments of error. Suffice it to say that all of these have been carefully considered and found to be without merit. It appears the Commission painstakingly investigated every facet of petitioner's claim and we hold its action was in accord with the law and the evidence. If in the future there is a change for the worse in the physical condition of petitioner's feet, the law gives him the right to petition for a reopening of the matter. Nevitt v. Industrial Commission, 70 Ariz. 172, 217 P.2d 1039. Award affirmed. LA PRADE, C.J., and WINDES, PHELPS, and STRUCKMEYER, Jr., JJ., concurring.	{ "pile_set_name": "FreeLaw" }
398 So.2d 686 (1981) Ex parte Christopher P. DEVINE. (Re: Christopher P. DEVINE v. Alice Beth Clark DEVINE). 79-546. Supreme Court of Alabama. March 27, 1981. William Henry Agee of Agee & Ghee, Anniston, for petitioner. J. Todd Caldwell, Anniston, for respondent. MADDOX, Justice. We granted certiorari to review the question of whether the "tender years presumption," as applied in child custody proceedings, violates the Fourteenth Amendment to the United States Constitution. In the present case, the Court of Civil Appeals affirmed the trial court's usage of that presumption in awarding custody of the parties' two minor children to the respondent, Alice Beth Clark Devine. For the reasons hereinafter set forth, we reverse and remand. I Pursuant to Rule 10(e) of the Alabama Rules of Appellate Procedure, the petitioner/father (appellant below) and respondent/mother (appellee below) filed the following stipulations of fact to serve in lieu of the record on appeal: and the Appellee, Alice Beth Clark Devine, (being the only parties in this cause) were legally and lawfully married on December 17, 1966, in Jefferson County, Georgia, and separated in Calhoun County, Alabama, on March 29, 1979. (2) The two children born of the parties during their marriage, viz: Matthew Patrick Devine, a son, born June 29, 1972, and Timothy Clark Devine, a son, born June 25, 1975, (the custody as to both of whom the Court has awarded to Alice Beth Clark Devine) are children of "tender years" as contemplated by the "tender years" doctrine or presumption. 687 (3) The Appellee/natural mother Alice Beth Clark Devine (hereinafter sometimes referred to as "Mrs. Devine") graduated from the Woman's College of Georgia in Milledgeville, Georgia, in 1962, receiving a B. S. degree with a major in Business Administration and a minor in Business Education. Since her graduation in 1962, Mrs. Devine has taught high school for 2 years at Margaret McAvoy High in Macon, Georgia; worked at the Georgia Rehabilitation Center for at least 2 years; was an instructor at the Augusta Area Technical School in Georgia for 2 years; was an instructortrainer with the Army at Fort Gordon, Georgia for approximately 2 years; taught in high school at Notasulga, Alabama for one year; directed a media library and taught classes for the Department of Rehabilitation at Auburn University for approximately 2 years; in 1975 commenced employment with the U. S. Army at Fort McClellan, Alabama, where she was employed continuously through the time of the trial of this cause as an Educational Specialist with a GS-11 rating earning in excess of $20,000 annually as salary (plus additional fringe benefits), and at the time of the trial Mrs. Devine indicated that she intended to remain employed at Fort McClellan or at some similar employment after the trial. (4) Mrs. Devine was born July 20, 1940 and was 38 years of age at the time of the trial of this cause. The Appellant/natural father, Christopher P. Devine was born on January 15, 1937, and at the time of the trial of this cause he was a member of the faculty and head of the Guidance and Counseling Department at Jacksonville State University, Jacksonville, Alabama. At the time of the trial, the older son had just completed the first grade at the said University's Elementary Laboratory School and the younger son was enrolled in the said University's Nursery Laboratory School. (5) The parties further adopt all findings of facts as set forth by the trial court in its judgment of divorce dated July 6, 1979, in its order dated September 6, 1979, and in its order dated October 17, 1979, and incorporate same herein by reference. The September 6th order referred to in stipulation number 5 was rendered by the trial court in response to the father's initial post trial motion requesting the trial court to modify its custody award. In that order the trial court offered the following justification for its decision: The facts of this case clearly show that either plaintiff or defendant would be a fit and proper person to be vested with the care, custody and control of the parties' minor children. While there was evidence presented at trial which raised questions in the mind of the court as to each parent's suitability, none presented was of such magnitude that it showed either to be unfit. Likewise, evidence was presented to the court showing that each parent possessed certain positive qualities that should be considered in determining which of them would be the proper one to be awarded custody. At the conclusion of the case, there did not exist a clear preponderance of the evidence for either party regarding child custody. However, there exists in Alabama law a presumption that when dealing with children of tender years, the natural mother is presumed, in absence of evidence to the contrary, to be the proper person to be vested with custody of such children. This presumption, while perhaps weaker now than in the past, remains quite viable today. See e. g. Thompson v. Thompson, 57 Ala.App. 57, 326 So.2d 124 (1975), cert. den. 295 Ala. 425, 326 So.2d 129 (1976); Taylor v. Taylor, 372 So.2d 337 (Ala.Civ.App.1979), cert. den. 372 So.2d 341 (Ala.1979). Based upon the evidence presented at trial, the presumption of fitness discussed above and the court's opinion that it was in the children's best interest that they be in the custody of their mother, custody was placed subject to plaintiff's liberal visitation rights. On October 17, 1979, in response to the father's second post trial motion, the trial 688 court reaffirmed its position concerning the relative parental suitability of the parties: The facts of this case make it obvious that either of the parties would be fit and proper to be awarded the general care, custody, and control of the minor children born of their marriage. They both have individual shortcomings; however, neither possesses adverse qualities of a nature or character sufficient to make either an unfit parent. The sole issue presented for review is whether the trial court's reliance on the tender years presumption deprived the father of his constitutional entitlement to the equal protection of the law. In resolving this issue, we feel it is necessary to consider the historical development of the tender years presumption and re-examine its modern efficacy in light of recent pronouncements by the United States Supreme Court. II At common law, it was the father rather than the mother who held a virtual absolute right to the custody of their minor children.[1] This rule of law was fostered, in part, by feudalistic notions concerning the "natural" responsibilities of the husband at common law. The husband was considered the head or master of his family, and, as such, responsible for the care, maintenance, education and religious training of his children. By virtue of these responsibilities, the husband was given a corresponding entitlement to the benefits of his children, i. e., their services and association. It is interesting to note that in many instances these rights and privileges were considered dependent upon the recognized laws of nature and in accordance with the presumption that the father could best provide for the necessities of his children: Undoubtedly, the father has primarily, by law as by nature, the right to the custody of his children. This right is not given him solely for his own gratification, but because nature and the law ratifying nature assume that the author of their being feels for them a tenderness which will secure their happiness more certainly than any other tie on earth. Because he is the father, the presumption naturally and legally is that he will love them most, and care for them most wisely. And, as a consequence of this, it is presumed to be for the real interest of the child that it should be in the custody of its father, as against collateral relatives, and he, therefore, who seeks to withhold the custody against the natural and legal presumption, has the burden of showing clearly that the father is an unsuitable person to have the custody of his child. Hibbette v. Baines, 78 Miss. 695, 29 So. 80 (1900). As Chief Justice Sharkey more eloquently stated in his dissenting opinion in Foster v. Alston, 7 Miss. (6 How.) 406, 463 (1842): We are informed by the first elementary books we read, that the authority of the father is superior to that of the mother. It is the doctrine of all civilized nations. It is according to the revealed law and the law of nature, and it prevails even with the wandering savage, who has received none of the lights of civilization. By contrast, the wife was without any rights to the care and custody of her minor children. By marriage, husband and wife became one person with the legal identity of the woman being totally merged with that of her husband. As a result, her rights were often subordinated to those of her husband and she was laden with numerous marital disabilities. As far as any custodial rights were concerned, Blackstone stated 689 the law to be that the mother was "entitled to no power [over her children], but only to reverence and respect." 1 W. Blackstone, Commentaries on the Law of England 453 (Tucker ed. 1803). By the middle of the 19th century, the courts of England began to question and qualify the paternal preference rule. This was due, in part, to the "hardships, not to say cruelty, inflicted upon unoffending mothers by a state of law which took little account of their claims or feelings." W. Forsyth, A Treatise on the Law Relating to the Custody of Infants in Cases of Difference Between Parents or Guardians 66 (1850). Courts reacted by taking a more moderate stance concerning child custody, a stance which conditioned a father's absolute custodial rights upon his fitness as a parent. Ultimately, by a series of statutes culminating with Justice Talfourd's Act, 2 and 3 Vict. c. 54 (1839), Parliament affirmatively extended the rights of mothers, especially as concerned the custody of young children. Justice Talfourd's Act expressly provided that the chancery courts, in cases of divorce and separation, could award the custody of minor children to the mother if the children were less than seven years old. This statute marks the origin of the tender years presumption in England. In the United States the origin of the tender years presumption is attributed to the 1830 Maryland decision of Helms v. Franciscus, 2 Bland Ch. (Md.) 544 (1830). In Helms, the court, while recognizing the general rights of the father, stated that it would violate the laws of nature to "snatch" an infant from the care of its mother: The father is the rightful and legal guardian of all his infant children; and in general, no court can take from him the custody and control of them, thrown upon him by the law, not for his gratification, but on account of his duties, and place them against his will in the hands even of his wife.... Yet even a court of common law will not go so far as to hold nature in contempt, and snatch helpless, puling infancy from the bosom of an affectionate mother, and place it in the coarse hands of the father. The mother is the softest and safest nurse of infancy, and with her it will be left in opposition to this general right of the father. Thus began a "process of evolution, perhaps reflecting a change in social attitudes, [whereby] the mother came to be the preferred custodian of young children and daughters...." Foster, Life with Father: 1978, 11 Fam.L.Q. 327 (1978). In Alabama, the first noticeable discussion of the tender years presumption appears in the case of Cornelius v. Cornelius, 31 Ala. 479 (1858). In that case, the court awarded custody of a young male child to the mother because the father was found to be guilty of certain "fixed intemperate habits"; however, the court qualified its decision by stating that the father could later recover the custody of his child by presenting credible evidence that he had reformed. The court at 31 Ala. 482 reasoned as follows: There would be much difficulty in laying down an absolute rule, fixing a period when the custody of a male child should be taken from the mother and given to the father. If all parents were alike suitable, possibly we might do so. As we before remarked, a father or mother who is every way qualified for the trust at one time, may be wholly unfit at another. Where there is no unfitness in the mother, evidently the child should remain with her, until he has reached an age when he can dispense with those tender offices which only a mother can bestow. At what particular age that period will arrive, we will not undertake at this time to determine. On the other hand, if one parent be a suitable custodian of the child, and the other not, and this suitableness of the one and unfitness of the other continue, the child should be put under the care of the one who is suitable, and no change should be afterwards made. [Emphasis supplied.] While recognizing a need for young children to remain in the custody of their mother, the court was not prepared to totally 690 deny the father's "natural rights." The court was apparently as concerned, if not more concerned, with the unfitness of the father as with the tender age of the child. The attitude expressed in Cornelius was not readily accepted. Alabama courts continued to award custody to the father, even in cases involving very young children. In Bryan v. Bryan, 34 Ala. 516 (1859), for example, the court awarded the custody of a two-year-old boy and a four-year-old girl to the father; however, in doing so, the court admitted its reluctance to take young children from their mother. At 34 Ala. 521-522 the court stated: [W]e would have been extremely reluctant at the commencement of this suit to have withheld our sanction to the protection of the mother in the custody of the children, because at that time one of them was an infant of ten months at the breast, and the other a girl only three years of age. But now the period of lactation with the younger child has passed, and two years have been added to the ages of the children; and it is not now impossible for the father to discharge the duties of nurture and care, in which he will be aided by his mother. Taking into consideration the fact that the defendant is not shown to be of such character, or to have such habits as would necessarily contaminate the children, or render them unsafe in his custody, and the strong favor with which the law regards the father's prior right to the custody of his children, and the unauthorized state of separation from her husband in which the petitioner has placed herself, and her want of any peculiar fitness for the custody and care of the children, and also that the children have passed the age when the mother's care, though valuable and desirable, is indispensable, we deem it our duty to withhold any active interference in behalf of the wife's exclusive custody and control of the children. In Bryan, the age of the children was clearly a significant factor in the court's decision, although the court did mention the mother's "want of any peculiar fitness for the custody and care of the children." The next major event which promoted the establishment of the tender years presumption in Alabama occurred when the legislature passed an act which affected custodial rights of parents. In both Cornelius and Bryan the court had acted pursuant to a statute which authorized the chancery courts, in cases of divorce, to award the custody of minor children to either the father or the mother. Code of 1852, § 1977. Although the statute then in force appeared to place the mother and father on equal footing, the courts generally respected the common law rule concerning the father's priority rights. On April 23, 1873, the Alabama Legislature passed an act to further define the custodial rights of fathers. 1872-73 Ala.Acts, Act No. 79. That act provided: That from and after the passage of this act, any father legally married to the mother of his child or children, shall be entitled to the custody of such child or children, in case such father is abandoned by the mother of such child or children, as soon as such child or children shall have attained the age of seven years; Provided, Such father is a suitable person to have the charge of such child or children. This statute shall be liberally construed. Admittedly, the statute applied to a very narrow category of cases, viz., those cases in which a wife had voluntarily abandoned her husband. Nevertheless, the new act established a rule that, even in those fact situations clearly justifying an award of custody to the father, the father would not be entitled to the custody of his minor children until they were seven years old. In construing this language in Thomas v. Thomas, 212 Ala. 85, 101 So. 738 (1924), this Court stated: This provision is a recognition of the fact that during the very tender years of the child the husband has not an unqualified right to its custody, even when the wife is at fault in the separation. Mothering of a young child is one of its rights. None but the real mother can meet this high duty in full measure. 691 As late as 1946, this Court continued to recognize the paternal preference rule. Brown v. Jenks, 247 Ala. 596, 25 So.2d 439 (1946); however, by that time the rule was no longer a formidable factor in resolving child custody disputes. The influence of the paternal preference rule had been gradually replaced by a growing adherence to the tender years presumption. At the present time, the tender years presumption is recognized in Alabama as a rebuttable factual presumption based upon the inherent suitability of the mother to care for and nurture young children. All things being equal, the mother is presumed to be best fitted to guide and care for children of tender years.[2]Statham v. Statham, 276 Ala. 675, 166 So.2d 403 (1964); Clift v. Clift, 346 So.2d 429 (Ala.Civ.App. 1977). To rebut this presumption the father must present clear and convincing evidence of the mother's positive unfitness. McGregor v. McGregor, 257 Ala. 232, 58 So.2d 457 (1952); Thompson v. Thompson, 57 Ala.App. 57, 326 So.2d 124 (1975). Thus, the tender years presumption affects the resolution of child custody disputes on both a substantive and procedural level. Substantively, it requires the court to award custody of young children to the mother when the parties, as in the present case, are equally fit parents. Procedurally, it imposes an evidentiary burden on the father to prove the positive unfitness of the mother. In recent years, the tender years doctrine has been severely criticized by legal commentators as an outmoded means of resolving child custody disputes. Several state courts have chosen to abandon or abolish the doctrine, noting that the presumption "facilitates error in an arena in which there is little room for error." Bazemore v. Davis, 394 A.2d 1377 (D.C.1978); accord, Burks v. Burks, 564 P.2d 71 (Alaska 1977); In re Marriage of Bowen, 219 N.W.2d 683 (Iowa 1974); McAndrew v. McAndrew, 39 Md. App. 1, 382 A.2d 1081 (1978); Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977). Only one court has expressly declared the presumption unconstitutional. State ex rel. Watts v. Watts, 77 Misc.2d 178, 350 N.Y.S.2d 285 (1973). Nevertheless, some form of the presumption remains in effect in at least twenty-two states.[3] In twenty states the doctrine has been expressly abolished by statute or court decision,[4] and in four other states its existence is extremely questionable.[5] In four states the presumption remains in effect despite a state's equal rights amendment or statutory language to the contrary.[6] As far as Alabama is concerned, the trial court correctly noted that the presumption, "while perhaps weaker now than in the past, remains quite viable today." It is safe to say that the courts of this state, like the courts of sister states, have come full circle in resolving the difficult questions surrounding child custody. At common law, courts spoke of the natural rights of the father. Now they speak of the instinctive role of the mother. 692 The question we are confronted with is not dissimilar to the question confronting the English courts over 150 years ago: Is it proper to deny a parent the custody of his or her children on the basis of a presumption concerning the relative parental suitability of the parties? More specifically, can the tender years presumption withstand judicial scrutiny under the Fourteenth Amendment to the United States Constitution as construed in recent decisions by the Supreme Court of the United States? III The appellate courts of this state have held that the tender years presumption is "not a classification based upon gender, but merely a factual presumption based upon the historic role of the mother," Hammac v. Hammac, 246 Ala. 111, 19 So.2d 392 (1944). These statements indicate that the courts in the forties had not developed the sensitivity to gender-based classifications which the courts by the seventies had developed. In Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), the United States Supreme Court held that any statutory scheme which imposes obligations on husbands, but not on wives, establishes a classification based upon sex which is subject to scrutiny under the Fourteenth Amendment. The same must also be true for a legal presumption which imposes evidentiary burdens on fathers, but not on mothers. The fact that the presumption discriminates against men rather than women does not protect it from judicial scrutiny. Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), represents the first in a series of cases wherein the United States Supreme Court has considered the constitutionality of statutory classifications which discriminated between men and women on the basis of sex. In Reed the Court examined a mandatory provision of the Idaho probate code giving a preference to men over women when persons of equal entitlement applied for appointment as administrator of a decedent's estate. Under the facts of that case the law gave preference to the father, rather than the mother, for appointment as administrator of a child's estate. At the very outset of the opinion the Court expressed its concern over the fact that no attempt was made to determine the relative capabilities of the parties to perform the functions incident to the administration of an estate. 404 U.S. at 73, 92 S.Ct. at 252. The statute was intended to relieve the probate court of a difficult decision when two or more persons, equally entitled, sought letters of administration. The Court reasoned that: To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment; and whatever may be said as to the positive values of avoiding intrafamily controversy, the choice in this context may not lawfully be mandated solely on the basis of sex. 404 U.S. at 76-77, 92 S.Ct. at 254. Two years later in Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), the Court relied on Reed in striking down a federal statutory scheme which extended a "presumption of dependency" in case of spouses of male members of the uniformed services, but not to spouses of female members. This presumption permitted a male member to claim his wife as a "dependent" without regard to whether she was, in fact, dependent upon him for any part of her support. A female member, on the other hand, could not claim her husband as a "dependent" unless he was, in fact, dependent upon her for over one-half of his support. Thus, as a procedural matter, a female member was required to demonstrate her spouse's dependency, while no such burden was imposed upon male members. As in Reed, the Court questioned the underlying purpose of the statute and, in doing so, alluded to the lower court's speculative analysis: 693 Although the legislative history of these statutes sheds virtually no light on the purposes underlying the differential treatment accorded male and female members, a majority of the three-judge District Court surmised that Congress might reasonably have concluded that, since the husband in our society is generally the "breadwinner" in the family and the wife typically the "dependent" partner"it would be more economical to require married female members claiming husbands to prove actual dependency than to extend the presumption of dependency to such members." [Frontiero v. Laird] 341 F.Supp. [201], at 207. Indeed, given the fact that approximately 99% of all members of the uniformed services are male, the District Court speculated that such differential treatment might conceivably lead to a "considerable saving of administrative expense and manpower." Moreover, the government maintained that, as an empirical matter, wives in our society frequently are dependent upon their husbands while husbands rarely are dependent upon their wives. Thus, the government argued that Congress might reasonably have concluded that it would be both cheaper and easier to conclusively presume that wives of male members are financially dependent upon their husbands, while burdening female members with the task of establishing dependency in fact. In considering these rational explanations of the statutory scheme, the Court cited Reed for the proposition that classifications based upon sex, like classifications based upon race, are inherently suspect and must therefore be subjected to close judicial scrutiny. 411 U.S. at 682, 93 S.Ct. at 1768. Additionally, the Court expanded the reasoning used in Reed by considering, in a general fashion, the constitutionality of statutes which distinguish between males and females on the basis of "old notions," notions based upon stereotyped distinctions between the sexes. At 411 U.S. at 686, 93 S.Ct. at 1770, the Court reasoned that: [S]ince sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate "the basic concept of our system that legal burdens should bear some relationship to individual responsibility ...." Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175 [92 S.Ct. 1400, 1406, 31 L.Ed.2d 768] (1972). And what differentiates sex from such nonsuspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members. In closing, the Court concluded that: [O]ur prior decisions make clear that, although efficacious administration of governmental programs is not without some importance, "the Constitution recognizes higher values than speed and efficiency." Stanley v. Illinois, 405 U.S. 645, 656 [92 S.Ct. 1208, 1215, 31 L.Ed.2d 551] (1972). And when we enter the realm of "strict judicial scrutiny," there can be no doubt that "administrative convenience" is not a shibboleth, the mere recitation of which dictates constitutionality. See Shapiro v. Thompson, 394 U.S. 618 [89 S.Ct. 1322, 22 L.Ed.2d 600] (1969); Carrington v. Rash, 380 U.S. 89 [85 S.Ct. 775, 13 L.Ed.2d 675] (1965). On the contrary, any statutory scheme which draws a sharp line between the sexes, solely, for the purpose of achieving administrative convenience, necessarily commands "dissimilar treatment for men and women who are ... similarly situated," and therefore involves the "very kind of arbitrary legislative choice forbidden by the [Constitution]...." Reed v. Reed, 404 U.S., at 77, 76 [92 S.Ct., at 254]. 411 U.S. at 690, 93 S.Ct. at 1772. In subsequent decisions relying on Reed and Frontiero, the court reaffirmed and 694 expanded its equal protection analysis. Orr v. Orr, supra; Craig v. Boren, supra; Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975). In Craig, for example, the Court considered the constitutionality of certain Oklahoma statutes which prohibited the sale of "nonintoxicating" 3.2% beer to males under the age of twenty-one and females under the age of eighteen. The Court concluded that the gender-based differential violated the Fourteenth Amendment and reasoned as follows: Reed v. Reed has ... provided the underpinning for decisions that have invalidated statutes employing gender as an inaccurate proxy for other, more germane bases of classification. Hence, "archaic and overbroad" generalizations, Schlesinger v. Ballard, supra [419 U.S. 498] at 508, [95 S.Ct. 572, 577], concerning the financial position of servicewomen, Frontiero v. Richardson, supra [411 U.S.], at 689 n.23 [93 S.Ct., at 1772 n.23], and working women, Weinberger v. Wiesenfeld, 420 U.S. 636, 643 [95 S.Ct. 1225, 1230, 43 L.Ed.2d 514] (1975), could not justify use of a gender line in determining eligibility for certain governmental entitlements. Similarly, increasingly outdated misconceptions concerning the role of females in the home rather than in the "marketplace and world of ideas" were rejected as loose-fitting characterizations incapable of supporting state statutory schemes that were premised upon their accuracy. Stanton v. Stanton, supra; Taylor v. Louisiana, 419 U.S. 522, 535 n.17 [95 S.Ct. 692, 700 n.17, 42 L.Ed.2d 690] (1975). In light of the weak congruence between gender and the characteristic or trait that gender purported to represent, it was necessary that the legislatures choose either to realign their substantive laws in a gender-neutral fashion or to adopt procedures for identifying those instances where the sex-centered generalization actually comported with fact. See e. g., Stanley v. Illinois, supra [405 U.S.], at 648 [92 S.Ct., at 1211], cf. Cleveland Board of Education v. LaFleur, 414 U.S. 632, 650 [94 S.Ct. 791, 801, 39 L.Ed.2d 52] (1974). Likewise, in Orr the Court declared unconstitutional an Alabama statutory scheme imposing alimony obligations on husbands but not wives. In very terse language, the Court commented on statutes which reinforce the concept of the sexual stereotype: Legislative classifications which distribute benefits and burdens on the basis of gender carry the inherent risk of reinforcing stereotypes about the "proper place" of women and their need for special protection. Cf. United Jewish Organizations v. Carey, 430 U.S. 144, 173-174 [97 S.Ct. 996, 1013, 51 L.Ed.2d 229] (1977) (opinion concurring in part). Thus, even statutes purportedly designed to compensate for and ameliorate the effects of past discrimination must be carefully tailored. Where, as here, the State's compensatory and ameliorative purposes are as well served by a gender-neutral classification as one that gender classifies and therefore carries with it the baggage of sexual stereotypes, the State cannot be permitted to classify on the basis of sex. 440 U.S. at 283, 99 S.Ct. at 1113. Reed, Frontiero and Orr are particularly significant cases insofar as they scrutinize gender-based classifications involving husbands and wives. In Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979), the Court considered a similar issue regarding gender-based distinctions involving fathers and mothers.[7] In Caban, the appellant, Abdiel Caban, challenged the constitutionality of § 111 of the New York Domestic Relations Law which permitted 695 an unwed mother, but not an unwed father, to block the adoption of their minor child simply by withholding consent. Caban lived with appellee, Maria Mohammed, for approximately five years, during which time Mohammed gave birth to two children. Caban was identified as the father on each child's birth certificate and, together with Mohammed, he contributed to the support of the children. Mohammed eventually took the two children and left Caban to take up residence with Kazin Mohammed whom she subsequently married. Even after the separation, Caban continued to visit and communicate with his children. In a subsequent dispute over the custody of the children, a New York Family Court placed the children in the temporary custody of the Mohammeds and gave Caban and his new wife liberal visitation rights. Approximately one year later the Mohammeds filed a petition seeking to adopt the two children. The Cabans immediately cross-petitioned for adoption. Relying on § 111, the New York court granted the Mohammeds' petition, allowing the Cabans to present evidence only insofar as it reflected upon the Mohammeds' qualifications as prospective parents. On appeal to the United States Supreme Court Caban asserted that the distinction drawn under New York law between the adoption rights of unwed fathers and unwed mothers violated the Equal Protection Clause of the Fourteenth Amendment. The Court agreed, rejecting the mother's argument that the distinction was justified by a fundamental difference between maternal and paternal relations. At 441 U.S. 389, 99 S.Ct. 1766 the Court reasoned as follows: Contrary to appellees' argument and to the apparent presumption underlying § 111, maternal and paternal roles are not invariably different in importance. Even if unwed mothers as a class were closer than unwed fathers to their newborn infants, this generalization concerning parent-child relations would become less acceptable as a basis for legislative distinctions as the age of the child increased. The present case demonstrates that an unwed father may have a relationship with his children fully comparable to that of the mother.... There is no reason to believe that the Caban childrenaged 4 and 6 at the time of the adoption proceedingshad a relationship with their mother unrivaled by the affection and concern of their father. We reject, therefore, the claim that the broad, gender-based distinction of § 111 is required by any universal difference between maternal and paternal relations at every phase of a child's development. In closing, the Court rephrased this reasoning: The facts of this case illustrate the harshness of classifying unwed fathers as being invariably less qualified and entitled than mothers to exercise a concerned judgment as to the fate of their children. Section 111 both excludes some loving fathers from full participation in the decision whether their children will be adopted and, at the same time, enables some alienated mothers arbitrarily to cut off the paternal rights of fathers. We conclude that this undifferentiated distinction between unwed mothers and unwed fathers, applicable in all circumstances where adoption of a child of theirs is at issue, does not bear a substantial relationship to the State's asserted interests. 441 U.S. at 394, 99 S.Ct. at 1769. Caban is closely analogous to the present controversy, and is authority for the judgment we render. IV Having reviewed the historical development of the presumption as well as its modern status, and having examined the presumption in view of the holdings in Reed, Frontiero, Orr and Caban, we conclude that the tender years presumption represents an unconstitutional gender-based classification which discriminates between fathers and mothers in child custody proceedings solely on the basis of sex. Like the statutory presumption in Reed, the tender years doctrine creates a presumption 696 of fitness and suitability of one parent without any consideration of the actual capabilities of the parties. The tender years presumption, like the statutory schemes in Frontiero and Orr, imposes legal burdens upon individuals according to the "immutable characteristic" of sex. By requiring fathers to carry the difficult burden of affirmatively proving the unfitness of the mother, the presumption may have the effect of depriving some loving fathers of the custody of their children, while enabling some alienated mothers to arbitrarily obtain temporary custody. Cf., Caban, supra, 441 U.S. at 394, 99 S.Ct. at 1769. Even so, a gender-based classification, although suspect, may be justified if it is substantially related to a significant state interest. See, Reed, Frontiero and Caban, supra. Admittedly, the State has a significant interest in overseeing the care and custody of infants. In fulfilling this responsibility in child custody proceedings, the courts of this state, in custody determinations, have applied the "best interests of the child" rule.[8]Brill v. Johnson, 293 Ala. 435, 304 So.2d 595 (1974); Carter v. Harbin, 279 Ala. 237, 184 So.2d 145 (1966). We are convinced that the tender years presumption rejects the fundamental proposition asserted in Caban that "maternal and paternal roles are not invariably different in importance." Caban, supra at 441 U.S. 389, 99 S.Ct. 1766. Even if mothers as a class were closer than fathers to young children, this presumption concerning parent-child relations becomes less acceptable as a basis for judicial distinctions as the age of the child increases. Id. Courts have come to rely upon the presumption as a substitute for a searching factual analysis of the relative parental capabilities of the parties, and the psychological and physical necessities of the children. The presumption has thus become what one writer refers to as an "anodyne" for the difficult decisions confronting the court. Roth, The Tender Years Presumption in Child Custody Disputes, 15 J.Fam.L. 423, 438 (1976). However, as Justice White correctly observed in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), "[p]rocedure by presumption is always cheaper and easier than individualized determination." In view of the fact that the welfare of children and competing claims of parents are at stake, such a means of determination cannot be justified. The trial court's custody decree conclusively shows that the tender years presumption was a significant factor underlying the court's decision. Confronted with two individuals who were equally fit (i. e., all things being equal), the trial court awarded custody to the mother. Accordingly, the judgment of the Court of Civil Appeals affirming the lower court decree and affirming the constitutionality of the tender years presumption is hereby reversed. The cause is due to be remanded to the trial court with directions that the court consider the individual facts of the case. The sex and age of the children are indeed very important considerations; however, the court must go beyond these to consider the characteristics and needs of each child, including their emotional, social, moral, material and educational needs; the respective home environments offered by the parties; the characteristics of those seeking custody, including age, character, stability, mental and physical health; the capacity and interest of each *697 parent to provide for the emotional, social, moral, material and educational needs of the children; the interpersonal relationship between each child and each parent; the interpersonal relationship between the children; the effect on the child of disrupting or continuing an existing custodial status; the preference of each child, if the child is of sufficient age and maturity; the report and recommendation of any expert witnesses or other independent investigator; available alternatives; and any other relevant matter the evidence may disclose. In re Marriage of Winter, 223 N.W.2d 165 (Iowa 1974); see also, Johnson v. Johnson, 564 P.2d 71 (Alaska 1977); In re Marriage of Bowen, 219 N.W.2d 683 (Iowa 1974); Christensen v. Christensen, 191 Neb. 355, 215 N.W.2d 111 (1974). Only in this way will the court truly consider the best interests of the Devine children. REVERSED AND REMANDED WITH DIRECTIONS. FAULKNER, JONES, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur. TORBERT, C. J., dissents. ALMON, J., not sitting. TORBERT, Chief Justice (dissenting). The majority of the Justices on this Court have voted to abolish the tender years doctrine for all purposes in this state. I believe that decision goes too far, and I would retain the doctrine as a factor to be considered in deciding to which parent custody should be awarded. The well-being of the child is the paramount consideration in determining its custody. Strickland v. Strickland, 285 Ala. 693, 235 So.2d 833 (1970); Ayers v. Kelly, 284 Ala. 321, 224 So.2d 673 (1969); Curry v. Curry, 283 Ala. 272, 215 So.2d 715 (1968). The focus in a child custody hearing is on the child's welfare and best interest, not on the parents or their personal rights. Custody of one's child is not a prize to be fought for; rather it is a responsibility imposed by the court under appropriate conditions or restrictions the court sees fit to impose. Therefore, Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), and Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), as well as other cases cited by the majority, have no relevance in the field of child custody. Gender may be an inappropriate factor to consider in bestowing a benefit, but it should be a factor in determining which parent will have primary custody of a very small child. We are not faced here with the type of problem dealt with in Orr, Frontiero, and Reed, i. e., a rule by which one gender was given absolute preference over the other. The tender years doctrine, as the majority correctly stated, has evolved over the years into a factor to be considered in child custody determinations, rather than a compelling presumption. See, Jenkins v. Jenkins, 376 So.2d 1099 (Ala.Civ.App.1979). I believe it is valid as such, and should be retained in its present form. I therefore respectfully dissent. NOTES [1] There are a number of excellent law review articles recounting the historical development of the tender years presumption. For purposes of this opinion, we have relied heavily on Foster, Life With Father: 1978, 11 Fam.L.Q. 321 (1978), reprinted in S. Katz & M. Inker, Fathers, Husbands & Lovers: Legal Rights & Responsibilities 139 (1979); Roth, The Tender Years Presumption in Child Custody Disputes, 15 J.Fam.L. 423 (1976); Podell, CustodyTo Which Parent? 56 Marq.L.Rev. 51 (1972); and Comment, Measuring the Child's Best InterestA Study of Incomplete Considerations, 44 Den.L.J. 132 (1967). See also, 69 Am.Jur.2d Parent and Child §§ 28-31 (1971). [2] In Wells v. Wells, 117 S.W.2d 700 (Mo.App. 1938), the court briefly alluded to the fact that at common law, the paternal preference rule was based, in part, upon the assumption that "all things being equal" the father was presumed to be the best custodian. Thus, the paternal preference, like the tender years presumption, was intended to resolve difficult custody questions when divorcing parents were equally fit. The contrasting rules, therefore, share a common assumption, i. e., "all things being equal" one parent is presumed to be a better custodian; however, from this common assumption they "presume" different conclusions. [3] Alabama, Arkansas, Florida, Idaho, Kentucky, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Dakota, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Virginia, West Virginia, Wisconsin and Wyoming. For an excellent listing of the status of the tender years presumption in the various states see Foster, Life with Father: 1978, 11 Fam.L.Q. 321 (1978) and Annot., 70 A.L.R.3d 262 (1976). [4] Alaska, Arizona, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Indiana, Iowa, Maine, Massachusetts, Michigan, Nebraska, New York, North Carolina, Ohio, Texas and Washington. [5] Kansas, Oregon, Pennsylvania and Vermont. [6] Louisiana, Maryland, Minnesota and Utah. [7] We recognize that this Court has denied certiorari in several cases wherein the Court of Civil Appeals had examined the constitutionality of the tender years presumption. Taylor v. Taylor, 372 So.2d 337 (Ala.Civ.App.1979), cert. den. 372 So.2d 341 (Ala.1979); Thompson v. Thompson, 57 Ala.App. 57, 326 So.2d 124 (1974), cert. den. 295 Ala. 425, 326 So.2d 129 (1976). However, these decisions were rendered prior to Caban. We granted certiorari in the instant case to re-examine the constitutionality of the presumption in light of the Caban decision. [8] Ironically, the first application of the best interests rule in an Alabama divorce proceeding was made in Cornelius v. Cornelius, supra, the first case discussing the tender years presumption. Prior to that time the rule had only been recognized in those cases wherein children were outside the custody of their father and he asserted his natural rights to their custody by way of habeas corpus. Ex parte Boaz, 31 Ala. 425 (1858); Neville v. Reed, 134 Ala. 317, 32 So. 659 (1901). Thus, from a common origin the tender years presumption and the best interests of the child rule have grown side by side. In virtually every case wherein this Court applied the tender years rule, it would also express its abiding concern for the best interests of the child. See, e. g., Hammac v. Hammac, supra; Goldman v. Hicks, 241 Ala. 80, 1 So.2d 18 (1941); Stoddard v. Bruner, 217 Ala. 207, 115 So. 252 (1928); Thomas v. Thomas, 212 Ala. 85, 101 So. 738 (1924). As far as the courts were concerned, the best interests of young children were always served by placing them in the custody of their mother.	{ "pile_set_name": "FreeLaw" }
Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 07/31/2020 12:07 AM CDT - 559 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports WALKER v. BNSF RAILWAY CO. Cite as 306 Neb. 559 Teresa Walker, appellant, v. BNSF Railway Company, a Delaware corporation, appellee. ___ N.W.2d ___ Filed July 24, 2020. No. S-19-331. 1. Trial: Evidence: Appeal and Error. A trial court has the discretion to determine the relevancy and admissibility of evidence, and such deter- minations will not be disturbed on appeal unless they constitute an abuse of that discretion. 2. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court’s hearsay rul- ing and reviews de novo the court’s ultimate determination to admit evidence over a hearsay objection or exclude evidence on hearsay grounds. 3. Evidence: Appeal and Error. In a civil case, the admission or exclu- sion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the complaining party. 4. Judgments: Words and Phrases: Appeal and Error. An abuse of discretion, warranting reversal of a trial court’s evidentiary decision on appeal, occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. 5. Trial: Evidence: Testimony. When the information is, for the most part, already in evidence from the testimony of witnesses, the exclusion of the evidence is not prejudicial. Appeal from the District Court for Scotts Bluff County: Andrea D. Miller, Judge. Affirmed. Kyle J. Long and Robert G. Pahlke, of Robert Pahlke Law Group, for appellant. - 560 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports WALKER v. BNSF RAILWAY CO. Cite as 306 Neb. 559 Chad M. Knight and Nadia H. Patrick, of Knight, Nicastro & MacKay, L.L.C., for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Per Curiam. NATURE OF CASE Theresa Walker was injured while working for BNSF Railway Co. (BNSF) when a forklift she was driving tipped over while she was lifting a locomotive traction motor onto a flatbed trailer. Walker filed this negligence action against BNSF in the district court for Scotts Bluff County under the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. (2012). After the exclusion of some of her evidence about which she complains, the jury returned a verdict for BNSF. Because we conclude the exclusion of evidence did not unfairly prejudice Walker, we affirm. FACTS On November 4, 2010, Walker, a BNSF employee with fork- lift training, was associated with the BNSF facility in Alliance, Nebraska. She was injured when the forklift she was driving tipped over while she was lifting a load. Walker alleged that she drove the forklift into position; raised the traction motor into the air; leveled the forks; and was waiting to move over the final deposit point, when the forklift tipped forward. The forklift was a Taylor Big Red forklift (Big Red) owned by BNSF and manufactured to load, unload, and move locomotive traction motors. A traction motor is a large electric motor on each wheel of a locomotive. Walker brought this action under the Federal Employers’ Liability Act, alleging BNSF was negligent. Specifically, she alleged that the railroad was negligent because it (1) provided equipment that was not in safe operating condition; (2) altered and modified Big Red by affixing a metal pallet attachment; (3) failed to remove Big Red from service; and (4) failed - 561 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports WALKER v. BNSF RAILWAY CO. Cite as 306 Neb. 559 to provide reasonably safe tools, equipment, conditions, and methods to do the work. Big Red was manufactured by Taylor to load, unload, and move locomotive traction motors with a capacity of 18,425 pounds at a 24-inch load center. After receipt from Taylor, BNSF made and affixed a metal pallet attachment to Big Red, which caused the forklift to carry traction motors more than 64 inches away from its mast and potentially changed the capacity and dynamics of the forklift. Walker had worked for BNSF since 1997. She received training on forklift operations, and throughout her tenure at BNSF, she underwent periodic recertification in forklift opera- tion that included practical application and testing. Walker had used Big Red to load traction motors onto truck beds on a daily basis since 2009. Walker returned to work at BNSF in September 2010 after a leave of absence, and she received mandatory recertification training on forklift operations. She also received training specific to Big Red. Before July 2010, BNSF employees at the Alliance facil- ity loaded only traction motors manufactured by EMD. In the months before the injury, BNSF started loading a traction motor manufactured by G.E. that was heavier. A traction motor manufactured by EMD weighed approximately 11,800 pounds, whereas a traction motor manufactured by G.E. weighed about 13,500 pounds. BNSF claimed that Walker had used Big Red to transport the heavier G.E. motors before her injury. Walker testified that she did not know if she had ever loaded a heavier G.E. traction motor before her injury. She claimed that she was not told of the weight difference between G.E. and EMD trac- tion motors until after her injury. A BNSF internal personal injury report completed shortly after the incident concluded that Big Red was safe to oper- ate and that the incident was the result of operator error by Walker. Soon after that report was completed, BNSF’s repre- sentatives contacted Big Red’s manufacturer, Taylor, to inquire about continued use of the attachment. In response to BNSF’s - 562 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports WALKER v. BNSF RAILWAY CO. Cite as 306 Neb. 559 inquiry, an unidentified employee of Taylor stated that Big Red may become overloaded when it is used with the BNSF’s metal pallet loaded with a G.E. traction motor. Bret Bridges, BNSF’s designee for purposes of a Neb. Ct. R. Disc. § 6-330(b)(6) (rev. 2016) deposition, testified regard- ing the investigation following Walker’s injury. Bridges stated that BNSF had determined that the forklift tipped over due to operator error. As relevant to this appeal, Bridges was also questioned at length about the metal pallet attachment and the potential to exceed the capacity of Big Red. Bridges agreed during his deposition that BNSF’s communications with Taylor “caused the BNSF to determine” that transporting G.E. trac- tion motors with the metal pallet “could exceed the capacity” of Big Red, causing a risk of the forklift’s tipping. Below are several relevant portions of Bridges’ deposition testimony, which Walker claims are admissions relevant to her theory of recovery and formed the basis for which she sought similar testimony at trial. The deposition was received for the record after the district court ruled that Bridges’ challenged testimony would be excluded. Q. Was the bracket found to be defective? A. The bracket was not found to be defective. But if it’s used improperly or out away from the mast, it does change the center of gravity for the forklift. Q. Did the BNSF find the bracket to be defective? A. The bracket in and of itself is a piece of steel. But if you use the furthest pick point away from the mast, you can exceed the lifting capacity of the forklift. .... Q. Would you agree that the installation of the bracket on the Taylor Big Red forklift shifted the load center away from the mast? A. Yes. Q. And agree that the bracket that was used on the traction motor’s axles — agree that when the bracket was used, the traction motor’s axle rested more than 70 inches away from the mast? - 563 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports WALKER v. BNSF RAILWAY CO. Cite as 306 Neb. 559 A. Yes; but I don’t know that the axle is the center of gravity. Q. Fair enough. And I’m not trying to say that it was; I’m just trying to identify that the axle was there. A. Based on measurements, yes. Q. And do you agree that when the traction motor was loaded in this position, the combined weight of the trac- tion motor and the bracket exceeded the capacity of the Taylor forklift? A. Yes, that is my belief. .... Q. And do you agree that when the bracket was used in a position that the traction motor was lifted using the bracket that a GE traction motor exceeded the capacity of the forklift? .... A. As we previously discussed, I do believe it exceeded the lifting capacity. Q. . . . And you agree that every time an employee lifted a traction motor with that setup, he or she was exceeding the capacity of the forklift. .... A. Yes. Q. . . . And so every time that an employee lifted a traction motor, because they were exceeding the capacity, there was risk of the forklift tipping. [Objection.] A. I think I have a two-part answer for that. I think that, one, it depends upon height and pitch of the trac- tion motor. So when the load is — the mast is all the way against the forklift and it’s only this high . . . off the ground, I don’t believe that it would tip the traction motor. I think at a very elevated position with the forks tipped forward that obviously it will tip the traction motor. BNSF filed a motion in limine seeking, inter alia, to exclude evidence of subsequent remedial measures to prove - 564 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports WALKER v. BNSF RAILWAY CO. Cite as 306 Neb. 559 negligence, including “removal of the forklift and/or its rack from service, and . . . use of a different forklift and/or rack” following Walker’s accident. Walker stipulated to this exclu- sion, and the district court granted the motion with respect to evidence of subsequent remedial measures. At trial, BNSF asserted that moving the GE traction motor with the attachment did not exceed Big Red’s capacity. In its opening statement, BNSF explained that “[y]ou have a 16,000 capacity forklift carrying about 13,000 pounds of weight and you add in the weight of that metal pallet and you get maybe up to 14,000 pounds of weight. You are a ton underneath the load capacity of this forklift.” BNSF introduced evidence that the forklift was not over its capacity at the outset of moving a G.E. traction motor with the attachment. Bridges, whose testimony is quoted above, was designated as BNSF’s representative at trial. Several times at trial, Walker attempted to elicit Bridges’ admissions that the combined weight of the attachment and G.E. traction motor exceeded Big Red’s capacity, causing an overloaded condition and risk of tipping. Walker asked him, “And, would you agree that BNSF and you as their corporate spokesman believe that the bracket caused or the attachment caused the overload[?]” BNSF objected, claiming that postinjury conversations with Taylor and conclusions drawn therefrom by BNSF were inad- missible evidence of subsequent remedial measures made to remedy flaws or failures in the forklift operations. BNSF also argued that Walker’s questions asked for hearsay, because they were attempts to relay statements from the manufacturer to BNSF and Bridges, all to the effect that BNSF had learned from the manufacturer that the forklift was overloaded. In response, Walker argued BNSF had ultimately concluded and believed that the attachment caused the overload condition and admitted to its understanding in the deposition of Bridges, its designee. The court sustained BNSF’s objection. Walker attempted to introduce evidence of BNSF’s postinvestiga- tion conclusions regarding the overload issue several times, - 565 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports WALKER v. BNSF RAILWAY CO. Cite as 306 Neb. 559 and the court continued to sustain BNSF’s objections. After the district court had excluded Bridges’ testimony, the court received the two volumes of the transcripts of Bridges’ deposi- tions as an offer of proof. Walker’s theory at trial was that BNSF had negligently modified Big Red, causing an overload condition and tipping leading to injury. Several witnesses for Walker testified that Big Red as modified by BNSF was overloaded. For example, David Danaher, a forensic mechanical engineer and certified professional engineer, opined that the forklift was overloaded regardless of the position of the forklift. Ken Tester, a safety trainer, testified at length about the “removable attachment” modification to the forklift and concluded that “it was just inevitable an accident would happen.” He explained that “[w]ith an attachment like an extension, like in the situation where we have here, the load would be different, [its] maximum would not be 18,425 pounds, it would be a lot less.” Tester opined that BNSF should have taken measures to prevent overloading prior to the incident and that had it done so, the incident may have been prevented. BNSF’s theory at trial was that Walker operated the fork- lift in a dangerous manner and was the cause of its instabil- ity and accident. In support of its theory, BNSF called Paul Skelton, a truckdriver who was an eyewitness to the incident. Skelton testified that he had picked up traction motors at the Alliance facility “[a] few times” prior to the incident. On the day of the incident, he observed Walker loading the first trac- tion motor onto his flatbed trailer, approximately 40 inches from ground level. He testified that her way of loading struck him as abnormally high because “[n]ormally, they don’t raise them that high.” He testified that he “expressed a little bit of concern about that” because the forklift had seemed to do “a teeter motion.” The first load came down on the trailer “a little hard,” and Skelton said he “was worried about the damage to the trailer because these are particularly expensive trailers that we have.” After Skelton asked Walker why she raised the load - 566 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports WALKER v. BNSF RAILWAY CO. Cite as 306 Neb. 559 that high, she said she could not see him. Skelton moved so that they would be able to see each other during the follow- ing load. According to Skelton, Walker brought in the second load high as well. Skelton testified that “it was still raised up con- siderably higher than it needed to be” but acknowledged it may have been a bit lower than it had been when Walker delivered the first load. He observed the load was higher than his head, and stated he is 5 feet 11 inches tall. Walker began lowering the load and tilting the mast forward to deposit the motor on the trailer. As the load got close to the deck, Skelton noticed there were “boards . . . out of position.” Skelton stopped Walker before she set the load down so he could reposition the boards. Walker raised the load back up to around the roof of the forklift cab, and she backed away, to allow Skelton to maneuver the boards. He testified that he observed that the forklift mast was still tipping forward and had not been brought back toward the forklift cab. Skelton was adjusting the boards when he heard the sound of a motor revving and turned and observed the trac- tion motor roll off the front of the forklift and onto the ground. Skelton observed the forklift tilt backward “back down on all four wheels.” Skelton testified that Walker’s load positioning, including the load height and forward tilting of the mast, was contrary to what he had been taught and had observed in the past at the Alliance facility. The jury rendered a verdict for BNSF, and the court accepted the verdict and entered judgment. Walker moved for a new trial, which was denied. Walker appeals. ASSIGNMENT OF ERROR Walker claims, summarized and restated, that the district court erred when it excluded evidence of BNSF’s admission that the forklift was overloaded and at risk for tipping. STANDARDS OF REVIEW [1] A trial court has the discretion to determine the rele vancy and admissibility of evidence, and such determinations - 567 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports WALKER v. BNSF RAILWAY CO. Cite as 306 Neb. 559 will not be disturbed on appeal unless they constitute an abuse of that discretion. O’Brien v. Cessna Aircraft Co., 298 Neb. 109, 903 N.W.2d 432 (2017). [2] Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual find- ings underpinning a trial court’s hearsay ruling and reviews de novo the court’s ultimate determination to admit evidence over a hearsay objection or exclude evidence on hearsay grounds. Id. [3] In a civil case, the admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the complaining party. Id. [4] An abuse of discretion, warranting reversal of a trial court’s evidentiary decision on appeal, occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or con- science, reason, and evidence. Id. ANALYSIS Exclusion of Walker’s Evidence and Walker’s Offers of Proof. The central issue in this appeal is generally whether the district court erred when it excluded Walker’s evidence, which according to Walker would have shown that a postaccident investigation led BNSF to believe that Big Red as modified by BNSF had been overloaded, leading to the risk of tipping over. Walker specifically claims that Bridges should have been permitted to testify to that effect. At trial, Walker attempted to question Bridges, BNSF’s des- ignee at trial, regarding BNSF’s conclusions and belief that Big Red’s capacity was exceeded when lifting a G.E. traction motor using the attachment. Bridges was asked, “And, would you agree that BNSF and you as their corporate spokesman believe that the bracket caused or the attachment caused the over- load[?]” BNSF objected, and the district court sustained the objection. This question launched subsequent offers of proof by Walker related to whether BNSF concluded and believed - 568 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports WALKER v. BNSF RAILWAY CO. Cite as 306 Neb. 559 that Big Red was over capacity when employees lifted G.E. traction motors with the forklifts with the BNSF attachments. BNSF objected to each offer of proof, and the court sustained the objections. Walker’s offers of proof submitted after the rul- ing included the questions and answers from Bridges’ deposi- tion at which he had admitted the forklift as modified could cause an overload condition and risk of tipping. Rules of Evidence. At trial, BNSF made objections to Bridges’ testimony based both on the rules related to hearsay and on the prohibition against introduction of subsequent remedial measures, the lat- ter of which is contained in Neb. Rev. Stat. § 27-407 (Reissue 2016). Those rules are set forth below. Hearsay is not admissible except as provided by the Nebraska Evidence Rules. O’Brien v. Cessna Aircraft Co., supra. See Neb. Rev. Stat. § 27-803 (Reissue 2016). Under Neb. Rev. Stat. § 27-801(4) (Reissue 2016), set forth in relevant part, a state- ment is not hearsay if “(b) The statement is offered against a party and is . . . (iv) a statement by his agent or servant within the scope of his agency or employment . . . .” Section 27-407 provides: When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admis- sible to prove negligence or culpable conduct in connec- tion with the event. This rule does not require the exclu- sion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. Negligence or culpable conduct, as used in this rule, shall include, but not be limited to, the manu- facture or sale of a defective product. Admissibility Arguments. On appeal, Walker contends that the evidence sought to be elicited from Bridges was not hearsay, because it represented - 569 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports WALKER v. BNSF RAILWAY CO. Cite as 306 Neb. 559 the understandings of BNSF, and that the district court erred when it excluded the evidence on the basis of hearsay. In response, BNSF asserts that Bridges’ testimony was essentially a repeat of Taylor’s declarations and that the district court prop- erly excluded Bridges’ statements because they are hearsay. Walker further contends that the evidence sought to be elicited from Bridges reflected BNSF’s postaccident investi- gation and was part of an investigation, and not a statement, concerning a subsequent remedial measure and that the dis- trict court erred when it excluded the evidence on this basis. In contrast, BNSF asserts that Bridges’ testimony was prop- erly excluded as evidence of subsequent remedial measures. See § 27-407. Error, If Any, Was Not Unfairly Prejudicial. As explained below, we determine that even if the Bridges- related evidence was erroneously excluded, such error was not prejudicial. We determine that reversal is not required because the evidence which was excluded attempted to establish the same fact particularly regarding causation that Walker success- fully presented to the jury by other means. [5] As we recited above, the admission or exclusion of evidence at trial is not reversible error unless it unfairly prejudiced a substantial right of the complaining party. See O’Brien v. Cessna Aircraft Co., 298 Neb. 109, 903 N.W.2d 432 (2017). We have stated that when the information is, for the most part, already in evidence from the testimony of witnesses, the exclusion of the evidence is not prejudicial. See Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816 (2015). At trial, Walker presented evidence that Big Red was over capacity and argued that the overloaded forklift represented negligence by BNSF and was the cause of her injuries. Danaher, Walker’s expert certified professional engineer, opined that Big Red, outfitted with the attachment, was overloaded when carrying a G.E. motor regardless of its positioning. And Tester, - 570 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports WALKER v. BNSF RAILWAY CO. Cite as 306 Neb. 559 a safety trainer, also testified about the attachment to the forklift and concluded that “it was just inevitable an accident would happen.” He opined that under the standards set forth by the American National Standards Institute, such an attach- ment “[s]houldn’t have been used in the first place without expressed written approval by the manufacturer for them to do their testing on it to see if it was changing any of the stabil- ity of the forklift.” He explained to the jury that if BNSF had gone through industry standard protocol for adding an attach- ment, the forklift operators would have been apprised of the forklift’s new capacity through new tags and decals placed on the forklift. He testified that with respect to Big Red’s load, its “maximum would not be 18,425 pounds, it would be a lot less.” However, in spite of Walker’s success eliciting evidence concerning the hazard presented by Big Red’s attachment, there was other evidence at trial to support the jury’s verdict that Walker had not met her burden of proof. BNSF’s case at trial was that Walker’s operation of the forklift was dan- gerous and was the cause of its instability and the accident. Indeed, Walker’s expert witness, Danaher, testified on cross- examination that based on his discussions with Walker, she had not followed the training she had received for depositing a load, and Skelton, who witnessed the accident, testified that Walker raised the load to an abnormal height and tilted the mast for- ward more than necessary to deposit the load. Further, BNSF introduced evidence of a commonly used “rule of thumb” met- ric under which, it argued, Big Red was not overloaded. Thus, there was ample evidence for the jury’s consideration in sup- port of both Walker’s and BNSF’s theories. Given the record, we conclude that the district court’s exclusion of evidence did not prejudice a substantial right of Walker’s. CONCLUSION Although the district court excluded testimonial evidence of BNSF’s designee related to the company’s postaccident inves- tigation, the exclusion did not unfairly prejudice a substantial - 571 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports WALKER v. BNSF RAILWAY CO. Cite as 306 Neb. 559 right of Walker, because she was able to present other evidence showing the same facts, and there was sufficient evidence to support the jury’s verdict. We affirm the judgment of the dis- trict court. Affirmed. Miller-Lerman, J., concurring. I concur with the court’s determination that this case should be affirmed. My analysis differs because I would find that the exclusion of the Bridges-related testimony was erroneous, although I agree its exclusion was not prejudicial. As I explain below, I believe Bridges’ testimony was not hearsay nor was it evidence of a subsequent remedial measure; hence, it should have been admitted. Further, I suggest this court adopt the dis- tinction commonly made between postaccident investigations and subsequent remedial measures, the former of which are admissible under § 27-407. HEARSAY Contrary to BNSF’s assertion, I agree with Walker that admissions by BNSF’s corporate designee, Bridges, at trial and in his deposition, are not hearsay under § 27-801(4)(b)(iv). The admissions by a party to an action upon a material matter are admissible against him or her as original evidence. Ficke v. Wolken, 291 Neb. 482, 868 N.W.2d 305 (2015). Thus, as a general rule, any act or conduct on the part of a party which may fairly be interpreted as an admission against interest on a material issue may be shown in evidence against him or her. Id. BNSF has attempted to characterize Bridges’ testimony as merely conveying the conclusion of Big Red’s manufacturers. However, the record shows that Bridges was asked about his beliefs and BNSF’s conclusions. BNSF’s representative was asked at trial if BNSF believed that the attachment caused an overload condition of the forklift and if he “agree[d] that every time an employee lifted a traction motor with that setup he or she was exceeding [the capacity].” Bridges’ testimony that he, - 572 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports WALKER v. BNSF RAILWAY CO. Cite as 306 Neb. 559 on behalf of BNSF, believed that Big Red as modified exceeded capacity was an admission by a party regarding a material matter, which under § 27-801(4)(b)(iv) should not have been excluded as hearsay. Accordingly, I agree with Walker that the district court erred when it characterized Bridges’ testimony as hearsay and excluded it on this basis. SUBSEQUENT REMEDIAL MEASURES The rule pertaining to the exclusion of the subsequent reme- dial measures is codified in Nebraska in § 27-407. The rule as it relates to postevent investigations or reports has been much discussed in jurisprudence across the country. See, Brazos River Authority v. GE Ionics, Inc., 469 F.3d 416 (5th Cir. 2006); Complaint of Consolidation Coal Co., 123 F.3d 126 (3d Cir. 1997); Prentiss & Carlisle v. Koehring-Waterous, 972 F.2d 6 (1st Cir. 1992); Specht v. Jensen, 863 F.2d 700 (10th Cir. 1988); Rocky Mountain Helicopters v. Bell Helicopters, 805 F.2d 907 (10th Cir. 1986); Maddox v. City of Los Angeles, 792 F.2d 1408 (9th Cir. 1986); Westmoreland v. CBS Inc., 601 F. Supp. 66 (S.D.N.Y. 1984); Alimenta (U.S.A.), Inc. v. Stauffer, 598 F. Supp. 934 (N.D. Ga. 1984); Bullock v. BNSF Ry. Co., 306 Kan. 916, 399 P.3d 148 (2017); Martel v. Mass. Bay Transp. Authority, 403 Mass. 1, 525 N.E.2d 662 (1988). The view I would find applicable and would adopt is that evidence of a postaccident investigation which is distinguish- able from a remedial undertaking is not excluded by § 27-407. By its text, § 27-407 is explicitly limited to measures taken after an event “which, if taken previously, would have made the event less likely to occur.” This does not mean that “com- petent evidence resulting from an internal investigation of a mishap must also be excluded.” Westmoreland, 601 F. Supp. at 67. One treatise observes that “such reports or inspections are not themselves remedial measures, and do not themselves even reflect decisions to take or implement such measures.” 2 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 4:50 at 75 (4th ed. 2013). - 573 - Nebraska Supreme Court Advance Sheets 306 Nebraska Reports WALKER v. BNSF RAILWAY CO. Cite as 306 Neb. 559 It is well recognized that the policy of excluding subsequent remedial measures attempts to avoid discouraging steps to further safety. See, e.g., Dusenbery v. United States, 534 U.S. 161, 122 S. Ct. 694, 151 L. Ed. 2d 597 (2002); Wollenhaupt v. Andersen Fire Equip. Co., 232 Neb. 275, 440 N.W.2d 447 (1989). However, “the policy considerations that underlie Rule 407, such as encouraging remedial measures, are not as vig- orously implicated where investigative tests and reports are concerned.” Rocky Mountain Helicopters, 805 F.2d at 918. Extending the rule to exclude evidence of all postaccident investigations “fails to credit the social value of making avail- able for trial what is often the best source of information.” Westmoreland, 601 F. Supp. at 67. The fruits of these inves- tigative tests and reports are “one of the best and most accu- rate sources of evidence and information.” Id. at 68. I agree with the observation that “[i]t would strain the spirit of the remedial measure prohibition in Rule 407 to extend its shield to evidence contained in post-event tests or reports.” Rocky Mountain Helicopters, 805 F.2d at 918. Walker’s attempted examination of Bridges and her offers of proof at issue here did not touch on BNSF’s decision to imple- ment remedial measures after Walker’s accident. Conclusions drawn by BNSF’s agents regarding the forklift’s capacity with the attachment were competent evidence resulting from an internal investigation of Walker’s incident and were not, on their own, evidence of remedial measures taken to prevent future injuries. Accordingly, I agree with Walker that the dis- trict court erred when it characterized Walker’s propounded evidence as subsequent remedial measures and excluded post- accident investigations, tests, and reports on this basis. Although I believe the Bridges-related postaccident investi- gation evidence was wrongly excluded, viewing the record as a whole, I agree with this court’s conclusion in this case that such exclusion was not prejudicial.	{ "pile_set_name": "FreeLaw" }
546 F.2d 416 European Health Spas, Inc.v.Trusts No. 76-1941 United States Court of Appeals, Third Circuit 11/15/76 MANDAMUS DISMISSED	{ "pile_set_name": "FreeLaw" }
884 F.2d 585 Gayv.Esposito*** NO. 89-8031 United States Court of Appeals,Eleventh Circuit. AUG 09, 1989 1 Appeal From: N.D.Ga. 2 AFFIRMED. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3 ** Local Rule 36 case	{ "pile_set_name": "FreeLaw" }
838 F.Supp. 1320 (1993) The ESTATE OF Konerak SINTHASOMPHONE, by its special administrator, Anoukone SINTHASOMPHONE; Sounthone Sinthasomphone; and Somdy Sinthasomphone, Plaintiffs, v. The CITY OF MILWAUKEE, a municipal corporation; Joseph Gabrish; John A. Balcerzak; and Richard Porubcan, Defendants. Civ. A. No. 91-C-1121. United States District Court, E.D. Wisconsin. November 23, 1993. 1321 Robert Slattery, Slattery & Hausman, Ltd., and Curry First, Hall, First & Patterson, S.C., Milwaukee, WI, for plaintiffs. Robert Johnson, Cook & Franke, S.C., D. Michael Guerin, Gimbel, Reilly, Guerin & Brown, Rudolph M. Konrad, Deputy City Atty., Milwaukee, WI, for defendants. ORDER TERENCE T. EVANS, Chief Judge. I open this decision by repeating what I said in a decision issued in this case (and three other consolidated cases) a year and a half ago, on March 5, 1992, 785 F.Supp. 1343. In that decision, I wrote: "I'm on 25th and State, and there is this young man. He's buck naked. He has been beaten up ... He is really hurt ... He needs some help." With these words, a caller asked a Milwaukee emergency 911 operator to send help to a person in need of assistance. When the call was made, on May 27, 1990, the name Jeffrey Dahmer was largely unknown. Today, everyone knows the story of the 31-year-old chocolate-factory worker, a killing machine who committed the most appalling string of homicides in this city's history. Dahmer's misdeeds have been widely chronicled. Dahmer, who is white, has confessed to killing 17 young men between the ages of 14 and 28. Eleven of the victims were black, and most were lured into Dahmer's web with promises of, among other things, a sexual experience. The case is incredibly gruesome and bizarre; the dismembered bodies of many of the victims hearts in the freezer, heads in the fridge were preserved in Dahmer's small near-westside apartment. The leftovers were deposited in a barrel of acid, conveniently stationed in the kitchen. Dahmer pled guilty to 15 of his 16 Milwaukee County homicides.[1] The 15 murders were committed between January of 1988 and July of 1991. Last month, a jury rejected Dahmer's insanity plea. Today he is a guest of the state of Wisconsin, having been sentenced to life imprisonment without the possibility of parole. Dahmer's recent well-publicized state court trial dealt with a narrow issue; his mental state at the time of the murders. These four federal civil cases raise broader issues, issues that concern the community at large. The issues here concern the conduct of several police officers, policies and attitudes of the police department toward minorities and gays, and the rights of some of the victims of Dahmer's madness. This decision will address some of the issues presented in the cases. 1322 The telephone call for help on May 27 was made from a phone booth just a half a block away from Dahmer's apartment. The subject of the call was Konerak Sinthasomphone, a 14-year-old Laotian boy. Later that evening, after the police had responded to the call and determined that nothing was amiss, Dahmer killed Sinthasomphone. He went on to kill others, including Matt Turner in June, Jeremiah Weinberger in early July, and Oliver Lacy and Joseph Bradehoft in mid-July. He terrorized Tracy Edwards before Edwards escaped and led the police to Dahmer, who was finally arrested on July 22, 1991. After the arrest, Dahmer confessed to 17 murders. The estate of Konerak Sinthasomphone and his family have filed a lawsuit claiming that the police officers and the City of Milwaukee violated their constitutional rights. Catherine Lacy, Oliver Lacy's mother; Cheryl Bradehoft, Joseph Bradehoft's wife; Sarah Mae Bradehoft, his daughter; and Tracy Edwards are plaintiffs in the other lawsuits. The defendants include Joseph Gabrish, John Balcerzak, and Richard Porubcan, the three Milwaukee police officers who responded to the May 27 call, and the City of Milwaukee itself. The defendants have moved to dismiss the cases, under rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that the complaints fail to state claims upon which relief can be granted. After discussing the controlling law, I ended my March 5, 1992, decision by dismissing the lawsuits filed by the Bradehofts, Ms. Lacy, and Mr. Edwards for failure to state claims upon which relief could be granted. The Sinthasomphone case[2] survived the rule 12 motion to dismiss. So what remains in this case are the claims of Sinthasomphone[3] against Officers Gabrish, Balcerzak, and Porubcan and the claim against the City of Milwaukee. The claim against the city alleges a violation of the equal protection clause of the 14th amendment to the United States Constitution. Against the three officers, Sinthasomphone alleges a violation of the equal protection clause and, in the major allegation in the case, violations of substantive provisions of the due process clause of the 14th amendment. The three officers have now moved for summary judgment dismissing the due process claim against them. In their motion, the officers argue that they have a qualified immunity from suit. This decision will address the officers' motion for summary judgment. To properly address the motion for summary judgment I must again return to the facts, most of which are undisputed. Jeffrey Dahmer met Konerak Sinthasomphone at the Grand Avenue Mall in Milwaukee on the afternoon of May 26, 1991. Sinthasomphone was 14 years old, 5'3" tall, and weighed 110 pounds. He was Laotian and spoke English as well as Laotian. Dahmer offered to pay Sinthasomphone to go home with him so Dahmer could take nude or semi-nude pictures of him. The two proceeded to Dahmer's apartment at 924 North 25th Street in Milwaukee, where Dahmer did, in fact, take pictures of Sinthasomphone. Dahmer offered Sinthasomphone a drink, which was laced with Halcion. Sinthasomphone fell into a deep sleep, during which Dahmer, according to his deposition testimony, drilled a small hole in Sinthasomphone's head. He then poured diluted hydrochloric acid into the hole. Dahmer claims that he did this sort of thing in an attempt to induce a "zombie-like state" which would allow him to control his victims, including Sinthasomphone. During the early morning hours of May 27, while Sinthasomphone was drugged, Dahmer left his apartment to buy beer. While he was gone, Sinthasomphone somehow managed to leave the apartment and find his way to the street, where he was seen by, among others, young women named Sandra Smith and Nicole Childress. At 25th and State, Smith saw a person she describes as a Chinese boy, running naked from State Street toward an alley next to her 1323 mother's apartment at 936 North 25th Street. The boy fell to the ground. Smith thought he was 11 or 12 years old; he had, she says, scrapes on his knees, buttocks, and right shoulder and what appeared to be blood running down his inner thigh from his buttocks. Smith asked Childress to call the police. While Childress was telephoning, a white male, who turned out to be Dahmer, approached Smith and told her he was Sinthasomphone's friend. He said that Sinthasomphone had a habit of getting drunk on weekends. Smith suspected that Dahmer had caused some of Sinthasomphone's injuries. Dahmer began to lead Sinthasomphone away, with Sinthasomphone trying to break free. Before they got far, police officers Gabrish and Balcerzak arrived. They were responding to the following dispatch: 36, you got a man down. Caller states there's a man badly beaten and is wearing no clothes, lying in the street. 2-5 and State. Anonymous female caller. Ambulance sent. The officers began to assess the situation. It appeared to Gabrish that Dahmer was assisting Sinthasomphone in walking. The officers say there was no sign that Sinthasomphone was trying to break away from Dahmer. Balcerzak stayed with Dahmer while Gabrish questioned Sinthasomphone. Sinthasomphone did not answer questions. Dahmer, who unknown to the officers was obviously trying to avoid detection, was calm, courteous, and helpful; he responded politely. He gave Balcerzak his name, date of birth, and employment identification. He told Balcerzak that Sinthasomphone was a house guest who drank too much. He said Sinthasomphone's name was John Mung and that he was 18 or 19[4] or 19 or 20[5]. Balcerzak repeated questions in an attempt to determine Dahmer's truthfulness; his answers remained consistent. A few minutes after Balcerzak and Gabrish arrived, another squad came to the scene. Officers Richard Porubcan, also a defendant here, and Pete Mozejewski were providing "informal backup" to Balcerzak and Gabrish. The officers decided to take Sinthasomphone and Dahmer back to Dahmer's apartment. Either because Sinthasomphone stumbled or because he was resisting, Gabrish and Porubcan physically escorted him. They entered the rear of the apartment building and went to Dahmer's apartment. Once inside Dahmer's apartment, the officers saw no signs of any assault, struggle, or conflict. The officers found Sinthasomphone's clothing and saw colored, almost nude photographs of Sinthasomphone posing in a fashion which led them to conclude that Dahmer and Sinthasomphone had a consensual gay relationship. The photographs are reprinted here. 1324 The officers, thinking they had verified that Sinthasomphone belonged with Dahmer, left Sinthasomphone in the apartment. Dahmer killed Sinthasomphone some 30 minutes later. Other facts which are not included in the parties' formal proposed findings of fact but which shed light on the situation are that the fire department ambulance arrived at the scene before the police. One of the rescue personnel thought Sinthasomphone needed treatment, but the ambulance crew was sent away by the police. When the police arrived, Sandra Smith says that she tried to give them information that Dahmer had called Sinthasomphone by different names and that Sinthasomphone was trying to escape from Dahmer. Rather than listening to her, an officer threatened her with arrest, and she left the scene. She went to the home of her mother, Glenda Cleveland. Ms. Cleveland called the police department later to inquire about the incident, and during her call she emphasized that the naked person taken from the scene was just a boy, not an adult. 1325 The issue on the currently pending motion for summary judgment is whether, on these facts, the police officers are entitled to a qualified immunity from suit. In recent years, the doctrine of qualified immunity has expanded the protection it offers to police officers and other public officials. Today, the law is such that the existence of a qualified immunity from suit is almost the norm. Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Police officers are immune from suit unless their conduct violates a clearly established right of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The Court of Appeals for the Seventh Circuit has stated that immunity should be granted unless "it has been authoritatively decided that certain conduct is forbidden." Alliance to End Repression v. Chicago, 820 F.2d 873, 875 (7th Cir.1987), quoted in Upton v. Thompson, 930 F.2d 1209, 1212 (7th Cir. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1262, 117 L.Ed.2d 491 (1992). The possible application of these principles to the present issue was foreshadowed in my decision of March 5, 1992. I implied that the claim based on a violation of the equal protection clause, if proven, would violate clearly established law: "the cases uniformly emphasize that if police action or even police inaction is a product of intentional discrimination, it violates the equal protection clause." At 1350. Recognizing this principle, the officers have not asked for a qualified immunity from the equal protection claim. The claim of a substantive due process violation is more difficult to resolve. In referring to Harris v. District of Columbia, 932 F.2d 10 (D.C.Cir.1991), I stated at page 1350 of my March 5, 1992, decision: The court determined that the police officers were not under "a clearly established constitutional obligation to obtain medical care for Harris" based on a special relationship with him and that they therefore were entitled to a qualified immunity. The majority opinion indicated, however, that they were deciding the qualified immunity issue: whether an obligation was "clearly established," not whether a constitutional obligation existed. A fine point, and one which will no doubt arise again in this case. [Emphasis added.] And now the issue has, in fact, arisen. The three police officers in this case are entitled to qualified immunity unless their conduct violated Konerak Sinthasomphone's clearly established constitutional rights. A first step in the analysis is a determination of what his constitutional rights were. A discussion of those rights begins at pages 1347-48 of my prior decision. For the sake of completeness, I will repeat some of my analysis. The analysis begins with DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). In that case, the United States Supreme Court emphasized that the purpose of the Constitution "was to protect the people from the State, not to ensure that the State protected them from each other." Id. at 196, 109 S.Ct. at 1003. Joshua DeShaney, who was 5 years old, was beaten and rendered profoundly retarded by his father, with whom he lived. Social workers and other local officials had received complaints that the father was abusing the boy, but they did not remove him from his father's custody. After he was beaten for the last time, Joshua and his mother brought a case in this court, pursuant to 42 U.S.C. § 1983, alleging that Joshua's substantive due process right to liberty was abridged when the officials failed to intervene to protect him from his father. The United States Supreme Court ultimately held that the State's failure to protect an individual against private violence does not constitute a violation of the due process clause. The Court also rejected the contention that the state officials had entered into a "special relationship" with Joshua because the officials knew he faced a special danger from his father, proclaimed their intention to protect him, and thus had a duty to do so in a reasonably competent fashion. A special relationship exists, the Court said, when "the State takes a person into its custody and holds him there against his will ...", most often in a prison or mental hospital, not under circumstances like those present in DeShaney. 1326 Similarly, in Archie v. City of Racine, 847 F.2d 1211 (7th Cir.1988), the court of appeals for this circuit upheld my dismissal of claims that a Racine Fire Department dispatcher had failed to send a rescue vehicle to a woman who later died. In Ellsworth v. City of Racine, 774 F.2d 182 (7th Cir.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1265, 89 L.Ed.2d 574, the court of appeals upheld the dismissal of a claim that the Racine Police Department, after agreeing to provide protection to the wife of an undercover narcotics officer, failed to protect her from a beating by a masked assailant. Losinski v. County of Trempealeau, 946 F.2d 544 (7th Cir.1991), concerned a woman involved in an intense domestic violence situation who, accompanied by a deputy sheriff, returned to her estranged husband's trailer to retrieve her belongings and was killed by him. The court of appeals upheld the dismissal of a lawsuit against the county that deputy, relying on two factors: the State did not create the danger and it did not subject her involuntarily to an existing danger. A few cases reach a contrary result in situations in which there is little room to misunderstand what the results of one's actions or inaction will be. In White v. Rochford, 592 F.2d 381 (7th Cir.1979), a pre-DeShaney case, the court of appeals for this circuit determined that Chicago police violated the Constitution when they left three children, unattended, in a car on the Chicago Skyway after arresting the adult who had been driving the car, in which the children were riding. After exposure to the cold, the children left the car, crossed eight lanes of freeway traffic, and wandered around on the roadway at night searching for a telephone. In Ross v. United States, 910 F.2d 1422 (7th Cir.1990), a 12-year-old boy slipped into the water of Lake Michigan. A friend summoned help, and within 10 minutes two life-guards, two fire fighters, one police officer, and two civilians, who were scuba-diving nearby, responded. However, before any rescue attempt could begin, a Lake County deputy sheriff arrived in a marine patrol boat. He insisted on enforcing an agreement between the city of Waukegan, Illinois, and Lake County, Illinois, which required the county to provide all police services on Lake Michigan. Pursuant to that agreement, the sheriff had promulgated a policy that directed all members of the sheriff's department to prevent any civilian from attempting to rescue a drowning person and contemplated that only divers from the city of Waukegan Fire Department could perform rescues. The deputy ordered all rescue attempts to stop. When the civilian scuba divers offered to attempt a rescue at their own risk, the deputy threatened to arrest them. Twenty minutes later, 30 minutes after the first would-be rescuers had arrived, the officially authorized divers pulled the boy from the water. He later died. The court found that the complaint stated a claim against both Lake County and the individual deputy. I concluded in my March 5, 1992, decision that "having dissected these cases, the Sinthasomphone plaintiffs have not merely alleged that the police officers failed to protect Konerak Sinthasomphone from Jeffrey Dahmer." At 1349. Rather, the plaintiffs framed their complaint in terms of the positive actions of the police. The comment on this point, of course, was limited to the nature of the defense motion under consideration at the time. That motion was a rule 12 motion to dismiss based on the facial inadequacy of the complaint. The present matter involves a fully developed rule 56 motion for summary judgment. Horton v. Flenory, 889 F.2d 454 (3rd Cir. 1989), should now be added to the mix. Defendant Flenory was a former police officer and the owner of a private club. When his club was burglarized, he called a police officer with whom he had formerly served. Before the officer arrived, Flenory interrogated a former employee named Powdrill, whom he suspected to be the burglar, and Powdrill suffered a beating. After he arrived, the police officer did some investigation, but ultimately left Powdrill in the "good hands" of defendant Flenory. Powdrill then suffered another beating and died. The police officer, in leaving Powdrill with Flenory, was acting under an official policy of the police department. The policy was to maintain a hands-off policy with respect to events transpiring in private clubs. 1327 The court determined that DeShaney is "limited ... to situations in which the state is not involved in the harm, either as a custodian or as an actor." At 457. The court goes on to find that the defendants in that case were entitled to judgment notwithstanding the verdict "only if Mr. Powdrill's death occurred at a time when he was entirely outside state custody and only if that death was not the result of an official policy." At 458. The court found that Powdrill was in the custody of defendant Flenory, who was exercising a "delegated state function." At 458. In my decision of March 5, 1992, I said that "the DeShaney doctrine is not without some small cracks in its surface; hairline, perhaps, but cracks nonetheless." At 1348. Flenory may be one, but in that case there is a finding that "custody" had been officially given to the private actor. In this case, I am not convinced that Sinthasomphone was "in custody" or in a "special relationship" with the three police officers. Not every person the police usher from one place to another is in custody or a special relationship with them. See Ellsworth, Losinski, and DeShaney. In the March 5 decision I stated that the "line between DeShaney and Ross (the most favorable Seventh Circuit case supporting the plaintiffs' claims) may not be entirely clear, but it is discernable." At 1348. I spoke of courts "threading" their way through the maze. There very well may be a way to reconcile all of these cases and others which remain unmentioned, but it is not an easy task. Recognizing that the issue is difficult almost compels the conclusion that the officers are entitled to a qualified immunity from suit. We must remember that the claims in this case are for violations of the United States Constitution, which primarily protects citizens from state action. If the police officers were the ones who killed Sinthasomphone, they would be liable. However, that is not what happened here. The dastardly acts were committed, we must remember, not by the officers but by Dahmer, a maniac of the first order. Now, one might not necessarily disagree with those who say that the officers[6] did not do good police work: One could conclude that they did not listen to the witnesses; that they did not investigate as thoroughly as they should have; that they foolishly believed that Jeffrey Dahmer was telling them the truth; that they were callous; and that they were rude to Glenda Cleveland. But the issue in this case is not whether they were good or bad cops in general or during the evening of May 27, 1990. The issue instead is whether, under clearly established constitution doctrine, the officers were required to know that leaving Sinthasomphone with Dahmer would have dire consequences. The best way to determine when a substantive due process right is clearly established a legal issue is to concentrate on the facts. As the court stated in Hall v. Ryan, 957 F.2d 402, 404 (7th Cir.1992), "[q]ualified immunity is a legal issue, but it is one which, because of the particularity requirement, is bound up in the facts of a particular case." The relevant facts are those possessed by the officers at the time of the incident, not those which emerge after the situation turns out to be as wrought with horror as occurred here, or in DeShaney. In hindsight, of course, Sinthasomphone should not have been left with Dahmer. But one must look at what the police officers knew at the time. And what they knew and how they acted must be viewed in the real world of busy and stressful police work in urban America in the twilight of the 20th Century. Even assuming that the officers failed to do adequate police work, the situation was not sufficiently clear to allow the conclusion that they had to know the inevitable horror which would follow their actions. No one could have clearly known or suspected that Dahmer was a monster who killed and cannibalized his victims. The possibility that the man who willingly took the police to his apartment on May 27 would turn out to be a man whose name today is legendary in the 1328 annals of serial killers in America was at best a billion-to-one shot. The police were not, constitutionally, required to know or appreciate that the billion-to-one shot would come up on top. Sometimes a danger is clear and obvious. Reed v. Gardner, 986 F.2d 1122, 1127 (7th Cir.1993), involved an intoxicated person whom a patrolman had allowed to have possession of a car and the car keys. Two hours later, that person slammed head on into another car, killing one of the passengers and injuring several others. Reversing a dismissal at the pleading stage, the court stated that "[s]ome dangers are so evident, while their victims are so random, that the state actors can be held accountable by any injured party." (Emphasis added.) The court focused on the nature of the danger: is the danger sufficiently evident that a reasonable officer should be held accountable to have understood it. The danger in Ross was undeniably evident: anyone has to know the inevitable result of leaving someone under water for 30 minutes. On the other hand, one does not inevitably know that getting a naked person off the streets, taking him to an apartment where his clothes and near-naked pictures of him are present, and leaving him there with a person who convincingly presents himself as a friend will result in death and dismemberment. In terms of the information available to the officers, this case is much more like DeShaney than Ross. If, in the face of all the information the state actors had, Joshua DeShaney enjoyed no constitutional right to protection, I cannot conclude that it is clearly established that Sinthasomphone had such a right. The officers are entitled to a qualified immunity. Summary judgment dismissing the due process claim against them is GRANTED. Only the claims alleging a denial of equal protection remain. NOTES [1] He was not charged with killing Steven Tuomi in Milwaukee in 1987. He is charged with killing Steven Hicks in Bath Township, Ohio, in 1978. [2] Except for the claims of Konerak Sinthasomphone's brothers and sisters. [3] I refer to the claims of the estate of Konerak Sinthasomphone and the claims of the parents collectively as the claims of "Sinthasomphone." [4] According to plaintiffs' proposed findings. [5] According to defendants' proposed findings. [6] Gabrish, Balcerzak, and Porubcan did different things on that fateful night. When I refer to them collectively, I do so knowing that their individual involvement in all of the actions that took place that night were different.	{ "pile_set_name": "FreeLaw" }
9 F.3d 113 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.James E. WILLIAMS, Plaintiff-Appellant,v.Larry SKEEN, et al., Defendants-Appellees. No. 92-2070. United States Court of Appeals, Seventh Circuit. Submitted Sept. 22, 1993.1Decided Oct. 6, 1993. Before BAUER, CUDAHY and KANNE, Circuit Judges. ORDER 1 James E. Williams, an inmate at the Pontiac Correctional Center in Illinois, filed a civil rights action under 42 U.S.C. Sec. 1983, alleging that defendants, three correctional officers, used unnecessary force against him and falsified disciplinary reports. The court entered partial summary judgment in favor of defendants on the claim alleging that plaintiff was denied due process at the disciplinary hearing. In regard to the remaining claim of excessive force, a jury found in favor of defendants. Williams appeals from both judgments. FACTS 2 In April 1988, Williams was transported to the Livingston County Courthouse. After the court ruled against plaintiff in a civil case, Williams became violent. Leaving the courthouse, while Williams was restrained in waist chains and cuffs, Officer Skeen placed him in a choke hold. Williams bit Skeen. Officer Health then grabbed Williams around the throat. Williams bit Heath. Officer Gundy also became involved. Williams alleges further that the three officers then filed false disciplinary reports against him. 3 The disciplinary reports charge Williams with assault, insolence, violation of rules, escape, dangerous disturbance, unauthorized movement, disobeying a direct order, violation of state or federal laws and creating a health, fire and safety hazard. The officers stated in the reports that Williams attempted to break free, biting and scratching Skeen and Heath, and trying to grab a pistol from them. 4 In April 1988, the Adjustment Committee found Williams guilty of all offenses charged. It revoked 360 days of good time, demoted him to "C" grade for 360 days, and required him to serve 360 days in segregation. 5 Williams subsequently filed this action. In March 1992, the district court granted in part defendants' motion for summary judgment, finding that Williams failed to state a claim for a due process violation. The court found that a question of fact remained as to whether Skeen and Heath used excessive force, and a jury trial was held. The jury found in favor of defendants. DISCUSSION 6 A. Malicious prosecution. 7 Williams contends that as part of his due process claim he alleged malicious prosecution, which the district court ignored. This issue has been waived since it was not raised below until after summary judgment had been entered. Coulter v. Vitale, 882 F.2d 1286, 1289 (7th Cir.1989). Notwithstanding this waiver, under Illinois law a claim for malicious prosecution must allege facts showing: (1) the commencement or continuance of an original criminal or civil judicial proceedings by the defendant2; (2) the termination of the proceeding in favor of the plaintiff; (3) the absence of probable cause for such proceeding; (4) the presence of malice; and (5) damages resulting to the plaintiff. Meerbrev v. Marshall Field & Company, Inc., 139 Ill.2d 455, 472, 564 N.E.2d 1222 (1990); Joiner v. Benton Community Bank, 82 Ill.2d 40, 4111 N.E.2d 229 (1980). Plaintiff here clearly was not successful in the disciplinary proceedings, and thus fails to allege facts establishing the second element. 8 Furthermore, while the issue of whether the common law tort of malicious prosecution is a federal constitutional wrong which may be remedied under 42 U.S.C. Sec. 1983 is an open question (Albright v. Oliver, 975 F.2d 343 (7th Cir.1992), cert. granted, 61 U.S.L.W. 3596 (March 2, 1993) (No. 92-883)), nothing in the record here establishes malicious prosecution of "constitutional magnitude" such that it deprived plaintiff of liberty or property without due process of law. See Biddle v. Martin, 992 F.2d 673 (7th Cir.1993); Mahoney v. Kesery, 976 F.2d 1054 (7th Cir.1992). B. Summary Judgment on Due Process Claim 9 Williams argues that summary judgment was improper because factual disputes remain regarding the question of whether the disciplinary hearing violated his rights to due process. We review the district court's summary judgment determination de novo. Marshall v. Allen, 984 F.2d 787 (7th Cir.1993). In conducting this review, we consider the evidence in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 10 The minimum requirements of procedural due process in a prison disciplinary hearing include (1) advance written notice of the charges; (2) the opportunity to call witnesses and present documentary evidence, if doing so will not jeopardize the safety of the institution; and (3) a written statement of the evidence relied on and the reasons for the disciplinary action. Wolff v. McDonnell, 418 U.S. 539, 557 (1974). 11 These procedural requirements were met here and Williams does not really argue otherwise. See Cain v. Lane, 857 F.2d 1139 (7th Cir.1988). Instead, Williams maintains there was insufficient evidence to support the disciplinary board's decision. Requirements of due process are met if "some evidence" supports the decision. Superintendent, Mass. Correctional Institution v. Hill, 472 U.S. 445, 455-56 (1985).3 To determine whether a prison official used excessive force in violation of the eighth amendment, we must consider "whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Whitley v. Albers, 475 U.S. 312, 320-21 (1986), quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033 (1973). 12 Here, the committee found the officers' testimony credible. The officers testified that Williams tried to get away from Skeen by spinning around and jerking away, and then reaching for Heath's gun. Williams struck Heath in the arm; bit both Heath and Skeen; and kicked Gundy. A prisoner in the act of escape may pose a serious threat to members of the community and prison officials must take reasonable measures to prevent an escape. Kinney v. Indiana Youth Center, 950 F.2d 462, 465 (7th Cir.1991). Moreover, the extent of the threat to the safety of staff is a relevant factor to take into consideration, as reasonably perceived by the responsible officials on the basis of the facts known to them and any efforts made by them to temper the severity of a forceful response. Whiteley v. Albers, 475 U.S. at 321. The evidence here failed to show intent to maliciously or sadistically cause harm to Sullivan. The evidence sufficiently supports the committee's decision. 13 Williams argues that he has a fundamental right "not to have state officials make purposefully false statements" about him. An allegation that a prison guard offered false evidence or false reports in order to implicate an inmate in a disciplinary infraction fails to state a claim for which relief can be granted where the procedural due process protections as required in Wolff are provided. Hanrahan v. Lane, 747 F.2d 1137, 1141 (7th Cir.1984). The procedural requirements of a disciplinary hearing protect prisoners from arbitrary actions of prison officials. McKinney v. Meese, 831 F.2d 728, 733 (7th Cir.1987). C. Racial Composition of Jury 14 Williams argues that the venire contained no black people, which was not reflective of Peoria, which "has a substantial number of colored people." In addition, voir dire was unfair because several pages were missing from the jurors' questionnaire sheets, "disadvantaging me as pro se to follow the proceedings on my inquiry for selection and or striking." Williams waived this issue by not raising it in the district court. Michaels v. Michaels, 767 F.2d 1185, 1203 (7th Cir.1985), cert. denied, 474 U.S. 1057 (1986); Gonzales v. Volvo of America Corp., 752 F.2d 295, 298 (7th Cir.1985). See also King v. Jones, 824 F.2d 324, 326 (4th Cir.1987) (waiver of Batson issues where no timely objection was made as required by Fed.R.Civ.P. 46). D. Motion in Limine 15 Williams contends that the district court erred in granting defendant Heath's motion in limine to bar use of Heath's prior felony convictions. "It was very important to allow the jury to know that Robert W. Heath was serving a term of five years felony probation after conviction for drug conspiracy after my claims for malicious prosecution had been wiped from the slate." Williams has again waived the issue by making no objection in the district court to defendants' motion in limine. Howland v. Kilquist, 833 F.2d 639, 643 (7th Cir.1987). 16 For these reasons, the judgment of the district court is AFFIRMED. 1 After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed.R.App.P. 34(a); Circuit Rule 34(f). No such statement having been filed, the appeal has been submitted on the briefs and record 2 Illinois has not determined whether a prison disciplinary proceeding would fall under the definition of "judicial proceeding." Cf. Greer v. DeRobertis, 568 F.Supp. 1370 (N.D.Ill.1983) (prison disciplinary hearing is not the type of adversarial hearing which can give rise to a claim for malicious prosecution) 3 Defendant cites Goff v. Dailey, 789 F.Supp. 978 (S.D.Iowa 1992) for the proposition that a "preponderance of evidence" standard is required. The Eighth Circuit affirmed in part, but reversed the district court's holding that the use of a "some evidence" standard violated plaintiff's right to due process. 991 F.2d 1437, 1438 (8th Cir.1993)	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT September 12, 2003 Charles R. Fulbruge III Clerk No. 02-30920 Summary Calendar UNITED STATES OF AMERICA, Plaintiff - Appellee, versus LAWRENCE BERNARD HALL, also known as Larry, Defendant - Appellant. * * * * * Consolidated with 02-30962 * * * * * UNITED STATES OF AMERICA, Plaintiff - Appellee, versus ANGELO DONDEE NORMAN, Defendant - Appellant. * * * * * Consolidated With 02-31194 * * * * * UNITED STATES OF AMERICA, Plaintiff - Appellee, versus STANLEY L HAMBURG, Defendant - Appellant. No. 02-30920 c/w 02-30962 & 02-31194 -2- -------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 01-CR-30043-1 -------------------- Before JONES, BENAVIDES, and CLEMENT, Circuit Judges. PER CURIAM:* Lawrence Bernard Hall, Angelo Dondee Norman, and Stanley L. Hamburg, appeal following their guilty-plea convictions for conspiracy to distribute 50 grams or more of cocaine base. The Federal Public Defender appointed to represent Hall has moved for leave to withdraw from this appeal and has filed a brief as required by Anders v. California, 386 U.S. 738 (1967). Hall was mailed a copy of counsel’s motion and brief but has not filed a response. Our independent review of the brief and the record discloses no nonfrivolous issue with respect to Hall. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and Hall’s APPEAL IS DISMISSED. See 5TH CIR. R. 42.2. Norman argues that the district court clearly erred in assessing a U.S.S.G. § 3B1.1(b) three-level adjustment for his leadership role in the offense. Norman blue brief, 8-13. He contends that, but for this adjustment, he would have qualified for a safety valve reduction pursuant to U.S.S.G. § 5C1.2. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 02-30920 c/w 02-30962 & 02-31194 -3- We hold that the Government met its burden of proving by a preponderance of the evidence that Norman played a leadership role in the offense and that the criminal activity involved at least five participants. United States v. Elwood, 999 F.2d 814, 817 (5th Cir. 1993). Accordingly, the district court did not clearly err in assessing a three-level increase pursuant to U.S.S.G. § 3B1.1(b). United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998). As a defendant receiving an aggravating role adjustment pursuant to U.S.S.G. § 3B1.1, Norman was ineligible for relief under the safety valve provision. See U.S.S.G. § 5C1.2(4). Accordingly, his sentence is AFFIRMED. Hamburg argues that, since the statutory minimum sentence and his guideline minimum sentence were the same, the district court was authorized to depart below the statutorily-mandated ten-year minimum for his offense. Because Hamburg raises this issue for the first time on appeal, it is subject to plain error review. Pursuant to FED. R. CRIM. P. 52(b), we may correct forfeited errors only when the appellant shows the following factors: (1) there is an error, (2) that is clear or obvious, and (3) that affects his substantial rights. United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc) (citing United States v. Olano, 507 U.S. 725, 731-37 (1993)). Because Hamburg fails to identify “clear or obvious” error, his sentence is AFFIRMED. See Melendez v. United States, 518 U.S. 120, 125-26, 129-30 (1996).	{ "pile_set_name": "FreeLaw" }
FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D17-2252 _____________________________ JOSEPH FRANKLIN, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Leon County. James Hankinson, Judge. March 15, 2018 PER CURIAM. AFFIRMED. WOLF, RAY, and BILBREY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Joseph Franklin, pro se, Appellant. Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee. 2	{ "pile_set_name": "FreeLaw" }
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED March 14, 2008 No. 07-30204 Summary Calendar Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. EMILE NICKERSON Defendant-Appellant Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:05-CR-108-1 Before JOLLY, DAVIS and DeMOSS, Circuit Judges PER CURIAM:* Emile Nickerson was convicted of three counts of distributing crack cocaine and sentenced to serve ten years in prison. Nickerson appeals his convictions. He argues that he should have been permitted to withdraw his pleas because the district court did not accept them at rearraignment. Nickerson has shown no plain error in connection with this claim. See United States v. Vasquez, 216 F.3d 456, 459 (5th Cir. 2000). Indeed, Nickerson has failed to show that the district court did not accept his plea at rearraignment. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 07-30204 Rather, the record is unclear concerning when the plea was accepted. A fortiorari, Nickerson has shown no plain error in connection with his claim that he was entitled to withdraw his plea because it had not yet been accepted. See id. The judgment of the district court is AFFIRMED. 2	{ "pile_set_name": "FreeLaw" }
COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 2-08-432-CR RYAN ADAM FRITZ APPELLANT V. THE STATE OF TEXAS STATE ------------ FROM THE 362ND DISTRICT COURT OF DENTON COUNTY ------------ MEMORANDUM OPINION[1] ------------ Introduction Appellant Ryan Adam Fritz appeals his conviction for five counts of online solicitation of a minor. See Tex. Penal Code Ann. ' 33.021 (Vernon Supp. 2008). In two related points, he asserts that the trial court erred when it granted the State=s motion to amend the original indictment and when it denied his motions to quash both the original and the amended indictments. We affirm. Background Facts A grand jury indicted appellant for five counts of online solicitation of a minor. The indictment specified the statutory provision appellant had violated as section 33.021 of the penal code; it also related the dates of each separate offense and, in all but Count IV, the .jpg file names of the explicit material that appellant had distributed. The indictment used mostly identical wording from the statute. Counts I, II, III, and V stated that appellant, on or about [date], and anterior to the presentment of this Indictment, in [Denton County], did then and there, being a person who was 17 years of age or older, with the intent to arouse or gratify the sexual desire of the defendant, intentionally distribute over the Internet or by electronic mail or by a commercial online service in a sexually explicit manner, to-wit: A[file name].jpg@ to an individual whom the defendant believes to be younger than 17 years of age or an individual who represents himself to be younger than 17 years of age.[2] Appellant filed a motion to quash the indictment, contending that it did not give him adequate notice of the nature of the charges or apprise him of when he allegedly committed the offenses (for the purpose of pleading double jeopardy). The State moved to amend the indictment, stating in its motion, [T]he words Ain a sexually explicit manner@ should be deleted; and the words Asexually explicit material@ should be substituted, so as to make the Indictment, in pertinent part, read as follow[s]: A. . . intentionally distribute over the Internet or by electronic mail or by a commercial online service sexually explicit material, to-wit: . . .@ The State would show that said amendment does not charge the Defendant with an additional or different offense, nor does it prejudice the substantial rights of the Defendant. The trial court granted the motion to amend through an order and by making changes on the face of the indictment. Appellant filed a motion to quash the amended indictment for reasons similar to those in his first motion.[3] The trial court denied appellant=s motion. Months later, appellant pled guilty to all counts. The trial court convicted appellant of all counts, and appellant timely filed his notice of this appeal. Applicable Law and Analysis Allowing the State to amend its indictment In his first point, appellant contends that the original indictment did not allege any crime, that the trial court therefore did not have jurisdiction to allow the State to amend the indictment, and that even if the trial court did have jurisdiction, it violated article 28.10 of the code of criminal procedure by allowing the amendment. See Tex. Code Crim. Proc. Ann. art. 28.10 (Vernon 2006). To determine whether the trial court had jurisdiction over this case, we must look to the indictment as a whole, not to its specific formal requisites, to decide if the State accused appellant with enough clarity and specificity for him to identify the charge of online solicitation of a minor, even if the indictment is otherwise defective. See Teal v. State, 230 S.W.3d 172, 180B81 (Tex. Crim. App. 2007); Duron v. State, 956 S.W.2d 547, 550B51 (Tex. Crim. App. 1997); see also Ex parte Gibson, 800 S.W.2d 548, 551 (Tex. Crim. App. 1990) (orig. proceeding) (explaining that Aif the instrument comes from the grand jury, purports to charge an offense and is facially an indictment, then it is an indictment . . . and its presentation by a State=s attorney invests the trial court with jurisdiction to hear the case@); Ex Parte Jessep, 281 S.W.3d 675, 681 (Tex. App.CAmarillo 2009, pet. filed) (stating that A[i]f the allegations in it are clear enough that one can identify the offense alleged, the indictment is sufficient to confer subject matter jurisdiction@). The right to notice of the charges contained in an indictment is constitutional in nature. See Smith v. State, No. AP‑75479, 2009 WL 1212500, at 3 (Tex. Crim. App. May 6, 2009); Ahmad v. State, No. 02‑08‑00008‑CR, 2009 WL 1507052, at 11 (Tex. App.CFort Worth May 28, 2009, no pet. h.); Perez v. State, 261 S.W.3d 760, 769 (Tex. App.CHouston [14th Dist.] 2008, pet. ref=d). Section 33.021 of the penal code states in pertinent part, (b) A person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally: (1) communicates in a sexually explicit[[4]] manner with a minor;[[5]] or (2) distributes sexually explicit material to a minor. (c) A person commits an offense if the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person. Tex. Penal Code Ann. ' 33.021(b)B(c) (emphasis added). Here, the allegations in the original indictment signaled to appellant that he was charged with, under section 33.021 of the penal code, distributing particularly designated sexually explicit .jpg files over the internet to an individual he believed to be, or who represented himself to be, younger than seventeen. While the original indictment used the word Amanner@ (a term used in subsection (b)(1) of the statute) rather than Amaterial@ (a term used in subsection (b)(2)), it was still clear enough to allege a crime under subsection (b)(2), because it focused on distributing and not communicating (which is the verb used in subsection (b)(1)), and it specifically described the .jpg files that appellant distributed. Thus, we hold that the trial court had jurisdiction on the basis of the original indictment. We must also overrule the remainder of appellant=s first point, regarding the trial court=s compliance with article 28.10. Article 28.10 prescribes the following procedure for amending an indictment: (a) After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences. On the request of the defendant, the court shall allow the defendant not less than 10 days,[[6]] or a shorter period if requested by the defendant, to respond to the amended indictment or information. (b) A matter of form or substance in an indictment or information may also be amended after the trial on the merits commences if the defendant does not object. (c) An indictment or information may not be amended over the defendant=s objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced. Tex. Code Crim. Proc. Ann. art. 28.10. A Adifferent offense@ under article 28.10(c) means a different statutory offense. Brown v. State, 155 S.W.3d 625, 628 (Tex. App.CFort Worth 2004, pet. ref=d). A change in an element of an offense, proof, or victim does not constitute charging a different statutory offense. Flowers v. State, 815 S.W.2d 724, 728 (Tex. Crim. App. 1991); Brown, 155 S.W.3d at 628 (concluding that burglary with intent to commit assault and burglary with attempted or completed assault are not different offenses); Garth v. State, 3 S.W.3d 218, 222B23 (Tex. App.CDallas 1999, no pet.) (concluding that changing the value of stolen property in a theft information, although clarifying the level of offense, did not change the nature of the statutory offense); Bynum v. State, 874 S.W.2d 903, 905B06 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d) (involving a different victim). Here, the amended indictment, by merely changing the word Amanner@ to Amaterial@ to precede the description of the electronic file name in four of the indictment=s counts, did not charge appellant with a new or different offense. As explained above, the original indictment adequately described an offense under section 33.021(b)(2), and the amended indictment charged him with that same offense. Also, appellant does not dispute that he distributed the electronic files or that distributing the electronic files under the circumstances of his distribution (whether the files were defined as Amanner@ or Amaterial@) comprised a violation of the law,[7] even if the other specific verbiage in the indictment was initially incorrect. See Posey v. State, 545 S.W.2d 162, 163 (Tex. Crim. App. 1977); Rotenberry v. State, 245 S.W.3d 583, 586 (Tex. App.CFort Worth 2007, pet. ref=d). Finally, appellant=s substantial rights were not prejudiced because he knew before and after the amendment (1) the general section of the penal code where the offense was located, (2) the dates that he committed his crimes, and (3) the names of the sexually explicit files that he distributed. See Tex. Code Crim. Proc. Ann. art. 28.10(c). We overrule appellant=s first point. Denying appellant=s motion to quash In his second point, appellant argues that the trial court erred when it denied his motions to quash the indictment. We disagree. When reviewing a trial court=s decision to deny a motion to quash an indictment, we apply a de novo standard of review. Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 2056 (2008); State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004) (explaining that the sufficiency of an indictment is a question of law). AUpon the filing of a timely motion to quash, an indictment must be analyzed to determine whether it states on its face the facts necessary to allege that an offense was committed, to bar a subsequent prosecution for the same offense, and to give the accused notice of the precise offense with which he is charged.A Rotenberry, 245 S.W.3d at 586. The indictment must state facts which, if proved, show a violation of the law; the indictment must be dismissed if such facts would not constitute a criminal offense. Id.; see Posey, 545 S.W.2d at 163. When a motion to quash is overruled, a defendant suffers no harm unless he did not, in fact, receive notice of the State=s theory against which he would have to defend. Moff, 154 S.W.3d at 601, 603; see also Tex. Code Crim. Proc. Ann. art. 21.19 (Vernon 2009) (AAn indictment shall not be held insufficient, nor shall the trial, judgment or other proceedings thereon be affected, by reason of any defect of form which does not prejudice the substantial rights of the defendant.@). Appellant argues that the State=s amended indictment is defective because it is not specific enough. Specifically, he asserts that the indictment did not limit itself to alleging only one of the ways that he could have distributed the .jpg files: over the internet or by electronic mail or by a commercial online service under penal code section 33.021(b); that the indictment was required to exactly define the nature of the explicit material (whether it was a Acommunication, language, or material, including a photographic or video image@) under penal code section 33.021(a)(3); and that the indictment was also required to specify which category of sexual conduct the .jpg files related to under penal code section 43.25.[8] However, in most cases, Aan indictment is legally sufficient if it delineates the penal statute in question.@ See Moff, 154 S.W.3d at 602; Roberts v. State, 278 S.W.3d 778, 792 (Tex. App.CSan Antonio 2008, pet. filed); see also DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988) (explaining that a Amotion to quash should be granted only where the language concerning the defendant=s conduct is so vague or indefinite as to deny the defendant effective notice of the acts he allegedly committed@); State v. Laird, 208 S.W.3d 667, 669 (Tex. App.CFort Worth 2006, no pet.) (same). And although the State in some circumstances is required to go further by specifying manners and means of committing an offense in its indictment, it is entitled to, conjunctively or disjunctively, allege any or all of the statutorily defined types of conduct. See State v. Winskey, 790 S.W.2d 641, 642 (Tex. Crim. App. 1990) (explaining that if Aa statute provides more than one way for the defendant to commit the act or omission, then on timely request the State must allege the manner and means it seeks to establish, either separately or in some disjunctive combination@) (emphasis added); Queen v. State, 662 S.W.2d 338, 341 (Tex. Crim. App. 1983); Ferguson v. State, 622 S.W.2d 846, 851 (Tex. Crim. App. 1981) (op. on reh=g); Hartis v. State, 183 S.W.3d 793, 801 (Tex. App.CHouston [14th Dist.] 2005, no pet.). Also, the indictment is not required to contain matters that are only evidentiary, such as the specific manner of contact in an indecency with a child case. See State v. Shuck, 222 S.W.3d 113, 115B16 (Tex. App.CHouston [14th Dist.] 2006, no pet.). Here, the amended indictment delineated section 33.021 of the penal code, and it further informed appellant of the acts that the State alleged he committed by stating the manner of distribution in a disjunctive format, by naming the specific .jpg files at issue (which defined the nature of the sexually explicit material with more particularity than section 33.021(a)(3) does), and by giving the dates of the files= distributions. We therefore hold that appellant did not lack notice of the offense he was charged with and that the indictment properly explained the offense. See also Gray v. State, 980 S.W.2d 772, 775 n.2 (Tex. App.CFort Worth 1998, no pet.) (explaining that A[a]lternative pleading of differing methods of committing one offense may be charged in one indictment@); Braughton v. State, 749 S.W.2d 528, 530 (Tex. App.CCorpus Christi 1988, pet. ref=d) (relating that the AState need not elect between various theories@). Next, neither appellant=s motion to quash the original indictment nor his motion to quash the amended indictment adequately set forth the manner in which the indictments= notice was allegedly deficient[9] (as appellant now attempts to do in his brief, as related above), so the State was not required to give him any more detailed notice even if the original notice was deficient. See DeVaughn, 749 S.W.2d at 69B70; State v. Goodman, 221 S.W.3d 116, 120 (Tex. App.CFort Worth 2006, no pet.). Finally, even if the amended indictment was deficient and appellant=s motions adequately demonstrated such, appellant cannot show harm based on the trial court=s denial of his motions because he pled guilty to the offenses in the amended indictment and he has not directed us to any portion of the record indicating that he would not have done so if the indictment had been more specific.[10] See Tex. Code Crim. Proc. Ann. art. 21.19; Adams v. State, 707 S.W.2d 900, 903 (Tex. Crim. App. 1986) (requiring an appellant to show prejudice to substantial rights from the lack of notice in an indictment); Weaver v. State, No. 01‑99‑00966‑CR, 2001 WL 722839, at *1 (Tex. App.CHouston [1st Dist.] June 28, 2001, pet. ref=d) (not designated for publication); Hodge v. State, 756 S.W.2d 353, 357 (Tex. App.CDallas 1988, no pet.) (explaining that by pleading guilty, the appellant had no Aneed to defend himself and thereby no longer stood to profit trial‑wise from [the indictment=s] additional specifications@). For all of these reasons, we hold that the trial court did not err by denying appellant=s motions to quash, and we overrule appellant=s second point. Conclusion Having overruled both of appellant=s points, we affirm the trial court=s judgment. TERRIE LIVINGSTON JUSTICE PANEL: LIVINGSTON, WALKER, and MCCOY, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: July 16, 2009 [1]See Tex. R. App. P. 47.4. [2]Count IV, related to appellant=s attempt to meet someone under seventeen for sexual purposes, was slightly different and was not amended by the State. [3]In his second motion, appellant asserted, To perform the duty to investigate, prepare, and establish possible defenses, Defendant is entitled to a specific allegation of what the State will rely upon to convict. Defendant is not required to anticipate any and variant facts that the State might hypothetically seek to establish. The presumption of innocence coupled with the right to notice require that Defendant be given such notice. [4]A communication is sexually explicit when it relates to or describes sexual conduct as defined by section 43.25 of the penal code. See Tex. Penal Code Ann. ' 33.021(a)(3), ' 43.25(a)(2) (Vernon Supp. 2008). [5]The statute defines Aminor@ as someone who represents himself or herself to be younger than seventeen or who the defendant believes to be younger than seventeen. Tex. Penal Code Ann. ' 33.021(a)(1). [6]Appellant does not complain about the amount of time he had to respond to the amended indictment. The trial court amended the indictment in November 2007, and appellant did not plead guilty until July 2008. [7]In pleading guilty, appellant affirmed that he understood the charge contained in the indictment and confessed that he committed the acts alleged in the indictment. [8]Under section 43.25, sexual conduct is Asexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado‑masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.@ Tex. Penal Code Ann. ' 43.25(a)(2). [9]The first motion merely stated that the State=s indictment was Afatally deficient in that Defendant is not given adequate notice of the manner and means by which the State alleges that Defendant (allegedly) violated any offense.@ The second motion included that same statement and then argued only that the amended indictment was Afatally deficient in that Defendant is not given any notice of one of the elements of the offense sought to be charged.@ It then went on to allege what the evidence would show and that section 33.021 is unconstitutional. [10]Again, appellant affirmed that he understood the charges in the indictment while pleading guilty.	{ "pile_set_name": "FreeLaw" }
336 Mass. 691 (1958) 147 N.E.2d 751 PEERLESS CASUALTY COMPANY vs. MARINUCCI BROS. & CO. INC. Supreme Judicial Court of Massachusetts, Suffolk. November 4, 1957. February 5, 1958. Present: WILKINS, C.J., RONAN, SPALDING, COUNIHAN, & WHITTEMORE, JJ. James F. Sullivan, for the defendant. Anthony G. Muello, for the plaintiff. COUNIHAN, J. This is an action of contract brought in the Municipal Court of the City of Boston in which the plaintiff seeks to recover in count 1 of its declaration upon an account annexed and in count 2 under a contract of indemnity, for counsel fees and expenses it had incurred as surety for a builder upon certain bonds. There was evidence that on May 11, 1949, Matthew Cummings & Son, hereinafter called Cummings, executed a contract with the Chinese Merchants Association, Inc., hereinafter called the Association, to erect a building for the Association in Boston for the sum of $742,600. In connection with this contract the plaintiff, hereinafter called Peerless, as surety, together with Cummings, the contractor, on August 9, 1949, executed in favor of the Association a labor and material payment bond in the sum of $371,300 and a performance bond in the sum of $742,600. By the terms of the performance bond, if Cummings should be in default of any of the terms of the building contract with the Association, Peerless could remedy the default or at its option could complete the building construction contract or arrange for such completion and be liable for any difference between the contract price and the actual cost of completing the building, if it should be in excess of the contract price. On August 9, 1949, the same date on which the surety 693 bonds were executed, the contract of indemnity which is the basis of this action was executed and delivered to Peerless by Cummings and the defendant, sometimes hereinafter called Marinucci. In clause 3 of the indemnity contract Cummings and Marinucci agreed that they "shall and will at all times, indemnify and keep indemnified ... [Peerless] from and against any and all claims, demands ... counsel fees ... [and] expenses ... that ... [Peerless] shall or may for any cause at any time sustain or incur by reason of or in consequence of the said bonds ..." (emphasis supplied). On February 2, 1951, the Association notified Peerless that Cummings was in default of the terms of the building contract. Earlier Peerless had caused Mr. Mulready, an attorney, to investigate and report concerning the difficulties of Cummings. Between January 15 and March 8, 1951, Mr. Mulready engaged in many conferences with representatives of the Association, Cummings and Marinucci in an endeavor to find a satisfactory solution of the situation. As a result largely through the efforts of Mr. Mulready, on March 8, 1951, Marinucci and the Association entered into a contract to complete the building. There were also outstanding bills for materials already furnished and moneys due subcontractors for work already done or to be done in order to complete the job. For this purpose the Association put $218,795.42 into a bank account to be disbursed by five trustees, one of whom was Mr. Mulready, another the attorney for the Association, two others were officers of the Association, and another the attorney for Marinucci. Marinucci completed the contract and on December 1, 1951, the building was accepted by the Association. None of the trustees was paid anything out of the money put up by the Association. Mr. Mulready and his cotrustees approved bills for materials and bills from subcontractors to complete the job, settled claims for extras, and adjusted all disputes which arose during the completion of the job. For such work and his services in investigating and adjusting Cummings's financial situation during the period from 694 January 15, 1951, to December 1, 1951, Mr. Mulready was paid $4,000 by Peerless. It is this sum which Peerless seeks in this action to recover from Marinucci under the agreement of indemnity. The judge at the first trial permitted the plaintiff to recover only the sum of $500 for counsel fees incurred by the plaintiff during the period from February 2, 1951 (when the Association notified Peerless of Cummings's default in the building contract), to March 8, 1951, when the new contract for completion was entered into by the Association and Marinucci. Upon a claim of report by both the plaintiff and the defendant to the Appellate Division it was ruled that certain rulings of the judge were in error. The finding for the plaintiff was vacated and the case was remanded for a retrial on the issue of damages only. At the second trial the judge restricted the issues to the question of damages and found for the plaintiff in the sum of $4,000 which it had paid Mr. Mulready for counsel fees and services for the period between February 2, 1951, and December 1, 1951. Upon a report claimed by the defendant after the second trial the Appellate Division dismissed the report. We do not deem it necessary to recite the requests for rulings and the action of the judge upon them at either trial. It is apparent that they were all based upon a misconception of the plaintiff's claim. It is enough to say that we find no error in either the first or the second order of the Appellate Division which disposed of such requests. The appeal from the order of the Appellate Division after the second trial properly brings here for review both orders of the Appellate Division. Weiner v. Pictorial Paper Package Corp. 303 Mass. 123, 125-130. Redfield v. Abbott Shoe Co. 335 Mass. 208. Via v. Asbestos Textile Co. Inc. 335 Mass. 210. The defendant argues that because a new contract was entered into between the Association and the defendant on March 8, 1951, all obligations of the plaintiff as surety on the performance bond and the labor and material bond terminated. 695 The defendant ignores the fact, however, that this action is for a breach of the contract of indemnity between the plaintiff, Cummings and Marinucci which was executed simultaneously with the execution by the plaintiff and Cummings of the performance bond and the labor and material bond. Because of the default of Cummings in respect to either or both of these bonds the plaintiff is entitled under the terms of the indemnity agreement to be reimbursed for whatever moneys it reasonably expended for counsel fees for investigation and adjusting the situation occasioned by the default of Cummings. Century Indemnity Co. v. Bloom, 325 Mass. 52, 56. In clause 3 of the indemnity agreement the defendant bound itself to indemnify the plaintiff for any counsel fees and expenses which the plaintiff might "for any cause at any time sustain or incur by reason of or in consequence of" (emphasis supplied) the performance bond and the labor and material bond. It is plain that the broad language of clause 3 manifests an intention to provide comprehensive protection to the plaintiff for any losses which it might sustain because of its obligations on these surety bonds. Curtis v. Banker, 136 Mass. 355, 359. Hartford Accident & Indemnity Co. v. Casassa, 301 Mass. 246, 255. Compare Calamita v. DePonte, 122 Conn. 20, 27. The expenses and counsel fees paid to Mr. Mulready were properly recoverable by the plaintiff for the plaintiff's liability as surety on the performance bond and the labor and material bond did not terminate when the contract was entered into between the Association and Marinucci. It was always possible that the entire cost of completing the building might exceed the $742,600 named in the original building contract so that Peerless might have been required to pay any excess to the Association. Peerless therefore acted reasonably in employing Mr. Mulready to protect its interest and the judge in the second trial apparently found that $4,000 was not an unreasonable sum for such services. Such sum is recoverable under count 2 of the plaintiff's declaration so that we need not determine whether the whole 696 or any part of such money is recoverable under count 1 and count 3 added by amendment after the first decision of the Appellate Division. Orders of Appellate Division affirmed.	{ "pile_set_name": "FreeLaw" }
481 S.E.2d 592 (1997) 224 Ga. App. 606 LANE v. SPRAGG et al. No. A96A2328. Court of Appeals of Georgia. February 12, 1997. Certiorari Denied May 9, 1997. 593 Freed, Lester & Klorfein, William R. Lester, Benjamin I. Fink, Atlanta, for appellant. Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, John R. Bevis, Marietta, for appellees. SMITH, Judge. In this lawsuit, Robin Lane seeks to recover damages from Dr. C.H. Spragg ("Dr. Spragg") for the wrongdoing of Spragg's son and alleged partner, Bradley Spragg ("Bradley"). The trial court found, as a matter of law, that Dr. Spragg was not his son's actual or ostensible partner and granted him summary judgment. Lane appeals from this ruling. We affirm. Under the standard of Lau's Corp. v. Haskins, 261 Ga. 491, 495, 405 S.E.2d 474 (1991), a defendant may obtain summary judgment if he shows, by the record, an absence of evidence to support an essential element of the plaintiff's case. In determining whether the trial court properly granted summary judgment to Dr. Spragg, we review the record de novo, construing the evidence and all inferences from the evidence strongly in favor of the nonmoving party. Denise v. Cannon, 219 Ga.App. 765, 766, 466 S.E.2d 885 (1995). The record before us shows the trial court's ruling is correct. Bradley Spragg operated "Southwood Farm" and was in the business of boarding and training horses and giving riding lessons. As part of that business, it appears Bradley acted as Lane's agent for purchase of a horse. Lane's suit involves misrepresentations Bradley allegedly made to her during the course of that purchase. Lane claims Dr. Spragg's involvement in Bradley's business shows the two were partners or ostensible partners. The evidence shows that Dr. Spragg assisted Bradley in several ways: He co-signed the loan that allowed Bradley to purchase Southwood Farm; he co-signed the lease on Bradley's residence; he gave Bradley financial advice; and he made other personal loans and gifts to his son. Southwood's standard release of liability form also releases Dr. Spragg. In her affidavit in response to the motion for 594 summary judgment, Lane stated Bradley told her he and his father were partners in the business. She also recalled a conversation in which Dr. Spragg stated he had "some ownership interest" in the business. By virtue of her dealings with Southwood, Lane claims she had been led to believe and "had been given the impression" that Bradley Spragg and Dr. Spragg were partners. Dr. Spragg, however, filed an affidavit denying he and his son had any partnership arrangement. He denied sharing in the profits and losses of the business and stated his only interest in Southwood Farm was as a father and as a co-signer of the loans made to purchase the business. In his deposition, Dr. Spragg admitted telling people that he had financed his son's business; however, he denied telling anyone he and his son were in business together and denied knowledge of any instance in which Bradley represented that the two were partners.[1] The evidence shows, as a matter of law, that Bradley and Dr. Spragg were not actual partners. "A partnership is an association of two or more persons to carry on as co-owners a business for profit." OCGA § 14-8-6(a). Here, direct evidence shows Bradley and Dr. Spragg were not actual partners. No inference from Dr. Spragg's aid to his son is sufficient to support a contrary conclusion. See Andrews v. Messina, 206 Ga.App. 742, 743-744(2), 426 S.E.2d 641 (1992). Neither does the evidence support Lane's contention that Dr. Spragg may be liable for Bradley's acts as his "ostensible" partner. By statute, a person may be bound to pay partnership liabilities when he, "by words spoken or written or by conduct, represents himself, or consents to another representing him to any one, as a partner in an existing partnership." OCGA § 14-8-16(a); see Andrews, supra at 744(3), 426 S.E.2d 641. Lane's affidavit consists primarily of conclusory allegations that Dr. Spragg somehow led her to believe he and his son were partners. However, "[i]n response to a motion for summary judgment, a party cannot rest on generalized allegations, but must come forward with specific facts to show that there is a genuine issue for trial. [Cit.]" Ga. Recovery v. Danley, 215 Ga.App. 236, 237(1), 450 S.E.2d 263 (1994). We address those specific facts upon which Lane bases her opposition to the trial court's grant of summary judgment. First, assuming Bradley told Lane that Dr. Spragg was his partner, that fact is immaterial in light of Dr. Spragg's uncontradicted testimony denying any knowledge of this statement or any like it. "A person who permits himself to be held out as a partner in a business will be bound for the partnership contracts. [Cit.]" (Emphasis supplied.) Time Fin. Svcs. v. Hewitt, 139 Ga.App. 270, 272-273(5), 228 S.E.2d 176 (1976). See comment to OCGA § 14-8-16, noting that this statute provides for liability only where the ostensible partner consents to being held out as a partner. The record shows no evidence that Dr. Spragg consented to his son's statement. In the relevant cases on which Lane relies, either evidence was presented that the ostensible partner represented himself as a partner, Pope v. Triangle Chem. Co., 157 Ga.App. 386, 388(3), 277 S.E.2d 758 (1981); Hewitt, supra at 272(5), 228 S.E.2d 176, or knew that another had represented him as a partner and failed to deny that representation, Clarke v. Woodward, 76 Ga.App. 181, 185-186, 45 S.E.2d 473 (1947). Second, Lane interprets Dr. Spragg's statement that he had an "ownership interest" in Southwood Farm to mean he and his son were partners. This interpretation is purely speculative. "[I]n ruling on a motion for summary judgment, a finding of fact that may be inferred from, but is not demanded by, circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists, [cit.] provided that the circumstantial evidence may be construed consistently with the direct evidence. [Cit.]" Copeland v. Houston County Hosp. Auth., 215 Ga.App. 207, 208, 450 S.E.2d 235 (1994). While Dr. Spragg may have had an "ownership interest" because he was financially *595 obligated to repay the Southwood loans should Bradley default, or because he co-signed a lease with his son, these interests do not amount to a partnership. See Hewitt, supra at 271-272, 228 S.E.2d 176 (relationship of creditor and debtor does not create partnership). Dr. Spragg's alleged statement that he had an "ownership interest" is thus consistent with his testimony denying that he held himself out as Bradley's partner. Under the circumstances of this case, Dr. Spragg has pierced the pleadings by offering direct evidence he had no partnership arrangement with his son and never held himself out as his son's partner or consented to be held out as a partner. Lane has failed to present specific facts creating any jury question on this issue. See Lau's Corp., supra; Southeastern Wholesale Supply Co. v. Guevara, 191 Ga.App. 600, 601, 382 S.E.2d 685 (1989) (evidence established only that wife assisted husband's business). The trial court did not err in granting summary judgment. Judgment affirmed. ANDREWS, C.J., and POPE, P.J., concur. NOTES [1] In her brief, Lane points to Dr. Spragg's deposition testimony in which he states "we" bought Southwood Farm. On the deposition's errata sheet, however, Dr. Spragg stated that "we" should have been transcribed as "he," referring to Bradley.	{ "pile_set_name": "FreeLaw" }
People v Hickey (2019 NY Slip Op 03364) People v Hickey 2019 NY Slip Op 03364 Decided on May 1, 2019 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on May 1, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. COLLEEN D. DUFFY FRANCESCA E. CONNOLLY LINDA CHRISTOPHER, JJ. 2014-07270 (Ind. No. 444/13) [1]The People of the State of New York, respondent, vTimothy Hickey, appellant. Carol E. Castillo, E. Setauket, NY, for appellant. Timothy D. Sini, District Attorney, Riverhead, NY (Grazia DiVincenzo of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Suffolk County (John J. Toomey, J.), rendered July 17, 2014, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree (three counts), upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (Mark D. Cohen, J.), of those branches of the defendant's omnibus motion which were to suppress physical evidence and statements he made to law enforcement officials. ORDERED that the judgment is reversed, on the law, the defendant's plea of guilty is vacated, those branches of the defendant's omnibus motion which were to suppress physical evidence and statements he made to law enforcement officials are granted, the indictment is dismissed, and the matter is remitted to the County Court, Suffolk County, for further proceedings consistent with CPL 160.50. The defendant was charged with criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree (three counts). After a hearing, the County Court denied those branches of the defendant's omnibus motion which were to suppress physical evidence and statements he made to law enforcement officials. The defendant, as a part of a negotiated plea disposition, entered a plea of guilty to the counts charged in the indictment. The court rendered a judgment of conviction, and the defendant appeals. On appeal, the defendant challenges the suppression determination. We agree with the defendant that the County Court should have granted those branches of the defendant's omnibus motion which were to suppress physical evidence and statements he made to law enforcement officials. At the suppression hearing, the People proffered, inter alia, the testimony of Police Officer Temple. Officer Temple testified that, on February 4, 2013, he received a dispatch informing him that a psychiatrist had called 911 after meeting with the defendant, and the psychiatrist told the 911 operator that the defendant was armed as a result of purchasing a shotgun and had a history of possessing firearms, making threats to police, and paranoia. Based on the 911 call, Officer Temple and other police officers responded to the defendant's residence, where the defendant resided with [2]his mother, to check on the defendant's welfare. According to Officer Temple, he also learned as he was responding to the location that the residence was "flagged" due to an "officer safety alert" at the residence and that officers should proceed with caution because the defendant previously had made threats to shoot a police officer and had a shotgun confiscated. Officer Temple testified that when the officers knocked on the door, the defendant's mother answered, and she invited them in after Officer Temple asked to speak with the defendant. Inside, Officer Temple asked the defendant to step outside to talk. The defendant initially agreed but then darted to the back of the house to the living room. As Officer Temple yelled for the defendant to stop, the defendant reached into his waistband, removed an object, and tossed it underneath a chair in the living room as he ducked behind a wall. The defendant then complied with the officers' requests to come out with his hands up and Officer Temple and the other officers took custody of the defendant, searched him, and took him outside of the residence. Officer Temple testified that he then reentered the residence, proceeded to the living room, and moved or lifted the chair under which the defendant had thrown the object and discovered a handgun. Officer Temple conceded that he did not see the object that the defendant had placed under the chair and that, until Officer Temple moved the chair, the chair's upholstery had obscured his view of the object underneath. " [S]ubject only to carefully drawn and narrow exceptions, a warrantless search of an individual's home is per se unreasonable and hence unconstitutional'" (People v Avinger, 140 AD3d 895, 897, quoting People v Jenkins, 24 NY3d 62, 64). Contrary to the People's contention, the consent of the defendant's mother to the police to enter the home to speak with the defendant did not constitute a consent to Officer Temple's search of the living room (see People v Gomez, 5 NY3d 416, 420; People v Alston, 122 AD3d 934, 936). Moreover, contrary to the People's contention, the seizure of the firearm does not fall within the plain view exception (see People v Dobson, 41 AD3d 496, 497; People v Johnson, 241 AD2d 527, 528). Officer Temple's testimony as to what he believed the object was, based upon the 911 call, his police experience, and military training, does not meet the requirement of the plain view doctrine, since he testified that he did not know what the object was until he moved the chair (see People v Dobson, 41 AD3d at 497; People v Johnson, 241 AD2d at 528). The People do not assert on appeal that the seizure was lawful pursuant to the emergency exception and, in any event, any exigency abated once the defendant was detained (see People v Scott, 133 AD3d 794, 797; People v Johnson, 241 AD2d at 528). Under the circumstances of this case, the physical evidence that was recovered from the residence must be suppressed, as the search was illegal, and the defendant's subsequent statements to law enforcement officials must be suppressed as fruit of the poisonous tree (see People v Perez, 88 AD3d 1016, 1018-1019; People v Pearson, 59 AD3d 743, 744). Without the evidence that should have been suppressed, there would not be sufficient evidence to prove the defendant's guilt of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree beyond a reasonable doubt and, therefore, the indictment must be dismissed (see People v Dessasau, 168 AD3d 969, 970-971; People v Jones, 164 AD3d 1363, 1367). Accordingly, we reverse the judgment, vacate the plea of guilty, dismiss the indictment, and remit the matter to the County Court, Suffolk County, for a sealing order pursuant to CPL 160.50. In light of our determination, we need not reach the defendant's remaining contentions. DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court	{ "pile_set_name": "FreeLaw" }
999 F.2d 543 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.Harvey William HARPER, Petitioner-Appellant,v.James ROWLAND, Director; Attorney General of the State ofCalifornia, Respondents-Appellees. No. 91-56131. United States Court of Appeals, Ninth Circuit. Submitted April 6, 1993.Decided July 9, 1993. Before FARRIS, NORRIS and REINHARDT, Circuit Judges. 1 MEMORANDUM* 2 Appellant Harvey William Harper, a former Los Angeles County Deputy District Attorney, was convicted of attempted incest and committing lewd acts upon a child. He was sentenced to 14 years imprisonment. The district court denied his petition for habeas corpus. We affirm. 3 Harper first claims that he was denied due process by the government's failure to record interviews that took place with Harper's wife and daughter. However, while the government may not in bad faith destroy recordings of interviews, it is under no duty to record interviews in the first instance. Miller v. Vasquez, 868 F.2d 1116, 1119-20 (9th Cir.1989). While "a bad faith failure to collect potentially exculpatory evidence would violate the due process clause," id. at 1120-21, there is insufficient evidence to infer that the government's decision not to record the interviews was made in bad faith. 4 Harper next argues that the government's investigatory techniques violated due process. He claims that the prosecution coerced and intimidated his daughter. There is insufficient evidence in the record to support Harper's essentially conclusory allegations. Harper's conflict-of-interest claim, which was not raised in the district court, and his allegation that the prosecution committed misconduct by granting his wife and daughter immunity fail for the same reason: Harper has produced inadequate evidence that a conflict existed or that immunity was granted. 5 Harper also challenges the sufficiency of the accusatory pleadings and claims that they failed to describe with sufficient specificity the nature of the charges against him and the dates on which the alleged crimes took place. The information alleged specific acts against specific victims, occurring on or about certain dates. Using the appropriate statutory language, it also described each element of the crime. We believe the accusatory pleadings were sufficiently clear and specific to have informed Harper of the allegations against him and to have allowed him to plead double jeopardy in the event of a subsequent prosecution. See United States v. Johnson, 804 F.2d 1078, 1084-85 (9th Cir.1986). 6 Harper also argues that the evidence was insufficient to support the conviction. In light of the direct testimony from the victims and from Harper's wife, we believe that a rational trier of fact could have found Harper guilty beyond a reasonable doubt. 7 Harper next claims that various trial court evidentiary rulings violated his due process rights. Such rulings merit habeas relief only if they "rendered the trial arbitrary or fundamentally unfair." McGuire v. Estelle, 902 F.2d 749, 753 (9th Cir.1990), rev'd on other grounds, 112 S.Ct. 475 (1991). Harper's principal objection is to the expert testimony of Dr. Summit, who Harper maintains was not qualified to testify as an expert. We disagree. Dr. Summit was a licensed physician and psychiatrist, with decades of counseling experience, and numerous publications.1 8 Finally, Harper claims judicial bias. He complains of the trial judge's body language, lopsided rulings for the prosecution, and evidentiary errors. He also claims that the sentence was excessive and that the trial judge admitted bias. We disagree that Harper has demonstrated judicial bias and reject his conclusory allegations as unsupported by the evidence. 9 After full consideration of petitioner's overlength arguments2 and the trial court's record, the district court's denial of petition for writ of habeas corpus is AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 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 Ninth Circuit Rule 36-3 1 We have reviewed Harper's other evidentiary claims, and find no error that rendered the proceeding fundamentally unfair 2 Both the size of type and margins in appellant's briefs violate Fed.R.App.P. 32(a)	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 96-1013 RONALD L. COMPTON, Petitioner, versus BELCHER & NEWSOME COAL COMPANY; OFFICE OF WORKERS COMPENSATION PROGRAM, Respondents. On Petition for Review of an Order of the Benefits Review Board. (94-0832-BLA) Submitted: September 5, 1996 Decided: September 13, 1996 Before WIDENER and WILKINS, Circuit Judges, and PHILLIPS, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Ronald L. Compton, Petitioner Pro Se. Mark Elliott Solomons, Thomas Henry Odom, II, ARTER & HADDEN, Washington, D.C.; Patricia May Nece, Elizabeth Ann Goodman, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Ronald Compton seeks review of the Benefits Review Board's (Board) decision and order denying black lung benefits under 30 U.S.C.A. §§ 901-45 (West 1986 & Supp. 1996). The Respondent, Belcher & Newsome Coal Co., has filed a motion to dismiss this appeal on the ground that the appeal is untimely. The record discloses that the Board issued its decision on October 30, 1995. Compton filed a petition for review 65 days later, on January 3, 1996. The applicable filing period for appeals to this court from decisions of the Board is sixty days. 33 U.S.C. § 921(c) (1988). Although Compton alleges that he timely mailed his petition, we have held that the statute requires that the petition be timely filed within 60 days, and that the failure to timely file deprives the court of jurisdiction to consider the appeal. See Adkins v. Director, Office of Workers' Compensation Programs, 889 F.2d 1360, 1363 (4th Cir. 1989). Because Compton failed to file his appeal within the applicable filing period, we grant Respondent's motion to dismiss this appeal. We note that our disposition of that motion renders moot Respondent's motion to hold the briefing schedule in abeyance. We also dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 2	{ "pile_set_name": "FreeLaw" }
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 13a0625n.06 No. 12-5986 FILED UNITED STATES COURT OF APPEALS Jul 02, 2013 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk 1651 NORTH COLLINS CORP., ) ) Plaintiff-Appellant, ) ) v. ) ) LABORATORY CORPORATION OF ) ON APPEAL FROM THE UNITED AMERICA, ) STATES DISTRICT COURT FOR THE ) WESTERN DISTRICT OF KENTUCKY Defendant-Appellee. ) ) Before: SILER, GIBBONS, and GRIFFIN, Circuit Judges. JULIA SMITH GIBBONS, Circuit Judge. Laboratory Corporation of America (“LabCorp”) was a tenant of a commercial building in Louisville owned by 1651 North Collins Corporation (“1651"). LabCorp vacated the building in February 2011 after providing a month’s notice of its intent to do so. 1651 sued LabCorp, claiming that the parties had agreed upon a five- year lease extension in June of 2007 and that 1651 was entitled to compensation for LabCorp’s decision to end the alleged lease extension prematurely. LabCorp asserts that the parties never reached an agreement on a lease extension and that it was a month-to-month tenant when it vacated the building. The district court entered summary judgment in favor of LabCorp and 1651 appealed. LabCorp has moved to dismiss the appeal for a lack of jurisdiction. For the reasons that follow, we deny the motion to dismiss and affirm the district court’s judgment. -1- 1651 N. Collins Corp. v. Lab. Corp. of Am. No. 12-5986 I. The predecessors-in-interest of LabCorp and 1651 signed the original commercial lease giving rise to this case on September 1, 1986. The agreement created a fifteen-year lease, running from July 1, 1987 to June 30, 2002, and gave LabCorp the option to renew the lease for another fifteen years in five-year increments. The lease also provided for “a month-to-month tenancy subject to the same covenants and conditions as otherwise herein provided” if the parties allowed the lease to lapse. Paragraph twenty-seven of the lease sets forth the procedure for exercising the five-year renewal options: Provided that there has been no default with respect to any of the terms and conditions of this Lease, the Tenant shall have the option to renew this lease for an additional period of five (5) years from the expiration date of the initial term. Provided further that if there has been no default with respect to any of the terms and conditions of this Lease or any renewal term thereof, the Tenant shall have options to renew this Lease for two (2) additional five-year periods. Said options for three (3) successive five-year renewal periods shall each be upon the same terms and conditions contained herein, except that the rental for each option period shall be at the then market rent for similar space in the Louisville area, but not less than the immediately preceding five-year period, and provided that Tenant shall give Landlord written notice of Tenant’s intention to exercise such option no later than six months prior to the expiration of this lease or any renewal term. On January 10, 2002, LabCorp exercised the first option and renewed its lease until June 30, 2007. The parties deviated from the baseline rental rate provided for in the renewal option by agreeing to a monthly rent of $41,250, which was lower than the rate LabCorp was paying under the original lease. They memorialized this agreement in a formal “Exercise of First Renewal Option” document signed by representatives of LabCorp and 1651. -2- 1651 N. Collins Corp. v. Lab. Corp. of Am. No. 12-5986 In November 2006, LabCorp’s real estate brokers, Patrick Richardson and Lawrence Williams, initiated discussions with 1651’s property manager, Norman Buhrmaster, about exercising the second five-year option in the lease agreement. After Richardson, Williams, and Buhrmaster toured the building together on November 29, 2006, Richardson and Williams sent a letter to Buhrmaster proposing a new rental rate of $35,000 per month during the new five-year term. Richardson and Williams acknowledged that this rate was lower than LabCorp’s current rent, but argued that it reflected LabCorp’s steadily increasing maintenance costs. Buhrmaster answered the letter on December 18 but did not respond to LabCorp’s proposal. He acknowledged that LabCorp had “a currently unexercised option right” that “provides certain terms for exercise of [the] option” and instructed LabCorp to inform him “[i]f it is LabCorp’s decision not to exercise this option and therefore waive any further rights, except those remaining under the current term.” LabCorp’s senior vice president, Mark Braune, replied to Buhrmaster with a letter dated December 26: On behalf of [LabCorp], we hereby exercise the (2nd) second option to renew our lease . . . as provided for in paragraph 27 of the original lease. We value the relationship with [Buhrmaster’s property management firm] over the past 20 years, which has helped to facilitate our growth. In addressing LabCorp’s needs going forward, we hope to structure the lease renewal with an eye toward the optimum term, while simultaneously addressing the deteriorating condition of the facility. Facing an ever changing business climate, it is paramount that LabCorp (a) achieve efficiencies in the operation of the building, (b) have a sound water-tight roof, and (c) install a modern energy-efficient HVAC System. Through our brokers [Richardson and Williams], we look forward to the initiation of negotiations to determine the appropriate market rent. We are confident this will result in a timely lease extension. -3- 1651 N. Collins Corp. v. Lab. Corp. of Am. No. 12-5986 On or around January 9, 2007, Buhrmaster claims he began discussions with Williams and Richardson about the rental rate. After bringing in an appraiser to determine the market rate for the property, Buhrmaster sent a letter to Braune, Williams, and Richardson on June 27, 2007, stating that 1651 “accept[ed] the conditions of the 5 year lease renewal as provided in the lease and further agree[d] to continue the rent at $41,250.00 monthly”—the lowest rate permitted under the lease agreement’s renewal provisions. Richardson and Williams made multiple efforts between December 26, 2006 and June 27, 2007 to engage Buhrmaster in “negotiations” about the rate, but Buhrmaster did not respond to them. On July 17, 2007, Silvi Santovenia, who worked on behalf of Buhrmaster, sent Richardson a letter with attached copies of a document entitled “Exercise of Second Renewal Option.” This document was similar to the “Exercise of First Renewal Option” that 1651 and LabCorp executed in 2002. Buhrmaster testified that he prepared the document at the request of Richardson and Williams and that he did not consider the document a necessary element of the transaction. LabCorp never executed and returned the document. It did begin sending its rent checks to 1651’s new business address, which was provided in the document, at the same $41,250 monthly rental rate LabCorp had been paying under the terms of the first lease extension. LabCorp continued to occupy 1651’s building without incident until January 28, 2011. On that day, Rhonda Blair, LabCorp’s Divisional Leasing Manager, sent 1651 a letter claiming that LabCorp had not agreed to the second renewal term and the lease had defaulted to a month-to-month tenancy as of July 1, 2007. Blair explained that LabCorp intended to end its tenancy of the building on February 28, 2011, which LabCorp eventually did. 1651 took the position that LabCorp’s actions -4- 1651 N. Collins Corp. v. Lab. Corp. of Am. No. 12-5986 breached a lease renewal agreement it entered by virtue of its December 26, 2006 letter which stated that it “hereby exercise[d]” the second renewal option. As a result, 1651 claims LabCorp owes it rent for the sixteen-month period between March 1, 2011 and the expiration of the alleged second lease renewal term on June 30, 2012. II. The original lease agreement provided that “[i]f the parties cannot agree upon any matter for or about which this Lease provides, it shall be submitted to arbitration.” After the disagreement over the second lease renewal agreement arose, 1651 and LabCorp decided to litigate the matter in federal court instead of pursuing arbitration. They executed a written agreement (“Agreement”) waiving the arbitration clause: 1. The Parties’ present disagreement concerning the above-captioned lease (the “Dispute”) shall be resolved by litigation in the United States District Court for the Western District of Kentucky (“Federal Court”). 2. In order that the Dispute shall be resolved in Federal Court, the Parties hereby mutually and irrevocably waive their right to exercise the arbitration provision contained in paragraph 19 of the above-captioned lease as a means of resolving the Dispute. 1651 then filed suit against LabCorp in federal district court in Louisville on April 1, 2011. LabCorp counterclaimed against 1651 to recover expenses it incurred to insure the building after vacating it. After discovery, both sides moved for summary judgment on all claims. The district court concluded that LabCorp had not properly exercised its renewal option and no long-term lease existed when it vacated the premises. As a consequence of this ruling, the district court held that LabCorp was entitled to reimbursement for insuring the building after it was no longer a tenant. It therefore -5- 1651 N. Collins Corp. v. Lab. Corp. of Am. No. 12-5986 granted LabCorp’s motion for summary judgment and denied 1651’s motion for summary judgment. 1651 timely appealed the district court’s judgment. III. We begin by addressing the threshold issue of jurisdiction. LabCorp argues that the parties waived their right to appeal the district court’s judgment in the Agreement. It relies on language in the Agreement expressing the parties’ intention to “resolve[]” this dispute in “Federal Court,” which the Agreement defines as the “United States District Court for the Western District of Kentucky.” It also notes that the original lease agreement did not provide the parties a right of appeal from the arbitrator’s decision. This argument is unpersuasive. Just as parties to civil litigation may agree to resolve a dispute out of court, they may also consent to making a trial court’s determination final and waiving their right to appeal. See 15A Charles Alan Wright et al., Federal Practice and Procedure § 3901 (2d ed. 1992). For example, in In re Lybarger, 793 F.2d 136 (6th Cir. 1986), the parties entered a settlement prior to trial that allowed them to submit a disagreement on attorney’s fees to the district court. 793 F.2d at 137. The settlement provided that the district court’s decision on attorney’s fees “shall be final and the parties waive all rights of appeal and further review of or relief from the Court’s Order regarding same.” Id. The plaintiff nonetheless filed an appeal after the district court’s ruling dissatisfied her. This court dismissed the appeal. Id. at 138. Despite assertions that the district court applied the law arbitrarily, we held that the plaintiff had “assumed the risk of an unreviewable decision” and that her -6- 1651 N. Collins Corp. v. Lab. Corp. of Am. No. 12-5986 express waiver of her right to appeal was enforceable. Id. at 139. Our sister circuits have enforced appellate waivers similar to the one we approved in Lybarger.1 The Agreement is not an effective appellate waiver because it does not explicitly waive 1651’s right to appeal. It merely expresses the parties’ intent to “resolve” their dispute in federal court and to waive the arbitration clause for purposes of this dispute. See Andersen Corp. v. Pella Corp., 422 F. App’x 882, 884 (Fed. Cir. 2011) (denying motion to dismiss appeal based on an agreement calling for “binding resolution” of an issue by a federal magistrate judge because the agreement did not provide a “clear and express” waiver of the right to appeal). LabCorp’s argument that the Agreement must be read as a prohibition on appeal because the original lease agreement did not permit appeals from arbitration is also incorrect. The Agreement waives both parties’ ability to “exercise the arbitration provision,” and as a consequence, all of the standard rights available to litigants in federal court in the absence of such an agreement are available to 1651, including a right of appeal. Accordingly, we deny LabCorp’s motion to dismiss and turn our attention to the merits of 1651’s appeal. 1 MACTEC, Inc. v. Gorelick, 427 F.3d 821, 827–28 (10th Cir. 2005) (“Judgment upon the award rendered by the arbitrator shall be final and nonappealable . . . .”); Brown v. Gillette Co., 723 F.2d 192, 192 (1st Cir. 1983) (“The parties agree that the determinations of the [district] Court on such claims shall be final and binding and hereby waive any and all rights of appeal with respect to such determinations.”); Goodsell v. Shea, 651 F.2d 765, 766 (C.C.P.A. 1981) (“[T]he decision of the Board of Patent Interferences . . . shall be accepted as final and conclusive upon the parties and each party hereby waives any and all rights of appeal from any such decision . . . .”); see also Slattery v. Ancient Order of Hibernians in Am., No. 97-7173, 1998 WL 135601, at *1 (D.C. Cir. Feb. 9, 1998) (dismissing appeal because parties entered a settlement agreement in which they “agree[d] not to appeal any decision by the district court relating to defendants’ motion for attorneys’ fees and costs”). -7- 1651 N. Collins Corp. v. Lab. Corp. of Am. No. 12-5986 IV. A. This court reviews a district court’s order granting summary judgment de novo. Taylor v. Geithner, 703 F.3d 328, 335 (6th Cir. 2013). “The [district] court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The district court “view[s] all facts and inferences drawn from those facts in the light most favorable to the nonmoving party.” Mosholder v. Barnhardt, 679 F.3d 443, 449 (6th Cir. 2012). At this stage of the case, the district court’s role “is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). We apply the substantive law of Kentucky in this diversity action. Gahafer v. Ford Motor Co., 328 F.3d 859, 861 (6th Cir. 2003). B. LabCorp argues that it never reached an enforceable agreement with 1651 with regard to the second lease renewal option. As a result, it asserts that the lease defaulted into a month-to-month tenancy on July 1, 2007, as provided for in the original lease agreement, and that it did not breach its lease agreement with 1651 when it vacated the premises and stopped paying rent in February 2011. We agree and affirm the district court’s judgment on this basis. An enforceable contract is formed when there is a “meeting of the minds of the parties or mutual assent to the same thing, and all material terms and conditions of the contract . . . [are] agreed -8- 1651 N. Collins Corp. v. Lab. Corp. of Am. No. 12-5986 on.” McGeorge v. White, 174 S.W.2d 532, 533 (Ky. 1943).2 To determine what steps are necessary for the parties to manifest mutual assent when they seek to prolong a preexisting lease, we look to the language the lease uses to describe the right, the intent of the parties as manifested by other terms in the lease, and the parties’ conduct before the controversy arose. Klein v. Auto Parcel Delivery Co., 234 S.W. 213, 215 (Ky. 1921). Kentucky law recognizes two basic categories of rights for prolonging a tenancy that a lease agreement may afford to a lessee. The first is a “right of renewal,” which “connotes that a new, formal agreement in writing should be executed by the parties . . . or, at least, some positive act other than a mere holding over beyond the fixed term must be taken.” Lexington Flying Serv. v. Anderson’s Ex’r, 239 S.W.2d 945, 946 (Ky. 1951). The second is a “right of extension,” which only requires “a holding over by the lessee” to prolong the lease; “no re-execution of the lease is required.” Klein, 234 S.W. at 214. “Of course, if the lease prescribes a condition precedent to the exercise of the privilege by the lessee, such as the giving of notice within a specified time before the expiration of the first term, such condition must be complied with . . . whether the privilege be one ‘to renew’ or ‘to extend’ the original term.” Id. at 215. And although there is a “technical difference” between the terms “extend” and “renew” under Kentucky law, a lease’s description of the lessee’s right to retain a lease as one or the other is often not, itself, dispositive. Id. (“[T]he technical difference [between rights to “extend” and “renew”] may be controlled by the intention of 2 Prior to the creation of the Kentucky Supreme Court in 1976, the Kentucky Court of Appeals was the state’s highest appellate court. This opinion will refer to decisions by the Court of Appeals prior to 1976 with the abbreviation “Ky.,” and to decisions from 1976 onwards with the abbreviation “Ky. Ct. App.” -9- 1651 N. Collins Corp. v. Lab. Corp. of Am. No. 12-5986 the parties as manifested by something appearing in the lease, or by their conduct before the controversy arose, and . . . the privilege may thus be construed as one to ‘extend’ the term, although the language employed is one ‘to renew’ it.”); see also Kentucky Lumber Co. v. Newell, 105 S.W. 972, 973 (Ky. 1907) (“[I]t is not so much a question of what the term [used in the lease] strictly means as what did the parties to the writing mean to express in its use.”). All signs in this case indicate that LabCorp held an “option to renew” requiring execution of a separate lease agreement in addition to the provision of notice and a holding over. The language of the original lease agreement between 1651 and LabCorp provides for an “option to renew” the lease instead of an “option to extend,” suggesting the parties believed at the time of the original lease that separate agreements to prolong the lease would be needed. Although language is often not determinative in these cases, see id., this understanding of the lease language is reinforced by two other features of the original lease. First, 1651 and LabCorp needed a signed writing capturing all material terms in order to make the five-year lease extensions legally enforceable under Kentucky’s statute of frauds. See Ky. Rev. Stat. § 371.010(6) (statute of frauds applies to leases lasting longer than a year). Second, the original lease is ambiguous as to a material term of any lease renewal—the rental rate. Under Kentucky law, the parties must agree on either a rental rate or a “definite objective standard” by which that rate can be determined to form an enforceable lease agreement. Walker v. Keith, 382 S.W.2d 198, 200 (Ky. 1964) (emphasis removed). A “definite objective standard” means “a specific method of making the determination, such as by computation, the application of a formula, or the decision of an arbitrator.” Id. For instance, “an appropriate method by which a non- fixed rental could be determined” would be an agreement to pay “an amount equal to one cent per - 10 - 1651 N. Collins Corp. v. Lab. Corp. of Am. No. 12-5986 gallon of gasoline delivered to” a gas station each month. Id. (internal quotation marks omitted) (quoting Jackson v. Pepper Gasoline Co., 133 S.W.2d 91, 92 (Ky. 1939)). The lease agreement in this case calls for the rent to be set at “the then market rent for similar space in the Louisville area.” Although this standard is somewhat more definite than an agreement to fix the rent based on “comparative business conditions” that the Court of Appeals of Kentucky rejected in Walker, it is still too ambiguous to qualify as a “definite objective standard.” 1651 could have solved this problem by submitting the question of what constituted a “market rent” to arbitration, as the original lease agreement contemplates, but it did not do so. Because the parties never came to terms on a rental rate, LabCorp’s renewal option was not enforceable until the parties reached a separate agreement that included a rental rate. The parties’ conduct also supports LabCorp’s position that a separate, formal lease agreement was necessary to complete the lease extension. In 2002, the parties executed just such a document to effectuate the first lease extension. See Tinaco Plaza, LLC v. Freebob’s, Inc., 814 A.2d 403, 410 (Conn. App. Ct. 2003) (relying, in part, on the parties’ prior execution of a signed agreement to renew a lease that “require[d] the negotiation of a new rent as a prerequisite” in order to conclude “that the lease and the amendment provided a covenant to renew that required a writing”). Likewise, the December 26 letter LabCorp sent to 1651 anticipates the execution of a formal lease extension agreement in order to complete the second lease renewal. After providing notice of its desire to exercise the second renewal option as the lease requires, the letter sets forth concerns that would impact determination of the “market rate” and anticipates the “initiation of negotiations” directed toward a “timely lease extension.” Before and after LabCorp sent its December 26 letter, it made - 11 - 1651 N. Collins Corp. v. Lab. Corp. of Am. No. 12-5986 numerous attempts to engage 1651 in discussions about the rental rate that 1651 ignored. Finally, just before the lease expired, 1651 proposed a definite rental rate, prepared a formal renewal agreement at LabCorp’s request similar to the one executed in 2002, and directed LabCorp to execute and return it to 1651. LabCorp did not return the agreement. Even though the rate 1651 proposed was the lowest provided for under the lease extension agreement, a contract is only formed when the parties manifest mutual assent on “all the material terms” of the contract. Jones, 605 S.W.2d at 42. That never occurred in this case. Because the language used to describe LabCorp’s option to prolong its lease, the relevant terms of the lease renewal provisions, and the conduct of the parties all point toward a “right of renewal,” we conclude that LabCorp and 1651 needed to reach a separate written agreement to exercise LabCorp’s second five-year option. Because they did not reach such an agreement, LabCorp and 1651 entered a month-to-month tenancy as provided by the original lease, which gave LabCorp the right to terminate the lease with a month’s notice. Our conclusion is similar to the one the Kentucky Court of Appeals reached on similar facts in Electronic Sales Engineers, Inc. v. Urban Renewal & Community Development Agency, 477 S.W.2d 814 (Ky. 1972). In that case, the original lease agreement provided “an option to renew for an additional five years” and required the lessee to notify the lessors of its intent to exercise the option “at least 120 days before the expiration of the term.” Id. at 815. The renewal option was for a period of time longer than a year and does not appear to have provided the terms on which the renewal would take place, so there was no dispute that a new written agreement between the parties was necessary. The lessee orally provided timely notice as required under the lease, and several weeks before the expiration of the lease, the lessors - 12 - 1651 N. Collins Corp. v. Lab. Corp. of Am. No. 12-5986 provided the lessee with a formal lease renewal agreement. Id. The lessee failed to properly execute and return the agreement. Id. The Court of Appeals ruled that no lease renewal agreement had been reached, even though the lessee had properly given notice of its intent to renew, held over past the expiration of the original lease, and continued to pay rent to the lessors at the previous rental rate. Id. at 815–16. 1651 argues that this case is distinguishable from Electronic Sales Engineers because the lessee in that case only provided oral notice of its desire to exercise the option and there was no writing which evidenced the existence of the lease extension. There are a handful of Kentucky cases finding that a lessee renewed a lease merely by providing written notice of its intent to do so and holding over as a tenant. But the difference between those cases and this dispute is that the original lease agreements in those cases left no material terms regarding the renewal unsettled, including the rental rate. See, e.g., Ingram v. Lane, 265 S.W. 434, 435 (Ky. 1924) (holding that by providing written notice of their intent to exercise a renewal option “on the same terms” as the original lease, “the parties . . . were on the same footing exactly” as if their lease had contemplated a right to extend, rather than a right to renew, and holding over was sufficient to trigger the renewal); Kozy Theater Co. v. Love, 231 S.W. 249, 250–52 (Ky. 1921) (agreeing that lessees had adequately exercised “privilege . . . to renew . . . under like terms” in lease contract by sending written notice of intent to lessors and holding over, despite absence of separate agreement). Notice was all that was required to bring the parties into a complete, enforceable agreement to prolong the lease. Here, the ambiguity in the original lease agreement necessitated an additional agreement. - 13 - 1651 N. Collins Corp. v. Lab. Corp. of Am. No. 12-5986 C. 1651’s only remaining viable argument is that the December 26 letter sent by LabCorp can be construed as a separate written agreement sufficient to exercise a “right to renew” if it is read in conjunction with extrinsic evidence that resolves the letter’s ambiguity about LabCorp’s commitment to prolonging the lease. “Where a contract is ambiguous or silent on a vital matter . . . parol and extrinsic evidence involving the circumstances surrounding execution of the contract, the subject matter of the contract, the objects to be accomplished, and the conduct of the parties” may be considered by the court in order to give meaning to the contract’s terms. Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d 381, 385 (Ky. Ct. App. 2002). The evidence put forward by 1651 includes (1) deposition testimony from Richardson claiming that he and Williams believed they had reached a lease extension agreement and demanded broker fees from LabCorp commensurate with successful negotiation of an extension; (2) an e-mail from Braune expressing his belief that LabCorp was “already obligated for the rent,” while acknowledging that LabCorp’s legal department might have a different opinion on the matter; and (3) LabCorp’s payment of insurance premiums on an annual basis; and LabCorp’s failure to inform 1651 of its belief that it was in a month-to-month tenancy until January of 2011. We agree with LabCorp that the December 26 letter cannot be so construed. LabCorp’s December 26 letter is neither ambiguous nor silent on the issue of the rental rate, which was essential to the formation of an enforceable agreement. It mentions the need to engage in further discussions about the rental rate but does not commit LabCorp to a rate or an objective method for determining that rate. Extrinsic evidence cannot be used to create a commitment that the letter, on its face, - 14 - 1651 N. Collins Corp. v. Lab. Corp. of Am. No. 12-5986 refuses to make. Even if we were to consider this evidence, it is not helpful to 1651. At most, it suggests some disagreement among LabCorp officers and agents as to the legal effect of the letter long after it was written and reflects LabCorp’s own lack of awareness about what was necessary to create an enforceable lease extension. Accordingly, we reject 1651’s effort to transform the December 26 letter into the written agreement necessary to establish that it effectively renewed its lease with LabCorp. V. For the foregoing reasons, we affirm the judgment of the district court. - 15 -	{ "pile_set_name": "FreeLaw" }
54 F.3d 766 Amakerv.Adeyeye NO. 94-2471 United States Court of Appeals,Second Circuit. Apr 19, 1995 Appeal From: S.D.N.Y. 89-cv-7628 1 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
935 F.2d 1279 U.S.v.Dad NO. 90-1693 United States Court of Appeals,Second Circuit. MAY 03, 1991 1 Appeal From: E.D.N.Y. 2 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED May 4, 2017 Plaintiff-Appellee, v No. 330843 Ottawa Circuit Court MARK STEVEN-RANDALL HARRIS, LC No. 14-038019-FC Defendant-Appellant. Before: BECKERING, P.J., and MARKEY and SHAPIRO, JJ. PER CURIAM. A jury convicted defendant, inter alia, of first-degree criminal sexual conduct (CSC I), MCL 750.520b(1)(e). The trial court sentenced defendant to 275 to 500 months’ imprisonment with credit for 124 days served and confirmed that sentence after a Crosby1 remand from this Court. Defendant appeals by right the trial court’s order denying resentencing. We affirm. This case arises from a sexual assault defendant perpetrated on his estranged wife. In December 2013, defendant and the victim were not living together. On December 10, 2013, defendant and the victim planned to meet at the victim’s apartment at about 6:30 p.m. When the victim arrived at her apartment, defendant had already let himself inside. The victim knocked on the door to her apartment because she had lost her key that day. Defendant opened the door, grabbed the victim by her jacket, and pulled her inside of the apartment. The victim immediately saw that defendant was holding a handgun. Defendant eventually forced the victim into the front room of the apartment. As he did, the victim’s sister, Shoshanna Steele, was out front knocking on the apartment door. Defendant ignored the knocks, forced the victim onto the floor of the front room, and forcibly performed oral sex and digitally penetrated her. When the assault was over, defendant sat on the couch, and the victim remained on the floor. At that point in time, Steele entered the apartment through the back door and saw her half-naked sister sitting on the floor and defendant sitting on the couch with a gun. Defendant pointed the gun at Steele and took her cellular telephone. Steele and defendant had a heated conversation for about an hour, after which defendant left the apartment. 1 United States v Crosby, 397 F3d 103 (CA 2, 2005). -1- A jury convicted defendant of CSC I. The trial court sentenced defendant as noted above. Defendant appealed his conviction, which we affirmed.2 However, we modified our opinion in light of Lockridge3 and remanded the case to the trial court for a Crosby hearing. During the Crosby hearing, the trial court determined that it “would not have imposed a materially different sentence but for the unconstitutional constraint presented by application of the Michigan Sentencing Guidelines.” The trial court further opined that the guidelines (specifically OV 9) “[were] scored correctly.” Defendant now appeals the trial court’s order denying resentencing, maintaining that the court improperly assessed 10 points for OV 9. Defendant argues on appeal that the trial court improperly assessed 10 points for OV 9 when it determined that Steele was a victim of the CSC I offense. Defendant maintains that OV 9 should have been scored zero instead of 10 points because there were not two or more victims placed in danger during the CSC I offense. Although we agree that the trial court erred when it assessed 10 points for OV 9, we find that the error harmless. The sentencing court’s factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence. People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by the statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo.” Id. To properly assess 10 points for OV 9, the sentencing court must determine by a preponderance of the evidence that “2 to 9 victims were placed in danger of injury or death.” MCL 777.39(1)(c). Furthermore, the sentencing court cannot consider the entire criminal transaction, nor can it use defendant’s conduct after the crime was completed, as the basis for assessing points for OV 9. People v McGraw, 484 Mich 120, 127, 133; 771 NW2d 655 (2009). The court can consider only the specific offense for which defendant is being sentenced when assessing points for OV 9. Id. at 133. In this case, defendant committed CSC I against the victim while Steele was outside the apartment. Steele did not know what was happening; she only thought that “something just didn’t seem right.” Steele entered the apartment and saw the victim on the floor and defendant sitting on the couch holding a gun. By this time, the sexual assault was over, so defendant had already completed the CSC I offense. The record does not indicate that defendant attempted in any way to sexually assault Steele. Similar to McGraw, defendant did not place two or more victims in danger until after the completion of the originating crime (here, the CSC I). 2 People v Harris, unpublished opinion per curiam of the Court of Appeals, issued July 30, 2015 (Docket No. 321904). 3 People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015). -2- Therefore, the trial court clearly erred when it determined that Steele was a victim of the CSC I. Accordingly, the trial court incorrectly assessed 10 points for OV 9. But incorrectly assessing 10 points for OV 9 does not entitle defendant to resentencing because it was harmless error. An analysis under the harmless error doctrine is used to determine whether a different result would have been achieved had the error not occurred. People v Toma, 462 Mich 281, 296; 613 NW2d 694 (2000). See also People v McCuller, 479 Mich 672, 698; 739 NW2d 563 (2007) (holding that “even if the trial court [improperly sentenced] defendant . . . any error was harmless because it did not prejudice defendant”). When a scoring error does not change the appropriate guidelines range, or when the trial court clearly indicates “it would have imposed the same sentence regardless of the scoring error and the sentence falls within the appropriate guidelines range,” resentencing is not required. People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006). In this case, even if OV 9 were scored at zero points, defendant’s minimum sentencing range would remain the same. At sentencing, defendant’s PRV score was 55 points (level E); his OV score was 90 points (level V), and his sentencing range was 171 to 285 months’ imprisonment. So even if the sentencing court assessed zero points for OV 9, defendant’s total OV score would be 80 points (level V). Therefore, defendant’s sentencing guidelines would remain unchanged, and resentencing is not required.4 Francisco, 474 Mich at 89 n 8. Last, although defendant concedes that he was sentenced within the correct recommended guidelines range, he argues that he is still entitled to be resentenced because under Lockridge, his sentence is not reasonable. We disagree. Only sentences that depart from the guidelines recommended minimum sentence range are reviewed for reasonableness. Lockridge, 498 Mich at 365, 392. Our Supreme Court’s decision in Lockridge did not alter or diminish MCL 769.34(10).5 People v Schrauben, 314 Mich App 181, 196 n 1; 886 NW2d 173 (2016). In this case, the guidelines scoring error was harmless because it did not change the guidelines recommended minimum sentence range. Francisco, 474 Mich at 89 n 8. Because defendant’s 4 Defendant additionally filed a Standard 4 brief in this appeal, presenting arguments that mirror those presented by his appellate counsel. Defendant also makes ineffective assistance of counsel and Brady violation arguments. This Court addressed defendant’s ineffective assistance of counsel arguments during his appeal of his convictions. See Harris, unpub op at 1-2. To the extent that we did not address defendant’s Brady claim during the previous appeal, and any issues that this Court did address, those issues were not included in the limited remand order or addressed by the trial court at the Crosby hearing. Accordingly, those issues are not reviewable in the current appeal. See People v Jones, 394 Mich 434, 435-436; 231 NW2d 649 (1975) (holding that the scope of the appeal is limited by the scope of the remand). 5 MCL 769.34(10) provides, in pertinent part: “If a minimum sentence is within the appropriate guidelines sentence range, the court of appeals shall affirm that sentence and shall not remand for resentencing absent an error in scoring the sentencing guidelines or inaccurate information relied upon in determining the defendant’s sentence.” -3- sentence was “within the appropriate guidelines sentence range,” MCL 769.34(10), this Court must affirm defendant’s sentence. Id.; Schrauben, 314 Mich App at 196. We affirm. /s/ Jane M. Beckering /s/ Jane E. Markey /s/ Douglas B. Shapiro -4-	{ "pile_set_name": "FreeLaw" }
USCA1 Opinion UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 96-1418 DIGNA SERRANO-CRUZ, HECTOR IRIZARRY, AND THE CONJUGAL SOCIETY COMPRISED BETWEEN THEM, Plaintiffs - Appellants, v. DFI PUERTO RICO, INC., ET AL., Defendants - Appellees. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. P rez-Gim nez, U.S. District Judge] ___________________ ____________________ Before Torruella, Chief Judge, ___________ Campbell, Senior Circuit Judge, ____________________ and DiClerico,* District Judge. ______________ _____________________ Javier A. Morales-Ramos for appellants. _______________________ Vicente J. Antonetti, with whom Ilsa Y. Figueroa-Ar s and _____________________ ______________________ Goldman Antonetti & C rdova were on brief for appellees. ___________________________ ____________________ March 19, 1997 ____________________ ____________________ * Of the District of New Hampshire, sitting by designation. TORRUELLA, Chief Judge. Plaintiff-appellant Digna TORRUELLA, Chief Judge. ____________ Serrano-Cruz ("Serrano") formally resigned from her job with defendant-appellee DFI Puerto Rico, Inc. ("DFI") on August 22, 1994. Four months later, she and her husband filed suit under the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C.A. 621-634 (1985 & Supp. 1996), claiming damages resulting from allegedly discriminatory, adverse employment actions resulting in her constructive dismissal. She and her husband now appeal the district court's grant of summary judgment for her employer, DFI. We affirm, finding that Serrano failed to establish a prima facie case under the ADEA. BACKGROUND BACKGROUND In the summary judgment context we relate all material facts in genuine dispute in the light most favorable to the party resisting summary judgment, here Serrano. S nchez v. Alvarado, _______ ________ 101 F.3d 223, 225 n.1 (1st Cir. 1996). Serrano worked for DFI's predecessor firm, Aeroboutiques, from 1984 until it was purchased by DFI in September 1992. Aeroboutiques, and later DFI, owned and operated several stores selling gifts and other consumer merchandise at Luis Mu oz Mar n International Airport in San Juan. At the time of the change in ownership, Serrano served as the "assistant general manager" of Aeroboutiques, and, in that position, assisted the general manager, supervised the operation of the airport stores, oversaw their physical upkeep (e.g., lighting, cleanliness) and their security systems, and performed -2- some accounting functions.1 When DFI took over the stores, Serrano was offered, and accepted, the position of "comptroller."2 As comptroller Serrano continued to perform her previous managerial duties, with regular duties including: maintaining the security system for the airport stores, supervising store employees and arranging employee vacation time, having responsibility for the keys to the stores, and attending security and employee management meetings. In addition, she assumed accounting responsibilities such as preparing quarterly reports and keeping the payroll accounts. The events giving rise to her suit began in February 1994, when the general manager (Manny Lozano) and the president (Luis Bared) of DFI, Serrano's superiors, began reducing her responsibilities. She lost managerial control over the security system for the stores, as well as control over the keys. Serrano's role in personnel selection was also decreased, and she was excluded from meetings she had previously attended. Through a letter to Serrano dated June 21, 1994, Luis Bared indicated that Serrano was on a 90-day probation period effective that day. The letter cited DFI's dissatisfaction with Serrano's "negligent" handling of certain rent payments for the ____________________ 1 Prior to being assistant general manager, Serrano had occupied the position of "comptroller" at Aeroboutiques, in which she was responsible for all of the accounting functions of the company as well as for general supervision. When she became assistant general manager, her accounting responsibilities were reduced. 2 The record contains inconsistent references to this position as either "comptroller" or "controller." -3- airport stores. Bared indicated that during the 90-day period, he and Manny Lozano would be evaluating her performance as comptroller. Serrano denies that she made mistakes in the course of discharging her accounting duties as comptroller. On July 18, 1994, before the 90-day probation period had ended, Lozano informed Serrano that DFI had decided to transfer her to a newly created position entitled "retail manager." Serrano refused the new position, stating that being fired would be preferable to the new position. In a letter to Serrano dated July 21, 1994, Lozano stated that Serrano would receive the same salary and benefits in the new position as she had received as comptroller, and that she would be given two days of paid leave to reconsider her decision to turn down the position. Lozano's July 21 letter further states that, as retail manager, Serrano "would supervise and be responsible for the retail operation of our San Juan International Airport stores." After taking a month of leave, Serrano formally resigned from DFI on August 22, 1994, and now claims she was forced to resign by DFI's unacceptable job transfer. Serrano was 53 at the time her suit was initiated in December 1994. There is no direct evidence that DFI's actions were taken because of Serrano's age. Appellant alleges a few facts that might suggest discriminatory animus on the basis of her age. These are: that she was replaced by a woman aged 25 with roughly the same qualifications and with less experience; that she was treated differently from younger employees by DFI -4- management by not receiving free lipstick samples and not being thrown a birthday party. The district court granted DFI's summary judgment motion, ruling that Serrano failed to establish constructive dismissal as part of her prima facie case of age discrimination because she did not show that there was a problem with the new position that would compel a reasonable person to resign. Before us on appeal is Serrano's ADEA claim against DFI, her state law claims having been dismissed without prejudice. STANDARD OF REVIEW STANDARD OF REVIEW We review the district court's grant of summary judgment de novo. Mulero-Rodr guez v. Ponte, 98 F.3d 670, 672 __ ____ ________________ _____ (1st Cir. 1996). Summary judgment is properly granted where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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). Under Rule 56, once the moving party has pointed to the absence of adequate evidence supporting its opponent's case, the onus is on the party resisting the motion for summary judgment to respond by presenting facts that show that there is a "genuine issue for trial." LeBlanc v. Great American Ins. Co., 6 F.3d _______ ________________________ 836, 841-42 (1st Cir. 1993) (quoting Anderson v. Liberty Lobby, ________ _______________ Inc., 477 U.S. 242, 256 (1986)). To oppose the motion ____ successfully, the nonmoving party "may not rest upon mere -5- allegations or denials of his pleading." Anderson, 477 U.S. at ________ 256. "The nonmoving party must establish a trial-worthy issue by presenting 'enough competent evidence to enable a finding favorable to the nonmoving party.'" LeBlanc, 6 F.3d at 842 _______ (quoting Anderson, 477 U.S. at 249). ________ DISCUSSION DISCUSSION The ADEA makes it unlawful for an employer to "discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C.A. 623(a)(1) (1985). In a wrongful discharge case under the ADEA, the plaintiff bears the ultimate burden of proving that "he would not have been fired but for his age." Freeman v. Package Mach. Co., 865 F.2d 1331, 1335 (1st Cir. _______ __________________ 1988). Where, as here, there is no direct evidence showing that the employer's actions were motivated by age, the familiar McDonnell Douglas framework governs. See McDonnell Douglas Corp. _________________ ___ _______________________ v. Green, 411 U.S. 792, 802-05 (1973); Greenberg v. Union Camp _____ _________ __________ Corp., 48 F.3d 22, 26-27 (1st Cir. 1995). Under the McDonnell _____ _________ Douglas framework, the employee must initially come forward with _______ sufficient evidence to establish a prima facie case of age _____ _____ discrimination. Here, Serrano needed to establish that: (i) she is over forty years of age; (ii) her job performance was sufficient to meet DFI's legitimate job expectations; (iii) she was constructively discharged; and (iv) DFI sought a replacement with roughly similar skills or qualifications. Greenberg, 48 _________ -6- F.3d at 26. Once the plaintiff has met this modest burden, a presumption of discrimination arises that shifts the onus to the employer to come forward with a legitimate, nondiscriminatory reason for its actions. Id. If the employer does so, the ___ presumption of age discrimination vanishes and the burden shifts back to the plaintiff to show that the employer's justification is pretextual. The burden of persuasion, as opposed to the burden of production, rests with the plaintiff throughout. The district court found that although there may exist a factual dispute between the parties as to whether Serrano met DFI's legitimate job expectations (the second prong of McDonnell _________ Douglas), or indeed as to whether DFI's reasons for reducing _______ Serrano's duties or transferring her job were pretexts for improper age discrimination, Serrano failed to establish a prima facie case because, on undisputed facts, she did not establish constructive dismissal (prong three). On appeal Serrano contends that there is a triable issue as to constructive dismissal, making summary judgment improper, and also contends that a finding of "adverse employment actions" may provide grounds for relief even if a finding of constructive dismissal is not supported by the record. We assess each argument in turn. I. Constructive Dismissal I. Constructive Dismissal We must consider de novo whether, as a matter of law, __ ____ Serrano failed to make a prima facie showing of constructive discharge. We have long applied an "objective standard" in determining whether an employer's actions have forced an employee -7- to resign. See, e.g., Calhoun v. Acme Cleveland Corp., 798 F.2d ___ ____ _______ ____________________ 559, 561 (1st Cir. 1986). For the transfer proposed by DFI to be deemed a constructive discharge, "'the trier of fact must be satisfied that the new working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.'" Id. ___ (quoting Alicea Rosado v. Garc a Santiago, 562 F.2d 114, 119 (1st _____________ _______________ Cir. 1977)). An employee may not, therefore, be unreasonably sensitive to a change in job responsibilities. It is undisputed that Serrano, when offered the position of "retail manager," was promised the same salary and benefits she enjoyed as comptroller. Salary considerations are important in determining whether a job transfer can support a claim of constructive dismissal. See Greenberg, 48 F.3d at 27 ___ _________ (noting no change in salary in course of finding no constructive dismissal) (collecting cases); Stephens v. C.I.T. Group, 955 ________ _____________ F.2d 1023, 1027 (5th Cir. 1992) (noting reduction of salary in course of finding constructive dismissal); Pe a v. Brattleboro ____ ___________ Retreat, 702 F.2d 322 (2d Cir. 1983) (finding no constructive _______ discharge where job responsibilities were changed without any reduction in pay); cf. N ez-Soto v. Alvarado, 918 F.2d 1029, ___ __________ ________ 1030-31 (1st Cir. 1990) (in political demotion case, demotion without salary cut found insufficient for constructive dismissal). Although important, the fact that salary and benefits have not been decreased has never been held to be a conclusive factor; courts applying the objective standard in -8- ADEA constructive dismissal cases consider a variety of often case-specific factors. See Greenberg, 48 F.3d at 27-29 ___ _________ (discussing salary in addition to assessing new work conditions); Stetson v. NYNEX Serv. Co., 995 F.2d 355, 360-62 (2d Cir. 1993) _______ ________________ (noting no decrease in salary, but focusing mainly on working conditions); see also Flaherty v. Gas Research Inst., 31 F.3d ________ ________ ___________________ 451, 457 (7th Cir. 1994) ("[A]n employer does not insulate itself from liability for discrimination simply by offering a transfer at the same salary and benefits."). Common sense suggests that a job transfer without a reduction in salary and benefits may, under certain circumstances, be unacceptable to a reasonable person who is overqualified and humiliated by an extreme demotion, or underqualified and essentially "set up to fail" in a new position. With this in mind, we turn to Serrano's situation. In the present case, the fact that after her transfer Serrano would remain the second highest salaried employee in DFI's airport organization takes on great importance, for the simple reason that this is one of few concrete facts we have regarding the position that she was offered. Serrano, by not trying out, or finding out more about, the newly created position, cannot possibly muster proof that, in the course of a trial, could lead a jury to find that the newly created position -9- would compel a reasonable person with her background to refuse the offer and resign.3 The precise contours of the new position, which appears to have been created for Serrano, are unclear. In view of Lozano's characterization of the new position, in his July 21, 1994 letter to Serrano, as one in which Serrano "would supervise and be responsible for the retail operation of our San Juan International Airport stores," it is impossible to conclude that the position would compel a reasonable person in Serrano's shoes to quit. Based on Serrano's own sworn statements, she had held general supervisory duties over the stores for Aeroboutiques (DFI's predecessor), and continued to hold supervisory responsibilities while also assuming accounting responsibilities in her position as comptroller for DFI. Serrano considers the move from comptroller to "retail manager" to be a devastating change in status, but cannot point to specific problems that would arise, other than the fact that she is unqualified to ____________________ 3 Appellant's basic contention regarding the new position -- that it involved sales tasks she was not qualified or experienced enough to carry out -- rests on bare allegations that simply cannot be verified, because the position of "retail manager" did not exist before it was specially created for Serrano. It also follows that plaintiff's argument that the district court erred by not determining the exact nature of her duties as comptroller are misdirected. No additional precision regarding the nature of her position as comptroller could help her, in view of the lack of evidence regarding her proposed position. Moreover, Serrano's background included a broad variety of managerial tasks besides strictly financial ones, having served previously as assistant general manager as well as comptroller. When we do consider Serrano's description of her duties, we find that the fluid nature of managerial responsibilities in DFI's organization only makes speculation about the position of "retail manager" more unreliable. -10- "push" merchandise. She cannot prove, however, that the newly created position of "retail manager" would involve a sufficient amount of daily, hands-on sales work to compel a reasonable person in Serrano's position to resign. Serrano's constructive discharge claim, therefore, rests on speculations regarding the new position, as well as on her sworn statements to the effect that supervising retail sales would harm her dignity. Loss of prestige in a job transfer, standing alone, cannot support a finding of constructive discharge. See Alicea Rosado, 562 F.2d ___ ______________ at 119-20 ("[A] limited blow to one's pride or prestige does not provide reason enough to resign during whatever period may be required to seek judicial relief."). Of course we cannot state with absolute certainty that the position offered to Serrano would not have turned out to be strongly objectionable to a reasonable person, as Serrano suggests. But, in the summary judgment context, we need not do so. The decisive consideration here is that, by not accepting the newly created and ambiguous position, Serrano foreclosed the possibility of presenting concrete evidence, rather than mere assertions, to a jury regarding the nature of her new working conditions. See Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at ___ ________ 257 (to oppose summary judgment motion, plaintiff cannot rely on assertions in pleadings and must come forward with evidence that a jury could consider). We have long expected that those who seek to initiate ADEA claims will do so while still employed, and the instant case reminds us of the wisdom of this expectation. -11- See, e.g., Cazzola v. Codman & Shurtleff, Inc., 751 F.2d 53, 55 ___ ____ _______ ________________________ (1st Cir. 1984) ("Even the victim of unlawful discrimination is expected to seek legal redress while still employed unless actually fired, or constructively discharged due to a 'drastic reduction in the quality of working conditions.'" (quoting Alicea ______ Rosado, 562 F.2d at 119-20)). Here, with no evidence of a ______ drastic reduction in work conditions sufficient to support Serrano's resignation, summary judgment is appropriate. Moreover, other factual circumstances tending to strengthen a case for constructive dismissal were not present here. There was no evidence, for example, of suggestions by the management of DFI that Serrano take an early retirement.4 Cf. ___ Calhoun, 798 F.2d at 564 (jury's finding of constructive _______ discharge bolstered by evidence of repeated inquiries regarding early retirement). There was also very little in the way of evidence showing animosity toward Serrano on account of her age.5 Cf. Greenberg, 48 F.3d at 28 (finding of no constructive ___ _________ ____________________ 4 Serrano's contention that DFI's grant of a 48-hour period to reconsider the offered job transfer -- one that she had already turned down -- was a "humiliating action" designed to lead her to resign is very difficult to accept. The July 21, 1994 letter from Lozano to Serrano which describes the 48-hour reconsideration period also states, "I want to make it absolutely clear to you that no one in the Company (DFI Puerto Rico, Inc.) intends or desires to fire you as an employee of DFI." 5 On appeal, Serrano places great emphasis on the assertion that she was replaced, in her capacity as comptroller, by a younger woman. Assuming this is correct, she does not contend that this occurred prior to her resignation. Therefore, while this fact may be related to issues of pretext, it is unrelated to our finding that Serrano fails to satisfy the third (constructive discharge) part of the McDonnell Douglas prima facie case. _________________ -12- discharge "buttressed by the fact that [the employee] couples his allegation of constructive discharge with virtually no evidence that [the employer's] motives stemmed from an animosity towards age."). All of these considerations lead us to the conclusion that the district court properly found that Serrano failed to establish a prima facie case. II. Adverse Employment Actions II. Adverse Employment Actions Serrano contends that the district court erred by failing to consider whether she had established a prima facie case of "adverse employment actions," as distinguished from the issue of constructive dismissal. Based on the recitation of damages in Serrano's amended complaint, however, her suit is plainly one seeking a remedy for improper dismissal, and not one seeking a remedy for adverse employment actions. Her allegations regarding damages consist of the following: lost income and benefits from the date she was forced to resign, and various other damages she and her husband have incurred arising out of the economic hardship brought about by her dismissal. All of Serrano's alleged economic harms would not have come about had Serrano accepted the position, which offered the same salary and benefits. See Shealy v. Winston, 929 F.2d 1009, 1012 n.2 (4th ___ ______ _______ Cir. 1991) (finding no constructive discharge and holding there is no further ground for relief on theory of adverse employment action, because "appellant would then face the barrier of proving any damages when he clearly would have been employed . . . at the same salary and benefits."). For example, the removal of various -13- responsibilities from Serrano in the months preceding the proposed transfer, if they are seen as separable from her resignation, cannot, even if proven to be discriminatory, support this suit for lost income and benefits. Given the way Serrano has framed this lawsuit, relief cannot stem from a finding that the actions of DFI, short of leading to her dismissal, were discriminatory adverse employment actions.6 CONCLUSION CONCLUSION For the reasons stated in this opinion, the district court's grant of summary judgment is affirmed. ________ ____________________ 6 In fact, for substantially the reasons discussed with regard to constructive dismissal, Serrano fails to establish a prima facie case under the ADEA of adverse employment action on the basis of the proposed job transfer. See Flaherty, 31 F.3d at ___ ________ 457; Crady v. Liberty Nat'l Bank & Trust Co., 993 F.2d 132, 135- _____ ______________________________ 36 (7th Cir. 1993) (finding failure to make prima facie case of adverse employment action where employee, claiming adverse change in job responsibilities, did not accept transfer position at same salary and therefore could not substantiate claims about that position). -14-	{ "pile_set_name": "FreeLaw" }
462 So.2d 497 (1984) W.R. (Ray) DANIEL, Jr., Property Appraiser of Hillsborough County, Appellant, v. CANTERBURY TOWERS, INC., Appellee/Cross-Appellant. No. 83-1864. District Court of Appeal of Florida, Second District. December 28, 1984. As Amended January 30, 1985. 498 John A. Curtiss, David C.G. Kerr and Ted R. Manry, III, of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellant. Edward M. Waller and Thomas P. Scarritt, Jr., of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellee/cross-appellant. CAMPBELL, Judge. Appellant, W.R. (Ray) Daniel, Jr., as Property Appraiser of Hillsborough County, appeals an amended final judgment which invalidated his property assessments for ad valorem taxes assessed against appellee, Canterbury Towers, Inc., for the 1979, 1980 and 1981 tax years. Appellee cross-appeals that portion of the amended 499 final judgment which affirmed appellant's denial of appellee's claim for charitable exemptions for 1979, 1980 and 1981. The trial court, in its amended final judgment after invalidating appellant's assessments of appellee's property for the three tax years in question, made its own determination of the assessed value of appellee's property. On appellant's appeal, we reverse the invalidation of appellant's assessments and the trial court's reassessments of appellee's property for the tax years 1979, 1980 and 1981. On appellee's cross-appeal, we affirm the trial court's approval of the denial by appellant of appellee's claim for charitable exemption for the tax years 1979, 1980 and 1981. We dispose of the cross-appeal first. Appellee/cross-appellant attacked the denial of its claimed charitable exemptions on the basis of a constitutional challenge to section 196.012(6) and section 196.1975, Florida Statutes (1979). The essential basis of appellee/cross-appellant's challenge to those statutes was that they were unconstitutionally vague in supplying inadequate guidelines for determination of the charitable exemptions provided therein. That attempt to support a claimed charitable exemption from taxes by a constitutional attack on the validity of the very statutes providing for such an exemption must obviously fail. Section 3(a), Article VII, Constitution of the State of Florida, provides only for a charitable exemption when provided by general law. Thus, if the law which grants the exemption is declared invalid, there is no exemption. To his credit, counsel for appellee/cross-appellant acknowledged at oral argument the fatal flaw in their "Catch 22" argument against the constitutional validity of the exemptory statutes. In reversing the trial court's amended final judgment on appellant's appeal therefrom, we are required to construe section 193.011, Florida Statute (1979), to determine whether appellant acted in compliance with the statute in assessing appellee's property. The trial court concluded he did not, however, we respectfully find otherwise. Our examination of section 193.011, and our determination of appellant's compliance is controlled by the holding in Blake v. Xerox Corp., 447 So.2d 1348 (Fla. 1984), as later enunciated herein. A look at some of the essential facts of this case is necessary. Appellee was incorporated in 1976, as a Florida nonprofit organization. It owns two contiguous parcels of Hillsborough County real property which are improved with a fifteen-story condominium-type building known as "The Canterbury Tower." This structure contains 125 residential apartment-type living units, as well as kitchen, dining and nursing facilities. The real property is utilized by appellee as a life care facility which has been licensed under chapter 400, Florida Statutes (Nursing Facilities) and chapter 651, Florida Statutes (Life Care Facilities). The property was purchased by appellee for $4,500,000 in 1976. The valuation assessment by the property appraiser and the assessments as judicially determined by the trial court are as follows: Assessment by Property Assessment Year Appraiser by Trial Court 1979 $4,445,045 $4,173,354 1980 $5,675,910 $3,341,563 1981 $5,675,910 $3,930,575 Appellee offers its residents the benefit of a health care facility immediately adjacent to the living units and it contracts with them to care for them for the rest of their lives on the basis of the nonrefundable entrance fee paid upon admission. These entrance fees (sometimes referred to as "Entrance Endowments") have varied depending upon the size of the particular living unit. Entrance Endowment Entrance Endowment Fees for Least Fees for Most Year Expensive Unit Expensive Unit 1978 $22,450 $50,950 1979 $23,450 $50,950 1980 $24,950 $54,950 1981 $28,950 $64,500 500 Monthly service fees charged at "The Canterbury Tower" vary depending upon the size of the unit as follows: Monthly Service Fee Monthly Service Fee for Least for Most Year Expensive Unit Expensive Unit 1978 $295 $495 1979 $340 $570 1980 $396 $664 1981 $455 $764 Only "financially responsible" applicants are accepted for residency. All are subjected to a financial screening process. "Entrance Endowments" paid by residents to gain admission to "The Canterbury Tower" are deposited in an escrow fund utilized for servicing the mortgage on the premises. At the end of 1981, this fund amounted to approximately $1,000,000. Appellee provides the following services to its residents: one meal per day, special diet entries, air conditioning, heating, electricity, water and telephone service, building janitor and maintenance, weekly housekeeping services, weekly laundry service, planned social and cultural recreational activities, emergency nursing service, as well as private health care service, all of which significantly increase appellee's operating expenses. "The Canterbury Tower" is operated by a professional management company which, in 1981, charged $6,250 per month, and an apparent consulting fee of $260,000. Although the usual or normal operating ratio of expense to gross income for commercial apartment houses in Hillsborough County has been determined to be in the range of forty to forty-five percent, the actual operating ratio for appellee is seventy-two percent. The premises owned by appellee was, at the times in question, encumbered by a purchase money mortgage in the amount of $4,500,000. In the event that a resident, due to illness, must be transferred into the medical facility, then the management may, upon deciding that the individual can no longer function on their own, re-sell the residential living unit. There are, in actuality, no sales of interest in real property to the residents of "The Canterbury Tower." What occurs is that the resident receives a "license" to occupy a residential unit during the remainder of his life. The medical/nursing facility of appellee has been granted a charitable exemption from taxes pursuant to sections 196.012 and 196.1975. Appellee's financial data comingles income and expense figures applicable to the individual residential units on one hand, and the tax exempt medical/nursing facility on the other. At its inception in 1977, appellee enjoyed substantial proceeds from the sale of its housing units. As units were sold to permanent residents, however, appellee experienced a significant drop in sales proceeds. Specifically, the amount decreased from approximately $4,500,000 for the first three years, to between $300,000 to $400,000 for the years 1980 and 1981. When the appellant valued appellee's property in 1979 through 1981, he used the cost approach to make the valuation. The building was treated as a "special purpose" property, and the entire parcel appraised solely by use of the cost approach. A "special purpose" property is one that cannot easily be converted to another use and that has no ready market value, rental value or income stream. While appellee experiences somewhat of an income stream, the appellant in this case felt the income approach was too complicated to apply because of the complications and imbalance caused by the entrance and monthly fee charges. While appellant never had actual expense or income figures in connection with the property, he did have available the general scheme of monthly charges, entrance fees and overall expense figures which were not broken down between those attributable to the residential units and those attributable to the medical/nursing facility. Because of the dual nature of the facility and the complications caused by attempting to accurately predict any stability in the income approach over the years, appellant concluded that appellee's property was "special purpose" type 501 property for which a cost approach for assessment purposes would be more realistic and accurate than an income approach. The trial court concluded that appellant's assessments were invalid for his failure to properly consider and utilize the income approach. Pursuant to section 193.011, Florida Statutes, there are certain "factors" which a property appraiser must take into consideration in arriving at an evaluation for ad valorem tax purposes. These statutory factors are: (1) The present cash value of the property; (2) The property's present use and the highest and best use to which the property can be expected to be put in the immediate future; (3) The location of the property; (4) The quantity or size of the property; (5) The cost of the property and its present replacement value; (6) The condition of the property; (7) The income from said property; and (8) The net proceeds of sale thereof. Because of the highly discretionary and judgmental character of the property appraiser's work, the Florida Supreme Court has prescribed a very limited scope of judicial review for property appraiser assessments. In Folsom v. Bank of Greenwood, 120 So. 317, 318 (Fla. 1929), it held: The prima facie correctness of an assessment when made by the proper officers must be affirmatively overcome by appropriate and sufficient allegations and proofs excluding every reasonable hypothesis of a legal assessment. See District School Board of Lee County v. Askew, 278 So.2d 272 (Fla. 1973); Homer v. Dadeland Shopping Center, Inc., 229 So.2d 834 (Fla. 1970); Powell v. Kelly, 223 So.2d 305 (Fla. 1969). The principle that the property appraiser's assessment may be judicially overturned only if there is no reasonable hypothesis to support it, has also been followed by the decision of the various district courts of appeal. Exchange Realty Corp. v. Hillsborough County, 272 So.2d 534 (Fla. 2d DCA 1973); Tampa Coca-Cola Bottling Co. v. Walden, 230 So.2d 52 (Fla. 2d DCA 1969); Harbond, Inc. v. Anderson, 134 So.2d 816 (Fla. 2d DCA 1961); Atlantic International Investment Corp. v. Turner, 383 So.2d 919 (Fla. 5th DCA 1980); Hecht v. Dade County, 234 So.2d 709 (Fla. 3d DCA 1970); Keith Investments, Inc. v. James, 220 So.2d 695 (Fla. 4th DCA 1969); Florida East Coast Ry. v. Green, 178 So.2d 355 (Fla. 1st DCA 1965). It seems in most cases, as here, that the principal argument between the taxpayer and the property appraiser occurs over the extent of the consideration the property appraiser must afford each of the factors. Certainly, a property appraiser cannot simply "out of hand" reject, without any consideration, one of the factors as being inappropriate. However, the opposite principle, that after considering a factor, the property appraiser cannot reject it as being inappropriate under the circumstances of the particular case, is not correct either. Appellee here seems to seek imposition of a rule that would require an appraiser to consider in depth all of the particulars concerning a specific factor even when that specific factor, from a consideration of all of the factors, has been determined to be inappropriate to the instant case. In the case at bar, there is ample evidence that the property appraiser did, in fact, consider all the factors enumerated in section 193.011, Florida Statutes (1981). There is absolutely no evidence in the record that he failed to consider any one of these statutory factors. In any assessment situation, some of the particular factors of the statute will, if relied upon, "primarily" or "exclusively" produce a different valuation than will others. In the case at bar, appellee's peculiar and unique income flow, if used as an "income approach" for the purpose of fixing valuation, will produce a lower value than if either the "cost approach" or the real rental value is utilized. That alone is no basis for invalidating *502 the property appraiser's decision. Keith Investments, Inc. v. James. The reason for the "no reasonable hypothesis" doctrine with respect to the judicial review of property appraiser decisions, is that there are numerous, and sometimes conflicting, appraisal theories or techniques for establishing an opinion as to real estate value. All of these theories and approaches have general recognition, and none are necessarily more appropriate than others for all cases. It is because there are so many well recognized approaches and techniques for arriving at an appraisal decision that the property appraiser's decision may be overturned only if there is no reasonable hypothesis to support it. It is well established in the Florida law of ad valorem tax assessment, that where the unique or special purpose nature of the property makes it difficult or impossible to establish a market value for it, as is the case for the property involved in this case, then the valuation process should comprehend and give effect to all of the factors that go to make up the intrinsic value of the property. Hillsborough County v. Knight & Wall Co., 153 Fla. 346, 14 So.2d 703 (1943); Calder Race Course, Inc. v. Overstreet, 363 So.2d 631 (Fla. 3d DCA 1978); Dade County v. Miami Herald Publishing Co., 285 So.2d 671 (Fla. 3d DCA 1973). While a property appraiser must consider each of the factors set out in section 193.011, he is free to assign to each factor such weight as he deems proper. Even where each of several different factors might be proper, the selection of one over the other is not necessarily invalid. An appraiser is not required to give all factors equal rate so long as each factor is carefully considered and given such weight as the facts justify. Bath Club, Inc. v. Dade County, 394 So.2d 110 (Fla. 1981); Straughn v. Tuck, 354 So.2d 368 (Fla. 1978); Bystrom v. Equitable Life Assurance Society, 416 So.2d 1133 (Fla. 3d DCA 1982); Lanier v. Walt Disney World Co., 316 So.2d 59 (Fla. 4th DCA 1975). As was held in Blake v. Xerox Corp., if the evidence shows an appraiser properly considered the statutory factors (which we conclude is the case here), then: [T]he only remaining question was whether the appraiser, following the law, could conceivably and reasonably have arrived at the appraisal value being challenged. Although the trial court appears to have grounded its judgment on the finding that Xerox had failed to prove that its method was superior, this finding was unnecessary to the judgment. Regardless of which method was theoretically superior, the trial court was bound to uphold the appraiser's determination if it was lawfully arrived at and within the range of reasonable appraisals, that is, if it was supported by any reasonable hypothesis of legality. We, therefore, reverse the trial court on appellant Daniel's appeal and direct, on remand, that appellant's appraisals for the years in question be reinstated. We affirm the trial court on appellee's cross-appeal. Reversed in part, affirmed in part and remanded for treatment consistent herewith. RYDER, C.J., and BOARDMAN, J., concur.	{ "pile_set_name": "FreeLaw" }
In the United States Court of Appeals For the Seventh Circuit ____________________ No. 14-3754 JESUS ANTONIO CRUZ-MARTINEZ, Petitioner, v. JEFFERSON B. SESSIONS III, Attorney General of the United States, Respondent. ____________________ On Petition for Review of an Order of the Board of Immigration Appeals. No. A078-867-386 ____________________ ARGUED FEBRUARY 8, 2018 — DECIDED MARCH 14, 2018 ____________________ Before FLAUM, EASTERBROOK, and MANION, Circuit Judges. MANION, Circuit Judge. Jesus Antonio Cruz-Martinez pe- titions this Court to review the decision of the Board of Immi- gration Appeals (Board) affirming the decision of the Immi- gration Judge (IJ). Cruz-Martinez argues on appeal that the Board erred by failing to consider his asylum claim and the reinstatement of his prior order of removal, denying him withholding of removal and protection under the Convention 2 No. 14-3754 Against Torture (CAT), and violating his right to due process by refusing to remand his case to the IJ for consideration of new evidence. We conclude his challenges are meritless and deny the petition for review. I. Background A citizen of Mexico who was born in 1977, Cruz-Martinez first came to the United States from Mexico illegally in 1993. He was removed to his home country in 2002 under a signed, stipulated removal order dated October 22, 2002. This re- moval order is captioned “In the Matter of: Rocha-Martinez, Jose,” which is an alias that Cruz-Martinez has used. Cruz-Martinez states that in 2005 two armed men who had previously fought with his brothers threatened him at his mother’s home in Mexico while they were looking for one of his brothers. His mother contacted the local police about the threat to Cruz-Martinez, but the police did nothing. Accord- ing to Cruz-Martinez, the local police did nothing because the armed men had paid them off. Two months following this in- cident, Cruz-Martinez returned to the United States without permission. While in the United States a second time, Cruz-Martinez acquired various criminal convictions including convictions for aggravated assault, possession of cocaine, and obstructing police. Cruz-Martinez also married a United States citizen with whom he has a child. He is also a step-father to her three other children. Additionally, since Cruz-Martinez returned to the United States in 2005, all of his siblings and his mother have come to reside in the United States. Some of his family members, including his mother, have gone back and forth to No. 14-3754 3 Mexico without incident, and none of his family members have sought protection from persecution. In 2014, the Department of Homeland Security reinstated the 2002 removal order. Expressing fear of being returned to Mexico, Cruz-Martinez was interviewed by the Asylum Of- fice in Chicago, which made a positive reasonable-fear deter- mination. Cruz-Martinez then applied for protection from persecution with the Immigration Court. Before the IJ, Cruz- Martinez testified that he is afraid that if he returns to Mexico, he will be kidnapped, subjected to extortion, tortured, and killed. He cites a fear of the two armed men who attacked him, as well as gangs and organized crime in Mexico. Cruz-Mar- tinez’s wife also testified, including about having been robbed at gunpoint in Mexico when she visited during her prior mar- riage. The IJ denied Cruz-Martinez’s application. The IJ held that while Cruz-Martinez testified credibly, he did not establish a clear probability of either persecution or torture. The IJ found that the incident involving the two armed men in 2005 was isolated and insufficiently severe to constitute past persecu- tion, and there was no pattern of ongoing or escalating harm. The IJ also noted that after the incident in 2005, he remained in Mexico for two months. During that time no one sought to harm Cruz-Martinez, no one in his family was harmed, and his brother did not file a claim for protection. Regarding Cruz- Martinez’s fears based on the deteriorating conditions in Mex- ico, the IJ cited the fact that members of Cruz-Martinez’s fam- ily traveled back and forth to Mexico without incident. Fi- nally, the IJ found that Cruz-Martinez did not present any ev- idence that “he would be detained or subjected to torture” by either the government or someone else with the government’s 4 No. 14-3754 acquiescence. The IJ made particular note that deportees do not constitute a particular social group and that while those with family in the United States may have an increased likeli- hood of being kidnapped for extortion that “does not convert them into people who are being persecuted on account of their membership in a particular group or for any reason other than generalized criminal misconduct.” The Board affirmed the IJ’s decision. Specifically, the Board found the IJ did not err in determining that Cruz-Martinez failed to meet his burden of proof for relief. The Board re- jected Cruz-Martinez’s claim that the isolated threat and gen- eralized crime supported a claim for persecution. Regarding his prior removal order, the Board noted that Cruz-Martinez conceded to using the name listed on the 2002 stipulated re- moval order during his asylum interview. Finally, the Board denied Cruz-Martinez’s request for the IJ to consider new ev- idence that he submitted to the Board, namely the U.S. State Department’s travel warning for Mexico and recent news ar- ticles about conditions in Mexico. The Board concluded that Cruz-Martinez did not establish that this new evidence would alter the outcome of his case. Following the Board’s affirmance of the IJ’s decision, Cruz- Martinez filed this petition for review. II. Analysis Challenging the stipulated order of removal, Cruz- Martinez argues that he should be in removal and not with- holding-only proceedings. He contests the content of the stip- ulated order of removal, including the name on the caption, “In the Matter of Rocha-Martinez, Jose.” Cruz-Martinez’s No. 14-3754 5 challenge is unavailing. In his asylum interview, Cruz-Mar- tinez conceded that he used the name listed on the stipulated removal order. Moreover, Cruz-Martinez failed to challenge the stipulated removal order within thirty days of its entry, which was October 23, 2002. 8 U.S.C. § 1252(b)(1) (“The peti- tion for review must be filed not later than 30 days after the date of the final order of removal.”); Torres-Tristan v. Holder, 656 F.3d 653, 656 (7th Cir. 2011) (“We do not look behind the reinstatement to entertain challenges to the earlier, underly- ing removal order.”) (citation omitted). Finally, Cruz-Mar- tinez argues that his due process rights were violated based on the reinstatement of the prior removal order because the reinstatement was unsigned and his case should be remanded for consideration of this issue. As we have previously noted, our “jurisdiction in such an instance extends only to the ques- tion whether the reinstatement order was properly entered; we cannot look behind that order to the underlying removal order.” Gomez v. Chavez, 308 F.3d 796, 801 (7th Cir. 2002). Be- cause there is a signed reinstatement in the Department of Homeland Security Administrative record, remand for the consideration of this issue would be futile. See Lopez v. Lynch, 810 F.3d 484, 492 (7th Cir. 2016). Cruz-Martinez does not deny that he was unlawfully in the United States at both times, nor does he make any meaningful argument to challenge the re- instatement of his 2002 stipulated removal order. Therefore, Cruz-Martinez’s challenge of the stipulated removal order fails. Cruz-Martinez next contends that the IJ and Board erred as a matter of law by failing to consider his application for asylum. As we held in Garcia v. Sessions, aliens subject to a reinstated order of removal cannot apply for asylum. 873 F.3d 553, 556-57 (7th Cir. 2017). 6 No. 14-3754 As an alien subject to a reinstated order of removal, Cruz- Martinez cannot apply for asylum. Therefore, the IJ and Board did not err in rejecting his claim for asylum. Cruz-Martinez also challenges the Board’s affirmance of the IJ’s denial of his claim for withholding of removal based on future persecution. Specifically, Cruz-Martinez asserts that “threats can form the basis for persecution.” Our review of the Board’s decision is deferential, and we will deny a petition for review if the “Board’s decision is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Li Ying Zheng v. Holder, 722 F.3d 986, 989 (7th Cir. 2013) (internal quotations and citations omitted). To be enti- tled to withholding of removal based on fear of future perse- cution, a petitioner must establish that he would be subject to persecution based on a statutorily protected ground, such as race, religion, nationality, political opinion, or membership in a “particular social group.” 8 U.S.C. § 1231(b)(3)(A). Addi- tionally, the harm feared to be suffered must be attributable to the “government or to a nongovernmental entity that the government is unable or unwilling to control.” Almutairi v. Holder, 722 F.3d 996, 1002 (7th Cir. 2013). Persecution includes “punishment or the infliction of harm for political, religious, or other reasons that this country does not recognize as legit- imate.” Pathmakanthan v. Holder, 612 F.3d 618, 622 (7th Cir. 2010) (citations omitted). Threats can rise to the level of per- secution, but only if they are “of a most immediate and men- acing nature.” Hernandez-Baena v. Gonzales, 417 F.3d 720, 723 (7th Cir. 2005) (citation omitted). In a “vast majority of cases … mere threats will not, in and of themselves, compel a find- ing of past persecution.” Pathmakanthan, 612 F.3d at 623 (quot- ing Boykov v. INS, 109 F.3d 413, 416 (7th Cir.1997)). No. 14-3754 7 Here, Cruz-Martinez testified about one isolated threat from armed men, but did not establish the threat was based on a statutorily protected ground. The seriousness of the threat and likelihood of future persecution are dubious as well. Cruz-Martinez remained in Mexico for two months after the incident without harm or additional threats, and no harm has come to any of his family members, some of whom have traveled back and forth to Mexico without incident. Moreo- ver, the threat was made over twelve years ago, and there is nothing in the record to indicate that the threat has been re- newed or any reason to believe that it would be. Finally, the threat was not carried out by the government or an entity that the government sanctioned or could not control. Thus, there is reasonable, substantial, and probative evidence to support the determination that Cruz-Martinez did not suffer past per- secution. Regarding his CAT claim, Cruz-Martinez only gener- ally argues that the Board erred and does not cite specific ev- idence or arguments in support of his claim that he would be subject to torture, much less that the government would com- mit such acts or that such acts would be committed by the government. Therefore, these arguments are waived. See United Central Bank v. Davenport Estate, LLC, 815 F.3d 315, 318 (7th Cir. 2016). Even in the absence of waiver, Cruz-Martinez failed to present evidence that he would be subject to torture by the government if he was returned to Mexico. Therefore, his CAT claim fails. Finally, Cruz-Martinez contends that the Board vio- lated his due process rights by refusing to remand his case to the IJ for consideration of new evidence, namely news articles 8 No. 14-3754 and a U.S. State Department report about increased kidnap- pings in Mexico. The Board declined to consider the evidence and found there was no basis to remand because “applicant has not established that this new evidence could possibly alter the decision in this case.” This court reviews a Board’s denial of a motion to remand for abuse of discretion. See Yi Xian Chen v. Holder, 705 F.3d 624, 631 (7th Cir. 2013). Cruz-Martinez pre- sented no evidence that the articles and reports of generalized crime in Mexico showed that he would be more likely tar- geted for harm, be it persecution or torture. Therefore, the Board did not abuse its discretion in denying Cruz-Martinez’s request for a remand for the consideration of new evidence. III. Conclusion Because Cruz-Martinez is an alien subject to a prior re- moval order, he is not eligible to apply for asylum. Further, he did not meet his burden in establishing that he would be sub- ject to future persecution or torture; thus, he is not entitled to withholding of removal or relief under CAT. Therefore, the petition for review is denied.	{ "pile_set_name": "FreeLaw" }
426 F.2d 592 11 A.L.R.Fed. 831, 1970 Trade Cases P 73,167 UNITED STATES STEEL CORPORATION, Petitioner,v.FEDERAL TRADE COMMISSION, Respondent. No. 19423. United States Court of Appeals, Sixth Circuit. May 6, 1970. Edgar E. Barton, New York City, (White & Case, New York City, on the brief), for petitioner. Laura Banfield, New York City, of counsel. Jerold D. Cummins, Fedederal Trade Commission, Washington, D.C. (John V. Buffington, Gen. Counsel, J. B. Truly, Asst. Gen. Counsel, Frederick H. Mayer, Attys., Federal Trade Commission, Washington, D.C., on the brief), for respondent. Before PHILLIPS, Chief Judge, CELEBREZZE, Circuit Judge, and O'SULLIVAN, Senior Circuit Judge. CELEBREZZE, Circuit Judge. 1 This is a proceeding to review an order of the Federal Trade Commission ('Commission') requiring the United States Steel Corporation ('U.S. Steel') to divest itself of the assets of Certified Industries ('Certified'). The Commission ordered divestiture based upon its finding that the acquisition of Certified-- the largest non-integrated customer of portland cement among concrete producers in the New York Metropolitan Area-- by the U.S. Steel-- the largest non-integrated supplier of portland cement in the same metropolitan area-- violated Section 7 of the Clayton Act, as amended. 15 U.S.C. 18 (1964). I. THE FACTS AND PROCEEDING BELOW 2 U.S. Steel acquired Certified on April 30, 1964. On January 22, 1965, the Commission issued a complaint alleging that 'the effect of the acquisition * * * both the itself and by aggravating the present industry trends towards vertical integration (and concentration) between suppliers and consumers of portland cement may be substantially to lessen competition * * * in the production and sale of portland cement and ready-mixed concrete in the New York City metropolitan area * * * (and) in adjoining markets.' In its answer, U.S. Steel denied that the acquisition had the requisite anti-competitive effects for a violation of Section 7. U.S. Steel further alleged that the acquisition was immunized from attack under Section 7 by the 'failing company' doctrine of International Shoe Co. v. Federal Trade Commission, 280 U.S. 291, 50 S.Ct. 89, 74 L.Ed. 431 (1930). 3 After hearings were held, the hearing examiner issued a decision dismissing the complaint. The Commission, on appeal, overruled the initial order of the hearing examiner. The Commission found: (1) that the effect of the acquisition may be substantially to lessen competition in a relevant area of competition; and (2) that the failing condition of the company did not immunize its acquisition from the scope of Section 7 prohibitions as there was no overriding interest in preserving Certified from possible bankruptcy. Each of these conclusions is challenged in this action. 4 U.S. Steel, The Acquiring Company. 5 U.S. Steel was the nation's seventh largindustrial corporation in 1965, with sales est industrial corporation in 1965, with sales in excess of $4.0 billion. It was the country's largest manufacturer of steel and a major integrated producer of raw materials for the production of iron and steel products and building materials. 6 Through its Universal Atlas Cement Division (U.A.C.'), U.S. Steel is one of the nation's four largest portland cement manufacturers. It operates 11 cement plants, has an annual capacity of over 30 million barrels, and serves 37 states. U.A.C. serves the New York City metropolitan area ('NYMA') from plants located at Hudson, New York and North-hampton, Pennsylvania. 7 Certified, The Acquired Company. 8 Certified, at the time of the acquisition and for a number of years prior thereto, produced and sold ready-mixed concrete and mineral aggregates. At the close of 1963, four months prior to the acquisition, Certified had nearly $9 million in assets and was generating sales at an annual rate of approximately $12 million. During that same year Certified made substantial purchases of portland cement from sources located outside the State of New York. In that same time period Certified's subsidiary, Northern Light-Weight Aggregates, Inc., made shipments of expanded shale valued at $205,757, to destinations outside of the State of New York. 9 Starting in 1953 as a small, one-plant, four-truck, ready-mixed concrete company doing business in Suffolk County, Certified rapidly expanded. By 1961, it had acquired the assets of a number of other ready-mixed concrete companies, thereby expanding its sales area throughout Long Island and New York City proper. 10 At the time of the acquisition it was one of the four largest ready-mixed concrete producers and the second largest consumer of portland cement among the concrete producers in the New York metropolitan area. It owned several pits for the extraction of sand and gravel, a quarry for the extraction of lightweight aggregates, and 181 trucks, including 177 ready-mix trucks. 11 The Background of the Acquisition. 12 In 1961, Certified completed two major acquisitions. These acquisitions placed heavy capital requirements on Certified's already-thin capital structure. In the fall of 1961, Certified negotiated extended credit arrangements with four of its suppliers, in an aggregate amount of $350,000. In January, 1962, Certified was issued a 12-month interest-bearing note for $150,000 by U.A.C. on the purchases of cement which it had made from U.A.C. In December, 1962, Certified notified U.S. Steel that it would have difficulty paying off the U.A.C. note. U.S. Ateel recommended to Certified that it consider long-term financing and arranged a meeting between the President of Certified and officials of Bankers Trust Company of New York, in which U.S. Steel was a substantial depositor. Thereafter, Certified borrowed up to four million dollars from Bankers Trust on a loan secured by Certified's assets and guaranteed by a 'notes purchase agreement' from U.S. Steel. 13 This additional influx of funds did not rescue the troubled Certified.1 Nor was Certified able to reestablish its financial security through a favorable sell-out.2 In November, 1963, Certified turned towards U.S. Steel as a merging partner. 14 After some discussions, U.S. Steel purchased all Certified's assets, assumed all its liabilities, and paid Certified shareholders slightly over $1 million for all its shares. Subsequent to the acquisition, Certified's business has operated as a division of U.S. Steel with Robert A. Ragio, Treasurer of U.A.C. (U.S. Steel's cement-producing subsidiary) as President of the Certified Division. 15 While Certified had frequently purchased U.A.C.'s cement prior to its January 1962 note, Certified's purchases of U.A.C. cement intensified as the vertical financial arrangements between the two companies increased, as the following figures indicate: 16 Certified's Certified's Cement total Proportion Purchases Cement of total from UAC purchase cement Year (Bbl.) (Bbl.) purchases ---- ----------- ----------- ---------- 1961 36,675 451,989 8.4% 1962 123,731 823,352 14.9% 1963 567,470 1,054,072 53.8% 1964 701,151 793,479 88.4% 17 Since the acquisition took place in March 1964, it may be inferred that most, if not all, of Certified's purchases from suppliers other than U.A.C. took place prior to the acquisition. In the post-acquisition period Certified has purchased substantially all of its cement requirements from U.A.C. 18 At no point during the years under discussion was there a formal agreement by Certified to purchase a specified percentage of its cement requirements from U.A.C. There is unrebutted evidence, however, that such proposals were submitted to Certified by U.A.C. and some minimum form of commitment was tacitly understood by the parties. U.S. Steel's purpose in extending its credit, its guarantees, and, ultimately its funds to purchase Certified was revealed in a memorandum from its Executive Vice President to its Board of Directors: 19 'If Certified ceases operations Universal Atlas Cement would suffer an irreplaceable loss in its present market for its Hudson product and be seriously embarrassed commercially in one of its major makets during the last sixty years.' 20 The Relevant Markets. Section 7 of the Clayton Act does not outlaw every vertical acquisition of stock or assets whose effect 'may be substantially to lessen competition,' but rather it proscribes only those arrangements which have that requisite effect 'in any line of commerce in any section of the country.' As the United States Supreme Court observed in Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962) (applying the Clayton Act to a vertical merger), 21 'The 'area of effective competition' must be determined by reference to a product market (the 'line of commerce') and a geographic market (the 'section of the country').' 370 U.S. at 324, 82 S.Ct. at 1523. 22 Products Markets. The Commission found that 'portland cement'3 and 'ready-mixed concrete,'4 defined as stipulated by the parties, are appropriate product markets for purposes of this proceeding and are relevant lines of commerce within the meaning of Section 7 of the Clayton Act. 23 The Geographic Markets. Although relevant geographic markets are not 'susceptible to a (precise) 'metes and bounds' definition,' the appropriate market is characterized as 'the area in which the seller operates and to which the purchaser can practically turn for supplies.' Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 327, 331, 81 S.Ct. 623, 628, 5 L.Ed.2d 580 (1960). Since the primary impact of the instant acquisition falls upon the customer-supplier relationship between Certified-- which operates almost exclusively in the NYMA-- and its potential suppliers-- to whom Certified can practically turn for portland cement, the geographic market can be no broader than the area in which Certified's potential suppliers can turn if they lose Certified's business. The addition, within this broad geographic market, well defined submarkets may exist which, in themselves, constitute geographic markets for antitrust purposes. See Brown Shoe Co. v. United States, 370 U.S. at 325, 82 S.Ct. 1502. 24 Applying these principles, we affirm the Commission's findings as to the relevant product markets (portland cement and ready-mixed concrete) and geographic markets (the Northeastern United States5 and NYMA6 in the sale of portland cement and the NYMA for producers of ready-mixed concrete) for purposes of these proceedings. 25 The Structure of the Cement Industry in the Pertinent Markets. Approximately 20 companies ship cement into both the NYMA and the Northeastern United States market area; the four largest of which accounted for almost 37 per cent of the total cement shipments in the northeastern market in 1960. In that year, none of those four companies was vertically integrated. However, in 1964, the share of the top four companies had increased to 43.6 per cent and two of these companies (U.A.C. and Colonial) were vertically integrated. 26 Focusing on the NYMA submarket, the structure of the cement industry is more concentrated. The top eight companies which sell cement in the NYMA accounted for 67.9 per cent of the shipments in the NYMA in 1960 and 70.8 per cent in 1964. The top four companies in the market controlled 44.8 per cent of the sales in 1960 and 53.4 per cent in 1964. The gradual increase in the concentration ratios of the leading firms in the market took place while the total shipments of cement into the NYMA increased 10 per cent from 10.6 million barrels to 11.7 million barrels. 27 These increases in the concentration of the cement industry may be largely attributed to the performance of two companies: Colonial Sand & Stone and U.A.C.7 The growth rates of these two companies were several times the growth rates of the NYMA and Northeastern markets.8 28 The Structure of the Ready-Mixed Concrete Industry in the NYMA. The NYMA is served by over 50 ready-mixed concrete producers, but only six or seven of these do business throughout all or large portions of the area.9 In 1958 when none of the leading firms in the market was vertically integrated, the shipments of the four largest firms represented 52 per cent of the value of total shipments of ready-mixed concrete in the NYMA. At all times during the years 1962-1964, at least three of the leading six firms had some form of vertical arrangements. In 1962, 1963, and 1964, the four largest firms consumed 81.2 per cent, 80.7 per cent and 73.5 per cent, respectively, of all shipments of cement to ready-mixed producers. 29 Trends in NYMA Towards Vertical Integration In The Manufacture and Sale of Cement and Ready-Mixed Concrete. The cement and ready-mixed concrete industries are being subjected to strong pressures to vertically integrate their operations. During the period between 1962 and 1964, cement purchases in the NYMA dropped by approximately 18 per cent because of a slackening in construction activity. A sharp decline in the price of cement did not halt the decline in the demand for portland cement. 30 During this temporary period of imbalance between the supply and demand for cement products, several cement companies sought to assure themselves of regular high-volume outlets for their cement production to offset their high fixed costs. Since 1960, four of the leading six ready-mixed producers had their open market demands for portland cement foreclosed by the vertical acquisitions of leading cement manufacturers. American Cement Corporation acquired M. F. Hickey Company, the fifth leading consumer of cement among the ready-mixed producers in NYMA, in January 1960.10 National Portland Cement Company acquired Ryan Ready Mixed Corporation, the fourth leading consumer, in September, 1963.11 U.S. Steel's subsidiary, U.A.C., acquired Certified, the second leading consumer in April 1964.12 Marquette Cement Manufacturing Company acquired Cooney Brothers, Inc., the sixth leading consumer, and related corporations in November, 1964.13 Moreover Colonial Sand & Stone, the leading consumer of cement among the ready-mixed producers generated three-fourths of its own cement requirements by internal expansion into the production of cement.14 Thus, during the years 1960 to 1964, five of the leading six consumers of cement among the ready-mixed producers in the NYMA experienced vertical integration. Several of the remaining non-integrated cement firms competing with the integrated companies expressed their 'opposition to vertical integration * * ' but conceded that 'they might have to acquire a ready-mix company in order to protect their market.'15 31 Finally, it should be noted that the NYMA is the only area in the Northeast to which the national trend towards the integration of the cement and concrete industries has spread. II. THE REQUISITE ANTICOMPETITIVE EFFECT 32 Section 7 of the Clayton Act, as amended, was intended by Congress to 'arrest in their incipiency restraints * * in a relevant market,' United States v. E. I. duPont & Co., 353 U.S. 586, 589, 77 S.Ct. 872, 875, 1 L.Ed.2d 1057 (1957), and to reach out beyond acquisitions which pose a 'clear-cut menace to competition.' Brown Shoe Co. v. United States, 370 U.S. 294, 323, 82 S.Ct. 1502, 1523 (1962). 33 In determining whether the effect of an acquisition 'may be substantially to lessen competition' the 'incipiency' standard is to be applied functionally. Brown Shoe Co. v. United States, supra. 370 U.S. at 294, 82 S.Ct. at 1502. In dealing with vertical acquisitions under Section 7, as amended, the United States Supreme Court has relied on several functional factors as indicia of the requisite anti-competitive effect: (1) foreclosing of the competitors of either party from a segment of the market otherwise open to them; (2) the 'nature and purpose' of the vertical arrangement; (3) actual and reasonable likely adverse effects upon local industries and small businesses; (4) the level and trend of concentration in the market shares of participating companies, including any trend towards domination by a few leaders; (5) the existence of a trend towards vertical integration and consolidation in previously independent industries; and (6) the ease with which potential entrants may readily overcome barriers to full entry and compete effectively with existing companies. FTC v. Consolidated Foods, 380 U.S. 592, 85 S.Ct. 1220, 14 L.Ed.2d 95 (1965); United States v. Kennecott Copper Corp., 231 F.Supp. 95 (SDNY1964), aff'd per curiam, 381 U.S. 414, 85 S.Ct. 1575, 14 L.Ed.2d 692 (1965); Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502 (1962). These same factors were considered in holding horizontal and product-extension acquisitions violative of the Clayton Act 7. FTC v. Procter & Gamble Co., 386 U.S. 568, 87 S.Ct. 1224, 18 L.Ed.2d 303 (1967); United States v. Pabst Brewing Co., 384 U.S. 546, 86 S.Ct. 1665, 16 L.Ed.2d 765 (1964); United States v. Continental Can Co., 378 U.S. 441, 84 S.Ct. 1738, 12 L.Ed.2d 953 (1964); United States v. Alcoa, 377 U.S. 271, 84 S.Ct. 1283, 12 L.Ed.2d 314 (1964); United States v. Philadelphia National Bank, 374 U.S. 321, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963). Similar factors were considered in holding an acquisition of stock of vertically related concerns violative of the old Section 7, prior to the 1950 amendments. United States v. E. I. duPont, 353 U.S. 586, 77 S.Ct. 872, 1 L.Ed.2d 1057 (1956). The Commission has found the presence of each of the above six factors and their attendant anticompetitive consequences in the instant acquisition. We find substantial evidence to support each of these determinations. 34 Foreclosure. The Commission found the foreclosure of U.S. Steel's competitors from a substantial share of the portland cement market to be 'very significant.' Foreclosure of a customer of portland cement by one of its suppliers has as its primary vice, in the instant acquisition, the tying of Certified's purchases of cement to U.A.C's supplies on a permanent basis. A segment of U.A.C. supply of cement and substantially all of Certified's demand for cement will be foreclosed from their respective competitors. A segment of the market otherwise open to the competing members of the two industries is removed from the two industries As the United States Supreme Court noted in Brown Shoe: 35 'The arrangement may act as a 'clog on competition,' Standard Oil Co. of California v. United States, 337 U.S. 293, 314, 69 S.Ct. 1051, 1062, 93 L.Ed. 1371, which 'deprive(s) * * * rivals of a fair opportunity to compete.' H.R.Rep. No. 1191, 81st Cong., 1st Sess.'8 370 U.S. at 324, 82 S.Ct. at 1523. 36 The acquisition of Certified by U.S. Steel climaxed a three year verticalfinancial relationship between the two which, since its inception, had led to increasing dependency of Certified upon U.A.C. cement supplies. In 1961, the last year in which U.S. Steel had no vertical relationship with Certified, the latter purchased only 36,675, barrels of cement, or 8.4 per cent of its total requirements from U.A.C. In 1964, the year of the acquisition, Certified purchased 701,151 barrels of cement or 88.4 per cent of its requirements from U.A.C. The pattern of increasing sales paralleling the financial involvement of U.S. Steel and the evidence of 'tacit' and 'expected' minimum purchases in return for extension of credit and favors provides very substantial evidence to support a finding that all, or nearly all, of Certified's purchases of portland cement actually or probably were foreclosed from the competitors of U.A.C. 37 The Commission's finding that this foreclosure is 'extremely significant' is supported by the market structure in the cement and ready-mixed industries. The cement industry is a concentrated one, both nationally, regionally, and within the NYMA.16 In 1964, U.S. Steel was one of the four largest producers of cement nationally and in the Northeastern United States. In addition, it was the second largest producer of cement in the NYMA. This position was achieved by capturing the several-hundred-thousand-barrel demand of Certified, the largest open market purchaser of cement in the NYMA and one of the five or ten largest purchasers in the entire Northeastern market. The Commission found that the acquisition brought about the largest single foreclosure which could have been obtained in the relevant geographic markets of the cement-concrete industries.17 38 Placing these facts in percentage terms further validates the Commission's conclusion. In 1964, Certified represented 9.8 per cent of the cement purchases by ready-mixed concrete companies and 6.7 per cent of total cement consumption in the NYMA. In the same year, U.S. Steel shipped 11.4 per cent of the total shipments of cement into the NYMA. While no precise percentage terms have been set forth as yardsticks for vertical mergers, the 9.8 per cent of Certified and 11.4 per cent of U.A.C. are well within the range of numbers which have been held to be unduly high in the past.18 Further, the oligopolistic and vertically integrated nature of the cement and concrete industries increases the significance of these percentages.19 There is substantial evidence to uphold the Commission's finding that the foreclosure which resulted from the acquisition is economically 'extremely significant' and 'anticompetitive.' 39 Nature and Purpose. In determining if a specific market share of foreclosure is violative of Section 7 of the Clayton Act, references may be made to the nature and purpose of the vertical arrangement. Brown Shoe Co. v. United States, supra, 370 U.S. at 329, 82 S.Ct. 1502. The nature and purpose of the present acquisition reinforces the Commission's finding as to the anticompetitive significance of the foreclosure by the acquisition. 40 The 'nature' of this vertical arrangement is an acquisition, a permanent restructuring of the supplier-customer relationship. Kessler and Stern, Competition, Contract and Vertical Integration, 69 Yale Law Journal 1, 78 (1959). It is not a 'limited term exclusive-dealing contract' or the use of tying 'to aid a small company in an attempt to break into a market.' Brown Shoe Co. v. United States, supra, 370 U.S. at 330, 82 S.Ct. at 1526. See Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961); Harley-Davidson Motor Co., 50 F.T.C. 1047, 1066. 41 The 'purpose' of the arrangement was in the words of the U.S. Steel's management 'to insure Universal Atlas Cement participation in the New York market.' This 'purpose' was successfully implemented by the tremendous increase in cement purchases made by Certified subsequent to the initiation of a vertical relationship between U.S. Steel and Certified. Just as the United States Supreme Court found Brown Shoe's desire to 'force' its shoes into Kinney's stores in the post-acquisition period to be an adverse purpose, so is U.S. Steel's purpose of 'insuring participation' obnoxious. Brown Shoe Co. v. United States, supra, 370 U.S. at 330, 82 S.Ct. 1502. The important consideration is that the acquired company would not be free to choose for itself who shall supply its needs solely on the basis of price, service and quality of goods because the acquiring company has the power to substitute its own suppliers, and the intention of doing so. United States v. E. I. duPont, supra, 353 U.S. at 607, 77 S.Ct. 872; United States v. Kimberly-Clark, supra, 264 F.Supp. at 464. We find there is substantial evidence that the nature and purpose of the acquisition support the Commission's finding that the resultant foreclosure was 'very significant' and 'anticompetitive.' 42 Actual Effects on Local Business. 43 The testimony in this case reveals numerous actual anticompetitive effects of the acquisition upon local business concerns in both the ready-mix concrete and portland cement industries. One of the impelling instructions of the antitrust laws has been the protection of small businesses and local control from the 'attendant adverse effects' of oligopolistic markets and economic concentration. 44 The vertical alignment of Certified and U.A.C., as the Examiner found, had immediate and significant effects on several of the cement and concrete competitors in the NYMA. Alpha Portland Cement Company, which manufactured cement in the Hudson River Valley and opened a terminal on Long Island, was forced to close its local terminal because of its loss of Certified as a customer for its cement.20 Triangle Cement, which acted as a distributor for Atlantic Cement, closed its terminal in Brooklyn at the end of their distributorship contract. Triangle was Certified's third largest supplier in 1963, but sold it no cement in 1964.21 Several ready-mix companies indicated they were forced to expand or shift their sales territories to areas where there was less vertical integration because of the competitive forces in vertically integrating markets.22 A number of cement company officials also indicated that while opposed to vertical integration, they might have to acquire a ready-mix company to protect their market. The Examiner specifically found that at least one of the vertical acquisitions in the industry23 was caused, in part, by U.A.C.'s acquisition of Certified. 45 These actual adverse effects on competitors of U.A.C. and Certified are further substantial evidence supportive of the Commission's finding that the acquisition was anticompetitive. 46 Concentration. The Commission found that concentration in the cement industry had been 'aggravated' as a result of the acquisition. Any increase in concentration in industries whose concentration levels are already 'great' is alarming because such increases make so much less likely the possibility of eventual deconcentration. United States v. Philadelphia National Bank, supra, 374 U.S. at 365 n. 42, 83 S.Ct. 1715. Thus, in Alcoa, the Aluminum Corporation of America, a leading producer of aluminum conductor with 27.8 per cent of an oligopolistic market, was not permitted to acquire Rome Cable Corporation, which produced 1.3 per cent of the aluminum conductor. The United States Supreme Court observed 'the presence of small but significant competitors * * * may well * * * thwart' the further development of an oligopolistic, concentrated industry. United States v. Alcoa, supra, 377 U.S. at 280, 84 S.Ct. at 1289. 47 The facts indicate that between 1961 and 1964 U.A.C. advanced its position from sixth to second largest producer of portland cement in the NYMA because of its vertical relationship with Certified. /24/ This increase along with the increase in share of the vertically integrated Colonial, raised the combined shares of the four largest cement companies shipping to the NYMA from 44.8 per cent in 1960 to 53.4 per cent in 1964. Similarly, the shares of the four leading cement companies shipping in the Northeast increased from 37 per cent in 1960 to 43.6 per cent in 1964. U.S. Steel increased its shipment by 80.5 per cent in the Northeast area, compared with an average increase of 20.2 per cent for all firms, and became one of the largest shippers in the market. 48 We find substantial evidence to support the Commission's finding that the acquisition of Certified, as an assured source of supply, was a significant element in the increasing concentration ratios of the leading firms in the cement industry. 49 Vertical Integration. The Commission found that there was a trend toward vertical integration in the cement and concrete industries, that non-integrated concerns were at a growing competitive disadvantage, and that this acquisition stimulated these adverse factors and gave U.S. Steel decisive competitive advantages. 50 One of the purposes of Section 7 is to reverse the trend toward concentration in American industry. Thus an acquisition which may be viewed as part of an industry-wide trend toward vertical integration may be considered particularly obnoxious to Section 7. 'Remaining vigor cannot immunize a merger if the trend in that industry is towards oligopoly (or vertical integration).' 370 U.S. at 332-333, 82 S.Ct. at 1528. 51 The evidence reveals wide-scale national and urban trends towards vertical integration and concentration in the cement and concrete industries since 1958. Cement companies in the NYMA have been seeking assured outlets for their products by acquiring the remaining large independent ready-mix operations.25 Among other factors, the Commission's response to these pressures to vertically integrate has resulted in the divertiture of the acquisitions of the fourth, fifth and sixth largest ready-mixed companies. It is as part of this response that the Commission also attacks the instant acquisition. 52 This trend towards vertical integration has made it quite difficult for non-integrated firms to compete even apart from open-market foreclosure. A vertically integrated cement and ready-mix company has decisive cost advantages over non-integrated competitors. Cement manufacturers are burdened with high fixed costs, as well as significant marketing, shipping and distribution costs. Vertical integration creates a more assured level of plant utilization, an elimination of any significant sales and marketing expenses to ones' own ready-mix subsidiary, and the ability to integrate the storage and distribution facilities of the cement and ready-mix company into a single urban terminal. All of these factors work to lower overall unit costs of integrated vis-a-vis non-integrated concerns. 53 However, while unit costs might be used to lower the price of cement to customers generally, they also have the potential of being used as weapons of economic discipline.26 This is particularly true when an industry is tending towards oligopoly. In such markets, the handful of leading vertically integrated firms do not engage in general price cutting. Price cuts are used as a more selective instrument: to punish an aggressive marketeer or price-cutter of cement; to woo away a crucial account of a nonintegrated concern; or to maintain respective oligopoly shares. United States v. Wilson Sporting Goods, 288 F.Supp. 543, 556-557 (NDIll.1968). The 'mixed threat and lure of reciprocal buying' was the potential anticompetitive device which condemned the acquisition of Gentry, Inc. by Consolidated Foods. Federal Trade Commission v. Consolidated Foods, supra, 380 U.S. at 593-595, 85 S.Ct. 1220, 14 L.Ed.2d 95. Similarly, in the concentrating cement and concrete industries, the decisive cost factors of vertical integration create a 'mixed threat and lure:' a 'threat' insofar as the non-integrated firms must remain well-behaved or suffer the consequences; and a 'lure' in that the well-behaved firms will not be subject to serious price-cutting. Such market conditions push the remaining non-integrated firms toward vertical integration. 54 Further, the sheer size and financial resources of U.S. Steel visit non-competitive stabilizing forces upon the competitors of Certified and U.A.C. U.S. Steel has the capacity to extend its credit and resources to aid either U.A.C. or Certified in gaining a particular job. It has extensive financial and personal contacts throughout the building industry. No other cement or ready-mix company is in any position to compete with U.S. Steel's ability to extend credit,27 to exploit allied personal and financial ties in the building industry, to maintain and capture the accounts of others in the event of slackened demand, or to withstand temporary losses. Several courts have recently commented on the presence of such a large industrial factor in a concentrating industry. In F.T.C. v. Procter & Gamble Co., the United States Supreme Court observed: 55 'There is every reason to assume that the smaller firms would become more cautious in competing due to their fear of retaliation by Procter. It is probable that Procter would become the price leader and that oligopoly would become more rigid.' 386 U.S. at 578, 87 S.Ct. at 1230. 56 The existence of such 'adverse psychological effects * * * on smaller rivals' was a key basis of the Government's successful opposition to the acquisition of Nissen Corporation by Wilson Sporting Goods Company, a subsidiary of Ling-Tempco Vought, Inc. United States v. Wilson Sporting Goods Co., 288 F.Supp. 543, 556-557 (N.D.Ill.1968). See General Foods Corp. v. Federal Trade Commission, 386 F.2d 936, 945-946 (3d Cir. 1967); Reynolds Metals Co. v. Federal Trade Commission, 114 U.S.App.D.C. 2, 309 F.2d 223, 229-230 (1962), United States v. Aluminum Co. of America, 233 F.Supp. 718, 727-728 (E.D.Mo.1964). 57 We find that all of these facts taken together provide very substantial evidence for each of the Commission's findings that 'the ability to non-integrated cement producers (to compete) may be substantially impaired,' that the 'Respondent U.S. Steel may have achieved a decisive competitive advantage over its competitors,' and that the 'trend towards vertical concentration in the production and sale of cement and concrete has been aggravated' as a result of the instant acquisition. 58 Barriers to Entry. The Commission also found that, as a result of the acquisition, 'new sellers of portland cement and ready-mixed concrete may be inhibited or prevented' from entering the industry. 59 Any substantial new barrier to entry into a market enhances the market power of existing firms and intensifies their ability to wield oligopolistic and anticompetitive practices with relative impunity. The raising of such barriers may be an important element in maintaining competition. Federal Trade Commission v. Procter & Gamble Co., supra, 386 U.S. at 578-581, 87 S.Ct. 1224; United States v. Penn-Olin Co., 378 U.S. 158, 173-174, 84 S.Ct. 1710, 12 L.Ed.2d 775 (1964). 60 Even prior to the acquisition of Certified, barriers to entry in the cement industry were 'formidable.' The only successful entrant to the Northeastern market for cement in recent years, Atlantic Cement, had to invest some $64 million to achieve initial access. Further, it ultimately was forced to extend its efforts outside of the large urban NYMA market because there were insufficient customers to maintain its distribution within the metropolitan area. For the Northeastern market as a whole, 70.8 per cent of that market was dominated by eight sellers. Subsequent to the acquisition, a majority of that segment was vertically integrated. There remains very little of the market for any new cement firm to seek as outlets for its product. 61 The barriers to entry in the concentrating and integrating ready-mix industry are also quite significant. Unless one seeks to become a 'gypsy' operator, a prospective manufacturer of ready-mix concrete must expect to spend between three to five million dollars in initial capital requirements. In addition, the new entrant would face a market with a single vertically integrated competitor enjoying over one-half the market and the leading four sellers dominating 73.6 per cent of the total sales within the NYMA. 62 As a result of the U.S. Steel-Certified alliance, the barriers to entry in both the cement and concrete industries were stiffended. Immediately after the merger, nearly one-half of the entire cement market and two-thirds of cement sales to ready-mix concrete producers were foreclosed by three vertically integrated concerns. A prospective entrant to the cement industry must assume the risk of competing for the business of the remaining one-half of the cement market's demands and one-third of the ready-mixers' demands not already foreclosed. Further, such an entrant must run the risk that unless he vertically integrates, he may lose his customers either to the competitively stronger vertically integrated concerns or through their integration into a cement company. Similarly, a ready-mix entrant must either ante up the additional capital to vertically integrate or face a number of increased market perils. These include a possible reliance on suppliers from a vertically integrated firm with whom he is also competing at the ready-mix level; the greater ability of integrated concerns to absorb loss subiness at the ready-mix level to maintain high utilization of plant equipment and cover the fixed costs of their cement facilities; the ability of integrated concerns to use a 'price-squeeze' to obtain any particular job in times when there is a supply shortage in the cement industry; and the psychological 'fears' of smaller rivals competing with large integrated concerns. Federal Trade Commission v. Procter & Gamble Co., supra, 386 U.S. at 578, 87 S.Ct. 1224, 18 L.Ed.2d 303. 63 We find, therefore, substantial evidence to support the Commission's finding that the acquisition will tend to unduly raise barriers to entry in certain markets in the cement and concrete industries. 64 Having reviewed six functional indicia of the competitiveness of a vertical alliance and having found very substantial evidence to support the findings of the Commission with regard to each of these factors, we uphold the Commission's determination that the effect of the instant acquisition 'may be substantially to lessen competition.' III. FAILING COMPANY DEFENSES 65 We turn now to U.S. Steel's assertion of 'failing company' defenses. On the basis of the Commission's findings,28 U.S. Steel contends that the failing character of Certified exempts the acquisition from the coverage of the Clayton Act 7 on two grounds. First, U.S. Steel contends that-- from an economic standpoint-- the acquisition of a company that would have failed, but for its vertical integration, can not be anticompetitive in that the acquired company would have fallen from the market place.29 Second, U.S. Steel contends that tion is completely immunized by the judicially created 'failing company doctrine.' International Shoe Co. v. F.T.C., 280 U.S. 291, S.Ct. 89, 74 L.Ed. 431 (1930). We reject these two defenses. 66 First, we find substantial evidence to support the Commission's finding that the anticompetitive consequences in Certified's continued existence as a giant vertically integrated concern would deteriorate competitive conditions in the concrete and cement industry more than its elimination by business failure. 67 With regard to the cement industry, assuming Certified dropped from the market place,30 its ready-mix business (and hence cement consumption) would be taken up by its competitors.31 Correspondingly, those ready-mix producers would then order thier additional cement requirements from various suppliers to the NYMA, creating a broad based demand for cement between the several suppliers in the Northeast. In contrast, Certified's acquisition by U.A.C. forecloses any open-market competition between cement suppliers for Certified's cement consumption. 68 Similarly, with regard to the ready-mix industry, the reduction of the number of ready-mix competitors by one may be far less anticompetitive than Certified's continued existence as a vertically integrated giant. As we have previously noted, the presence of a vertically integrated company in a concentrating industry serves to dampen the vigor of competition by non-integrated concerns. Also potential entrants, as well as non-integrated ready-mix producers, will be less likely to challenge the pricing practices of a concern with resources so many times larger than their resources as is the U.A.C.-Certified-U.S. Steel complex. 69 Second, U.S. Steel contends that the Commission's findings that Certified was in imminent danger of bankruptcy and that there was no other purchaser available except U.S. Steel, are two factual parameters which completely immunize the instant acquisition. The Commission, however, has taken the position that the 'failing company doctrine' does not grant absolute immunity under section 7 where, in view of an acquisition's anticompetitive effects, the probable 'harm to individuals' and 'injury to the communities where its plants were operated' is not so serious that the consummation of the acquisition is in the 'public interest.' 70 In recent years the 'failing company defense' has been subject to considerable academic discussion,32 most of which has posed the very theoretical conflict which we have here-- whether 'failing company' status is to immunize an acquisition or is merely to be a factor to be weighed in determining whether the acquisition is in the 'public interest.' 71 We need not resolve this conflict because it is our belief that U.S. Steel has failed to prove the 'ultimate facts material to the rule of International Shoe Co. v. Federal Trade Com'n, 280 U.S. 291, 50 S.Ct. 89, 74 L.Ed. 431 (1930),'33 approved by Congress, S. Hearings on H.R. 2734 at 115; 134-35, 198; 96 Cong.Rec. 16435, 16444; R.R.Rep.No.1191, 81st Cong.1st Sess. at 6; S.Rep.No.1775, 81st Cong.2nd Sess. at 7, and thereafter clarified by a series of United States Supreme Court cases culminating in the recent decision of Citizen Publishing Company v. United States, 394 U.S. 131, 89 S.Ct. 927, 22 L.Ed.2d 148 (1969). Brown Shoe Co. v. United States, 370 U.S. 297, 319-320, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962); United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). 72 The United States Supreme Court first carved out the 'failing company' defense to the antitrust laws in International Shoe. That case involved the acquisition of the McElwain Company, a manufacturer and distributor of shoes in several states, by the International Shoe Company, a nationally integrated manufacturer and distributor of shoes. At the time of the acquisition, the financial resources of the McElwain Company were 'so depleted and the prospects of rehabilitation so remote' that the corporation was faced with 'only (two) alternatives:' either liquidation of its assets through a receiver or an outright sale. The Court found that McElwain had no hope of ultimate recovery if 'it * * * availed itself of a receivership' to continue as a going concern. 280 U.S. at 299, 301, 302, 50 S.Ct. at 92.34 It was under these circumstances that the Court concluded: 73 'We hold that the purchase of its capital stock by a competitor (there being no other prospective purchaser), not with a purpose to lessen competition, but to facilitate the accumulated business of the purchaser and with the effect of mitigating seriously injurious consequences otherwise probable, is not in contemplation of law prejudicial to the public and does not substantially lessen competition or restrain commerce within the intent of the Clayton Act.' 280 U.S. at 302, 50 S.Ct. at 93. 74 Twenty years later, in 1950, while reporting on the Celler-Kefaufer amendments to the Clayton Act, both houses of Congress expressed an intention to preserve the failing company defense established in International Shoe.35 Indeed, since the effect of those amendments was to broaden the sweep of the Clayton Act 7 to include acquisitions which lessened competition 'in any line of commerce,' rather than merely 'between' two companies, Congress ostensibly approved an extension of the failing company doctrine to vertical, product extension, and conglomerate acquisitions, in addition to the horizontal-type acquisition which took place in International Shoe.36 75 Twelve years later, in 1962, the United States Supreme Court affirmed the applicability of the 'failing company doctrine' to horizontal, United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962), and vertical mergers, Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962) under the amended Clayton Act 7. 15 U.S.C. 18 (1964). 76 Not until 1969 in Citizen Publishing Co. v. United States, 394 U.S. 131, 89 S.Ct. 927, 22 L.Ed.2d 148 (1969), did the United States Supreme Court give any extended consideration37 to the 'failing company doctrine.' Citizens Publishing involves a joint operating agreement and stock purchase between a healthy and a failing newspaper in Tucson, Arizona, which the Government attacked, in part, as being violative of Section 7. The District Court required the newspapers to submit a plan for divesture and re-establishment of independent competition. 77 In affirming the District Court, the United States Supreme Court entered into a full discussion of the 'ultimate facts material,' United States v. Diebold, Inc., 369 U.S. at 655, 82 S.Ct. at 994, to a determination of whether 'the conditions of the failing company doctrine have been satisfied * * * (by) those who seek refuge under it.' The Court emphasized the 'present narrow scope,' 394 U.S. at 139, 89 S.Ct. 927, of the doctrine and clarified the 'requirements' of the defense. First, the evidence must show that the financial condition and resources of the company are so dire that 'it faced the grave probability of a business failure.' 394 U.S. at 137, 89 S.Ct. at 930. Second, there can be 'no other prospective purchaser.' 394 U.S. at 137, 89 S.Ct. 927. Finally, the Court observed that the prospects of the acquired company emerging from reorganization as a competitive unit must be 'dim or non-existent.'38 394 U.S. at 138, 89 S.Ct. 927. 78 This third requirement was implicit in the holding of International Shoe. The facts of International Shoe reveal that the majority dismissed McElwain's hope of ultimate recovery as a competitive unit through receivership 'as lying wholly within the realm of speculation,' 280 U.S. at 301, 50 S.Ct. at 92. A reading of the dissent of Mr. Justice Stone, concurred in by Mr. Justice Brandeis and Mr. Justice Holmes, forties the inference that the majority found no 'reasonable inference * * * that its (McElwain's) business, conducted either through a receivership or a reorganized company, would probably continue to compete, * * ' 280 U.S. at 306, 50 S.Ct at 94. Further, the briefs of the parties reveal that whether McElwain could have passed through bankruptcy or receivership and emerged as a going concern was an issue before the Court.39 The language of Citizen Publishing that the prospects of the acquired company surviving as a competitive unit through bankruptcy receivership or reorganization proceedings must be 'dim or nonexistent' has its origin in the 'ultimate facts material' to International Shoe. We may fairly infer from the Court's holding in International Shoe the 'failing company doctrine' would not have applied to McElwain had the prospects for going through receivership not been 'wholly speculative.' 79 Citizen Publishing has clarified this inference. It has emphasized that the failing company doctrine must be considered in terms of today's economic environment for companies facing bankruptcy. It has observed that 'we know from broad experience * * since 1930, * * * that companies reorganized through receivership or through Chapter X or Chapter XI of the Bankruptcy Act often (emerge) as strong competitive companies,' 394 U.S. at 138, 89 S.Ct. at 931. It has placed the burden of 'proving the conditions of the failing company doctrine * * * on those who seek refuge under it.' 394 U.S. at 138-139, 89 S.Ct. at 931. 80 Turning to the facts of the instant acquisition, U.S. Steel and the Commission have devoted insufficient consideration to the prospects of reorganizing Certified into a vital, competitive company. The record, however, is replete with evidence on the subject. United States Steel paid over a million dollars to the equity interests of Certified, after assuming all liabilities. Further, the record indicates that Certified was created by the tying together of a number of ready-mix concrete and building aggregate companies primarily serving the NYMA, each of which had created a certain amount of goodwill. Also, Certified had an expanding sales organization, an aggressive reputation in marketing and long-term contract commitments. Each of these facts suggest the possibility that Certified may have been split into several going concern packages in a receivership proceeding. Clearly, the creation of any such going concern packages might well eliminate the vertical foreclosure of cement purchasing and intimidation towards competitors that inheres in the instant vertical integration. In any event, U.S. Steel has failed to satisfy its burden of proving that the facts of this case make Certified's opportunity for some form of continued competitive vitality through bankruptcy or similar proceedings to be 'dim or non-existent.' 81 We find that there is very substantial evidence of the anticompetitive effects and tendencies of the instant acquisition and that U.S. Steel has failed to satisfy the 'ultimate facts material' to the 'present narrow scope' of the failing company doctrine. Recognizing that Citizen Publishing Co. v. United States, 394 U.S. 131, 138, 89 S.Ct. 927, 22 L.Ed.2d 14, (1969) was decided subsequent to the Federal Trade Commission's disposition of the instant case, it is appropriate to remand this case to give U.S. Steel an opportunity to bring forth evidence that the prospects of Certified passing through bankruptcy or similar proceedings were 'dim or non-existent.' Similarly, the Commission will be in a position on remand to make a finding of fact as to this crucial element in the failing company defense. 82 Moreover, upon remand we believe the Commission should reassess the standards by which the actions and defenses of United States Steel Company are to be judged. While the instant acquisition was consummated on April 30, 1964, the record reveals that U.S. Steel-Certified vertical ties may have taken an unlawful cast as early as January 1963. If such vertical ties were unlawful, then the failing character of Certified must be shown to have existed at that time. Citizen Publishing Co. v. United States, 394 U.S. 131, 133, 140-142, 89 S.Ct. 927, 22 L.Ed.2d 148 (The failing character of the Company was measured from 1940 at which time the first joint operating agreement was effected, rather than from 1953 at which time the challenged agreement was effected.) 83 In January, 1963, U.S. Steel entered a 'notes purchase agreement' with Bankers Trust Company which enabled Certified to obtain a large sum of money beyond its needs to pay U.S. Steel for its cement supplies. Apparently U.S. Steel and Certified participated in this three party agreement with the tacit understanding and expectation that Certified would receive a large loan at exceptionally favorable interest rates in return for which Certified would purchase a very substantial portion of its future cement supplies from U.S. Steel. The effect of such an agreement may very well have been the use of credit, as a lever, to unreasonably restrain or induce Certified from purchasing its cement needs for a significant period of time on the open market. Such an arrangement, and its accompanying effects, may well be unlawful under Section 1 of the Sherman Act, 15 U.S.C. 1 (1964), Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969), the Federal Trade Commission Act 5, 15 U.S.C. 45(a) (1964), Hastings Mfg. Co. v. Federal Trade Commission, 153 F.2d 253, 256-257 (6th Cir. 1946), and the Clayton Act 3, 15 U.S.C. 14 (1964), see Curly's Dairy, Inc. v. Dairy Cooperative Association, 202 F.Supp. 481, 484-485 (D.Ore.1962); Oral Argument before Trial Examiner, Record at 1259-60. 84 To the extent that unreasonable foreclosure of Certified's cement demands occurred as a result of the financial arrangement in January, 1963, we believe that the failing company defense must be measured from the inception of these unreasonable vertical arrangements, not from the point of their final consummation. 85 This matter is remanded to the Federal Trade Commission for findings of fact and further proceedings consistent with this opinion. Upon remand the Commission may consider any evidence previously taken and now on file and such additional evidence on any issue raised by the complaint as may be admissible and relevant to such issues. Any party shall be accorded the right to require the presence of any previously sworn witness for additional testimony either on direct or cross-examination. 1 While its sales for the year ending June, 1963, reached a corporate record of $14,325,991, it lost $655,850 on its operations. In the first six months of fiscal 1964, Certified's sales were just in excess of $6 million, but its losses for that period were at a rate of nearly $155,000 per month. During the next four months of operations, Certified's financial position worsened rapidly as sales declined to just over $2 million and losses were running in excess of $200,000 per month. Furthermore, apart from its indebtedness to U.S. Steel and Bankers Trust, Certified was unable to meet the normal trade obligations of its basic suppliers, had a deficit in its net working capital of $279,000 as of January 31, 1964, and could not meet the interest payments due on its outstanding debentures 2 From early 1962 through November, 1963 Certified had explored the possibility of selling out to numerous prospective purchasers including Colonial Sand & Stone Company, Triangle Lumber Corporation, North American Cement Company, American Cement Company, Alpha Portland Cement Company and Seagrave Corporation. For a variety of reasons including adverse responses from the Federal Trade Commission, insufficient price and the unfavorable responses of U.S. Steel, no negotiations reached fruition 3 'portland cement' is the material which in the presence of water binds aggregates such as sand and gravel into conrete. Not only is it an essential ingredient in the manufacture of concrete, but there is no practical substitute for portland cement in the manufacture of concrete 4 'Ready-mixed concrete' is concrete delivered to customers in an unhardened plastic state. Firms which engage in the production of ready-mixed concrete are the principal users of portland cement in the nation, comprising about 60 per cent of the total national production of cement. Further, ready-mixed concrete firms in metropolitan centers may consume 70 per cent or more of all the portland cement purchased in those areas 5 Includes Eastern New York, Eastern Pennsylvania, New Jersey, Connecticut, Massachusetts, Rhode Island, Vermont, New Hampshire, Delaware and part of Maryland. Over 90 per cent of all the shipments of cement producers serving NYMA are sold within the described area 6 The five counties of New York City and Richmond, plus the Long Island counties of Nassau and Suffolk to the east and Westchester County to the north 7 Colonial, the dominant cement supplier in the NYMA, became vertically integrated by internal generaltion late in the decade of the fifties. From 1960 through 1964, it increased its share as a supplier of cement to the NYMA from 2.4 million barrels, or 22.6 per cent, to 3.6 million barrels, or 31.2 per cent. During the same period, U.A.C. increased its shipments from 766,000 barrels, or 7.6 per dent, to 1.3 million barrels, or 11.4 per cent of total shipments 8 In contrast to the 10 per cent growth rate of the NYMA and the 20 per cent growth rate in the Northeastern market, U.A.C.'s cement shipments in the two markets grew by 73.5 and 80.5 per cent, respectively 9 The examiner found that the approximate shares of the principal ready-mixed concreate companies in 1964, the year of acquisition, and the preceding two years were as follows: Per Cent of Total Shipments Name 1962 1963 1964 ----------------------------------------------------------------------------- Colonial Sand & Stone 49.9% 49.8% 50.1% Certified 8.6 11.7 9.8 Transit Mix Concrete Corp. 12.7 10.4 7.2 Ryan Ready Mixed Concrete 10.0 8.8 6.4 M. F. Hickey 5.1 4.8 3.4 Cooney Brothers 2.4 2.3 2.5 Century Transit Mix 1.9 1.5 3.1 In terms of total cement consumption in the NYMA by all firms (ready- mixed concrete companies and all other consumers of cement), the respective shares of the principal ready-mixed manufacturers were as follows: In terms of total cement consumption in the NYMA by all firms (ready-mixed concrete companies and all other consumers of cement), the respective shares of the principal ready-mixed manufacturers were as follows: Per Cent of Total Cement Consumption Name 1962 1963 1964 -------------------------------------------------------------------- Colonial Sand & Stone 34.2% 34.8% 35.1% Certified 6.0 8.2 6.7 Transit Mix Concrete Corp. 8.8 7.3 5.0 Ryan Ready-Mixed Concrete 7.0 6.2 4.5 M. F. Hickey 3.5 3.4 2.4 Cooney Brothers 1.7 1.6 1.8 Century Transit Mix 1.3 1.1 2.1 10 A consent decree requiring divestiture was entered into in January, 1964, FTC Docket No. C-681. Even after divestiture, over 75 per cent of Hickey's cement requirements are purchased from American Cement which is financially tied to American by virtue of a.$3.2 million purchase money mortgage 11 A hearing examiner found this acquisition did not violate the Clayton Act 7. FTC Docket No. 8654. The decision was vacated as moot in that National meanwhile divested itself of the acquired properties 12 Which is the subject of the instant case 13 A hearing examiner dismissed a complaint charging a violation of Clayton Act 7; and the Commission reversed the examiner and ordered divestiture 14 While vertical integration by internal generation creates many of the same evils as does such integration by acquisition, it is not a specific subject of concern of the Clayton Act 7. The most frequent explanation given for not proscribing internal generation of vertical facilities is that such expansion generates an additional competitive factor in the market place, rather than merely changing the ownership of an existing competitive unit. Hence, it is more likely than acquisition of existing facilities to intensify product, price and service competition. Also, such internal generation being less likely to succeed because one must compete with the existing utilization of facilities is less dangerous to competition in the market place. United States v. Kennecott Copper Corp., 231 F.Supp. 95, 102-104, 104 n. 6 (S.D.N.Y.1964), aff'd. per curiam, 381 U.S. 414, 85 S.Ct. 1575, 14 L.Ed.2d 692 (1965) 15 The hearing examiner credits five such instances. In addition, the hearing examiner found that the pressures created by the vertical integration of other cement companies was a prime or significant consideration in each of the acquisitions by Marquette, National and U.A.C 16 See 'Mergers and Vertical Integration in the Cement Industry,' a Staff Economic Report, April 26, 1966; 'Public Hearings' of the Commission, July, 1966; Commission Enforcement Policy with Respect to Vertical Mergers in the Cement Industry, January 17, 1967 17 Colonial Sand and Stone purchases more cement in the NYMA and in the Northeast, but most of its requirements are met by purchases from its own cement plant. They are not met by open-market purchases 18 In Brown Shoe, Brown Shoe which manufactured 4.9 per cent of the nation's infants' and babies' shoes, was not permitted to acquire Kinney which retails 1.5 per cent of the nation's infants' and babies' shoes market. Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). In Kimberly-Clark, Kimberly Clark, which manufactured 7.5 per cent of the United States market shipments of printing and fine papers was divested of its acquisition of Blake Moffitt and Towne which accounted for 2 per cent of national paper merchant distribution. United States v. Kimberly-Clark Corp., 264 F.Supp. 439 (ND Cal. 1967). In Standard Oil, Standard, which purchased 17 per cent of all the potash sold in the United States, was prevented from acquiring the Potash Company of America, which produced about one per cent of all the domestic potash in the United States. United States v. Standard Oil Co., 253 F.Supp. 196 (D.N.S.1966). Not surprisingly, the acquisition also exceeds the per cent guidelines set out by the Justice Department in its statement of Antitrust Policy for Vertical Mergers: 'The department will ordinarily challenge a merger or series of mergers between a supplying firm, accounting for approximately 10 per cent or more of the sales in its market, and one or more purchasing firms, accounting in toto for approximately 6 per cent or more of the total purchases in that market * * .' Department of Justice Enforcement Policy, May 30, 1968. CCH Trade Regulation Reports Par. 4430 at 6686. 19 The market for portland cement was clogged at the time of the acquisition by prior vertical foreclosure of 56.5 per cent of the cement consumption by ready-mixed concrete firms and 39.6 per cent of total cement consumption. After the instant acquisition, the market segment in which non-integrated cement companies could seek outlets was reduced to barely one-third (33.7 per cent) of all ready-mixers and to one-half (53.7 per cent) of all cement consumers in the NYMA. As will be shown later, such small 'open markets' proved unable to support previously independent competitors of U.A.C., many of whom were forced to integrate vertically or lease the NYMA 20 Alpha's sales to Certified declined from a peak of 322,000 barrels in 1962 to 2800 barrels in 1964 21 Triangle's sales to Certified declined from 95,000 barrels in 1963 to none in 1964 22 See Vertical Integration, infra, for the deleterious effects of vertical integration on the competitive conditions in the cement and concrete industries 23 Marquette became vertically integrated in June, 1964, in response to substantial foreclosure of its ready-mix accounts by the vertical integration of Colonial and Certified. Finding of Trial Examiner No. 125 24 U.A.C.'s extraordinary rate of growth directly parallels its vertical relations with Certified. In 1961, U.A.C. sales dropped from 766,000 barrels to 612,000 barrels, of which 36,675 were purchased by Certified. By 1964, U.A.C. sales totaled 1,300,000 barrels of which 701,151 were purchased by Certified alone. Certified's purchases of U.A.C. cement rose from 6 per cent of U.A.C.'s output in 1961 to 53 per cent of U.A.C.'s output in 1964, the year of the acquisition. All of the 563,000 barrels, or 73.5 per cent, rise in U.A.C.'s sales is attributable to U.A.C.'s incremental sales to Certified, after U.A.C. had established vertical financial ties to Certified 25 Immediately after the U.S. Steel acquisition, nearly two-thirds (66.3 per cent) of cement sales to ready-mixed firms were foreclosed from the open-market by vertical integration. Remaining non-integrated competitors of U.A.C. were forced to seek cement sales among the bare one-third of the original market left open for competition on the basis of price, quality and service. Colonial Sand and Stone, the largest producer and customer of portland cement, vertically integrated in 1958. Subsequently, the second, fourth, fifth and sixth largest customers of portland cement were acquired by cement companies. Other major cement companies and ready-mix operations have found that they must vertically integrate to stay in business 26 The unsupported possibility of lower prices can not immunize this acquisition. As the United States Supreme Court held in FTC v. Procter & Gamble Co., 'possible economies cannot be used as a defense to illegality.' 386 U.S. 568 at 580, 87 S.Ct. 1224 at 1231, 18 L.Ed.2d 303 27 The very acquisition of Certified through the extension of such credit is witness to this fact. See Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495, 506, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969) 28 The Commission found 'there was a reasonable probability of it 'Certified's) failing within the near future' and there was a 'lack of availability of (any) other purchasers.' besides U.S. Steel 29 From an economic standpoint-- the acquisition of a failing company by a competitor or by a major supplier or customer may lessen competition. See Low, The Failing Company Doctrine: An Illusive Economic Defense Under Section 7 of the Clayton Act, 35 Ford L.Rev. 425 (1967); and Sotiriff, An Updating of the 'Failing Company Doctrine in the Amended Section 7 Setting', 61 Mich.L.Rev. 566 (1963) 30 While the Commission found that Certified was in 'failing condition,' it never made any assessments of how Certified would probably have fared in the variety of bankruptcy and reorganization alternatives which it had open to it. It is no longer a necessary consequence of bankruptcy, that the failing corporation liquidate all of its assets and disappear from the market place. Citizen Publishing Co. v. United States, 394 U.S. 131, 138, 89 S.Ct. 927, 22 L.Ed.2d 148 (1969) 31 Had Certified dropped from the market place, the 9.8 per cent of the ready-mix production and cement consumption which it controlled would have gone to its competitors. The Commission found it was unlikely that Colonial would have taken the lion's share of Cetified's former sales. Rather it found that Certified's smaller competitors in Nassau and Suffolk Ounties competitors in Nassau and Suffolk Counties former clients. These competitors of Certified-- being non-integrated-- would bid for their incremental needs of cement on the basis of price, quality and service 32 Compare Viley, 'The Failing Company': A Real Defense in Horizontal Merger Cases, 41 BUL Rev. 495, 511 with Bowman, the Impact of the 'Failing Company' Doctrine. See Bok, Section 7 of the Clayton Act and the Mergering of Law and Economics, 74 Harv.L.Rev. 226, 340 (360) on the F.T.C.'s Premerger Clearance Program, 19 Syracuse L.Rev. 911, 932 (1968) Administratively, this same conflict has occurred. Compare, Department of Justice Merger Guidelines, June 4, 1968 holding the failing company defense to be 'absolute' with OccidentalPetroleum Corp., 3 CCH Trade Regulation Rep. Par. 18,797 (June 10, 1969) Par. 18,864 (August 7, 1969) decision of Commission holding the failing company character of the company to be 'balanced' against certain other factors. See Dean Foods Co., FTC DKT 8674 (1965067) CCH Trade Reg. Rep. Par. 17,765 (1966); Pillsbury Mills, Inc., 57 FTC 1274, 1409 (1960). See also Erie Sand & Gravel Co. v. FTC, 291 F.2d 279, 280-281 (3rd Cir. 1961). 33 United States v. Diebold, Inc., 369 U.S. 654 at 655, 82 S.Ct. 993 at 994, 8 L.Ed.2d 176 34 That the majority was convinced that there was no realistic hope for McElwain under receivership or reorganization is indicated by the dissent of Mr. Justice Stone, Mr. Justice Holmes and Mr. Justice Brandeis: 'Nor am I able to say that the McElwain Company, * * was then in such financial straits as to preclude the reasonable inference by the Commission that its business conducted either through a receivership or a reorganized company, would probably continue to compete with that of petitioner.' 280 U.S. at 306, 50 S.Ct. at 94. 35 H.R.Rep. No. 1191, 81st Cong.1st Sess. at 6; S.Rep. No. 1775, 81st Cong., 2nd Sess. at 7 36 Most commentators agree that Congress intended to carry the failing company defense into the amended Section 7: Comment, 61 Mich.L.Rev. 566, 571 (1963); Wiley, The 'Failing Company'; A Real Defense in Horizontal Merger Cases, 41 B.U.L.Rev. 495, 502 (1961); Low, The Failing Company Doctrine: An Illusive Economic Defense Under Setion 7 of the Clayton Act, 35 Fordham L.Rev. 425, 426-27 (1967); Bok, Section 7 of the Clayton Act and the Merging of Law and Economics, 74 Harv.L.Rev. 226, 339 (1960). See Brown Shoe Co. v. United States, 370 U.S. at 319-320, 82 S.Ct. 1502. But see, Citizen Publishing Co. v. United States, 394 U.S. at 136 n. 3, 89 S.Ct. 927 37 Passing consideration is made of the doctrine in United States v. Third National Bank, 390 U.S. 171, 88 S.Ct. 882, 19 L.Ed.2d 1015 (1968); United States v. Philadelphia Nat. Bank, 374 U.S. 321, 372 n. 46, 83 S.Ct. 1715, 10 L.Ed.2d 915 (1963); United States v. Von's Grocery Co., 384 U.S. 270, 86 S.Ct. 1478, 16 L.Ed.2d 555 (1966); United States v. El Paso Natural Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964) 38 This third requirement may be read as unnecessary to the Court's disposition of the case. It was, however, clearly intended by the Court to clarify the confines of the 'present narrow scope' of the failing company doctrine. The Court observed: 'Moreover, we know from the broad experience of the business community since 1930, the year when the International Shoe case was decided, that companies reorganized through receivership, or through Chapter X or Chapter XI of the Bankruptcy Act often emerged as strong competitive companies. The prospects of reorganization of the Citizen in 1940 would have had to be dim or nonexistent to make the failing company doctrine applicable to this case.' 394 U.S. at 138, 89 S.Ct. at 931. 39 The Government's brief in International Shoe argues that 'Such proof, however, is essential to a showing 'that the failing company doctrine is applicable.' It comtinues to state, 'it is a matter of common knowledge that many large and successful industrial concerns, as well as, numerous railroads have at one time or another passed through receivership." Government's brief at 23-24	{ "pile_set_name": "FreeLaw" }
423 P.2d 474 (1967) Richard HUTCHENS, Petitioner, v. DISTRICT COURT OF POTTAWATOMIE COUNTY, State of Oklahoma, and the Honorable J. Knox Byrum, District Judge, Respondents. No. A-14074. Court of Criminal Appeals of Oklahoma. January 25, 1967. Berry & Berry, Oklahoma City, Alfred Parsons, Shawnee, for petitioner. John Clifton, County Atty., Pottawatomie County, Shawnee, for respondents. 476 BRETT, Judge. This is an original action in which the petitioner applied to this Court to assume original jurisdiction of this matter, and to issue a writ of prohibition against the District Court of Pottawatomie County, Oklahoma, and the Honorable J. Knox Byrum, district judge. The facts in this matter are not in dispute. Petitioner, who was the defendant at the trial, was duly informed against for the crime of "offering a bribe to an executive officer of Pottawatomie County", the officer being the county sheriff. The trial was commenced on June 27, 1966, the jury was selected and sworn to try the cause; the state introduced six witnesses to prove its case; and the defendant introduced four witnesses in his defense, when the trial recessed at the close of the second day. The following morning, June 29th, the county attorney informed the district judge that it had been brought to his attention one of the jurors was the mother-in-law of deputy sheriff Bob Robinson; and that such came to his attention when he was considering using the deputy as a rebuttal witness. That same morning, prior to formally opening court, the district judge called all parties into his chambers, including the defendant and both of his attorneys, and informed them of the information he had received. It was agreed that the juror should be called from the jury room for interrogation. The juror admitted the fact, saying her son-in-law had been a deputy sheriff for about a month. Thereafter it was agreed that the juror should be excused from further serving on the jury. The trial judge consulted both sides concerning the possibility of proceeding with the trial, with eleven members on the jury. Defense counsel informed the court that the defendant elected to proceed with an "eleven-man jury". The county attorney stated his position by saying: "the State takes the position that it is entitled to a twelve-man jury, and cannot agree to trying this matter to an eleven-man jury, and, therefore, cannot agree." After stating his intention to declare a mistrial for the reason that the parties could not agree to proceed with the trial using an eleven-man jury, the trial judge asked: "Does anybody want to say anything before I make a positive statement here?" Defense counsel said, "No, if the Court is going to discharge the jury, we want the record to show that on behalf of the defendant Hutchens we object to this and ask the Court to proceed with the eleven-man jury." The Judge then stated: "Frankly, I would like very much to proceed and get the case over with and dispose of it, but I think the State has as much right in this court room as the defendant, and they are both entitled to a twelve-man jury. I think both sides are entitled to a twelve-man jury, and not being able to have a twelve-man jury due to this unavoidable casualty, the Court has no alternative but to declare a mistrial and a mistrial is therefore declared." Subsequently, petitioner's case, for his second trial, appeared on the district court docket beginning September 12, 1966. On September 8, 1966 petitioner filed his "Plea of Former Jeopardy" in the district court. On the following day a hearing was had on the plea of former jeopardy, at which time the facts in dispute were stipulated. At the conclusion of the hearing, the court overruled petitioner's plea. On September 13, 1966 petitioner filed his petition in this Court for a writ of prohibition. The County Attorney filed a response to the order to show cause, and represented 477 the District Judge before this Court. September 16, 1966 arguments were heard as to this Court assuming jurisdiction; and thereafter on January 19, 1967 the case was argued on its merits. In his response the county attorney stated: "The State, relying on the authority of Ex parte Hollingsworth, 46 Okl.Cr. 353, 287 P. 840, refused to waive its right to a 12-man jury, and the Respondent Judge had no discretion but to declare a mistrial and discharge the jury." The county attorney is in error in his statement. It is always a matter of discretion of the trial judge, whether or not a mistrial shall be declared. Likewise, it is a matter of judicial discretion any time a jury is discharged prior to reaching a verdict. As we read the Hollingsworth case, supra, it pertains to the right of both the State and the defendant "to waive altogether the right to a trial by jury in criminal cases"; and, that the State has an equal right to that of defendant to dispense with one or more jurors, during the trial. But, the issue discussed in the Hollingsworth case is not the same, which exists in this case The question presented by this case is not whether or not all parties agree to the waiver of a jury, but, instead, whether or not the jury was properly discharged after the trial was commenced, and before it was concluded. If the jury was unnecessarily discharged, petitioner's plea of former jeopardy is valid. As we read the transcript of the proceedings of June 20, we readily ascertain that four of the five requirements necessary to show when jeopardy has attached are clearly met. They are: the defendant had been put upon trial before a court of competent jurisdiction; the information against the defendant was sufficient to sustain a conviction; the jury had been impaneled and sworn to try the case; and, the discharge of the jury was without the consent of the defendant. See: Yarbrough v. State, 90 Okl.Cr. 74, 210 P.2d 375; and Pickens v. State, Okl.Cr., 393 P.2d 889. Therefore, the only question to be answered is: Was the jury unnecessarily discharged by the court? The transcript of proceedings before this Court reveals that the only reason given for the discharge of the jury was that all the parties could not agree to proceed with the trial, with an eleven-man jury. The disagreement existed only because the State "refused to waive its right to a 12 man jury". But, we submit that the time for the waiver referred to by the county attorney had long since been passed. In this case, neither side waived the jury, but instead a jury was selected and sworn to try the case. The matter of discharging the jury is discussed at length in Yarbrough v. State, supra, and much of the Yarbrough opinion is recited in Pickens v. State, supra. In the Yarbrough case, this Court clearly stated that the necessity for the discharge of the jury must affirmatively appear in the record; and that the defendant's right to have the jury impaneled and sworn to pass upon his case was one which should not have been set aside except for a very cogent and compelling reason. In an Arkansas case, the Arkansas Supreme Court used the term, while explaining justification for the discharge of the jury, "overruling necessity". See Jones v. State, 230 Ark. 18, 320 S.W.2d 645. 21 Am.Jur.2d, § 194, p. 246, discusses the modern rule pertaining to the discharge of the jury prior to its returning a verdict, as it related to former jeopardy. Therein it reads: "* * * [T]he power to discharge [the jury] is to be exercised only where there is a cogent reason or a manifest necessity." (Emphasis added) The reason given for the discharge of this jury was that the parties could not agree to proceed with the trial with an eleven-man jury, which was based upon the State's refusal to waive its right to a *478 twelve-man jury. This is not a cogent or compelling reason; but instead has the appearance of being an arbitrary or adamant position, not based upon any necessity whatsoever. As stated hereinbefore, the point of waiver referred to in the Hollingsworth case, supra, which is based upon the provisions of Article 7, § 20 of the Oklahoma Constitution, had already been passed. Once the jury has been selected and sworn to try any criminal case, the jury should not be discharged prior to returning a verdict, except for a cogent or compelling reason, or for a manifest necessity. In situations such as the one presented by this case, the State unnecessarily places itself in the position of confronting a valid plea of former jeopardy. It is difficult to see how the State could be jeopardized under these circumstances. Insofar as a unanimous verdict is required to sustain a conviction, it would appear that the State's chances of obtaining such a unanimous conviction with an eleven-man jury would be enhanced. The converse would likewise be true, where the jury should be increased by one juror. Were the latter situation before us, we would unhesitatingly sustain the State's position. On the other hand, when the defendant offers a cogent or compelling reason to declare a mistrial and discharge the jury, it merely lessens the burden of discretion on the trial judge, and may cause the defendant to be submitting to a new trial without further objection. We are of the opinion in this case, the district judge should have sustained petitioner's plea of former jeopardy in the district court, for the reason the State did not offer a sufficient reason for not proceeding with the trial. Therefore, for the reasons herein stated, we are of the opinion that the writ of prohibition prayed for should be, and the same is, therefore, granted; and the district court of Pottawatomie County, Oklahoma, is directed to dismiss the charges pending against petitioner in that court in case No. 6389; and the same charges should not be filed again. Writ of Prohibition granted. NIX, P.J., and BUSSEY, J., concur.	{ "pile_set_name": "FreeLaw" }
Affirmed and Opinion Filed February 5, 2014 S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-00992-CR No. 05-12-00993-CR ANTHONY ALAMIA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 199th Judicial District Court Collin County, Texas Trial Court Cause Nos. 199-82134-2011, 199-82135-2011 OPINION Before Justices FitzGerald, Francis, and Myers Opinion by Justice FitzGerald Appellant was charged by two indictments for online solicitation of a minor. The trial court found appellant guilty as charged in the first indictment and guilty on one of two counts in the second indictment, and assessed punishment at ten years’ imprisonment, probated for ten years, and a $1,000 fine. In four issues on appeal, appellant contends the trial court erred in admitting his involuntary statement, the evidence was insufficient to support his conviction, and the Texas online solicitation of a minor statute is unconstitutional because it violates the due process and due course of law provisions of the United States and Texas constitutions. Finding no reversible error, we affirm the trial court’s judgments. I. BACKGROUND Sergeant Chris Meehan is a member of the Internet Crimes Against Children Task Force that investigates online predators. In late June and early July, Meehan entered a Yahoo Internet chat room posing as a thirteen-year-old girl. Meehan used the screen name “brooke_chick13.” In late June, he began getting messages from appellant using the screen name “a420kindofguy.” During the conversations that followed, brooke_chick13 told a420kindofguy that “she” was thirteen and a420kindofguy responded that he was a lot older than that. He told brooke_chick13 that he worked for AT&T Wireless adding cell sites and lived with his girlfriend and asked her a number of sexually-explicit questions. He wanted to know how far she had gone with a boy, details about who touched whom and how, whether she liked it, whether she “play[ed]” with herself, whether she had ever seen “man parts,” whether she and a friend wanted to takes turns on him, and other such topics. He also inquired if she deleted her chats. Eventually, appellant displayed his penis and masturbated for brooke_chick13 on his webcam. Meehan recorded this display. Appellant also asked brooke_chick13 to meet him the following week at a lake near her house where they could hide and engage in oral sex, possibly with one of her friends. He told brooke_chick13 he did not want to pick her up in his car to take her to the lake, and Meehan testified this was because predators are careful not to be seen with a minor in their car. As a result of his chats with a420kindofguy, Meehan obtained information on the suspect’s screen name, the AT&T account information, and the IP address for the suspect’s computer, which he traced to a house owned by April and Derek Crowell. April’s name was also listed as the subscriber on the AT&T internet account a420kindofguy used. Because Derek was the only male associated with that house at that time, Meehan initially thought he was a420kindofguy and –2– obtained a warrant for Derek’s arrest. When Meehan observed April leave the house with a man he believed to be Derek, he followed them to Wal-Mart. The Mesquite police made the initial contact with April and the man they thought was Derek in the parking lot. As Meehan approached, the officers patted the man down, separated him from April, and handcuffed him. They did not place him under arrest. In questioning the man, Meehan subsequently discovered he was not Derek but appellant. Initially, appellant denied being involved in the chats, but after Meehan showed him images he finally admitted that the images were of him and he had chatted with brooke_chick13. When Meehan showed appellant a picture of an individual from the neck down, Meehan stated “That’s you, brother.” Appellant admitted the image was of him. Once he admitted to the offense, Meehan placed him under arrest. Meehan subsequently discovered the screen name a420kindofguy belonged to appellant and it was appellant who lived with April in her house. The officers’ encounter with appellant in the Wal- Mart parking lot was recorded. Derek, the man officers initially believed was a420kindofguy, testified at trial. Derek stated that he is April’s brother and he, appellant, appellant’s eighteen-year-old godson, and Derek’s two small nephews lived in April’s house in June 2011. Derek was away in June and July doing an on-campus internship. He explained that appellant and April were not married but had been living together for five or six years and had children together. Appellant worked for AT&T putting up cell sites. Derek denied ever having the Yahoo screen name a420kindofguy or sending any of the chat messages. He described appellant’s godson as five feet nine inches tall with lighter skin and a thinner build than appellant. When shown the internet video of a420kindofguy, Derek testified that the man was not appellant’s godson and he was certain it looked like appellant. –3– The trial court found appellant guilty of two counts of online solicitation of a minor for sending sexually explicit communications to brooke_chick13 and not guilty of soliciting a meeting with her with the intent to have sexual contact. II. ANALYSIS Admission of the Oral Statement In his first issue, appellant argues that his statements to Meehan in the Wal-Mart parking lot resulted from custodial interrogation without article 38.22 or Miranda warnings and were involuntary. Therefore, appellant contends the trial court erred in admitting these statements. The State responds that appellant was not in custody, or alternatively, any error was harmless. When the State offered appellant’s recorded interview at Wal-Mart as exhibit 1, appellant objected under the Fifth and Fourteenth Amendments, article 1, sections thirteen and nineteen of the Texas Constitution, and article 38.22 of the code of criminal procedure. Prior to ruling, the trial judge heard the testimony of Sergeant Meehan, as well as appellant’s limited testimony in support of his objections and motion to suppress. Appellant testified that he was approached by three to four Mesquite police officers. One of the officers told appellant he thought he was going to run, and handcuffed him. He was already handcuffed when Meehan approached him, identified himself, and asked questions about the incident. Appellant believed he was under arrest, and was never told he was free to leave. He was not advised that he could refuse to answer questions or that he had a right to a lawyer. He admitted, however, that no one told him he was under arrest until he told Meehan that he sent the chat messages to brooke_chick13. Meehan testified that by the time he met appellant in the Wal-Mart parking lot, the Mesquite police had already separated appellant from his companion and had handcuffed him. –4– The officers mistakenly thought appellant was Derek, and thought that Derek was the perpetrator (a420kindofguy). Meehan did not realize that appellant was actually the suspect he was looking for until appellant admitted that the images and chat messages were his. According to Meehan, until appellant admitted guilt, he was not under arrest and was free to go. After hearing the evidence, the trial court ruled that appellant was in custody and should have been advised of his Miranda rights once Meehan realized appellant was the perpetrator and appellant became the focus of the investigation. As a result, the judge suppressed all of appellants’ statements after he became “the focus of the investigation.” In so ruling, the trial court made some informal findings of fact. The court found that Meehan was originally looking for Derek and did not realize appellant was the perpetrator until he identified him by saying, “That’s you, brother.” The court also found that Meehan initially detained and questioned appellant as part of an investigation. We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). In reviewing the trial court’s decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007). Therefore, we give almost total deference to the trial court’s rulings on (1) questions of historical fact, even if the trial court’s determination of those facts was not based on an evaluation of credibility and demeanor, and (2) application-of-law-to- fact questions that turn on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006). But when application- of-law-to-fact questions do not turn on the credibility and demeanor of the witnesses, we review the trial court’s rulings on those questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, –5– 154 S.W.3d 604, 607 (Tex. Crim. App. 2005). In conducting our review, we must view the evidence in the light most favorable to the trial court’s ruling. See State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). The warnings required by Miranda and article 38.22 are intended to safeguard a person’s privilege against self-incrimination during custodial interrogation. Gardner v. State, 306 S.W.3d 274, 293 (Tex. Crim. App. 2009). Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda v. Arizona, 384 U.S. 436, 444 (1966). A person is in custody only if, under all the objective circumstances, a reasonable person would believe her freedom of movement was restrained to the degree associated with an arrest. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). In determining whether a suspect is in custody, the appropriate inquiry is “whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983). The determination of custody is made on an ad hoc basis and depends on the objective circumstances, not on the unexpressed subjective views harbored by either the questioning officer or the person being questioned. Dowthitt, 931 S.W.2d at 254–55. The interrogation aspect of custodial interrogation has been defined as express questioning or words and actions that the police should know are reasonably likely to elicit an incriminating response. See Rhode Island v. Innis, 446 U.S. 291, 301 (1980). A person held for investigative detention is not “in custody.” Dowthitt, 931 S.W.2d at 255. Custody is not established during an investigative detention simply because the suspect is not able to leave until the investigation is completed. Parker v. State, 710 S.W.2d 146, 147 (Tex. App.—Houston [14th Dist.] 1986, no pet.). In addition, placing a person in handcuffs does not automatically mean that the person is in custody. Balentine v. State, 71 S.W.3d 763, 771 (Tex. –6– Crim. App. 2002); see also Turner v. State, 252 S.W.3d 571, 580 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (holding suspect not in custody when officer handcuffed him for officer safety while transporting him to police station). In the instant case, we need not determine whether the trial court erred in admitting the entire videotape into evidence because even if there was error, there was no harm. Because the claimed error is of constitutional magnitude, we apply rule 44.2(a). See TEX. R. APP. P. 44.2 (a); see also Jones v. State, 119 S.W.3d 766, 777 (Tex. Crim. App. 2003) (applying rule 44.2(a) analysis to Miranda violation). Under this standard, we must reverse unless we determine beyond a reasonable doubt that the trial court’s failure to suppress these statements did not contribute to appellant’s conviction or punishment. See TEX. R. APP. P. 44.2 (a); Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Crim. App. 2001). Appellant does not demonstrate that the trial court considered the portion of the audiotape where he admits he is the individual in the photograph — this admission is in the portion of the tape the court suppressed. The portion of the videotape the trial court declined to exclude shows only appellant’s denial of any involvement in the offense. Thus, none of his admissions to the offense were in evidence, and he made no incriminating statements. In addition, when Meehan testified that appellant admitted to committing the offense, appellant made no objection. Therefore, any exculpatory impact his denials may have had was negated. Finally, as discussed more fully in conjunction with the second issue, there was other evidence that established appellant as the perpetrator, including the IP address and internet provider records linked to the computer and address where appellant resided, and where the other two males in residence were excluded as the perpetrator. Therefore, we conclude beyond a reasonable doubt that the admission of the first portion of the audiotape did not contribute to appellant’s conviction or punishment. Appellant’s first issue is overruled. –7– Sufficiency of the Evidence In his second issue, appellant asserts that the evidence is insufficient to support his conviction for online solicitation of a minor. According to appellant, the only evidence establishing his identity “came from appellant” by way of his responses to the questions Meehan posed about his identity while showing appellant a picture of a torso sent over electronic mail.1 We review the sufficiency of the evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011). We examine all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Adames, 353 S.W.3d at 860. This standard recognizes “the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weight the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319; see also Adames, 353 S.W.3d at 860. The jury, as the fact finder, is entitled to judge the credibility of the witnesses, and can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We defer to the jury’s determinations of witness credibility, and may not substitute our judgment for that of the fact finder. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (in conducting legal sufficiency analysis, appellate court “may not re-weigh the evidence and substitute our judgment for that of the jury”). A person commits the offense of online solicitation of a minor if (1) he is 17 years of age or older and, with the intent to arouse or gratify any person’s sexual desire, intentionally 1 It is not entirely clear which “admissions” appellant is complaining about. Appellant denied any involvement during Meehan’s initial questioning, and the trial court excluded the portion of the tape after Meehan stated “That’s you, brother.” As a result, there were no “admissions” in evidence from the audiotape. Based on a sentence at the conclusion of appellant’s argument, we assume his complaint is directed toward Meehan’s testimony about his confession. –8– communicates in a sexually explicit manner with a minor or provides sexually explicit material to a minor over the Internet, by email, text message, or through some other online means or (2) he knowingly solicits a minor to meet anyone with the intent that the minor will engage in sexual activity with another person. See TEX. PENAL CODE ANN. §§ 33.021(b)(1) & (2), (c) (West 2012). Subsection (a) defines “minor” as “an individual who represents himself or herself to be younger than 17 years of age” or “an individual whom the actor believes to be younger than 17 years of age.” TEX. PENAL CODE ANN. § 33.021(a)(1); Maloney v. State, 294 S.W.3d 613, 625‒26 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). If the minor is younger than 14 years of age or the actor believes he or she is younger than 14, the offense is raised to a second-degree felony. TEX. PENAL CODE ANN. § 33.021(f). Here, appellant was charged with intentionally sending brooke_chick13, an individual he believed was thirteen years old, sexually explicit messages and images of his penis and masturbation over the Internet. Appellant complains that without Meehan’s testimony concerning his confession to the crime, the evidence is not sufficient to demonstrate that he was the individual transmitting the communications. As previously noted, when Meehan testified that appellant admitted he was the person depicted in the photograph, appellant failed to object. To preserve error for appellate review, a timely and specific objection is required. TEX. R. APP. P. 33.1(a)(1)(A). In other words, the objecting party must let the trial judge know what he wants, why he thinks he is entitled to it, and do so clearly enough for the judge to understand him at a time when the judge may do something about it. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). Because appellant failed to assert a timely objection to the testimony, any complaint about its admissibility has not been preserved for our review. See TEX. R. APP. P. 33.1(a)(1)(A). –9– But even without Meehan’s testimony concerning appellant’s admission, the evidence is sufficient to support appellant’s conviction. Meehan testified about the paper trail from a420kindofguy to the computer at the house where appellant lived. The Yahoo records introduced into evidence showed that the IP address used for the chats was connected to the address where appellant resided. The records showed that a person named “Tony A” had signed up for the screen name a420kindofguy. Other records showed the dates and times of the chats with brooke_chick13. The unique and personal identifying information that a420kindofguy divulged online did not apply to any of the other males living in the home. Specifically, appellant revealed that he worked for AT&T Wireless adding cell sites, and he lived with his girlfriend. Derek testified that appellant lived in the home with April during the time in question, and had always worked for AT&T Wireless on its cell sites. Derek also testified that he was not living in the home at the time the chats occurred and a420kindofguy was not his screen name. Derek positively identified appellant’s torso in a video recording he was shown, and also eliminated the possibility that the photo was of the third male in the house based on the man’s build and color. Derek also testified that the third male had never worked for AT&T. Based on this evidence, a rational jury could reasonably conclude that appellant was a420kindofguy and had committed the offense. Appellant’s second issue is overruled. Constitutionality of the Statute In his third and fourth issues, appellant argues the online solicitation of a minor statute violates due process and due course of law under the United States and Texas Constitutions because the definition of “minor” is overly broad. According to appellant, the definition is overly broad because it encompasses anyone who represents himself to be a minor, regardless of age. We disagree. –10– When a statute is challenged as unconstitutional, we ordinarily begin with a presumption that the statute is valid and the Legislature has not acted unreasonably or arbitrarily. See Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). The party challenging the statute has the burden to establish it is unconstitutional. Id.; but see Ex Parte Lo, No. PD 1560-12, 2013 WL 5807802 at 1 (Tex. Crim. App. Oct. 13, 2013) (applying reverse presumption of constitutionality to content-based regulations). If a statute can be construed in two different ways, one of which sustains its validity, we apply the interpretation that sustains its validity. Duncantell v. State, 230 S.W.3d 835, 843 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d). We review the constitutionality determination de novo, and must uphold the statute if there is a reasonable construction that will render it constitutional. Render v. State, 316 S.W.3d 846, 856 (Tex. App. —Dallas 2010, pet ref’d). There are two types of challenges to the constitutionality of a statute: the statute is unconstitutional as applied to the defendant, or the statute is unconstitutional on its face. Fluellen v. State, 104 S.W.3d 152, 167 (Tex. App.—Texarkana 2003, no pet.). A party seeking to invalidate a statute “on its face” bears a heavy burden of showing that the statute is unconstitutional in all of its applications. United States v. Salerno, 481 U.S. 739, 745 (1987). In so doing, the challenger must establish that no set of circumstances exists under which the statute is valid. Santikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992). Appellant challenges the statute on its face, focusing on the way in which the statute defines “minor.” The statute defines “minor” as: (a) an individual who represents himself or herself to be younger than 17 years of age; or (b) an individual whom the actor believes to be younger than 17 years of age. –11– TEX. PENAL CODE ANN. § 33.021(a) (1). Appellant contends the first part of this definition — an individual who represents himself or herself to be younger than 17 years of age — is unconstitutional because it “transforms [the statute] into a strict liability statute.” According to appellant, the statute is a strict liability statute because it nullifies any proof of criminal intent as to age. Appellant further asserts the statute is unconstitutional because it denies him the opportunity to rebut or explain evidence against him by presenting a mistake of fact defense. Appellant does not argue that the due course of law provision in the Texas Constitution affords greater protection that the Due Process clause of the federal constitution, so we limit our analysis to the Due Process clause. See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009).2 A statute is impermissibly overbroad if, in addition to proscribing activities that may be constitutionally prohibited, it sweeps within its coverage speech or conduct protected by the First Amendment. Maloney v. State, 294 S.W.3d 613, 626 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d); see also United States v. Salerno, 481 U.S. 739, 746 (1987) (stating overbreadth challenge to criminal statute recognized as First Amendment challenge). The United States Supreme Court has recognized that the overbreadth doctrine is “strong medicine,” to be employed with hesitation, and “only as a last resort.” New York v. Ferber, 458 U.S. 747, 769 (1982). Within this context, we evaluate appellant’s challenge to the statute. The overbreadth doctrine involves balancing the effects of discouraging constitutionally protected speech against “conduct that is so antisocial it has been made criminal.” United States v. Williams, 553 U.S. 285, 292 (2008). The statute’s overbreadth must be real and substantial before it will be invalidated on its face. Id. at 2 Indeed, several courts, including this court, have held that the due course of law provision affords the same protections as the federal Due Process Clause. See State v. Rudd, 871 S.W.2d 530, 532-33 (Tex. App.—Dallas 1994, no pet.); Saldana v. State, 783 S.W.2d 22, 23 (Tex. App. —Austin 1990, no pet.); Salazar v. State, 298 S.W.3d 273, 277-78 (Tex. App. —Fort Worth 2009, pet. ref’d). –12– 292-93. This is particularly true when conduct is involved as opposed to simply speech. Maloney, 294 S.W.3d at 627. The first step in overbreadth analysis is to determine what the statute covers. Williams, 553 U.S. at 293. The statute at issue criminalizes the conduct of an adult, who, with the intent to arouse of gratify the sexual desire of any person, uses an electronic message or online service to intentionally communicate in a sexually explicit manner with or distribute sexually explicit materials to a minor. See TEX. PENAL CODE ANN. § 33.021(b); see also Ex parte Lo, No. PD- 1560-12, 2013 WL 5807802 at 2 (Tex. Crim. App. Oct. 30, 2013). The section appellant challenges requires that the defendant believe the person to whom he is sending sexually explicit communications or materials is under seventeen, or the person on the receiving end must represent himself or herself as such. See TEX. PENAL CODE ANN. § 32.01(a)(1)(A), (B). “Sexually explicit” is defined as “any communication, language, or material, including a photographic or video image, that relates to sexual conduct, as defined by section 43.25.” TEX. PENAL CODE ANN. § 33.021(3). The next steps in overbreadth analysis involve the determination of whether the statute criminalizes a substantial amount of protected speech and the governmental interest served by the statute. Williams, 553 U.S. at 297. But we need not perform this analysis anew because the arguments appellant advances here have already been considered and rejected by this Court. In Freeman v. State, No.05-12-00923-CR, 2013 WL 4805698 at 8 (Tex. App.—Dallas Sept. 10, 2013, no pet. h.), we concluded that even if section 33.021(a)(1)(A) deprives an accused of a mistake-of-fact defense as to the age of the recipient, the statute does not violate a defendant’s substantive due process rights and is not overly broad in violation of the First Amendment. In reaching its conclusion with regard to overbreadth, the Court noted that “preventing sexual exploitation and abuse of children ‘constitutes a government objective of surpassing –13– importance.’” Id. at 6 (citing New York v. Ferber, 458 U.S. at 757). The Court further stated that “the legislature has a legitimate purpose in protecting all children from sexual predators . . . and the online solicitation of a minor statute . . . does so by allowing for the prosecution of those who solicit someone whom they believe to be a child or someone who represents themselves to be a child.” Id. at 6. Examining the legislative history of the statute, the Court noted the legislative purpose of the statute was to “permit law enforcement officers to intercept sexual predators while they were still ‘grooming’ the child before they injured the child.” Id. The Court reasoned that: By including in the definition of a “minor” an individual who represents himself or herself to be younger than seventeen years old, the statute permits police officers to discover and convict those adults who would communicate in a sexually explicit manner with children—and possibly attempt escalating sexual contact — before the offenders can make contact with the actual children. Finally, the Court noted that there is no constitutionally protected right of speech to communicate sexually explicit material to a recipient who represents that he is younger than seventeen years old, or whom the actor believes is younger than seventeen years old. Id. at 7. Thus, the Court concluded that to the extent appellant demonstrated any overbreadth, “the overbreadth is not substantial when compared to [the statute’s] plainly legitimate sweep.” Id. All of these conclusions are equally applicable here. Appellant insists the statutory definition of minor is constitutionally impermissible because it might encompass an interaction with an individual who is not a minor. To this end, appellant posits that Meehan could have represented that brooke_chick13 was twenty-five years old and the statute would still be violated. We fail to grasp how these facts would violate the statute, since the scenario would involve no “minor” as defined in the statute. And to the extent appellant’s argument could be interpreted to suggest that two consenting adults could be prosecuted under the statue, we note that a statute will not be invalidated as overbroad simply –14– because it is possible to imagine some unconstitutional scenario. See Maloney, 294 S.W.3d at 627. In addition to the foregoing, we also note that appellant has failed to demonstrate that the statute is unconstitutional in all of its applications. Consequently, appellant’s facial overbreadth challenge fails. See Stantikos v. State, 836 S.W.2d 631, 633 (Tex. Crim. App. 1992). Appellant’s third and fourth issues are overruled. The trial court’s judgments are affirmed. Do Not Publish TEX. R. APP. P. 47 120992F.U05 /Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE –15– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT ANTHONY ALAMIA, Appellant On Appeal from the 199th Judicial District Court, Collin County, Texas No. 05-12-00992-CR V. Trial Court Cause No. 199-82134-2011. Opinion delivered by Justice FitzGerald. THE STATE OF TEXAS, Appellee Justices Francis and Myers participating. Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered February 5, 2014 /Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE –16– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT ANTHONY ALAMIA, Appellant On Appeal from the 199th Judicial District Court, Collin County, Texas No. 05-12-00993-CR V. Trial Court Cause No. 199-82135-2011. Opinion delivered by Justice FitzGerald. THE STATE OF TEXAS, Appellee Justices Francis and Myers participating. Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered February 5, 2014 /Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE –17–	{ "pile_set_name": "FreeLaw" }
Order entered October 24 , 2012 In The Court of Zppeafo jfiftb At iotritt of Texao at A alia35 No. 05-12-01015-CR MICHAEL D. WILLIAMS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 4 Dallas County, Texas Trial Court Cause No. F94-03570-TK ORDER The Court GRANTS appellant's October 22, 2012 motion for extension of time to file the brief. We ORDER appellant to file the brief on or before December 12, 2012. We ORDER the Clerk of the Court to send a copy of this order to Michael D. Williams, TDCJ No. 727667, Michaels Unit, 2664 FM 2054, Tennessee Colony, Texas, 75886.	{ "pile_set_name": "FreeLaw" }
44 F.3d 1005 Shanker Industriesv.Eldridge NO. 94-20044 United States Court of Appeals,Fifth Circuit. Jan 05, 1995 Appeal From: S.D.Tex., No. CA-H-90-3761 1 AFFIRMED.	{ "pile_set_name": "FreeLaw" }
84 S.E.2d 297 (1954) 241 N.C. 69 Mrs. Ruth YOW v. Dave Edward PITTMAN, Jr., and William D. Gaston. No. 313. Supreme Court of North Carolina. November 3, 1954. 298 Mary Gaither Whitener, Louis A. Whitener, Hickory, for plaintiff, appellee. James C. Smathers, Hickory, for defendant William D. Gaston, appellant. HIGGINS, Justice. The defendants applied for an order of court permitting them to take, and requiring Dr. Brenizer to submit to the taking of, a deposition "pertaining to his examination, medical history secured by him, his diagnosis and treatment of the plaintiff, * ." Such a deposition would require the physician to disclose not only his clinical findings, diagnosis and treatment, but "the history secured by him" from the plaintiffinformation of a very confidental nature. The defendants do not proceed under the deposition statute, G.S. § 8-71, broad as its provisions are: "Any party in a civil action or special proceeding, upon giving notice to the adverse party or his attorney as provided by law, may take the depositions of persons whose evidence he may desire to use, without any special order therefor, unless the witness shall be beyond the limits of the United States." This statute does not contemplate the taking of deposition of a person disqualified to give evidence in the case. It confers no right to investigate or inquire into matters which the court could not investigate and inquire into in the actual trial. The deposition statute, therefore, must be considered in connection with G.S. § 8-53, which provides: "Communications between physician and patient.No person, duly authorized to practice physic or surgery, shall be required to disclose any information which he may have acquired in attending a patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon: Provided, that the presiding judge of a superior court may compel such disclosure, if in his opinion the same is necessary to a proper administration of justice." (Emphasis added.) One of the objects of this statute is to encourage full and frank disclosure to the doctor. The law protects the patient's secrets and makes it the duty of the doctor to keep them, a duty he cannot waive. The veil of secrecy can be drawn aside only by the patient or by "the presiding judge of a superior court", and by him only when the ends of justice require it. In construing C.S. § 1798, now G.S. § 8-53, Justice Brogden, in the case of Sawyer v. Weskett, 201 N.C. 500, 160 S.E. 575, said: "C.S. § 1798, prescribes the privilege protecting physicians in disclosing confidential information acquired in the course of employment in treating a patient. This statute was construed in Metropolitan Life Ins. Co. v. Bobbie, 194 N.C. 199, 139 S.E. 228, and in State v. Newsome, 195 N.C. 552, 143 S.E. 187, 191. The opinion in the Newsome case, supra, declares: `If the statements were privileged under this 299 statute, then, in the absence of a finding by the presiding judge, duly entered upon the record, that the testimony was necessary to a proper administration of justice, it was incompetent, and, upon defendant's objection, should have been excluded.'" The statute contemplates a superior court in term. As stated in the cases cited, the presiding judge must enter his findings upon the record. This he can do only in term and after hearing. While Judge Rudisill was a Judge of the Superior Court, he was not at the time the presiding judge of a superior court in term. He had no authority to enter the requested order in Chambers. It follows, therefore, that he was correct in denying the motion as a matter of law. Affirmed.	{ "pile_set_name": "FreeLaw" }
260 P.3d 201 (2011) 245 Or. App. 300 BARROW v. BELLEQUE. A144915 Court of Appeals of Oregon. August 24, 2011. Affirmed without opinion.	{ "pile_set_name": "FreeLaw" }
United States Bankruptcy Appellate Panel FOR THE EIGHTH CIRCUIT No. 99-6082NE In re: * * Steven Clifford Molczyk * Susan Kay Molczyk * * Debtors. * * Steven Clifford Molczyk * Appeal from the United Susan Kay Molczyk * States Bankruptcy Court for * the District of Nebraska Plaintiffs-Appellants, * * [UNPUBLISHED] v. * * Collection Bureau of * Grand Island, Inc. * * Defendant-Appellee. * Submitted: November 23, 1999 Filed: December 2, 1999 PER CURIAM. On October 19, 1999, the Bankruptcy Court1 entered an order granting in part Plaintiffs’ Motion for Summary Judgment and also granting in part Defendant’s Cross- Motion for Summary Judgment. On November 17, 1999, the Plaintiffs filed a Notice of Appeal from the Bankruptcy Court’s order. 1 The Honorable John C. Minahan, Jr., United States Bankruptcy Judge for the District of Nebraska. Federal Rule of Bankruptcy Procedure 8002(a) requires the appellant to file a notice of appeal “within 10 days of the date of the entry of the judgment, order, or decree appealed from.” See Luedtke v. Nationsbanc Mortgage Corp. (In re Luedtke), 215 B.R. 390, 391 (B.A.P. 8th Cir. 1997). Rule 8002(a)’s ten-day time frame is both mandatory and jurisdictional. Luedtke, 215 B.R. at 391 (citing Crockett v. Lineberger, 205 B.R 580, 581 (B.A.P. 8th Cir. 1997)). Failure to comply with the ten-day time limit deprives the Bankruptcy Appellate Panel of jurisdiction. Id. Because the relevant order was entered on October 19, a timely notice of appeal was required on or before October 29. The Plaintiffs’ Notice of Appeal, filed on November 17, was unquestionably out of time. Moreover, the Plaintiffs did not request an extension of time for filing their notice of appeal under Rule 8002(c). Accordingly, we lack subject matter jurisdiction over this appeal. Based on the foregoing, the Plaintiffs appeal is DISMISSED. A true copy. Attest: CLERK, U.S. BANKRUPTCY APPELLATE PANEL FOR THE EIGHTH CIRCUIT 2	{ "pile_set_name": "FreeLaw" }
174 Mich. App. 295 (1989) 435 N.W.2d 785 MATULEWICZ v. GOVERNOR Docket No. 96333. Michigan Court of Appeals. Decided January 17, 1989. Levin, Levin, Garvett & Dill (by Erwin B. Ellmann and Jeffrey A. Heldt), for plaintiffs. Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and George H. Weller, Assistant Attorney General, for defendants. 298 Before: BEASLEY, P.J., and MacKENZIE and R.P. HATHAWAY,[] JJ. R.P. HATHAWAY, J. This case primarily involves a constitutional challenge by civil service employees to legislative restructuring of the workers' compensation system. At issue are §§ 206 and 213 of 1985 PA 103, which amends the Workers' Disability Compensation Act, MCL 418.101 et seq.; MSA 17.237(101) et seq., and was approved by Governor Blanchard on July 30, 1985. Section 206, MCL 418.206; MSA 17.237(206), eliminates the position of hearing referee previously held by plaintiffs, while § 213, MCL 418.213; MSA 17.237(213), creates a Board of Magistrates, an autonomous entity and independent body in the Department of Labor, composed of thirty members appointed by the Governor. Plaintiffs attack the elimination of their civil service positions by the Legislature as unconstitutional. On August 16, 1985, plaintiffs filed suit in Ingham Circuit Court seeking a writ of mandamus as well as injunctive and declaratory relief. Plaintiffs claim that the Legislature acted in bad faith and in furtherance of partisan and discriminatory motives and that Act 103 unconstitutionally removed their positions from the civil service system and transferred their job responsibilities to political appointees. Shortly thereafter, Governor Blanchard filed an Executive Message with our Supreme Court requesting that the Ingham Circuit Court be authorized to certify a controlling question of public law to the Supreme Court for immediate consideration. In lieu of granting the Governor's request, the Supreme Court directed the Ingham Circuit Court to establish an accelerated schedule of proceedings 299 to include discovery and trial and to issue a final judgment in the case no later than November 30, 1985. On December 2, 1985, the Ingham Circuit Court struck down § 213 of Act 103, holding that the hearing referees are not members of a "proper" board or commission and that § 213, establishing the Board of Magistrates, is an unconstitutional attempt to evade the constitutional limitation. The Supreme Court granted bypass of the Court of Appeals, 424 Mich 864 (1985), and on March 28, 1986, reversed the ruling of the circuit court, holding that § 213 of Act 103 is constitutional. Civil Service Comm v Dep't of Labor, 424 Mich 571; 384 NW2d 728 (1986), modified in part and reh den 425 Mich 1201 (1986). Our Supreme Court then remanded the matter to the circuit court for further consideration of plaintiffs' remaining claims. Civil Service Comm, supra at 626. On remand, defendants moved for entry of judgment. The court treated defendants' motion for entry of judgment as analogous to a motion for summary disposition pursuant to MCR 2.116(C)(8). In an order and opinion dated July 17, 1986, the circuit court examined the Supreme Court's opinion to determine what claims remained valid. The court concluded "that the Supreme Court's opinion puts to rest with finality all of plaintiffs' claims under art 11, § 5, i.e., those claims embodied in Counts I, II, III, IV and VI of the complaint." According to the circuit court, the Supreme Court also summarily disposed of plaintiffs' claim that they had been deprived of a valuable property interest without due process of law since our Supreme Court ruled that Act 103 does not deny plaintiffs their civil service status. The court then examined plaintiffs' claim contained in ¶¶ 29 and 30 of Count V of the complaint, 300 that Act 103 impairs obligations of their employment contracts. The trial judge found plaintiffs' allegations disturbingly vague and concluded that, in view of these pleading deficiencies and because the Supreme Court made it clear that Act 103 does not deprive plaintiffs of their civil service status, plaintiffs had failed to state a claim for the impairment of contractual obligations. The court next examined plaintiffs' equal protection claim, contained in ¶ 31 of Count V of the complaint, and concluded that plaintiffs sought relief for an injury they had not suffered since the Supreme Court had clearly determined that plaintiffs were not deprived of their civil service status. Next, the court reviewed plaintiffs' claims of unfair treatment in legislative investigation and abridgement of federal civil rights under 42 USC 1983, 1985. As to both claims, the court concluded that plaintiffs failed to state a claim upon which relief could be granted. Finally, the court addressed plaintiffs' allegation that Act 103 constitutes a bill of attainder in violation of Const 1963, art 1, § 10. The court denied defendants' motion as to this claim, stating that, "[i]nasmuch as inquiries into legislative purpose and intent are required, summary disposition based upon the pleadings is inappropriate." Following entry of the circuit court's opinion and order of July 17, 1986, plaintiffs moved for rehearing and for leave to amend their claim for breach of contract. Defendants moved pursuant to MCR 2.116(C)(10) for judgment as a matter of law, alleging that there was no genuine issue of material fact as to whether 1985 PA 103 was a bill of attainder. Following oral argument, the circuit court, in an order and judgment dated October 20, 1986, denied plaintiffs' motions for rehearing and to amend Count V of their complaint and granted 301 defendants' motion for judgment as a matter of law on plaintiffs' bill of attainder claim. Plaintiffs appeal as of right from this October 20, 1986, order and judgment of the circuit court. The circuit court did not err in summarily dismissing plaintiffs' remaining claims. Counts II, III, IV and VI were clearly addressed and dismissed by the Supreme Court's decision in the instant case. As to Count I, ¶ 13, plaintiffs' claim that Act 103 was enacted in bad faith for partisan and discriminatory motives, we find that this also was addressed and rejected by our Supreme Court. In Civil Service Comm, supra at 625, the Court recognized the good faith limitations on the authority of the Legislature but noted that in the instant case the new Board of Magistrates was vested with greater powers to determine the facts with substantial finality and with full finality in cases involving less than $2,000. These differences negate plaintiffs' claim that Act 103 was enacted in bad faith for partisan and discriminatory motives. Next, plaintiffs alleged that Act 103 was enacted for discriminatory motives and in response to the hiring of minority hearing referees. Further, plaintiffs alleged in Count V, ¶ 31, that, as other hearing referees remained safeguarded by the civil service system, their removal deprived plaintiffs of equal protection. Both claims were dismissed by the circuit court. We agree with the circuit court's ruling that plaintiffs were not denied equal protection as plaintiffs have not been removed from the civil service system as they alleged. See Civil Service Comm, supra at 624. As for plaintiffs' racial and sexual discrimination claim, we interpret the Supreme Court's following statement in Civil Service Comm as meaning that Act 103 is facially constitutional but allowing for the possibility that plaintiffs 302 could, at some future date, establish that Act 103, as applied, discriminates on the basis of race or sex. See, e.g., Miller v C A Muer Corp, 420 Mich 355, 358; 362 NW2d 650 (1984). It is argued at some length that the elimination of the position of hearing referee was motivated by racial and sexual bias. The record in respect of these claims has not been developed. The referees are not precluded by today's decision of this Court sustaining the facial constitutionality of Act 103 from seeking to establish that Act 103 discriminates racially or sexually in violation of the constitution of this state or of the Untied States. [Civil Service Comm, supra at 624.] We disagree with plaintiffs' argument that the above statement from the Supreme Court's majority opinion explicitly directed the circuit court to grant plaintiffs an opportunity to prove their allegations of discriminatory treatment. To hold otherwise allows plaintiffs the opportunity to circumvent the Supreme Court's ruling that Act 103 is constitutional and was enacted in an effort to reform the workers' compensation system. Our discussion regarding plaintiffs' allegation that Act 103 was enacted in bad faith likewise applies to plaintiffs' claim that the act was enacted with a racially or sexually discriminatory intent. Plaintiffs further allege in ¶ 29 of Count v of their complaint to have a contract right to continuing employment as hearing referees in the Workers' Compensation Bureau that constitutes a valid property and liberty interest. The circuit court dismissed this claim, finding that the Supreme Court had defined the property interest referred to in Count V, ¶ 29, as "civil service status" and held that Act 103 does not deprive plaintiffs of that status. We agree. 303 In Civil Service Comm, supra at 625, our Supreme Court stated that the power of the Civil Service Commission to regulate the conditions of employment in the classified service did not preclude the Legislature from eliminating a position once classified as within the civil service system. If plaintiffs' property interest is their civil service status, which they retain with its attendant rights, Act 103 has deprived plaintiffs of nothing and their claim was appropriately dismissed. Additionally, the circuit court found plaintiffs' claim for impairment of their employment contracts, set forth in ¶¶ 29 and 30 of Count v, disturbingly vague and dismissed it, stating that plaintiffs failed to allege with particularity the extent to which Act 103 impairs the obligations of their contracts. Thereafter, plaintiffs filed a motion to amend their claim. The circuit court denied the motion stating that the proposed amendment would be futile and that plaintiffs continued to refuse to acknowledge that their positions, not their employment, had been eliminated. Additionally, the circuit court ruled that plaintiffs had failed to show that they had a contract and that case law does not support such a claim. MCR 2.118(A) provides that leave to amend shall be freely given when justice so requires. This Court will not disturb a trial court's grant or denial of a motion to amend absent an abuse of discretion. The trial court's discretion is limited, however, in that, prior to denying a motion to amend, the judge must find that justice would not be served by an amendment to the pleadings. Harvey v Security Services, Inc, 148 Mich App 260, 265; 384 NW2d 414 (1986). We agree with the circuit court that justice would not be served by an amendment to the pleadings. Plaintiffs' claim that their contract rights were 304 impaired is founded on the implied contract theory recognized by our Supreme Court in Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980). However, Michigan courts have not yet established that Toussaint applies to public employees. See Engquist v Livingston Co, 139 Mich App 280, 284, n 1; 361 NW2d 794 (1984). Accord, Averitt v Cloon, 796 F2d 195, 200, n 2 (CA 6, 1986). For support, plaintiffs cite Michigan State Employees Ass'n v Dep't of Mental Health, 421 Mich 152; 365 NW2d 93 (1984). However, we find no support in that decision for plaintiffs' claim. Rather, the MSEA decision lends support to defendants' argument that civil servants have property rights as opposed to contracts of employment. MSEA, supra at 160-161. Support for this view can also be found in Cleveland Bd of Ed v Loudermill, 470 US 532; 105 S Ct 1487; 84 L Ed 2d 494 (1985), where the Supreme Court recognized that classified civil servants possessed property rights in their continued employment. Accord, Ariganello v Scott Paper Co, 588 F Supp 484, 486 (ED Mich, 1982), where the court stated that the Toussaint doctrine is an obvious relative of the doctrine of constitutional procedural due process. The Ariganello court explained that, while the two concepts are similar, "Toussaint deals with private employment and the due process property component deals with public employment." Id. As plaintiffs are civil servants who do not have contracts of employment either express or implied, the circuit court properly dismissed plaintiffs' count for breach of contract for failure to state a claim upon which relief could be granted. Further, amendment of the complaint in the manner requested would not resolve or cure the fatal defect in plaintiffs' pleadings. Summary dismissal under MCR 2.116(C)(8) was appropriate. 305 Next, plaintiffs contend that the trial court erred in concluding, as a matter of law, that 1985 PA 103 is not a bill of attainder. In the circuit court's July 17, 1986, opinion and order, it ruled that summary disposition based upon the pleadings was inappropriate on this count. Subsequently, defendants moved for summary disposition on this question under MCR 2.116(C)(10), which was granted on October 20, 1986. Motions brought under MCR 2.116(C)(10) ask the court to test the factual foundation of plaintiffs' claim. Abel v Eli Lilly & Co, 418 Mich 311, 322; 343 NW2d 164 (1984), reh den 419 Mich 1201 (1984), cert den 469 US 833; 105 S Ct 123; 83 L Ed 2d 65 (1984). In granting a motion for summary disposition pursuant to this court rule, the court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome. Rizzo v Kretschmer, 389 Mich 363, 371; 207 NW2d 316 (1973). States are prohibited from enacting bills of attainder under art 1, § 10 of the United States Constitution. Additionally, the Michigan Constitution of 1963 provides in art 1, § 10 that no bill of attainder shall be enacted. A legislative act that applies to either named individuals or to easily ascertainable members of a group so as to punish them without a judicial trial is a bill of attainder. United States v Lovett, 328 US 303; 66 S Ct 1073; 90 L Ed 1252 (1946). It is essential to the success of a plaintiff's claim that the termination of benefits under the subject statute be validly characterized as "punishment" in the constitutional sense. Whether a legislative action amounts to punishment depends upon the attendant circumstances and the causes of the deprivation. Garner v Bd of Public Works of City of Los Angeles, 341 US 716; 306 71 S Ct 909; 95 L Ed 1317 (1951), reh den 342 US 843; 72 S Ct 21; 96 L Ed 637 (1951). In Selective Service System v Minnesota Public Interest Research Group, 468 US 841, 852; 104 S Ct 3348; 82 L Ed 2d 632 (1984), the United States Supreme Court outlined three specific inquiries necessary to a determination whether a statute inflicts forbidden punishment: (1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, "viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes"; and (3) whether the legislative record "evinces a congressional intent to punish." Applying this analytic framework to the instant case shows that plaintiffs' claim fails as a matter of law. First, plaintiffs have not been "punished" within the meaning of the constitution. While plaintiffs may have had legitimate expectations of continued employment as hearing referees, Act 103 does not deprive them of their civil service status. Civil Service Comm, supra at 623. Second, Act 103 reasonably can be said to further nonpunitive legislative purposes. As Justice LEVIN wrote, the "Legislature sought thereby to reduce the delay in adjudicating workers' compensation claims, which had been attributed to a large backlog in the WCAB resulting from the appeal of seventy-five to eighty-five percent of referee awards." Civil Service Comm, supra at 577. Third, the legislative history does not evidence an intent to punish. An excerpted statement quoted in plaintiffs' brief is a summary of arguments both for and against the legislation. We find this insufficient to establish a legislative intention to punish so as to render Act 103 a bill of attainder. Accordingly, the 307 circuit court did not err in granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(10) on this issue. Finally, plaintiffs contend that the circuit court erred in denying plaintiffs' motion to compel pretrial discovery. Plaintiffs sought to depose Elizabeth Howe, the Director of the Department of Labor, and Kalmin D. Smith, a labor analyst for the House Republican Caucus. Plaintiffs claim here that they sought to depose Smith to obtain a complete history of Act 103 in order to ascertain legislative intent. In their memorandum in support of their motion to compel discovery, however, plaintiffs explained that the information sought from Smith was "believed to bear directly on the partisan considerations motivating removal of plaintiffs' jobs from the classified civil service." It appears, then, that plaintiffs sought to discover legislative motive as opposed to legislative intent. The circuit court denied plaintiffs' motion to compel discovery and granted defendants' motion for a protective order in an opinion and order issued October 19, 1985. The circuit court concluded that the information sought to be discovered was not relevant to plaintiffs' claim and was not subject to discovery under MCR 2.302(B)(1). Further, the circuit court remained unpersuaded that the motives of the Legislature were at issue under plaintiffs' theory that the Legislature acted in bad faith and abolished their positions for partisan political considerations, citing this Court's decision in Sheffield Development Co v City of Troy, 99 Mich App 527, 530-533; 298 NW2d 23 (1980). The circuit court determined that plaintiffs failed to present any of the circumstances outlined in Sheffield that justify inquiry into legislative motives. The Sheffield Court held that the motive of the Legislature may be examined when fraud, 308 personal interest or corruption is alleged in the complaint. Sheffield, supra at 531. The circuit court also rejected plaintiffs' claim that Act 103 is the product of bad faith and partisan political considerations which justify inquiry into legislative motive, stating that "partisan political considerations often play a legitimate role in the adoption of legislation." We believe the circuit court's denial of plaintiffs' motion to compel discovery was appropriate. The trial judge's resolution of this question was thoughtful and well reasoned. The circuit court's decision is consistent with this Court's decision in Sheffield. Judicial review of legislative enactments is limited by the separation of powers doctrine. As our Supreme Court noted in Civil Service Comm, supra at 626, the "Legislature is not powerless to eliminate a position in government once it is established." With this in mind, the circuit court did not abuse its discretion by denying plaintiffs' motion to compel discovery. We affirm the circuit court's October 20, 1986, judgment. Accordingly, plaintiffs' constitutional challenge to §§ 206 and 213 of 1985 PA 103 is dismissed. Affirmed. NOTES [*] Circuit judge, sitting on the Court of Appeals by assignment.	{ "pile_set_name": "FreeLaw" }
COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Dear Abel Acosta, March 6, 2015 (CCA), Clerk, RE: EX PARTE ARTHUR DAVID LOWS, WR-25,679-22; CAUSE No.659154-B Please find enclos~d Applicant's Original Application for Writ of Habeas Corpus, in your official records-wR-25,679-22. referred to and supplying a ~opy here-with. Being Applicant is unable to make ciDpies. Being incarcerated (TDCJ-ID), Texas Department of Criminal Justice-Institutional Division, at the Hughes Unit. NO offender{s), are perm~t~d to make copies. nor is there any copy unit supplied for Offender(s) use. Please filed the same and pre- sent to the Court th~ !Motion For Reconsideration', in reference to the above Writ Numb~r and Cause Number. Being this Motion and Re~ cords to the attention of the H~norable Justic~ of the Court's attention. And Please, up-date me on any actions taken. I, truly appreci~te your consideration ... THANK YOU ... May GOD Bless Yuo, Yuor Family and Friends. Sincerely Wzi!zw1 d&J.Jt ARTHUR DAVID LOWE#669750 HUGHES UNIT. RT. 2. BOX 4400. GATESVILLE, TEXAS 76597 REC!E~VED IN COURT OF CRIMINAL APPEALS ~AR 09 2015 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WR-25,679-22; CAUSE No.659154-B EX PARTE ARTHUR DAVID LOWE § IN.THE 339TH DISTRICT COURT Applicant, v. § OF THE STATE: OF TEXAS § HARRIS COUNTY, TEXAS Representative(s), ASSISTANT. DISTRICT ATTORNEY, [Sharon Y. Chu], Respondant. § MOTION FOR RECONSIDERATION TO TBE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:~ NOW COMES, Arthur D·avid Lowe, [J:leteinafter referred to as Appli- cant}, and respectfully, submits this •Motion For Reconsideration'. And will show the following: [APPLICANT IS ILLEGALLY RESTRAINE~] Applicant was convicted by a jury, On October 25, 1993, and Sen~' ·tenced October 28, 1993. To [LIFE]--In the Texas Department of Crim- inal Justice-Institutional Diyision (TDCJ-ID), Formerly the Texas De- partment Of Corrections. I On January 19, 1995, the First Court of Appeals affirmed Applic- ant's appeal. Lowe v. State, 01-93-0~985-CR, 1995 WL 19052 (Tex. App~- Houston [lst. Dist.] Jan. 19* 1995»(mem. Op., not designated for pub- lication). 1 .II Applicant filed an initial Application for Writ of Habeas Corpus challenging the convictton. Cause No.659154-A.the trial Court On the 'State's Original Answer and Findings of Facts and Conclusions of Law and Orders.'-Adopted the State's Assistant District Attorney's Proposed Findings and Order~ by signing the [same]. That effective~. iy [DISPOSED] -ALL Appl'icant 's cl~aims [WITHOUT CONSIDERATION], and ALL the 'Motions' filed with the initial Application for Writ of Ha- beas Corpus; presented with supported certified records and affida~ vits. JL[][ Pursuant to Texas Code Criminal Procedure Ann. article 11.07 (Ver- non Supp. 1993 & 201-3). The Harris County, District Clerk, as Ordered by and through the State's Assistant District Attorney [Sharon Y. Chu] I in accordence with Section 3(c), forwarded limited records, filed in the Habeas Corpus proceeding. IV The Texas Suprem~ Court of Criminal Appeals, On ['December 18, 2013] [DENIED WITHOUT WRITTEN ORDER] Applicant's initial Ap~lication for Writ of H~beas Corpus. v After the final disposition of Applicant's First Application for Writ of Habeas Corpus [December 18, 2013]. Applicant came in knowledge that the trial Court was not afforded 2 to consider Applicant's ~s~parate Memorandum' with attached certifi- ed records and affidavits, and Mot~ohs', in support of his claims. Theref6re,. Applicant refiled the 'Motion Reformation Aggravated kidnapping Judgment.' T~~ records reflect that, the trial Court rece~ ived, the 'Motion' On April 14, 2014, and On [April 21, 2014], the trial Court [GRANTED], Applicant's 'Motion', and made Orders ·'NUNC PRO TUNC'~\~earing and further Orders the Correction of Applicant's 'JUDGMENT AND SENTENCE'. Conducting such hearing ALL in Applicant's [ABSENCE]. Actions taken in Violation of Statutory provision. See Tex.Code Crim. Proc. Ann. art. 42.03, §l(a)(Vernon Supp. 20l~)[Sen- tence sh~ll be pronounced in the Defendant's Presence]. VI The trial Court· actionsiri:n [GRANTING], Applicant's 'Motion' was to conform with the'Jury's Actual Verdict'to the 'Special Issue' pur- suant to T~X.PENAL CODE ANN. §20~04(b)(Vernon 1993); See also Williams V. State, 851 S.W. 2d 282 (Tex. Crim. App. 1993)(AS A MATTERQF LAW]. VII In the instant case, the records unequivocally reflect the trial Court's Order Correction of Applicant's 'JUDGMENT AND SENTENCE' from ) the egregious entry in the Original 'Judgment and Sentence' of [Pir~t Degree Aggravated kidnapp;i·ng Judgment] the trial Court made the law- ful Correction to Applicant's 'JUDGMENT AD SENTENCE'--Reduced the Off- ense to [SECOND DEGREE AGGRAVATED KIDNAPPING]--The records NOW being Corrected by the trial Court reflect 'SECGND DEGREE AGGRAVATED KIDNAPP:::--· 3 lNG RELEASE VICTIM IN .A SAFE PLACE]: See TEX.PENAL CODE ANN. §20.04{b) (Vernon 1993); See also TEX.PENAL CODE ANN. §12.33 [Second Degree Pun-- ishment]. Compared to TEX.PENAL CODE ANN. §12.32 [First Degree Punish- ment]. The trial Court Ordered the Correction of Applicant 'JUDGMENT AND SENTENCE" the Orders Reduced the Offense to"Second Degree Aggravated Kidnapping'. However, Applicant remain under Sentence [LIFE]. VIII The trial'Court ERRED in signing--Adopted the State's Original Ans- ' wer and Proposed Finding of F~cts and Concl~sions of. Law and Order. T~ [DISMISS]--Applicant's Applicati6n for Writ of Habeas Corpus as none- compliance with Article 11.07, §4. Whereas, the records.reflect and ~pplicant Application for Writ of Habeas Corpus, aTht~ough being a Second Application for Writ of Habeas Corpus, the trial Court [GRANTED] Applicant 'Motion• On [April 21, 2014] Corrected Applicant's 'JUDGMENT AND SENTENCE' Reduced the Offense from lst Degree Aggravated Kidnapping [TO] 2nd Degree Aggravated Kidnapping. The [GRANTING] of Applicant's 'Motion• and Correction of records in Reduced Applicant's 'JUDGMENT AND SENTENCE" occurred [AFTER]--the final [DISPOSITION] of the initial Application On [December 18, 2013]. There- fore, the ~urrent claim was not and could not have been presented in the initial Application for Writ of Habeas Corpus, because the fact- ual and legal basis for the claim was unavailable on the date dispos- ition of Applicant First Application [DENID]--December 18, 2013. The current claim became an issue for legal basis On April 21, 2014. In 4 addressing wh~ther the instant Application is barred as a 'Subse- quent Application' Under Section 4, Or whether if it falls within an exception, 6f:.Section, 4(a)(l), provides; (a) 'If a subsequent application for writ of habeas corpus, if fil- ~· ed after final disposition of an initial application, challeng- ing the same conviction; a court may not consider the merits of or grant relief based on the subsequent application; 'unless thE); apfi,.iib~tibri'' c6i.tiiifi's·~ sti£tit'i~rit ;_facts establishing that; (1) 'the current claim and issue have not and could not have been presented previously in an original application or a pre- viously considered application under this Article because the "factual or legal basis for the:.cliiim was unavailable on, the date the applicant filed the previous application[.] (c)'for the purpose of subsection (a)(l), a factual basis of a Claim is unavailable on or about a date described by subsection (a)(l) the f~ttual basis was rtot asertainable through the exer~' cise of re~sonable diligence on or before the date. TEX.CODE CRIM. PROC. ANN. art. 11.07, §4(a)(l), Thu$ the court's are barred from considering the merits of an applicant's application, 'Un- less the facts:givill'llg rise to the claim, made in the instant Applica- tion could not hawe been presented in the initial Application because they were "not asertainable through the exercise of reasonable dili- gence on or before the date of the initial Application.• In the instant AppJication for Writ of Habeas Corpus, the records 5 unequivocally reflect, and' as Applicant has demoristrated above and the referred to Application for Writ of Habeas Corpus.shows that the current claim was not and could not have been presented in the initi- al Application for Writ of H~beas Corpus. {DENIED][DECEMBER 18, 2013]~ The Claims being raised in the instant Application for Writ of Habeas Corpus--WR-25,679-22, Cause No.659154-B. was not available for any factual or legal basis to be raised for consideration until [APRIL 21, 2014]. 6 .. make Orders to comply with Statutory provision. See Tex.Code Crim. Proc. Ann. art. 42.03, §l(a)(Vernon 2014)[the Sentence shall be Pro- nouced in the Defendant's Presence]. **IJ;iJ,this case [The Sentence has NOT been Pronouced i1111 ([Applicant's]) Presence]. Applicant is entitle to Due Process Rights and Due Course of Law, as well as a Constitutional Right to have the Sentence in which He is to serve Pronuonced in His Presence. ORAL PRONOUNCEMENT OF SENTENCE The trial Court's Ordered 'NUNC PRO TUNC' 'CORRECTION' of Applicant's 'JUDGMENT AND SENTENCE'. In Applicant's [ABSENCE]. Applicant have a Due Process Right to have the Sentence Orally Pronounced in His Presence. See Marshall v. State, 860 s.w. 2d 142 (Tex. App.-Dallas 1993, no pet); Ex parte Madding, 70 s.w. 3d 131 (Tex. Cri~. App. 2002)~Taylor V. State, 131 s.w. 3d 500 (Tex. Crim. App. 2004)(citing Tex.Code Crim. Proc. Ann. art. 42.03, §I(a)(Vernoll1l 2006). The trial Court's Orders 'NUNC PRO TUNC' hearing reflects that the trial Court presiding Judge Corrected Applicant's 'JUDGMENT AND SEN- TENCE'. Pursuant to TEX.P.EJNIAL CODE ANNr.;_§20 .• 04.(bi)(Vernon Supp. 1993 § 2014). See also Hughes V. State, 493 S.w.· 2d 166, 170 (Tex. Crim. A:pp. 1973)("A judgment may be reformed so as to show the offense of which the accused was found guilty by the court or Jury) s:ee 9-lso Ex Parte Philip, 176 S.W._.3d 818 (Tex.- Crim. App. 2005)["The expectation of having the oral prouncement match the written judgment applies to sentencing issues, as the term of confinement assessed and whether 7 multiple sentence would be s~rved concurrently"). It is ERROR for the trial Court to enter Orders 'NUNC PRO TNC' hearing Correction of Applicant's 'JUDGMENT AND SENTENCE' without affording Applicant an opporunity to be at the hearing, sentencing, represented by Counsel in avvord to Applicant's Due Process of Law. See Shaw V. State, 539 s.w. 2d 887 (Tex. Cr. App. 1976). In Mitchell v. State, 942 s.w. 2d 170 (Tex. App.-Amerillo, 1997) ("the appellant court, held that, when valid judgment of conviction for first degree felony offense was not nunc pro tunc judgment, but merely a correction made during th~ term time, was ho requirement for netic~, hearing and proof in defendant's presence"). Whereas, In Vallez V. S'tate, 21 s.w. 3d 778 (Tex. App-San Antonio 2000) (''entry of nunc pro tunc judgment indicated that defendant's three controll- ed substance prosecuting has not been conso~idated for plea apd seh- tencing, was ERROR, where .defendant was not given opportunty to be present ~t the hea~ing and be hea~d and represented by counsel, to accord him due process")~ ON FEDERAL REVIEW A defendnat is constitutional entitled .to due process, at a bare minimu~, due process requires that a defendant be give notice if the punishment to which he has been sentenced. See e.g.,Landford v. Idaho, 500 u.s. 110, 111 s.ct. 1723 (199l)("[A] notice of issue to be resol- ved by the adverary process is a fundamental charactisic of fair pro- cedure:);Baldwin V. Hale, 68 u.s. 68, 233. I. well (1863)([C]ommon justice requires that no man be condemned in his person or property 8 withb~i notice and an opproturiity to make his defense'') ;In re oliver, 333 u.s. 257, 68 s.ct. 499 (1945)(due process requires that a per- son be given reasonable notice of a charge aganist him1 and an op- portunity to examine the witnesses ~gainst him to offer testimony/ to be represented by counsel);e.g.,doweney v. United States, 67 App. 192, 91 F.3d 233, 239 (1937)(~changes in the records of judgment made without notice to defendant or oppo~tun~y to be heard would deprive person of liberty without due process of law; [P]roceeding in absence of appellant to correct the record would have been improper/ sence the ulimate question involved/ extent of a valid imprisonment which he might be subjected/ was one of vital interest. to him'');United States v.~Spiers, 82 F.3d 1274, 1282 (3d Cir. 1996)(bec~use had no- tice and was prese~t in court-room rights were not effected by the failu~e to give effect to a complete defense to prosecution. See FED. R. CRIM. P. 43/ [Defendant shall be Present during the Pronouncement of Sentence]; See also United States v. Vega, 332 F.3d 849, 852 (5th Cir. 2003); FED.R. CRIM. P. 43{a) (3) ( ~reguiring the defendant ...be present at sentencing~)~ th[is] Constitutional Right ... is rooted to a large extent in the Confrontation Clause of the Sixth Amendmant1 but ... is [also] protected by the Due Process clause in some situa- tions. Where the defendant is not. actually confronting witnesses or evidence against him''); See United States v. Gagnon, 470 u.s. 522, 526, 105 s.ct. 1482 (1985)(internal citation omitted). There~ore1 if the written judgment conflicts with the sentence pro- riounced at sentencing/ the pronouncement cbntrols. See United States 9 v. Martinez, 254 F.3d 941, 942 (5th Cir. 2000). If, :however, the dif- ference between the two is only an determine the sentence. See United States v. Warden, 291 F~3d 363, 365 (5th Cir.), cert. denied. 537 u. s. 935, 123 s.ct. 35 {2000). In this instant case, reaching this conclusion, on the States level. TEX.COJI)E CRIM. PROC. ANN. art. 42.03, §l(a)(Vernon 2014);Abon v. State, 997 s.w. 2d 281, 282 (Tex. App.-Dall.as 1998)(A Defendant has a Constitutional Right to be Pres~nt at Sentence):Aguilar V. State, 202 s.w. 3d 840, 843 {Tex. App.-Waco [lOth Dist], 2006)(Art- icl~ 42.03, Sectibn l(a), of the Texas0Cod~~Crimina~-Procedure, pro- vides~ that "Sentenc~ sha11 be pronounced in the D~fendant's Presence." TEX.CODE CRIM. PROC. ANN. art. 42.03, §l(a)(Vernon supp. 2005), [2] When th~ defendant is convicted of more than one offense in th~ same proceeding, the court must pronounce whether the sentence will run concurrently or consecutively. See id. art. 42.08 (Vernon Supp. 2005). See also Blakely V. Washington, 542 U.S. 296, 124 S.Ct. 2531 {2005). Therefore, based on the records of the 'NUNC' PRO-'TUNC!, hearing pro- ceeding, [A]LL in Applicant's [ABSENCE]. Corrected the 'JUDGMENT AND SENTENCE'. Is ERROR on a magnitude .that Violates Applicant's Due Pro- cess of Law, to hold such a· hearing wit h'out Appl it ant being present, to afford the opportunity to be represented by Counsel, in accord to Applicant's Due caurse: of Law ... [this actual] 'Nunc Pro Tunc •, hear- ing in open Court where the presiding Judge the Honorable [Maria T. (Terri) Jackson of the 339th District Court can only be found on the r Court's actual minutes, because the Deputy Clerk [L. Guevara], DID 10 NOT filed the ~cfual Ord~ra,1by the trial Court. However, the Cor- rection of Applicant's 'JUDGMENT AND SENTENCE' can also be found in the official records o£ the Court of Criminal Appeals, Clerk'. The {CCA), Order On July 28, 2014 [Supplemental to the Court Clerk's of- fic.ial records]. See WR-25,679-15. Thus, the Court should follow the well-settled law set-out in Vasquez, because it violates a defendant's Constitutional Rights to Due Process and due Caurse of Law, to Orally Pronuonce Sentence· to Him and then later without giving Applicant an opportunity to be hear- ed, enter a written judgment imposing a significant harsher Sentence. See Ex parte Vasquez, 712 s.w. 2d 754 (Tex. Crim. App. 1975). CONCLUSION OF PRAYER WHEREFORE, PREMISES, CONSIDERED, Applicant prays this Honorable Ccutt of Criminal Appeals, ~ustice, ,Reconsider each and every point raised herein and take the appropriate legal actibns, as the la~ and justice requires, in protection of Applicant's Due Process Rights, and Due Course of Law, ThuS~~this ERROR being on Constitutional Rights, that the court should NOT just turn a blind eye. The Sentence should be Pronounce, in Applicant's Presence. Respectfully Submitted f21tAwJ dome ARTHUR DAVID LOWE#669750 HUGHES UNIT. RT. 2. BOX 4400 GATESVILLE, TEXAS 76597 CERTIFICATE OF SERVICE I, Arthur David Lowe, being thec·Applicant herein, and hereby certify 11 that the foregoing•Motion for reconsideration' and 'Exhibits append- ed . with!1this 'Motion' herein, has been delivered by U.S. Postal service. To the Court oL Criminal Appeals, and I SWARE UNDER PENITLY OF PERJURY, that ALL the contents and statements made herein and Ex- hibits are T~DE and CORRECT. and that this Honorable Court can verify the same. I filed and submits this to this Court, for Reconsideration. On this ___,b__ , day of ~~'~:.L.JA..r:::..-tC-~~-·_ , 2015 . Respectfully Submitted Ctti!J11/J ~ ARTHUR DAVID LOWE#669750 HUGHES UNIT. RT. 2. BOX 4400 GATESVILLE, TEXAS 76597 12 the above captured cause numer. On this __fa__ , day of _11_,_1\.....:..I{L~C~H__ 2 015 . I Respectfully Submitted /};tJ!Jw d~ ARTHUR DAVID LOWE#669750 HUGHES UNIT. RT. 2. BOX 4400 GATESVILLE, TEXAS 76597 MASTER INDEX 'EXHIBXTS' No. Vol 2 Trial Court's Oder Corrected Judgment and Sentence 2 1 of 2 Judgment and Sentence 2 1 The1 339th Deputy Clerk [ L. Guevara], altered Orders &·: 1 1 of 2 Judgmeht arid Seritence 2 1 The Jury's Actual Verdict On •·special Issue' Form 1 1 District Clerk's acknowledgment of [Disp~sition of 1 initial Applicanion for Writ of habeas Corpus. Respectfully Submitted &thwJ dOL<tt. ARTHUR DAVID LOWE#669750 Pro Se. 13 I CHRIS DANIEL I 1 HARRIS COUNTY DISTRICT CLERK I ~ . ~ Direct Dial Line: l :'fJ'~OFi~~ I ARTH~RLOWE #669750 . HUGHfSUNIT I I l .1 RT. 2. BOX 4400 I 1 GATESVILLE, TX 76597 . J-······· Dear 1 • LOWE, · I:8J Y lur motion/request NUNC PRO TUNC was filed with the District Clerk and on o4121114 the Court: I D Took no aCtion D Denied your Motion/Request [g1 Granted your motion/request l 1 l D Took action D Advised attorney of record 0 Other l l I:8J 0 her: PLEASE FIND ATTACHED A COPY OF THE CORRECTED JUDGMENT AND SENTENCE. ALSO, OUR RECORDS HAVE BEEN CORRECTED TO i l REFLECT 2N° DEGREE FELONY - AGGRAVATED KIDNAPPING RELEASE VICTIM IN A SAFE PLACE. l I By: P.O. BOX ;4651 • .HOUSTON, TEXAS 77210-4651 • (713) 755-5749 · l . . . . . . . . . a·~-~f HA..v;;,····... ,· ~ .4·~······ \5' "' • · /.~.J·'u....· ·. ."....._. -~· :,.v·: a ,.--._ • . ~\ . •: .,. • ...,. : . i .. "'-'" ....... . ~! . ! -..~. ~ - . .... : ~ ~- ·: ::;.-.~.. .• ·~ : '1. ......~'~··············~ .: •. l 1 ·-I.~ (J 'tl s ..·· ·············~··· I, Chris Daniel District Clerk of Hams County, Texas certify that this is a true ~d correct c6py of the original record filed and or I recordedt· my office. electronically or hard copy, as i appears on this date. I Witness this official hand and seal of office May 2. 2014 · l Certified E>ocwnent Nwnber: 60519986 I I ~~ DJeL Chris DISTRICT CLERK HARRIS CbUNTY, TEXAS ) In accordance with Texas Government Code 406.013 electronically 1ransmitted authenticated documents are valid. H there is a question regarding the validity of this document and or seal please e-mail [email protected] · \ \ itECiJHIJElrs MEMORANDUM: rl1i=-.. instrume!H is Of !)IIOf {jllillity and 1lflt ;u1t.i5fdt:tory ft•r ph(t¥Jgraphic (ii) n;c!;rd;~thm; ;,n~fi;lr :~l:.~r;~tinrls we1e pn!'5enl r:t th~~ tir.1~ ~,! r;lnllnl{. &Jfff0£Ct~ /!)·'f .UU NC. 1'Qo I{_;JJ(_ GIJTt'( D~i?l). 4 \ll \zolt <,- 6 t( <-1 I t: ~ NO. ______________________ ___ THE STATE OF TEXAS IN THE }]1 DISTRICT vs. COURT OF HARRIS COUNTY, TEXAS Change of Venue From: _____ ~-;'~,~~~j4-·-------- ~ ON JURY ~ICT OP GUILTY PUNISBMEHT FIXED BY COUR~ OR JURY Judge Presidi~g: LA£1"'~( {Jf fl;r Date of Judgment: tlc fob f.'r J.-3 (9 'i3 Attorney Attorney for State: ·f<../2'2-6 for Defendant: ) Waived Counsel Offense: A1j I •1 ~( ·1 Iv t-1 .f I~)'"' If' (~1 J \ Degree: ·;. iJ Date Offense . Committed: IM "'··· I f" .,, - {!1 L/ / '113 ------------------~~~--------------------------~~----------~--------en Charging -... (.n Instrument: Indictment/~Afe~atiap Plea to Enhancement Findings on Paragraph( e): ff -f 6 Enhancement: ~~~ Affirmative Findings: (Cin:le appropriat.e odccUon:... N/A =Dill available or DDl.q,plicab DEADLY WEAPON: Yes :No /A) FAMILY VIOLENCE: Yes :No :(H/A , HATE Date Sentencef\ll 1,-,r. 0. '"'0..., ~ 1 fV1 CT\ Punishment Imposed: . 6A.J0rd:: ~ ::Jt> 1/lfT) costs: ·y l L'\...f ,:::t.J Assessed by: Punishment and lt fe. Itu..-PYI SCll.fYlt2./1:{ /Fine <P Date to {Jf f_t{)· e.'/V7.( ?~./1. r; 'f. Place of Confinement: J0(::J ( D . Commence: . ",_;/'(. r Total Amount of Time Credited: ~.3 ~ cLQ.t.,.. Restitution/Reparation/Reward: concurrent Unless Otherwia·e Restitution/Reward o be Paid to: Name:.~------~--~~----------~ Address: __________~--------------- Statement of Amount of Payment{&) required/Terms of Amount=----------------,L------------~~ 4 I TbUo cauoe being c:allcd for trial. lhe StaLe appeared bylbe above named aaomcy, ODd lhe defcadallt ap~ iJI penon in open court, lbc abovJ named c.,......l for Ocfcndaal abo being pn:K111, or wbcr:: • ckfcnd.an! ia ""' repr: .. nted l,y c~'Unsel, lhe Dcfcnd.alllla!owingly. intcmeenlly, and voluntarily • to waived lhe right to ~q>n:acntation by counsel u indicated above, ODd lbe aaid Defendant bovina beeo duly arnigncd ODd it appearing the Court lbat Dcfcndalll waa mentally competent and baving pleaded u lhowu abOve to lhe cba!Jing instrumclll, bolb partia annoua&:ed """'for trial and lbcn:upoa a jury, ~wit, lhe above named f<mmaJ> and elcvcu olben·woa duly seleetcd, impaoelcd, ODd awom, the jury bovine beardlbe oba<Jing instrument read ODd lbe Defendant" a plea lbercto and baving bean! the evidcuce aubmincd ODd baviug beeo duly obarJCd by the Court, Rliled iJ1 clwge of lbe proper offiCer to consider lbe verdict, and. aft.erward were brought into Court by the proper oftker,the Dcfendaat ODd ckfendaat"a counsel, if auy, beirlg prcacut, ODd I'CIUI1ICd into open court lbe verdict oct forth above, which waa received by lbe Court and ia here aow cnt.ercd upon lbc minuLea of lbe Court u ahowllobove. 0n . \)); t a.Joey .. C:F6 ,19 Q~ the o.rcndan1bavu.nn:viously ele<:Led to bave punilhmcnt aueaacd by the above ahowo aaaenor of plllliahmcnt, ODd when lbowo above lbat the oba'IPna imlnlmcut cOIIIainl cultaa&:emctit pangnoph(a), whieb were not waived ODd allegct Dcfcndanl to bave beeo convicted __ ·_J__w__:'<-.L ___________,rcvioully of any felony or offeaaeo for lbc purpoae of enbanl:emelll of punilhmcnt. the Court aaked Dcfeadanl if web aUegationa were true or faloc ODd Dcfcadant aJDWercd u abowa above. And when Defendant ia shOWD above to bave elecLed to have lbe jiny ....,.. puailhment, aueb.jury wu called baek into the box ODd bean! evidcoc:e relative to lhe question of punilhmcnt and bavingbeen duly ebarged by lbe Court; they retired to coDJider aueb question and after bavia& dclibentcd lbey rclumed. into Court the verdictlhowa under punishiiiCDl above; and wbcn Defcndonl ia shOWD above to bave elected to bave puniahmcnllixal by the Court. iJI due form of taw fUrther evidence waa heard by lhe Court relative to the question of punishmcnl ODd the Court r.X..S puniJhmcnl of lhe Dcfcadallt u showa above. . IT· IS. THEREFORE, CONSIDERED AND ORDERED by the Court. iJithe presence oflhe Dcfendont.lbat the aaid judgmcut be and lhe aame is hereby iJI aU things approved ODd confirmed. ODd lbat lbe Defcndonl ia adjudaed guilty of lbe offenx aet forth above u found by lbc verdict of the jury, and said Defcndonl be punished iJI acco~·tb the Jill}' verdkt or lhe Court"o finding, u shown above and lbat lbe Defendonl ia aent.em:ed to a Lenn of impriaoruncnt ~ • '\''- or line or bolb. as aet forth abov • · lbat lhe aaid ~fcndanl be cklivercd by the Sheriff to lbe Director of lhe Texaa Departmenl of Criminal Juati<e, Institution Diviaioa, or other penon legally authorized 10 receive web ~nvicta for lhe puniahmenl aaaeued herein, ODd lbe aaid Defe~m shall be confined f<?r the obove named term iJI accordaa&:e with the provisiona of law governing web punishmcnlll ODd execution may iuue as neceuary. Further, lhe court linda the Presentence lnveatigation, if 10 ordered, was done according to lhe applicable jnoviaioaa'of Art. 41.12. Sec. 9, Code of Crimiaal Procedure. AND lbe aaid DefcO.Illnl waa n:manded to jail until aaid Sheriff can obey lbe directiona of lbia jud,.;.c.n. Plea Before Jury - Court/Jury Assessing Punisturient CRM-"4 Rl0-07-93 Page 1 ** TO BE COMPLETED ONLY WHEN IMPOSITION OF SENTENCE _SUSPENDED AND DEFENDANT GRANTED . PROBATION • ••( I Ou lhia·lhe - - - - - - day of - - - - - - - ' - - - ' - - - - - ' 19_..---.....:... impolilion of lhia ICIIICDCe ilmipCIIded and ~-.~ ----· defendant ia plaeed oo Adult Plobatioo for --'------.:.>·yean pendU..bia abidUJa by_ and - v~ lho tcrma and oonditiooa of probation, approved by lhia court aad &lladied u a part of lhia jud,_..s baewith. BILL 0.-P C 0 S T. S Payment· Type: _ _ (S, ';:--o,":-M-ar L:) (NOTE: If. •I•. or •o• see attac~ed order) 1 Jail Time: _ B/D/M/Y ~-/H~ ~aYes N=N_o _(jail/fine/eclat concurrent) I Time Assessed Texas Department cf Crimina1-.r~ce,Institutional Div.: _ D/M/YI Jail credit: _ B/D/M/Y Sentence~egin Date: 1 Jail as a Term of Probation: _ _ _ _ B/D/M/Y Additional~il Credit: _8/D/M/YI Payable on or Before: · PLO: Reward _SPR:·...., OOC: I Hours -of sentence to be Served by Performing""~tnlnunity Service : Defendant to Serve sentence by Electronic Monitoring? (Y or R): · ·. l NOTE TO SHERIFF: I Transcript at: Pages........ . I Crime Stoppers Fee ••••••• ·I 2 I 001 serving Capiaaz ___ /Summonaz _ _ _ •• I Jury Fee •••••••• ~........ I OJO lOCi I Sununoning___Witneaa/Mileage •••• ~.... s-k.X> CJPF· •••••••• , ... ~....... 20 I 00 I Jury Fee ................ " • ·• • • • .. • .. • .. 1 LEOSEF.••••••••••••••• • •• • 1 I SO I Takirig: Bonds •••• -~·-............... I cVCF: ~--••••••••••••••• •... 00 I aS>: C.;mmi.tme~ •.• ~ •••.••• ~ •••• ·• • • • • . . • • I DCLCF ••••• _. • • • • • • • • • • • • • • I I Release • ••••••••• ·• • • • • • • • • • • • • • • • • • • • • I JCTF •• ~ • ~ ••••••••• -~ • • • • • • 1 I .00 I Attachment·.•••• ~ •••••• ~............... I Video Fee •••••••••••••• ·•• J ·Arrest W/0 Warrant/Capias •••••• ·••••••• I DWI .Evaluation Pee....... l -------------- RECAPITULATION --------- - - - - - - - - 1 Reward Repayment. • • • • • • • • I I Fine Amount •••••••••••• ~- ••• ·••••••••••• I Security Pee ••••••• ~..... --5-j~OI- Miscellaneous coats •••••••••;. •........ I Record11 Preservation Fee. --,16-f-66-l • 1 Judicial Fund Fee • ._.................... I ACCA ••••••••••••• ~....... I I - Special Expense ••••••••• ~............. I Financial Responsibility. c Trial Fee .••••••••••••• ~ ••••• ~........ I I PTR Pee •••••••••••••••.•• ( District Attorney Fee ••••••••••• ·•••••• I I Attorney Fee •• • •••••••••• Clerk's Fee •• ~........................ 40 1 001 Breath Alcohol T~ating ••• I I • Sheriff's Fees (Total)................ ~~()I Rehabilitation Fund •••••• I I ( Misdemeanor Costa..................... I Amount Probated/Waived ••• I I . I I· ( MAP Traffic coats..................... I TOTAL AMOuNT OWED •••••••• /01.~~-~ signed and entered this the Notice of Appeal:- Probation Expires: Mandate Received: After Mandate Received, Sentence to Begin Date is: (Otoclt ONLY iC Applicable) . I I DcCcodanlto be plaeed in lhc ~S.A.I.P. • (Boot Camp) program in lhc Tcxaa.Dcpartmeat of Criminal Jullk:c, 'lnllituu.;,.l Diviaion pcnualllto Art. 62.03 (c)-9 Rcviaod Statu!co/.Micle 42.11, Scdioo 8, C.C.P. Received on _____ day of-----------------' A.D., 19____ at ------- o'clock____M. Sheriff, Barris County, Texas c c Verified._________ -I ~--~-------------- Defendant's Right Thumbprint ~~-4 Rl0-07-93 -2- Cause No. 0659.15601010 The State of Texas v. LOWE, ARTHUR DAVID a/k/a In the 339TH District Court or County Criminal Court at Law No. _ _ Harris County, Texas ENTRY OF JUDGMENT NUNC PRO TUNC Today, the Court held a hearing on 0 .the State's written motion for judgment nunc pro tunc. ~ the Defendant's written motion for judgment nunc pro tunc. 0 its own motion. Satisfied from its own recollection and I or from the evidence presented the Court grants the motion and ORDERS entry of the following judgment in the minutes of the cburt in the above styled and numbered case to make the following correction: 1-IOFFENSE FOR WHICH DEFENDANTCONVICTEDSHOULDREAD: AbGRA VATED KJDNAPPING RELEASE VICTIM IN A SAFE PLACE Cl 00714) 2-IDEGREE OF OFFENSE SHOULD READ: 2N° DEGREE FELONY. f8l If applicable, the judgment nunc pro tunc supersedes the erroneous judgment previously entered and attached. l ! CASE No. 065915601010 INCIDENT NO./TRN: 9000184029-AOOI ,,§ IN THE 339TH DISTRICT § v. § COURT § LOWE,.~T 1URDAVID § HARRIS COUNTY, TExAs I § STATE ID No.: TX02465170 I § JUDGMENT OF CONVICTION BY JURY 1\ Judge Presiding: I · HON. CAPRICE COSPER Date Judgment Entered: 10/22/1993 Attorney for Statej I DAN RIZZO Attorney for JIM RUST Defendant: Offense for which Defendant Convicted: AGGRAVA!fED KIDNAPPING RELEASE VICTIM IN A SAFE PLACE (100714) Charging Instrument: INDICTMENT Statute for Offense: NIA II ' D~te 3/4/1993 ofOffen§e: I l DeK!ee of OffenseJ 2ND DEGREE; FELONY Plea to Offense: NOT GUILTY l l i Verdict of Jurv: Findine-s on Deadlv Weapon: l! GUILTY I N/A l Plea to 151 Enhanc4ment Plea to 2"d Enhancement/Habitual 1 Paragraph: I NOT TRUE Paragraph: NOT TRUE 1 j Findings on 1•• Enhancement Paragraph: I TRUE Findings on 2nd EnhancementiHabitual Paragraph: TRUE ll Punished As§gssed bv: Date Sentence Imposed: Dat;g Sentence to Commence: ! JURY I' 10/2811993 ~ 10/28/1993 J Punishment and Place of Confinement: I LIFE INSTITUTIONAL DIVISION, TDCJ I .I THIS SENTENCE SHALL RUN CONCURRENTLY. ll 0 SENTEN~E OF CONFINEMENT SUSPENDED, DEFENDANT PLACED ON COMMUNITY SUPERVISION FOR N/A 1.1 Fine: I Court Costs: Restitution: Restitution Pavable to: !I $ N/A $ 134.50 $ NIA 0 VICTIM (see below) 0 AGENCY/AGENT (see !;>~low) Sex Offender Re!Pstration Requirements do not apply to the Defendant. TEX. CODE CRIM. PROC. chapter_62. J The age of the victJn at the time ofthe offense was N/A . J .....0 3/12/1993 to 10/28/1993 From to rtn &:!Time to From to ~Credited: 00 I From to From to 0\ 0\ I . If Defendant is to serve sentence in county jail or is given credit toward fine and costo:;. enter days credited below. ~~--~~-2~3~!~D_A~Y~S--~N~O~TE~S~:~T~O~W~A~R~D~IN~CAR~-C~E•R•A•T-IO~N~,-F~I~N-E~,AND_.~C~O~S-T_S~~~~~-- ~ All pertinen~"nformation. names and assessments indieated above are incorporated iDto the language of the judgment below b)· referen'cb. ~ This ca was called for trial in Harris County, Texas. The State appeared by her District Attorney. ) ~ Counsel/Waiver of Counsel (select one) j E 181 Defendant ap~ared in person with Counsel. l ~ 0 Defendant k.n?wingly, intelligently, and voluntarily waived the right to representation by counsel in writing in open cour~ g It appeared to the Court that Defendant was mentally competent and had pleaded as shown above to the charging J 0 ~nstrument. Both Iparties announced ready for trial. A jury was selected, i_mpaneled, and sworn. Th_e I!\!TIICTMEI\TT was re~ · to the 13 JUry, and Defendaht entered a plea to the charged offense.· The Court received the plea and entered It of record. j ~ l lU F-Convictiou by Jury wilb TDC checklist_OG5915401010_3.dacm Pnr,:e I ofS I • I _. . . . d --· ., ;.~"' ' ~-~- T~e-j ._ heard the evidence submitted and argument of counseL The Court charged the jury as to its duty to dete i~e ihe guilt or innocenc of Defendant, and the jucy retired to consider the evidence. Upon returning to open court, the jucy deliver.! d its ve.'dict in the pnlsence of Defendant and defense counsel, if any. ' j .. The CoJ.-t received the verdict and ORDERED it entered upon the minutes of the Court. i . ' Punish~ent Assessed hy Jury I Court_I No eleo~ion (select o~e) . . . ~ JIJlry. Defendant entered a plea and filed a wntten election to have the JUr')' assess pu•1lsh-ent. T.be J1ll'Y heard eYldenu . .otive to I . the question of pJnishment. The Court charged the jury and it retired to consider the question of punishment. After due delib~~a tion, the ju1-y was broJght into Court, and, in open court, it· returned its verdict as indicated above.. j 0 Court. Defer1dant elected ~ have the ~u~ assess punishment. After hearing evidence relative to the question of punish~ nt, the Court assessed D fendant's purushment as mdicated above. - j 0 No Election. Defendant did not file a written election as to whether the judge or jury should assess punishment. After hea~·g evidence relative to the question of punishment, the Court assessed Defendant's punishment as indicated above. I app~ The Cou ·t FINDS Defendant committed the above offense and ORDERS. ADJUDGES Al\T]) DECREES that Defeo ant is GUlLTY of the jbove offense. The Court FINDS the Presentence Investigation, if so ordered, was done according to the able provisions ofTE:d CODE CRIM. PRoc. art. 42.12 § 9. j The Co~ ORDERS Defendant punished as indicated above. The Court ORDERS Defendant to pay all fines, court cos , and restitution as indicated above. . l~ PunishJnent Options (select one) · j l8J Confineme~t in State Jail or Institutional Division. The Court ORDERS the authorized agent of the State of Texas, the Sheriff of this County to take, safely convey, and deliver Defendant to the Director, Institutional Division, TDCJ. The C~urt r 1 ORDERS Defendart to be confined for the period and in the mamier indicated above. The Court ORDERS Defendant remande to the custody of the Sheriff of this county until the Sheriff can obey the directions of this sentence. The Court ORDERS that upon lease from confinemenf. Defendant proceed immediately to the Harris County District Clerk's office. Once there, the Court Defendant to paYI1, or make an·angements to pay, any remaining unpaid fines, court costs, and restitution as ordered by the C.· rurt DERS o:t above. 0 County Jnii11 Confinernent I Confinement in Lieu of Payment. The Court ORDERS Defendant immediately commi,tfed to l the custody ofthe Sheriff of Harris County, Texas on the date the sentence is to commence. Defendant shall be confined · the Harris County ~ail for the period indicated above. The Court ORDERS that upon release from confinement, Defendant sha proceed immediately to the Harris County District Clerk's office. Once there, the Court ORDERS Defendant to pay, or rei ke an·angements to pay, any remaining unpaid fines, court costs, and restitution as ordered by the Court above. I 0 Fine Only Pryment. The punishment assessed against Defendant is for a FINE ONLY. The Court ORDERS Defendant tb proceed immediately to t~e Office of the Harris County . Once there, the Court ORDERS Defendant to pay or make arrangemenfl o pay all fines and cou'f costs as ordered by the Court in this cause. . j Execution I Suspension of Sentence (select one) . ·1 181 The Court O~DERS Defendant's sentence EXECUTED. · · 0 The Court O~DERS Defendant's sentence of confinement SUSPENDED. The Court ORDERS Defendant placed on communit supervision for tlie adjudged period (above) so long as Defendant abides by and dties not violate the terms and conditions of l community supe~sion. The order setting forth the terms and conditions of community supervision is incorporated into thisj judgment by reference. 1 The Cour ORDERS that Defendant is given credit noted above on this sentence for the time spent incarcerated. I · Furthermore, the following special findings or orders apply: 1 Signed and 1ntered on 10/28/13 X .,., ....... JliDGEPRES 0 Notice of Appeal Filed: 10/28/1993 · r "<t l \0 . Mandate Received: 6/28/1995_ Type of.Mandate: AFFIRMANCE- iST COURT OF APPEALS 00 ~ After Mandate Received. Sentence to Begin Date is: 10/28/1993 ·- :g \0 Jail Credit: 232 D YS CREDIT kj ,rJ zcs Def. Receivedon_i-_ _ _ _ _ _ _ _ _ _ at ___ ' 0 AM 0 PM Right Thumbprint ~ By: ------7~-----------. Deputy Sheriff of Harris County 8 ;GUEVl ENIKR04: _ _ _ LCBT: _ __ LCBU: _ __ ENIKR18: _ __ . F--Con\oiction by Jul')" ,.;o.h TDC checldist_OG5915401010_3.clocm Pa,.ro 2 of3 I '~ CADSE NO. 6591.56 J .'-' i I Dl 'fJIE 339ft DZSBl:C!f OOIIR!l' vs. or JWUUS CXJm1'.l'Y, t".DAS- ARi'BDB DAVID LOWE ADGUS'f 'fBBit, A. D., 1993 SPECIAL ISSUE Now, if you have ifound tbe Defendant -guilty of aggravated I kidnapping, as _defineq in this ~ge.- L'Dtl only in that event, y~u aust deteaaine vf'etber or ·aot tbe .defendant voluntarily released tbe victUa alive and -in a safe place9 ! Do you the .Jury f+Dd tbe defe~t vol.unt:arUy re1eased tbe victia al.ive ·aDd· in Ia safe place, in the COP"'iss.ioo of the offense for vhicb be baa been convicted? VERDI~ We, tbe jury, ret ..rn in opeo eourt ~ ~ aaawer as 011r answer tC? the special, +sane sublaitted to us, an4 tbe saae· iS our verdict in this case. ,.... I piLBDi . 1CA1'BIIltJNB 1'DA -· ···--t~ .... 0Cl2} CHRIS DANIEL HARRIS COUNTY DISTRICT CLERK December 22, 2014 ARTHUR DAVID LOWE, JR. #669750 HUGHES UNIT ROUTE 2 BOX 4400 GATESVILLE, TEXAS 76597 RE: CAUSE #659154-B 339th District Court Dear Applicant: Your post conviction application for Writ of Habeas Corpus was received and filed on 12-22-14. Article 11.07 of the Texas code of Criminal Procedure affords the State 15 days in which to answer the application after having been served with said application. After the 15 days allowed the State to answer the application, the Court has 20 days in which it may order the designation of issues to be resolved, if any. If the Court has not entered an order designating issues to be resolved within 35 days after the State having been served with the application, the application will be forwarded to the Court of Criminal Appeals for their consideration pursuant to Article 11.07, Sec. 3 (c) ofthe Texas Code of Criminal Procedure. The records of the office reflect the following: CAUSE NO. PETITION FOR WRIT OF HABEAS CORPUS DISPOSITION 659154-A 12-18-13 DENIED All future correspondence should indicate the above listed cause number. Leslie emandez, Dep Criminal Post Trial CC: District Attorney Judge, Presiding Court 120 I FRANKLIN • P.O. BOX 4651 • HOUSTON, TEXAS 77210-4651 PAGE I OF I REV. 01-02-04 i >. COURT OF CRIMINAL APPEALS AUSTIN, TEXAS WR-25,679-22; CAUSE No.659154-B EX PARTE ARTHUR DAVID LOWE § IN THE 339TH DISTRICT COURT Applicant, v. § OF THE ST~TE OF TEXAS, § HARRIS COUNTY, TEXAS REPRESENTATIVE(s), ASSISTANT DISTRICT ATTORNEY(s). Respondant(s).· § ORDER MOTION FOR R~CONSIDERATION BE IT REMEMBER, that on this day came to be considered that Appli- cant's 'Motion For Reconsideration'. After considering the pleading herein and the evidence presented, the Court is of the Opinion that the following Order should issue: It is hereby ORDERED that the Applicant's 'Motion' is GRANTED DENIED r THE PRESIDING· JUSTICE (CCA). ,.	{ "pile_set_name": "FreeLaw" }
986 F.2d 1430 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. UNITED STATES of America, Plaintiff-Appellee,v.Rochelle LUCAS, Defendant-Appellant. No. 92-1263. United States Court of Appeals, Tenth Circuit. Jan. 27, 1993. 1 Before TACHA and BALDOCK, Circuit Judges, and BROWN,* Senior District Judge. 2 ORDER AND JUDGMENT** 3 WESLEY E. BROWN, Senior District Judge. 4 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. 5 Defendant-appellant Rochelle Lucas appeals from an order denying her motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Defendant contends that she was improperly sentenced under the sentencing guidelines. Because we conclude that defendant failed to raise this issue below or on direct appeal from her conviction, we affirm the order denying her motion. 6 Defendant pled guilty to possessing with intent to distribute over fifty grams of crack cocaine. She was sentenced to a 151-month prison term based in part on the score the sentencing court gave her criminal history under the sentencing guidelines. She filed a direct appeal from the conviction, but did not challenge her sentence. She then filed a § 2255 motion raising the following issue: "I recieved [sic] the maximum time with a plea agreement. To my understanding under the plea agreement 0 months to 151 months was my sentencing range. I understood I would fall somewhere in the middle of that range. At the courts [sic] discretion, will you reconsider my sentence of 151 months?" R.Vol. 1, doc. 1 at 6. In her memorandum in support of her motion she argued, 7 Her only previous criminal history deals with misdemeanors (specifically prostitution) and she does not understand, or agree, with placing her in a level 3 Criminal History Category for sentencing purposes. The criminal history category does not correctly reflect the fact that she has no 'felony' convictions, and the number of misdemeanors does not equate to what a level 3 criminal history would indicate. 8 Id., doc. 6 at 3. The district court denied the motion, inter alia, because defendant failed to raise the sentencing issue in her direct appeal and did not show good cause for the default. 9 Defendant contends that her thirteen prostitution convictions should have been considered merged for purposes of scoring her criminal history because the incidents occurred within a short time period and were part of a plan to prostitute herself to obtain money to support her drug addiction. She did not raise this precise argument in the district court. An appellate court will not consider issues raised for the first time on appeal. United States v. Perez, 955 F.2d 34, 36 (10th Cir.1992). 10 Even if we liberally construed defendant's motion and memorandum to have raised this issue before the district court, the government argues that relief should be denied because defendant did not raise the issue on direct appeal from her conviction. Section 2255 cannot be used to test the legality of matters that should have been raised on appeal. "The failure of a defendant to present an issue on direct appeal bars the defendant from raising such an issue in a § 2255 motion to vacate a sentence unless good cause is shown." United States v. Khan, 835 F.2d 749, 753-54 (10th Cir.1987), cert. denied, 487 U.S. 1222 (1988); see also United States v. Gattas, 862 F.2d 1432, 1435 (10th Cir.1988). 11 The proper standard for determining whether an issue can be raised for the first time in a § 2255 motion is the "cause and prejudice" test. United States v. Frady, 456 U.S. 152, 167 (1982). A defendant must show both cause excusing the procedural default, and actual prejudice resulting from the error. Id. at 168. To establish cause, there must be a showing of some external impediment preventing a claim from being raised. See Murray v. Carrier, 477 U.S. 478, 492 (1986). Ignorance or inadvertence does not constitute cause, nor does failure to recognize the factual or legal basis for a claim. Id. at 486-87. 12 Defendant claims she did not raise the issue previously because she was told by an unidentified source that she was not "eligible" to appeal her sentence under any rule other than § 2255, and because she had no knowledge of the criminal law. However, defendant was represented by counsel in her direct appeal from her conviction. Thus, defendant's alleged misunderstanding that she could only raise the issue pursuant to § 2255 is no excuse for not raising the issue on direct appeal. We conclude that defendant failed to show cause for not raising the issue on direct appeal. Her § 2255 attack is foreclosed. 13 Defendant's motion to proceed in forma pauperis is GRANTED. 14 The judgment of the United States District Court for the District of Colorado is AFFIRMED. 15 The mandate shall issue forthwith. * Honorable Wesley E. Brown, Senior District Judge, United States District Court for the District of Kansas, sitting by designation ** 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	{ "pile_set_name": "FreeLaw" }
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 97-41372 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus EDUARDO PAYAN, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. B-97-CR-221-S1 - - - - - - - - - - May 28, 1999 Before POLITZ, BARKSDALE, and STEWART, Circuit Judges. PER CURIAM:* Eduardo Payan appeals his convictions of seven counts of theft by a government employee of property in the care and custody of the United States. Payan contends that the instant prosecution is precluded by the terms of a plea agreement he entered in 1994. This prior agreement, he contends, could reasonably be understood as proscribing his prosecution for all acts of embezzlement occurring between September 1992 and July 1993. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 97-41372 -2- “‘Plea bargain agreements are contractual in nature, and are to be construed accordingly.’" Hentz v. Hargett, 71 F.3d 1169, 1173 (5th Cir. 1996) (citation omitted). Whether the Government’s actions have breached the terms of a plea agreement is a question of law that is reviewed de novo. See United States v. Wittie, 25 F.3d 250, 262 (5th Cir. 1994), aff’d, 515 U.S. 389 (1995). In making this determination, the court considers “‘whether the government’s conduct is consistent with the defendant’s reasonable understanding of the agreement.’" United States v. Moulder, 141 F.3d 568, 571 (5th Cir. 1998) (citation omitted). Payan’s understanding of the 1994 plea agreement finds no purchase in the agreement’s unambiguous terms. The Government’s promise not to prosecute him for other offenses arising from the conduct charged in the 1994 indictment was merely an assurance that the Government would not reindict him for the three counts of the 1994 indictment that were dismissed pursuant to the plea agreement. Because jeopardy never attached with respect to these charges, such an assurance was appropriate. See United States v. Mann, 61 F.3d 326, 330 (5th Cir. 1995). This conclusion is not undermined by the stipulations contained in the plea agreement that the Government had no evidence linking Payan to other monies which may have been stolen from the detention center where he was a supervisor. These stipulations addressed the possibility that the district court might rely on the dismissed charges in calculating Payan’s sentence. See United States v. Levario-Quiroz, 161 F.3d 903, 906 No. 97-41372 -3- (5th Cir. 1998); U.S.S.G. § 1B1.3. Moreover, the Government’s stipulations concerning the lack of evidence did not preclude it from further investigation, which could reveal provable criminal conduct. Equally unavailing is Payan’s argument that to read the plea agreement as permitting the instant prosecution would be to frustrate the very purpose of that agreement. A broad grant of immunity for all of Payan’s acts of embezzlement was not a principal purpose of the plea agreement the absence of which would render the agreement meaningless. See Moulder, 141 F.3d at 571. Accordingly, Payan’s convictions are AFFIRMED.	{ "pile_set_name": "FreeLaw" }
FILED UNITED STATES DISTRICT COURT 0' k 1 7 20"} er , . .Dlstrlct&Bankru tc FOR THE DISTRICT OF COLUMBIA Courts for the District of Colu'rjnbi’a Andre Williams, ) ) Plaintiff, ) ) v. ) Civil Action No. 14-1731 (UNA) ) Kern Thompson Frost, ) ) Defendant. ) MEMORANDUM OPINION Plaintiff, proceeding pro se, has ﬁled an action styled “Complaint for Declaratory Judgment with Remedial Actions to Redress Injury,” along with an application to proceed in forma pauperis. The Court will grant the application and dismiss the case for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (requiring dismissal of an action “at any time” the Court determines that it lacks subject matter jurisdiction). Plaintiff is a Texas state prisoner suing the Chief Justice of the Texas Fourteenth District Court of Appeals for alleged acts taken “as and for the 14th Court of Appeals, Houston, Texas.” Compl., ECF p. 3. The prolix complaint is difﬁcult to follow but plaintiff states that he “has spent 12 years suffering in prison as a result of a wrongful conviction and seeks only a full and fair appeal hearing to demonstrate his claim.” 1d., ECF p. 17. “[I]t is well-settled that a [person] seeking relief from his conviction or sentence may not bring [actions for injunctive and declaratory relief].” Williams v. Hill, 74 F.3d 1339, 1340 (DC. Cir. 1996) (per curiam) (citations omitted). Rather, relief from a state court judgment must be pursued under 28 U.S.C. § 2254 in an appropriate federal court designated by 28 U.S.C. § 2241 (d). The latter provision provides no recourse for plaintiff in this Court, In addition, “[t]his l Court does not have jurisdiction to review the decision of a state supreme court.” Fleming v. UnitedStateS, 847 F. Supp. 170, 172 (D.D.C. 1994), cert. denied513 US. 1150 (1995) (following District of Columbia Court of Appeals v. Feldman, 460 US 462, 482 (1983); Rooker v. Fidelity Trust Co., 263 US. 413, 415, 416 (1923)). Hence, this case will be dismissed. A separate Order accompanies this Memorandum Opinion. Date: December {ﬂ ,2014	{ "pile_set_name": "FreeLaw" }
STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED December 14, 2017 Plaintiff-Appellee, v No. 334953 Wayne Circuit Court JOSEPH SMITH, LC No. 16-001568-01-FC Defendant-Appellant. Before: Before: GLEICHER, P.J., and GADOLA and O’BRIEN, JJ. PER CURIAM. Defendant appeals as of right his bench trial conviction of one count of first-degree criminal sexual conduct (CSC I), MCL 750.520b(1)(f) (personal injury). Defendant was sentenced, as a fourth habitual offender, MCL 769.12, to 12 to 20 years’ imprisonment. We affirm. This case arises out of the sexual assault of the victim by defendant on the evening of June 8, 2005. According to the testimony of the victim, he attended a party at a friend’s house that evening near the intersection of Lahser Road and Keeler Street in Detroit, where he consumed alcohol and smoked marijuana. Around 10:00 p.m., the victim left his friend’s house and began walking to a nearby bar where he expected to find a ride to his girlfriend’s house. When he stopped at an intersection to search in his pockets for a lighter to light his cigarette, defendant pulled up in his vehicle, rolled down the passenger-side window, and asked if the victim had a spare cigarette. The victim responded that he would give defendant a cigarette if defendant could provide a light. Defendant agreed to the exchange, and the victim got into the vehicle where the two men continued conversing. Defendant told the victim that he was looking for a female prostitute, and the victim told defendant that he had not seen any prostitutes in the area. According to the victim, he then asked defendant if he was going in the direction of the bar that the victim was trying to reach; defendant replied that he was not going that way, and began to drive away with the victim still in the vehicle. The victim said that he needed to get out of the vehicle, and defendant drove around the block and stopped the vehicle. As the victim began to exit the vehicle, defendant asked for a couple more cigarettes. The victim testified that he recalled pulling the cigarettes out of the pack. The next thing he remembered was waking up facedown in the passenger seat with a bump on his forehead. The seat was completely reclined, defendant was on top of him, and defendant’s hand was on the -1- back of the victim’s neck, holding him down while defendant penetrated the victim’s anus. When the victim struggled, defendant repeatedly hit him on the back of the head. The victim reached the door handle and opened the passenger-side door. When the cabin light illuminated the interior of the vehicle and the door chime sounded, defendant released his grip on the victim’s neck and the victim “rolled out” of the vehicle and crawled away, then stood up, pulled his pants up, and ran to some nearby bushes where he hid. The victim then called his mother using his cell phone and asked her to pick him up and take him to the hospital because “something really horrible” had happened. According to the testimony of the victim’s mother, when she picked him up the victim was crying hysterically, half sitting on the passenger’s seat and half on the floor of the vehicle. The victim would not tell his mother what had happened and said it was “too awful.” At the hospital, the victim asked his mother to wait in the car while he went into the emergency room. He told the security guard that he had been raped, and was taken into an examining room. Dr. Robert Matthews, a physician at the hospital, testified that a sexual assault examination was performed which resulted in DNA evidence begin obtained. The doctor noted that the victim was not able to identify his alleged assailant and that the medical records indicated that the victim was in moderate distress and was “very emotional and tearful.” Although the victim complained of pain in his head, Dr. Matthews did not note any signs of physical trauma, other than rectal bleeding, which may have come from ruptured external hemorrhoids. The doctor testified that any trauma to the rectal area may have caused the hemorrhoids to rupture and bleed. The victim testified that he was so embarrassed that he did not wait for police, but instead left the hospital without being discharged, still in his hospital gown, and that his mother drove him home. The evidence from the sexual assault examination was picked up by Detroit Police officers later that night, but due to a backlog within the Detroit Police Department the evidence was not processed until February 3, 2014. A DNA analyst at Bode Technology processed the samples and testified that foreign DNA was detected from the rectal swab. The results were thereafter analyzed by a forensic scientist with the Michigan State Police Biology Unit, who testified that the foreign DNA found on the victim’s rectal swab matched defendant’s profile, which already was on file in the Combined DNA Index System (CODIS). The DNA from the victim’s rectal swab was again matched to defendant’s DNA obtained through a search warrant. At the conclusion of the testimony, the trial court found that, although it was unclear why the victim entered defendant’s vehicle, the victim’s testimony was otherwise consistent: “[t]hat there was forceful, sexual penetration of [the victim’s] anal opening” and that the DNA evidence indicated “that [defendant] was involved in that.” The trial court further noted that the examining physician had testified that the penetration had been forceful enough to rupture the preexisting hemorrhoids and cause bleeding, and that was sufficient to satisfy the personal injury element of the offense. Accordingly, the trial court found defendant guilty of CSC I. I. EXCLUSION OF EVIDENCE On appeal, defendant first argues that the trial court committed error requiring reversal when it limited defendant’s cross-examination of the victim regarding his alleged history of mental illness. Defendant asserts that this limitation was improper because the testimony was -2- relevant and admissible, and that the limitation denied defendant his constitutional right of confrontation. We disagree. At trial, defendant argued that he should be permitted to question the victim about his alleged history of mental illness, arguing that it was relevant to the victim’s state of mind and observations. Defendant therefore preserved this issue for review. See People v Grant, 445 Mich 535, 546; 520 NW2d 123 (1994). This Court reviews the trial court’s exclusion of evidence for an abuse of discretion. People v King, 297 Mich App 465, 472; 824 NW2d 258 (2012). “A trial court abuses its discretion when its decision falls outside the range of principled outcomes.” People v Feezel, 486 Mich 184, 192; 783 NW2d 67 (2010) (citation omitted). We review de novo a trial court’s ruling on a preliminary question of law regarding the admissibility of evidence, but an error by the trial court in admitting or excluding evidence is not grounds for reversal unless, “after an examination of the entire cause, it affirmatively appears that it is more probable than not that the error was outcome determinative.” King, 297 Mich App at 472. However, defendant did not present this argument before the trial court as a violation of his constitutional right of confrontation. Because an objection on one ground is insufficient to preserve an appellate challenge based on a different ground, that part of defendant’s argument is unpreserved. People v Bulmer, 256 Mich App 33, 35; 662 NW2d 117 (2003). This Court reviews unpreserved constitutional questions for plain error affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Plain error is shown by proving that “1) [the] error must have occurred, 2) the error was plain, i.e., clear and obvious, 3) and the plain error affected substantial rights.” Id. at 763 (citation omitted). Generally, to show that the error affected substantial rights, it must be proven “that the error affected the outcome of the lower court proceedings.” Id. (citation omitted). “Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error “ ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings’ independent of the defendant’s innocence.” Id. (citation omitted). On appeal, defendant argues that the trial court abused its discretion by limiting defendant’s cross-examination of the victim, because the victim’s alleged history of mental illness was relevant to the victim’s credibility. Defendant contends that the victim’s testimony about his alleged history of mental illness would have supported defendant’s claim that the encounter was consensual sexual experimentation. Although a defendant has a constitutionally-guaranteed right to present a defense, the accused must nonetheless comply with established rules of evidence. People v Yost, 278 Mich App 341, 379; 749 NW2d 753 (2008). Under MRE 401, 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.” Generally, inquiry into a witness’s credibility and bias is relevant. People v Layher, 464 Mich 756, 764; 631 NW2d 281 (2001). However, a trial court may prohibit a party from cross-examining a witness on collateral matters bearing only on general credibility or on irrelevant issues. People v Canter, 197 Mich App 550, 564; 496 NW2d 336 (1993). Where nothing in the record indicates that the victim’s mental health had “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or -3- less probable than it would be without the evidence” a trial court does not abuse its discretion in excluding the evidence. MRE 401; MRE 402. In this case, defense counsel at trial attempted to question the victim about his mental health history as follows: Q. Okay. And were you on any medications? Ms. Brookings [Prosecutor]: Objection. Relevance. Mr. Bickerdt [Defense Counsel]: Well, Your Honor, his state of mind certainly would be relevant and—whether he’s under the influence or not, his observations— The Court: I’ll allow it. Q. Were you on any medications, sir? A. No, I wasn’t. Q. Sir, do you have any history of mental illness? A. Yes, I do. Ms. Brookings [Prosecutor]: Objection. Relevance. The Court: Sustained. A. Yes. The Court: I’ve sustained it. Ms. Brookings [Prosecutor]: Thank you, Judge. I’d ask that the answer be stricken. The Court: So ordered. Mr. Bickerdt [Defense Counsel]: Well, Your Honor, I would argue that it’s very relevant as to—again his state of mind and his observations and I would just ask the Court to take the testimony—but either way— The Court: All right. Defendant generally argues that the victim would have testified that he had some sort of mental illness that would have made him more likely to falsely accuse defendant of sexual assault. Defendant does not speculate what this illness might be, and makes no attempt to articulate a theory of how the victim’s alleged mental illness tended to show that he was more likely to falsely accuse defendant of sexual assault. Furthermore, defendant does not demonstrate that during the relevant time-frame the victim exhibited a disposition to lie or -4- hallucinate, or that he had an impaired ability to perceive and tell the truth. Although a history of false accusations by a victim of sexual assault is relevant in CSC cases, defendant does not argue that the victim had a history of false sexual assault accusations. See People v Hackett, 421 Mich 338, 348; 365 NW2d 120 (1985) (recognizing that the defendant is permitted to show that the victim has made untrue accusations of sexual assault before). Therefore, defendant has not shown that the evidence was relevant and therefore, admissible. Rather, nothing in the record suggests that the victim’s allegations were the result of mental illness. Based on the facts of this case, we do not find that the trial court’s ruling is outside the range of reasonable and principled outcomes. We conclude that the trial court did not abuse its discretion by precluding the introduction of evidence regarding the victim’s alleged history of mental illness. See, e.g., People v Oros, 320 Mich App 146, 164-165; ___ NW2d ___ (2017). Moreover, even when excluding evidence of a victim’s mental illness is error, such an error does not require reversal unless “after an examination of the entire cause, it shall affirmatively appear that it is more probable than not that the error was outcome determinative.” See Carines, 460 Mich at 763. Here, the record demonstrates that it is unlikely that the exclusion of the evidence affected the outcome of the lower court proceedings. Even with the trial court’s limitation, defendant had the opportunity to adequately explore and develop the issue of the victim’s ability to perceive and recall events. Therefore, defendant cannot show that it is more probable than not that the trial court’s limitation affected the outcome of the trial. Accordingly, the trial court did not abuse its discretion by limiting defendant’s cross-examination of the victim regarding the victim’s alleged history of mental illness. Defendant’s unpreserved constitutional claim is also without merit. The Sixth Amendment of the United States Constitution recognizes a defendant’s right “to be confronted with the witnesses against him.” US Const, Am VI; see also Const 1963, art 1, § 20. The Confrontation Clause secures “the right of cross-examination,” but “not without limit.” People v Adamski, 198 Mich App 133, 138; 497 NW2d 546 (1993). “The scope of cross-examination is within the discretion of the trial court.” Canter, 197 Mich App at 564. The trial court may curtail cross-examination “with respect to collateral matters bearing only on general credibility . . . as well as on irrelevant issues.” Id. (citations omitted). As discussed, defendant did not raise this constitutional challenge before the trial court and that part of defendant’s argument therefore is unpreserved. King, 297 Mich App at 472. Moreover, defendant has not shown that this evidence was relevant, and therefore, admissible. Rather, it appears that defendant sought to introduce evidence of the victim’s alleged history of mental illness to wage a general attack on his credibility. Therefore, the trial court did not commit plain error by limiting defendant’s cross-examination of the victim regarding the victim’s alleged history of mental illness. See Carines, 460 Mich at 763. II. SUFFICIENCY OF THE EVIDENCE Defendant next argues on appeal that the prosecutor presented insufficient evidence to establish that the victim suffered a “personal injury” or that defendant used force or coercion to accomplish penetration. Again, we disagree. -5- Challenges to the sufficiency of the evidence are reviewed de novo. People v Solloway, 316 Mich App 174, 180; 891 NW2d 255 (2016) (citation omitted). Evidence should be viewed in the light most favorable to the prosecution to determine whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt. People v Bailey, 310 Mich App 703, 713; 873 NW2d 855 (2015). “[C]ircumstantial evidence and reasonable inferences arising from that evidence can constitute satisfactory proof of the elements of a crime.” Id. (quotation marks and citation omitted). “This Court will not interfere with the trier of fact’s determinations regarding the weight of the evidence or the credibility of witnesses.” People v Stevens, 306 Mich App 620, 628; 858 NW2d 98 (2014) (citation omitted). In this case, sufficient evidence was presented for a rational trier of fact to have found defendant guilty of CSC I, pursuant to MCL 750.520b(1)(f), which states, in pertinent part: (1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists: * * * (f) The actor causes personal injury to the victim and force or coercion is used to accomplish sexual penetration. . . . “Personal injury” under the statute “means bodily injury, disfigurement, mental anguish, chronic pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ.” MCL 750.520a(n). Bodily injury, mental anguish, and the other conditions “are merely different ways of defining the single element of personal injury” and “if the evidence of any one of the listed definitions is sufficient, then the element of personal injury has been proven.” People v Asevedo, 217 Mich App 393, 397; 551 NW2d 478 (1996). To constitute bodily injury, the physical injuries suffered “need not be permanent or substantial.” People v Mackle, 241 Mich App 583, 596; 617 NW2d 339 (2000). With respect to bodily injury, the victim testified that he had a bump on his forehead after defendant knocked him unconscious, and that defendant “hammered” him on the back of the head during the assault. Defendant argues that his conviction rests solely on the victim’s unsubstantiated testimony that defendant caused him physical injury because, although the victim sought medical treatment immediately after the sexual encounter, the medical records did not yield any evidence of physical injury or trauma. This argument, however, ignores Dr. Matthews’s testimony that the victim complained of a pain in his head, and presented with rectal bleeding, which may have resulted from the trauma-induced rupture of external hemorrhoids. Moreover, the prosecutor was not required to corroborate the victim’s testimony. MCL 750.520h. See also People v Newby, 66 Mich App 400, 405; 239 NW2d 387 (1976). Additionally, the evidence was sufficient to establish mental anguish. To prove mental anguish, “the prosecution is required to produce evidence from which a rational trier of fact could conclude, beyond a reasonable doubt, that the victim experienced extreme or excruciating pain, distress, or suffering of the mind.” People v Petrella, 424 Mich 221, 259; 380 NW2d 11 (1986) (citation omitted). In determining the existence of “mental anguish,” a reviewing court -6- may consider factors such as whether the victim was upset, crying, sobbing, or hysterical during or after the assault; the need for psychiatric or psychological care or treatment; interference with the victim’s ability to conduct a normal life, such as absence from the workplace; fear for the victim’s life or safety; feelings of anger and humiliation; use of prescription medication to treat anxiety, insomnia or other symptoms; evidence that the emotional or psychological effects of the assault were long-lasting; and a lingering fear, anxiety, or apprehension about being in vulnerable situations. Id. at 270-271. With respect to mental anguish, the victim testified that he was so ashamed that instead of waiting for the police, he left the hospital, still in his hospital gown, without being discharged. The victim’s mother testified that on the way to the hospital, the victim was “crying hysterically,” half sitting on the passenger seat, and half slid onto the floor of the vehicle. When the victim’s mother asked him what had happened, the victim told her it was “too awful” and that he did not want to talk about it. At the hospital, Dr. Matthews noted that the victim was in moderate distress, and the victim’s medical record further indicated that the victim was “very emotional and tearful.” Viewing the evidence in a light most favorable to the prosecution, the evidence was sufficient for a rational trier of fact to find that the victim suffered mental anguish and therefore personal injury. Finally, defendant argues that there was insufficient evidence to support a finding that defendant used force or coercion to accomplish the sexual act because the victim admitted that he voluntarily entered defendant’s vehicle, and there was no supporting medical evidence of physical injury or trauma. However, the victim testified that, during the assault, defendant’s hand was on the back of the victim’s neck, holding the victim down, while defendant penetrated the victim’s anus. When the victim tried to get up, defendant “hammered” the victim on the back of the head, and it was only after some struggling that the victim opened the vehicle door and escaped. The victim testified that he had a lump on his forehead and complained to Dr. Matthews of a pain in his head. Viewing the evidence in the light most favorable to the prosecution, the evidence was sufficient for a rational trier of fact to find that defendant used force or coercion to accomplish the sexual penetration. Therefore, sufficient evidence was presented for a rational trier of fact to have found defendant guilty of CSC I pursuant to MCL 750.520b(1)(f). Affirmed. /s/ Elizabeth L. Gleicher /s/ Michael F. Gadola /s/ Colleen A. O'Brien -7-	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned December 8, 2010 GURSHEEL DHILLON, MD v. STATE OF TENNESSEE HEALTH RELATED BOARDS Appeal from the Chancery Court for Davidson County No. 10-449-II Carol L. McCoy, Chancellor No. M2010-01085-COA-R3-CV - Filed December 9, 2010 This appeal involves a doctor’s challenge to disciplinary charges brought against him by the Department of Health, Division of Health Related Boards. After the trial court denied the doctor’s request for a temporary injunction prohibiting the defendant from proceeding with a hearing on the disciplinary charges, the doctor filed a notice of appeal to this court. Because the order appealed does not resolve all the claims raised by the doctor, we dismiss the appeal for lack of a final judgment. Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed F RANK G. C LEMENT, J R., A NDY D. B ENNETT, R ICHARD H. D INKINS, JJ. Gursheel S. Dhillon, Estill Springs, Tennessee, Pro Se Andrea Huddleston, Sue Ann Sheldon, Nashville, Tennessee, for the appellee, State of Tennessee Health Related Boards. MEMORANDUM OPINION 1 On November 20, 2009, the Department of Health, Division of Health Related Boards, filed an Amended Notice of Charges and Memorandum for Assessment of Civil Penalties 1 Tenn. R. Ct. App. 10 states: This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason in any unrelated case. alleging that Gursheel S. Dhillon, M.D., had failed to comply with certain conditions imposed on him by the Board of Medical Examiners in a March 19, 2008 final order. The matter was scheduled for a contested case hearing before the Board of Medical Examiners on May 19, 2010. On March 16, 2010, Dr. Dhillon filed a complaint in the Chancery Court for Davidson County seeking a temporary injunction prohibiting the Department from proceeding with the hearing, a permanent injunction, a stay of the administrative proceedings, a declaratory judgment, and other relief. On April 13, 2010, the trial court denied Dr. Dhillon’s request for a temporary injunction prohibiting the defendant from proceeding with the hearing. Dr. Dhillon filed his notice of appeal on May 12, 2010. A party is entitled to an appeal as of right only after the trial court has entered a final judgment. Tenn. R. App. P. 3(a); In re Estate of Henderson, 121 S.W.3d 643, 645 (Tenn.2003); King v. Spain, No. M2006-02178-COA-R3-CV, 2007 WL 3202757 at *8 (Tenn. Ct. App. October 31, 2007). A final judgment is a judgment that resolves all the claims between all the parties, “leaving nothing else for the trial court to do.” State ex rel. McAllister v. Goode, 968 S.W.2d 834, 840 (Tenn. Ct. App. 1997). An order that adjudicates fewer than all the claims between all the parties is subject to revision at any time before the entry of a final judgment and is not appealable as of right. Tenn. R. App. P. 3(a); In re Estate of Henderson, 121 S.W.3d at 645. Like the trial court, we find it difficult to determine from the complaint exactly what additional relief Dr. Dhillon is seeking. Nevertheless, it is clear that additional claims remain. The trial court’s April 13, 2010 order merely denies Dr. Dhillon’s request for a temporary injunction. It does not address any other requests for relief in the complaint. It does not dismiss the complaint or tax the costs. Indeed, the trial court noted in its ruling that it would entertain a motion to dismiss if and when the defendant filed such a motion. Accordingly, the April 13, 2010 order is not a final judgment and is not subject to an appeal as of right pursuant to Tenn. R. App. P. 3. On September 9, 2010, this court ordered Dr. Dhillon either to obtain a final judgment from the trial court within sixty (60) days or else to show cause why the appeal should not be dismissed. Dr. Dhillon has responded that the refusal to issue a preliminary injunction is an appealable order pursuant to Ala. R. App. P. 4(a)(1)(A), and Baldwin County Elec. Membership Corp. v. Catrett, 942 So. 2d 337, 349 (Ala. 2006). Proceedings before this court are governed by the Tennessee Rules of Appellate Procedure, not the Alabama Rules of Appellate Procedure. Neither Ala. R. App. P. 4(a)(1)(A) nor the Alabama appellate decisions interpreting that rule are applicable in this court. Under Tenn. R. App. P. 3(a), an order denying a temporary injunction is not appealable as of right. -2- Dr. Dhillon’s response also requests direct appellate review of the administrative proceeding pursuant to Tenn. R. App. P. 12. However, Tenn. R. App. P. 12 applies only in those rare instances where there is specific statutory authority for an appeal directly to this court from a decision of an administrative agency. There is no such statutory authority for a direct appeal to this court from a decision of the Department of Health, the Division of Health Related Boards or the Board of Medical Examiners. Likewise, Tenn. R. App. P. 12 does not apply to appeals from the Chancery Court for Davidson County, even where the case arises out of an administrative proceeding. Finally, Dr. Dhillon has moved the court to consider his appeal as an extraordinary appeal pursuant to Tenn. R. App. P. 10. Having reviewed the motion and the entire record on appeal, we cannot conclude that the trial court has so far departed from the accepted and usual course of judicial proceedings as to require immediate review or that an extraordinary appeal is necessary for a complete determination of the action on appeal. Accordingly, an extraordinary appeal is not warranted, and we decline to consider the appeal pursuant to Tenn. R. App. P. 10. This appeal is dismissed for lack of a final judgment without prejudice to the filing of a new appeal once a final judgment has been entered. The case is remanded to the trial court for further proceedings consistent with this opinion. The costs of the appeal are taxed to Gursheel S. Dhillon and his surety for which execution may issue. PER CURIAM -3-	{ "pile_set_name": "FreeLaw" }
IN THE SUPREME COURT OF MISSISSIPPI NO. 2009-CA-01037-SCT ANGELIA PATTERSON, ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES AND AS A DM IN ISTRATRIX OF THE ESTATE OF ATRAVIUS COLEMAN, DECEASED v. DR. BOB TIBBS, DR. WILLIAM MCARTHUR AND BOLIVAR COUNTY MEDICAL CENTER DATE OF JUDGMENT: 06/11/2009 TRIAL JUDGE: HON. CHARLES E. WEBSTER COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: GEORGE F. HOLLOWELL, JR. ATTORNEYS FOR APPELLEES: L. CARL HAGWOOD MARY FRANCES STALLINGS-ENGLAND DIANE V. PRADAT BRADLEY K. OVERCASH KIMBERLY NELSON HOWLAND NATURE OF THE CASE: CIVIL - WRONGFUL DEATH DISPOSITION: AFFIRMED IN PART, REVERSED IN PART AND REMANDED - 03/17/2011 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE CARLSON, P.J., LAMAR AND CHANDLER, JJ. CARLSON, PRESIDING JUSTICE, FOR THE COURT: ¶1. Atravius Coleman was born at Bolivar County Medical Center (BMC) on February 22, 2002, at 4:23 a.m. Atravius died less than one day later, on February 23, 2002, at 12:05 a.m. His mother, Angelia Patterson, brought a wrongful-death claim against BMC, Dr. Bob Tibbs, and Dr. William McArthur (the defendants), claiming that they had caused Atravius’s death either through negligence or by breaching the standard of care. The defendants filed a motion to exclude Patterson’s expert witnesses on causation, claiming that their testimony was not reliable. After a two-day Daubert1 hearing in the Circuit Court for the Second Judicial District of Bolivar County, the trial judge granted the defendants’ motion and excluded the expert witnesses’ testimony on the predeath levels of Demerol in Atravius’s blood. The trial court subsequently granted summary judgment in favor of the defendants. ¶2. Patterson now appeals to this Court. We find that the trial court did not abuse its discretion in excluding the experts’ testimony and that the trial court did not err in granting summary judgment in favor of Dr. William McArthur. However, we are constrained to find that the trial court erred in granting summary judgment in favor of Dr. Bob Tibbs and Bolivar County Medical Center. Thus, we affirm in part and reverse in part the trial court’s judgment in favor of all defendants, and we remand this case for further proceedings relating to Patterson’s claims against Dr. Tibbs and Bolivar County Medical Center. FACTS AND PROCEEDINGS IN THE TRIAL COURT ¶3. Angelia Patterson arrived at BMC on February 21, 2002, and was attended to by Dr. McArthur. She gave birth to a baby boy, Atravius Coleman, on February 22, 2002, at 4:23 a.m. Atravius appeared to be healthy at birth, receiving a nine-out-of-ten APGAR score one 1 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). 2 minute after delivery and five minutes after delivery.2 Atravius was placed under the care of Dr. Tibbs after his birth, even though Dr. McArthur performed the circumcision on Atravius. ¶4. Atravius was taken for circumcision at 1:45 p.m. on February 22, 2002. Dr. McArthur performed the circumcision and stated in his affidavit that he did not give Atravius Demerol for pain relief. Also, according to Atravius’s medical records, no pain medication was administered for this procedure. A nurse noted that Atravius looked pale at 3:30 p.m. Dr. Tibbs was notified of Atravius’s condition and ordered an echocardiogram. The results of the test were “suspicious for hypoplastic left heart syndrome.” Plans were then made to transport Atravius to the University of Mississippi Medical Center Pediatric Department (UMC). Atravius died at BMC before the ambulance from UMC arrived. ¶5. The defendants claim that Atravius died as a result of hypoplastic left heart syndrome and that the condition is fatal without surgery. Patterson claims that Atravius died from an overdose of Demerol, which he either received from his mother before delivery or after his birth, likely during his circumcision. To support this claim, Patterson retained two expert- causation witnesses: Dr. Steven Shukan and Dr. Steven Hayne. ¶6. Dr. Shukan is a board-certified pediatrician. Dr. Shukan’s opinion is that Atravius received a lethal dose of Demerol (meperidine) – approximately 100 milliliters – around the same time as his circumcision. To form this opinion, Dr. Shukan used a process called back- 2 APGAR is an acronym for Activity, Pulse, Grimace, Appearance, and Respiration. It measures the status of these conditions and is usually given immediately following birth and a second time five minutes later. A score of seven or above is indicative of a healthy newborn. 3 extrapolation. Dr. Shukan started with the amount of Demerol and normeperidine in the blood sample taken from Atravius after his death.3 Using the half-life of the drug 4 and the post-death drug levels in Atravius’s blood sample, Dr. Shukan was able to calculate a predeath level of the drug. The half-life used is essential to the calculation. Because neonates metabolize drugs more slowly than adults, a different half-life must be used in calculations involving neonates. ¶7. Dr. Shukan used a half-life of three to three-and-one-half hours in his back- extrapolation calculation. Dr. Shukan testified in his deposition that he referred to his pharmacy textbooks, Nelson’s Textbook of Pediatrics, The Physicians’ Desk Reference, and WebMD (a website) in forming his opinion. He also stated that he used his professional knowledge of Demerol when forming his overall opinion that Atravius had died from a lethal dose of Demerol. Although Dr. Shukan testified that he had referred to these sources in forming his opinion, he did not state which source specified a half-life of three to three-and- one-half hours. However, he did testify that Demerol has a half-life of two to five hours in adults and that the half-life is a “little longer than the two hours in kids, most authorities would say in the neighborhood of slightly above three hours.” He did not testify as to what 3 0.17 mcg/ml of Demerol and 0.12 mcg/ml of normeperidine were found in the sample. The results of the sample are undisputed. Normeperidine is a byproduct of Demerol and occurs in the body after metabolism of Demerol. Demerol is a trade name for meperidine. 4 The half-life of a drug is the time required for the activity of a drug taken into the body to lose one half its initial effectiveness. 4 authorities he was relying upon when he stated that “most authorities” say the half-life of Demerol in a neonate is slightly above three hours. ¶8. Patterson also retained Dr. Steven Hayne as an expert-causation witness. Dr. Hayne, a pathologist, performed an autopsy on Atravius. Using the same back-extrapolation process, Dr. Hayne determined that Atravius likely had died from a lethal dose of Demerol that he had received from his mother prior to birth.5 Dr. Hayne used a half-life of four-and-one-half to five hours. He obtained this half-life by calling the director of the Mississippi State Crime Laboratory and a toxicologist employed at the lab. ¶9. The defendants moved to exclude the expert testimony of both Dr. Shukan and Dr. Hayne. A two-day Daubert hearing was held, and the trial judge ultimately excluded the testimony of Dr. Shukan and Dr. Hayne on Atravius’s predeath Demerol levels. ¶10. At the hearing, the depositions of Dr. Shukan and Dr. Hayne were admitted, and several other experts testified. Dr. Christopher Long, a forensic toxicologist, testified for the plaintiff. Dr. Long reviewed a number of articles on the half-life of Demerol in neonates and acknowledged that a wide range of half-lives is documented. ¶11. Dr. John Cleary, a board-certified pharmacotherapist, testified for the defense. Dr. Cleary testified that there are multiple articles on the half-life of Demerol in newborns and that the average half-life is approximately eleven hours.6 When asked if the half-life of three 5 It is undisputed that Angelia Patterson received two doses of Demerol during her labor. The amount, however, is disputed. Patterson claims she received two 100-ml doses, which is more than the recommended amount. The defendants claim that Patterson received two 50-ml doses, which is a generally accepted therapeutic amount. 6 The defendants presented the following sources: Pharmacokinetics and Pharmacodynamics of Intravenous Meperidine in Neonates and Infants reports that the half- 5 to three-and-one-half hours has a scientific basis, Dr. Cleary responded that “[i]t is scientifically and medically based in an adult. It does not apply to an infant within the first few days of life.” ¶12. Dr. John Joel Donaldson, a licensed physician, also testified for the defense. Dr. Donaldson testified that, contrary to Dr. Shukan’s testimony, he had never seen any research or literature that supported the use of a three to three-and-one-half-hour half-life in a newborn. ¶13. After the Daubert hearing, the trial court entered an order excluding the testimony of Dr. Shukan and Dr. Hayne on the predeath levels of Demerol in Atravius’s system. The trial judge noted that the half-lives used by Dr. Shukan and Dr. Hayne are of particular significance because the reliability of the doctors’ mathematical calculations depends on the correct half-life being used.7 The trial court also noted that it is generally accepted that the life of Demerol in babies less than one week old ranges from 4.9 to 16.8 hours, averaging at 10.7 hours. A half-life of 3.3 hours was reported in one preterm baby. Marja-Leena Pokela et al., Pharmacokinetics and Pharmacodynamics of Intravenous Meperidine in Neonates and Infants, 52 Clinical Pharmacology and Therapeutics 345 (Oct. 1992). Disposition of Meperidine and Normeperidine Following Multiple Doses During Labor reports that the half-life can range from 11.36 to 17.33 hours, averaging at 13.24 hours. Betty R. Kuhnert et al., Disposition of Meperidine and Normeperidine Following Multiple Doses During Labor, 151 American Journal of Obstetrics and Gynecology 414 (Feb. 1985). Drug Therapy in Infants: Pharmacologic Principles and Clinical Experience reports that the half-life of Demerol in newborns can range from 6.5 to 39 hours. This source also states that the half- life in infants three to eighteen months is 2.3 hours. Robert J. Roberts, Drug Therapy in Infants: Pharmacologic Principles and of age Clinical Experience 302 (W.B. Saunders Co. 1984). 7 The trial judge gave the following explanation of half-lives: [I]n the context of drugs and medications, the term “half-life” refers to the amount of time required for half the dosage of a particular drug to be metabolized by the body. For example, if a healthy adult is given 100 6 half-life of Demerol in an adult is approximately three hours, but that there is difficulty in “attempting to correlate the half-life of [Demerol] to an infant.” It is difficult to determine an exact half-life in newborns because the liver – which is the organ responsible for eliminating drugs from the body – is not fully developed and is not capable of working at its full capacity, which results in a longer half-life in newborns versus adults. The trial court further noted that there is minimal, and varied, scientific documentation on the half-life of Demerol in newborns, stating that “[i]t appears that the breadth of such ranges [is] limited only by the number of medical journals one reads.” ¶14. With regard to Dr. Shukan’s assertion that the half-life of Demerol in a newborn is three to three-and-one-half hours, the trial court stated that: No evidence was presented explaining exactly how Dr. Shukan came to choose three to three and one-half hours as the half-life of meperidine to be used in his back extrapolation calculations. It seems to this court that arbitrarily choosing a half-life from the panoply of half-lives available when dealing with a neonate is tantamount to choosing a half-life by throwing darts at a medical dartboard. While one may occasionally hit the proper number, it is not a process that instills confidence in the result. ¶15. When discussing Dr. Hayne’s opinion that the half-life of Demerol in a newborn is four-and-one-half to five hours, the trial court noted in its order that Dr. Hayne received this number from personnel at the Mississippi Crime Laboratory and in a footnote, stated that “[c]ertainly there is nothing untoward in Dr. Hayne seeking additional input from another milligrams of a particular drug and the half-life of that drug is ten hours, then after ten hours one would expect to find only 50 milligrams of that drug remaining active in the body. In another ten hours, there would only be 25 milligrams of that drug remaining active in the body. In another ten hours, only 12.5 milligrams, and so on. 7 expert, a practice which appears not to be uncommon among academicians.” The trial court then stated that it had the same reservations regarding the use of a half-life for meperidine in the range of 4.5 to 5 hours as it does when considering a half-life of 3 to 3.5 hours. To be clear, the court does not question the process of back extrapolation. Rather, the court’s reservations in this case grow from what the court finds to be a lack of scientific agreement and/or specificity as concerns the half-life of meperidine in a neonate. ¶16. The trial court concluded its order by finding that: As concerns the opinions offered by Dr. Shukan and Dr. Hayne as to the pre- death levels or concentrations of meperidine or normeperidine in the body of this child, the court finds that such opinions are relevant and would assist the trier of fact. However, due to the limited scientific studies gauging the half- life of meperidine in the body of a neonate, this court is compelled to find that the opinions lack the necessary element of reliability in that it is not based upon sufficient data. This court finds, based upon the evidence presented and the scientific and/or medical literature offered describing the ranges of half- lives of meperidine and/or normeperidine in a neonate are so wide that pre- death levels and/or concentrations of such drug in a neonate cannot be determined with any reasonable degree of medical or scientific certainty by the process of back extrapolation. For the reasons stated above, this court will disallow the introduction of any opinion from any expert attempting to assert a pre-death level and/or concentration of meperidine and/or normeperidine in the body of this child based upon any back extrapolation. (Emphasis added in original.) ¶17. After the trial court excluded the expert testimony on the predeath levels of Demerol in Atravius’s system, it granted summary judgment in favor of all three defendants.8 The trial court stated it was “of the opinion that said motion should be granted because without the 8 The trial court’s order states that the defendants made an ore tenus motion for summary judgment. There is no record of the motion in the transcript. 8 excluded testimony, Plaintiffs have no expert testimony to prove causation . . . .” Patterson now appeals the trial court’s judgment to this Court. DISCUSSION ¶18. Patterson presents two issues for this Court’s consideration: (1) whether the trial court erred in excluding the expert testimony of Dr. Shukan and Dr. Hayne; and (2) whether the trial court erred in granting summary judgment in favor of the defendants. I. WHETHER THE TRIAL COURT ERRED IN EXCLUDING THE EXPERT TESTIMONY OF DR. SHUKAN AND DR. HAYNE. A. Standard of Review ¶19. The standard of review for the admission or exclusion of expert testimony is abuse of discretion. Utz v. Running & Rolling Trucking, Inc., 32 So. 3d 450, 457 (Miss. 2010) (citations omitted). This Court should find error in the trial court’s decision to exclude expert testimony only if the decision was arbitrary or clearly erroneous. Franklin Corp. v. Tedford, 18 So. 3d 215, 237 (Miss. 2009) (citing Troupe v. McAuley, 955 So. 2d 848, 856 (Miss. 2007)). B. Mississippi Rule of Evidence 702 and Daubert ¶20. In addressing Daubert issues, our analysis must be guided by Rule 702, which addresses the admissibility of expert testimony: 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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. 9 Miss. R. Evid. 702. ¶21. In Daubert, the United States Supreme Court held that experts should be given wide latitude when offering opinions within their expertise. Daubert, 509 U.S. at 592. The Daubert Court rejected the Frye 9 standard, which required “general acceptance” of the theories offered by experts, and held that expert testimony must be relevant and reliable. Id. at 589. Daubert enumerated several factors which the trial courts may consider when determining if expert testimony is reliable: (1) whether the expert’s theory can be or has been tested; (2) whether the theory has been subjected to peer review and publication; (3) the known or potential rate of error of a technique or theory when applied; and (4) the general acceptance that the theory has garnered in the relevant expert community. Id. at 593-94. These factors are nonexclusive, and their application depends on the nature of the issue, the expert’s expertise, and the subject of the testimony offered by the expert. Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 37 (Miss. 2003). ¶22. When determining whether expert testimony is admissible, our trial judges should act as gatekeepers and must determine whether the proposed testimony meets the requirements of Rule 702 and Daubert’s relevance and reliability prongs. Evidence is relevant if it will assist the trier of fact. Daubert, 509 U.S. at 591. The offered testimony in today’s case is clearly relevant, and the defendants do not dispute its relevance. Because the offered testimony is relevant, our inquiry in today’s case will focus on whether the testimony was reliable. 9 Frye v. United States, 54 App. D.C. 46, 47, 293 F. 1013, 1014 (1923). 10 C. Reliability ¶23. In his order excluding the expert testimony, the trial judge focused on the lack of consensus among a wide range of authorities on the half-life of Demerol in a newborn. He also, however, pointed out that Dr. Hayne and Dr. Shukan had failed to provide an authority that supports the half-lives used in their calculations. Patterson now argues that lack of consensus among authorities is not a valid reason for excluding expert testimony under Daubert. ¶24. In support of her argument, Patterson cites Tedford, 18 So. 3d at 238, where this Court upheld the trial court’s admission of four expert witnesses in a workers’ compensation case. The plaintiffs in Tedford were exposed to a neurotoxin while at work, and the expert witnesses testified to the effect the toxin had on the plaintiffs. Id. at 234-36. On appeal, the defendants argued that the trial court had erred in allowing the expert testimony because “none knew of the [neurotoxin] exposure level at which injury occurs in humans,” and “none knew of the exposure experienced by the . . . plaintiffs.” Id. at 237. This Court noted that the impact of the toxin on humans is a new field of study and that ethical constraints have limited scientists’ studies in this field. Id. Ultimately, this Court found that “the absence of data on the exact exposure level at which humans suffer neurologic injury ought not preclude the Plaintiffs’ experts from testifying.” Id. (emphasis added). ¶25. We find Tedford to be distinguishable from today’s case. In Tedford, there was an absence of data relating to the subject of the experts’ opinions. Id. In today’s case there is not an absence of data on the half-life of Demerol in newborns; rather, the defendants presented published data on the subject which contradicts the plaintiff’s experts. The 11 shortage of data in this case is an absence of data supporting the half-lives used by the plaintiff’s experts. ¶26. In Watts v. Radiator Specialty Company, 990 So. 2d 143, 150 (Miss. 2008), this Court held that expert testimony may be excluded as scientifically unreliable when there is a lack of scientific data supporting the expert’s opinion. In Watts, the subject of the expert testimony was the focus of several different studies on which the expert had relied in forming his opinion. Id. at 147. However, none of the studies “provide[d] a basis for the conclusion” that the expert had made. Id. The dissenting opinion in Watts argued that expert opinions need not be supported unequivocally by published studies. Id. at 154. The majority responded by stating that: While certainly there is no requirement that an expert’s opinion be ‘generally accepted in the scientific community’ as under the Frye standard, it is a factor for trial courts to consider. This factor was properly considered by the trial court. When this Court adopted the Daubert standard, it did not ‘lower the bar’ for admittance of expert testimony. We simply recognized that our learned trial judges are in the best position to make the determination. We made them the gatekeepers of expert testimony, not the doormen. Id. at 150 (emphasis added). ¶27. In Poole v. Avara, 908 So. 2d 716, 724 (Miss. 2005), this Court also held that consensus among peer-reviewed materials is not a requirement of admissibility. Citing Daubert, this Court in Poole stated that “[r]equiring that the subject of expert testimony be known to a certainty is not necessary either, however, because, as the Daubert Court pointed out, ‘there are no certainties in science.’” Id. at 723-24 (citing Daubert, 509 U.S. at 590). ¶28. To counter Patterson’s argument that the trial court erred in excluding the expert testimony, the defendants cite this Court’s recent holding in Hill v. Mills, 26 So. 3d 322, 331 12 (Miss. 2010), that “when an expert . . . renders an opinion that is attacked as not accepted within the scientific community, the party offering that expert’s opinion must, at a minimum, present the trial judge with some evidence indicating that the offered opinion has some degree of acceptance and support within the scientific community.” ¶29. This Court in Hill distinguished Poole, stating that: We do not today retreat in any respect from our holding in Poole. We find it completely distinguishable. Unlike the present case, the challenged opinion at issue in Poole had not been the subject of peer-reviewed articles. Consequently, the defendant in Poole did not challenge the expert’s opinions by producing peer-reviewed articles or authorities which contradicted the opinions. Thus, Poole stands for the proposition that there exists no per se requirement that an expert’s opinion be supported by peer-reviewed articles. In contrast to Poole, the subject matter of the expert opinion in the case before us today has been extensively explored and documented, and one hundred percent of the documentation presented to the trial judge contradicts Dr. Fuselier’s opinion. Thus, we cannot say that the trial judge abused his discretion in finding that, under Rule 702, Dr. Fuselier’s opinions regarding available interventions to prolong Hill’s pregnancy were unreliable and inadmissible. We restate for emphasis that, when the reliability of an expert’s opinion is attacked with credible evidence that the opinion is not accepted within the scientific community, the proponent of the opinion under attack should provide at least a minimal defense supporting the reliability of the opinion. The proponent of the expert cannot sit on the side lines and assume the trial court will ignore the unrebutted evidence and find the expert’s opinion reliable. Were we automatically to allow introduction of expert opinions which are based upon nothing more than personal experience in cases where those opinions are contradicted in the scientific literature, we would effectively render Rule 702 and Daubert a nullity. Id. at 332-33 (citations omitted) (emphasis added). ¶30. We find that today’s case is analogous to Hill. The defendants presented peer- reviewed articles contradicting the expert opinions offered by Patterson, and she failed to 13 provide evidence that the offered opinions have some degree of scientific acceptance and support. The defendants presented one peer-reviewed article stating that the half-life of Demerol in neonates is approximately 10.7 hours, another article stating that the half-life varies from 6.5 to 39 hours in newborns, and another stating that the average half-life is 13.24 hours. Patterson did not present scientific literature in support of Dr. Shukan’s and Dr. Hayne’s opinions. While Dr. Shukan did state that he referred to medical texts and websites in forming his overall opinion, he did not provide a source for the half-life he used in his calculation. Dr. Hayne testified that he obtained the half-life used in his calculation – four and one half to five hours – from Mississippi Crime Laboratory personnel. ¶31. Patterson is correct in her assertion that lack of consensus among sources does not automatically render an expert opinion inadmissible. An offered opinion that has been contradicted by published and peer-reviewed data, however, must be supported by some evidence of support and acceptance in the scientific community. Patterson has failed to meet this standard. Accordingly, the trial court did not abuse its discretion in excluding the expert witnesses’ testimony on the predeath levels of Demerol in Atravius’s system. D. Credibility Versus Reliability ¶32. In the alternative, Patterson argues that today’s issue is one of credibility, which is proper for the trier of fact to determine and not the trial court. Treasure Bay Corp. v. Ricard, 967 So. 2d 1235, 1239 (Miss. 2007). As part of its gatekeeping role under Rule 702, the trial court is to determine whether expert testimony is reliable. Id. at 1241 (citing Miss. R. Evid. 702 cmt.). “Neither the rule nor its comment mentions any requirement that statements relied upon by an expert using proper, reliable, methodology also be found credible.” Id. 14 ¶33. In Treasure Bay, the expert witness relied on a statement made by a drunk driver in forming his opinion that the driver was visibly intoxicated when served intoxicating beverages by a casino. Id. at 1237-38. When arguing that summary judgment was improper, the defendants claimed that the trial court should not have relied on the expert’s opinion “because it was partially based upon a statement by [the drunk driver], which, according to the defendants, lacks credibility.” Id. at 1240. Specifically, the defendants argued that the driver’s statement was untruthful. Id. In response, this Court held that: Indeed, experts in many fields, including medicine, accident reconstruction and forensic pathology, frequently rely on histories provided by patients and witnesses. Thus, it would be unsettling for this Court abruptly to reject all expert opinion which relies on a historical account of the facts. Of course, whether or not the facts relied upon are credible is a matter for cross- examination and collateral attack at trial. Id. ¶34. Patterson argues that, even if the trial court found the half-lives used by Dr. Shukan and Dr. Hayne to be incorrect, according to this Court’s reasoning in Treasure Bay, it was error to exclude the testimony. Patterson supports this argument by claiming that the half-life used in a back-extrapolation calculation is an issue of credibility, which may be attacked through cross-examination or contradicting experts. ¶35. This Court, however, has held that “the sufficiency of foundational facts or evidence on which to base an opinion is a question of law.” Janssen Pharmaceutica, Inc. v. Bailey, 878 So. 2d 31, 60 (Miss. 2004) (citations omitted) (emphasis added). As part of the trial court’s gatekeeping role, it must “examine the reliability” of the expert’s opinion and must 15 determine whether the facts “afford a ‘reasonably accurate basis’ for the expert’s conclusion.” Id. (citations omitted). ¶36. We find that the question of whether Dr. Hayne and Dr. Shukan used the correct half- life in their calculations is an issue of reliability, not credibility. The Court in Treasure Bay referred to a “historical account of . . . facts” when finding that statements relied upon by experts need not be judged on their credibility by the trial court in determining whether to accept an expert’s opinion. Treasure Bay, 967 So. 2d at 1240. The experts in today’s case, however, do not rely on a factual statement made by another doctor or a patient. The experts must rely on scientific data to form their opinions. Under Rule 702, these opinions must be based on “sufficient facts or data.” Using a correct half-life is essential to performing a correct back-extrapolation calculation. Without the correct data, the experts’ calculations will not be based on sufficient data. This is an issue of law which the trial court must determine, not the trier of fact. See Janssen, 878 So. 2d at 60; Int’l Paper Co. v. Townsend, 961 So. 2d 741, 758 (Miss. Ct. App. 2007) (citations omitted) (“The sufficiency of foundational facts or evidence on which an expert bases his opinion is a question of law which must be determined by the trial judge.”). ¶37. In sum, we find that the trial court did not abuse its discretion in excluding the testimony of Dr. Shukan and Dr. Hayne. Patterson failed to present evidence supporting her experts’ testimony when the defendants challenged the reliability of the plaintiff’s experts with published data. This lack of support is an issue of reliability, not credibility. II. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS. 16 ¶38. The trial court granted summary judgment in favor of all three defendants after it excluded the testimony of Dr. Shukan and Dr. Hayne. The trial court stated that summary judgment was proper because Patterson could not show causation without the excluded testimony. Patterson now argues that she can show causation without the excluded testimony and that summary judgment was improper. A. Procedural Background ¶39. Because of the unusual procedural posture of this case, a brief discussion of the procedural facts relating to this issue is necessary. The trial court entered its order excluding the testimony of Dr. Shukan and Dr. Hayne on January 14, 2009. It is important to note that the order excluded only the testimony that related to the predeath levels of Demerol in Atravius’s system. The order did not exclude the testimony as a whole. On June 11, 2009, the trial court granted summary judgment in favor of all three defendants. The judgment stated that the defendants had made an ore tenus motion for summary judgment. There is no record of the motion, or Patterson’s response, in the transcript.10 ¶40. At oral argument, counsel for Dr. Tibbs stated that he had drafted the judgment and submitted it to the trial court. Counsel admitted that the defendants did not file a motion for summary judgment and that a summary judgment hearing was never held. Patterson’s counsel argued in his brief and at oral argument that Patterson could show causation without the excluded Demerol testimony. 10 The defendants argued in their briefs and at oral argument that Patterson had waived her ability to appeal the entry of summary judgment because she did not object to it at the trial-court level. Because the record does not contain a motion for summary judgment, we find that this argument is without merit. One cannot respond, or object, to a motion that does not exist. 17 B. Relevant Law ¶41. Mississippi Rule of Civil Procedure 56 governs motions for summary judgment. This Court reviews de novo a trial court’s grant of summary judgment. Chisolm v. Miss. Dep’t. of Transp., 942 So. 2d 136, 140 (Miss. 2006) (citing Webb v. Braswell, 930 So. 2d 387, 395 (Miss. 2006)). This Court examines all evidence, including pleadings, answers to interrogatories, depositions, and affidavits. Id. (citing McCullough v. Cook, 679 So. 2d 627, 630 (Miss. 1996)). The evidence must be viewed in the light most favorable to the nonmoving party. Id. (citing Hataway v. Nicholls, 893 So. 2d 1054, 1057 (Miss. 2005)). Summary judgment is appropriate when the nonmoving party has failed sufficiently to establish an essential element of that party’s claim. Buckel v. Chaney, 47 So. 3d 148, 153 (Miss. 2010) (citations omitted). The essential elements of a medical-malpractice claim are: (1) the existence of a duty on the part of a physician to conform to the specific standard of conduct, (2) the applicable standard of care, (3) the failure to perform to that standard, (4) that the breach of duty by the physician was the proximate cause of the plaintiff’s injury, and (5) that damages to the plaintiff resulted. Estate of Northrop v. Hutto, 9 So. 3d 381, 384 (Miss. 2009) (citing Barner v. Gorman, 605 So. 2d 805, 808-09 (Miss. 1992)). ¶42. The foregoing standard is even more important when considering the unusual procedural history of this case. We are without the benefit of parts of the record commonly used by this Court to guide our analysis of summary judgment issues: the defendants’ motion and supporting documents, the plaintiff’s response, or a hearing transcript. Thus, in accord with our standard, we examined all the evidentiary matters in this case in the light most favorable to the nonmoving party. After a careful examination of the record, we find that the 18 trial court did not err in granting summary judgment in favor of Dr. McArthur. We do find, however, that the trial court erred in granting summary judgment in favor of BMC and Dr. Tibbs. Because the causation testimony relating to Dr. McArthur is distinct from the testimony relating to Dr. Tibbs and BMC, we address Dr. McArthur first. Then, because of the similar analysis used, we address Dr. Tibbs and BMC together. C. Dr. McArthur ¶43. Dr. McArthur delivered Atravius and performed his circumcision. The causation testimony relating to Dr. McArthur focused on Dr. Hayne’s theory that Angelia Patterson had received an overdose of Demerol during labor and Dr. Shukan’s testimony that Atravius had received an overdose of Demerol during his circumcision. Dr. Shukan also testified that Dr. McArthur had breached the standard of care by failing to include a surgical note documenting whether he had given Atravius Demerol during the circumcision. Other than the testimony relating to the Demerol theories, there is no evidence of causation relating to Dr. McArthur in the record. There is no need to discuss the other elements of medical malpractice because Patterson has failed to establish the essential element of causation. See Estate of Northrop, 9 So. 3d at 384; Buckel, 47 So. 3d at 153. Accordingly, the trial judge did not err in granting summary judgment in favor of Dr. McArthur. D. Dr. Tibbs and BMC ¶44. At first blush, one might reasonably assume that a grant of summary judgment in favor of Dr. Tibbs and BMC would be appropriate. The bulk of the testimony in this case involved the Demerol theories propounded by Dr. Hayne and Dr. Shukan. Without this testimony, one would naturally think that Patterson cannot prove causation. Upon close 19 examination of the record, however, this Court finds testimony which tends to show causation on the part of Dr. Tibbs and BMC. ¶45. During his deposition testimony, Dr. Shukan essentially discussed the timeline of events leading to Atravius’s death, including the standards of care breached and whether those breaches caused Atravius’s death. The following are excerpts of Dr. Shukan’s deposition: Dr. Shukan: At 6 p.m. an IV was started, and this is where I think there was a breakdown in what is considered good nursing abilities and good nursing care. That IV was ordered at 5 p.m. and wasn’t started in this child until 6 p.m. Counsel: Is that a deviation from the standard of care, in your opinion? Dr. Shukan: I certainly would agree. Counsel: That’s my question. Is it – Dr. Shukan: I certainly would agree that it is a deviation -- were a deviation from good nursing care. Ordered at 5 in a child who has a significant problem, started at 6. This is not medicine they had to go out and get. This is IV fluids that are usually available to most nurses. Counsel for BMC: Objection to the statement that this is medicine they did not have to go out and get. Counsel: All right. Do you have an opinion whether or not, based upon reasonable medical probability, this caused or contributed to the death of Atravius Coleman? Dr. Shukan: I certainly think that there’s a possibility and probability here that it could have contributed. Counsel: Okay. All right. Go ahead. Dr. Shukan: Okay. At 7:30 a Dopamine drip was started. Now, Dopamine is a drug that helps to increase blood pressure. That’s its sole usage. That is a full four hours after this child showed significant problems in respiration and significant problems in oxygenation, ability to get oxygen to his blood. At 20 5:30 he showed a very significant decrease in blood pressure, and we didn’t see this started for another two hours after that, the Dopamine. By that time – Counsel: I’m sorry. Dr. Shukan: Uh-huh. Counsel: So let me ask you this: Based upon reasonable medical probability, is that a deviation in the standard of care to not start the Dopamine until 7:30? Dr. Shukan: I would think so. This child needed Dopamine before. Counsel: All right. Who do you feel that deviated from the standard of care -- Dr. Shukan: I would think when the doctor in charge looks at 5:30 at a blood pressure of 15 diastolic, that he would be the one that should have ordered that with rapidity. That should have been started much quicker. Counsel: All right. And your talking about what doctor? Dr. Shukan: Dr. Tibbs. Counsel: All right. And did this in any way cause or contribute to the death of Atravius Coleman? Counsel for Dr. Tibbs: Object to the form of the question. Counsel: You can answer it. Counsel: Based upon reasonable medical probability. Dr. Shukan: In my opinion, this very well could have aided in the death -- contributed to the death of Atravius Coleman. Counsel: All right. Go ahead. Dr. Shukan: Critical in this chart are the next three entries. At 9:45, some six hours and -- six and a quarter hours after the onset of this horrible event, he was noted to have a diastolic pressure of 13. This child is crashing. He is now officially in shock. 9:45. The only thing I can find documented here is that another blood gas was drawn one hour later. There are no changes in IVs; 21 there are no changes in medications given; one hour later further evidence of crashing. This child now had -- I’m sorry -- 9:45 he had 19 diastolic pressure, low. Here’s 13 – Counsel: What time is that? Dr. Shukan: That would be at 10:45. A whole hour went by and this child had nothing. This -- and also, a blood gas was done back at 9:45 that showed a Ph of 7.22 so our acidosis is getting worse, and the critical agent here is a bicarbonate of 7.1. The normal bicarbonate being in the 26, 28 range. This means the child has used up all the ability to buffer the acid, and there’s virtually no more ability -- because bicarb is a base and buffers acid. It’s almost gone. This child now has severe metabolic acidosis, and it’s predictable at this point, you’re going to have trouble. Very predictable. He needed bicarb. .... Counsel: All right. Based upon reasonable medical probability, at 9:45 p.m. was there a deviation from the standard of care, and if so, by whom was there a deviation? Dr. Shukan: Well, there’s no question in my mind that bicarb should have been added here. This situation should have been also fraught with the medicines that we’ll see that were given an hour later, and that would be Dr. Tibbs who should have been there, should have been in the nursery, and we’ll find out in a moment that he wasn’t and should have been in charge here trying to save this child’s life. Counsel: In your opinion, was that a deviation of the standard of care? Dr. Shukan: Yes, sir. Counsel: By Dr. Tibbs? Dr. Shukan: Yes. Counsel: Did that cause or contribute to the death of Atravius Coleman? Dr. Shukan: I would think it contributed very possibly, to the death, yes. Counsel: All right. Dr. Shukan: Very probably to the death. 22 Counsel: Okay. Now, what about the nurses at 9:45? Do you have any deviation from the standard of care as it pertains to the nurses at Bolivar Medical Center at that time? Dr. Shukan: I certainly do. Counsel: All right. What deviations did they have at that time? Dr. Shukan: Okay. As you note at 9:45, I am describing a situation that’s terminal shock. If this isn’t taken care of immediately, this child has no hope. And no phone call was made to Dr. Tibbs until one hour and twenty minutes later. Clearly documented on the chart that this child at this point, the point that the nurse called Dr. Tibbs, the child was unresponsive to deep-pain stimuli, he had a PO2 of 92. Dr. Tibbs, who was in the lounge, in the doctor’s lounge, was called. One hour and twenty minutes in shock. There is no increase in fluids; there was no antishock medicine; those will be enumerated down here, epinephrine, Atropine. These are all medicines used in shock, not an hour and 20 minutes after shock has started. So there’s a big deviation here. Counsel: By whom? Dr. Shukan: Well, no nurse -- the nurse to begin with for not making a phone call, not recognizing this as an agonal or painful, terminal end result -- situation rather, and not calling the doctor for 1 hour and 20 minutes. And number two, I believe that Dr. Tibbs, being an intensive care pediatrician involved in this, should have known that this child is this sick. I can’t go to the lounge. I need to be here. He was obviously out of the nursery for at least an hour and twenty minutes here. That’s not what you do when you have a child who’s in metabolic acidosis, and it’s not getting better. .... Counsel: All right. As far as Dr. Tibbs is concerned, based upon reasonable medical probability, was there a deviation? Dr. Shukan: Yes. Counsel: Have you explained it? Dr. Shukan: I have explained it. Counsel: All right. Did this deviation cause or contribute to the death of Atravius Coleman, and base that upon reasonable medical probability. 23 Dr. Shukan: I would think the probability at this point was that the fact that he wasn’t cared for correctly, at least in this time frame, lead to his death 45 minutes later. Counsel: Okay. Now, do you have any -- was there any deviations from the standard of care at 11:05 by the nurses of Bolivar Medical Center? .... Dr. Shukan: Yes, the standard -- the deviation from normal care. In fact, they should have called him 1 hour and 20 minutes earlier, in my opinion - - Counsel: Okay. Dr. Shukan: -- and we may have saved his life. Counsel: All right. So, is that based upon reasonable medical probability, that deviation you just made reference to? Dr. Shukan: Certainly. Counsel: Did that, in your opinion, based upon reasonable medical probability, cause or contribute to the death of Atravius Coleman? Dr. Shukan: I would think that it contributed to the demise 45 minutes later of this child, yes. ¶46. Dr. Shukan also submitted an affidavit in which he stated that, regardless of the cause of Atravius’s condition, Dr. Tibbs should have treated his condition more aggressively. Dr. Shukan stated: Dr. Tibbs should have recognized that the combination of metabolic acidosis and depressed respirations are not part of hypoplastic left ventricular syndrome. He should have treated the metabolic acidosis more aggressively. Regardless of the cause, the metabolic acidosis must be treated more aggressively and certainly Dr. Tibbs should have used life saving vasoactive medications earlier instead of saving them for the last few minutes of the child’s life. ¶47. Although one may argue that the foregoing testimony was predicated on the assumption that Atravius died of a Demerol overdose, we must keep in mind that the cause 24 of Atravius’s death is an issue for the trier of fact to determine. See Worthy v. McNair, 37 So. 3d 609, 620 (Miss. 2010) (quoting Causey v. Sanders, 998 So. 2d 393, 403 (Miss. 2009)). The defendants argue that Atravius died of hypoplastic left heart syndrome. And although Patterson has argued that Atravius died of as a result of a Demerol overdose, the testimony above focused on the treatment that Atravius received after his condition began to deteriorate for whatever reason. Dr. Shukan was of the opinion that, regardless of the cause of Atravius’s condition, Atravius should have received different treatment in the hours before his death. When viewing the testimony above in the light most favorable to Patterson, we find that genuine issues of material fact exist concerning whether BMC and Dr. Tibbs caused Atravius’s death or failed to prevent it. See Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So. 2d 790, 796 (Miss. 1995) (quoting Kelley v. Frederic, 573 So. 2d 1385, 1389 (Miss. 1990)) (“There is no magical form to which a plaintiff’s supporting expert opinion must conform, so long as its import is apparent.”). ¶48. We also find that Patterson has presented sufficient evidence to withstand summary judgment concerning the other essential elements of a medical-malpractice claim against Dr. Tibbs and BMC. Dr. Tibbs and BMC had a duty to meet the following national standard of care: Given the circumstances of each patient, each care giver has the duty to use his or her knowledge and treat, through maximum reasonable medical recovery, each patient with such reasonable diligence, patience, skill, confidence, and prudence as are practiced by minimally competent care givers in the same specialty or general field of practice throughout the United States, who have available to them the same general facilities, services, equipment, and options. 25 Jeffrey Jackson & Mary Miller, 6 Encyclopedia of Miss. Law § 58:5 (Miss. Practice Series 2001) (citing Starcher v. Byrne, 687 So. 2d 737 (Miss. 1997); Toche v. Kilebrew, 734 So. 2d 276 (Miss. 1999); Palmer v. Biloxi Reg’l Med. Ctr., 564 So. 2d 1346 (Miss. 1990)). Dr. Shukan testified in his deposition to the specific standards that the nurses and Dr. Tibbs should have met while treating Atravius. Dr. Shukan also testified that the nurses and Dr. Tibbs failed to meet some of these standards. Finally, Patterson suffered various damages due to Atravius’s death. ¶49. When viewing all of the evidence in the light most favorable to Patterson, we find that a genuine issue of material fact exists concerning Patterson’s claims against Dr. Tibbs and BMC. Accordingly, we find that the trial court erred in granting summary judgment in favor of Dr. Tibbs and BMC. CONCLUSION ¶50. The trial court did not commit reversible error in excluding the expert testimony of Dr. Shukan and Dr. Hayne on the predeath levels of Demerol in Atravius’s system. The defendants contradicted the experts’ testimony with published, peer-reviewed data, and Patterson failed to respond with evidence showing acceptance and support in the scientific community of the experts’ theories. Thus, the trial court’s decision to exclude the testimony was not arbitrary or clearly erroneous. The trial court properly granted summary judgment in favor of Dr. McArthur. Without the excluded Demerol testimony, Patterson could not show that Dr. McArthur had caused any injury. 26 ¶51. On the other hand, the trial court did err in granting summary judgment in favor of Dr. Tibbs and BMC. Even without the excluded Demerol testimony, evidence in the record supports Patterson’s claims against Dr. Tibbs and BMC. ¶52. For these reasons, we affirm the trial court’s judgment in favor of Dr. William McArthur; however, we reverse the trial court’s judgment in favor of Dr. Bob Tibbs and Bolivar County Medical Center, and we remand this case to the Circuit Court for the Second Judicial District of Bolivar County for further proceedings consistent with this opinion. ¶53. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. WALLER, C.J., DICKINSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. KING, J., NOT PARTICIPATING. 27	{ "pile_set_name": "FreeLaw" }
In The Court of Appeals Seventh District of Texas at Amarillo ________________________ No. 07-19-00322-CR ________________________ TRAVIS TYRONE MITCHELL, APPELLANT V. THE STATE OF TEXAS, APPELLEE On Appeal from the 47th District Court Potter County, Texas Trial Court No. 76,765-A-CR; Honorable Dan L. Schaap, Presiding December 9, 2019 ABATEMENT AND REMAND Before QUINN, C.J., and PIRTLE and PARKER, JJ. Appellant, Travis Tyrone Mitchell, appeals his conviction for burglary of a habitation1 and sentence to ten years confinement. The appellate record was due on November 12, 2019. The clerk’s record was timely filed, but the reporter’s record was not filed by this deadline. By letter of November 19, 2019, we notified the reporter that the 1 TEX. PENAL CODE ANN. § 30.02(C)(2) (West 2019). reporter’s record was overdue and directed her to advise this court of the status of the record by December 2. To date, the reporter has not filed the reporter’s record or requested an extension of time to file the record. The court reporter is responsible for preparing, certifying, and timely filing the reporter’s record. TEX. R. APP. P. 35.3(b). Additionally, trial and appellate courts are jointly responsible for ensuring that the appellate record is timely filed. TEX. R. APP. P. 35.3(c). Consequently, we now abate this appeal and remand the cause to the trial court for further proceedings. Upon remand, the trial court shall utilize whatever means necessary to determine the reasons for the delay in filing the reporter’s record and take such action as is necessary to ensure the filing of same on or before January 6, 2020. See TEX. R. APP. P. 37.3(a)(2). The trial court shall enter findings of fact and conclusions of law addressing these subjects and shall cause its findings, conclusions, and any necessary orders to be included in a supplemental clerk’s record filed with this court by January 21, 2020. Should the reporter file the complete reporter’s record on or before December 23, 2019, she is directed to immediately notify the trial court of the filing, in writing, whereupon the trial court shall not be required to take any further action. It is so ordered. Per Curiam Do not publish. 2	{ "pile_set_name": "FreeLaw" }
18-3235-pr Janakievski v. Executive Director, Rochester Psychiatric Center 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term, 2019 5 6 (Submitted: January 27, 2020 Decided: April 10, 2020) 7 8 Docket No. 18-3235 9 10 11 _____________________________________ 12 13 STEVEN JANAKIEVSKI, 14 15 Petitioner-Appellant, 16 17 v. 18 19 EXECUTIVE DIRECTOR, ROCHESTER PSYCHIATRIC CENTER, 20 21 Respondent-Appellee. 22 _____________________________________ 23 24 Before: 25 26 LEVAL, CABRANES, and LOHIER, Circuit Judges. 27 28 Petitioner Steven Janakievski appeals from the judgment of the United 29 States District Court for the Western District of New York (Michael A. 30 Telesca, J.), dismissing his petition for a writ of habeas corpus. Janakievski’s 31 petition attacked his confinement in a state psychiatric institution as a person 32 with a “dangerous mental disorder.” The district court dismissed the petition 33 on the grounds that it became moot when Janakievski was conditionally 34 released from confinement. Held, because Janakievski remains subject to an 35 “order of conditions” that leaves him vulnerable to recommitment, and the 36 imposition of this order was a mandatory consequence of the confinement 37 orders that his petition challenges, his conditional release does not render the 38 petition moot. VACATED and REMANDED. 39 1 JONATHAN I. EDELSTEIN, Edelstein & 2 Grossman, New York, NY, for Petitioner- 3 Appellant. 4 5 LISA ELLEN FLEISCHMANN (Barbara D. 6 Underwood, Solicitor General, Andrew 7 W. Amend, Assistant Deputy Solicitor 8 General for Criminal Matters, on the 9 brief), for Letitia James, Attorney General 10 of the State of New York, Albany, NY, 11 for Respondent-Appellee. 12 13 LEVAL, Circuit Judge: 14 Petitioner Steven Janakievski appeals from the judgment of the United 15 States District Court for the Western District of New York (Michael A. 16 Telesca, J.), dismissing as moot his petition for a writ of habeas corpus. In 17 2009, Janakievski was involuntarily committed to a New York State 18 psychiatric institution after being charged with first-degree assault and 19 pleading “not responsible by reason of mental disease or defect.” N.Y. Crim. 20 Proc. Law (“CPL”) § 330.20. While in the custody of the New York State 21 Office of Mental Health, Janakievski filed a pro se petition for a writ of habeas 22 corpus pursuant to 28 U.S.C. § 2254. His petition challenged the validity of 23 the original state-court order that found him to suffer from a “dangerous 24 mental disorder” and committed him for six months to the Rochester 2 1 Psychiatric Center, as well as three subsequent orders that extended the 2 duration of the confinement. 3 In 2018, several years subsequent to Janakievski’s filing of the federal 4 habeas petition, the state court found his mental condition sufficiently 5 improved and ordered him conditionally released from inpatient custody, 6 subject, as required by state law, to an order of conditions of at least three 7 years duration. State law mandates that during that order’s duration, he 8 remain subject to the possibility of recommitment on the state’s showing by a 9 preponderance of the evidence that he has a dangerous mental disorder. See 10 CPL § 330.20(14). The order of conditions further requires that he continue 11 outpatient mental health treatment, refrain from the use of drugs or alcohol, 12 and seek the state’s approval before changing his address or leaving New 13 York. That order remains in effect. 14 The district court dismissed Janakievski’s habeas petition on the 15 ground that it was moot. The court reasoned that the limited-duration orders 16 of confinement that the petition challenged had all expired and that 17 Janakievski had been released from inpatient custody, with the consequence 18 that he no longer suffered “an actual injury which is likely to be redressed by 3 1 a favorable decision.” Janakievski v. Exec. Dir., Rochester Psychiatric Ctr., No. 2 6:14-cv-06168, 2018 WL 4681596, at 3 (W.D.N.Y. Sept. 28, 2018) (quoting 3 United States v. Mercurris, 192 F.3d 290, 293 (2d Cir. 1999)). 4 We conclude that Janakievski’s release from inpatient custody did not 5 moot his habeas petition because the orders attacked in the petition continue 6 to impose restrictions on his liberty. The 2018 order of conditions to which 7 Janakievski remains subject — but which Janakievski did not directly 8 challenge in his habeas petition — was, under state law, a mandated 9 consequence of the confinement orders he challenges, and constitutes an 10 ongoing injury that can be redressed by a favorable decision. We accordingly 11 VACATE the district court’s judgment and REMAND for further 12 proceedings. 13 BACKGROUND 14 In December 2007, Janakievski attacked a co-worker with a knife, 15 causing life-threatening stab wounds to the victim’s head and neck. At the 16 time, Janakievski had been using controlled substances daily and experienced 17 psychotic delusions, including a belief that the stabbing victim was a Russian 18 spy. He was charged with first-degree assault and tried in the County Court 4 1 for Monroe County, New York. At trial, psychiatric experts for the 2 prosecution and the defense agreed that, at the time of the knife attack, 3 Janakievski was suffering from a psychotic disorder and did not appreciate 4 the wrongfulness of his conduct. The court accordingly accepted Janakievski’s 5 plea of not responsible by reason of mental disease or defect pursuant to CPL 6 § 330.20. 7 CPL § 330.20(2) provides that when a criminal defendant is found not 8 responsible by reason of a mental disease or defect, he must undergo a 9 psychiatric examination. On the basis of that examination, the state court is 10 directed to determine in which of three categories, or “tracks,” the defendant 11 belongs. 1 If he is found to have a “dangerous mental disorder,” defined as a 12 mental illness that renders him “a physical danger to himself or others,” CPL 13 § 330.20(1)(c), then he is classified as “track one” and the court must issue a 14 commitment order confining the defendant in a secure mental health facility 15 for six months. Id. § 330.20(6), (1)(f). If the court finds that the defendant is 16 mentally ill but not dangerous, he is classified as “track two” and the court 1Although the statute itself does not use the term “tracks” to label its three-tiered system, New York courts and commentators frequently describe its classifications that way. See In re Norman D., 3 N.Y.3d 150, 153 n.1 (2004). 5 1 must issue an “order of conditions” 2 and an order committing him to a non- 2 secure facility, which custody is governed not by the Criminal Procedure Law 3 but by the civil Mental Hygiene Law. Id. § 330.20(7); see also Allen B. v. Sproat, 4 23 N.Y.3d 364, 368–69 (2014). If the defendant is found to be neither 5 dangerous nor mentally ill, he is classified as “track three” and must either be 6 discharged unconditionally or released subject to an order of conditions. CPL 7 § 330.20(7). The status of a “track one” defendant remains subject to ongoing 8 review, and the state must apply for periodic “retention orders” to keep a 9 defendant in inpatient custody. Id. § 330.20(8), (9). A defendant’s “track 10 status,” however, is permanent and “governs [his] level of supervision in 11 future proceedings.” In re Norman D., 3 N.Y.3d 150, 152 (2004). 12 In April 2009, having undergone the required examination, Janakievski 13 was found by the state court to suffer from a dangerous mental disorder (i.e., 14 to be in “track one”) and was committed to the Rochester Psychiatric Center 15 (“RPC”). The state court issued subsequent retention orders continuing his 16 involuntary commitment in October 2009, October 2010, December 2010, and 2An “order of conditions” is an order that, inter alia, requires a defendant to comply with a particular treatment plan or any other condition which the court determines to be reasonable, and is “valid for five years from the date of its issuance.” CPL § 330.20(1)(o). 6 1 August 2012, on the ground that Janakievski continued to suffer from mental 2 illness. In the last of these orders, the court determined that Janakievski was 3 no longer dangerous but remained mentally ill and in need of inpatient 4 treatment. The August 2012 retention order expired in July 2013, but 5 Janakievski continued to be confined in a non-secure wing of the RPC 6 pursuant to a temporary retention order. 7 In April 2014, Janakievski, proceeding pro se, filed the instant habeas 8 petition in the United States District Court for the Western District of New 9 York. The petition asserted a range of statutory and constitutional violations 10 with respect to the original April 2009 commitment order, the October and 11 December 2010 retention orders, and the August 2012 retention order. The 12 petition challenged the sufficiency of the evidence supporting the original 13 finding that he was dangerous and mentally ill, asserting that at the time of 14 his commitment to the RPC “the hospital records show that he was in full 15 remission,” and that he “should have been released.” Supp. App’x at 42. He 16 also alleged that the initial commitment order violated his right to due 17 process and the Eighth Amendment. With respect to the subsequent retention 18 orders, Janakievski asserted that they, too, were not supported by sufficient 7 1 evidence, that they violated due process (as well as the Federal Rules of Civil 2 Procedure), and that he was deprived of the effective assistance of counsel. As 3 relief, Janakievski demanded that the commitment and retention orders be 4 vacated and that he be unconditionally discharged from state custody. 5 In June 2018, while this petition to the federal court was pending, the 6 state court released Janakievski from the RPC subject to an “order of 7 conditions.” Supp. App’x at 245-52; see CPL § 330.20(12). The ruling was 8 based on a finding that Janakievski’s clinical condition warranted 9 “conditional release from inpatient treatment” because he did not “currently 10 suffer from a dangerous mental disorder and [was] not mentally ill.” Supp. 11 App’x at 247. The order of conditions mandated that for three years (until 12 June 2021) Janakievski continue outpatient mental health treatment, refrain 13 from the use of drugs or alcohol, and seek the state’s approval before 14 changing his address or leaving the state. The conditions may be extended for 15 an additional three years on a showing of good cause by the state. 16 In addition to these particular conditions — all of which were found by 17 the state court in June 2018 to be “reasonably necessary or appropriate” for 18 Janakievski’s treatment, CPL § 330.20(12) — Janakievski faces an overarching 8 1 restriction that is inherent to any “order of conditions” under CPL § 330.20. 2 Any defendant subject to an order of conditions can, at any time, be 3 recommitted upon application of the state, based on a showing by a 4 preponderance of the evidence that the defendant suffers from a dangerous 5 mental disorder. See CPL § 330.20(14); Ernst J. v. Stone, 452 F.3d 186, 187 (2d 6 Cir. 2006). When the state makes such an application, the court must order the 7 defendant to appear for a hearing, and if the defendant fails to appear he can 8 be arrested, brought before the court, and confined. See CPL § 330.20(14). If 9 the court finds that the defendant has a dangerous mental disorder, it must 10 issue a “recommitment order” mandating his confinement to a secure facility 11 for six months. Id.; see also id. § 330.20(1)(f). 12 In dismissing Janakievski’s petition in September 2018, the district 13 court reasoned that the petition became moot when Janakievski was 14 conditionally released from inpatient custody, as he was “no longer subject to 15 any of the orders” that he challenged in his petition and thus no longer had 16 any redressable injuries. 2018 WL 4681596, at 3. The district court declined to 17 issue a certificate of appealability, id., but a motions panel of our court 9 1 granted one on the question “whether the district court erred in dismissing 2 Appellant’s 28 U.S.C. § 2254 petition as moot,” Dkt. No. 30. 3 DISCUSSION 4 We review de novo the denial of a petition for a writ of habeas corpus, 5 including whether the petition is moot. Nowakowski v. New York, 835 F.3d 210, 6 215 (2d Cir. 2016). Although Janakievski is now represented by counsel, we 7 construe his pro se “submissions liberally and interpret them to raise the 8 strongest arguments they suggest.” Id. (citation and quotation marks 9 omitted). 10 I. Law Governing the Mootness of a Habeas Petition 11 To satisfy the Constitution’s case-or-controversy requirement, a party 12 must, at each stage of the litigation, have an actual injury which is likely to be 13 redressed by a favorable judicial decision. See Mercurris, 192 F.3d at 293. If, as 14 a result of changed circumstances, a case that presented an actual redressable 15 injury at the time it was filed ceases to involve such an injury, it ceases to fall 16 within a federal court’s Article III subject matter jurisdiction and must be 17 dismissed for mootness. 10 1 A habeas petition is generally not moot so long as the petitioner 2 continues to be held in the custody that he alleges is unlawful. See Dhinsa v. 3 Krueger, 917 F.3d 70, 77 n.5 (2d Cir. 2019). That is so whether the petitioner is 4 experiencing direct physical custody (e.g., incarceration), or is subject to 5 restraints on his liberty, such as parole. See Spencer v. Kemna, 523 U.S. 1, 7 6 (1998) (“An incarcerated convict’s (or a parolee’s) challenge to the validity of 7 his conviction always satisfies the case-or-controversy requirement, because the 8 incarceration (or the restriction imposed by the terms of the parole) 9 constitutes a concrete injury, caused by the conviction and redressable by 10 invalidation of the conviction.” (emphasis added)); Jones v. Cunningham, 371 11 U.S. 236, 243 (1963) (habeas petition was not mooted by petitioner’s release on 12 parole because “[w]hile petitioner’s parole releases him from immediate 13 physical imprisonment, it imposes conditions which significantly confine and 14 restrain his freedom”). Moreover, a habeas petition “does not necessarily 15 become moot” when the order it challenges is no longer in effect, so long as 16 the petitioner suffers “some concrete and continuing injury” or “collateral 17 consequence” resulting from the challenged order. Mercurris, 192 F.3d at 293 18 (citation omitted). 11 1 Finally, even if a habeas petitioner can show that he continues to suffer 2 an injury, his injuries must be “likely to be redressed by a favorable judicial 3 decision.” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (citation and quotation 4 marks omitted). A case is moot when the prospect of judicial redress is “so 5 remote and speculative that any decision on the merits” could not “affect the 6 matter in issue in the case.” United States v. Blackburn, 461 F.3d 259, 262 (2d 7 Cir. 2006) (citation and quotation marks omitted). The availability of a “partial 8 remedy,” however, is sufficient to render a case not moot. Church of 9 Scientology of Cal. v. United States, 506 U.S. 9, 13 (1992). A case is “moot only 10 when it is impossible for a court to grant any effectual relief whatever to the 11 prevailing party.” Knox v. Serv. Emps. Int'l Union, Local 1000, 567 U.S. 298, 307 12 (2012) (citation and quotation marks omitted). 13 II. Janakievski Continues to Suffer a Redressable Injury Resulting 14 From the Confinement Orders Challenged by the Petition 15 16 Notwithstanding that the 2009-2012 orders challenged in his habeas 17 petition are no longer in effect, Janakievski contends that he faces continuing 18 consequences from them such that a favorable decision vacating them would 19 provide him meaningful relief. One such continuing consequence, he asserts, 20 is the “order of conditions” to which he remains subject, which requires him 12 1 to receive outpatient treatment and also leaves him vulnerable to 2 recommitment. The order of conditions is not set to expire until June 2021 at 3 the earliest, and Janakievski argues that were a court to grant the relief sought 4 in his habeas petition, he could be rid of these restrictions sooner. 5 Respondent argues that the petition is moot because it attacks 6 confinement orders that have expired and that do not themselves continue to 7 impose a burden. Respondent concedes that the 2018 order of conditions 8 constitutes an injury for Janakievski. But Respondent notes that the habeas 9 petition does not challenge the 2018 order itself and argues that the 10 restrictions imposed by the 2018 order were not “lingering effect[s]” of the 11 expired 2009-2012 confinement orders challenged in the habeas petition, but 12 rather were conditions “implemented to further his mental fitness as assessed 13 in 2018.” Resp. Br. at 33. Accordingly, Respondent argues, even if Janakievski 14 were to prevail on the merits of his petition and the district court were to 15 nullify the challenged orders, he “would not be entitled to unconditional 16 discharge” from his 2018 order of conditions. Id. at 24. 17 We conclude that at least one of the ongoing restrictions on 18 Janakievski’s liberty embodied in the June 2018 order of conditions — in 13 1 particular, the fact that under state law he remains more vulnerable to 2 recommitment — constitutes “an actual injury traceable to the [orders 3 challenged by his petition] and likely to be redressed by a favorable judicial 4 decision.” Spencer, 523 U.S. at 7. A decision by the habeas court to grant 5 Janakievski’s petition and vacate the challenged orders would give him the 6 chance to be immediately rid of the burdens imposed by the order of 7 conditions, rather than having to wait until its expiration. 8 As an initial matter, although it is true that Janakievski’s habeas 9 petition does not challenge the 2018 order of conditions itself, the district 10 court should have, before dismissing the petition as moot, given Janakievski 11 the opportunity to amend his habeas petition to raise such a claim. A 12 pro se plaintiff should be granted leave to amend if “a liberal reading of the 13 complaint gives any indication that a valid claim might be stated.” Cuoco v. 14 Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation and quotation marks 15 omitted). We have said that this rule applies with special force to habeas 16 corpus petitions, since pro se habeas petitioners “ordinarily lack legal 17 knowledge and resources.” Garcia v. Superintendent of Great Meadow Corr. 18 Facility, 841 F.3d 581, 583 (2d Cir. 2016). Here, the district court should have 14 1 taken note of the restrictions imposed on Janakievski’s liberty by the 2018 2 order of conditions and afforded him the opportunity to amend his petition to 3 challenge them directly, instead of dismissing the petition as moot for having 4 challenged only the expired orders. On remand, Janakievski must be given 5 such a chance. 3 6 The district court also erred in concluding that Janakievski no longer 7 suffers, as a continuing consequence of the challenged 2009 to 2012 orders, an 8 actual injury redressable by a favorable decision. The 2018 order of conditions 9 to which Janakievski remains subject today constitutes a “concrete and 10 continuing injury” traceable to the challenged orders. Mercurris, 192 F.3d at 11 294. Although Respondent is correct that the 2018 order of conditions is a 12 separate order from the expired commitment and retention orders challenged 13 by Janakievski, its imposition was a direct and necessary consequence of the 14 expired orders. The April 2009 commitment order found Janakievski to be 3 In the event that Janakievski chooses to challenge on remand the 2018 order of conditions directly, whether such a claim would be procedurally viable or meritorious is a question for the district court to address in the first instance, and on which we express no view. See Dorsey v. Irvin, 56 F.3d 425, 427 (2d Cir. 1995) (remanding the denial of a pro se habeas petition to give petitioner the opportunity to amend to include new claims, but expressing no views as to the merits or procedural viability of those claims). 15 1 dangerously mentally ill and accordingly assigned him to “track one,” a 2 finding that not only required his commitment but also determined the 3 procedures that would govern any future “retention, conditional release or 4 discharge.” Jamie R. v. Consilvio, 6 N.Y.3d 138, 143 (2006). Of relevance here, 5 CPL § 330.20 provides that a track one defendant can be released from 6 confinement in a secure facility either (1) by an order transferring the 7 defendant to a non-secure facility upon a finding that the defendant no longer 8 has a “dangerous mental disorder,” CPL § 330.20(11), or (2) through an order 9 releasing the defendant from state custody upon a finding that the defendant 10 is no longer mentally ill, see id. § 330.20(12). Under either option, the court 11 must issue an order of conditions along with the transfer or release order. See 12 id. § 330.20(11) (providing that the court “must also issue an order of 13 conditions” along with the transfer order); id. § 330.20(12) (providing that “[i]f 14 the court finds that [a track one defendant] does not have a dangerous mental 15 disorder and is not mentally ill,” it must nonetheless issue an order of 16 conditions along with a release order); In re Oswald N., 87 N.Y.2d 98, 102 17 (1995) (“Whenever a court issues either a release order or a transfer order 18 . . . it must also issue an order of conditions.”); see also Jamie R., 6 N.Y.3d at 16 1 143 (“[E]ven a track one patient who improves sufficiently to be transferred to 2 a nonsecure facility continues to be subject to the procedural restrictions 3 in CPL [§] 330.20.” (citation omitted)). Put another way, once the state court 4 declared Janakievski to be dangerously mentally ill in 2009 — a finding he 5 directly challenges in his petition — it was inevitable that, once released from 6 confinement, he would be subject to an order of conditions. 4 7 It is true, as Respondent asserts, that even if an order of conditions was 8 a necessary consequence of the expired orders, specific conditions contained 9 in Janakievski’s 2018 order of conditions — such as mandatory outpatient 10 treatment, drug screenings, and limits on his mobility — were not the 11 inevitable result of Janakievski’s earlier confinement orders. These restrictions 12 were imposed on the basis of a new assessment of Janakievski’s mental fitness 13 in 2018. Resp. Br. at 33; see also CPL § 330.20(12) (authorizing the state court to 4 Such an order of conditions would remain in effect until the issuance of a “discharge order” terminating the order of conditions, see CPL § 330.20(1)(n); Matter of Ramon M., 294 A.D.2d 59, 64 (1st Dep’t 2002), which the court may issue only after finding that the defendant has been continuously on outpatient status for three years or more, that the defendant is not mentally ill, and that the discharge order is “consistent with the public safety and welfare of the community and the defendant,” CPL § 330.20(13); see also Resp. Br. at 9, 29–30. 17 1 include in an order of conditions “any conditions that the court determines to 2 be reasonably necessary or appropriate”). 3 Crucially, however, as to two aspects of the order of conditions, the 4 state court had no discretion. First, under the governing law, Janakievski 5 could not be eligible for a discharge order terminating the order of conditions 6 until he had spent three years as an outpatient following his conditional 7 release from confinement. See CPL § 330.20(13). 5 Second, under CPL 8 § 330.20(14), at any time while an order of conditions remains in effect, the 9 person affected remains subject to recommitment if, upon the application of 10 the state, a court finds by a preponderance of the evidence that the defendant 11 has a “dangerous mental disorder.” See CPL § 330.20(14) (“At any time during 12 the period covered by an order of conditions an application may be made by 13 the commissioner or the district attorney . . . for a recommitment order when 14 the applicant is of the view that the defendant has a dangerous mental 5Although CPL § 330.20(13) does not explicitly state that the subject is ineligible for a discharge order terminating the order of conditions until the passage of three years, that is implicit in its provision that “[t]he commissioner may apply for a discharge order . . . when a defendant has been continuously on an out-patient status for three years or more pursuant to a release order.” Indeed, Respondent relies on CPL § 330.20(13) for the proposition that Janakievski is ineligible for a discharge order until June 2021 — three years after the issuance of his order of conditions — in support of its argument that his injury is not redressable. Resp. Br. at 41–42. 18 1 disorder.”); Ernst J., 452 F.3d at 187 (2d Cir. 2006) (“Those defendants who are 2 [] released subject to an ‘order of conditions’ may, if their condition 3 deteriorates, be ‘recommitted’ involuntarily to a secure psychiatric facility 4 upon a finding — by a preponderance of the evidence — that they have 5 developed a ‘dangerous mental disorder.’”). Merely upon the application of 6 the state, Janakievski would be ordered to appear for a hearing, and if he 7 failed to appear, he could be subject to a warrant to be taken into custody and 8 confined pending the hearing. See CPL § 330.20(14). 9 Because Janakievski is subject to an order of conditions, the burden on 10 the state to cause his recommitment would be less than the burden to cause 11 his commitment by reason of mental disease if he had previously been 12 unconditionally discharged. “New York statutes . . . distinguish between the 13 procedures to be followed for the involuntary civil commitment of persons 14 suffering from mental illness and the procedures that apply to persons 15 charged with a crime and determined, by a plea or a verdict, to be ‘not 16 responsible by reason of mental disease or defect.’” Francis S. v. Stone, 221 17 F.3d 100, 101 (2d Cir. 2000) (quoting CPL § 220.15). Whereas involuntarily 18 committing an individual for mental illness normally requires a showing by 19 1 “clear and convincing evidence” that the person is mentally ill and poses a 2 danger to himself or others, recommitment pursuant to CPL § 330.20(14) 3 requires a lesser showing by a preponderance of the evidence. Ernst J., 452 4 F.3d at 188–90. 5 Accordingly, even though other conditions imposed by the 2018 order 6 did not flow from the earlier orders challenged in Janakievski’s petition, but 7 were instead newly justified at the time based on a current assessment of 8 Janakievski’s treatment needs, the earlier orders did have the inevitable 9 consequence of requiring that he eventually be subject to an order of 10 conditions, and thus of making him vulnerable for a minimum of three years 11 to recommitment in a state psychiatric facility without the same protections 12 that he would enjoy if he had previously been released from custody 13 unconditionally. The district court thus erred in concluding that Janakievski’s 14 release from inpatient treatment meant that he was no longer suffering a 15 continuing injury from the expired orders. 16 The only remaining question, then, is whether the burden imposed on 17 Janakievski by the order of conditions might be redressed by a favorable 18 judicial decision vacating either the 2009 commitment order or the 20 1 subsequent retention orders issued in 2010 and 2012. Respondent argues that 2 any injuries Janakievski suffers are not redressable, asserting that a favorable 3 decision by the habeas court nullifying the challenged orders would not 4 relieve Janakievski of his order of conditions. Respondent argues that under 5 CPL § 330.20(1)(n) and (13), a discharge order is necessary to unconditionally 6 release a defendant and terminate his order of conditions, and a discharge 7 order may issue only “if the court finds that the defendant has been 8 continuously on an out-patient status for three years or more, that he does not 9 have a dangerous mental disorder and is not mentally ill, and that the 10 issuance of the discharge order is consistent with the public safety and 11 welfare of the community and the defendant.” Id. § 330.20(13). According to 12 Respondent, no matter the outcome of Janakievski’s habeas proceedings, he 13 would still need to wait three years and demonstrate that his release would 14 comport with public safety before being eligible for an order terminating his 15 order of conditions. 16 We reject this argument. As noted above, the state court’s imposition of 17 an order of conditions was a direct and mandated consequence of the prior 18 confinement orders that Janakievski challenges in his habeas petition. A 21 1 “track one” defendant such as Janakievski cannot achieve unconditional 2 release without first being subjected to an order of conditions, and cannot 3 obtain a discharge order terminating that order of conditions without having 4 been on outpatient status for at least three years. See CPL § 330.20(13). By 5 contrast, had the state court never found Janakievski to be dangerous or 6 mentally ill — that is, had he been placed in “track three” instead of “track 7 one” — then Janakievski could have been discharged unconditionally in 2009 8 and the court would not have been compelled to impose an order of 9 conditions. See CPL § 330.20(7); see also Richard S. v. Carpinello, 589 F.3d 75, 77 10 (2d Cir. 2009). Today, if Janakievski were to prevail on the merits of his 11 habeas petition by demonstrating that he should have been unconditionally 12 discharged in 2009, that showing would negate Respondent’s argument that 13 Janakievski is subject to CPL § 330.20(13)’s three-year outpatient requirement 14 for terminating an order of conditions, because no order of conditions should 15 have issued in the first place. If, for example, a federal court were to 16 determine on a habeas petition that a petitioner’s initial confinement, based 17 on a state judge’s finding of dangerous mental illness, should be voided 18 because it was procured by hostile relatives through bribery, the state could 22 1 not, consistent with federal law, continue to subject the petitioner to an order 2 of conditions for three years merely because such a waiting period is 3 mandated by state law for one who, in the initial instance, was properly 4 confined on the basis of a dangerous mental illness. Just as a term of parole 5 stemming from a criminal conviction is an injury redressable by the vacatur 6 of that conviction, see Spencer, 523 U.S. at 7, the parole-like order of conditions 7 here could, at least in some circumstances, be invalidated on a showing that 8 Janakievski’s initial commitment to the psychiatric institution violated federal 9 law. 6 10 Vacatur of the 2010 and 2012 retention orders that extended the 11 duration of Janakievski’s confinement could also serve to partially redress 12 Janakievski’s injuries. Janakievski contends that, even if he failed to show that 13 he was entitled to an unconditional discharge in April 2009, but nonetheless 14 showed entitlement to an earlier conditional release at the time of one of the 15 court’s prior retention orders — e.g., in August 2012 — “then the three-year 6Cf. Carty v. Nelson, 426 F.3d 1064, 1072 (9th Cir. 2005) (sex offender’s release from civil confinement did not moot his habeas petition because a finding that his initial confinement had been invalid would allow the court to vacate his post-release reporting requirements, where the habeas petition challenged only the initial confinement). 23 1 post-release period specified in [] CPL § 330.20(13) would be backdated” and 2 he would not necessarily have to wait until July 2021 to become eligible for a 3 discharge order terminating his order of conditions. Supp. Br. of Petitioner at 4 19. Respondent argues that no such “back-dating” would occur, because the 5 requirement that a defendant spend at least three years in outpatient 6 treatment before final discharge serves the important goal of protecting the 7 public from the release of potentially dangerous patients. Resp. Br. at 42 8 (citing Matter of Ramon M., 294 A.D.2d 59, 65 (1st Dep’t 2002)). Accordingly, 9 Respondent asserts that “a habeas determination that Janakievski should 10 have been released in 2010 or 2012 would not in itself entitle him to a 11 discharge order today,” because “[h]e would still have to show that the 12 issuance of such an order was ‘consistent with the public safety and welfare 13 of the community and [himself].’” Resp. Br. at 42–43 (quoting CPL 14 § 330.20(13) (emphasis added)). 15 However, even if Janakievski would need to affirmatively demonstrate 16 that he was fit for immediate release, the opportunity to do so would still 17 constitute a “partial remedy” sufficient to support a finding of redressability. 18 Church of Scientology, 506 U.S. at 13. The chance to make that showing now 24 1 versus in 2021 would provide Janakievski with “some form of meaningful 2 relief,” id. at 12 (emphasis in original), as it would give Janakievski the 3 possibility of obtaining a discharge order releasing him from the restrictions 4 mandated by his order of conditions without having to live under them for 5 another year or more. See Mantena v. Johnson, 809 F.3d 721, 731 (2d Cir. 2015) 6 (“[I]n the context of multi-part proceedings,” redressability should be based 7 on the “availability of relief at a given step, rather than the likelihood of 8 achieving the ultimate goal.” (citation omitted)). Given that the state court 9 found in 2018 that Janakievski “does not currently suffer from a dangerous 10 mental disorder and is not mentally ill,” Supp. App’x at 247, it is not too 11 remote or speculative to think that Janakievski might be able to demonstrate 12 that his release would be consistent with public safety. 13 We accordingly conclude that Janakievski’s habeas petition is not moot 14 because the restrictions on his liberty mandated by the June 2018 order of 15 conditions constitute a concrete and continuing injury, traceable to the 2009– 16 2012 confinement orders he attacks, which can be redressed by a favorable 17 decision. 18 25 1 III. Alternate Grounds for Affirmance 2 Respondent asserts that, even if we reject the district court’s mootness 3 finding, we can nonetheless affirm on independent grounds, at least as to 4 several of Janakievski’s claims. Respondent argues that Janakievski’s 5 challenges to the 2009 and 2010 orders “are untimely and were not exhausted 6 in state court,” and, because they “cannot be exhausted at this juncture,” are 7 ”procedurally barred from habeas review.” Resp. Br. at 24. 8 In habeas cases, we generally do not address a claim outside the scope 9 of the certificate of appealability. See Valverde v. Stinson, 224 F.3d 129, 136 (2d 10 Cir. 2000). Here, as the certificate of appealability is limited to the question of 11 mootness, and as the district court did not address the state’s timeliness, 12 exhaustion, and procedural default arguments, we decline to address those 13 arguments and express no view as to whether they are meritorious. 14 CONCLUSION 15 For the foregoing reasons, we VACATE the district court’s judgment 16 dismissing Janakievski’s habeas petition as moot and REMAND for further 17 proceedings. 26	{ "pile_set_name": "FreeLaw" }
527 F.2d 646 U. S.v.Siciliano 75-1403 UNITED STATES COURT OF APPEALS Third Circuit 1/19/76 1 E.D.Pa. AFFIRMED	{ "pile_set_name": "FreeLaw" }
625 F.Supp. 69 (1985) GROUP HEALTH INCORPORATED, Plaintiff, v. BLUE CROSS ASSOCIATION and Blue Cross/Blue Shield of Greater New York, Defendants, and United States Department of Health and Human Services, Intervenor-Defendant. No. 83 Civ. 7567 (PKL). United States District Court, S.D. New York. August 16, 1985. 70 DeForest & Duer, New York City, for plaintiff; John M. O'Connor and Mark Weldon, of counsel. Breed, Abbott & Morgan, New York City, for defendants; Robert A. Bicks and Alan C. Drewsen, of counsel. Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for intervenor-defendant; Susan E. Harkins, Asst. U.S. Atty., and James E. Healey, Asst. Reg. Atty., Dept. of Health and Human Services, of counsel. OPINION LEISURE, District Judge: Plaintiff, Group Health Incorporated ("GHI"), seeks damages from defendants Blue Cross/Blue Shield of Greater New York ("Blue Cross") and Blue Cross and Blue Shield Association (the "Association") (collectively referred to as "Defendants"). GHI alleges harm suffered from disallowance of Medicare and Blue Cross reimbursement for certain costs allegedly incurred by Hillcrest General Hospital ("Hillcrest") in 1974-1980, the years GHI owned Hillcrest. GHI has asserted claims for negligence, misrepresentation and breach of warranty of authority against defendants Blue Cross and the Association. Blue Cross is sued in two capacities: as a private insurer, and as the fiscal intermediary for the federal government under the Medicare program. The Association is sued in its capacity as principal of Blue Cross acting as a fiscal intermediary. Defendants have moved for an order granting them summary judgment pursuant to Fed.R.Civ.P. 56, on GHI's first through fifth claims, and an order dismissing the sixth through eighth claims, pursuant to Fed.R.Civ.P. 12(h)(3), on the basis that this Court lacks subject matter jurisdiction because GHI has failed to exhaust administrative remedies. For the reasons stated below, Defendants' summary judgment motion is denied and the Rule 12(h)(3) motion to dismiss is granted. FACTUAL BACKGROUND The sequence of events and many of the facts giving rise to the instant action have been described in two opinions previously rendered by judges of this Court. Group Health Inc. v. Schweiker, No. 80 Civ. 6163 (S.D.N.Y. Mar. 22, 1982); Group Health Inc. v. Blue Cross Ass'n, 587 F.Supp. 887 (S.D.N.Y.1984). Familiarity with these decisions is assumed. In the first opinion, Judge Carter affirmed the decision of the Provider Reimbursement Review Board ("PRRB") of the United States Department of Health and Human Services ("HHS"). The PRRB affirmed Blue Cross' decision to disallow reimbursement of certain interest expenses claimed by Hillcrest. The Court of Appeals, by an unpublished opinion, affirmed Judge Carter's decision. The Supreme Court denied GHI's petition for a writ of certiorari. Thereafter GHI commenced this action in New York State Supreme Court. The complaint alleges that GHI is a not-for-profit corporation organized and existing under Article IX-C of the New York Insurance Law. That status subjects GHI's activities to regulation by New York's Superintendent of Insurance. When GHI proposed to expend subscriber funds to acquire Hillcrest, it was required to obtain prior Insurance Department approval. Such approval was granted conditionally upon whether a return on those funds would be included in the calculation of third-party reimbursement rates applicable to Hillcrest. Before GHI purchased Hillcrest in February 1974, the complaint alleges, GHI requested advice of Blue Cross as to whether a rate of return on the funds GHI used to purchase Hillcrest could be included in the calculation of Hillcrest's Medicare and Blue Cross reimbursement rates. Blue Cross is also an Article IX-C corporation. Before it could amend its reimbursement formula to permit it to reimburse 71 for a return on equity invested in a hospital by an Article IX-C corporation, it had to receive approval from the New York Insurance Department. Blue Cross, in a letter dated June 11, 1974, from Lawrence P. Cafasso, Director of Blue Cross Provider Reimbursement Division, informed GHI that a return of nine percent on the funds used to purchase Hillcrest would be included when calculating Hillcrest's Medicare and Blue Cross reimbursement rates. In 1979, at the insistence of HHS, Blue Cross disallowed the return for Medicare and Blue Cross reimbursement purposes and subsequently recouped from GHI any amounts previously paid to it that were attributable to the return on the invested funds. GHI commenced this action in New York State Supreme Court. GHI's first claim alleges that Defendants were negligent in failing to consult HHS before rendering such advice to GHI. The second claim alleges that Blue Cross negligently and falsely represented that it had the authority to make such a determination. The third claim alleges that Blue Cross warranted it was authorized to act as the agent for HHS in determining whether the return would be reimbursable under the Medicare program. The fourth and fifth claims seek to hold the Association liable for the acts and omissions of its agent and sub-contractor Blue Cross and for failing in its duty to properly supervise Blue Cross' activities. The sixth through eighth claims allege that Blue Cross breached its agreement with GHI by refusing to include the rate of return in the calculation of the Blue Cross reimbursement rate and that Blue Cross is estopped from changing its position in that regard. Defendants removed the action to federal court and Judge Sweet denied GHI's motion to remand. Judge Sweet ruled that Blue Cross' actions were taken under color of governmental authority in that Blue Cross was acting as a fiscal intermediary on behalf of HHS and therefore the matter must be resolved in federal court. Group Health Inc. v. Blue Cross Ass'n, 587 F.Supp. at 891. In the same opinion Judge Sweet granted the motion of HHS to intervene under Fed.R.Civ.P. 24(b)(2) and to consolidate GHI's separate action against HHS. GHI has pursued administrative review of its Blue Cross rates and the New York Department of Health has been conducting hearings on the matter. MOTION FOR SUMMARY JUDGMENT Defendants argue first that, as a matter of law, GHI was not entitled to rely on Blue Cross' advice concerning the calculation of the Medicare reimbursement rate, citing Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984) (hereinafter Community Health Services). Second, GHI purchased Hillcrest before Blue Cross ruled in the Cafasso letter that Medicare reimbursement for the return on equity would be permitted. Consequently, no reliance on the alleged negligent misrepresentation was possible when GHI purchased Hillcrest. Third, Defendants argue, in the event GHI had relied justifiably on any representation of Blue Cross, GHI's claims against Defendants are barred under the principles of sovereign immunity. Defendants are sued in their capacity as fiscal intermediaries acting on behalf of HHS, and according to the Medicare regulations, HHS is the real party in interest. Fourth, HHS submitted a memorandum of law in support of Defendants' summary judgment in which it argues that Defendants are protected by the doctrine of official immunity. Under the plain language of Rule 56(c), a court may grant a motion for summary judgment only if the moving party successfully demonstrates 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. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Patrick v. LeFevre, 745 F.2d 153, 158 (2d Cir.1984); PPX Enterprises, Inc. v. Audiofidelity, Inc., 746 F.2d 120, 123 (2d Cir.1984) (uncertainty 72 about any material fact defeats the motion). Ambiguities must be viewed in the light most favorable to the party opposing summary judgment. Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir.1983). The burden of demonstrating the absence of any material fact genuinely in dispute rests on the moving party. Adickes, 398 U.S. at 157, 90 S.Ct. at 1608; Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317, 1320 (2d Cir.1975). Because summary judgment is a "drastic device" it should be exercised with caution where, as here, one party has yet to complete pretrial discovery.[1]See, e.g., Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 756 F.2d 230, 236 (2d Cir.1985); National Life Insurance Co. v. Solomon, 529 F.2d 59, 61 (2d Cir.1975). Summary judgment, however, will not be denied merely because of conclusory allegations or denials by the opposing party. JSP Agency, Inc. v. American Sugar Refining Co. of New York, 752 F.2d 56, 59 (2d Cir.1985); SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978). Was GHI Entitled To Rely On Blue Cross' Representations? As summarized above, defendants argue that under the authority of Community Health Services, supra, a health care provider participating in Medicare is not entitled to rely upon the policy judgment of a mere conduit acting on behalf of the Secretary of HHS (hereinafter also collectively referred to as "HHS"). Under 42 U.S.C. § 1395h(a) a fiscal intermediary is required to provide consultative services to providers to enable them to establish and maintain fiscal records, to serve as a conduit for any information or instructions furnished to it by HHS and to serve as a channel of communication from providers to HHS. The Supreme Court in Community Health Services stated that a health care provider has a duty to familiarize itself with the legal requirements for cost reimbursement and the nature of and limitations on the role of a fiscal intermediary. A fiscal intermediary, according to the relevant statutes and regulations and the reimbursement manual, acts merely as a conduit and may not resolve policy questions. 104 S.Ct. at 2226. The Court found that the health care provider in Community Health Services was satisfied with the policy judgment of a mere conduit and "made no attempt to have the question resolved by [HHS]." Id. Consequently, the fiscal intermediary's advice was not given under circumstances conducive to reliance giving rise to estoppel against HHS. The reasonableness of the reliance was further undermined by the oral nature of the intermediary's advice. In the context of a complex program such as Medicare, in which the need for written records is manifest, reliance upon oral advice is unreasonable. Id. The instant action is distinguishable from Community Health Services on several grounds. First, the issue there was whether the government could be estopped from recovering funds expended by a health care provider in reliance on an incorrect interpretation of the Medicare regulations given by a responsible government agent. Id. at 2220. As the Supreme Court stated, "the Government may not be estopped on the same terms as any other litigant." Id. at 2224. The instant issue is whether a health care provider can hold a fiscal intermediary liable for the intermediary's own negligence. See, e.g., Rochester Methodist Hospital v. Travelers Ins. Co., 728 F.2d 1006 (8th Cir.1984); Hospital San Jorge, Inc. v. Blue Cross Ass'n, Medicare & Medicaid Guide (CCH) ¶ 28,306 (D.P.R.1976). No attempt is being made here to estop HHS from recoupment of expenditures erroneously made. Indeed, GHI litigated that issue with HHS and lost. Second, GHI received a written statement from Blue Cross that the return would constitute a reimbursable cost for purposes of Medicare. The fact that the letter was tendered subsequent to the February acquisition does not render speculative GHI's reliance on the Cafasso letter. 73 GHI alleges that it could have restructured the financing or sold Hillcrest if it was informed in June 1974 that the rate of return on the funds used to purchase Hillcrest was not a reimbursable cost. GHI's argument in this regard is factually supported by a letter from Lawrence O. Monin, First Deputy Superintendent, State of New York Insurance Department, addressed to Dr. George Melcher, President of GHI, dated February 15, 1974. In that letter Monin qualified the Insurance Department's approval of GHI's application to acquire Hillcrest on two conditions. First, that the proposed amendment to the Blue Cross Reimbursement Formula had to be certified by the Commissioner of Health and approved by the Superintendent of Insurance. Second, if, as actually occurred, such approvals were not forthcoming, GHI had to obtain a non-recourse mortgage in the minimum amount of $2,000,000 within "ninety days after acquisition of the hospital." (Emphasis added). In other words, if Hillcrest were not permitted to include in its prospective Blue Cross reimbursement rates the return on equity, GHI would have ninety days after the acquisition to restructure the financing. This certainly raises a reasonable inference that GHI could have restructured the financing again or even sold Hillcrest if Blue Cross had determined in June, 1974 that the rate of return was not a reimbursable cost for Medicare purposes. Nevertheless, Defendants argue that all communications between the parties before the Cafasso letter related to Blue Cross reimbursement rates only. They claim that the Cafasso letter was the first time the topic of Medicare reimbursement rates was discussed. However, a letter dated March 26, 1974, from William F. McCann, Assistant Commissioner of the New York State Department of Health, to James C. Ingram, Division Vice President, Provider Reimbursement of Blue Cross, states that "in establishing reimbursement rates for the hospital purchased by GHI, it is anticipated that the major third party payors will include their proportionate shares of interest paid to GHI subject to any specific third party formula limitations as to reasonableness and amount." Consequently, several months before sending the Cafasso letter, Blue Cross was aware that the reimbursement arrangement for which it was seeking approval would have to be acceptable to other third party payors, such as Medicare. Based upon this letter, it is certainly not beyond argument at this stage of the litigation that there was communication between GHI and Blue Cross concerning how the financing structure would be interpreted under the Medicare regulations. The third ground on which Community Health Services may be distinguished concerns the issue of whether it was reasonable for GHI to rely on the advice of Blue Cross even though Blue Cross was only a conduit for communications between GHI and HHS. "It is undisputed that correct administrative practice required [Blue Cross] to refer [GHI's] inquiry to [HHS] for a definitive answer." Community Health Services, 104 S.Ct. at 2222. Unlike Community Health Services, where neither the provider nor the intermediary sought further advice when the question of interpretation initially arose, both parties in the instant case sought rulings from the New York State Departments of Insurance and Health concerning the contemplated arrangement. Such initial inquiry was logical, given the restrictions imposed by state law regarding the use of subscribers' funds. Such efforts raise a question of fact whether it was reasonable for GHI to believe that Blue Cross had likewise referred the question to HHS, especially in light of the written advice rendered by Blue Cross. "Written advice, like a written judicial opinion, requires its author to reflect about the nature of the advice that is given ..., and subjects that advice to the possibility of review, criticism and reexamination." Id. at 2227. In this regard, Blue Cross did not consult with HHS as to whether the arrangement would pass scrutiny under Medicare's related party regulations[2]74 because "the whole transaction had been thoroughly reviewed and approved by two different agencies of the state government." Testimony of James C. Ingram, PRRB Hearing, June 10, 1980, at 0216-17. This issue is significant because 42 U.S.C. § 1395h(a)(2)(A) expressly states that intermediaries are to "serve as a channel of communication from providers to the Secretary." The cumulative effect of these facts and circumstances is to distinguish the instant case from Community Health Services and raise material issues of fact. GHI is not seeking to estop HHS from recovering money erroneously paid out. Blue Cross rendered written advice to GHI that the arrangement was acceptable under Medicare's regulations. Finally, GHI may have arranged for alternate financing had Blue Cross indicated in June, 1974 that Medicare would not reimburse Hillcrest for the return on its investment.[3] Sovereign Immunity Next, defendants argue that because fiscal intermediaries act on behalf of HHS in performing their contractual undertakings, HHS is the real party in interest in this lawsuit. 42 C.F.R. § 421.5(b) (1984).[4] The fiscal intermediary, Blue Cross, therefore, is wrapped in the protective mantle of the government's sovereign immunity, barring GHI's suit. The cases that Defendants have cited in support of this position[5] provide little guidance in this action, however, because, as stated by the court in Rochester Methodist Hospital v. Travelers Ins. Co., 728 F.2d 1006 (8th Cir.1984), "in none of these cases was there proof that the intermediary acted beyond the scope of its authority." 728 F.2d at 1015. See also, Hospital San Jorge, Inc. v. Blue Cross Ass'n, Medicare & Medicaid Guide (CCH) ¶ 28,306, at 9074-75 (D.P.R.1976). Also, in each of the cases cited by Defendants, the fiscal intermediary disallowed a claim for reimbursement. None involved advice rendered prospectively before a claim for reimbursement was made as Blue Cross did in the instant action. Plaintiff alleges that Defendants engaged in tortious activity and acted beyond the scope of their authority. According to the Supreme Court, a fiscal intermediary has neither actual nor apparent authority 75 to render an interpretation of the Medicare regulations. Community Health Services, 104 S.Ct. at 2226 n. 21. Where the law limits a government agent's powers "his actions beyond those limitations are considered individual and not sovereign actions." Larson v. Domestic & Foreign Corp., 337 U.S. 682, 689, 69 S.Ct. 1457, 1461, 93 L.Ed. 1628 (1949). Consequently, a material question of fact exists as to whether Blue Cross was acting within the scope of its authority in giving the advice to GHI. Slotkin v. Citizens Casualty Co. of New York, 614 F.2d 301, 317 (2d Cir.), cert. denied, 449 U.S. 981, 101 S.Ct. 395, 66 L.Ed.2d 243 (1980). The papers presented to the Court on this motion indicate there is merit to GHI's allegations in this regard. During the time that GHI acquired Hillcrest, Blue Cross itself was interested in buying hospitals with subscribers' funds. See Testimony of James C. Ingram, PRRB hearing, June 10, 1980, at 0210-11, 0222, 0272. An August 30, 1978 report prepared by the Medicare Office of Program Integrity commented on the actions of Blue Cross as follows: The parties involved in making the decision [Blue Cross and the New York State Departments of Health and Insurance] appeared to over extend their authority and in fact may have acted improperly in this situation. * * * * * * By ruling on a complex Medicare reimbursement situation without consulting the Medicare Bureau, Blue Cross may have put its intermediary role second to its own private plan's best interest. This is evidenced by the fact that at the time of the Hillcrest purchase, Blue Cross was interested in purchasing hospitals itself. Blue Cross may have taken an active role and even bent its interpretations of the reimbursement regulations to suit a situation that would act as a catalyst for a reimbursement ruling it could benefit from in the future. Judge Carter referred to this possible conflict of interest when he denied GHI's application to overturn the decision of the PRRB, stating that "the intermediary advise[d] the provider in large part from the perspective of a competitor seeking ways to achieve the agreed upon result for itself...." Group Health Inc. v. Schweiker, No. 80 Civ. 6163, slip op. at 11 (S.D.N.Y. Mar. 22, 1982). Where there are specific allegations that Blue Cross did not act on direct instructions from HHS but rather acted beyond the scope of its authority, summary judgment on the sovereign immunity claim is inappropriate. The effect of such allegations in the context of such a motion was recognized and aptly described by Judge Haight in Arzt v. Blue Cross & Blue Shield of Greater New York, No. 78 Civ. 5723 (S.D.N.Y. Oct. 29, 1982) when he granted summary judgment to Blue Cross on a claim that Blue Cross participated in a conspiracy to force a health care provider out of business. Judge Haight stated: [T]he only reasonable conclusion that can be drawn is that Blue Cross, as fiscal intermediary, is being sued for actions it took because of its statutory powers as a fiscal intermediary, and not because of any alleged negligence in failing to exercise properly those duties. The acts upon which Blue Cross's liability is predicated are the withholding of Medicare payments.... Id., slip op. at 28 (emphasis added). Notwithstanding the allegations that Blue Cross acted beyond the scope of its authority, Defendants and HHS argue that sovereign immunity applies in any event because an indemnity agreement would require any judgment against Defendants to be paid ultimately by HHS. This argument is based upon the principle that a lawsuit is against the government regardless of who is named as a defendant if the relief sought would be paid from the public treasury. See, e.g., Stafford v. Briggs, 444 U.S. 527, 542 n. 10, 100 S.Ct. 774, 784 n. 10, 63 L.Ed.2d 1 (1980); Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963); Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49, 55-56 (2d Cir.1985). 76 Pursuant to 42 C.F.R. § 421.5(b), HHS has agreed to indemnify Defendants and pay any judgments, except those rendered for criminal conduct, fraud or gross negligence against the Association or Blue Cross resulting from the performance of their contractual obligations. Thus, if Defendants are found liable in this action, HHS will ultimately pay. According to the principle set forth above, this would trigger the government's sovereign immunity. While this argument has some facial appeal, it has been rejected by courts because an indemnity agreement between the government and its agents does not affect the rights of third parties. Rochester Methodist Hospital, 728 F.2d at 1012-14 (citing Brady v. Roosevelt Steamship Co., 317 U.S. 575, 583, 63 S.Ct. 425, 429, 87 L.Ed. 471 (1943) ("The rights of principal and agent inter se are not the measure of the rights of third persons against either of them for their torts.")). "A government may not manufacture immunity for its employees [and contractors] by agreeing to indemnify them." Spruytte v. Walters, 753 F.2d 498, 512 n. 6 (6th Cir.1985). Accord Demery v. Kupperman, 735 F.2d 1139, 1146-47 (9th Cir.1984), cert. denied, ___ U.S. ___, 105 S.Ct. 810, 83 L.Ed.2d 803 (1985); Downing v. Williams, 624 F.2d 612, 626 (5th Cir.1980), vacated on other grounds, 645 F.2d 1226 (5th Cir.1981); Foster v. Day & Zimmermann, Inc., 502 F.2d 867, 875 (8th Cir.1974); Whitaker v. Harvell-Kilgore Corp., 418 F.2d 1010, 1014 (5th Cir.1969). Cf. L. Tribe, American Constitutional Law § 3-35, at 132-33 n. 22 (1978). The very existence of an indemnity agreement undercuts the argument that as a consequence intermediaries are protected by sovereign immunity. "[I]f sovereign immunity was intended ... there would be no necessity of an indemnity agreement...." Whitaker, 418 F.2d at 1014. Based upon the foregoing, GHI's claims against Defendants are not barred by sovereign immunity. Official Immunity HHS argues in its memorandum of law in support of Defendants' summary judgment motion that GHI's claims are barred under the doctrine of official immunity. The official immunity doctrine provides that federal officials are absolutely immune from liability for common-law torts allegedly committed in the performance of official duties that require the exercise of judgment or discretion. Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). The purpose of this judicially created rule is to ensure that government officials are able to exercise their duties free from the fear of damage suits arising out of acts done in the course of those duties. Government officials would be free of the threat of lawsuits "which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government." Id. at 571, 79 S.Ct. at 1339. Official immunity has been held to protect all executive officials regardless of rank, provided the official was acting within the outer limits of his authority and the act involved the exercise of judgment or discretion. Id. at 572-73, 79 S.Ct. at 1340. The privilege is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government. The complexities and magnitude of governmental activity have become so great that there must of necessity be a delegation and redelegation of authority as to many functions, and we cannot say that these functions become less important simply because they are exercised by officers of lower rank in the executive hierarchy. Id. (footnote omitted). The courts have applied the Supreme Court's broad formulation of the doctrine to the extent that it has been held to apply to a nurse supervisor at a Veterans Administration hospital who was sued for writing an allegedly libelous incident report. Newkirk v. Allen, 552 F.Supp. 8 (S.D.N.Y.1982). This result was foretold by Justice Brennan in his dissenting opinion in Barr v. Matteo when he 77 stated that the approach set forth in Justice Harlan's plurality opinion would "clothe with immunity the most obscure subforeman on an arsenal production line who has been delegated authority to hire and fire and who maliciously defames one he discharges." 360 U.S. at 587, 79 S.Ct. at 1348. See also Gray, Private Wrongs of Public Servants, 47 Cal.L.Rev. 303, 337 (1959) (hereinafter Private Wrongs). Cases where claims of official immunity have been upheld involved defamation, false arrest or imprisonment, and malicious prosecution. See Norton v. McShane, 332 F.2d 855, 859-60 n. 5 (5th Cir.1964), cert. denied, 380 U.S. 981, 85 S.Ct. 1345, 14 L.Ed.2d 274 (1965); Private Wrongs, 47 Cal.L.Rev. at 337-38 n. 223. The doctrine has been held to apply when negligent misrepresentation has been alleged. See, e.g., Claus v. Gyorkey, 674 F.2d 427 (5th Cir. 1982); Sowders v. Damron, 457 F.2d 1182 (10th Cir.1972). The application of the doctrine to persons performing work at so many levels of government and in such far ranging circumstances has led one commentator to suggest that the growth of the immunity rule is due to "its convenience as a form of judicial shorthand to dispose, at the pleading stage, cases which obviously have little merit." Private Wrongs, 47 Cal.L.Rev. at 338. Cf. Annot., 9 A.L.R.3d 382, 387 (1966). HHS argues that since Blue Cross and the Association were acting as agents of HHS in the role of Medicare fiscal intermediaries they should be deemed federal officials for purposes of immunity. Such private entities performing federal functions as agents of the government therefore should be protected. GHI, for its part, contends that it is incorrect to protect Blue Cross and the Association with official immunity. According to the balancing test that is applied to determine whether extension of immunity is appropriate, the court must weigh the injustice that results from denying a plaintiff a remedy for its injury against the pressures that would be placed upon an individual serving as a federal official if that individual could be held liable for monetary damages for actions authorized by the government. Barr v. Matteo, 360 U.S. at 565, 570-71, 79 S.Ct. at 1336, 1338-39. GHI contends that the rationale behind the official immunity rule does not apply in this case. The Defendants are large private insurance corporations which contracted to perform services for the Department. Defending damage lawsuits arising out of their roles as fiscal intermediaries would not be any different than defending lawsuits in connection with their own hospital insurance programs. GHI argues that, since defending those suits does not divert time that would otherwise be devoted to government service, the same considerations necessarily apply to the defense of lawsuits arising out of the performance of duties in the Medicare program. Likewise, the cost of defending lawsuits are a cost of doing business and are figured into the prices charged and the amounts bid for contracts. The case law indicates that it is appropriate to consider a private person a government official if the conduct at issue is instigated and directed by federal officers. Reuber v. United States, 750 F.2d 1039, 1063-64 (D.C.Cir.1984) (Bork, J., concurring). Cf. Falls Riverway Realty, 754 F.2d at 57 (city agency an agent "only if the United States supervised the day-to-day operations"). In Blum v. Campbell, 355 F.Supp. 1220 (D.Md.1972), a defamation action, the manager of an apartment complex under contract to the Federal Housing Administration was deemed entitled to official immunity. The contract with FHA provided that the day-to-day administrative details of operation would be under supervision of the local FHA office. The court found that the FHA closely supervised the company's activities during the period involved and the company "did no more than carry out FHA instructions." Id. at 1224. As a result, the defendants "were acting as agents under the direct supervision and control of the FHA and not as independent contractors." Id. 78 In Becker v. Philco Corp., 372 F.2d 771 (4th Cir.), cert. denied, 389 U.S. 979, 88 S.Ct. 408, 19 L.Ed.2d 473 (1967), a defense contractor filed a report with the government which resulted in suspension of plaintiff's security clearances. The defense contract required the company to keep the government advised of suspected security risks. The court held that the communications were privileged under Barr v. Matteo because the contractual requirement transformed the company into an agent of the government. 372 F.2d at 774-75. In McManus v. McCarthy, 586 F.Supp. 302 (S.D.N.Y.1984), a libel action, cadets at the Merchant Marine Academy were deemed to be performing a federal function under the control of federal officers because they acted under the direct supervision and control of the Academy's superior officers, who are federal employees. Id. at 305. Likewise, in Logiurato v. Action, 490 F.Supp. 84 (D.D.C.1980), medical examiners who acted under Peace Corps direction and control were protected by official immunity. In Bushman v. Seiler, 755 F.2d 653 (8th Cir.1985), the court extended official immunity to a consultant for a Medicare carrier sued for libel due to a report he filed at the carrier's request as part of an audit investigation. The court recognized that Medicare intermediaries "can" be governmental agents for immunity purposes and that the defendant's relationship to the Medicare program "may" shield him with official immunity. Id. at 655. The audit was conducted pursuant to 42 C.F.R. § 421.200(e) and the report was for internal use only. Although Seiler's link to the federal government was indirect, the court held that "under the circumstances of this case, official status should be extended to Seiler as a consultant to a Medicare carrier." Id. Bushman would appear to provide support for the contentions of HHS. But important considerations not present in this case entered into the court's decision. The court acted on "a recognition that public criticism of government operation should be encouraged." Id. at 656. Unless such communications are privileged, government contractors who are aware of real or imaginary shortcomings in connection with government activity would be dissuaded from communicating their concerns to the proper authority. Id. Thus, in Bradley v. Computer Sciences Corp., 643 F.2d 1029 (4th Cir.), cert. denied, 454 U.S. 940, 102 S.Ct. 476, 70 L.Ed.2d 248 (1981), the court held that a letter written by a private corporation to the Defense Communications Agency about the conduct of one of the agency's employees was deemed qualifiedly privileged under the petition clause of the First Amendment. Id. at 1033. Although the defendant was a government contractor, the court did not extend it official immunity, while it did extend such protection to the government defendants.[6] These cases demonstrate that a court must scrutinize the particular conduct at issue and weigh whether it is appropriate under the circumstances to protect the private party. In each case where a government contractor was involved such status was not significant in the outcome. Rather, the circumstances surrounding the particular conduct at issue were important to the determination that official immunity would apply. Turning to the facts of this case, it is apparent that the defendants cannot be considered government officials. The conduct complained of was not undertaken at the instigation and direction of the government. To the contrary, Blue Cross acted wholly on its own, without direction or guidance from HHS. Although 42 C.F.R. § 421.5(b) provides that intermediaries act on behalf of HHS, that regulation does not elevate the intermediaries to the status of government officials so that they would be immune for their own tortious conduct. Cf. Rochester Methodist Hospital, 728 F.2d at 1014. 79 If the intermediaries were to be endowed with official immunity, Congress was capable of expressly providing for such status. The legislative history indicates that Congress deemed it appropriate to permit the government to indemnify the intermediaries under certain circumstances, but it no where provides that the intermediaries shall enjoy official or sovereign immunity. See S.Rep. No. 404, 89th Cong., 1st Sess., reprinted in 1965 U.S.Code Cong. & Ad. News 1943, 1995 ("the Government would be expected to safeguard the interests of his contractual representatives with respect to their actions in the fulfillment of commitments under the contracts and agreements entered into by them with the Secretary."). Instead, Congress recognized that the intermediaries are independent contractors and are liable for their own torts and authorized the HHS to enter into indemnity agreements. It is significant that the agreements do not extend to judgments for criminal conduct, fraud or gross negligence resulting from the performance of the intermediaries' obligations, while official immunity confers an absolute immunity without regard to whether the conduct is willful or malicious. See, e.g., Barr v. Matteo, 360 U.S. at 571, 79 S.Ct. at 1339 (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950)). And, as was discussed with reference to Defendants' sovereign immunity claim, the existence of an indemnity agreement does not affect the rights of third parties. Having determined that Defendants cannot be deemed government officials, it is unnecessary to decide whether Blue Cross was acting within the scope of its authority. Because a factual dispute exists with respect to this important issue it is likely that a decision on this issue would have to be deferred in any event, pending further factual development as to the exact scope of the authority of the fiscal intermediary. See, e.g., Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institution, 566 F.2d 289, 295 (D.C.Cir.1977), cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978); Kletschka v. Driver, 411 F.2d 436, 449 (2d Cir.1969) ("A plea of official immunity cannot be sustained until a court has knowledge of the exact nature of the defendants' actions and the precise scope of their official duties."); Liquori v. Alexander, 495 F.Supp. 641, 648 (S.D.N.Y. 1980) (existence of factual dispute as to scope of authority requires further factual development). Liability of the Association Defendants' motion for summary judgment on GHI's claim against the Association must be considered in the context of the facts, circumstances and legal principles discussed above with respect to Blue Cross. In addition, the Association may bear responsibility for the actions of Blue Cross in light of the Association's policy which discouraged Blue Cross from approaching HHS directly for rulings on reimbursement matters. Testimony of James C. Ingram, PRRB Hearing, June 10, 1980, at 0227. Accordingly, Defendants' motion for summary judgment on the first five claims is hereby denied. RULE 12(h)(3) MOTION Blue Cross seeks to dismiss, pursuant to Fed.R.Civ.P. 12(h)(3),[7] GHI's sixth through eighth claims, which allege breach of contract against Blue Cross in its capacity as a private insurer. The basis for this motion is GHI has not exhausted the administrative procedures set forth by state law for review of Blue Cross reimbursement rates. Rules and regulations promulgated by the New York Department of Health provide for appeals to the Commissioner of Health by an individual hospital which seeks to challenge a certified rate. 10 N.Y.C.R.R. § 86-1.17(c) (1983). GHI has pursued administrative review of its Blue Cross rates according to the 80 procedures set forth in the Blue Cross formula and the regulations. The Department of Health administrative law judge conducting hearings on the matter has set forth the following as the "issues to be determined": What were the precise terms of the agreement between the State (representing the Departments of Health and Insurance plus Blue Cross and Blue Shield) and Hillcrest/GHI? Assuming, as was admitted, the agreement was to treat the Hillcrest/GHI investment as a loan, what if any, indicia of a loan had to be carried out by Hillcrest/GHI to consummate the agreement? ... [T]he ultimate question is this: .... can the State, by agreement, pay Medicaid funds it would not ordinarily have to pay under the statutes, regulations and existing guidelines? The factual issues being presented at the administrative level, as set forth above, are similar to those raised by GHI's sixth through eighth claims. The doctrine of exhaustion of administrative remedies is a "long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938). A primary purpose for the rule is "the avoidance of premature interruption of the administrative process." McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969). Other purposes include permitting the agency best suited and possessing the necessary expertise to determine the questions at issue, permitting such agency to develop the necessary factual background upon which decisions should be based and conserving judicial resources. Id. at 194-95, 89 S.Ct. at 1662-63. The rule, which has been considered a limit of the court's subject matter jurisdiction, White v. Shull, 520 F.Supp. 11, 13 (S.D.N.Y.1981); Fairchild, Arabatzis & Smith, Inc. v. Sackheim, 451 F.Supp. 1181, 1184 (S.D.N.Y. 1978), has been applied to actions similar to this one begun by hospitals challenging decisions on reimbursement rates. Sunrest Nursing Home, Inc. v. Whalen, 99 A.D.2d 206, 473 N.Y.S.2d 34 (3d Dep't 1984); Arnot-Ogden Memorial Hospital v. Blue Cross of Central New York, Inc., 92 A.D.2d 629, 459 N.Y.S.2d 950 (3d Dep't 1983); Crouse-Irving Memorial Hospital v. Axelrod, 82 A.D.2d 83, 442 N.Y.S.2d 338 (4th Dep't 1981). Blue Cross argues that these interests would be served here if GHI exhausted its administrative rights before proceeding in court. First, there is an appeal of Blue Cross' reimbursement decision pending before a Department of Health administrative judge, whose decision will be reviewed by the Commissioner of Health. Requiring exhaustion would avoid premature interruption of the administrative process. Second, the state agency will be able to develop the factual background upon which the ultimate decision will be based. Third, the state agency is best suited and possesses the necessary expertise to determine the questions raised by GHI's appeal of Blue Cross' decision. Fourth, the controversy may be resolved in the administrative process and judicial intervention would be unnecessary. GHI acknowledges that these general principles apply herein, but argues that the issues underlying the three claims for relief against Blue Cross are essentially contractual. As such, the prescribed administrative remedies need not be utilized or exhausted. See, e.g., Mary Imogene Bassett Hospital v. Hospital Plan, Inc., 89 A.D.2d 240, 455 N.Y.S.2d 416 (4th Dep't 1982). Resort to administrative remedies was not required in the Bassett Hospital case, however, because the defendant's contract breach foreclosed the hospital's right to pursue its administrative remedies. Id. at 244, 455 N.Y.S.2d at 419. See Arnot-Ogden Memorial Hospital, 92 A.D.2d at 630, 459 N.Y.S.2d at 952. No such situation is presented here. Due to plaintiff's failure to exhaust its administrative remedies, subject matter jurisdiction is lacking. Accordingly, GHI's 81 sixth through eighth claims are hereby dismissed pursuant to Rule 12(h)(3). CONCLUSION Defendants' summary judgment motion to dismiss GHI's first five claims is denied. Defendants' motion to dismiss GHI's sixth through eighth claims for lack of subject matter jurisdiction is granted. SO ORDERED. NOTES [1] Discovery has been held in abeyance pending the Court's decision on the instant motion. [2] 42 C.F.R. § 405.419(b) & (c) (1979). [3] Defendants further argue that GHI failed to adhere to the terms of the approved arrangement by not carrying the investment on its books as a mortgage-loan transaction and not enforcing its right to interest payments from Hillcrest. They claim this precludes GHI from holding Defendants responsible for GHI's losses. Significant in this regard is the September 29, 1978 letter from Jacqueline G. Wilson, Regional Medicare Director, to Peter L. Hutchins, Senior Vice-President-Finance of Blue Cross. In this letter, Ms. Wilson states that the failure to pay interest was "merely additional evidence" that the arrangement was not arms-length, thereby making the return on investment a non-reimbursable cost. Ms. Wilson concluded that Medicare was "unable to understand how Blue Cross could have ruled that the `loan' transaction is a reimbursable cost." In other words, it was the relationship between GHI and Hillcrest that disqualified the transaction, not the failure to pay interest. [4] This position appears to be a variation of the so-called government contractor defense to liability for injuries to another caused in the course of performing work on behalf of the government. See Yearsley v. W.A. Ross Const. Co., 309 U.S. 18, 60 S.Ct. 413, 84 L.Ed. 554 (1940). In Yearsley the Supreme Court stated that a government contractor can be held liable for conduct causing injury to another if it is found "that he exceeded his authority." Id. at 21, 60 S.Ct. at 414. Accord Ove Gustavsson Contracting Co. v. Floete, 299 F.2d 655, 660 (2d Cir.1962), cert. denied, 374 U.S. 827, 83 S.Ct. 1862, 10 L.Ed.2d 1050 (1963). See generally In re "Agent Orange" Product Liability Litigation, 506 F.Supp. 762, 792-94 (E.D.N.Y.), rev'd on other grounds, 635 F.2d 987 (2d Cir.1980), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981). [5] Peterson v. Weinberger, 508 F.2d 45 (5th Cir.), cert. denied, 423 U.S. 830, 96 S.Ct. 50, 46 L.Ed.2d 47 (1975); Matranga v. Travelers Ins. Co., 563 F.2d 677 (5th Cir.1977); Pine View Gardens, Inc. v. Mutual of Omaha Ins. Co., 485 F.2d 1073, 1074-75 (D.C.Cir.1973); Arzt v. Blue Cross and Blue Shield of Greater New York, No. 78 Civ. 5723 (S.D.N.Y. Oct. 29, 1982); Vanderberg v. Carter, 523 F.Supp. 279 (N.D.Ga.1981), aff'd, 691 F.2d 510 (11th Cir.1982); Johnson v. Johnson, 332 F.Supp. 510, 511 (E.D.Pa.1971); Kuenstler v. Occidental Life Ins. Co., 292 F.Supp. 532, 537 (C.D.Cal.1968). [6] In Bushman the Eighth Circuit extended official immunity to the defendant rather than consider whether the defense of sovereign immunity applied. 755 F.2d at 655 n. 2 (citing Rochester Methodist Hospital, 728 F.2d at 1012-16). [7] Rule 12(h)(3) provides: Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals For the Eighth Circuit ___________________________ No. 15-3345 ___________________________ United States of America lllllllllllllllllllllPlaintiff - Appellee v. Shane Phillip Rodriquez, also known as Shane Phillip Rodriguez lllllllllllllllllllllDefendant - Appellant ____________ Appeal from United States District Court for the District of North Dakota - Bismarck ____________ Submitted: May 31, 2016 Filed: July 19, 2016 ____________ Before RILEY, Chief Judge, COLLOTON and SHEPHERD, Circuit Judges. ____________ RILEY, Chief Judge. After the district court1 denied Shane Rodriquez’s motion to suppress the physical evidence seized from his vehicle, a jury found Rodriquez guilty of possessing a firearm and ammunition as a convicted felon in violation of 18 U.S.C. 1 The Honorable Daniel L. Hovland, United States District Judge for the District of North Dakota. §§ 922(g)(1), 924(a)(2), and 924(e). Rodriquez appeals the denial of his motion to suppress and the resulting conviction, arguing the search of his vehicle, after he was arrested on outstanding state warrants when he stopped briefly at a gas station, was unreasonable under the Fourth Amendment to the U.S. Constitution because “[n]o exception to the warrant requirement existed to justify the warrantless search.” We review “the denial of a motion to suppress de novo, and the underlying factual determinations for clear error, giving due weight to the inferences of the district court and law enforcement officials.” United States v. Barker, 437 F.3d 787, 789 (8th Cir. 2006). We will uphold the denial “unless it is not supported by substantial evidence, is based on an erroneous interpretation of applicable law, or is clearly mistaken in light of the entire record.” United States v. Quinn, 812 F.3d 694, 697 (8th Cir. 2016). The Fourth Amendment prohibits “unreasonable searches and seizures” by government officials. U.S. Const. amend. IV. “The reasonableness of a search depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations.” Grady v. North Carolina, 575 U.S. ___, ___, 135 S. Ct. 1368, 1371 (2015) (per curiam); accord Story v. Foote, 782 F.3d 968, 972 (8th Cir. 2015) (“[T]he Fourth Amendment requires a balancing of the need for a particular search against the invasion of personal rights involved.”). “In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.” Riley v. California, 573 U.S. ___, ___, 134 S. Ct. 2473, 2482 (2014). This appeal involves the probation-search exception. See United States v. Knights, 534 U.S. 112, 121-22 (2001). At the time of the search in this case, Rodriquez was serving a period of state-supervised probation imposed as part of his punishment for a North Dakota felony conviction. As a condition of his probation, Rodriquez expressly agreed to “submit [his] person, -2- place of residence and vehicle, or any other property to which [he] may have access, to search and seizure at any time of day or night by a parole/probation officer, with or without a search warrant.” (Emphasis added). That broad search condition—imposed for Rodriquez’s prior criminal activity—“significantly diminished [Rodriquez’s] reasonable expectation of privacy” in his vehicle, and duly served the state’s legitimate interests in preventing, detecting, and punishing additional criminal activity. Id. at 120-21. Given that balance of interests, the Fourth Amendment required “no more than reasonable suspicion” that Rodriquez was engaging in criminal activity or otherwise violating the terms of his probation to justify the warrantless search of his vehicle, regardless of the subjective motivation for the search. Id. at 121-22; accord United States v. Brown, 346 F.3d 808, 811 (8th Cir. 2003) (“[W]hen a probationer is subject to a probationary search condition, the Fourth Amendment permits an officer to search pursuant to that condition without a warrant based only upon that officer’s reasonable suspicion that the probationer is violating his probation’s terms.”). Applying that standard, the district court concluded the warrantless search of Rodriquez’s vehicle was reasonable. Although Rodriquez argued the circumstances did not support a probation search and the search of his vehicle was really an unlawful search incident to arrest, the district court determined the search was, as the government maintained, a valid probation search supported by reasonable suspicion. Having thoroughly reviewed the record, we conclude the district court properly denied Rodriquez’s motion to suppress. See Knights, 534 U.S. at 121-22; Brown, 346 F.3d at 811-13. We agree with the district court that Rodriquez’s outstanding warrants, missed probation appointments, and previous admissions by Rodriquez indicating he was involved in illegal drug activity, along with statements from drug task force officers and others about Rodriquez’s ongoing drug activity, gave his probation officer reasonable suspicion Rodriquez was breaking the law and violating -3- his probation. See, e.g., United States v. Johnson, 314 F. App’x 897, 899 (8th Cir. 2008) (unpublished per curiam) (deciding a probation officer had reasonable suspicion for a probation search where he “had received information from law enforcement personnel that [the probationer] was involved with illegal drugs and guns”). The search of Rodriquez’s vehicle did not violate the Fourth Amendment. Accordingly, we affirm.2 ______________________________ 2 Because we conclude reasonable suspicion supported the search of Rodriquez’s vehicle, we need not decide “whether the search would have been reasonable under the Fourth Amendment had it been solely predicated upon the condition of probation.” Samson v. California, 547 U.S. 843, 850, 857 (2006) (holding, “albeit in the context of a parolee search,” “that the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee”). -4-	{ "pile_set_name": "FreeLaw" }
824 F.2d 974 U.S.v.Dixon NO. 86-8647 United States Court of Appeals,Eleventh Circuit. JUL 09, 1987 1 Appeal From: N.D.Ga. 2 AFFIRMED. Local Rule: 36 case	{ "pile_set_name": "FreeLaw" }
536 F.3d 695 (2008) UNITED STATES of America, Plaintiff-Appellee, v. Gregory BROADNAX, Defendant-Appellant. No. 07-1985. United States Court of Appeals, Seventh Circuit. Argued November 1, 2007. Decided August 4, 2008. 696 Jesse M. Barrett, Office of the United States Attorney, South Bend, IN, for Plaintiff-Appellee. William J. Stevens, Lakeside, MI, for Defendant-Appellant. Before POSNER, WOOD, and SYKES, Circuit Judges. WOOD, Circuit Judge. When Gregory Broadnax set out to meet Rashawn Jackson, a friend since childhood, in the parking lot of the Econo Lodge Hotel in South Bend, Indiana, he intended to sell Jackson a "zip" (slang, we are told, for an ounce of crack cocaine) for $700 just as the two had planned in a series of phone calls earlier that night. But when Broadnax pulled his car into the lot, he got far more than he had bargained for. Unbeknownst to Broadnax, Jackson recently had been arrested for selling crack cocaine to an undercover officer and was now cooperating with the police. Thus, as Broadnax cruised into the parking lot, he found not only Jackson, but also officers of the South Bend police department, who in turn found the plastic bag containing 27.5 grams of crack that Broadnax had brought for Jackson. Broadnax was arrested, charged, tried by a jury, and found guilty on one count of possession with intent to deliver cocaine base with a prior felony drug conviction, in violation of 21 U.S.C. § 841(a)(1). He appeals various aspects of his conviction and sentence. We affirm. I As part of his post-arrest cooperation with the police, Jackson placed several phone calls to his old friend Greg Broadnax on February 9, 2006. Two of the conversations were recorded, and the evening resulted in Broadnax's arrest. To make matters worse for Broadnax, at the time of his arrest at the Econo Lodge he was on probation for a previous drug conviction under Indiana law. This meant that his arrest on the federal charges was also a violation of his state probation. His February 9 arrest led to the revocation of that probation and the imposition of an 18-month sentence in state prison. During the sentencing proceedings on his federal drug charge, Broadnax argued that his state sentence should run concurrently with the sentence on his federal charges. The district court rejected that 697 argument and instead ordered Broadnax to serve his 120-month federal sentence (the mandatory minimum) consecutively to the 18-month state sentence. That determination is the first ruling Broadnax challenges on appeal. His remaining two arguments take us back to the pretrial stage; he claims that the court violated his speedy trial rights and conducted a defective voir dire process. The charges against Broadnax were filed on February 21, 2006. His indictment followed on March 9, and his arraignment took place on March 24. The district court set an initial trial date of August 14, but on August 1 (two weeks before trial was slated to start), Broadnax moved to postpone the trial, citing the need to retain an expert witness to analyze the tape recordings of his conversations with Jackson on the night of his arrest. The court granted Broadnax's request and reset the trial for September 5. On August 17 the court granted the motion of Broadnax's retained counsel to withdraw; it declined, however, to appoint a new attorney for Broadnax, explaining that it could not do so until Broadnax filed a financial affidavit. Broadnax did so a week later, on August 24, and the court appointed new counsel, William J. Stevens. Stevens did not enter an appearance until October 4, almost a month after trial was scheduled to start. On November 1, the district court on its own motion entered a finding under 18 U.S.C. § 3161(h)(8) that the ends of justice would be served by an additional postponement of the trial. The court fixed a new trial date of January 9, 2007, and excluded for speedy trial purposes the time from November 1, 2006, to January 6, 2007. Broadnax raised no objection to these rulings. He did, however, file a motion for acquittal on the first day of his trial, January 9, 2007, in which he alleged that the final two-month delay violated his rights under the Speedy Trial Act. The district court denied the motion, which Broadnax had filed after the Government rested its case. The trial proceeded, and the following day, January 10, 2007, the jury found him guilty. At voir dire, Broadnax filed a list of 44 proposed questions. The questions were broad-ranging: they addressed topics such as the jurors' favorite colors, their leisure time activities, what kinds of bumper stickers they had on their cars, their experiences with drugs, their familiarity with drug treatment programs, and their attitudes toward judicial treatment of drug dealers. The court made its own decisions on what questions to ask. Broadnax complains that the district court erred by omitting 13 of his questions, which "were designed to elicit juror attitudes toward drugs, addiction and drug policy." These exclusions, he continues, hampered his exercise of his peremptory challenges. The district court exacerbated the problem when it denied Broadnax's later motion for a new trial, based in part on the allegedly defective voir dire. We address Broadnax's arguments chronologically. II A We begin with Broadnax's claim that the district court violated his rights under the Speedy Trial Act, 18 U.S.C. § 3161 et seq., when, on the court's own motion, it made a finding that the ends of justice would be served by excluding the time from November 1, 2006, to January 6, 2007. A violation of the Speedy Trial Act occurs when more than 70 days of non-excluded time elapse between the filing of charges against a defendant and the start of his trial. Under 18 U.S.C. § 3161(h)(8), a district court may exclude time from the Act's 698 70-day limit so long as "the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial." In this case, the district court's order of November 1, 2006, rather summarily said that the court "determines from the nature of this case that it is both `unusual and complex' within the meaning of 18 U.S.C. § 3161(h)(8) and that the ends of justice served by extending the time for trial in this case beyond the statutory deadline that would otherwise apply outweigh the best interest of the public and the defendants in a speedy trial." Broadnax argues that this "finding" was erroneous, because the Government's ability to present its case in a single day demonstrates that there was nothing complex about his case and because the order did not refer to any facts demonstrating why "the ends of justice" were best served by the delay. (Broadnax's argument focuses only on the time that the judge excluded on his own initiative; he does not take issue with the many delays that resulted from his own motions.) Typically, this court reviews a district court's findings regarding the calculation and exclusion of time under § 3161(h)(8) deferentially; "[a]bsent legal error, exclusions of time cannot be reversed except when there is an abuse of discretion by the court and a showing of actual prejudice." United States v. Ruth, 65 F.3d 599, 605 (7th Cir.1995) (quotation marks omitted) (alteration in Ruth). Though this standard is not particularly favorable to defendants, our review in this case presents an even higher bar for Broadnax to clear, because we agree with the Government that Broadnax waived his speedy trial claim by failing to present it to the district court before the trial began. The Speedy Trial Act specifies when and how waiver occurs. Section 3162(a)(2) stipulates that "[f]ailure of the defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to dismissal under this section." Here, on November 1, 2006, the district court entered its order excluding time and rescheduled the start of Broadnax's trial (previously set at September 5, 2006, and suspended while new counsel became acquainted with the case) for January 9, 2007. The trial indeed began on January 9. Broadnax did not raise a speedy trial objection until after the close of the Government's case; he coupled that motion with a motion for judgment of acquittal under FED.R.CRIM.P. 29(a). This was too late: the statute could not be clearer that the motion must occur prior to trial or entry of a plea. Good reasons lie behind this rule. First, it avoids double jeopardy issues, given the fact that jeopardy attaches as soon as the jury is empaneled. See Crist v. Bretz, 437 U.S. 28, 35-36, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978) (citing Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963)). Second, it reinforces the right of the prosecutor to appeal from the dismissal of an indictment before jeopardy attaches. See 18 U.S.C. § 3731. Broadnax's theory would undermine both of these policies. He would like us to "construe" § 3162(a)(2) so that the words "prior to" trial mean "prior to the conclusion of" trial. Perhaps because those two phrases obviously do not mean the same thing, we have never had occasion to comment on this idea. We did, however, drop a strong hint in United States v. Alvarez, 860 F.2d 801 (7th Cir.1988), reinstated on reh'g sub nom. United States v. Holguin, 868 F.2d 201 (7th Cir.1989), where we said that "[c]ourts have applied strictly this 699 waiver language [of § 3162(a)(2)] where a defendant has failed to move for dismissal prior to the commencement of trial." 860 F.2d at 821 (emphasis added) (citing cases from the Fifth, Eighth, Ninth, Tenth, and Eleventh Circuits). To eliminate any doubt, we now squarely hold that § 3162(a)(2) requires a defendant to move to dismiss on speedy trial grounds before a trial begins or before a plea is entered. Broadnax's last effort is to persuade us to review his claim under the plain error standard that usually applies to forfeited arguments. See, e.g., United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). But, as we explained in United States v. Morgan, 384 F.3d 439 (7th Cir.2004), this is not a case where the general rule applies: As with all statutes, we must interpret the Speedy Trial Act to give effect to the entire statute. The Act explicitly provides that a defendant's failure to move to dismiss the indictment constitutes a waivernot a forfeitureof his rights under the Act, 18 U.S.C. § 3162(a)(2), and we may not disregard this provision. All of the cases in which we reviewed a defendant's statutory speedy trial claim for plain error overlooked § 3162(a)(2), and so we do not view them as contrary precedent. A waiver argument, after all, can be waived by the party it would help, and in [the other cases noted], it appears that the prosecutors forfeited the benefit of § 3162(a)(2). The earlier decision in Alvarez, in contrast, properly followed the command of § 3162(a)(2), and we reiterate the rule set forth in the statute and recognized in that opinion. Morgan never moved in the district court to dismiss the indictment; accordingly, he waived his rights under the Act and we may not address his argument on appeal. 384 F.3d at 443 (citations omitted). Morgan's interpretation of § 3162(a)(2) requires us to find that Broadnax may not raise his speedy trial claim on appeal. We therefore move on to his other arguments. B Broadnax filed a list of 44 proposed voir dire questions. As we noted earlier, he is now focusing on the court's refusal to ask 13 of those questions, all of which "were designed to elicit juror attitudes toward drugs, addiction and drug policy." The violation occurred, Broadnax claims, because the questions the judge did ask failed to reveal information essential to the exercise of his peremptory challenges. The district court exacerbated the error, he concludes, when it denied his motion for a new trial, which was based in part on the allegedly defective voir dire. Once again, the Government's first response is that Broadnax waived this ground for relief by failing to object during voir dire to the court's process of questioning jurors. Though Broadnax raised objections to the voir dire process in his new trial motion (filed nine days after the jury issued its verdict), he did not (either then or earlier) specifically object to the court's failure to ask any particular questions. This amounted to a forfeiture of the argument he is now trying to present, and it means that instead of reviewing the judge's decisions for abuse of discretion, we look only for plain error. Olano, 507 U.S. at 731-32, 113 S.Ct. 1770. In the end, however, the standard of review does not matter, because we see no error, much less plain error, in the way the district court conducted voir dire here. Though he asserts that his ability to exercise his peremptory challenges was impaired, Broadnax does not explain how this could be so. The district court thoroughly questioned the potential jurors, covering 700 such topics as whether the jurors knew any of the parties involved, whether they were experienced in the law or had served on juries before (and, if so, what the case involved and when it occurred), whether they or family members were involved in law enforcement at any level, and whether any jurors had religious beliefs or other "firm convictions" that would impair their ability to serve on this jury. Once a preliminary set of jurors was selected, the court questioned each about his or her background, including residence, family situation, work situation, and level of education. It then asked each person about past experience with medical practices, training in pharmaceutical work, or other professional medical training, with an express focus on whether the jurors had ever "had occasions to deal with controlled substances." After the court asked those questions (which covered most, if not all, of the ground on Broadnax's list) Broadnax's counsel never followed up with a request for additional questioning. Indeed, two sidebar exchanges occurred between the district judge and the parties' attorneys during voir dire, and counsel for Broadnax never suggested that the district court was not sufficiently questioning the jury or allowing informed decisions regarding potential drug-related biases. Even now, Broadnax offers only general criticism of the court's voir dire. To prevail, he must do more. See, e.g., United States v. Sababu, 891 F.2d 1308, 1325 (7th Cir.1989). Broadnax has failed to show any error at all, let alone plain error, based on the voir dire process. C We turn finally to Broadnax's sentence. We look first to the question whether the district court correctly calculated the sentence suggested by the U.S. Sentencing Guidelines, and then to the question whether the ultimate sentence the court selected was reasonable. See United States v. Thompson, 523 F.3d 806, 812-13 (7th Cir.2008) (citing Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007)). Broadnax argues that the court failed to apply U.S.S.G. § 5G1.3(b) properly, and that if it had done so, it would have seen that his state and federal sentences had to run concurrently rather than consecutively. Section 5G1.3 of the Guidelines is entitled "Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment." It provides: (a) If the instant offense was committed while the defendant was serving a term of imprisonment (including work release, furlough, or escape status) or after sentencing for, but before commencing service of, such term of imprisonment, the sentence for the instant offense shall be imposed to run consecutively to the undischarged term of imprisonment. (b) If subsection (a) does not apply, and a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction under the provisions of subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct) and that was the basis for an increase in the offense level for the instant offense under Chapter Two (Offense Conduct) or Chapter Three (Adjustments), the sentence for the instant offense shall be imposed as follows: (1) the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons; and (2) the sentence for the instant offense shall be imposed to run concurrently 701 to the remainder of the undischarged term of imprisonment. (c) (Policy Statement) In any other case involving an undischarged term of imprisonment, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense. Broadnax argues that subsection (b) applies to his case. The Government submits three reasons why this is not correct, and we find two of those points persuasive. First, the Government takes issue with the premise that it was Broadnax's arrest on the current federal charges that resulted in the revocation of his Indiana probation and the consequent 18-month state-prison sentence. Citing to the Presentence Investigation Report, to which Broadnax made no objection, the Government points out that the Indiana state charges for "violation of probation" were filed on December 2, 2005. But Broadnax was not arrested on the current federal charges until February 9, 2006, more than two months after the state charged him with violating his probation. According to the Government, this proves that it must have been other conduct, not these federal charges, that "resulted in" the revocation of Broadnax's state probation and the ensuing 18-month sentence to state prison. If that is correct, then Broadnax would have no basis for arguing that the conduct that led to the federal charges "caused" his probation violation sentence. Furthermore, he would have no basis for disputing the order for consecutive, rather than concurrent, sentences. But we are not convinced that the Government's understanding of the record is right. Although the state filed its charge of probation violation on December 2, 2005, the sentence on those charges was not imposed until August 17, 2006, well after Broadnax's arrest on the federal charges. By August 2006, the federal charges had been added as additional grounds for the state probation violation, and as such were incorporated into the overall calculus that the state court no doubt considered when it decided to revoke the probation and order 18 months' state imprisonment in its stead. We therefore cannot agree with the Government that the federal charges played no role in the state sentence. Though they may not have been the sole basis for revoking Broadnax's state probation, it appears that they were a factor, for they were part of the recorded violations to which Broadnax admitted at his state revocation hearing. Nevertheless, we also cannot agree with Broadnax's position that § 5G1.3(b) applies to his case. That provision comes into play only if the state "term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction . . . and that was the basis for an increase in the offense level for the instant offense." U.S.S.G. § 5G1.3(b) (emphases added). Thus, before Broadnax can avail himself of § 5G1.3(b), he must show both that the state charges were "relevant conduct" to his federal offense and that the state charges provided the basis for an offense-level increase in his proceedings on the federal charges. Though Broadnax has shown the latter, he has not shown the former. The district court's Sentencing Memorandum states that when calculating Broadnax's advisory Guidelines range for his sentence, the court added two offense levels because Broadnax was on probation at the time of his federal offense. But the court went on to rule that the conduct of March 15, 2003 (i.e., the conduct on which the state charges were based), was not *702 relevant conduct in relation to the federal offense of February 9, 2006. It found instead that the conduct leading to his state conviction in November of 2004 "in no way constitutes relevant conduct for his possession of 27.5 grams of crack cocaine for which he was convicted by a jury on January 10, 2007." This conclusion was not clearly erroneous. See United States v. Artley, 489 F.3d 813, 821 (7th Cir.2007). Thus, § 5G1.3(b) does not apply to his case. What applies instead is § 5G1.3(c). Application Note 3(C) explains that "[s]ubsection (c) applies in cases in which the defendant was on federal or state probation, parole, or supervised release at the time of the instant offense and has had such probation, parole, or supervised release revoked." U.S.S.G. § 5G1.3, app. note 3(C). It goes on to state that "the Commission recommends that the sentence for the instant offense be imposed consecutively to the sentence imposed for the revocation." Id. Application Note 3(C) describes Broadnax's situation well, and so we find that § 5G1.3(c) provides the proper framework for analyzing Broadnax's consecutive sentences. Having concluded that the district court properly found the sentence that the Guidelines recommend for Broadnax's offense, all that remains for us is to ensure that the court recognized the advisory nature of the Guidelines and took into account the factors set forth in 18 U.S.C. § 3553(a). The record leaves no doubt that the court knew what it was supposed to do. During the sentencing hearing, the court expressly stated that the decision whether to impose consecutive versus concurrent sentences was "my call." And before making that call, the court thoroughly and on the record addressed the statutory factors as required by § 3553(a), and only thereafter decided that this situation called for Broadnax's sentences to run consecutively, rather than concurrently. Nothing about this process constituted legal error or an abuse of discretion, and so we reject Broadnax's challenge to his sentence. III The judgment of the district court is AFFIRMED.	{ "pile_set_name": "FreeLaw" }
J-S64039-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JOSHUA J. STOKES Appellant No. 33 EDA 2016 Appeal from the Judgment of Sentence December 11, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000720-2011 BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.* MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 07, 2016 Appellant appeals from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County following his conviction by a jury on the crimes of first-degree murder and possession of an instrument of crime.1 After a careful review, we quash this appeal and remand for further proceedings. Appellant, who was represented by court-appointed counsel, proceeded to a jury trial on various charges, including homicide, in connection with the stabbing death of the victim. On December 11, 2015, the jury convicted Appellant of the offenses indicated supra, and on that same day, the trial court sentenced Appellant to life in prison. ____________________________________________ 1 18 Pa.C.S.A. §§ 2502(a) and 907(a), respectively. *Former Justice specially assigned to the Superior Court. J-S64039-16 On or about December 17, 2015, Appellant filed a timely pro se post- sentence motion,2 see Pa.R.Crim.P. 720(A)(1) (indicating a post-sentence motion must be filed within ten days of the judgment of sentence), and on December 28, 2015, newly court-appointed counsel filed a notice of appeal.3 As a general rule, this Court has jurisdiction only over final orders. Commonwealth v. Rojas, 874 A.2d 638 (Pa.Super. 2005). In criminal cases, a direct appeal lies from the judgment of sentence. Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa.Super. 2007). Generally, where a defendant timely files a post-sentence motion, the court shall decide the motion within 120 days of the filing; otherwise, the motion shall be deemed denied by operation of law. See Pa.R.Crim.P. 720(B)(3)(a). When an appellant files a notice of appeal before the court has ruled on his post- sentence motion, the judgment of sentence has not become “final,” and any purported appeal will be interlocutory and unreviewable. Commonwealth ____________________________________________ 2 There is no indication that Appellant served his pro se post-sentence motion upon his court-appointed attorney. Moreover, there is no indication that the clerk of courts complied with Pa.R.Crim.P. 576(A)(4), which requires a copy of a pro se filing, made by a counseled defendant, to be forwarded to the counsel of record. 3 On or about December 28, 2015, Appellant filed a separate pro se document, which purported to be a notice of appeal; however, the clerk of courts did not identify the filing as a pro se notice of appeal. Rather, the clerk of courts listed Appellant’s pro se appeal on the certified docket sheet as a “Receipt of Filing from Represented Defendant Not signed by Attorney[.]” In any event, to the extent Appellant’s pro se document constitutes a pro se notice of appeal, for the reasons discussed infra, it is premature. -2- J-S64039-16 v. Borrero, 692 A.2d 158, 160 (Pa.Super. 1997). In those circumstances, the proper remedy is to quash the appeal, relinquish jurisdiction, and remand for the trial court to consider the post-sentence motion nunc pro tunc.4 Id. at 161. Instantly, Appellant’s notice of appeal was filed well before the expiration of the 120-day period and while Appellant’s timely post-sentence motion was still pending. Further, the trial court has not issued an order disposing of the post-sentence motion nor has the clerk of courts entered an order denying the post-sentence motion by operation of law. Thus, absent an order disposing of the post-sentence motion, or any indication the post- sentence motion has been withdrawn, we conclude the instant notice of appeal is premature. Id. (explaining that the judgment of sentence does not become final until the entry of an order disposing of timely post-sentence motions, even if the 120–day period for deciding post-sentence motions has expired). Accordingly, we quash this appeal and remand for the trial court to forward the pro se post-sentence motion to counsel, allow counsel the opportunity to amend the post-sentence motion, and rule on the post- sentence motion. ____________________________________________ 4 In such circumstances, the post-sentence motion is deemed filed nunc pro tunc on the date on which the certified record is remanded to the trial court, and thus, the 120-day period for disposing of the post-sentence motion begins to run anew as of that date. -3- J-S64039-16 Appeal Quashed; Case remanded for further proceedings; Jurisdiction is relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 9/7/2016 -4-	{ "pile_set_name": "FreeLaw" }
28 F.Supp. 975 (1939) GOLDBERG v. RALEIGH MANUFACTURERS, Inc. No. 240. District Court, D. Massachusetts. July 25, 1939. 976 Berger & Spinoza, of Boston, Mass., for plaintiff. Laurence R. Cohen, Laurence Mason, and Mason, Kelleher & Cohen, all of Boston, Mass., for defendant. FORD, District Judge. The plaintiff, on July 22, 1939, filed a motion in the above entitled case, presumably pursuant to Rule 30(b) of the Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c, that he be not required to submit to the taking of a deposition upon oral examination and assigned as the reasons therefor, the following: "1. The plaintiff objects to the taking of such deposition on the ground that the defendant's request is too broad in its scope and places no limit upon the extent to which such oral examination might be carried. "2. That the defendant can obtain by written interrogatories sufficient information to make the taking of such deposition unnecessary. "3. That the taking of such oral deposition will inconvenience and hinder the plaintiff unnecessarily in the transaction of his usual business." Although there is no requirement present in Rule 30(a) compelling the party desiring to take a deposition to state the matters upon which the examination is to be made, yet Rule 26(b) limits the examination to "any matter, not privileged, which is relevant to the subject matter involved in the pending action * " unless otherwise ordered by the Court under the provisions of Rule 30(b). No showing has been made by the plaintiff that the defendant intends to go outside the scope and nothing has been offered by the plaintiff to induce the Court to limit the examination to certain matters within the permitted scope. I do not regard the second contention as sound, inasmuch as it has long been recognized that there are far greater advantages in obtaining the facts and circumstances involved in a confronting examination than in a written one. The assertion 977 that the defendant can obtain sufficient information in a written examination in order adequately to defend the present suit is a matter I have no means here of determining even if it were within my province to do so. It is the right of the interrogating party to determine which method of examination would provide sufficient information in order that a suit might be properly defended (Rule 26(a) and ample safeguards for the protection of parties and deponents are provided in Rule 30(b), (d) in the taking of this type of deposition. The third objection is overruled because the plaintiff has failed to show that he would be subjected to "annoyance, embarrassment, or oppression" referred to in Rule 30(b). The mere fact that the plaintiff would be required to attend the examination and thereby absent himself from some of his usual business affairs during the taking of a deposition is utterly insufficient to justify the Court in ruling that he is being annoyed, embarrassed, or oppressed, within the meaning of this language. Something far beyond this is required in this connection to grant a party relief. The motion must be denied.	{ "pile_set_name": "FreeLaw" }
762 F.2d 1005 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.CHARLES BATES, PLAINTIFF-APPELLANT,v.HEALTH AND HUMAN SERVICES, RICHARD SCHWEIKER, SECRETARY,DEFENDANT-APPELLEE. NO. 83-5953 United States Court of Appeals, Sixth Circuit. 3/4/85 On Appeal from the United States District Court for the Eastern District of Tennessee Before: ENGEL and KEITH, Circuit Judges; and CELEBREZZE, Senior Circuit Judge. PER CURIAM. 1 Charles Bates appeals the denial of his request for attorneys' fees under the Equal Access to Justice Act, 28 U.S.C. Sec. 2412(d), filed in the United States District Court for the Eastern District of Tennessee. Bates claims that the position taken by the government in his successful action to reverse the Secretary's denial of Social Security disability benefits was not substantially justified. 2 Bates is a 52 year old man with an eighth grade education. Before 1974 he worked as a machine manufacturer, sander, sawmill worker, and woolen mill worker. In 1973 Bates had a heart attack, and since then he has suffered from a variety of heart and lung problems, diagnosed as congestive heart failure and desquamative interstitial pneumontis. 3 In 1974 Bates applied for and was awarded disability benefits under the Social Security Act. On May 27, 1981, Bates was notified that his benefits were being terminated. He requested a reconsideration of the termination. After a hearing, an administrative law judge (ALJ) found that Bates had regained the ability to do his past relevant work and, therefore, was not disabled. The ALJ's decision was approved by the Appeals Council. On November 4, 1982, Bates filed a complaint in the United States District Court for the Eastern District of Tennessee seeking review of the Secretary's denial of benefits. 4 In a decision dated June 29, 1983, Judge Milburn found that there was no substantial evidence in the record to support the ALJ's finding of no disability. The court granted Bates' motion for judgment on the pleadings, reversing the Secretary's decision and awarding benefits. 5 On July 27, 1983, Bates filed a motion for award of a reasonable attorney's fee pursuant to the Equal Access to Justice Act, 28 U.S.C. Sec. 2412(d). In a carefully reasoned opinion, Judge Milburn denied the motion on October 26, 1983, finding that although the government's decision to terminate benefits was not supported by substantial evidence, its position to defend the Secretary's ruling was substantially justified within the meaning of section 2412(d). Bates here appeals this denial of his motion for fees. 6 Bates claims that in this litigation and in making her decision, the Secretary relied solely on the testimony of a doctor who had only examined Bates once, at the Secretary's request. Bates asserts that the Secretary's reliance on this evidence was not substantially justified in view of the testimony of Bates' three treating physicians who believed that he was totally disabled. 7 For the reasons set forth in the memorandum opinion of then United States District Judge H. Ted Milburn filed in the district court on October 26, 1983, the judgment of the district court is AFFIRMED.	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4415 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JAMES EARL CLODFELTER, Defendant – Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., District Judge. (1:07-cr-00348-NCT-1) Submitted: January 6, 2009 Decided: February 6, 2009 Before NIEMEYER, KING, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. John Archibald Dusenbury, Jr., Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Angela Hewlett Miller, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James Earl Clodfelter appeals his sentence to 240 months in prison after pleading guilty to possession with intent to distribute seventy-seven grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) (2006), and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006). On appeal, Clodfelter’s attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting, in his opinion, there are no meritorious grounds for appeal but raising the issue of whether the district court erred in imposing a sentence of 240 months in prison. Clodfelter was notified of his right to file a pro se supplemental brief, but he has not done so. Finding no error, we affirm. We review a sentence for abuse of discretion. See Gall v. United States, 128 S. Ct. 586, 590 (2007). The first step in this review requires us to ensure that the district court committed no significant procedural error, such as improperly calculating the guideline range. United States v. Osborne, 514 F.3d 377, 387 (4th Cir.), cert. denied, 128 S. Ct. 2525 (2008). We then consider the substantive reasonableness of the sentence imposed, taking into account the totality of the circumstances. Gall, 128 S. Ct. at 597. When reviewing a sentence on appeal, we presume that a sentence within a properly calculated guideline range is reasonable. 2 United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). A statutorily required sentence is per se reasonable. United States v. Farrior, 535 F.3d 210, 224 (4th Cir. 2008). We have reviewed the record and conclude that the district court did not err or abuse its discretion in sentencing Clodfelter, and his sentence is reasonable. The Government filed an information of prior conviction for a felony drug offense before entry of Clodfelter’s guilty plea, subjecting him to a mandatory minimum prison term of twenty years under 21 U.S.C. § 841(b)(1)(A). At sentencing, Clodfelter affirmed the prior conviction. Because Clodfelter’s ordinary guideline range was less than 240 months, the district court properly found his guideline sentence was 240 months and imposed that sentence. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm the district court’s judgment. This court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on the client. 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. AFFIRMED 4	{ "pile_set_name": "FreeLaw" }
Order issued February 21, 2014 In The Court of Appeals For The First District of Texas NO. 01-14-00135-CV PETER HARDSTEEN AND PAULINA MAYBERG HARDSTEEN AND INTERVENOR TEXAS FARM BUREAU, Appellants V. DEAN'S CAMPIN’ CO., Appellee On Appeal from 506th District Court Grimes County, Texas Trial Court Cause No. 27885 MEMORANDUM ORDER OF REFERRAL TO MEDIATION The Court determines that it is appropriate to refer this appeal for resolution by mediation. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 154.021, 154.022(a), 154.023 (Vernon 2005). Accordingly, the Court orders that this appeal be referred to mediation unless any party to the appeal files an objection with the Clerk of this Court within ten days after receiving this order. See id. § 154.022(b). The parties shall choose a qualified mediator and agree on a reasonable fee for the mediator’s services. 1 See id. §§ 154.052, 154.054(a) (Vernon 2005). When the parties notify the Clerk of this Court of the name of the mediator, that person shall be deemed appointed by the Court. See id. § 154.051 (Vernon 2005). The parties should provide the mediator with a completed “Notification to Mediator” and the “Appointment and Fee Report—Mediation” form. These documents can be downloaded from the forms page of the Court’s website at http://www.1stcoa.courts.state.tx.us. The Court sets the following deadlines: • No later than 15 days from the date that this order is issued, the parties shall file with the Clerk of this Court a completed “Parties’ Notification to Court of Mediator.” This document can be downloaded from the forms page of the Court’s website at http://www.1stcoa.courts.state.tx.us. • No later than 45 days from the date that this order is issued, the parties shall conduct the mediation. 11 The Court does not recommend mediators. Mediation information is available from the Dispute Resolution Center of Harris County ((713) 755- 8274 and http://www.co.harris.tx.us/DRC), the Fort Bend Dispute Resolution Center ((281) 342-5000), the Alternate Dispute Resolution Section of the State Bar of Texas (http://www.texasadr.org/), and other groups. The parties are not required to use a mediator recommended or listed by these groups. 2 • No later than two days from the conclusion of the mediation, the parties and the mediator shall advise the Clerk of this Court in writing whether the parties did or did not settle the underlying dispute, and the mediator shall file with the Clerk of this Court a completed “Appointment and Fee Report—Mediation” form. This document can be downloaded from the forms page of the Court’s website at http://www.1stcoa.courts.state.tx.us. All parties, or their representative with full settlement authority, shall attend the mediation with their counsel. The mediator shall encourage and assist the parties in reaching a settlement of their dispute, but may not compel or coerce the parties to enter into a settlement agreement. See id. § 154.053(a) (Vernon 2005). All communications relating to the mediation are confidential and not subject to disclosure, except as set forth by law. See id. § 154.073 (Vernon 2005). The Clerk of this Court, however, will file this order, any objection to this order, and the completed “Parties’ Notification to Court of Mediator” and “Appointment and Fee Report—Mediation” forms with the other documents filed in this appeal that are available for public inspection. Unless expressly authorized by the disclosing party, the mediator may not disclose to either party information given in confidence by the other and shall at all times maintain confidentiality with respect to communications relating to the subject matter of the dispute. See id. § 154.053(b). Unless the parties agree otherwise, all matters, including the conduct and demeanor of the parties and their 3 counsel during the settlement process, are confidential and may never be disclosed to anyone, including this Court. See id. § 154.053(c). The Court will consider the agreed fee for the mediator’s services to be reasonable and tax that fee as a cost of the appeal unless the parties agree to another method of payment. See id. § 154.054. Nothing in this order modifies the timetables in the Texas Rules of Appellate Procedure regarding the appellate record and briefs. /s/ Laura Carter Higley Justice Laura Carter Higley Acting Individually 4	{ "pile_set_name": "FreeLaw" }
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT September 26, 2012 No. 11-2586 UNITED STATES OF AMERICA v. DWIGHT TURLINGTON, Appellant (D.N.J. No. 02-cr-00673-005) Present: SLOVITER, RENDELL and HARDIMAN, Circuit Judges 1. Motion by Appellee to Re-Issue Non-Precedential Opinion as Precedential Opinion; 2. Letter dated 10/4/12 filed pursuant to Rule 28(j) in Support of Motion to Re-Issue Non-Precedential Opinion as Precedential Opinion. Respectfully, Clerk/MB _________________________________ORDER________________________________ The foregoing motion is hereby GRANTED. By the Court, /s/Marjorie O. Rendell Circuit Judge Dated: October 16, 2012 MB/cc: Mark E. Coyne, Esq. John A. Klamo, Esq.	{ "pile_set_name": "FreeLaw" }
277 N.E.2d 905 (1972) THE METROPOLITAN DEVELOPMENT COMMISSION OF MARION COUNTY, and the Department of Metropolitan Development of the City of Indianapolis by Its Division of Planning and Zoning, Appellants, v. Edward CULLISON et al., Appellees. No. 771A127. Court of Appeals of Indiana, Second District. February 3, 1972. Rehearing Denied March 13, 1972. City-County Legal Division, Harold Kohlmeyer, Jr., Corp. Counsel, David F. Rees, Asst. City Atty., Indianapolis, for appellants. Richard M. Salb, Indianapolis, Atty. for Clark Oil & Refining Corp., amicus curiae. William F. LeMond, Kammins, LeMond, Carson & Stewart, Indianapolis, for appellees. Rehearing Denied March 13, 1972. See 279 N.E.2d 812. WHITE, Judge. This appeal raises but one question: Are the appellants, the Metropolitan Development Commission of Marion County and The Department of Metropolitan Development of the City of Indianapolis by its Division of Planning and Zoning, or either of them "person[s] aggrieved by a decision of the board of zoning appeals" within the meaning of those words as used in the following statute? "Sec. 74. Every decision of a board of zoning appeals shall be subject to review by certiorari. The decision of a board of zoning appeals established pursuant to Section 59 of this Act shall not be subject to review by certiorari until after the expiration of the time granted for an appeal by the executive director as specified in section 69. If the executive 906 director takes an appeal, a writ of certiorari may be sought only against the decision of the metropolitan plan commission sitting as a board of zoning appeals. "Subject to the above limitations, any person aggrieved by a decision of the board of zoning appeals may present to the circuit or superior court of the county in which the premises affected are located a petition duly verified, setting forth that such decision is illegal in whole or in part, and specifying the grounds of the illegality. The petition shall be presented to the court within thirty (30) days after the decision of the board of zoning appeals or if the writ of certiorari is sought against the decision of the metropolitan plan commission sitting as a board of zoning appeals, the petition shall be presented to the court within thirty (30) days after the last day on which the executive director could appeal the decision of the board of zoning appeals to the metropolitan plan commission. "No change of venue from the county in which the premises affected are located shall be had in any case arising under the provisions of this section. (Ind. Acts 1955, Ch. 283, § 74, as last amended by Ind. Acts 1969, Ch. 299, § 9, being now IC 1971, XX-X-X-XX, also Ind. Ann. Stat. § 53-974 (Burns 1971).) Appellees' motion to dismiss appellants' petition for certiorari, which the trial court sustained, was grounded on the premise that appellants are not "person[s] aggrieved". After its amendment in 1965 and until its 1969 amendment, the above quoted statute, at the beginning of its second paragraph, read: "Any person, including the executive director of the Metropolitan Planning Department, aggrieved by a decision of the Board of Zoning Appeals may present...."[1] The emphasized words were added in 1965 and deleted in 1969. From its enactment in 1955 until the 1965 amendment, the words of the first sentence of the second paragraph read exactly as they now read. Furthermore, the judicial review provisions of predecessor statutes (the 1947 act and the 1921 act) authorize "persons ... aggrieved" to petition for certiorari, but make no mention of such a petition by any public official.[2] Appellees do not expressly contend that appellants are not persons as that word is defined in the 1955 act.[3] The thrust of their argument is that appellants are not "aggrieved". The word "aggrieved" is and has been used in our statutes for many years to describe persons or parties authorized by the statute to seek judicial review of decisions by boards and agencies of government[4] and, in at least one instance, those who may recover penalty for the violation of a 907 statute[5]. It has also, as previously noted, been used for at least fifty years in Indiana laws authorizing zoning ordinances.[6] One statute[7] granting the right of appeal to the Supreme Court has also long given that right only to "the party aggrieved". It is an appeal pursuant to that statute which has provided us with our only comprehensive definition of "aggrieved". McFarland v. Pierce (1897), 151 Ind. 546, 548, 45 N.E. 706, said of that statute: "`The word "aggrieved" in the statute refers to a substantial grievance, a denial of some personal or property right, or the imposition upon a party of a burden or obligation.' People v. Kent, 4 N.Y. Wkly. Dig. 62; Reid v. Vanderheyden, 5 Cow. (N.Y.) 719; Steele v. White, 2 Paige, (N.Y.) 478; Colden v. Botts, 12 Wend. 234; Kelly v. Israel, 11 Paige, (N.Y.) 147; Card v. Bird, 10 Paige, (N.Y.) 426; Bush v. [Rochester, etc.] Bank, 48 N.Y. 659; Hall v. Brooks, 89 N.Y. 33; Grow v. Garlock, 29 Hun, 598; People v. Common Council of City of Troy, 82 N.Y. 575. `To be "aggrieved" is to have a legal right, the infringement of which by the decree complained of will cause pecuniary injury.' Hewitt's Appeal, 58 Conn. 223 226, 20 A. 453; Dickerson's Appeal, 55 Conn. 223, 10 A. 194, and 15 A. 99; Andress v. Andress, 46 N.J. Eq. 528, 22 A. 124; Swackhamer v. Kline's Adm'r, 25 N.J. Eq. 503; Parker v. Reynolds, 32 N.J. Eq. [290] 293. "The appellant must have a legal interest which will be enlarged or diminished by the result of the appeal. Woodward v. Spear, 10 Vt. 420; Hemmenway v. Corey, 16 Vt. 225; 2 Ency.Pl. & Prac., p. 170; Wiggin v. Swett, 6 Metc. 194; Lewis v. Bolitho, 6 Gray, 137; Lawless v. Reagan, 128 Mass. 592; Deering v. Adams, 34 Me. 41." In Fidelity Trust Co. v. Downing (1946), 224 Ind. 457, 68 N.E.2d 789, the Indiana Supreme Court considered the meaning of "person aggrieved" as that term is used in section 4 of the 1921 Act.[8] The situation in that case bears no analogy to the case at bar but the court did say "that the term person aggrieved is not broad enough to include anyone other than the person directly affected by the action of an administrative official or the board..." (224 Ind. at 463, 68 N.E.2d at 791.) That statement is consistent with the definition quoted ante from McFarland v. Pierce, supra, particularly: "The appellant must have a legal interest which would be enlarged or diminished by the result of the appeal." (151 Ind. at 548, 45 N.E. at 707.) Appellants, in asserting that the Metropolitan Development Commission and the Department of Metropolitan Development are often "aggrieved" by decisions of the board of zoning appeals make no attempt to demonstrate that the commission or the department is "aggrieved" in any legal *908 sense. No attempt is made to show any property interest or any interest not common to the community as a whole. On the contrary, in arguing that the affirmance of the trial court's judgment would be contrary to the public interest, appellants state: "... [A] finding by the court that Metropolitan Development ... cannot be an `aggrieved person' under the Acts of 1955, Ch. 283, s. 74, as amended, being Burns Ind. Stats. Ann. § 53-974 (1970 Supp.) will mean that no person or entity will have a right to question or seek review of a decision of the Board except an individual property owner who is willing to mount the effort and expense of litigation. No entity of government will be able to review or to initiate review of Board decisions in the interest of citizens and in the interest of overall community development and policy." While it is beyond the power of the Legislature to deny to legally aggrieved persons the right of judicial review of administrative decisions,[9] it has never, to our knowledge, been suggested in any reported decision of an Indiana court that the Legislature must provide such aggrieved persons with an official representative to assert that right for their benefit. Furthermore, it has never been held that the decisions of boards entrusted with the protection of the public interest cannot be made final as to that public interest. Both the Development Commission and the board of zoning appeals are charged with the performance of duties and the exercise of discretion in carrying into effect the public interest in planned development. The board of zoning appeals is empowered to grant variances in cases in which strict adherence to the "plan" could result in hardship. Either the grant or the denial of a variance may infringe upon the legal interests of persons directly affected. Such persons (remonstrators) may elect to assert such grievances by petitioning for certiorari or they may decide to abandon their right to litigate just as they may elect not to sue for redress of other civil wrongs suffered. When no person who is aggrieved by the variance chooses to seek review by certiorari, the public interest may suffer. It can therefore be persuasively argued that some public official or agency should be authorized to seek judicial review in such cases. But when the Legislature has not made that authorization, courts should not be asked to do so by changing the long established and generally understood meaning of "aggrieved" in order to attain a result the Legislature has apparently decided is either unnecessary or undesirable. Neither plaintiff is a "person aggrieved" and the trial court quite properly dismissed the petition for certiorari. Judgment affirmed. LOWDERMILK, and SULLIVAN, JJ., concur. BUCHANAN, J., not participating. LOWDERMILK, J., First District, sitting by assignment. NOTES [1] Ind. Acts 1965, Ch. 434, § 21, p. 1375. [2] Ind. Acts 1921, Ch. 225, § 5, Ind. Ann. Stat. § 48-2305 (Burns 1933) and Ind. Acts 1947, Ch. 174, § 82, Ind. Ann. Stat. § 53-783 (Burns 1964), IC 1971, XX-X-X-XX, both contain these pertinent words: "Any person or persons, firm or corporation jointly or severally aggrieved by any decision of the board of zoning appeals, may present to the circuit or superior court ... a petition... . [for certiorari]." [3] Sec. 3, being Ind. Ann. Stat. § 53-903 (Burns 1964), also IC 1971, 18-7-2-3, states in pertinent part: "As used in this act ... `person' means an individual, firm or corporation." Ind. Acts 1969, Ch. 173, § 809(5), Ind. Ann. Stat. § 48-9334(5), IC 1971, 18-4-8-9 (a part of the "Uni-Gov" Act) gives the metropolitan development commission of counties containing a city of the first class "the power to sue and be sued collectively by its legal name styled `The Metropolitan Development Commission of ____ County'". [4] Perhaps the earliest statute of this type still in force is Ind. Ann. Stat. § 26-901 (Burns 1970), IC 1971, XX-X-XX-XX, which was enacted as 1 R.S. 1852, Ch. 20, § 31. It reads: "From any decision of such commissioners there shall be allowed an appeal to the circuit or common pleas court, by any person aggrieved; but if such person shall not be a party to the proceeding such appeal shall not be allowed, unless he shall file in the office of the county auditor his affidavit setting forth that he has an interest in the matter decided, and that he is aggrieved by such decision, alleging explicitly the nature of his interest." A recent statute is section 14 of the Administrative Adjudication and Court Review Act of 1947, Ind. Acts 1947, Ch. 365, § 14, IC 1971, X-XX-X-XX, Ind. Ann. Stat. § 63-3014 (Burns 1961) which provides that "[a]ny party or person aggrieved by any order or determination made by any such agency shall be entitled to a judicial review thereof... ." [5] Ind. Acts 1885 (Spec.Sess.), Ch. 48, § 3, IC 1971, 8-1-20-3 provides a penalty of $100.00 for violation of the act prescribing duties of telephone and telegraph companies, to be recovered in a civil action by "any party aggrieved". [6] See note 2. [7] Ind. Acts 1881 (Spec.Sess.), Ch. 38, § 254, IC 1971, XX-X-XX-XX, Ind. Ann. Stat. § 3-2603 (Burns 1968). [8] Ind. Acts 1921, Ch. 225, § 4, Ind. Ann. Stat. § 48-2304 (Burns 1933). [9] Slentz v. City of Fort Wayne (1954), 233 Ind. 226, 233, 118 N.E.2d 484; Hagemann v. City of Mt. Vernon (1958), 238 Ind. 613, 621, 154 N.E.2d 33; City of Indianapolis v. John Clark, Inc. (1964), 245 Ind. 628, 635, 637, 196 N.E.2d 896, 201 N.E.2d 336; Klein v. City of Indianapolis (1967), 248 Ind. 117, 121, 224 N.E.2d 42.	{ "pile_set_name": "FreeLaw" }
335 F.3d 832 Riley Dobi NOEL, Petitioner,v.Larry NORRIS, Director, Arkansas Department of Correction, Respondent. No. 03-2591. United States Court of Appeals, Eighth Circuit. July 3, 2003. On application for Permission to file a Successive Habeas Petition. Before BOWMAN, MORRIS S. ARNOLD and RILEY, Circuit Judges. JUDGMENT PER CURIAM. 1 Riley Dobi Noel's Petition for authorization to file a successive habeas application in the district court is denied. Mandate shall issue forthwith. Judge Morris S. Arnold dissenting. 2 MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting. 3 I respectfully dissent because I think that Mr. Noel is entitled to file a second habeas petition under 28 U.S.C. § 2244(b)(2)(A). Mr. Noel's claim that he cannot constitutionally be executed because he is mentally retarded, see Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), was "unavailable," as that word is used in the statute, at the time that he filed his first habeas petition and at all times during its pendency. See In re Morris, 328 F.3d 739, 740 (5th Cir. 2003) (per curiam). The fact that a similar claim was available under a state statute at the time of his trial is, to my mind, irrelevant. His federal claim was not available, and that is all that the statute requires because it speaks of the availability of "new rule[s] of constitutional law," 28 U.S.C. § 2244(b)(2)(A). 4 In order to be eligible to file a second habeas petition, Mr. Noel must also satisfy us that the rule he relies on is one that has been "made retroactive to cases on collateral review by the Supreme Court." Id. I admit that this is a closer question, but, on balance, it seems to me that the principle established in Atkins satisfies this criterion. The Supreme Court need not decide in the case that establishes a new rule that it is retroactive, nor does the Court have to declare a new rule retroactive some time after it is announced, before the rule qualifies under the statute. See Tyler v. Cain, 533 U.S. 656, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). 5 In Penry v. Lynaugh, 492 U.S. 302, 330, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), the Court specifically said that if mental retardation were held to be a constitutional impediment to execution, that rule would be available retroactively to habeas petitioners. On balance, this statement would seem to qualify the rule on which Mr. Noel's claim is based as one that has been "made retroactive to cases on collateral review by the Supreme Court." See In re Holladay, 331 F.3d 1169 (11th Cir.2003); Walker v. True, No. 02-22, 67 Fed.Appx. 758, 770, 2003 WL 21008657, at *7 (4th Cir. May 6, 2003) (per curiam); In re Morris, 328 F.3d at 740; cf. Hill v. Anderson, 300 F.3d 679, 681 (6th Cir.2002). 6 I would therefore grant Mr. Noel's application for leave to file a second habeas petition. I would leave his request for a stay to the district court on remand.	{ "pile_set_name": "FreeLaw" }
771 P.2d 920 (1989) 115 Idaho 902 CONDA PARTNERSHIP, INC., Plaintiff-Appellant, v. M.D. CONSTRUCTION CO., INC., Defendant-Respondent. No. 17259. Court of Appeals of Idaho. April 11, 1989. 921 David H. Maguire of Ward, Maguire, Bybee & Kline, Pocatello, for plaintiff-appellant. William D. Olson of Racine, Olson, Nye, Cooper & Budge, Pocatello, for defendant-respondent. PER CURIAM. This lawsuit concerns the collapse of a storage bin built by M.D. Construction, Inc. The suit was filed by an entity known as Conda Partnership. We are asked to decide two procedural questions: (1) whether the district court properly denied Conda's motion to amend its complaint by substituting or joining another party plaintiff; and (2) whether the court properly granted M.D. Construction's motion for summary judgment. We reverse the district court's order denying Conda's motion to amend. We vacate the summary judgment for M.D. Construction. We remand for further proceedings. Some background facts are helpful. Conda (a partnership, not a corporation as designated in the pleadings) is comprised of two corporate entities: Beker Industries, Inc. (Beker) and Western Cooperative Fertilizers, Inc. (Western). Conda was formed to operate a mining concern in Conda, Idaho. Beker was the managing partner. When Beker solicited bids for disassembling and reconstructing a 6,000 ton rock storage bin, M.D. Construction was the successful bidder. Throughout the contracting and construction process, the only business entity M.D. Construction worked with was Beker. The record is barren of any evidence showing M.D. Construction knew of or worked with Conda. Two years after the storage bin was completed, it collapsed. Conda eventually brought this action against M.D. Construction. In its answer, M.D. Construction denied any contractual relationship with Conda and asserted either that the real party in interest had not been named or that an indispensable party had not been joined. Two years later, in August, 1986, M.D. Construction filed its motion for summary judgment based upon Conda's failure to substitute or to join a proper party plaintiff and upon the running of statutes of limitation. A month later Conda filed a motion to amend its complaint to substitute or to join as real parties in interest, Beker and Western. A hearing was held on both motions in January 1987. By a memorandum decision and order the district court denied Conda's motion and granted M.D. Construction's motion. The court expressed four reasons for its decision: Conda presented no evidence showing it had standing to bring this action; there was no proof that Beker had authorized Conda to bring this action; there was no proof that the contract with M.D. Construction was an asset of Conda; and Conda was untimely in filing its motion to amend. Obviously, the grant of summary judgment was based upon the procedural flaw of failing to timely substitute or to join a proper party plaintiff. The district court did not rely on any statute of limitation in granting summary judgment. If Conda had been allowed to substitute or join Beker as the real party in interest, the reasons given by the district court for the summary judgment would have been obviated. 922 Therefore, if the district court abused its discretion in denying Conda's motion to amend, the concomitant entry of summary judgment would have been inappropriate. Consequently, the underlying issue in this case is whether Conda untimely filed its motion to amend. The applicable rule is I.R.C.P. 17(a). In pertinent part Rule 17(a) provides: "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 objection for ... joinder or substitution of, the real party in interest; ...." (Emphasis added.) The decision to grant motions under Rule 17(a) rests within the trial court's discretion. In exercising such discretion the trial court should follow the liberal construction given Rule 17(a) encouraging the granting of motions to amend. The court should also further the policy favoring the just resolution of actions providing litigants their day in court. Holmes v. Henderson Oil Co., 102 Idaho 214, 628 P.2d 1048 (1981). Moreover, Rule 17(a) is designed to prevent forfeiture when determination of the proper party is difficult or when an understandable mistake has been made in selecting the party plaintiff. Nevertheless, if the real party in interest is not joined or substituted within a reasonable time, the trial court should dismiss the suit. What constitutes a reasonable time depends upon the facts of each case. See 6 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1555, at 705, 708-09 (1971). In determining a reasonable time, trial courts should consider the good faith of the plaintiff and the prejudice, if any, experienced by the defendant. See, e.g., Brohan v. Volkswagen Mfg. Corp., 97 F.R.D. 46 (E.D.N.Y. 1983); Unilever, Ltd. v. M/T Stolt Boel, 77 F.R.D. 384 (S.D.N.Y. 1977); Holmes v. Henderson Oil Co., supra; Chavez v. Regents of the University of New Mexico, 103 N.M. 606, 711 P.2d 883 (1985). In support of its position, M.D. Construction cites Hobbs v. Police Jury of Morehouse Parish, 49 F.R.D. 176 (W.D.La. 1970), for the proposition that the reasonable-time approach to motions under Rule 17(a) is not followed in a case where no understandable mistake has been made in naming the plaintiff. This is because Rule 17(a) is not intended to validate claims filed without any real basis but with the hope that a proper party will eventually materialize in order to benefit from suspended statutes of limitation. However, this principle has no application to cases in which substitution of the real party in interest is necessary to avoid injustice. See 6 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1555, at 707-08 (1971). Here, Conda gave an understandable explanation of why it was named as plaintiff instead of Beker, based upon the relationship between a managing partner and the partnership. Extensive discovery has been conducted by both sides. Conda has provided all requested documents to M.D. Construction; most, if not all, of the documents have been in Beker's possession. M.D. Construction has deposed several Beker employees. The underlying facts giving rise to this action are understood by both parties. M.D. Construction has not indicated it was unsure about the events at issue. From our review of the record, Conda appears to have acted in good faith. There is no indication that M.D. Construction has experienced any real prejudice because of the time span involved. A great injustice would result if the legitimate claims were defeated by the simple error of form when the mistake is so easily corrected. Under the facts of this case, the two-year period of time between M.D. Construction's answer objecting to the designated plaintiff and Conda's filing of its motion to amend is not unreasonable. Accordingly, we hold that the district court abused its discretion in denying Conda's motion. The entry of summary judgment was inappropriate. On appeal, M.D. Construction postulates another theory to support the district court's decision. Based upon a provision in the construction contract limiting its warranty for quality workmanship to three years, M.D. Construction argues that this *923 is a bargained-for period of limitation. We disagree. The provision merely recites the duration of a warranty, not a limitation period for lawsuits. The order of the district court denying Conda's motion to amend is reversed. The summary judgment entered for M.D. Construction is vacated. The case is remanded for further proceedings. Costs to appellant, Conda Partnership. No attorney fees on appeal.	{ "pile_set_name": "FreeLaw" }
Case: 11-40798 Document: 00512070662 Page: 1 Date Filed: 12/03/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED December 3, 2012 No. 11-40798 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. EDWARD DAVID ROSA, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 7:09-CR-260-1 Before WIENER, ELROD, and GRAVES, Circuit Judges. PER CURIAM:* Defendant-Appellant Edward David Rosa appeals his sentence following his guilty plea conviction for being a felon in possession of a firearm. He argues that the district court erred in increasing his base offense level by two levels pursuant to U.S.S.G. § 2K2.1(b)(3)(B) and assigning a base offense level of 20 pursuant to § 2K1.1(a)(4)(B) because the pipe bomb found at his residence did not constitute a destructive device. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 11-40798 Document: 00512070662 Page: 2 Date Filed: 12/03/2012 No. 11-40798 We have determined that a pipe bomb is a destructive device under § 5845(f). See United States v. Hunn, 344 F. App’x 920, 921 (5th Cir. 2009) (finding that homemade pipe bomb was a destructive device under § 5845(f)); United States v. Charles, 883 F.2d 355, 357 (5th Cir. 1989) (concluding that three pipe bombs were destructive devices under § 5845(f)). Thus, the district court did not clearly err in enhancing Rosa’s sentence pursuant to § 2K2.1(b)(3)(B) or in assigning a base offense level of 20 pursuant to § 2K2.1(a)(4)(B). See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Accordingly, the judgment of the district court is AFFIRMED. 2	{ "pile_set_name": "FreeLaw" }
562 N.W.2d 466 (1997) 454 Mich. 274 Larry G. SUTHERLAND and Donna Sutherland, husband and wife, Plaintiffs-Appellants, v. KENNINGTON TRUCK SERVICE, LTD., an Ontario corporation, Elgin Leasing Ltd., a Division of Western Ontario Truck Centre, Inc., an Ontario corporation, Canadian Timken, Ltd., an Ontario corporation, and Gregory R. Zavitz, jointly and severally, Defendants-Appellees. Docket No. 102290, Calendar No. 15. Supreme Court of Michigan. Argued November 14, 1996. Decided May 13, 1997. 467 Steinberg, O'Connor, Paton & Burns, P.L.L.C. by Richard L. Steinberg, Detroit, Philo, Atkinson, White, Stephens, Whitaker & Keenan by Harry M. Philo, Detroit, Gallon & Takacs, Co., L.P.A. by Jack Gallon, Toledo, OH, and Bendure & Thomas by Mark R. Bendure, Detroit, for plaintiffs-appellants. Braunlich, Russow & Braunlich by William H. Braunlich, Monroe, for defendants-appellees. MALLETT, Chief Justice. In this choice of law case, an Ontario driver and an Ohio driver collided while on a Michigan highway. Plaintiffs filed suit in Michigan two years and twenty-two days after the accident. Both Ohio and Ontario have two-year statutes of limitations, while Michigan has a three-year statute of limitations. The trial court applied Ontario's statute of limitations, holding that Michigan had no interest in the litigation. We reverse and hold that because neither Ohio nor Ontario have an interest in having its law applied, Michigan law will apply. I Facts and Proceedings The facts in this case are fit for a law school choice of law examination. On August 14, 1989, two trucks collided on Interstate 75 in Monroe County, Michigan. The driver of one truck, Larry G. Sutherland, is a resident of Ohio and was operating a truck licensed in Ohio. The driver of the other truck, Gregory Zavitz, is a citizen of Ontario, Canada. He was employed by Kennington Truck Service, an Ontario corporation. Zavitz's truck was owned by Elgin Leasing, which had leased the truck to Canadian Timken. Both Elgin Leasing and Canadian Timken are Ontario corporations. On September 5, 1991, two years and twenty-two days after the accident, Mr. Sutherland and his wife sued defendants in Monroe Circuit Court, alleging negligence. Defendants moved for summary disposition pursuant to MCR 2.116(C)(7), arguing that the court should apply either Ohio's or Ontario's statute of limitations. Both of these jurisdictions bar negligence actions filed more than two years after the cause of action arose.[1] In response, plaintiffs argued that the case should be governed by Michigan's three-year statute of limitations.[2] The trial court granted the motion for summary disposition. Applying "interest analysis," the court found that Michigan had no interest in the outcome of this litigation because none of the parties are Michigan citizens. The court further found that Ontario had an interest in protecting its citizens from stale claims. On this basis, the court held that Ontario's two-year statute of limitations would apply. In an unpublished opinion per curiam, the Court of Appeals affirmed.[3] The Court stated: The trial court did not err in applying the Ontario statute. The trial court properly conducted an interest analysis to decide which state had the greatest interest in applying its statute of limitation. Although Michigan law once favored application of the law of the forum to procedural matters, such is no longer the case. Recent decisions have criticized the distinction between procedure and substance for conflict of law analysis, recognizing that it has often been used in a manipulative manner. See Olmstead v. Anderson, 428 Mich. 1, 28, 400 N.W.2d 292 (1987); Sexton v. 468 Ryder Truck Rental, 413 Mich. 406, 419-423, 320 N.W.2d 843 (1982); Mahne v. Ford Motor Co., 900 F.2d 83, 87 (C.A.6, 1990); Penwest Development Corp. v. Dow Chemical Co., 667 F.Supp. 436, 442 (E.D.Mich., 1987); Farrell v. Ford Motor Co., 199 Mich.App. 81, 501 N.W.2d 567 (1993). Neither party in this action is a citizen of this state, both parties are residents of states that have a two-year statute of limitations, and the statute of limitation issue is not an issue involving conduct. We find no error in the trial court's analysis. We granted leave to appeal on plaintiffs' motion for reconsideration. II The Choice of Law "Revolution" Before 1963, American choice of law jurisprudence for tort cases was uniform. All fifty states adhered to the doctrine of lex loci delicti, or the law of the place of the wrong, as espoused by Professor Beale in the First Restatement on Conflicts of Law. Under this doctrine, tort cases were governed by the law of the jurisdiction in which the wrong occurred. Thus, a suit by Michigan citizens who were involved in an accident in another jurisdiction would be governed by the law of the other jurisdiction, even if the suit were brought in this state.[4] The primary advantage of this rule was that conflicts of law questions were easy to resolve, at least in theory. Parties in litigation could usually predict what law would govern the case by determining the state where the last act necessary to create liability occurred.[5] While all states purported to adhere to the rule of lex loci delicti in the first half of this century, many state courts expressed discomfort with the rigidity of the rule. In order to mitigate what were seen as harsh results, courts developed several "escape devices" to the lex loci delicti rule. For example, a forum court would decline to apply the law of another jurisdiction if that law conflicted with an important public policy of the forum state. Courts would also characterize issues as "procedural," instead of substantive, in order to apply the law of the forum. While the application of these escape devices avoided what were seen as unjust results, they also undermined the predictability of the lex loci delicti rule.[6] In 1963, New York became the first state to explicitly abandon the traditional approach to conflicts of law. In the seminal case of Babcock v. Jackson, 12 N.Y.2d 473, 484, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963), the New York Court of Appeals stated that the traditional rule "fail[ed] to take into account essential policy considerations and objectives...." Instead of adhering to the lex loci delicti rule, the New York Court of Appeals asserted that it would consider the contacts of the tort with each jurisdiction and the interests that each government had in having its law applied.[7] Babcock sparked a "revolution" in conflicts of law jurisprudence. Freed from the monolithic adherence to the traditional rule, state after state revisited its conflicts rules and expressed its frustration with the lex loci delicti doctrine. By 1980, thirty-one states had abandoned the traditional rule. Currently, only ten states still purport to apply the lex loci delicti rule.[8] 469 While Babcock slew the lex loci delicti dragon, it has not produced a consensus on how to deal with conflicts of law questions in the absence of the traditional rule. On lex loci's grave, several competing theories have sprouted. The most prominent of these "modern" theories is " interest analysis," an approach that the late Brainerd Currie has advocated.[9] Under this approach, courts examine the governmental interests of the involved jurisdictions. If the forum state has no interest in having its law applied but the other jurisdiction does, the law of the other jurisdiction should be chosen. If the forum state has an interest and the other does not, the court should choose forum law. If both the forum state and the alternate have an interest in having its law applied and the laws conflict, then the court should apply the forum's law. If neither jurisdiction is interested, the court should again apply forum law. While several states have adopted interest analysis, it competes for attention with other theories. Under Professor Leflar's "choice influencing considerations," for example, courts ask which jurisdiction has the "better rule of law."[10] The approach that the Second Restatement on the Conflicts of Law proposes, on the other hand, would require courts to determine which jurisdiction has the "most significant relationship" to the tort.[11] At least one state, Kentucky, has adopted a blanket lex fori approach, in which forum law will always be applied.[12] Proponents of these various approaches have engaged in a vigorous debate over the advantages and disadvantages of each approach. As Justice Riley has noted, conflicts of law has become a fecund milieu for academic scholarship.[13] While this debate is illuminating, much of it ignores the fact that, in practice, all the modern approaches to conflicts of law are relatively uniform in the results they produce. Professor Borchers has surveyed cases that purport to apply the various modern approaches and concluded that none of the modern approaches differ significantly from the others in three important respects: the percentage of times that courts apply forum law, the percentage of times that plaintiffs recover, or the percentage of times that local parties prevail.[14] In fact, Professor Borchers' research shows that each of the modern approaches tend to favor significantly the application of forum law. Applying the modern approaches, courts select forum law between approximately fifty-five and seventy-seven percent of the time.[15] This has led one commentator to note: On reading a substantial number of these cases over the years, one has a feeling that the courts may not be doing what they purport to do, that is, employing the modern choice-of-law theories in a neutral way to determine what law applies. Rather, one suspects that courts employing the new theories have a very strong preference for forum law that frequently causes 470 them to manipulate the theories so that they end up applying forum law.[[16]] Likewise, Professor Sedler has noted: [T]he results in actual cases that arise are not likely to differ depending on which particular "modern" approach a court is purportedly applying or on whether a court even commits itself to a particular approach. Moreover, there seems to be little dispute among the commentators that the courts are generally reaching functionally sound and fair results in the cases coming before them for decision.[[17]] This preference for forum law is hardly surprising. The tendency toward forum law promotes judicial economy: judges and attorneys are experts in their state's law, but have to expend considerable time and resources to learn another state's law. Thus, on surveying current conflicts of law jurisprudence, one can reasonably conclude that only two distinct conflicts of law theories actually exist. One, followed by a distinct minority of states, mandates adherence to the lex loci delicti rule. The other, which bears different labels in different states, calls for courts to apply the law of the forum unless important policy considerations dictate otherwise. III The Development of Michigan's Choice of Law Jurisprudence The evolution of Michigan's choice of law jurisprudence has paralleled national trends. In Abendschein v. Farrell, 382 Mich. 510, 170 N.W.2d 137 (1969), this Court declined to join the emerging conflicts of law movement. In adhering to the doctrine of lex loci delicti, the Court asserted that the quagmire of unanswered and perceivably unanswerable questions arising out of the proposed new doctrine appears less attractive than our admittedly hard and fastand occasionally unjust, it is true rule that the law of the place of the wrong is applied when the forum is a Michigan court. [Id. at 516, 170 N.W.2d 137.] Despite adherence to the traditional rule, Michigan courts continued to employ various "escape devices" in order to mitigate harsh consequences. See, e.g., Sweeney v. Sweeney, 402 Mich. 234, 262 N.W.2d 625 (1978); Shaheen v. Schoenberger, 92 Mich.App. 491, 285 N.W.2d 343 (1979); Branyan v. Alpena Flying Service, Inc., 65 Mich.App. 1, 236 N.W.2d 739 (1975). In these cases, courts readily found public policy reasons to displace the lex loci delicti with forum law. A majority of this Court finally abandoned the lex loci delicti rule in the companion cases of Sexton v. Ryder Truck Rental and Storie v. Southfield Leasing, 90 Mich.App. 612, 282 N.W.2d 417 (1979). After exhaustively reviewing the history of choice of law jurisprudence in Michigan, the Court noted that the purported advantages of the traditional rule were, in practice, nonexistent. The Court stated: Review of the arguments for lex loci and the alternate choice-of-law methodologies convinces us that slavish devotion to the rigidities of lex loci no longer is either the reasonable policy to follow or the generally accepted law in the United States. As a matter of fact, the courts of Michigan have frequently departed from lex loci in individual instances. [Sexton, supra at 425, 320 N.W.2d 843.] While Sexton marked the end of the lex loci delicti rule in Michigan, it did not produce a consensus on the appropriate choice of law methodology to be applied. Justice Williams' opinion[18] expressly declined to embrace any of the "modern" approaches to conflicts of law. Id. at 433, 320 N.W.2d 843. Instead, his opinion held that forum law would be applied when Michigan residents or corporations doing business in Michigan are involved in accidents in another state and 471 appear as plaintiffs and defendants in Michigan courts. Id. Justice Levin, on the other hand, wished to create a presumption in favor of forum law for all tort cases involving personal injury or property damage. He stated: [W]e should go the distance and declare that Michigan law will apply in all personal injury and property damage actions without regard to whether the plaintiffs and defendants are all Michigan persons unless there is some compelling reason for applying the law of some other jurisdiction, and that merely because the injury arose out of an occurrence in another state is not such a reason. [Id. at 442, 320 N.W.2d 843 (Levin, J., concurring).] Because Sexton did not produce a clear majority, lower courts struggled with its application. Some courts read Sexton to apply only to cases in which all the parties are Michigan residents and adhered to the lex loci delicti rule for all other cases.[19] Other courts have read Sexton to require a balancing of interests of the various states in the event that one of the parties is not from Michigan.[20] This Court clarified much of the confusion surrounding Sexton in Olmstead v. Anderson, supra. Olmstead involved an automobile accident in Wisconsin between a Michigan driver and two Minnesota residents. The plaintiff, the administratrix of the estates of the deceased Minnesota residents, originally filed suit in Minnesota, but this suit was dismissed for improper venue and lack of jurisdiction. The plaintiff then filed suit in Michigan. The choice of law issue was vitally important in Olmstead, because Wisconsin law at the time limited recovery in wrongful death cases to $25,000. Neither Michigan nor Minnesota limited recoverable damages at that time. In addressing the choice of law question, this Court began with the presumption that Michigan law would apply. Id. at 24, 30-31, 400 N.W.2d 292. The Court then asked whether "reason requires that foreign law supersede the law of this state." Id. at 24, 400 N.W.2d 292. In analyzing whether a rational justification for displacing Michigan law existed, the Court in Olmstead reviewed Wisconsin's interests in having its law applied. The Court noted that neither party was a resident of Wisconsin, and that Wisconsin therefore did not have any interest in seeing its limitation of damages provision applied to this case. The Court also noted that because the insurance companies of both parties knew of the possibility of unlimited liability, no unfairness would result from the application of Michigan law. Id. at 25, 400 N.W.2d 292. Because Wisconsin did not have an interest in having its law applied, the lex fori presumption was not overcome, and the Court did not undertake an analysis of Michigan's interests. IV Analysis Olmstead provides the analytical framework for deciding this case. That is, we will apply Michigan law unless a "rational reason" to do otherwise exists. In determining whether a rational reason to displace Michigan law exists, we undertake a two-step analysis. First, we must determine if any foreign state has an interest in having its law applied. If no state has such an interest, the presumption that Michigan law will apply cannot be overcome. If a foreign state does have an interest in having its law applied, we must then determine if Michigan's interests mandate that Michigan law be applied, despite the foreign interests. Id. at 24, 29-30, 400 N.W.2d 292. Ohio and Ontario are the only two foreign jurisdictions that potentially have an interest in having their law applied in this case. Ohio, where the plaintiffs reside, has a 472 two-year statute of limitations for these types of actions.[21] However, a court could not apply Ohio law to this case without violating the defendants' due process rights. As Justice Brennan stated in Allstate Ins. v. Hague, 449 U.S. 302, 313, 101 S.Ct. 633, 640, 66 L.Ed.2d 521 (1981), in order for a court to choose a state's law, "[the] State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair."[22] In this case, the only contact that Ohio has with this litigation is that plaintiffs are Ohio residents. The United States Supreme Court has stated that the plaintiff's residence, with nothing more, is insufficient to support the choice of a state's law. Home Ins. Co. v. Dick, 281 U.S. 397, 408, 50 S.Ct. 338, 341-342, 74 L.Ed. 926 (1930); see also John Hancock Mut. Life Ins. Co. v. Yates, 299 U.S. 178, 57 S.Ct. 129, 81 L.Ed. 106 (1936). Because Ohio does not have an interest in seeing the court apply its law, Ontario is the only remaining candidate. Ontario, like Ohio, has a two-year statute of limitations.[23] Defendants claim that because Ontario law would benefit the Ontario defendants by barring the claim, Ontario has an interest in having its statute of limitations applied. Certainly, one purpose of a statute of limitations is to protect defendants from stale claims. We do not agree, however, that Ontario has an interest in protecting the defendants from stale claims in this situation. In fact, according to Canadian and Ontario law, Ontario has an interest in having Michigan's statute of limitations applied in this case. In the companion cases of Tolofson v. Jensen and Lucas v. Gagnon, 120 DLR4th 289 (1994), the Supreme Court of Canada adopted the lex loci delicti rule and held that Canadian courts must apply the substantive law of the jurisdiction where the tort occurred.[24] The court also stated that statutes of limitation are substantive, not procedural, for choice of law purposes. Tolofson, supra Thus, under Tolofson, Canadian courts must apply the statute of limitations of the jurisdiction in which the tort occurred. Tolofson involves residents of British Columbia who were injured in an automobile accident in Saskatchewan, and thus does not present an international choice of law problem. Justice La Forest, speaking for the court, noted that an exception to the lex loci delicti rule may exist in international tort litigation if application of the law of a foreign country "could give rise to [an] injustice." Id. at 308. Justice La Forest continued, however, to state that he could only "imagine few cases where this would be necessary." Id. We seriously doubt that an Ontario court would find that the application of Michigan's three-year statute of limitations in this case 473 would "give rise to injustice." Certainly, no Ontario court has expressed qualms about applying American law. In Ostronski v. Global Upholstery Co, 1995 Ont C J LEXIS 4668, for example, the Ontario Court of Justice applied Pennsylvania's statute of limitations to a tort suit commenced in Ontario.[25] Ontario's courts have even applied American law when that law is detrimental to Canadian litigants. See In re Hanlan, 1996 Ont C A Lexis 754, rev'g Hanlan v. Sernesky, 1996 Ont C J LEXIS 2538. Thus, had plaintiffs filed this suit in Ontario, Ontario's courts would have applied Michigan's three-year statute of limitations.[26] Because even Ontario courts would not allow the defendants to escape this claim through application of Ontario law, we do not see how Ontario can have an interest in having Michigan courts apply Ontario law. Therefore, no foreign state has an interest in having its law applied to this case. The lex fori presumption is not overcome, and we need not evaluate Michigan's interests. Olmstead at 30, 400 N.W.2d 292. Michigan's three-year statute of limitations will apply to this case. V For these reasons, we reverse the judgment of the Court of Appeals and remand the case to the trial court for further proceedings. MICHAEL F. CAVANAGH, BOYLE, and WEAVER, JJ., concurred MALLETT, C.J. MARILYN J. KELLY, J., not participating. BRICKLEY, Justice (concurring in part and dissenting in part). I concur in the result reached by the majority. However, I write separately to express my view that the time has come for this state to abandon the interest-analysis-based approach detailed by the majority. Rather, I would adopt a lex fori approach to choice of law questions. I am troubled by the choice of law analysis defined by the majority. It describes this state's choice of law rules as: [W]e will apply Michigan law unless a "rational reason" to do otherwise exists. In determining whether a rational reason to displace Michigan law exists, we undertake a two-step analysis. First, we must determine if any foreign state has such an interest in having its law applied. If no state has such an interest, the presumption that Michigan law will apply cannot be overcome. If a foreign state does have an interest in having its law applied, we must then determine if Michigan's interests mandate that Michigan law be applied, despite the foreign interests. [Maj. op. at 471, citing Olmstead v. Anderson, 428 Mich. 1, 24, 29-30, 400 N.W.2d 292 (1987).] This two-part test requires lower courts to engage in the speculative endeavor of ascertaining another jurisdiction's interests. The majority does this by examining two factors:[1] 1) the constitutionality of applying a foreign jurisdiction's law, Maj. op. at 471, 474 and 2) the foreign jurisdiction's choice of law rules, maj. op. at 472. However, each of these factors are likely to cause confusion and inconsistent outcomes. Under the first factor, the majority, despite recognizing that choice of law and jurisdiction are doctrinally distinct, fails to clarify the distinction between the minimum-contacts test for personal jurisdiction with the constitutional limits on choice of law. Maj. op. at 472, n. 22. As cited by the majority, the United States Supreme Court required that a forum state have sufficient contacts to a case so that the application of its law is "neither arbitrary nor fundamentally unfair." Allstate Ins. v. Hague, 449 U.S. 302, 313, 101 S.Ct. 633, 640, 66 L.Ed.2d 521 (1981). Though Allstate did discuss choise of law in terms of contacts and fundamental fairness, it did not state that this test was identical to the analysis for determining personal jurisdiction. Further, it has been recognized that choice of law and jurisdiction are fundamentally distinct concepts.[2] Indeed, the analysis for determining jurisdiction is concerned with the court's contacts with a party, while the test for choice of law examines contacts with a party and the occurrence or transaction giving rise to the litigation. Id. at 308, 313, 101 S.Ct. at 637-638, 640. The majority's constitutional analysis oversimplifies this area of the law. The majority's second factor demonstrates how its concern with the interests of other jurisdictions will result in confusion. To ascertain the interest of Ontario, the majority examines the choice of law rules of Ontario, and determines that an Ontario court would apply Michigan law if this case were before it. Maj. op. at 472-73. Therefore, the majority concludes that Ontario has no interest in this litigation. Id. Thus, the majority requires the courts of this state to decipher and apply the choice of law rules of potentially every jurisdiction in the country, and possibly the world, before it can determine which law to apply. This is simply too great a burden. The potential for confusion and error is clear. The bench and bar of this state are experts in Michigan law. To require expertise in the choice of law rules of any number of foreign jurisdictions is certain to lead to widespread confusion. These cases, and the appeals that they will most surely generate, will tax the resources of this state's judiciary on all levels. Nonetheless, the majority's analysis is consistent with this state's current choice of law rules. This leads me to conclude that the problems in the majority's opinion stem from this underlying methodology. The most fundamental flaw in this approach to choice of law is that it requires the courts of this state to choose between the laws of Michigan and those of foreign jurisdictions. As a matter of policy, the courts of this state should apply Michigan law. The application of foreign law requires a Michigan court to interpret and apply that law as if the court was sitting in that foreign jurisdiction. State courts should not presume to speak for other jurisdictions in this manner. Further, the majority's analysis requires Michigan courts to apply the law of another jurisdiction in certain cases. However, before a court can do this, it must first expressly refuse to apply the laws of this state.[3] This refusal ignores and defeats the express will of the Legislature. Clearly, the courts of this state should avoid this outcome.[4] Moreover, there is an increased likelihood of error when Michigan courts attempt to rule on foreign laws.[5] The courts of this state must examine foreign laws in both phases of the majority's analysis. In the 475 first phase, Michigan courts are apparently required to interpret and apply foreing choice of law rules and to examine the interests of a foreign jurisdiction by determining the purpose or intent of its law. In this case, the majority determines that Ontario would apply michigan law.[6] In the second phase of the majority's analysis, a michigan court would have to apply foreing law if a jurisdiction is found to have sufficient interests to displace Michigan courts should avoid deciding cases through the application of foreign laws. A second flaw with this state's choice of law methodology is that it is unpredictable. Olmstead sought to create a system that would allow parties to accurately forecast the law that governs any given litigation. However, this case shows that this has not been the result. Rather, these parties have been delayed for over five years as the courts of this state have struggled to determine the governing law.[7] Further, the majority does not make this system any more predictable. Instead, it fails to define a systematic approach for determining the interests of other jurisdictions. It examines two factors in determining that neither Ontario nor Ohio can be interested in this case. Yet, it is far from clear that these are the only factors to be considered.[8] Indeed, the crucial factor in Olmstead was the citizenship of the parties.[9] By undertaking its approach, the majority removes any certainty regarding what factors will be applied to determine if a state has an interest. Moreover, the second part of the majority's test requires a court to weigh any foreign interests against those of Michigan. However, by finding that no other state has an interest, the majority avoids explaining how competing interests are to be weighed. Future litigants have no way to predict the methodology, let alone the outcome, when a court is required to weigh interests. Thus, under the majority's interpretation of the current choice of law system, parties have little certainty concerning the law that will be applied to their dispute. The third flaw in this choice of law approach is that it allows hidden, pro-forum manipulation. The majority recognizes that courts manipulate apparently neutral choice of law rules in order to justify the application of forum law. Maj. op. at 469. This defeats the parties' expectation that choice of law rules will be neutrally applied. I agree with the majority's comment that this preference is not surprising. Id. However, the majority fails to take steps to eliminate this problem. Indeed, the analysis that the majority uses to determine that Ohio and Ontario have no interest in this litigation is an example of that approach. These serious flaws in what is now the choice of law rules of this state lead me to believe that Michigan should select a new choice of law approach. I feel that lex fori should be adopted. This approach will avoid the three evils of the majority's methodology. First, under lex fori, Michigan courts will only apply Michigan law in most cases. This eliminates the problems that result when a Michigan court applies the laws of another jurisdiction. Second, a lex fori approach will bring clarity and predictability to this area of the law. All parties entering a Michigan court would know that they are to be governed by Michigan law. Finally, courts would not be tempted to manipulate the choice of law rules. The lex fori approach would eliminate the need for a court to employ one of the two primary techniques that courts have used to avoid the 476 application of a foreign jurisdiction's law. The court would not have to invoke a public policy exception to a rule requiring the application of another jurisdiction's law and would not have to resort to recharacterizing an issue as procedural, rather than substantive, to allow the application of the forum's law.[10] The lex fori rule would generally eliminate the need for a court to distinguish between substantive and procedural law. Rather, the laws of Michigan, substantive and procedural, would clearly govern without any possibility for manipulation. This would ensure that courts fulfill the legitimate expectation of the litigants that laws be applied evenly and fairly. I am aware that the lex fori approach has been criticized for encouraging forum shopping. This supposed evil is greatly exaggerated and should not deter this state's adoption of the lex fori approach. Forum shopping is thought to be an evil because it allows a plaintiff to expose a defendant to the laws of a forum that has little involvement in the litigation, assuming that the forum has jurisdiction over the defendant. Olmstead, 428 Mich. at 26, 400 N.W.2d 292. Under the approach I propose, an entity may be subjected to Michigan law concerning a cause of action that may have arisen elsewhere, if all constitutional requirements are satisfied. However, this should not prevent the adoption of the lex fori approach in this state. Initially, it is important to recognize that a forum shopping party who chooses Michigan is asking the courts of this state to effectuate the laws and policies of Michigan. There is no reason why Michigan courts should summarily refuse this request. Rather, it is the duty of Michigan courts to effectuate these laws and policies. Assume that a plaintiff chooses to file suit in Michigan because Michigan law recognizes his claim. The application of Michigan law to this plaintiff's claim will fulfill the policy expressed by the Michigan Legislature, which recognizes the claim. Thus, forum shopping is not necessarily problematic to the extent that it leads to the fulfillment of the laws and policies of this state. Forum shopping is also commonly assumed to be unfair to defendants. This view is based on the premise that the plaintiff has selected an unfair forum.[11] However, the law that the defendant would have the court apply is likely to be just as unfair.[12] Indeed, the defendant will likely urge the court to apply the law of the jurisdiction that is most certain to lead to a dismissal.[13] Thus, while the plaintiff may "shop" for a forum whose law is beneficial to its case, the defendant is just as likely to "shop" for law favorable to it. Thus, there is really no innocent party in these situations. The fairest way to resolve this is to rely on the traditional notion that the plaintiff is the master of his lawsuit, and, as such, is entitled to choose the forum.[14] Also, in the vast majority of cases, an entity that has sufficiently connected itself to Michigan so that a Michigan court has jurisdiction over it will not be unfairly burdened by the application of Michigan's laws. Finally, it should be pointed out that choice of law rules that focus on interests do not automatically discourage forum shopping. Indeed, choice of law methodologies that focus 477 on abstract interests are also vulnerable to manipulation.[15] Thus, no choice of law system is entirely free from forum shopping. However, I feel that any negative effects that would result from forum shopping as a result of the adoption of a lex fori approach would be outweighed by the benefits of maintaining a clear, predictable choice of law system that would require Michigan courts to give effect to Michigan law. The only limits placed on a lex fori system should be those required by the United States Constitution. In Allstate, a plurality of the United States Supreme Court found that a state could apply its law to a case if it had "significant contact or significant aggregation of contacts, creating state interests, with the parties and the occurrence or transaction." Allstate, 449 U.S. at 308, 101 S.Ct. at 637-638. While this seems to be a fairly stringent test, the Court found that only a few tangential contacts were needed to satisfy it.[16] The United States Supreme Court affirmed the Allstate significant-contacts test in Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 814-823, 105 S.Ct. 2965, 2975-2980, 86 L.Ed.2d 628 (1985). It found that a Kansas court could not apply Kansas contract and equity law to every claim made by over 28,000 class action plaintiffs when less than three percent of the plaintiffs and less than one percent of the disputed leases had any connection to Kansas. Thus, there is clearly some threshold level of contacts below which a forum state may not constitutionally apply its law.[17] However, it appears that this threshould is very low.[18] Thus, the United States Constitution does not substantially limit Michigan's ability to adopt a lex fori approach. Thus, I would adopt the lex fori approach in all tort cases involving choice of law issues. As discussed above, the United States Constitution prohibits the application of lex fori in some cases. Indeed, Shutts shows that a court may have jurisdiction over a case, but not be able to apply its substantive law. In those cases where a Michigan court has jurisdiction, but Michigan has insufficient contacts to the litigation or the parties so that the application of Michigan law would be arbitrary or unfair, a court should select the law of the most interested jurisdiction, guided by the principles set forth in Olmstead. In this case, lex fori should be applied because no constitutional limitations on lex fori are applicable. The United States Supreme Court has found that forum states have complete authority to apply their own procedural rules, including statutes of limitation. Sun Oil Co. v. Wortman, 486 U.S. 717, 725-730, 108 S.Ct. 2117, 2123-2126, 100 L.Ed.2d 743 (1988). Michigan classifies statutes of limitation as procedural. Stephens v. Dixon, 449 Mich. 531, 534, 536 N.W.2d 755, 756 (1995); People v. Russo, 439 Mich. 584, 595, 487 N.W.2d 698, 702 (1992). Further, Michigan has significant contacts with this the case to constitutionally apply its law because the accident occurred in Michigan and a Michigan court is the forum. Thus, I concur with the majority that Michigan's statute of limitations should apply in this case. However, I cannot agree with the choice of law 478 methodology employed by the majority. I would adopt a lex fori approach. RILEY, J., concurred BRICKLEY, J. NOTES [1] Ohio's statute of limitations is Ohio Rev.Code Ann. 2305.10. Ontario's is Ch. H.8, Ont.Rev.Stat. 206. [2] M.C.L. § 600.5805(8); M.S.A. § 27A.5805(8). Because of the action accrued within the State of Michigan, Michigan's borrowing statute, M.C.L. § 600.5861; M.S.A. § 27A.5861, does not apply. M.C.L. § 600.5861; M.S.A. § 27A.5861 states: An action based upon a cause of action accruing without this state shall not be commenced after the expiration of the statute of limitations of either this state or the place without this state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of this state the statute of limitations of this state shall apply. This amendatory act shall be effective as to all actions hereinafter commenced and all actions heretofor [sic] commenced now pending in the trial or appellate courts. [3] Issued November 3, 1994 (Docket No. 152177). [4] See, e.g., Kaiser v. North, 292 Mich. 49, 289 N.W. 325 (1939) (applying Ontario's guest statute to a suit by Michigan plaintiffs who were involved in an automobile accident in Ontario). [5] Scoles & Hay, Conflict of Laws, § 17.2 (2d ed). [6] Id. at § 17.7. [7] Babcock, supra at 482, 240 N.Y.S.2d 743, 191 N.E.2d 279. In Babcock, the plaintiff and the defendant were taking a weekend trip together from New York to Ontario. Both parties were residents of New York, and the automobile was garaged and licensed in New York. While in Ontario, the defendant lost control of the car and crashed into a wall. The plaintiff sued in New York. Under Ontario's guest statute, the suit would have been barred. The New York Court of Appeals, however, stated that Ontario had no interest in seeing its law applied to this case, because all the parties were from New York. [8] These states are Alabama, Georgia, Kansas, Maryland, New Mexico, North Carolina, South Carolina, Virginia, West Virginia, and Wyoming. Solimine, The impact of Babcock v. Jackson: An empirical note, 56 AlbLR 773 (1993). [9] Currie, Selected Essays on the Conflict of Laws, pp 177-187. [10] Leflar, Choice-influencing considerations in conflicts law, 41 NYULR 267, 282 (1966). Three states, Minnesota, New Hampshire, and Wisconsin have adopted this approach. See Milkovich v. Saari, 295 Minn. 155, 203 N.W.2d 408 (1973); Clark v. Clark, 107 N.H. 351, 222 A.2d 205 (1966); Zelinger v. State Sand & Gravel Co., 38 Wis.2d 98, 156 N.W.2d 466 (1968). [11] Restatement Conflicts of Law, 2d, § 145, p 414. [12] Foster v. Leggett, 484 S.W.2d 827 (Ky.App.1972). [13] Olmstead v. Anderson, supra at 9, n. 6, 400 N.W.2d 292. [14] Borchers, The choice-of-law revolution: An empirical study, 49 Wash & Lee LR 357 (1992). [15] According to Professor Borchers' research, the Second Restatement's approach results in the application of forum law fifty-five percent of the time, with a margin of error of five percent. Interest analysis results in forum law sixty-three percent of the time, with a margin of error of ten percent. Leflar's approach yields forum law in sixty-five percent of cases, with a margin of error of eleven percent. The lex fori rule yields lex fori in seventy-seven percent of cases, with a twenty-three percent margin of error. When one considers the margins of error, one can conclude that there is no statistically significant difference between the modern approaches in terms of the application of forum law. Id., n. 15 supra at 374-375. [16] McDougal, The real legacy of Babcock v. Jackson: Lex fori instead of lex loci delicti and now it's time for a real choice-of-law revolution, 56 AlbLR 795, 797 (1993). [17] Sedler, Choice of law in Michigan: Judicial method and the policy-centered conflict of laws, 29 Wayne LR 1193, 1198-1199 (1983). [18] This opinion was also signed by Justices Levin and Moody. [19] See, e.g., Severine v. Ford Aerospace, 118 Mich.App. 769, 325 N.W.2d 572 (1982); Hamann v. American Motors Corp., 131 Mich.App. 605, 345 N.W.2d 699 (1983). [20] See, e.g., Bennett v. Enstrom Helicopter Corp., On Reconsideration, 686 F.2d 406 (C.A.6, 1982); Vogh v. American Int'l Rent-A-Car, Inc., 134 Mich.App. 362, 368, 350 N.W.2d 882, 884 (1984); Hampshire v. Ford Motor Co., 155 Mich.App. 143, 399 N.W.2d 36 (1986). [21] Ohio Rev.Code Ann. 2305.10. [22] The "significant contacts" required for choice of law purposes is similar to the "minimum contacts" required for jurisdictional purposes. That is, Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), holds that a state may not exercise jurisdiction over a defendant unless the defendant and state have "minimum contacts" so that "traditional notions of fair play and substantial justice" are not offended. The United States Supreme Court has never determined the relationship between the "significant" contacts required for choice of law and "minimum" contacts required for jurisdiction. Scoles & Hays, n 5 supra at §§ 3.28-3.29; Martin, Personal jurisdiction and choice of law, 78 Mich.LR 872 (1980). However, at least one commentator has argued that the standards should be the same. Id. Intuitively, at least as many contacts should be required for choice of law purposes than for jurisdictional purposes. It would make little sense to say that state X does not have enough contacts to exercise jurisdiction, but yet allow state Y to apply state X's law. [23] Ch. H.8, Ont.Rev.Stat. 206. [24] The Supreme Court of Canada has superintending control over the interpretation of all federal and provincial laws. Tolofson, supra. Thus, choice of law jurisprudence is uniform throughout the provinces. This stands in sharp contrast to the American experience, where the United States Supreme Court has shown a deep reluctance to federalize choice of law. See Sun Oil Co. v. Wortman, 486 U.S. 717, 108 S.Ct. 2117, 100 L.Ed.2d 743 (1988). Interestingly, Canadian choice of law jurisprudence is moving in exactly the opposite direction from American choice of law jurisprudence. While American courts are moving from a lex loci delicti standard to lex fori, Canadian courts have moved from lex fori to lex loci delicti. See Tolofson, supra. [25] See also Abb Power Generation v. CSX Transportation, 1996 Ont C J LEXIS 1029 (stating that Ohio tort law will apply to a suit commenced in Ontario). [26] In looking at Ontario's statute of limitations, we in no way intend to breathe life into the doctrine of renvoi. Under renvoi, once a court determines that it will apply the law of another jurisdiction, it applies the entire law of that jurisdiction, including its choice of law rules. Thus, the choice of law rules of the chosen state could point the court to a third state or back to the forum state. Renvoi creates the potential for circular analysis and has been criticized by American courts. See, e.g., Haumschild v. Continental Casualty Co., 7 Wis.2d 130, 142, 95 N.W.2d 814 (1959). In this case, we do not engage in renvoi because we decline to apply any of Ontario's law. We look at Ontario's choice of law rules merely to determine Ontario's interests. [1] The majority fails to specify whether there are other appropriate methods of analyzing a state's interest. Indeed, Olmstead identified the interests of the parties with their citizenship and did not explore any of the methods used by the majority. Id. at 28, 400 N.W.2d 292 (finding that Wisconsin had no interest because none of the parties were residents of that state). Thus, the proper method for analyzing interests remains unclear. [2] See Brown, The ideologies of forum shoppingWhy doesn't a conservative court protect defendants, 71 NCLR 649, 700-701 (1993). [3] See Weinberg, Against comity, 80 GeoLJ 53, 70 (1991). [4] It should be noted that choosing another jurisdiction's law is fundamentally different from adopting another state's approach to a given issue. In the choice of law context, a Michigan court acts as if it is a court in a foreign jurisdiction and purports to speak on that jurisdiction's laws. However, when a Michigan court finds another state's approach on an issue persuasive and adopts it, the court merely refines Michigan law. Thus, its holding only addresses the laws of this state. [5] This is especially true when the law is from a foreign country, such as the Ontario choice of law rules examined by the majority. [6] See Cox, Razing conflict facades to build better jurisdiction theory: The foundationThere is no law but forum law, 28 ValULR 1, 42 (1993) (arguing that courts have no authority to interpret the intentions of foreign legislatures). [7] The original complaint was filed on September 5, 1991. [8] The majority does not even apply these factors to both jurisdictions. Rather, it applies the constitutional factor to eliminate the possible application of Ohio law, and the choice of law rule inquiry to determine that Ontario has no interest in this litigation. It also fails to explain why it employs this approach. [9] Id. at 28, 400 N.W.2d 292. ("Since neither party in this case is a citizen of Wisconsin [where the accident occurred], that state has no interest in seeing its limitation of damage provision applied"). [10] In Olmstead, supra at 9-10, 400 N.W.2d 292, this Court stated: As noted in [Sexton v. Ryder Truck Rental, Inc., 413 Mich. 406, 426-431, 320 N.W.2d 843 (1982) ], courts employed escape devices to avoid potentially harsh results [from the common-law rule of lex loci delicti]. The two main manipulative techniques were "procedural characterization" and the "public policy" exception. Id. at 426, 320 N.W.2d 843. Procedural characterization involves characterization of an issue as procedural rather than substantive, and then applying forum law to the procedural issues. Courts, thus, were able to evade applying the law of the state in which the wrong occurred. The public policy exception was invoked when the application of a foreign law would be violative of Michigan public policy. [11] See Weinberg, n 4 supra at 64. [12] See id. [13] See id. at 71. [14] See Brown, n 2 supra at 668-672 (discussing the ways in which the American legal system is benefited when the plaintiff is allowed to choose the forum, and the forum applies the lex fori). [15] See Brown, n supra at 674, quoting Gottesman, Draining the dismal swamp: The case for federal choice of law statutes, 80 GeoLJ 1, 9 (1991) (explaining that parties will choose a forum whose choice of law rules lead to the adoption of favorable foreign law). [16] The suit involved an automobile accident that had occurred in Wisconsin involving only Wisconsin residents. Allstate, 449 U.S. at 305, 101 S.Ct. at 636. However, the decedent had worked in Minnesota. Id. Further, the decedent's widow moved to Minnesota after the accident. Id. The widow then sued in Minnesota under an insurance policy issued by a company that did business in Minnesota. Id. at 305, 317, 101 S.Ct. at 636, 642. The Court found these contacts sufficient to uphold the application of Minnesota law by a Minnesota court. Id. at 313-319, 101 S.Ct. at 640-644. See also Brown, n 2 supra at 696 (describing the Allstate test as easily met). [17] See Richman & Reynolds, Understanding Conflict of Laws (2d ed), § 94[b][2], p 279. [18] See id. at § 94[d], pp 281-282 (explaining why there is only a "remote" chance that the United States Supreme Court would upset a state's choice of law). See also Weinberg, n 4 supra at 68-69 (arguing that the Supreme Court has weakened Allstate and is very tolerant of the states' choice of law results).	{ "pile_set_name": "FreeLaw" }
560 N.W.2d 225 (1997) 1997 ND 38 Darren ENDRESEN, Plaintiff and Appellee, v. SCHEELS HARDWARE AND SPORTS SHOP, INC., Defendant. Beretta USA Corp., Defendant and Appellant, and Accuracy, Inc., d/b/a Ultramax Ammunition, Defendant. ACCURACY, INC., d/b/a Ultramax Ammunition, Third-Party Plaintiff, v. WINCHESTER-WESTERN DIVISION, OLIN CORPORATION, Third-Party Defendant. Civil No. 960159. Supreme Court of North Dakota. March 5, 1997. 227 Jonathan C. Eaton (argued), of Eaton, Van de Streek & Ward, Minot, for plaintiff and appellee. Robert J. Hovland (argued), of McGee, Hankla, Backes & Wheeler, Ltd., Minot, and Lawrence G. Keane (appearance), of Pino & Associates, White Plains, NY, for defendant and appellant. NEUMANN, Justice. [¶ 1] Beretta USA Corporation (Beretta) appeals from a judgment awarding Darren Endresen $259,079.21 in damages, costs and disbursements in this personal injury products liability action. We affirm the judgment as to liability, but reverse and remand for a clarification of damages. [¶ 2] On November 25, 1991, Endresen purchased a used Beretta Model 92F 9 millimeter (mm) pistol from Scheels Hardware and Sports Shop, Inc. (Scheels) in Minot. At the time, Endresen was 25 years old, single, and living on his parents' farm near Ryder. On January 12, 1992, Endresen purchased at Scheels hollow point ammunition remanufactured or reloaded by Accuracy, Inc. (Accuracy). The boxes containing the ammunition did not identify it as reloaded ammunition and Endresen was unaware of that fact. Olin Corporation (Olin) manufactured the original shell casings for the reloaded ammunition. [¶ 3] On January 14, 1992, Endresen was driving home after dark from his job at Hill Top Repair, an equipment repair shop, when he saw a rabbit pass in front of his pickup headlights. Endresen stopped, stepped outside of his pickup, and fired the pistol at the rabbit. He missed the rabbit and began shooting at a nearby fencepost for target practice. According to Endresen: "On the tenth round [the pistol] recoiled a lot harder than normal. There was a bright flash and it, well everything in my eye went red, black or I couldn't see anything." A highly overpressured cartridge had burst near its head while positioned in the pistol chamber. [¶ 4] Endresen drove home and family members took him to a Minot hospital, where he was immediately transferred by airplane to the University of Minnesota Hospital for treatment. While there, Endresen underwent three surgeries which resulted in the removal of a 2 by 2 by 4.5 mm piece of metal from his right eye. Doctors were unable to remove another piece of metal, which remains in that eye. Endresen is legally blind in his right eye and is expected to remain so. His right eye is Endresen's "dominant eye" and the injury has impaired his depth perception and peripheral vision making it difficult for him to do his farm and machinery work. [¶ 5] Endresen sued Scheels, Accuracy, Olin, and Beretta, alleging he sustained the eye injury as a result of defective ammunition and a defectively designed handgun. 228 Scheels was later dismissed from the action, and Endresen entered into settlement agreements with Accuracy and Olin before trial. The parties stipulated to a trial to the court without a jury on Endresen's claim Beretta was liable because the Model 92F pistol is improperly designed to adequately handle defective ammunition. The parties stipulated and the trial court found Endresen was "entirely without fault in this matter and in no way contributed to his injury." The trial court ruled in favor of Endresen, finding: "XI. "That the chamber of the Beretta pistol is not fully supported and the cartridge burst took place at the approximately 6 o'clock position where the chamber gives very little support as it is cut away to provide a feed ramp for the rounds entering the chamber from the magazine located in the grip of the gun; "XII. "That the round that ruptured was overloaded with powder, but overloads are a common occurrence and well known in the industry as is the use of reloaded or remanufactured ammunition, and that cartridge casings become thinned and weakened when reloaded or remanufactured. "XIII. "That it was demonstrated to the Court's satisfaction that the overload, and/or the condition of the cartridge casing, was not the sole cause of Plaintiff's injury; "XIV. "That the design of the Beretta pistol was such that it permitted an overloaded cartridge to more easily rupture since there is insufficient support at the chamber's entrance; "XV. "That the evidence supports the finding that in this case the gas from the burst cartridge filled the trigger well and then blew out the hole beneath the trigger bar and up against the trigger bar. The metal pieces which struck Plaintiff's face and eye may have been deflected backward off the inside surface of the trigger bar, but very likely could have also come from the top of the open chamber. "XVI. "That it is found that other 9mm pistols do have better supported chambers and provide a route for escaping gases which pose less danger to the shooter. Alternative designs rendering the gun less dangerous were available; * * * * * * "XVIII. "That the subject pistol was unreasonabl[y] defective and dangerous because of an inadequately supported chamber and that the injury would not have occurred in an adequately supported chamber. Likewise the design of the trigger bar and venting system was such as to render the gun defective and unreasonably dangerous when used with overloaded ammunition; * * * * * * "XXI. "That the Plaintiff's injury was proximately caused by the combination of an overloaded cartridge and a defectively designed gun in equal proportion."[1] [¶ 6] The trial court awarded Endresen $38,781.83 for medical and related expenses, $5,000 for loss of productive time, $20,000 for pain and suffering, and $130,000 for permanent disability. The trial court ordered judgment "against Defendant Beretta in the sum of $193,781.83 ... as Defendant's share of the damages suffered by Plaintiff as a result of causes for which Beretta is responsible 229..., plus interest, costs and disbursements." Beretta appealed. I [¶ 7] Beretta challenges many of the trial court's findings of fact in this case. [¶ 8] In order to recover for injuries sustained as a result of a defective condition in a product, unreasonably dangerous to a consumer, the plaintiff must show by a preponderance of the evidence the product was defective in design or manufacture; the defect rendered the product unreasonably dangerous to the consumer; the defect existed when the product left the manufacturer; and the defect was a proximate cause of the plaintiff's injuries. Kaufman v. Meditec, Inc., 353 N.W.2d 297, 300 (N.D.1984). See also 4 L. Frumer and M. Friedman, Personal Injury, Firearms § 1.05 (1996). Whether "a manufacturer fits within the parameters of strict liability in tort is essentially a factual question for the trier of fact" which will not be reversed on appeal unless it is clearly erroneous under N.D.R.Civ.P. 52(a). Stillwell v. Cincinnati Inc., 336 N.W.2d 618, 622 (N.D.1983). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if this court is left with a definite and firm conviction that a mistake has been made. American Ins. v. Midwest Motor Express, 554 N.W.2d 182, 185 (N.D.1996). A [¶ 9] As is usually the case in products liability actions involving technical, scientific or complex matters, expert opinion evidence was offered on the question whether the Model 92F is unreasonably defective and dangerous. See generally Annot., Products liability: admissibility of expert or opinion evidence that product is or is not defective, dangerous, or unreasonably dangerous, 4 A.L.R.4th 651 (1981). The use of expert witnesses in products liability actions involving firearms is not uncommon. See, e.g., Continental Casualty Company v. McClure, 225 So.2d 590, 591 (Fla.Ct.App.1969); Lopez v. Heesen, 69 N.M. 206, 365 P.2d 448, 454 (1961); Annot., Products liability: firearms, ammunition, and chemical weapons, 15 A.L.R.4th 909 (1982), and cases collected therein; Annot., Products liability: modern cases determining whether product is defectively designed, 96 A.L.R.3d 22 § 23 (1979), and cases collected therein. A major argument underlying Beretta's assertion that the trial court's findings are clearly erroneous is the trial court erred in admitting the testimony of Endresen's expert witness, Stanton O. Berg, a firearms consultant. [¶ 10] The qualifications of an expert witness are primarily for the determination of the trial court, and its determination will not be reversed on appeal unless that discretion was abused. Oberlander v. Oberlander, 460 N.W.2d 400, 402 (N.D.1990). N.D.R.Ev. 702 allows a witness qualified as an expert to testify in the form of an opinion "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue...." In Anderson v. A.P.I. Company of Minnesota, 1997 ND 6, ¶ 9, 559 N.W.2d 204, we recently explained: "Rule 702 envisions generous allowance of the use of expert testimony if the witnesses are shown to have some degree of expertise in the field in which they are to testify. Matter of Estate of Aune, 478 N.W.2d 561, 564 (N.D.1991). The rule does not require an expert to have a formal title or be licensed in any particular field, but recognizes it is the witness's actual qualifications that count by providing that an expert can be qualified by knowledge, skill, experience, training, or education. Oberlander; 3 Weinstein's Evidence ¶ 702[04] (1996). Thus, an expert witness's `knowledge may be derived from reading alone in some fields, from practice alone in some fields, or as is more commonly the case, from both.' I McCormick on Evidence § 13, at pp. 54-55 (4th ed.1992) (footnote omitted). While the trial court decides the qualifications of the witness to express an opinion on a given topic, the trier of fact decides the expert witness's credibility and the weight to be given to the testimony. Construction Assoc. v. Fargo Water Equip., 446 N.W.2d 237, 239 (N.D.1989)." 230 [¶ 11] Beretta asserts Berg was not qualified to testify as an expert in gun design, and the trial court therefore abused its discretion in allowing him to render opinions concerning design defects in the feeding ramp and gas venting system of the Model 92F. Beretta claims Berg is unqualified because he has never designed a firearm of any type, has never worked in a manufacturing plant, is not a mechanical engineer, has no experience in tooling or diecasting, and has no expertise or experience in the area of feeding or gas venting system design of semi-automatic guns. [¶ 12] Berg has testified as a firearms expert in several reported judicial decisions, see, e.g., Savage Industries, Inc. v. Duke, 598 So.2d 856, 857 (Ala.1992); Cobb v. Insured Lloyds, 387 So.2d 13, 18 (La.Ct.App.1980); State v. Lindsey, 284 N.W.2d 368, 374 (Minn. 1979); Classen v. Remington Arms Co., 379 N.W.2d 133, 134 (Minn.Ct.App.1985), and his resume' indicates he has extensive experience with firearms. The resume' lists Berg's numerous presentations of papers and lectures, and his published papers and articles, on firearm safety design. He has "handled over 850 firearms cases." Berg acknowledged that one trial court in 1987 ruled he was not qualified to render an opinion on firearm design, but noted he has been permitted to give design testimony "20 or more times since that time." [¶ 13] The trial court was aware Berg had never been accepted as an expert on gas venting systems, but was also aware Berg had published an article on a gas venting system for a bolt action rifle. Berg acknowledged the different mechanisms in semiautomatic and bolt action firearms, but said "the same general things are in mind as to what type of supports the cartridge has that would allow it to fail, what venting systems there are in that particular firearm to allow gas when it does escape to vent out again harmlessly and that sort of thing." The trial court allowed Berg to testify, reasoning: "This is a bench trial. It's not a jury trial. It's not a case where I have to be worried about a jury being led astray. Maybe I will be led astray before the case is over. I think because it is a bench trial I have the luxury of being a little more liberal at least on the initial receipt of any evidence. Certainly the witness's experience or lack of experience in gas venting systems will be a consideration when I make my decision." [¶ 14] Appellate courts are reluctant to interfere with the broad discretion afforded trial courts in determining the qualifications and usefulness of expert witnesses. See Anderson, at ¶ 17, 559 N.W.2d 204. A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process. Bruner v. Hager, 547 N.W.2d 551, 554 (N.D.1996). We cannot say the trial court abused its discretion in admitting Berg's testimony and treating his lack of direct experience with specific feeding and gas venting system design of semi-automatic weapons as bearing on the weight of his testimony.[2] B [¶ 15] Beretta asserts the trial court's finding Endresen's injury was proximately caused by a defect in the Model 92F is clearly erroneous because Endresen failed to meet his burden of proving either the pistol's feed ramp design or venting system proximately caused his injury. The basis for Beretta's argument is because the source of the metal fragment removed from Endresen's eye is unknown, and it is uncertain how it got into his eye, Endresen failed to meet his burden of proving proximate cause. [¶ 16] The trial court's finding the Model 92F is defectively designed to handle overloaded, reloaded cartridges with weakened casings is amply supported by Berg's testimony. Berg testified the use of reloaded ammunition is common among firearm users 231 and reloaded ammunition is more likely subject to overloading than brand new ammunition. Berg testified the design flaw was an insufficiently supported chamber at the bottom of the cartridge in the chamber. According to Berg, other brands of pistols can be, and are, sufficiently supported in that area. He explained other causes, in addition to the overloaded cartridge, that contributed to Endresen's injury: "A Well the fact that the bottom side of the chamber was unsupported in the area in which the cartridge actually burst. That portion of the chamber had been cut away in order to make a feed ramp for the bullet ... or the cartridge as it's fed into the chamber. In addition the open slot on the right side of the receiver in which the trigger bar moved forward and back left a natural opening for any high pressure gases to vent out that opening. And I felt the trigger bar out there, it is in a flat back side would act as a deflector for material coming out of the breech mechanism. Under the area on which the cartridge would be seated directly under that is kind of an open box in which the trigger moves as it's pulled and pulls with it the trigger bar and the open [box is] a natural area that any escaping gases are going to be drawn into. * * * * * "Q And in this case is it your opinion that the Beretta gun involved in this lawsuit was dangerously defective because of the lack of support you have described in earlier testimony? "A Well it's defective in the area of support as it relates to the chance of having an occasional high pressure loading. "Q Is it your opinion that had it been adequately supported in this gun the high pressure burst that in fact occurred would not have caused the injury suffered by the plaintiff? "A I think that is true in this case. "Q Is it also your opinion that the venting system properly designed would have protected Mr. Endresen? "A Well the two go together. The support and the venting. In this case the venting was in such a direction that it seems logical to look at the configuration and conclude that anything blowing out the side there would be deflected by the trigger bar and as a result the individual shooting may be hit by fragments. "A The other guns that I talked about don't have a hole in the side that this material could come out. It appears in most of the configurations the material would go down into the magazine well." [¶ 17] We also disagree with Beretta's assertion there was no proximate cause established because Endresen failed to prove the precise source or route of the metal fragment removed from his eye. There is no dispute the metal fragment removed from Endresen's eye was not part of the shell or the gun. Berg thought the piece could have been a "bit[ ] of metal ... left in the gun as part of [the] manufacturing process," but added: "A Well it's obviously a lost piece of some type of white metal that got blown out at that time. I am not saying I know where it came from. It obviously was blown out by this defect in the shell. I don't see where it makes any difference. A piece of metal was broken out." [¶ 18] Beretta's expert witness, J.B. Wood, disagreed with Berg's theory that the most likely route of the metal fragment, whatever its source, was from the opening behind the trigger bar, explaining: "A ... It could have gone any direction. If indeed it, you know, came as it's described it would not necessarily have come as you just described it. It could have come from any direction. "Q Do you have an opinion of your own as to the route followed by the metal fragment that ended up in the plaintiff's right eye? "A No. I don't think it's possible to actually, you know, beyond a shadow of a doubt, as they say, describe how something like that happens. It's all timed 232 in milliseconds and could have taken any direction. It could have ricocheted off some other part of the gun. It may or may not have come as you described it. It may have. I am not saying it didn't." [¶ 19] Faced with this evidence, the trial court was understandably equivocal in its description of the source and route of the metal fragment, finding "[t]he metal pieces which struck [Endresen's] face and eye may have been deflected backward off the inside surface of the trigger bar, but very likely could have also come from the top of the open chamber." [¶ 20] Because the trial court failed to find a precise source and route of the metal fragment, Beretta asserts Endresen failed to prove proximate cause. But we have said proximate cause in a negligence case may be proved by circumstantial evidence if the evidence permits a reasonable inference of a cause of injury for which the defendant is responsible and excludes equally reasonable inferences of other causes for which the defendant is not responsible. See Victory Park Apartments, Inc. v. Axelson, 367 N.W.2d 155, 164 (N.D.1985); Leno v. Ehli, 339 N.W.2d 92, 96 (N.D.1983); Farmers Home Mut. Ins. Co. v. Grand Forks Implement Co., 79 N.D. 177, 55 N.W.2d 315, 318 (1952); Burt v. Lake Region Flying Service, 78 N.D. 928, 54 N.W.2d 339, 347 (1952). Circumstantial evidence will also suffice to prove proximate cause in a products liability case. See 2 J. Lee and B. Lindahl, Modern Tort Law §§ 27.31 and 27.83 (Rev. ed.1990). Cf. Stewart v. Ford Motor Co., 553 F.2d 130, 139 (D.C.Cir.1977) (where driver was not drunk, drugged, or suffering a diabetic reaction, car was not speeding, road conditions were good, there had not been a sudden blowout, car was only 12 days old and traveled 150 feet in a straight line before leaving the ground, "[p]laintiffs were entitled to ask the jury to infer that the accident was caused by some unknown defect which caused the steering system to malfunction"); Cornell Drilling Co. v. Ford Motor Co., 241 Pa.Super. 129, 359 A.2d 822, 828 (1976) (where fire occurred in truck soon after it was purchased and it had been driven only 35 miles, fire originated in cab and engine areas of truck, witnesses testified they did not cause fire and did not observe anything to lead them to believe someone else caused fire, and there was no evidence of any external cause for fire, "a reasonable jury could have inferred from the facts and circumstances that the Ford truck was in a defective condition at the time it left Ford's control"), overruled on other grounds by REM Coal Company, Inc. v. Clark Equipment Co., 386 Pa.Super. 401, 563 A.2d 128, 134 n. 5 (1989). [¶ 21] Here, the evidence before the trial court included Endresen's description of the incident in which, immediately after shooting the gun, he saw a "bright flash" followed by his eye going "black." There is medical testimony that "a piece of metal, very sharp and obviously at high speed, penetrated [Endresen's] right eye" and "came to rest behind the retina." The parties stipulated Endresen was without fault and did not contribute to his injury. Berg testified the Model 92F is defectively designed to adequately handle overloaded, reloaded cartridges, and such a cartridge was present in this case. Regardless of the precise source and route of the metal fragment, the evidence supports a reasonable inference, while excluding other equally reasonable inferences of other causes, that Endresen's injury would not have occurred if the Model 92F were properly designed. [¶ 22] We conclude the trial court's finding that Endresen's injury was proximately caused by the combination of an overloaded cartridge and a defectively designed handgun is not clearly erroneous. C [¶ 23] Beretta asserts the trial court's finding that cartridge casings become weakened by excessive reloading is clearly erroneous. Beretta claims the evidence only supports a finding that the shell was weakened by "cold shut," which is a rare weakening caused by the original manufacturing process. This finding is crucial to whether the Model 92F is unreasonably dangerous, according to Beretta, because the odds of simultaneously having cold shut and an overload in one shell are so "astronomical," the 233 Model 92F cannot be considered unreasonably dangerous for not preventing this injury. [¶ 24] A metallurgist examined the cartridge and concluded there was a cold shut. Berg testified he "certainly wouldn't dispute that" conclusion. Beretta's expert, Wood, on direct examination by its attorney testified about what he noted and put in his report when he examined the shell: "A ... That particular cartridge case as I understand it was a reloaded cartridge and it appeared to be a very tired looking case. It may have been reloaded several times. I don't know. This I am just guessing from looking at the shape and condition of it. The brass appeared to be thinned. Thinner than it should be in the area of the break which may mean that there was some internal erosion perhaps from prior fires. I don't know this now, I am doing a lot of sort of speculation just based on what I saw." Beretta's attorney got Wood to agree he was not a metallurgist and, later, upon questioning by Endresen's attorney, said he was not qualified to give an opinion on whether a cold shut occurred. Upon questioning by the trial court, Wood said his prior description of the casing as "tired" was "sheer speculation or a wild guess because I didn't mean to imply that I had any knowledge of by looking at it of how many times it had been fired." In an amended memorandum opinion, the trial court noted: "Although the court has before it only speculation about the cold shut phenomenon, evidence was also presented that, when ammunition is `remanufactured' or `reloaded', there is a slight stretching and weakening of the shell casing as explained by Mr. Wood's observation that the segments of casing examined by him appeared to have been reloaded several times and was thinner than usual." [¶ 25] A court properly receives testimony if neither a timely objection nor a motion to strike the testimony from the record is made. See In re J.Z., 190 N.W.2d 27, 32 (N.D.1971). Opinion evidence, which would be inadmissible if objected to, may have probative force if received without objection, leaving the question of its weight and credibility to the trier of fact. See McNab v. Jeppesen, 258 Minn. 15, 102 N.W.2d 709, 712 (1960); Uryasz v. Archbishop Bergan Mercy Hosp., 230 Neb. 323, 431 N.W.2d 617, 623-624 (1988). Here, the trial court found Wood's unobjected-to opinion of the weakened cartridge more probative than that of the metallurgist. A choice between two permissible views of the weight of the evidence is not clearly erroneous. Buzick v. Buzick, 542 N.W.2d 756, 758 (N.D.1996). We conclude the trial court did not err in refusing to find that the shell was weakened by cold shut. D [¶ 26] Beretta asserts the trial court's finding the Model 92F is unreasonably dangerous is clearly erroneous under North Dakota law because Endresen should have had knowledge that fragments from a rare rupture could strike his face. Under N.D.C.C. § 28-01.3-01(4), an "unreasonably dangerous" product is defined as: "dangerous to an extent beyond which would be contemplated by the ordinary and prudent buyer, consumer, or user of that product in that community considering the product's characteristics, propensities, risks, dangers, and uses, together with any actual knowledge, training, or experience possessed by that particular buyer, user, or consumer." Endresen acknowledged he had been provided and had read when he purchased the pistol a booklet by the Sporting Arms and Ammunition Manufacturers Institutes, Inc., cautioning "twigs, falling shot, clay target chips and the rare rupture case may cause objects to be blown back toward the face of the shooter." Beretta therefore claims Endresen had "actual knowledge" of the risk this injury could occur so the Model 92F cannot be considered unreasonably dangerous under the statute. [¶ 27] Although the trial court made no specific findings on this issue, because the court did find the Model 92F unreasonably dangerous, we assume the court implicitly found Endresen had no actual knowledge 234 this type of injury could occur. We cannot say the trial court's implicit finding is clearly erroneous. [¶ 28] Manufacturers of hand guns have been held to the most exacting duty of care in the design of their product. See Johnson v. Colt Industries Operating Corp., 797 F.2d 1530, 1535-1536 (10th Cir.1986) (applying Kansas law). The cautionary language relied on by Beretta did not convey a warning that anything would be "blown back" forcefully enough to cause a serious injury. Moreover, the trial court could reasonably find a generic warning from a group of weapon manufacturers of the possibility that a rare rupture could cause objects to be blown back to the shooter's face would not give Endresen actual knowledge that this type of accident could occur with a Beretta Model 92F. This is especially so in view of the record evidence, relied on and repeatedly stressed to the trial court by Beretta, that the Model 92F is considered the "best handgun available" and has a worldwide reputation for "safety and reliability." [¶ 29] We conclude the trial court's finding the Model 92F is unreasonably dangerous under North Dakota law is not clearly erroneous. E [¶ 30] Beretta asserts the trial court's finding the pistol is unreasonably dangerous is clearly erroneous because the court failed to use a risk-utility analysis and properly balance the benefits of the challenged design against the risk of danger inherent in the design. According to Beretta, because handguns are used for self-protection and functional reliability is vital to users who depend on the gun as a means to prevent harm, reliability is the equivalent of safety. Beretta asserts military testing proves the Model 92F is the most reliable semi-automatic 9mm handgun in the world and that reliability is due to its feed ramp design, which provides a flawless means of feeding shells into the firing chamber. According to Beretta, the trial court "failed to balance the damage to one eye in the past 20 years, compared to numerous injuries or deaths which may result when other less reliable feed ramp designs malfunction." [¶ 31] We disagree with Beretta's argument. First, the most common risk-utility analysis in products liability actions involving handguns is the theory that the societal risks of injury inherent in the gun outweigh the societal benefits of the product. See, e.g., Shipman v. Jennings Firearms, Inc., 791 F.2d 1532, 1533 (11th Cir.1986) (applying Florida law); Moore v. R.G. Industries, Inc., 789 F.2d 1326, 1327 (9th Cir.1986) (applying California law); Perkins v. F.I.E. Corp., 762 F.2d 1250, 1272 (5th Cir.1985) (applying Louisiana law). Beretta's argument seems to assume self-protection is the only beneficial use of a handgun. But, as evidenced by Endresen's use of the pistol when the accident occurred, self-protection is not the only purpose for purchasing and using a handgun. "Handguns are collected as a hobby and are used for target shooting and hunting, as well as for self-defense." Note, Handguns and Products Liability, 97 Harv.L.Rev.1912, 1915 (1984) (footnote omitted). Recreation and self-protection are both beneficial uses of a handgun. See Moore. The risk-utility analysis proposed by Beretta pits the safety of one group of beneficial users of handguns against the safety of another. [¶ 32] Moreover, the trial court did perform the risk-utility analysis urged by Beretta but concluded functional reliability did not outweigh the risks inherent to recreational users of reloaded ammunition: "Beretta has designed a very reliable pistol which is capable of functioning under a variety of adverse conditions. The design of a loading ramp part way into the bullet chamber likely has contributed to the pistol's reliable functioning. It appears that in designing the loading ramp into the bullet chamber, Beretta may have compromised the safety of persons using remanufactured and reloaded ammunition in order to increase operational reliability. Although there was some dispute about the extent to which a loading ramp has been designed into some of the products of other manufacturers, it can be reasonably concluded that alternative designs are feasible which better support the shell casing. 235 The availability of an alternative design is of significance to the safety of persons using remanufactured ammunition." See also Sturm, Ruger & Co., Inc. v. Day, 594 P.2d 38, 45-46 (Alaska 1979) (holding risk of danger to recreational user inherent in design of handgun outweighed benefits of the design), cert. denied, 454 U.S. 894, 102 S.Ct. 391, 70 L.Ed.2d 209 (1981), overruled on other grounds Dura Corp. v. Harned, 703 P.2d 396, 405 n. 5 (Alaska 1985). [¶ 33] We agree with the trial court that the benefit of the design of the Model 92F to persons who purchase handguns for self-protection does not outweigh the risk of danger inherent in the design to persons who purchase and use the handgun with reloaded ammunition for recreational purposes. II [¶ 34] Beretta asserts the trial court erred in holding it responsible for 100 percent of Endresen's damages when the court found it only 50 percent at fault. The trial court found the injury to be proximately caused by the combination of an overloaded cartridge and a defectively designed gun in equal proportion. Because there is an irreconcilable inconsistency in the findings over the total amount of Endresen's damages, we reverse and remand for clarification. [¶ 35] The trial court ordered judgment against Beretta for $193,781.83 "as [Beretta's] share of the damages suffered by [Endresen]...." In its findings, however, the trial court specifically found the total amount of medical and related expenses incurred by Endresen was $38,781.83 and the total amount of his loss of productive time was $5,000, both of which are included in the $193,781.83 figure ordered as Beretta's "share of the damages" suffered by Endresen. Under N.D.C.C. § 32-03.2-02, a person who contributes to an injury is only responsible for the percentage of damages equal to that person's percentage of fault. Beretta would be entitled to have Endresen's total damages reduced by that portion of fault attributable to the settling defendants. See generally Hoerr v. Northfield Foundry and Mach. Co., 376 N.W.2d 323, 332 (N.D.1985). We are unable to determine from the findings whether the law has been properly followed in this case. Because of the inconsistency between the findings and order for judgment, we reverse and remand for clarification of the damages. [¶ 36] Accordingly, we affirm the judgment as to liability, but reverse and remand for clarification of the damages. [¶ 37] VANDE WALLE, C.J., MARING and SANDSTROM, JJ., and JOEL D. MEDD, District Judge, concur. [¶ 38] JOEL D. MEDD, District Judge, sitting in place of MESCHKE, J., disqualified. NOTES [1] Contrary to Beretta's assertion on appeal, we deem the findings sufficiently stated so we can understand the factual basis for the trial court's decision. See, e.g., Porth v. Glasoe, 522 N.W.2d 439, 444 (N.D.1994). [2] Likewise, Beretta's complaints about the "unreliability" of Berg's "inaccurate, untested opinions" goes to the weight, rather than the admissibility, of Berg's testimony. The weight and credibility given to an expert's testimony is a question for the trier of fact. See Stillwell, 336 N.W.2d at 621. Beretta has not convinced us any of the trial court's weight and credibility determinations are clearly erroneous.	{ "pile_set_name": "FreeLaw" }
Matter of Paul's Pizza Inc. v Commissioner of Labor of the State of N.Y. (2016 NY Slip Op 05242) Matter of Paul's Pizza Inc. v Commissioner of Labor of the State of N.Y. 2016 NY Slip Op 05242 Decided on June 30, 2016 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on June 30, 2016 Mazzarelli, J.P., Renwick, Moskowitz, Gische, Gesmer, JJ. 1643 100824/14 [*1]In re Paul's Pizza Inc., et al., Petitioners, vThe Commissioner of Labor of the State of New York, et al., Respondents. Stewart Lee Karlin Law Group, P.C., New York (Daniel E. Dugan of counsel), for petitioners. Eric T. Schneiderman, Attorney General, New York (Haeya Yim of counsel), for respondents. Determination of the New York State Industrial Board of Appeals (IBA), dated May 22, 2014, which affirmed an order to comply issued by the New York State Department of Labor on January 12, 2011, finding, inter alia, that petitioners failed to pay proper overtime wages, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Margaret A. Chan, J.], entered March 20, 2015), dismissed, without costs. The IBA's determinations that petitioner Evangelis Gritsipis was an employer within the meaning of the New York Labor Law, and that petitioners failed to pay proper overtime wages are supported by substantial evidence (see 300 Gramatan Ave. Assoc. v State Div. of Human Rights , 45 NY2d 176, 179-182 [1978]). The civil penalties imposed on petitioners are not excessive. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: JUNE 30, 2016 CLERK	{ "pile_set_name": "FreeLaw" }
553 F.2d 94 U. S.v.Branick No. 76-1476, 76-1477 United States Court of Appeals, Second Circuit 2/15/77 1 E.D.N.Y. AFFIRMED	{ "pile_set_name": "FreeLaw" }
342 Ill. App. 127 (1950) 95 N.E.2d 515 Cyrilla Holland, Appellee, v. Harry J. O'Shea and Lesley E. O'Shea, Appellants. Gen. No. 45,071. Illinois Appellate Court. Opinion filed December 4, 1950. Released for publication December 19, 1950. LOUIS I. FISHER, of Chicago, for appellants; JOHN L. EAST, JR., of Chicago, of counsel. EDWARD J. BRADLEY and EDWARD S. COATH, both of Chicago, for appellee; EDWARD J. BRADLEY and EDWARD S. COATH, both of Chicago, of counsel. MR. PRESIDING JUSTICE NIEMEYER delivered the opinion of the court. Defendants appeal from a judgment for $20,000 entered against them in a personal injury action. 128 The second amended complaint, on which the case was tried more than eleven years after plaintiff sustained her injuries, alleges that defendants were the owners and possessed of the property described, had placed same in the hands of L.B. Anderson for the purpose of selling it and had left the keys with George May, who resided on or near the land, so that the dwelling thereon might be examined by persons interested in buying; that plaintiff, "at the request and invitation of defendants' agent, L.B. Anderson, entered into said house for the purpose of examining same," and received the injuries complained of because of a defective floor in the building. In their answer defendants deny that at the time alleged by plaintiff they were desirous of selling and disposing of the property; that they had placed it in the hands of Anderson for the purpose of selling it; that Anderson was their agent for any purpose whatsoever, then or at any other time; that they left the key with May, as alleged, and that May was their agent for any purpose whatsoever. They further allege that if Anderson invited and requested plaintiff to enter the house owned by defendants and then under construction, it was without the knowledge, consent or authority of the defendants. The only evidence tending to establish the alleged agency of Anderson in the sale of the property is the testimony of Anderson, who, as stated in plaintiff's brief, testified "he looked up the number of the O'Shea Employment Agency in the telephone book; that he called the number and asked for Mr. O'Shea; that the party that answered the phone called a man, who said, `I am Mr. O'Shea' and then gave Mr. Anderson the sale price, the location of the farm, and the requirement of a 10 per cent deposit." This testimony was received over objection. On cross-examination Anderson testified that he didn't remember meeting O'Shea and 129 would not know if he had heard his voice before he put in the telephone call for him; that he made several calls later, in April or May. O'Shea denies having had any telephone conversation or correspondence with Anderson or listing the property with him for sale. It further appears from the testimony of O'Shea and his wife that following an automobile accident they were in the Sacred Heart Sanitarium at Milwaukee from the fall of 1937 to February 26, 1938, when they came to Chicago, stopping at the Stevens Hotel, and the next day went to Cincinnati for several weeks and then to Asheville, North Carolina, where they remained for three months before returning to Chicago. [1, 2] In determining the admissibility of telephone conversations a distinction is made between a person to person and person to company call. In Godair v. Ham Nat. Bank, 225 Ill. 572, the court quoted with approval from Wolfe v. Missouri Pac. Ry. Co., 97 Mo. 473, as follows: "When a person places himself in connection with the telephone system through an instrument in his office, he thereby invites communication, in relation to his business, through that channel. Conversations so held are as admissible in evidence as personal interviews by a customer with an unknown clerk in charge of an ordinary shop would be in relation to the business there carried on. The fact that the voice at the telephone was not identified does not render the conversation inadmissible." In Korch for use of Doody v. Indemnity Ins. Co. of North America, 329 Ill. App. 96, the court said: "The rule enunciated in the Godair case has never been overruled or modified, and has generally been followed in this State. The essence of that rule is that anyone who answers a telephone call at a place of business *130 is presumed to speak for the company in respect to the general business carried on by such company." (Emphasis added.) To the same effect are Bates v. Cronin, 196 Ill. App. 178, and Trapp v. Rockford Elec. Co., 186 Ill. App. 379. The rule stated in these cases has no application to the telephone conversation in the instant case. Anderson called the O'Shea Employment Agency. His alleged conversation was not "in respect to the general business carried on by such company," but in respect to the private or personal affairs of O'Shea and his wife. Conversations with a person in charge of the office in respect to such affairs would not be admissible against O'Shea because they would be beyond the apparent scope of his authority. Anderson asked for O'Shea, thereby making a person to person call. On such calls recognition of the voice of the person called is indispensable. In People v. Metcoff, 392 Ill. 418, the complainant testified that she called the real estate office and asked for Mr. Metcoff and someone answered the phone and said he was Mr. Metcoff. The witness did not claim that she knew Metcoff or that she was able to identify his voice over the telephone. The court, citing Garden City Foundry Co. v. Industrial Commission, 307 Ill. 76, held that the testimony "falls far short of a proper identification of the person to whom she talked by telephone as plaintiff in error." [3] The judgment is reversed and the cause remanded with directions to grant a new trial and for further proceedings not inconsistent with this opinion. Reversed and remanded with directions. TUOHY and FEINBERG, JJ., concur.	{ "pile_set_name": "FreeLaw" }
SYLLABUS (This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized). Magic Petroleum Corporation v. Exxon Mobil Corporation (A-46-12) (069083) Argued November 6, 2013 -- Decided July 28, 2014 FERNANDEZ-VINA, J., writing for a unanimous Court. In this appeal, the Court considers whether a property owner’s claims for contribution under the Spill Compensation and Control Act (Spill Act or Act), N.J.S.A. 58:10-23.11 to -23.24, must be deferred under the doctrine of primary jurisdiction until after the conclusion of New Jersey Department of Environmental Protection (DEP) remediation enforcement actions, or whether a property owner may proceed against responsible parties to recover sums expended to remediate the site before the DEP concludes its involvement in the site. In a proceeding before the Office of Administrative Law (OAL), the DEP sued Magic Petroleum, Inc. (Magic) for expenses incurred during the remediation of hazardous material on land owned and operated by the company. Although Magic asserted that other parties were responsible, Magic bore the entire cost of cleanup pursuant to the DEP’s determination that Magic was a discharger. On August 12, 2003, while the DEP proceedings were ongoing, Magic filed a claim for contribution in the Superior Court under the Spill Act, alleging that Exxon Mobil Corporation (ExxonMobil) and several other parties were responsible for a portion of the costs associated with the cleanup. The trial court dismissed Magic’s claim without prejudice, reasoning that, under the doctrine of primary jurisdiction, the contribution claim could only be filed following complete remediation of the site. The court adduced that deferring the case to the DEP would afford the Department time to employ its expertise in evaluating the full extent of the contamination and total costs of the cleanup, components essential to awarding the final allocation of costs following completion of the remediation. Magic moved for reconsideration, which was denied. Magic appealed, and the Appellate Division affirmed the trial court’s orders dismissing the complaint and affirming the denial of Magic’s request for reconsideration. The panel reasoned that while the Superior Court and the DEP have concurrent jurisdiction to determine whether ExxonMobil is a discharger, only the DEP could identify the contamination, analyze the extent of the discharge, and devise a cleanup strategy. Those findings, the panel continued, needed to be made prior to the Superior Court’s allocation of liability. Furthermore, the panel held that a party must first obtain written approval of the remediation plan from the DEP before commencing a contribution claim under the Spill Act. The Court granted Magic’s petition for certification. 213 N.J. 387 (2013). HELD: Plaintiff property owners or other responsible parties may file contribution claims in Superior Court, and a court may allocate liability before the final resolution of a site remediation plan by the DEP. The trial court may assign liability based on evidence presented at trial, but may not be able to issue a final damages award. In addition, a party need not obtain written approval of the remediation plan prior to filing a claim for contribution. 1. The New Jersey Legislature enacted the Spill Act in 1976 to “stem the threat to the economy and environment of the State posed by the discharge of petroleum products and other hazardous substances.” Marsh v. N.J. Dep’t. of Envtl. Prot., 152 N.J. 137, 144 (1997) (internal quotation omitted). The Act prohibits the “discharge” of “hazardous substances” into the environment and provides for the cleanup of that discharge. N.J.S.A. 58:10-23.11c. (pp. 11-12) 2. The DEP is charged with managing public funds to quickly and efficiently restore lands spoiled with environmental contamination. N.J.S.A. 58:10-23.11f(a)(1) (authorizing the DEP to “act to clean up and remove or arrange for cleanup and removal of such discharge” or to “direct the discharger to clean up and remove or arrange for the cleanup and removal of the discharge”). The Legislature established strict liability for causing environmental contamination and mandated that dischargers are jointly and severally liable. N.J.S.A. 58:10-23.11g(c)(1). Thus, the DEP may collect the entire amount of cleanup costs from one discharger, even when that party was only partially responsible for the spill. (pp. 12-13). 1 3. In 1992, the Legislature amended the Spill Act to clarify that dischargers ordered by the DEP to pay for the entirety of cleanup costs were entitled to seek contribution from other responsible parties, based in part, on “the normal course of tort law.” L. 1991, c. 372, § 14. At the time of the amendment’s passage, the “normal course of tort law” included the already-existing right of contribution, codified in the Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A-1, as modified by the Comparative Negligence Act, N.J.S.A. 2A:15-5.1. In pertinent part, the Spill Act provides that “[w]henever one or more dischargers or persons cleans up and removes a discharge of a hazardous substance, those dischargers and persons shall have a right of contribution against all other dischargers and persons in any way responsible for a discharged hazardous substance or other persons who are liable for the cost of the cleanup and removal of that discharge of a hazardous substance.” N.J.S.A. 58:10-23.11f(a)(2)(a). (pp. 13-15) 4. Importantly, the Legislature directed that contribution plaintiffs seek relief before a court. The Legislature bestowed upon the courts liberal discretion to “allocate the costs of cleanup and removal among liable parties using such equitable factors as the court determines are appropriate.” N.J.S.A. 58:10-23.11f(a)(2)(a). The Legislature went further to ensure private entity dischargers were not prevented from seeking recourse in the courts, dictating that “[n]othing in [N.J.S.A. 58:10-23.11f(a)(2)(a)] shall affect the right of any party to seek contribution pursuant to any other statute or under common law.” Thus, the Legislature established a private right of action in contribution so that dischargers designated by the DEP could share the cost of remediation with additional potentially responsible dischargers not initially designated by the DEP. The Legislature focused on the courts as the venue to allocate liability percentages, while the DEP continued to apply its expertise in the remediation of the site. (pp. 15-17) 5. This appeal requires the Court to address the doctrine of primary jurisdiction. Primary jurisdiction is applicable when a case is properly filed in the Superior Court but the court declines original jurisdiction, referring specific issues to the appropriate administrative body. The court gives deference to the administrative body’s interpretation of its own regulations and findings of fact on particular issues that are within the special competence of the agency pursuant to applicable statutes. Essentially, the court retains jurisdiction but defers action until the agency has reviewed the case and employed its expertise. In instances where the court and the agency have concurrent jurisdiction, disputed factual issues should be evaluated by the agency because of its expertise, but legal issues should be left to the court to decide. Although no formula exists to evaluate the applicability of primary jurisdiction, our courts have been guided by a four-part test, which considers (1) whether the matter is within the conventional experience of judges; (2) whether the matter is peculiarly within the agency’s discretion, or requires expertise; (3) whether inconsistent rulings might disrupt the statutory scheme; and (4) whether prior application has been made to the agency. (pp. 17-20) 6. Primary jurisdiction is not applicable in this contribution claim. First, dischargers statutorily are afforded the same right as the DEP to sue other potentially responsible parties in order to recover contribution costs for contamination where other parties caused a portion of the discharge. Additionally, the Spill Act gives the court, not the DEP, jurisdiction over contribution claims. N.J.S.A. 58:10-23.11f(a)(2)(a). Indeed, here, the DEP implicitly conceded that a claim for contribution, and specifically the allocation of liability, is a form of recourse not within the DEP’s jurisdiction. Moreover, contribution claims do not necessitate the expertise of the DEP because allocating liability and considering expert testimony are matters within the conventional experience of judges. Therefore, the DEP and the courts share concurrent jurisdiction over the recovery of cleanup costs. (pp. 20-24) 7. Finally, a contribution plaintiff need not obtain the DEP’s written approval of the investigation and remediation plan prior to filing a claim for contribution. The Court reaches this conclusion based upon the plain language of the statute and the clear Legislative intent to amend the Spill Act to clarify and permit a private claim for contribution. The issue of allocation of liability is independent from the issue of the total amount of the costs. While dischargers are required to have written approval for the actual expenses that they incur for the purpose of remediation in order to seek contribution for those expenses, that is not a prerequisite to allocation of responsibility for the costs associated with the approved remediation. (pp. 25-27) The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the trial court for proceedings consistent with this opinion. CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA and ALBIN, and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE FERNANDEZ-VINA’s opinion. JUSTICE PATTERSON did not participate. 2 SUPREME COURT OF NEW JERSEY A-46 September Term 2012 069083 MAGIC PETROLEUM CORPORATION, Plaintiff-Appellant, v. EXXON MOBIL CORPORATION and MARIE TIRICO, Defendants-Respondents, and TRENTON OIL COMPANY and M.M. WERTHEIM CORPORATION, Defendants and EXXON MOBIL CORPORATION, Defendant/Third-Party Plaintiff-Respondent v. LINKING RING PETROLEUM, Third-Party Defendant. Argued April 1, 2014 – Decided July 28, 2014 On certification to the Superior Court, Appellate Division. Michael G. Sinkevich, Jr., argued the cause for appellant (Lieberman & Blecher, attorneys; Stuart J. Lieberman, of counsel). Robert T. Lehman argued the cause for respondent Exxon Mobil Corporation (Archer & 1 Greiner, attorneys; Mr. Lehman, Adam P. Baas, and Sarah A. Gribbin, on the briefs). Lance J. Kalik submitted a letter in lieu of brief on behalf of respondent Marie Tirico (Riker Danzig Scherer Hyland & Perretti, attorneys). Martha N. Donovan argued the cause for amicus curiae New Jersey Apartment Association (Norris McLaughlin & Marcus, attorneys; Ms. Donovan and Edward A. Hogan, on the brief). Martha N. Donovan submitted a brief on behalf of amicus curiae Ironstate Development Co., Ltd. (Norris McLaughlin & Marcus, attorneys; Ms. Donovan and Edward A. Hogan, on the brief). JUSTICE FERNANDEZ-VINA delivered the opinion of the Court. When environmental contamination occurs, the Spill Compensation and Control Act (Spill Act), N.J.S.A. 58:10-23.11 to -23.24, makes all dischargers jointly and severally liable for the entire cost of cleanup. The New Jersey Department of Environmental Protection (DEP or Department) is involved in a spill cleanup either by affirmatively compelling a “discharger” to remediate the site or by managing remediation accomplished by parties. Remediation expenses are the responsibility of the party or parties who are “in any way responsible” for the pollution. N.J.S.A. 58:10-23.11g. The Spill Act specifically authorizes a private right of action, thus allowing parties to seek contribution totaling an amount equal to the party’s share 2 of liability for the remediation costs from other responsible parties. See N.J.S.A. 58:10-23.11f(a)(2)(a). In this appeal, we consider whether a property owner’s claims for contribution under the Spill Act must be deferred under the doctrine of primary jurisdiction until after the conclusion of DEP remediation enforcement actions or whether a property owner may proceed against responsible parties to recover sums expended to remediate the site before the DEP concludes its involvement in the site. The facts in this case led to two separate legal actions. In the first case, the DEP sued Magic Petroleum, Inc. (Magic) for expenses incurred during the remediation of hazardous material on land owned and operated by the company. Although Magic asserted that other parties were responsible, Magic bore the entire cost of cleanup pursuant to the DEP’s determination that Magic was a discharger. Magic then sought contribution from Exxon Mobil Corporation (ExxonMobil), the owner of neighboring land, to defray the cost of the cleanup. That action started the pending case. Magic’s claim was dismissed without prejudice by the trial court, which reasoned that, under the doctrine of primary jurisdiction, the contribution claim could only be filed following complete remediation of the site. The court adduced that deferring the case to the DEP would afford the Department time to employ its expertise in evaluating the full extent of the contamination and total costs of the 3 cleanup, components essential to awarding the final allocation of costs following completion of the remediation. The Appellate Division affirmed the trial court’s decision. The appellate panel recognized that the Superior Court and the DEP have concurrent jurisdiction to determine whether ExxonMobil is a discharger, but the DEP has sole jurisdiction over identifying contaminants on the land and assessing the extent of the discharge in order to formulate the proper remediation plan. Furthermore, the panel held that a party must first obtain written approval of the remediation plan from the DEP before commencing a contribution claim under the Spill Act. While the extent of the cleanup has yet to be ascertained, we agree that the trial court may determine, subject to proofs, whether ExxonMobil is also responsible for the contamination. Moreover, we conclude that the trial court may assign liability to responsible parties, based on evidence presented at trial, but we note that the court may not be able to issue a final damages award. Further, we determine that a party need not obtain written approval of the remediation plan prior to filing a claim for contribution. Therefore, we reverse the judgment of the Appellate Division and remand to the trial court. I. A. In the early 1990s, Magic purchased Lot 19.01 in the Clarksburg area of Millstone Township. On that lot, Magic owned 4 and operated a gasoline refueling and service station, which was subsequently discovered to be the source of ground and water contamination on the land. Across the street, ExxonMobil owned a parcel of land, designated as Lot 11,1 where it operated another gasoline refueling station, rife with its own contamination issues. At the time of purchase, Magic was aware that its property contained several underground storage tanks (USTs), that were leaking petroleum hydrocarbons into the soil and ground water. In fact, the DEP became involved with Lot 19.01 in 1989, years before Magic purchased the land, after the DEP detected strong petroleum odors and ionization on the land. Those contaminants were later determined to be a “discharge” pursuant to the Spill Act, N.J.S.A. 58:10-23.11b. As a result, two USTs were removed in 1991. In 1995, the DEP issued a Field Directive notifying Magic of the need to investigate and remediate the hazardous substances discharged on Lot 19.01. In 1997, Magic had three more USTs removed from the property. In 1999, Magic entered into an Administrative Consent Order (ACO) with the DEP, whereby Magic agreed to remediate the property under DEP oversight. The DEP issued an Administrative Order and Notice of Civil 1 Defendant Marie Tirico purchased Lot 11 from ExxonMobil in 1988. Tirico then sold Lot 11 to defendant Trenton Oil Company. Later, Magic’s principal, Avinash Vashisht, acquired Lot 11 and transferred it to another corporation, Linking Ring Petroleum, also owned by Vashisht. 5 Administrative Penalty Assessment on May 9, 2003, when, according to the DEP, Magic failed to comply with the ACO. Magic requested an administrative hearing and the case was transferred to the Office of Administrative Law (OAL). Magic asserted that the proceeding should be stayed to admit ExxonMobil as a party so that liability could be allocated to each potentially responsible party accordingly. Magic also sent letters to the DEP requesting that the agency join ExxonMobil in the remediation plan. The DEP responded by letter dated August 21, 2003, directing that “the assessment of a percentage of the responsibility is best addressed in negotiation with ExxonMobil or before the [c]ourt.” An administrative hearing was held, and on November 1, 2006, an Administrative Law Judge (ALJ) concluded that the contamination of Lot 19.01 was properly attributed to a discharge for which Magic was “in any way responsible” under N.J.S.A. 58:10-23.11g. The ALJ also found that Magic was in violation of the ACO. The DEP adopted the ALJ’s decision on December 18, 2006. Before completion of the OAL proceeding, Magic filed a complaint in Superior Court, Law Division in which it alleged that the 1999 ACO was a contract, that DEP breached the contract and that DEP breached the duty of good faith and fair dealing. A Law Division judge dismissed the case on October 4, 2006. Magic then appealed the dismissal of the case and the final 6 decision of the DEP to the Appellate Division, which consolidated the cases and affirmed both judgments. We denied certification. Vashisht v. N.J. Dep’t. of Envtl. Prot., 198 N.J. 473 (2009). B. On August 12, 2003, while the DEP proceedings were ongoing, Magic filed a claim for contribution in the Superior Court under the Spill Act, alleging that ExxonMobil and several other parties were responsible for a portion of the costs associated with the cleanup of the contamination on Lot 19.01. That claim gave rise to this appeal. Both Magic and ExxonMobil engaged in extensive discovery efforts, including serving and answering interrogatories, hiring experts, and obtaining reports regarding which party was responsible for the contamination of Lot 19.01. On June 14, 2010, ExxonMobil filed a notice to stay the case or to dismiss the complaint without prejudice. In support of its motions, ExxonMobil asserted that the DEP’s determination of necessary remediation projects must precede any court allocation of liability under the Spill Act. The court dismissed the case without prejudice, reasoning that, since the DEP was already on Magic’s property collecting data about the discharge contaminants, the allocation of liability would be more accurate if adjudged after the DEP had detailed information about the extent of the contamination and necessary remediation. The court focused on the DEP’s current role in the 7 remediation on Lot 19.01 and the DEP’s function in the evaluation of the type of cleanup that would be required. That assessment would substantially affect the dollar amount of cleanup costs to be paid by the responsible parties. Magic moved for reconsideration, which was denied. Magic appealed to the Appellate Division. In an unpublished opinion, the Appellate Division affirmed the trial court’s order dismissing the complaint without prejudice and affirming the denial of Magic’s request for reconsideration. The appellate panel reasoned that, while the Superior Court had sole jurisdiction to allocate the costs of remediation among liable parties, several other issues needed to be addressed before reaching the allocation of liability. Specifically, the Appellate Division stated that, although the court and the DEP had concurrent jurisdiction over whether ExxonMobil was a “party in any way responsible,” only the DEP could identify the contamination, analyze the extent of the discharge, and devise a cleanup strategy. Those findings, the panel continued, needed to be made prior to the Superior Court’s allocation of liability. Relying on the doctrine of primary jurisdiction, the Appellate Division found that the unsettled issues would be best decided by the expertise of the DEP so as to avoid inconsistent rulings. The Appellate Division also declared that Magic, and any other party seeking contribution 8 under the Spill Act, must obtain written approval from the DEP for the remediation plan prior to filing a contribution claim. Magic petitioned this Court, and we granted certification. 213 N.J. 387 (2013). II. Magic argues that the trial court’s dismissal of its contribution claim was improper because primary jurisdiction is not applicable. Relying on N.J.S.A. 58:10-23.11f, Magic asserts that the Legislature did not include any language either limiting a party’s recourse in the courts or requiring that a party wait until after the environmental investigation is complete and the remedial action plan is approved before filing a contribution claim. Magic maintains that the plain language of the statute bestows upon the court broad powers to allocate liability in contribution claims, permitting the court to use “such equitable factors as the court determines are appropriate.” N.J.S.A. 58:10-23.11f(a)(2)(a). As a corollary, Magic contends that written approval by the DEP for the investigation and proposed remediation plan is not required prior to filing a claim for contribution, contrary to the Appellate Division’s decision. In support of this argument, Magic relies on the new regulatory scheme for site cleanup governed by the Site Remediation Reform Act, N.J.S.A. 58:10C-1 to -29. That statute changed the mechanism for remediation projects by placing the bulk of oversight duties in the hands of 9 licensed site remediation professionals2 (LSRPs) and retaining only minimal oversight responsibilities for the DEP. See N.J.S.A. 58:10C-1.3; see also N.J.S.A. 58:10C-27. Magic argues that demanding written approval prior to the filing of a contribution claim is impractical and impossible in light of this legislation because the DEP no longer oversees remediation projects or provides approval for remediation plans. ExxonMobil argues that the trial court appropriately applied the doctrine of primary jurisdiction in dismissing the case without prejudice because only the DEP has the authority to determine the scope and nature of a party’s discharge liability. Further, ExxonMobil contends that the DEP should be allowed to ascertain specific facts within its expertise before the contribution claim can proceed, particularly because the DEP is required to verify the extent of discharge and evaluate the remediation plan on Magic’s property, in accordance with the ACO. Furthermore, ExxonMobil contends that in order for a party to recover in a contribution claim, the expenses for which the party seeks contribution must meet the definition of “cleanup 2 Licensed site remediation professionals are individuals who independently oversee the cleanup of contaminated sites, ensuring that the process is conducted effectively and in compliance with New Jersey statutes and regulations. See N.J.S.A. 58:10C-14. The Site Remediation Professional Licensing Board issues licenses for LSRPs based on strict criteria, including a particular level of education and experience in the environmental field. See N.J.S.A. 58:10C-3, -5. 10 and removal costs.” ExxonMobil contends that the Spill Act dictates that “cleanup and removal costs” are only those for which the party has obtained prior “written approval from the [D]epartment.” N.J.S.A. 58:10-23.11b. Accordingly, ExxonMobil insists that a party seeking contribution must have written approval for the remediation plan prior to filing a claim for contribution. The New Jersey Apartment Association and Ironstate Development Co. Ltd., appearing as amici curiae, join in Magic’s assertion that written approval from the DEP is not required prior to filing a claim for contribution. Amici reason that such a prerequisite would cause an exceptionally burdensome backlog of remediation cases for the DEP. III. A. In 1976, New Jersey Legislature enacted the Spill Act in an effort to “stem the ‘threat to the economy and environment of the State’ posed by the ‘discharge of petroleum products and other hazardous substances.’” Marsh v. N.J. Dep’t. of Envtl. Prot., 152 N.J. 137, 144 (1997) (quoting N.J.S.A. 58:10-23.11a); see also Buonviaggio v. Hillsborough Twp. Comm., 122 N.J. 5, 8 (1991). The stated purpose of the Spill Act is to exercise the powers of this State to control the transfer and storage of hazardous substances and to provide liability for damage sustained within this State as a result of any discharge of said 11 substances, by requiring the prompt containment and removal of such pollution and substances, and to provide a fund for swift and adequate compensation to resort businesses and other persons damaged by such discharges. [N.J.S.A. 58:10-23.11a.] Importantly, the Spill Act prohibits the “discharge” of “hazardous substances” into the environment and provides for the cleanup of that discharge. N.J.S.A. 58:10-23.11c; accord Buonviaggio, supra, 122 N.J. at 8. In keeping with the Legislature’s intent that the Spill Act be liberally construed,3 “discharge” is defined broadly as any intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of hazardous substances into the waters or onto the lands of the State, or into waters outside the jurisdiction of the State when damage may result to the lands, waters, or natural resources within the jurisdiction of the State. [N.J.S.A. 58:10-23.11b.] Moreover, under provisions of the Spill Act, the DEP is charged with managing public funds to quickly and efficiently restore lands spoiled with environmental contamination. Marsh, supra, 152 N.J. at 145. Accordingly, the DEP also is authorized to “act to clean up and remove or arrange for cleanup and removal of such discharge or may direct the discharger to clean 3 “The Spill Act being necessary for the general health, safety, and welfare of the people of this State, shall be liberally construed to effect its purposes.” N.J.S.A. 58:10-23.11x. 12 up and remove or arrange for the cleanup and removal of the discharge.” N.J.S.A. 58:10-23.11f(a)(1). The Legislature established strict liability for causing environmental contamination: [A]ny person who has discharged a hazardous substance, or is in any way responsible for any hazardous substance, shall be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs no matter by whom incurred. [N.J.S.A. 58:10-23.11g(c)(1).] Therein, the Legislature also mandated that dischargers are jointly and severally liable. Ibid. Thus, the DEP may collect the entire amount of cleanup costs from one discharger, even when that party was only partially responsible for the spill. However, the DEP is not the only entity entitled to recover cleanup costs. In 1992, the Legislature amended the Spill Act to clarify that dischargers ordered by the DEP to pay for the entirety of cleanup costs were entitled to seek contribution from other responsible parties, based in part, on “the normal course of tort law.” L. 1991, c. 372, § 14; see Statement to S. 2657, A. 3659 at 6 (June 11, 1990). At the time of the amendment’s passage, the “normal course of tort law” included the already-existing right of contribution, codified in the Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A-1, as modified by the Comparative Negligence Act, N.J.S.A. 2A:15-5.1. See Young v. Latta, 123 13 N.J. 584, 592 (1991). The right of contribution is a statutory construction. See N.J.S.A. 2A:53A-3; Young, supra, 123 N.J. at 588. The basic purpose in creating the right of contribution was to achieve “a sharing of the common responsibility [among tortfeasors] according to equity and natural justice.” Sattelberger v. Telep, 14 N.J. 353, 367-368 (1954). Therein, the general right of contribution invokes several liability by intending that the defendant-in-contribution shall pay no more than the party’s percentage of liability. N.J.S.A. 2A:15- 5.3(e). The purpose of the contribution amendment to the Spill Act was to encourage prompt and effective remediation by those parties responsible for contamination who might otherwise be reluctant to cooperate in the remediation efforts for fear of bearing the entire cost of cleanup when other parties were also responsible for the creation and continuation of the discharge. S. Envtl. Quality Comm., Statement to S. Comm. Substitute for S. No. 2657 and Assemb. No. 3659, 204 Leg. at 1-2 (Dec. 10, 1990) [hereinafter Statement to S. Substitute S. No. 2657]. In pertinent part, the Spill Act provides that [w]henever one or more dischargers or persons cleans up and removes a discharge of a hazardous substance, those dischargers and persons shall have a right of contribution against all other dischargers and persons in any way responsible for a discharged hazardous substance or other persons who are liable for the cost of the cleanup and 14 removal of that discharge of a hazardous substance. [N.J.S.A. 58:10-23.11f(a)(2)(a).] The amendment expressly created a separate contribution cause of action for private parties seeking to recover a portion of the cleanup costs. See Hous. Auth. v. Suydam Investors, L.L.C., 177 N.J. 2, 18 (2003). “In order to accomplish a fair and equitable ultimate sharing of the remediation burden among all responsible parties and thereby to promote contamination cleanup, N.J.S.A. 58:10-23.11f(a)(2)(a) casts a broad net encompassing ‘all other dischargers and persons in any way responsible for a discharged hazardous substance . . . .’” Pitney Bowes, Inc. v. Baker Indus., Inc., 277 N.J. Super. 484, 487-88 (App. Div. 1994); see also Cyktor v. Aspen Manor Condo. Ass’n, 359 N.J. Super. 459, 476 (App. Div. 2003) (internal citations omitted) (stating that contribution provision was enacted to “provide a right of contribution to ‘accomplish a fair and equitable . . . sharing of the remediation burden among all responsible parties’”) (alteration in original) (quoting Pitney Bowes, supra, 277 N.J. Super. at 488). Importantly, the Legislature directed that contribution plaintiffs seek relief before a court. The Legislature bestowed upon the courts liberal discretion to “allocate the costs of cleanup and removal among liable parties using such equitable factors as the court determines are appropriate.” N.J.S.A. 15 58:10-23.11f(a)(2)(a). The Legislature went further to ensure private entity dischargers were not prevented from seeking recourse in the courts, dictating that “[n]othing in [N.J.S.A. 58:10-23.11f(a)(2)(a)] shall affect the right of any party to seek contribution pursuant to any other statute or under common law.” Ibid. Federal courts interpreting the Spill Act have set out several factors, which may provide guidance to New Jersey courts allocating contribution costs for remediation of hazardous substances. The Federal District Court in New Jersey suggests the following considerations, better known as the “Gore factors” (1) the ability of the parties to demonstrate that their contribution to a discharge, release or disposal of a hazardous waste can be distinguished; (2) the amount of the hazardous waste involved; (3) the degree of toxicity of the hazardous waste involved; (4) the degree of involvement by the parties in the generation, transportation, treatment, storage, or disposal of the hazardous waste; (5) the degree of care exercised by the parties with respect to the hazardous waste concerned, taking into account the characteristics of such hazardous waste; and (6) the degree of cooperation by the parties with the federal, state or local officials to prevent any harm to the public health or the environment. 16 [Lenox Inc. v. Reuben Smith Rubbish Removal, 91 F. Supp. 2d 743, 747 (D.N.J. 2000). (citation omitted).] Additionally, courts may look to any other “equitable factors as the court determines are appropriate” to allocate liability. N.J.S.A. 58:10-23.11f(a)(2)(a). Thus, under the Spill Act, the Legislature established a private right of action in contribution so that dischargers designated by the DEP could share the cost of remediation with additional potentially responsible dischargers not initially designated by the DEP. The Legislature focused on the courts as the venue to allocate liability percentages for such recourse, while the DEP continued to apply its expertise in the remediation of the site. B. This appeal also requires us to address the doctrine of primary jurisdiction. The doctrine of primary jurisdiction is applicable when a case is properly filed in the Superior Court but the court declines original jurisdiction, referring specific issues to the appropriate administrative body. Daaleman v. Elizabethtown Gas Co., 77 N.J. 267, 269 n.1 (1978). The court gives deference to the administrative body’s interpretation of its own regulations and findings of fact on particular issues that are within the special competence of the agency pursuant to applicable statutes. See ibid. Essentially, the court retains jurisdiction but defers action until the agency has reviewed the 17 case and employed its expertise. See Campione v. Adamar, Inc., 155 N.J. 245, 264 (1998). This doctrine is especially important for “‘promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties.’” Boss v. Rockland Elec. Co., 95 N.J. 33, 40 (1983) (quoting United States v. W. Pac. R.R. Co., 352 U.S. 59, 63-64, 77 S. Ct. 161, 164-65, 1 L. Ed. 2d 126, 132 (1956)). In instances where the court and the agency have concurrent jurisdiction, disputed factual issues should be evaluated by the agency because of its expertise, but legal issues should be left to the court to decide. See ibid. (“[W]here the resolution of a contested legal issue properly brought before a court necessarily turns on factual issues within the special province of an administrative agency, the court should refer the factual issues to that agency.”). On the other hand, “[w]hen the legal rights of parties are clear, it is unjust and unfair to burden them with an administrative proceeding to vindicate their rights.” Ibid. (citing N.J. Civil Serv. Ass’n v. State, 88 N.J. 605, 613 (1982)). In Boss, a utility company sought to cut down trees on a residential property rather than trim and prune them under a long-standing easement. Id. at 36-37. This Court concluded that a provision in the easement needed to be interpreted in accordance with regulations of the Board of Public Utilities 18 (BPU) prior to any judicial action, reasoning that “when the determination of the legal issue must be preceded by ‘the taking of the necessary evidence and the making of necessary factual findings,’ it is best done by the administrative agency specifically equipped to inquire into the facts.” Id. at 39-40 (quoting Roadway Express, Inc. v. Kingsley, 37 N.J. 136, 140 (1962)). Thus, the Court remanded the case, instructing that the BPU Commissioners make factual findings, which would then be submitted to the trial court for a decision on the legal issue. Id. at 42. By contrast, this Court found that, in the interest of justice and an expeditious remedy, a taxpayer need not pursue a formal appeal to an agency for a refund of over-assessed taxes paid because of clerical errors on the part of the municipality. Farmingdale Realty Co. v. Borough of Farmingdale, 55 N.J. 103, 110-11 (1969). Focusing on administrative exhaustion, this Court reasoned that, although the taxpayer might have appealed to the agency, the trial court appropriately could enter a judgment because the case involved only legal questions. Id. at 112-13. Moreover, where the Legislature did not provide an adequate remedy for relief before the agency and did not intend to prevent persons from seeking such recourse before the courts, we held that individuals may bring common-law claims in the Superior Court, even when the subject matter of the claims is 19 related to the agency’s purview. Campione, supra, 155 N.J. at 260. In Campione, the plaintiff sought to recover money damages for malicious prosecution, breach of contract, and discrimination based on the defendant casino’s enforcement of gaming regulations against plaintiff for card counting. Id. at 249. When analyzing the Casino Control Act (CCA), N.J.S.A. 5:12-1 to -142, this Court found that the Legislature did not create a forum for private individuals to bring grievances before the Casino Control Commission (CCC), and the Court therefore held that the plaintiff had properly filed his claims in the Superior Court. Id. at 262. On the other hand, the Court determined that primary jurisdiction was applicable to the extent that the claim depended on interpretation of the CCA or agency regulations, and ordered that the case should be referred to the CCC for consideration of those matters alone. Id. at 264. Although no formula exists to evaluate the applicability of primary jurisdiction, our courts have been guided by a four-part test, basing primary jurisdiction decisions on 1) whether the matter at issue is within the conventional experience of judges; 2) whether the matter is peculiarly within the agency’s discretion, or requires agency expertise; 3) whether inconsistent rulings might pose a danger of disrupting the statutory scheme; and 4) whether prior application has been made to the agency. [Boldt v. Correspondence Mgmt., Inc., 320 N.J. Super. 74, 85 (App. Div. 1999).] 20 IV. Applying these principles to this appeal, we conclude first that primary jurisdiction is not applicable in the setting of this contribution claim. We hold that plaintiff property owners or other responsible parties are permitted to file contribution claims in Superior Court, and a court may allocate liability before the final resolution of a site remediation plan by the DEP. First, dischargers statutorily are afforded the same right as the DEP to sue other potentially responsible parties in order to recover contribution costs for contamination where other parties caused a portion of the discharge. There is no question that the DEP has the authority to sue “any party responsible” for cleanup costs following the DEP’s remediation of a site. See N.J. Dep’t. of Envtl. Prot. v. Dimant, 212 N.J. 153, 159 (2012) (finding that to recover costs from responsible party, DEP must show reasonable nexus between discharge, discharger and contamination at the damaged site). At the time of filing, and anytime as permitted by Rule 4:29-1, the DEP may join as defendants in the suit as many or as few potentially responsible parties as the agency deems necessary. N.J.S.A. 58:10- 23.11g(c). Because the DEP may join a party at the onset of a claim, prior to determining the full extent of the contamination, it follows that a private entity is granted that 21 same right to hold a responsible party accountable through a contribution claim. To deny this right would be fundamentally unfair, especially where the contribution plaintiff could be liable for a substantial amount of cleanup costs, even when not entirely -- or even substantially -- responsible for the contamination. Additionally, the Spill Act gives the court, not the DEP, jurisdiction over contribution claims. N.J.S.A. 58:10- 23.11f(a)(2)(a). For example, if the DEP initiates administrative proceedings against a discharger for contamination of land, a discharger is permitted to file a contribution claim so that the court can assign liability among the potentially responsible parties. In such situations, because the Legislature did not intend for private parties to use the DEP as a forum to bring contribution claims, the only recourse private-party dischargers have to obtain contribution from other responsible parties is in the Superior Court. Just as the CCC was not an appropriate place to bring common-law claims against casinos, Campione, supra, 155 N.J. at 262, here, the DEP is not the proper venue for dischargers to bring contribution claims. Through the Spill Act, the Legislature instructed that contribution claims should be filed in the Superior Court. See N.J.S.A. 58:10-23.11f(a)(2)(a). In its August 21, 2003 letter to Magic, the DEP implicitly conceded that a claim for contribution, and specifically the 22 allocation of liability, is a form of recourse not within the DEP’s jurisdiction. In that letter, the DEP expressly directed that the determination of the percentage of liability is best resolved either between the parties or “before the [c]ourt.” Thus, the DEP clarified that the agency was not the proper forum in which to debate or distribute liability among potentially responsible parties. Moreover, contribution claims do not necessitate the expertise of the DEP. A contribution claim allocates liability. Assigning liability is a matter within the conventional experience of judges. Judges are tasked with assigning liability in related Spill Act cases where the DEP sues a party responsible for contamination of a site to recover cleanup costs. Both in contribution cases and in general Spill Act litigation, there is no question that the trial court may engage in allocating a percentage of liability based on the factual and expert proofs regarding the presence and volume of contaminants on the land and the origin of those contaminants. Additionally, the testimony of expert witnesses is both a necessary aspect of the contribution case, integral to proving liability, and a trial component with which judges are intimately familiar. Thus, although the contribution claim contains factors within the purview of the DEP, DEP expertise is not essential in reaching a final decision on liability allocation. 23 Therefore, it follows that the DEP and the courts share concurrent jurisdiction over the recovery of cleanup costs. Private parties are required to turn to the courts to seek contribution from other entities that caused contamination on the land in the form of a percentage of liability. Ultimately, the final determination of costs will be dictated by the remediation project and overseen by the DEP and the LSRPs. Finally, it would be contrary to the stated goals of the Spill Act -- which promotes prompt remediation -- to force a discharger to bear the burden of the entire cleanup cost until such time as the remediation is fully complete. The completion of a site’s remediation may take many years and could involve substantial expenses. To force one party to shoulder such an amount could prevent remediation from proceeding promptly by generating a disincentive for the party to put forth the financial contribution. Similarly, compelling one party to pay all the cleanup costs would be inimical to the stated goals of the Spill Act, particularly when that one party was not entirely at fault for all of the contamination. Therefore, we hold that a party determined to be a discharger and held responsible for the cost of cleanup by the DEP is entitled to bring a contribution claim against other potentially responsible parties before the final tally of cleanup costs. Such a determination is consistent with the Legislature’s intent to encourage expeditious and efficient remediation of site contamination. 24 V. We next turn our attention to whether the DEP’s written approval of the investigation and remediation plan is needed prior to filing a claim for contribution. We conclude that it is not. We base this decision on the plain language of the statute and the clear Legislative intent to amend the Spill Act to clarify and permit a private claim for contribution. ExxonMobil maintains that N.J.S.A. 58:10-23.11f(a)(2)(a) permits parties to only recover “clean up and removal costs” in a contribution claim. N.J.S.A. 59:10-23.11f(a) provides that, [w]henever one or more dischargers or persons cleans up and removes a discharge of a hazardous substance, those dischargers and persons shall have a right of contribution against all other dischargers and persons in any way responsible for a discharged hazardous substance or other persons who are liable for the cost of the cleanup and removal of that discharge of a hazardous substance. [N.J.S.A. 58:10-23.11f(a) (emphasis added).] The Legislature defines “cleanup and removal costs” as all direct costs associated with a discharge, . . . incurred by the State or its political subdivisions or their agents or any person with written approval from the department in the: (1) removal or attempted removal of hazardous substances. [N.J.S.A. 58:10-23.11b (emphasis added).] Accordingly, ExxonMobil asserts that Magic cannot recover for contribution expenses until Magic has “written approval from the department.” We disagree. 25 The Legislature was clear in instructing contribution plaintiffs on the necessary proofs to succeed on a claim for contribution, dictating that plaintiffs need only to prove that a contribution defendant is liable for a discharge under the Spill Act in order to prevail on a claim. N.J.S.A. 58:10-23.11f(a)(2)(a). (“In an action for contribution, the contribution plaintiffs need prove only that a discharge occurred for which the contribution defendant or defendants are liable pursuant to the provisions of [N.J.S.A. 58:10-23.11g(c)], and the contribution defendant shall have only the defenses to liability available to parties pursuant to [N.J.S.A. 58:10- 23.11g(d)].”). Thus, the argument in favor of requiring written approval of a remediation plan is of no moment in this case. The issue of allocation of liability is independent from the issue of the total amount of the costs. N.J.S.A. 58:10-23.11f(a)(2)(a) does not address the final determination of costs, only the allocation of liability. Magic is not requesting that the court assign a final allocation of cleanup costs. Rather, Magic is only seeking that the court assign a percentage of liability, a determination that does not require DEP approval. According to the plain language of the statute, it is clear that N.J.S.A. 58:10-23.11f(a)(2)(a) limits cleanup and removal costs to only those costs approved by the DEP. However, the provision does not pertain to the allocation of those costs. 26 While dischargers are required to have written approval for the actual expenses that they incur for the purpose of remediation in order to seek contribution for those expenses, that is not a prerequisite to allocation of responsibility for the costs associated with the approved remediation. Mandating written approval prior to the filing of a contribution claim would thwart the purpose of allowing contribution claims, which the Legislature explained was to encourage expeditious and efficient remediation. See Statement to S. Substitute S. No. 2657, supra, at 1-2. Forcing contribution plaintiffs to obtain written approval from the DEP would lengthen the cleanup process and discourage parties from cooperating with the DEP. Therefore, we hold that written approval for the remediation plan is not required prior to filing a contribution claim. VI. The judgment of the Appellate Division is reversed and the case is remanded for proceedings consistent with this opinion. CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, and ALBIN, and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE FERNANDEZ-VINA’s opinion. JUSTICE PATTERSON did not participate. 27 SUPREME COURT OF NEW JERSEY NO. A-46 SEPTEMBER TERM 2012 ON CERTIFICATION TO Appellate Division, Superior Court MAGIC PETROLEUM CORPORATION, Plaintiff-Appellant, v. EXXON MOBIL CORPORATION and MARIE TIRICO, Defendants-Respondents, and TRENTON OIL COMPANY and M.M. WERTHEIM CORPORATION, Defendants, and EXXON MOBIL CORPORATION, Defendant/Third-Party Plaintiff-Respondent, v. LINKING RING PETROLEUM, Third-Party Defendant. DECIDED July 28, 2014 Chief Justice Rabner PRESIDING OPINION BY Justice Fernandez-Vina CONCURRING/DISSENTING OPINIONS BY DISSENTING OPINION BY REVERSE AND CHECKLIST REMAND CHIEF JUSTICE RABNER X JUSTICE LaVECCHIA X JUSTICE ALBIN X JUSTICE PATTERSON ----------------------- --------------------- JUSTICE FERNANDEZ-VINA X JUDGE RODRÍGUEZ (t/a) X JUDGE CUFF (t/a) X TOTALS 6 1	{ "pile_set_name": "FreeLaw" }
753 P.2d 833 (1988) 114 Idaho 97 STATE of Idaho, Plaintiff-Respondent, v. Deloy WHEELER, Defendant-Appellant. No. 16970. Court of Appeals of Idaho. April 6, 1988. 834 William F. Bacon of Johnson, Olson, Robison, Chartered, Pocatello, for defendant-appellant. Jim Jones, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., Boise, for plaintiff-respondent. WALTERS, Chief Judge. A magistrate, in a trial without a jury, found Deloy Wheeler guilty of driving while intoxicated. On appeal, the district court upheld the magistrate's judgment of conviction. Wheeler further appeals, contending that he did not waive his right to a jury trial, that an insufficient foundation was laid to admit the results of a breath analysis, and the evidence did not support the magistrate's finding of guilt. We hold that an effective waiver of the right to a jury trial is not shown by this record. Because we find that issue to be determinative, we do not reach the other issues raised by Wheeler. We remand the case for a new trial. On August 16, 1986, Wheeler was cited for driving while under the influence of alcohol, a violation of I.C. § 18-8004. It appears that on November 20, 1986, the court set Wheeler's case for trial before a jury on January 15, 1987. However, on the latter date a court trial was held instead. Wheeler contends that the lack of a jury at his trial resulted from confusion and a misunderstanding between his counsel and the court, and should not constitute a waiver of his right to have his case heard by a jury. Because our decision rests upon the lack of a showing of a clear waiver in the record, we have included extensive excerpts from the trial transcript. (Punctuation and capitalization by transcriber.) At the opening of the trial, the following exchange occurred: COURT: All right, are there any preliminary matters? BACON [Wheeler's Counsel]: Yes, Your Honor, there is. We would like to have the Court hear an argument or a Motion to Dismiss based on probable cause, or the failure thereof, in the event that the Court rules favorable [sic] to the Defendant, it would necessarily mean that the remainder of the trial would be unnecessary. I would like to argue that first, Your Honor. COURT: Well, do you wish to make the motion, now? BACON: Yes, Your Honor. COURT [Addressing the prosecutor]: Mr. Heideman, what's your HEIDEMAN: Your Honor, the State would object at this time to the motion. This is a pre-trial matter, legal issues should have been taken sometime taken up before the Court sometime before the time set for trial. It is not part of the State's case. We have four elements. The Motion to Dismiss is based upon the probable cause. The probable cause is not one of the elements that the State needs to prove. So, the State would object at this time, due to the untimeliness of the motion. COURT: Mr. Bacon, I have, in anticipation of that copy or taken a photocopy of [Idaho Criminal] Rule 12, subsection (f), failure to raise the defenses or objections must be made prior to trial, or at a time set by the Court pursuant to subsection (d), or prior to an extension thereof made by the Court, or it shall constitute a waiver. So, I would BACON: I would, for the record at this time, Your Honor, state on the record, that we had initially requested a jury trial, I had anticipated arguing before the jury the probable cause issue, not on a Motion to Dismiss, but as a factual finding. And based on my conferences with the Court and Mr. Heideman, it was my understanding that there would be no objection, or I would have the opportunity to make that argument, then the jury trial was waived COURT: Well, you can certainly raise any defenses that you I mean, as a matter of fact. What the facts are, but as far as the Motion to Dismiss, it is untimely and it is denied. BACON: Okay, I am ready to proceed, Your Honor. The trial followed on the heels of this exchange. During closing argument, 835 Wheeler's counsel again attempted to raise the issue of "probable cause."[1] The prosecuting attorney again objected. The following colloquy ensued: "COURT: Well, I know what you are getting at, Mr. Bacon. As I indicated that probably, Mr. Bacon, if you are going to argue probable cause for the stop, it should have been argued long before the time of trial. "BACON: This is not a Motion to Dismiss for Failure of Probable Cause. "COURT: I am aware of what the evidence has been concerning the stop. If you want to make your argument relative to the factual situation of that stop, why that's one thing. But, as far as the Constitutional provision for dismissal, I think that it has been waived. "BACON: Well, may we approach the bench, Your Honor? I am going to ask for a mistrial. Basically, I only waived the jury trial under the belief that I could argue the officer's stop. "COURT: Well, you can argue the stop. But, as far as using the Constitutional basis "BACON: Well, that's what it is, probable cause. "COURT: No, it isn't. You've waived that, because it wasn't brought up before trial. "BACON: Okay, that's my grounds for mistrial. I didn't know at that time. I was not under the impression that that was going to be held to. Because I've got the United States Supreme Court case with the jury instruction. The jury can make that finding, whether it is actual facts to support probable cause. [sic] "COURT: The jury and the court, the trier of the fact can make a determination as to the facts. "BACON: Okay, well, that's it. That's what in our regard on a Motion to Dismiss, wouldn't it? "COURT: Well, I have already denied your Motion to Dismiss. "BACON: Well, we agreed "COURT: The facts of the case are there. That's been presented to the Court. All of the legal issues have been waived. "BACON: Well, maybe we ought to verify the record, because I am not clear. The only grounds I waive the jury trial, was under the belief that I could argue that probable cause factual "COURT: You can argue the factual setting of the case. "BACON: Isn't the point, that the officer had to make the stop? Is the Court not going to make a determination on that? "COURT: I am going to make a determination on that. That's part of the factual scenario of the whole case. "BACON: Okay, I'm I make make [sic] a motion for mistrial. I just don't understand what the difference is. "COURT: Well, the difference is, that if you are going to make a motion, a legal motion for a dismissal of the case, based upon "BACON: No "COURT: The fact that there was not probable cause, it should have been done. You still have the factual circumstances that led up to this entire circumstance, you are entitled to make your argument on, but it is on the fact, not on the legal technicalities of whether or not this man's Constitutional Rights have been violated. "BACON: Okay, are you referencing that from an [sic] 1983 action or something? "COURT: No, I am referencing it on whether or not, you are going to raise the question of probable cause on a legal question, that his Constitutional Rights have been violated, that should have been done. Now, we are down to the facts of the 836 arrest and what happened on it. I am well aware what the testimony has been relative to that. You may make your factual argument. "BACON: Okay, for the record, I guess that I am going to make a motion for a mistrial at this point in time. Based on my and this is on the record, a motion for a mistrial at this time, based on the fact that the jury was waived only under the belief, which apparently was a mistaken belief that I would be given an opportunity to argue the right to dismiss the cause of action, based on probable cause. "COURT: Well, Mr. Heideman, maybe if you want to respond to that? "HEIDEMAN: Yes, Your Honor, I believe that I have made it perfectly clear in talking to Mr. Bacon throughout these proceedings for the jury trial, that I would object to any time, to him arguing the probable cause, due to the untimeliness of the motion. He has indicated to me before that probable cause was his issue in this. That we talked about it at the pre-trial, at that time, he intended to talk to the officer. I have a note in my file about the probable cause. I fully expected the Defendant to motion it up for a Motion to Dismiss on the probable cause. When I found out that he was going to argue probable cause to the jury, I told him that I would object to that. He indicated to me at that time, that he intended to waive the jury and we would argue that in front of the Judge. I told him again, that I would object to him arguing probable cause to the Judge in a trial setting. "BACON: More factual background, I did attempt to contact Officer Calling, he never did return my calls. Furthermore, the only condition that I had the only opportunity that I had to argue formal rule 12, Motion to Dismiss, was on the condition that if I was not successful, that my client have to enter a plea of guilty, which was certainly unconscionable. "COURT: Well, the facts of the case where we are at now, we're at the trial the legal motions for probable cause that I have tried to explain to you, Mr. Bacon, have long since gone. The trial is here, now. I will take into consideration any determination that is made here today, based on the facts that have been presented to the Court. Whether or not, and I will specifically tell you right now, that I will be concerned with what happened in this stop. That is part of the factual setting that we find ourselves in, now. But, as far as the legal niceties of the preliminary motions, they weren't made. I am not going to consider it in that setting. The trial has been made, the evidence has been presented, you may argue on the evidence that has been presented. "BACON: Very good. As long as the Court realizes that I am not making a Rule 12 motion at this time. "COURT: I hope we're not. I want you to understand that we're now on the facts. And I am the trier of the facts, since the jury has been waived. "BACON: My earlier motion still stands. In any event, I will continue "COURT: Well, as far as if your motion for mistrial is still before the Court, I will rule on that. "BACON: Okay, I would like a ruling on that. "COURT: I will deny your motion." Subsequently, the magistrate found Wheeler guilty of the charge. On appeal, the district court concluded that the magistrate had, in fact, found probable cause for the stop. Therefore, the district court upheld the conviction. Wheeler now appeals from that decision. The right to a jury in a criminal trial is secured by the Sixth Amendment to the United States Constitution and by Article 1, § 7, of the Idaho Constitution. The United States Constitution requires that a defendant accused of a serious, non-petty offense be afforded the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Our state Constitution provides a trial by jury for all public offenses which are potentially punishable by imprisonment or where potential fines or other sanctions are punitive in nature. State v. Bennion, 112 Idaho 32, 837 730 P.2d 952 (1986). An individual found guilty of driving while under the influence of alcohol may be imprisoned. I.C. § 18-8005. Thus, Wheeler had a right to a jury trial. But the right to a jury trial is not jurisdictional; it can be waived. Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930); State v. Davis, 104 Idaho 523, 661 P.2d 308 (1983); State v. Swan, 108 Idaho 963, 703 P.2d 727 (Ct.App. 1985). The Idaho Constitution sets forth the minimum standards for waiving the right to a jury. In relevant part, Section 7 of Article 1 provides: A trial by jury may be waived in all criminal cases, by the consent of all parties, expressed in open court, and in civil actions by the consent of the parties, signified in such manner as may be prescribed by law. The method of waiving a jury trial is a procedural matter and is also governed by rules promulgated by our Supreme Court. Allen Steel Supply Co. v. Bradley, 89 Idaho 29, 403 P.2d 859 (1965). See also City of Pocatello v. Anderton, 106 Idaho 370, 679 P.2d 647 (1984); R.E.W. Construction Co. v. District Court of the Third Judicial District, 88 Idaho 426, 400 P.2d 390 (1965). A waiver cannot be made or enforced unless it appears to have been made in conformance with the existing rule. Van Vranken v. Fence-Craft, 91 Idaho 742, 430 P.2d 488 (1967). The constitutional provision is supplemented by Idaho Criminal Rule 23, which reads in part: (a) Felony cases. In felony cases issues of fact must be tried by a jury, unless a trial by jury is waived by a written waiver executed by the defendant in open court with the consent of the prosecutor expressed in open court and entered in the minutes. (b) Misdemeanor cases. In criminal cases not amounting to a felony, issues of fact must be tried by a jury, unless a trial by jury is waived by the consent of both parties expressed in open court and entered in the minutes. Appellate courts carefully scrutinize an assertion that a defendant has waived his right to a jury. Because trial by jury is one of the fundamental guaranties of the rights and liberties of the people, every reasonable presumption should be indulged against its waiver. Neal v. Drainage Dist. No. 2, 42 Idaho 624, 248 P. 22 (1926). See, e.g., Johansen v. Looney, 30 Idaho 123, 163 P. 303 (1917). Even in a civil action, a waiver may not be shown by implication. Van Vranken v. Fence-Craft, supra. "The right to a jury trial is a fundamental right, and must be guarded jealously." State v. Bennion, 112 Idaho at 37, 730 P.2d at 957. The consent of the defendant must be express and intelligent. Patton v. United States, supra. [T]he duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from the mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity. Id. 281 U.S. at 312-313, 50 S.Ct. at 263. The court convicted Wheeler of a misdemeanor. He contends that any waiver of a jury was grounded upon his counsel's mistaken belief that he would be permitted to present "a motion to dismiss" for lack of sufficient cause to stop Wheeler's vehicle. Wheeler also notes that the record fails to show he personally waived his jury right; in addition, the trial court minutes do not mention a waiver. The state asserts that the record demonstrates that Wheeler was aware that his case was being tried to a judge and that he voluntarily acquiesced to his counsel's waiver. The state also contends that any misunderstanding by counsel was cured by the magistrate's announcement at the conclusion of the trial regarding grounds for the stop. We begin by stating that we are not persuaded by the state's argument that Wheeler's "motion to dismiss" was ruled upon by the magistrate. Although the magistrate's oral decision included a discussion of the evidence surrounding the stop, it was couched in terms of reasonable doubt, which is not the quantum of evidence 838 necessary for a traffic stop. Contrary to the district court's appellate conclusion, our impression is that the magistrate may have weighed the evidence regarding the officer's observations prior to the stop in determining whether Wheeler was in fact under the influence of alcohol, not for the purpose of determining whether the fruits of the stop should be suppressed a claim the magistrate had already held to be belatedly raised. In any event, the question before us is not whether the evidence should have been suppressed, but whether Wheeler agreed to a waiver of the jury. Apparently a jury was not present when Wheeler appeared for trial. According to Wheeler's counsel, the jury's absence resulted from counsel's understanding that although the magistrate would not permit the validity of the officer's stop to be challenged before a jury, the magistrate would be willing to hear the challenge himself. However, when Wheeler's counsel began his argument, which he characterized as a motion to dismiss, the motion was deemed untimely as a suppression motion pursuant to I.C.R. 12. Despite that ruling, counsel acceded to proceeding with the court trial. However, as the quoted colloquy indicates, counsel apparently did so under a continuing misapprehension. When it finally became clear to him that the court was not going to consider dismissing the case based on the invalidity of the stop, counsel sought a mistrial. At no point did counsel express on behalf of Wheeler an unconditional waiver of the right to a jury trial. In addition, as Wheeler points out, no waiver is noted in the court's minutes. Given the inclusion of a transcript in the record, we do not find the failure to include a waiver in the court's minutes per se determinative. Compare Farmer v. Loofbourrow, 75 Idaho 88, 267 P.2d 113 (1954); Kelson v. Ahlborn, 87 Idaho 519, 525, 393 P.2d 578, 581 (1964) (where no transcript was available, "[t]he failure of the court to make a minute entry of any alleged waiver precludes reliance upon such waiver."). But it is one more factor supporting Wheeler's contention that an intention to waive a jury was not clearly expressed. Finally, the record does not indicate that Wheeler personally waived his right to a jury. In State v. Swan, 108 Idaho 963, 966, 703 P.2d 727, 730 (Ct.App. 1985), a special panel of our court adopted the American Bar Association's recommendation,[2] and held that: [A] Court shall not accept a waiver unless the defendant, after being advised by the court of his right to a trial by jury, personally waives his right to a trial by jury, either in writing or in open court for the record. [Emphasis added.] Accord People v. Holmes, 54 Cal.2d 442, 5 Cal. Rptr. 871, 353 P.2d 583 (1960); Rice v. People, 193 Colo. 270, 565 P.2d 940 (1977). In Swan, after stating the ABA recommendations, the Court concluded: We hold that such procedure is a sound one for Idaho to adopt. Where the waiver is left to implication from conduct, there is danger of misinterpretation with respect to a right the importance of which requires there be certainty. A requirement that the Court personally address the defendant will not constitute an undue burden on the courts where this very important right is at issue. State v. Swan, 108 Idaho at 966, 703 P.2d at 730 (citations omitted). However, Swan was charged with a felony Wheeler was charged with a misdemeanor. As Patton v. United States, supra, recommends, the court's "caution" should increase as the degree of the offense increases in gravity. We find it unnecessary to decide at this time whether a personal waiver is similarly required for a misdemeanor. But, we focus on that same risk of misinterpretation by the trial court, which was highlighted in Swan. The lack of a personal waiver is another factor weighing against the state's contention that Wheeler knowingly and voluntarily waived this fundamental right. 839 As the decisions cited throughout this opinion reflect, our appellate courts do not find waivers of fundamental rights in doubtful cases. We conclude that this record simply does not clearly demonstrate an express, voluntary and intelligent waiver of Wheeler's right to a jury trial. In essence, this record depicts a defendant being led uncertainly by counsel to bypass one of his fundamental rights. Our conclusion is based on three factors any waiver by Wheeler's counsel resulted from confusion and misunderstanding, no waiver is included in the court's minutes, and no waiver was personally entered by Wheeler. We do not decide today whether any one of these factors alone would invalidate a waiver of a misdemeanor defendant's right to a jury. For the above reasons, we hold that the record does not demonstrate an express waiver by Wheeler of his right to a jury trial. Absent an express waiver by the defendant, the court erred in proceeding with the trial. In our view, the other issues raised by Wheeler are not subject to inevitable repetition on retrial and do not require our attention at this time.[3]See I.C. § 1-205. The decision of the district court, upholding the magistrate's judgment of conviction, is hereby reversed. The judgment is vacated and the case remanded for new trial. BURNETT and SWANSTROM, JJ., concur. NOTES [1] It is our impression that throughout this proceeding Wheeler's counsel's "probable cause" argument rested upon an assertion that the officer lacked the reasonable suspicion necessary to justify the stop. See State v. Simpson, 112 Idaho 644, 734 P.2d 669 (Ct.App.), rev. denied, 112 Idaho 948, 738 P.2d 94 (1987). Wheeler's counsel contended that if the fruits of that stop were suppressed, a dismissal was inevitable. [2] See 3 AMERICAN BAR ASSOCIATION, STANDARDS FOR CRIMINAL JUSTICE: TRIAL BY JURY § 1.2(1) (2d ed. 1980). [3] Although Wheeler may again challenge introduction of the Intoximeter 3000 results, the denied objection from which he has appealed was based on a lack of foundation being laid by the state. As we cannot foresee what foundation may be laid by the state at a new trial, we believe any discussion by us at this point would be pure speculation.	{ "pile_set_name": "FreeLaw" }
94 F.3d 655 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order. Marilyn DICKERSON, Plaintiff-Appellant,v.Shirley S. CHATER, Commissioner, Social SecurityAdministration,* Defendant-Appellee. No. 95-5277. United States Court of Appeals, Tenth Circuit. Aug. 23, 1996. Before ANDERSON, LOGAN and MURPHY, Circuit Judges. ORDER AND JUDGMENT** ANDERSON, Circuit Judge. 1 After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. 2 Marilyn Dickerson appeals from an order of the district court affirming the Secretary's decision denying her application for social security disability benefits. Ms. Dickerson filed for disability benefits on December 28, 1988. After an initial denial, hearing before an administrative law judge (ALJ), and denial of review by the Appeals Council, Ms. Dickerson sought review in the district court. The district court remanded to the Secretary, at her request, to consider additional vocational expert testimony and to more thoroughly assess Ms. Dickerson's residual functional capacity. The administrative law judge held a second administrative hearing on September 21, 1992, after which he again denied Ms. Dickerson benefits. The Appeals Council again denied review, and Ms. Dickerson filed suit in district court. The district court affirmed the Secretary's decision, and Ms. Dickerson appealed to this court. 3 We review the Secretary's decision to determine whether the factual findings are supported by substantial evidence in the record viewed as a whole and whether the correct legal standards were applied. Andrade v. Secretary of Health & Human Servs., 985 F.2d 1045, 1047 (10th Cir.1993). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir.1989)(quotation omitted). The Secretary has established a five-step evaluation process pursuant to the Social Security Act for determining whether a claimant is disabled within the meaning of the Act. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988)(discussing five-step disability test). When the analysis reaches step five, the Secretary bears the burden of showing that a claimant retains the capacity to perform other work and that such work exists in the national economy. Id. at 751. 4 Here, the ALJ found that Ms. Dickerson could not perform her past relevant work as a nurses's aide, receptionist, cook, VISTA volunteer, and teacher's aide. Reaching step five, he found, however, that she retained the residual functional capacity to perform the full range of sedentary work, except for occasional lifting of more than fifteen pounds; standing or walking for more than one hour in an eight-hour workday or for more than fifteen minutes without interruption; climbing, stooping, kneeling, balancing, crouching and crawling; working at unprotected heights, working around moving machinery, and working in environments containing temperature extremes. He then applied the Medical-Vocational Guidelines, 20 C.F.R. § 404, Subpt. P, App. 2, Rules 201.28 and 201.29 (the grids) as a framework, considered testimony from a vocational expert, and concluded that Ms. Dickerson was not disabled. 5 Ms. Dickerson contends that the ALJ's decision is not supported by substantial evidence because he improperly rejected the opinions of her treating physician, and a consulting physician, that she is disabled. She challenges his finding at step three that her impairments did not meet or equal a listed impairment, and contends that he improperly evaluated her complaints of pain. 6 The medical evidence shows that Ms. Dickerson suffers from chronic neuritis of the right leg with peroneal nerve palsy, status post femur condyle fracture and multiple fractures of her right lower leg secondary to an automobile accident, and severe lower back pain with chronic lumbosacral disease. She contends that her condition "substantially equals" the criteria for one or more of sections 1.05(C), 1.11, and 11.14 in the Listing of Impairments, 20 C.F.R. § 404, subpt. P, App. 1. 7 A claimant who seeks to show that his impairment is "equivalent" to a listed impairment must present medical findings equal to all the criteria for that impairment. Sullivan v. Zebley, 493 U.S. 521, 531 (1990). The ALJ considered Ms. Dickerson's claim that her condition meets or equals the criteria for Listing 1.05(C),1 and determined that it did not. We have reviewed the record carefully concerning Ms. Dickerson's allegations of vertebrogenic disorders, and have determined that the ALJ's conclusion, based on the medical evidence, that she does not meet the listing, is supported by substantial evidence. 8 Nor does Ms. Dickerson's condition satisfy Listing 1.11.2 Although she did suffer a fracture of her tibia and femur, and there is evidence that she was unable to return to full weight-bearing status, she did have a solid union of her fractures. X-rays taken on August 10, 1989 indicate that a solid union had occurred as of that date. See Appellant's Supp.App., Vol. 1 at 322. Therefore, she fails to meet all relevant criteria for this listing. 9 Ms. Dickerson also claims that her condition meets or equals Listing 11.14. She has failed to show that she raised this issue in the district court. We do not consider issues raised for the first time on appeal. See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir.1994). 10 Ms. Dickerson next contends that the ALJ improperly ignored her physicians' opinions that she is disabled. Dr. Muckula, her treating physician, opined on June 18, 1991 that she was "completely and totally disabled within the scope of the Social Security [guidelines]," Appellant's Supp.App., Vol. 2 at 658, and again on April 15, 1992, that it was his medical opinion that Ms. Dickerson "is totally and permanently disabled" within those guidelines, id. at 661. Dr. Cooper, a consulting physician, stated in an examination report dated March 5, 1989, that in his opinion, Ms. Dickerson was "temporarily totally disabled and she should perhaps be examined at a later date to get more definitive information concerning any permanent treatment." Id. at 666. 11 The Secretary asserts in her brief that the ALJ was free to disregard Dr. Muckula's opinion, because he was not her treating physician. It is clear, however, that Dr. Muckula did treat Ms. Dickerson; in fact, the ALJ himself described Dr. Muckula as her treating physician. Id. at 409. Since Dr. Muckula was Ms. Dickerson's treating physician, the ALJ was required to give great weight to his opinion concerning her disability, and to supply a specific, legitimate reason if he chose to reject it. Washington v. Shalala, 37 F.3d 1437, 1440 (10th Cir.1994). 12 The ALJ rejected Dr. Muckula's opinion for several reasons. First, he believed that the medical evidence did not support Dr. Muckula's conclusion that Ms. Dickerson met the criteria for sections 1.03A and B and 1.05(C) in the Listing of Impairments, 20 C.F.R. § 404, subpt. P, App. 1. We have already concluded that the ALJ's conclusion that she did not meet Listing 1.05(C) is supported by substantial evidence. Having reviewed the entire record, we conclude that the same also is true with regard to Listings 1.03A and B. Thus, Dr. Muckula's conclusion that Ms. Dickerson is disabled because she meets these listings is not supported by the medical evidence. 13 The ALJ also rejected Dr. Muckula's opinion concerning Ms. Dickerson's back problems as inconsistent with subsequent x-rays and with Dr. Dandridge's evaluation of the severity of her complaints. Dr. Dandridge, the ALJ noted, is a board-certified orthopedic surgeon, while Dr. Muckula is a family practitioner. See 20 C.F.R. § 404.1527(d)(5) (greater weight given to specialist's opinion in area of his or her specialty). The ALJ permissibly rejected Dr. Muckula's opinion. 14 Dr. Cooper merely stated that Ms. Dickerson should be considered temporarily totally disabled. He did not state that she was permanently disabled, and did not explain the basis of his opinion of disability. The ALJ could properly reject consultant Dr. Cooper's statement in reaching his ultimate conclusion that Ms. Dickerson is not disabled. See 20 C.F.R. § 404.1527(e)(2) (ultimate responsibility for determining disability reserved to Secretary). 15 Finally, Ms. Dickerson complains that the ALJ improperly evaluated her complaints of pain. We have reviewed the reasons stated in his decision for finding Ms. Dickerson's allegations of pain not credible. The ALJ properly evaluated Ms. Dickerson's allegations of pain using the criteria set forth in Luna v. Bowen, 834 F.2d 161, 165-66 (10th Cir.1987), and found them not credible. He took her nonexertional impairments, including pain, into consideration in assessing her residual functional capacity and in formulating hypothetical questions to the vocational expert. The ALJ's decision is supported by substantial evidence. 16 The judgment of the United States District Court for the Northern District of Oklahoma is AFFIRMED. * Effective March 31, 1995, the functions of the Secretary of Health and Human Services in social security cases were transferred to the Commissioner of Social Security. P.L. No. 103-296. Pursuant to Fed. R.App. Proc. 43(c), Shirley S. Chater, Commissioner of Social Security, is substituted for Donna E. Shalala, Secretary of Health and Human Services, as the defendant in this action. Although we have substituted the Commissioner for the Secretary in the caption, in the text we continue to refer to the Secretary because she was the appropriate party at the time of the underlying decision ** This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3 1 Listing 1.05C states as follows: C. Other vertebrogenic disorders (e.g. herniated nucleus puplosus, spinal stenosis) with the following persisting for at least 3 months despite prescribed therapy and expected to last 12 months. With both 1 and 2: 1 Pain, muscle spasm, and significant limitation of motion in the spine; and 2 Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss 2 Listing 1.11 states as follows: Fracture of the femur, tibia, tarsal bone of pelvis with solid union not evident on X-ray and not clinically solid, when such determination is feasible, and return to full weight-bearing status did not occur or is not expected to occur within 12 months of onset.	{ "pile_set_name": "FreeLaw" }

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